As judges issue rulings on the police records law, new legislation may be on its way

Courts around the state are suddenly taking up the same question: Does a new law demanding the release of police discipline records apply retroactively? So far, no consensus has emerged around the question of whether SB 1421 applies to police records produced prior to the law going into effect Jan. 1.

On Friday afternoon, Contra Costa County Superior Court Judge Charles S. Treat denied a preliminary injunction sought by a police union to bar the release of these records, but stayed the order pending an appeal. Richmond Police Officers Association v. City of Richmond, 19-0169 (Contra Costa Super. Ct., filed Jan. 24, 2019).

"This is the first substantive ruling of all of these cases," said David Snyder, executive director of the First Amendment Coalition, who was in court. "The first judge to weigh in on the merits got it right."

Attorney General Xavier Becerra appears to have emboldened some police unions and local governments when his office said in a Feb. 1 statement that he would not honor requests to his office for records prior to Jan. 1 "until the legal question of retroactive application of the statute is resolved by the courts."

Meanwhile, several sources say the bill's author has spoken with supporters of the original bill about introducing new legislation that would clarify the Legislature intended the bill to be retroactive. A spokesperson for state Sen. Nancy Skinner, D-Berkeley, reached Friday would not confirm whether such an effort is in the works.

Skinner submitted a letter into the official Senate record on Jan. 31 arguing the law should apply retroactively.

"The plain language of SB 1421, Chapter 988, Statutes of 2018 and the California Public Records Act within which it operates, make clear, that any and all records that fit within the categories defined that are in the possession of the agency are subject to disclosure when an applicable request for a public record is received regardless of when those documents were created or when the underlying conduct occurred," Skinner wrote.

Michael L. Rains, a principal with Rains Lucia Stern St. Phalle & Silver PC, is representing police groups in seven cases in six counties challenging the retroactive enforcement of the law, including the Contra Costa County case.

He said he has also heard the rumors of follow-up legislation.

"The Legislature had the ability when they drafted the bill to explicitly state that it was intended to be retroactive," Rains said. "I guess there would be a legislative fix possible, but if they are going to go down that road, they will simply be confirming the legal argument we've been making all along."

More hearings are coming next week in other venues, Rains said, but he added they have obtained temporary restraining orders in multiple courts.

Supervising Deputy Attorney General Mark R. Beckington referred to two of these in the letter saying the state Department of Justice would not enforce the law retroactively. The letter also said that some of the records being sought by media organizations are "protected by the attorney work product doctrine" and would never be released.

This reluctance has led to criticism from some liberal groups that championed Becerra's re-election last year. His office is slated to receive $477,000 and three new positions in order to comply with the law under Gov. Gavin Newsom's budget proposal unveiled last month.

On Thursday, UC Davis School of Law Professor Elizabeth E. Joh reacted to the news that Becerra would not retroactively enforce the law by tweeting a face palm emoji, writing the law would be "tied up in court" because the authors neglected to be specific.

"I agree with the professor that there is lots that could have been done to improve the clarity of the bill," said J. Scott Tiedemann, managing partner of Liebert Cassidy Whitmore in Los Angeles.

But Tiedemann, who has written extensively on the law, said even clarifying legislative intent would not clear up all the potential legal issues around SB 1421. For instance, some personnel records were created in the past with the understanding that they would remain confidential.

"How can you change the rules of the game as regards to those records?" Tiedemann asked. "It kind of pulls the rug out from under everybody."

As it stands now, the legal cases should resolve -- eventually -- on the plain text of the bill. But there is also disagreement over that. Skinner has noted the law references the California Public Records Act, which applies to any existing record.

The act resides in the state Government Code, Rains said, but SB 1421 only actually modified the Penal Code.

His firm sought to fast-track the questions to the state Supreme Court, but were denied a hearing on Jan. 2. San Bernardino County Sheriff's Employees' Benefits Association v. County of San Bernardino, S253115 (Cal., filed Dec. 18, 2018).

"I was dumbfounded that they didn't see this coming and exercise the original jurisdiction," Rains said. "They could have decided it once and for all."