PEOPLE v. LAFF (1998)

SUMMARY

The Code of Civil Procedure expressly authorizes a trial court to appoint a referee for the information of the court in special proceedings, and to impose the referee's fees on the parties.   Proceedings relating to a search warrant issued prior to any indictment, information, or complaint are “ special proceedings.”   Accordingly, the trial court may appoint a referee to screen for privilege the documents seized under a warrant, and may require the People to bear part of the referee's charges.

FACTS AND PROCEDURAL HISTORY

Real parties, attorneys, are the subject of a criminal investigation by the Fraud Bureau of the California Department of Insurance, and the Fraud Division of the Los Angeles District Attorneys Office.   These agencies obtained warrants from respondent Superior Court authorizing search of real parties' offices.

Real parties asked that the searches be conducted under supervision of a special master acting under Penal Code section 1524.  Section 1524, subdivision (c) requires such supervision for search of documentary evidence possessed by lawyers ¹ “not reasonably suspected of ․ having engaged in criminal acitivity ․”  (Emphasis added.)   The People rejected the request for a special master on the ground that real parties were suspects.

The searches went forward and voluminous documents were seized.   The documents were returned under seal to the respondent trial court.

Real parties asked the trial court to review the documents in camera, as authorized under case law discussed below, and withhold documents protected by the attorney-client and attorney work-product privilege.   It was estimated the review would require 100 hours or more of work.   The trial court determined to appoint a referee to review the documents in camera and make recommendations regarding privilege, and further determined to require the parties to share the referee's charges.

The People conceded that a reference was appropriate to assist the trial court in reviewing the documents (Petition, p. 4), but objected to the requirement that the People pay half the referee's charges.   The trial court then ordered the documents sealed pending further order, to permit appellate review of its decision requiring the People to pay half the referee's fees.

No criminal prosecution has yet been brought against real parties.

We summarily denied the People's petition for a writ of mandate directing the trial court to conduct the review and release the non-privileged documents.   The Supreme Court then directed us to vacate our order denying the writ, and order the trial court to show cause why the writ should not issue.

We issued the OSC, heard oral argument, and now deny the petition for the reasons stated below.

DISCUSSION

The People argue that the underlying proceedings are criminal in nature;  that there is no statutory authority for a reference in a criminal proceeding;  and that absent statutory authorization the trial court lacked power to order the People to pay referee's fees.

Careful review of the statutory scheme demonstrates that the People's position is mistaken.

Penal Code section 1524 authorizes a trial court to issue search warrants and specifies the permissible grounds.   The section establishes the special procedure noted above for review of documents seized from lawyers who are not suspects.  Section 1524 creates no similar procedure where the lawyer is a suspect, but the court of appeal in People v. Superior Court (Bauman & Rose) (1995) 37 Cal.App.4th 1757, 44 Cal.Rptr.2d 734 held that under the Evidence Code provisions governing privilege, lawyer-suspects also are entitled to have seized documents screened in camera for privilege.

 The proceedings in the present case arose under the search warrant power created in Penal Code section 1524, and involved the screening procedure authorized in Bauman & Rose. The definitional sections of the Code of Civil Procedure establish that these proceedings were properly categorized as “special proceedings,” not as a criminal action.²

Code of Civil Procedure section 21 provides that all judicial remedies are divided into two classes, actions, and special proceedings.   Section 24 states that actions are of two kinds, civil and criminal.   Section 22 defines an “action”:

“An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.”  (Emphasis added.)

Section 23, “Special proceeding defined,” states “Every other remedy is a special proceeding.”  In other words, every proceeding which is not a civil or criminal “action” is by default a “special proceeding,” whether it grows out of criminal or civil wrongs or controversies.

The People have not yet brought an “action” against respondents “for punishment of a public offense.”   Accordingly, the search warrant proceedings below were “special proceedings.” ³

Code of Civil Procedure section 639, subdivision (d) specifically authorizes a compulsory reference “[w]hen it is necessary for the information of the court in a special proceeding.”  (Emphasis added.)  Code of Civil Procedure section 645.1 further authorizes the court to apportion a referee's fees among the parties.   Further, nothing in section 639, subdivision (d) indicates that the power of reference in “special proceedings” is limited to proceedings rooted in civil rather than criminal controversies.

We conclude that the proceedings in the trial court were “special proceedings,” and that sections 639 subdivision (d) and 645.1 therefore explicitly authorized the trial court to appoint a referee for its information respecting claims of documentary privilege, and to apportion the referee's charges between the parties.  (Holt v. Kelly (1978) 20 Cal.3d 560, 562, 143 Cal.Rptr. 625, 574 P.2d 441 [per Justice Mosk, appointment of a section 639(d) referee to take evidence and make recommendations was proper in special proceedings in mandate seeking return of items of property taken from petitioner by Sheriff at time of arrest].)

The correctness of this analysis is confirmed by the fact that the statutes upon which it depends all were enacted at the same time.  Penal Code section 1524 and Code of Civil Procedure sections 21, 22, 23, 24, and 639(d) all were part of the 1872 Codes.⁴  It is reasonable to suppose that the drafters were aware of the various provisions and their interrelationship.   It would have been clear to anyone reading these sections together that proceedings concerning a search warrant in the absence of a pending criminal action were “special proceedings,” and that the 639(d) reference was available in such proceedings.  Code of Civil Procedure section 645.1 was not enacted until 1981, but the power there granted to apportion referee fees applies to all permissible references.

The People concede that a reference would be appropriate in this case with “explicit statutory authorization.”  (Petition, pp. 17, 18).   Indeed, they concede that Code of Civil Procedure sections 639 and 645.1 would justify the Superior Court's action if applicable.  (Reply, pp. 7-8).   But they overlook and fail to discuss the other Code sections discussed above, which define the nature of actions and special proceedings, require conclusion that the proceedings here are “special proceedings,” and bring the case within the express reference power of section 639(d).

Subdivisions (c) through (e) of Penal Code section 1524, providing for free special masters to review documents seized from non-suspect lawyers, were added in 1978.   The evident purpose of this procedure is to protect the attorney-client privilege from intrusion, and to spare non-suspect lawyers any expense associated with searches.

An argument could be made that addition to section 1524 of a specific requirement for special master review of non-suspects' documents implicitly reflects a legislative determination and intent that special masters (or referees) are not appropriate in other warrant proceedings.   However, the inference of such legislative intent is too weak to defeat resort to a “special proceedings” reference, a procedure of general application, which is available by its express terms and which was created concurrent with the original Penal Code section 1524.  Code of Civil Procedure section 639(d) says references are available in “special proceedings.”   The proceedings here are “special proceedings.”   Nothing in Penal Code section 1524 explicitly negates availability of 639(d) references in search warrant “special proceedings.”   The most plausible construction is that 639(d) references are available in search warrant special proceedings, just as in any other special proceedings.

The reference procedure benefits the lawyer-suspect, by providing a practical means for effective, efficient in-camera privilege review.   This is doubtless why respondents here were willing to underwrite half the referee's fees.   The reference also benefits the trial court.   Were the People correct, the trial court would face two equally unhappy alternatives.   The trial judge could spend many hours doing privilege reviews of voluminous documents returned on search warrants-surely not the highest and best use of scarce trial judge time.   Or, the trial court itself could pay for a referee, from overstretched court budgets, though the expense involved really is properly viewed as a cost of the People's criminal investigation.

The Code of Civil Procedure section 639 reference was created, we believe, with just such concerns in mind.

 The referee's findings, of course, will only be advisory, and the trial court will be obliged to consider the findings on their merits, and make its own decision.  (Holt, supra, 20 Cal.3d at p. 562, 143 Cal.Rptr. 625, 574 P.2d 441.)   Further, the trial court must comply with California Rules of Court rule 244.2 governing selection and appointment of referees, and remains responsible to assure that the referee's fees are reasonable.  Code of Civil Procedure section 1023.

DISPOSITION

The petition is denied.   Real parties-in-interest are awarded costs.

FOOTNOTES

1.   The procedure also applies to searches of records of doctors, psychotherapists, and clergymen.

2.   Dicta in Bauman & Rose appears to suggest the contrary, but the court there noted that the People had failed to cite any authority to show that the proceedings there were “special proceedings.”   The People have similarly neglected to cite such authority here, but we shall cite and explain such authority.

3.   While the majority of “special proceedings” may be civil in nature, many are not.   Examples of special proceedings which have their roots in criminal rather than civil conduct include:  forfeiture proceedings involving properties used in illegal sales of liquor, illegal gambling, prostitution, and sales of narcotics (Pen.Code §§ 11200 et seq, 11225, 11305, Health & Saf.Code, § 11570, 3 Witkin, Cal. Procedure (4th ed.1996), Actions, § 19, pp. 74-75);  peace bond proceedings against someone threatening to commit a crime (Pen.Code § 701, 3 Witkin, Cal. Procedure (4th ed.1996), Actions, § 26, p. 82);  trial of the present sanity of a criminal defendant (Pen.Code § 1368;  3 Witkin, Cal. Procedure (4th ed.1996), Actions, section 14, p. 70);  and commitment proceedings for narcotic addicts and sexually violent predators (Ibid).

4.   Subdivision (d) originally was designated subdivision 4.

NEAL, Associate Justice.

JOHNSON, Acting P.J., and WOODS, J., concur.