RIETZ v. CALIFORNIA FRANCHISE TAX BOARD (1979)

Appellants Charles R. Rietz and others appeal from an order of the superior court dissolving a temporary restraining order and denying an application for a permanent injunction precluding California Camino Bank and Union Bank from complying with subpoenas duces tecum issued under authority of section 19254 of the Revenue and Taxation Code and requesting production of certain bank records pertaining to the named appellants.

The sole issue presented on appeal is whether section 7474 of the Government Code violates Article I, section 1 of the California Constitution insofar as it authorizes state agencies to obtain financial records pursuant to an administrative subpoena duces tecum without establishing clearly defined standards for the invasion of a citizen's right to privacy.

The facts of the case are not in dispute. Appellant Rietz was the general partner for each of five limited partnerships, and, as such, responsible for keeping books and records, filing tax returns and running the partnerships.

Winston Mah testified that he was an investigator for the Information, Security and Investigation branch of the California Franchise Tax Board; that his primary duties involved criminal investigations, and that his department makes recommendations for criminal prosecutions.

On July 8, 1977, Mr. Mah executed the following declaration in support of two administrative subpoenas duces tecum: “Winston Mah declares that he is a Special Agent of the Franchise Tax Board; that this department is currently conducting an investigation to determine if the California limited partnerships listed in Exhibit 1 have complied with the provisions of the Personal Income Tax Law in correctly reporting income for the years 1975 and 1976.

“In order to determine whether income has been correctly reported declarant requests that a subpoena duces tecum be issued by the Franchise Tax Board to the (bank) … directing that financial institution to produce the original or true and exact copies of financial records pertaining to the California limited partnerships listed in Exhibit 1 for the years 1975 and 1976.”

At the time of the declarations, the only information Mah had was (1) that taxpayers had claimed losses from the various partnerships, (2) that the document section of the Franchise Tax Board was unable to locate a return for any of the five limited partnerships, and (3) certificates of limited partnerships for each of the five entities had been filed at the County Recorder's office.

On September 14, 1977, said subpoenas duces tecum were served upon respondents California Camino Bank and Union Bank. The subpoenas duces tecum were issued under the authority of section 19254 of the Revenue and Taxation Code¹ and requested the production of certain bank records pertaining to the named appellants herein. Copies of the subpoenas duces tecum were personally served on appellants or their authorized representative on the same date.

Appellants filed a complaint for injunction seeking a permanent injunction restraining respondent banks from turning over the subpoenaed records and respondent State of California Franchise Tax Board, the real party in interest, was joined as defendant in the action. Following a hearing on the merits, the trial court filed an order denying the permanent injunction and directing that respondent banks comply with the subpoenas duces tecum.

At the threshold we note that the instant action could well be dismissed on appeal for the reason that the issue is now moot. The act appellants sought to enjoin has already been completed. However, it is established law that where issues on appeal affect the general public interest and the future rights of the parties, and there is reasonable probability that the same questions will again be litigated and appealed, an appellate court may, although the appeal be subject to dismissal, nevertheless adjudicate the issues involved. (People v. West Coast Shows, Inc. (1970) 10 Cal.App.3d 462, 468, 89 Cal.Rptr. 290.) See also, Eye Dog Foundation v. State Board of Guide Dogs for the Blind, 67 Cal.2d 536, 542, 63 Cal.Rptr. 21, 432 P.2d 717; County of Madera v. Gendron, 59 Cal.2d 798, 804, 31 Cal.Rptr. 302, 382 P.2d 342; DiGiorgio Fruit Corp. v. Dept. of Employment, 56 Cal.2d 54, 58-59, 13 Cal.Rptr. 663, 362 P.2d 487; Dept. of Agriculture v. Tide Oil Co., 269 Cal.App.2d 145, 150-151, 74 Cal.Rptr. 779; Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 749, 300 P.2d 163; Rattray v. Scudder, 67 Cal.App.2d 123, 127-128, 153 P.2d 433. We therefore choose to rule on the issues presented by appellants, since it is likely to recur in the future.

Section 7474 of the Government Code² was enacted in 1976 as part of the California Right to Financial Privacy Act. (hereinafter, “Act”) 1976 Stats. ch. 1320, § 5, pp. 5911-5919, Government Code § 7460, et seq.

Section 7461 sets forth the legislative declaration of policy: “The Legislature finds and declares as follows: (a) Procedures and policies governing the relationship between financial institutions and government agencies have in some cases developed without due regard to citizens' constitutional rights. (b) The confidential relationships between financial institutions and their customers are built on trust and must be preserved and protected. (c) The purpose of this chapter is to clarify and protect the confidential relationship between financial institutions and their customers and to balance a citizen's right of privacy with the governmental interest in obtaining information for specific purposes and by specified procedures as set forth in this chapter.”

Section 7470³ prohibits a government agent or employee from requesting financial information unless the records are specifically described and are within the scope of a proper investigation and the records are obtained by consent of the customer, administrative subpoena, search warrant, or judicial subpoena or subpoena duces tecum.

Section 7471⁴ prohibits a financial institution and its employees from revealing financial records, unless done pursuant to customer consent, administrative subpoena, search warrant, or judicial subpoena or subpoena duces tecum.

Section 7475⁵ authorizes a search warrant for financial records, if the warrant complies with the requirement of Penal Code § 1523, et seq., requiring an affidavit which establishes probable cause.

Section 7476⁶ authorizes a judicial subpoena or subpoena duces tecum for financial records if the subpoena complies with the requirements of the Code of Civil Procedure § 1985, et seq., requiring an affidavit which sets forth in full detail the materiality of the items sought to the issues involved in the case.

Section 7474,⁷ the statute which is herein challenged, establishes the procedural method for a government agent or employee to obtain financial records, requiring that the customer be given notice that his records are being subpoenaed and an opportunity to move to quash the subpoena.⁸

Appellants contend that while sections 7475 and 7476 establish clearly defined standards for the invasion of a citizen's right to privacy (such as probable cause or materiality to the issues of the case), section 7474, pertaining to administrative subpoenas of financial records, fails to establish any substantive standards for a determination of the issue of whether the government is entitled to the records or whether the subpoena should be quashed.

The California Franchise Tax Board (hereafter “Board”) asserts that section 7474, when read in conjunction with section 7470, sets forth clear standards which effectively prevent the arbitrary or unreasonable use of administrative subpoenas. Pursuant to subsection (a) of section 7470⁹ financial records sought to be obtained must be described with particularity and must be consistent with the scope and requirements of the investigation giving rise to the request. Section 7474¹⁰ states that an administrative subpoena duces tecum must (1) be authorized by law (subsection (a)); (2) provide notice to the person whose records are sought (subsection (a)(1)); and identify the issuing agency and the purpose for which the information is to be obtained (subsection (a)(2)).

The Board argues that administrative inquiries initiated by governmental entities pursuant to their investigatory roles are distinguishable from inquiries emanating from proceedings of a judicial nature. It cites Brovelli v. Superior Court (1961) 56 Cal.2d 524, 15 Cal.Rptr. 630, 364 P.2d 462 for the proposition that government agencies can compel production of evidence even where no formal administrative action is pending: “There is no constitutional objection to a system under which the heads of departments of government may compel the production of evidence for purposes of investigation, without instituting formal proceedings against the one from whom the evidence is sought or filing any charges against him. As has been said by the United States Supreme Court, the power to make administrative inquiry is not derived from a judicial function but is more analogous to the power of a grand jury, which does not depend on a case or controversy in order to get evidence but can investigate ‘merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.’ United States v. Morton Salt Co., 338 U.S. 632, 642-643, 70 S.Ct. 357, 364, 94 L.Ed. 401 … Insofar as the prohibition against unreasonable searches and seizures can be said to apply at all it requires only that the inquiry be one which the agency demanding production is authorized to make, that the demand be not too indefinite, and that the information sought be reasonably relevant. United States v. Morton Salt Co., supra, 338 U.S. 632, 651-654, 70 S.Ct. 357; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 202, et seq. 66 S.Ct. 494, 90 L.Ed. 614, [166 A.L.R. 531].” (Id., at 529, 15 Cal.Rptr., at 633, 364 P.2d, at 465.)

The Board does not include it in its briefs, but the Supreme Court also stated in the quotation from the Brovelli case that, “Of course, department heads cannot compel the production of evidence in disregard of the privilege against self-incrimination or the constitutional provisions prohibiting unreasonable searches and seizures.” Brovelli v. Superior Court, supra, 56 Cal.2d 524, 529, 15 Cal.Rptr. 630, 633, 364 P.2d 462, 465.

In its brief, the Board also refers to two United States Supreme Court cases which were similar to the present action. In Donaldson v. United States (1971) 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580, the court up-held the use of an administrative summons served by special agents of the Internal Revenue Service Intelligence Division in conjunction with a tax investigation which potentially would result in criminal prosecution. The court distinguished those instances where there was “a pending criminal charge or, at most, … an investigation solely for criminal purposes.” (Id., at 533, 91 S.Ct. at 544). In concluding that the involvement of an Internal Revenue Service special agent from the Intelligence Division did not establish that the investigation was solely for criminal purposes, the court noted that while the Intelligence Division enforces criminal statutes as contrasted with the Audit Division's emphasis on the civil aspects of enforcement, often a criminal investigation will result in the imposition of a civil tax deficiency with no recommendation for criminal prosecution. This being the case, such investigations cannot be characterized as “solely for criminal purposes.”

In United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978), the United States Supreme Court expanded upon the reasoning of Donaldson, holding that an Internal Revenue Service summons was enforceable even when it was specifically found by the trial court that the special agent who issued the summons was conducting his investigation “‘solely for the purpose of unearthing evidence of [a] criminal conduct.”’ In that regard, the court held that those resisting enforcement of a summons in such circumstances must bear the burden of disproving the actual existence of a valid civil tax determination or collection purpose, thus demonstrating the absence of good faith. (Id., at 311-318, 98 S.Ct. at 2363.)

We note that the aforementioned United States Supreme Court cases are not controlling in the instant action. “The United States of America and the State of California are two separate sovereignties, each dominant within its own sphere.” Redding v. City of Los Angeles (1947) 81 Cal.App.2d 888, 897, 185 P.2d 430, 436.) The state supreme court is the final authority on the constitutionality of a statute that is attacked as conflicting with the state constitution (13 Cal.Jr.3d, Constitutional Law, § 58 at p. 109), and the California Supreme Court's interpretation of the constitution and laws of California is regarded as conclusive and binding on the United States Supreme Court. (Crocker v. Scott (1906) 149 Cal. 575, 582, 87 P. 102.)

It is generally conceded that prior to the 1974 amendment of Article I, Section 1 of the California Constitution, the government was not required to make a showing of good cause in obtaining investigatory information under its subpoena power. However, appellants assert that the constitutional amendment in question changed this broad authority.

The legislative history of the subject amendment was addressed by the California Supreme Court in White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222. In commenting on the purpose of the amendment, the court observed:

The principal objectives of the newly adopted provision are set out in a statement drafted by the proponents of the provision and included in the state's election brochure.11 The statement begins: “The proliferation of government snooping and data collecting is threatening to destroy our traditional freedoms. Government agencies seem to be competing to compile the most extensive sets of dossiers of American citizens. Computerization of records makes it possible to create ‘cradle-to-grave’ profiles of every American. [¶] At present there are no effective restraints on the information activities of government and business. This amendment creates a legal and enforceable right of privacy for every Californian.” (Italics in original.)

The argument in favor of the amendment then continues: “The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion and our freedom to associate with the people we choose. It prevents government and business interests from collecting and stockpiling unnecessary information about us and from misusing information gathered for one purpose in order to serve other purposes or to embarass us.

“Fundamental to our privacy is the ability to control circulation of personal information. [Italics in original.] This is essential to social relationships and personal freedom. The proliferation of government and business records over which we have no control limits our ability to control our personal lives. Often we do not know that these records even exist and we are certainly unable to determine who has access to them.

Even more dangerous is the loss of control over the accuracy of government and business records of individuals. Obviously if the person is unaware of the record, he or she cannot review the file and correct inevitable mistakes․ [[[[¶] The average citizen … does not have control over what information is collected about him. Much is secretly collected․”

The argument concludes: “The right of privacy is an important American heritage and essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U. S. Constitution. This right should be abridged only when there is a compelling public need․” (Id. at 774-775, 120 Cal.Rptr. at 105, 533 P.2d at 233.)

It is clear that the right of privacy extends to financial records. In Burrows v. Superior Court (1974) 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590, our Supreme Court stated, “A bank customer's reasonable expectation is that, absent compulsion by legal process, the matters he reveals to the bank will be utilized by the bank only for internal banking purposes.” (Id. at 243, 118 Cal.Rptr. at 169, 529 P.2d at 593, emphasis added.) Again, in Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656, 125 Cal.Rptr. 553, 542 P.2d 977, the court observed: “A constitutional amendment adopted in 1974 elevated the right of privacy to an ‘inalienable right’ expressly protected by force of constitutional mandate. (Cal.Const., art. I, § 1.) Although the amendment is new and its scope as yet is neither carefully defined nor analyzed by the courts, we may safely assume that the right of privacy extends to one's confidential financial affairs as well as to the details of one's personal life.”

In enacting the Right to Financial Privacy Act, the California legislature expressly provided substantive due process safeguards for discovery of bank records in criminal and civil actions. No such protection is afforded citizens for administrative investigations. Our concern with government access to bank records was aptly stated in an extensive law journal note which discussed the subject:

“Access to bank records facilitates government investigations—whether the inquiry is legitimate or not. Bank data reveal more than credit-worthiness, wealth and income. Records which list dates, payees, payors, and other memoranda can be used to reconstruct an accurate profile of an individual's activities, habits, and even intimate personal affairs. In years past some bankers have cooperated with [government] agents by informally providing information concerning their depositors' transactions. These judicially unsupervised inspections of depositors' accounts have resulted in serious and possibly widespread abuses, particularly in the form of government surveillance of politically dissident individuals.

Several factors exacerbate the problem of government access. The amount of information retained by financial institutions in their ordinary course of business has greatly increased. If banks were not already recording virtually every aspect of their depositors' transactions, they were forced to do so by the Bank Secrecy Act and Treasury regulations thereunder. Furthermore, the development of an electronic funds transfer system in lieu of current paper check payments will provide more information concerning depositors' transactions and will place the data in a readily accessible and usable form. The ability to retrieve quickly information concerning individuals' payments and receipts creates the specter of computerized searches of thousands of accounts for specified funds transfers. In light of the massive recordkeeping of personal financial transactions, unrestricted government access to bank records poses a severe threat to civil liberties and privacy.” (Note (1974) 83 Yale L.Jnl. 1439, 1441-1442.)

The United States Supreme Court has stated, “Formulation of policy is a legislature's primary responsibility, entrusted to it by the electorate, and to the extent Congress delegates authority under indefinite standards, this policymaking function is passed on to other agencies, often not answerable or responsive in the same degree to the people. ‘[S]tandards of permissible statutory vagueness are strict *’ in protected areas. NAACP v. Button, 371 U.S. (415), at 432, 83 S.Ct. (328), at 337 (9 L.Ed.2d 405). ‘Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them.’ Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400, 1419, 3 L.Ed.2d 1377.” (United States v. Robel (1967) 389 U.S. 258, 276, 88 S.Ct. 419, 430, 19 L.Ed.2d 508.)

And in United States v. United States District Court, (1971) 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752, the court declared, “The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. … But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy …” (Id. at 317, 92 S.Ct. at 2136.)

The Board contends that in California we are obligated to follow the Brovelli rule. While we, as an intermediate appellate court are bound by that decision (People v. West Coast Shows, Inc., supra, 10 Cal.App.3d at p. 471, 89 Cal.Rptr. 290), we are equally sworn to uphold a subsequently enacted constitutional amendment.

In Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 134 Cal.Rptr. 839, the court again quoted from the California Ballot Pamphlet referred to above: “The elevation of the right to be free from invasions of privacy to constitutional stature was apparently intended to be an expansion of the privacy right. The election brochure argument states: ‘The right to privacy is much more than “unnecessary wordage.” It is fundamental to any free society. Privacy is not now guaranteed by our State Constitution. This simple amendment will extend various court decisions on privacy to insure protection of our basic rights.’ (Cal. Ballot Pamp. (1972) p. 28) (Italics added.)” (Id. at p. 829, 134 Cal.Rptr. at p. 841.)

In addition, the California Supreme Court, in adopting the language of the election brochure argument, has apparently sanctioned the expressed intent that while the amendment does not purport to prohibit all incursion into individual privacy, “such intervention must be justified by a compelling interest.” (White v. Davis, supra, 13 Cal.3d at p. 775, 120 Cal.Rptr. 94, 106, 533 P.2d 222, 234, emphasis added.) Therefore it appears that the challenged statute must be subject to strict scrutiny.

The deficiency in section 7474, as we see it, is that it rests on the assumption that as long as there is procedural due process and any statute which authorizes a government agency's investigation (section 1925412 of the Revenue and Taxation Code in the present action), the right to privacy is safeguarded. We cannot agree.

When fundamental personal liberties are at stake, they may not be abridged by simply showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. The law must be shown to be necessary, and not merely rationally related to, the accomplishment of a permissible state policy. (Griswold v. Connecticut (1965) 381 U.S. 479, 488, 85 S.Ct. 1678, 14 L.Ed.2d 510.)

In City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 85 Cal.Rptr. 1, 466 P.2d 225, the California Supreme Court held that a financial disclosure law requiring that every public officer and each candidate for state or local office file a statement as to the nature and extent of personal investments in excess of $10,000 was unconstitutional. The court stated that a “‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”’ (Id. at 263, 85 Cal.Rptr. at 4, 466 P.2d at 228.)

In the present case, we find that absent any substantive due process constraints, section 7474 is impermissibly overbroad. Without any showing of materiality or probable cause, a state agency may merely cite a broad enabling statute to secure citizens' private financial data.

Even if the constitutional challenge was not compelling, we observe that Brovelli analogized an administrative inquiry to the “power of a grand jury, which does not depend on a case or controversy in order to get evidence but can investigate ‘merely on suspicion that the law is being violated, or even just because it wants assurance that it is not”’. Yet subsection (b) of section 7476¹³ provides that a grand jury cannot now obtain financial records pursuant to judicial subpoena or subpoena duces tecum without a showing of probable cause. If our legislature has deemed it necessary for a grand jury to show probable cause before obtaining financial records, it would appear that the underlying justification for the Brovelli decision has subsequently been eroded.

Accordingly, the judgment is reversed with directions to the trial court to dismiss the action for having become moot prior to its final determination on appeal. (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 41 Cal.Rptr. 468, 396 P.2d 924; Callie v. Board of Supervisors (1969) 1 Cal.App.3d 13, 19, 81 Cal.Rptr. 440.)

FOOTNOTES

1.  Section 19254 of the Revenue and Taxation Code provides:“The Franchise Tax Board for the purpose of administering its duties under this part, shall have the power to examine any books, papers, records, or memoranda, bearing upon the matters required to be included in the return of any taxpayer under this part. The Franchise Tax Board may also require the attendance of the taxpayer or of any other person having knowledge in the premises and may take testimony and require material proof for its information and administer oaths to carry out the provisions of this section. The Franchise Tax Board may issue subpenas or subpenas duces tecum, which subpenas must be signed by any member of the Franchise Tax Board and may be served on any person for any purpose.”

2.  Unless otherwise indicated, all references hereinafter made to statutory provisions will be to the Government Code.

3.  Section 7470 of the Government Code provides:(a) Except as provided in Section 7480, no officer, employee, or agent of a state or local agency or department thereof, in connection with a civil or criminal investigation of a customer, whether or not such investigation is being conducted pursuant to formal judicial or administrative proceedings, may request or receive copies of, or the information contained in, the financial records of any customer from a financial institution unless the financial records are described with particularity and are consistent with the scope and requirements of the inves$igation giving rise to such request and:(1) Such customer has authorized disclosure to such officer, employee or agent of such state or local agency or department thereof in accordance with Section 7473; or(2) Such financial records are disclosed in response to an administrative subpoena or summons which meets the requirements of Section 7474; or(3) Such financial records are disclosed in response to a search warrant which meets the requirements of Section 7475; or(4) Such financial records are disclosed in response to a judicial subpoena or subpoena duces tecum which meets the requirements of Section 7476.(b) Nothing in this section or in Sections 7473, 7474, 7475, and 7476 shall require a financial institution to inquire or determine that those seeking disclosure have duly complied with the requirements set forth therein, provided only that the customer authorization, administrative subpoena or summons, search warrant, or judicial subpoena or order served on or delivered to a financial institution pursuant to such sections shows compliance on its face.(c) The financial institution shall maintain for a period of five years a record of all examinations or disclosures of the financial records of a customer pursuant to this chapter, including the identity of the person examining the financial records, the state or local agency or department thereof which he represents, and a copy of the customer authorization, subpoena, summons or search warrant providing for such examination or disclosure or a copy of the certification received pursuant to subdivision (b) of Section 7480. Any record maintained pursuant to this subdivision shall be available, within five days of request, during normal business hours for review by the customer at the office or branch where the customer's account was located when examined or disclosed. A copy of such record shall be furnished to the customer upon request and payment of the reasonable cost thereof.

4.  Section 7471 of the Government Code provides:(a) Except in accordance with requirements of Section 7473, 7474, 7475, or 7476, no financial institution, or any director, officer, employee, or agent of a financial institution, may provide or authorize another to provide to an officer, employee, or agent of a state or local agency or department thereof, any financial records, copies thereof, or the information contained therein, if the director, officer, employee or agent of the financial institution knows or has reasonable cause to believe that such financial records or information are being requested in connection with a civil or criminal investigation of the customer, whether or not such investigation is being conducted pursuant to formal judicial or administrative proceedings.(b) This section is not intended to prohibit disclosure of the financial records of a customer or the information contained therein incidental to a transaction in the normal course of business of such financial institution if the director, officer, employee or agent thereof making or authorizing the disclosure has no reasonable cause to believe that the financial records or the information contained in the financial records so disclosed will be used by a state or local agency or department thereof in connection with an investigation of the customer, whether or not such investigation is being conducted pursuant to formal judicial or administrative proceedings.(c) This section shall not preclude a financial institution, in its discretion, from initiating contact with, and thereafter communicating with and disclosing customer financial records to, appropriate state or local agencies concerning suspected violation of any law.(d) A financial institution which refuses to disclose the financial records of a customer, copies thereof or the information contained therein, in reliance in good faith upon the prohibitions of subdivision (a) shall not be liable to its customer, to a state or local agency, or to any other person for any loss or damage caused in whole or in part by such refusal.

5.  Section 7475 of the Government Code provides:An officer, employee, or agent of a state or local agency or department thereof, may obtain financial records under paragraph (3) of subdivision (a) of Section 7470 only if he obtains a search warrant pursuant to Chapter 3 (commencing with Section 1523) of Title 12 of Part 2 of the Penal Code. Examination of financial records may occur as soon as the warrant is served on the financial institution. Nothing in this chapter shall preclude a financial institution from notifying a customer of the receipt of a search warrant, unless a court orders the financial institution to withhold notification to the customer upon a finding that such notice would impede the investigation.

6.  Section 7476 of the Government Code provides:(a) Except as provided in subdivision (b), an officer, employee, or agent of a state or local agency or department thereof, may obtain financial records under paragraph (4) of subdivision (a) of Section 7470 pursuant to a judicial subpoena or subpoena duces tecum only if:(1) The subpoena or subpoena duces tecum is issued and served upon the financial institution and the customer in compliance with Chapter 2 (commencing with Section 1985) of Title 3 of Part 4 of the Code of Civil Procedure; and(2) Ten days after service pass without the customer giving notice to the financial institution that the customer has moved to quash the subpoena. If testimony is to be taken, or financial records produced, before a court, the 10-day period provided for in this subdivision may be shortened by the court issuing the subpoena or subpoena duces tecum upon a showing of reasonable cause. The court shall direct that all reasonable measures be taken to notify the customer within the time so shortened.(b)(1) A grand jury, upon resolution adopted by a majority of its members, may obtain financial records pursuant to a judicial subpoena or subpoena duces tecum which, upon a showing of probable cause, is personally signed and issued by a judge of the superior court in accordance with Section 939.2 of the Penal Code.(2) Upon issuing such subpoena or subpoena duces tecum, the judge shall order the grand jury to notify the customer in writing within 60 days of such issuance; provided, however, that the judge may shorten the 60-day period, or upon a showing of good cause, may extend such period for additional 30-day periods. The notice shall specify the financial records which were examined and the reason for such examination.

7.  Section 7474 of the Government Code provides in pertinent part:(a) An officer, employee, or agent of a state or local agency or department thereof, may obtain financial records under paragraph (2) of subdivision (a) of Section 7470 pursuant to an administrative subpoena or summons otherwise authorized by law and served upon the financial institution only if:(1) The person issuing such administrative summons or subpoena has served a copy of the subpoena or summons on the customer pursuant to Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure, which copy may be served by an employee of the state or local agency or department thereof; and(2) The subpoena or summons includes the name of the agency or department in whose name the subpoena or summons is issued and the statutory purpose for which the information is to be obtained; and(3) The customer has not moved to quash such subpoena or summons within 10 days of service.

8.  In addition, section 7487 of the Government Code grants the customer the right to obtain injunctive relief.

9.  See fn. 3.

10.  See fn. 7.

11.  In White v. Davis, the California Supreme Court pointed to the election brochure argument as the only legislative history available in construing the constitutional amendment. In footnote 11 at page 775, 120 Cal.Rptr. at 106, 533 P.2d at 234, the court stated: “California decisions have long recognized the propriety of resorting to such election brochure arguments as an aid in construing legislative measures and constitutional amendments adopted pursuant to a vote of the people. (See, e. g., Carter v. Com. on Qualifications, etc. (1939) 14 Cal.2d 179, 185, 93 P.2d 140; Beneficial Loan Society, Ltd. v. Haight (1932) 215 Cal. 506, 515, 11 P.2d 857; Story v. Richardson (1921) 186 Cal. 162, 165-166, 198 P. 1057, [18 A.L.R. 750]; In re Quinn (1973) 35 Cal.App.3d 473, 483-486, 110 Cal.Rptr. 881.)”

FN12. See fn. 1..  FN12. See fn. 1.

13.  See fn. 6.

MILLER, Associate Justice.

TAYLOR, P. J., and KANE, J., concur.