Powers v. City of Richmond

GEORGE, J., Concurring.

I agree with the lead opinion’s conclusion that the Legislature did not violate the “appellate jurisdiction” provision of the California Constitution (Cal. Const., art. VI, §11) by providing in Government Code section 6259, subdivision (c), that trial court rulings on claims brought under the California Public Records Act are subject to review in the Court of Appeal only by petition for extraordinary writ, and *116not by “direct appeal.”1 In my view, however, it is neither necessary nor appropriate to go beyond the Public Records Act provision here at issue to announce a broad constitutional rule that may be understood to validate virtually all, or at least most, legislative measures that in the future might substitute writ review for direct appeal in contexts not presented by the case now before us. Accordingly, I would limit the holding in this case to the specific Public Records Act provision before the court.

I

Well-settled principles of judicial restraint establish that when a case must be decided upon constitutional grounds, a court should strive to resolve the matter as narrowly as possible, and should avoid expansive constitutional pronouncements that inevitably prejudge future controversies and may have unforeseen and questionable consequences in other contexts. (See generally, Steamship Co. v. Emigration Commissioners (1885) 113 U.S. 33, 39 [28 L.Ed. 899, 901, 5 S.Ct. 352] [the high court “has rigidly adhered” to the rule that it is “never to formulate a rule of constitutional law broader than is required by the precise facts to which it is . . . applied”]; Ashwander v. Valley Authority (1936) 297 U.S. 288, 347 [80 L.Ed. 688, 711, 56 S.Ct. 466] (conc. opn. of Brandeis, J.) [listing this rule as one of the cardinal principles of judicial restraint].)

In my view, this familiar precept of judicial restraint has particular force in the present case, because the potential ramifications of a broad constitutional holding are so far reaching. Taken to its logical conclusion, the lead opinion’s reasoning very well could be understood to permit the Legislature totally to transform the California Court of Appeal from an appellate tribunal whose duties generally involve the resolution of cases in which litigants have a direct appeal “as a matter of right”—and in which most decisions must be rendered “in writing with reasons stated” (Cal. Const., art. VI, § 14)—into an appellate court whose jurisdiction consists entirely of writ review and as to which the court has no obligation to resolve any of the cases before it by a written decision setting forth the reasons for its ruling. Such a general transformation of the Court of Appeal into an appellate court of purely writ review clearly would work a very substantial change in the nature of the appellate process that has existed in California from the inception of its statehood. I believe there is ample reason for this court to be extremely cautious before embracing an interpretation of the pertinent state constitutional provision that would permit such a major revision of the state’s appellate process to be made by the Legislature acting alone, rather than through the procedure prescribed for amending the state Constitution.

*117In this case, of course, we are not faced with the broad question whether the Legislature has the constitutional authority to substitute review by extraordinary writ for direct appeal in all cases. The Legislature has not purported to enact a wide-ranging legislative measure that would restructure, in a fundamental manner, the operation of the state’s appellate process. Indeed, the Legislature has shown no interest in substituting writ review for direct appeal with regard to a majority, or even a significant proportion, of the caseload of the Courts of Appeal. Instead, in enacting the statutory provision here at issue, the Legislature simply has concluded that, because of the special importance of obtaining a very prompt appellate resolution in the relatively small and discrete class of cases brought under the Public Records Act, appellate review of a superior court ruling in such cases should proceed by extraordinary writ rather than by direct appeal. I believe we can, and should, determine the constitutionality of only this limited statutory provision, and explicitly should reserve judgment as to whether a similar legislative substitution of review by extraordinary writ for review by direct appeal would be permissible if enacted either “across the board” or in other contexts. Thus, unlike the lead opinion, which approaches the case by first setting forth a broad constitutional rule and then indicating that—although there possibly may be some exceptions to the rule—the Public Records Act provision is not such an exception (see, lead opn., ante, p. 110), I believe we should approach the matter from a more cautious perspective and explicitly limit our holding in this case to a narrow determination that the statute before us is constitutional.

II

As we explained in Times-Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1332-1335 [283 Cal.Rptr. 893, 813 P.2d 240], the statutory provision at issue in the present case—Government Code section 6259, subdivision (c) (hereafter section 6259(c))—was enacted in 1984 in response to problems encountered in direct appeals in cases arising under the Public Records Act. The principal proponent of the legislation, the California Newspaper Publishers’ Association—which represented numerous news organizations that frequently relied upon the Public Records Act to obtain information concerning the actions of governmental entities and public officials—maintained that, in practice, the ordinary process of direct appeal was operating in cases under the Public Records Act to frustrate the significant public purposes underlying the act. In this regard, the association pointed out that, even when a newspaper or other , plaintiff that had brought an action under the Public Records Act prevailed at the trial court level and obtained a judgment compelling disclosure of particular records, a defendant public agency or public official routinely could delay disclosure of the records in question for *118a considerable period of time (often years) simply by filing an appeal of the adverse judgment, thereby preventing disclosure of public information at a time when the material still was newsworthy or of particular importance to the plaintiff.

Persuaded that the timeliness of disclosure often is of crucial importance in actions brought under the Public Records Act, the Legislature responded by enacting section 6259(c). As amended in 1990, that statute provides that a trial court order made under the Public Records Act—either directing disclosure of a public record or supporting the decision of a public official refusing disclosure—is not subject to ordinary direct appeal but instead is “immediately reviewable” by petition for an extraordinary writ to the Court of Appeal.2

As this legislative background demonstrates, it is clear that section 6259(c) was enacted not to diminish the rights of individuals, such as plaintiffs in this case, who seek disclosure of governmental information under the Public Records Act, but, on the contrary, for the general purpose of enhancing such persons’ rights by ensuring that appellate review of trial court decisions under the act is conducted in a manner that promotes, rather than frustrates, the purpose of the act.

III

At this juncture, plaintiffs in the case at bar are challenging the validity of section 6259(c). Nonetheless, because—as we just have seen—the challenged statute was enacted primarily to protect the interests of litigants, like plaintiffs, who seek disclosure of governmental information under the Public Records Act, it may be instructive to review briefly the facts of this case in order to accord proper consideration to the potential benefits that section 6259(c) afforded these plaintiffs at earlier stages of this proceeding.

The request for disclosure of public information that gave rise to the underlying litigation in the present case was made in the midst of an election campaign for a seat on the Richmond City Council. Less than two months before the election, plaintiffs—a candidate running for the city council, and her supporters—filed this action under the Public Records Act, seeking to *119obtain from city officials information concerning expenditures of public funds that had been made by the city in the previous fiscal year. Had plaintiffs prevailed in the trial court in their Public Records Act action, section 6259(c) would have prevented defendant city and its officials from delaying disclosure of the records sought by plaintiffs beyond the date of the election by simply filing an appeal from the trial court’s ruling, and would have permitted defendant to obtain a stay of the trial court order by filing a petition for an extraordinary writ only if defendants were able to make the substantial showing required by the statute. (See, ante, fn. 2.) Thus, had plaintiffs prevailed in their Public Records Act action in the trial court, section 6259(c) would have been of considerable assistance in helping to ensure that plaintiffs’ victory was not illusory.

Of course, as things turned out, plaintiffs did not prevail in the trial court. Nevertheless, by virtue of the provisions of section 6259(c), the adverse trial court ruling was “immediately reviewable” in the Court of Appeal by petition for extraordinary writ. Acting pursuant to this provision, plaintiffs timely sought review of the trial court order by extraordinary writ. The Court of Appeal, after requesting briefing of the Public Records Act issue by defendant, rendered its decision on the writ petition just a few weeks later, summarily denying the requested writ. Had plaintiffs been able to persuade the Court of Appeal of the merit of their Public Records Act claim, however, the extraordinary writ remedy provided by section 6259(c) very likely would have permitted plaintiffs to obtain the records they sought much more quickly than would have been possible had plaintiffs been relegated to an ordinary direct appeal.3

While their petition for extraordinary writ was pending in the Court of Appeal, plaintiffs filed the present appeal, raising and briefing precisely the same legal issue under the Public Records Act that they had raised and fully briefed in their writ petition. Relying upon section 6259(c), and rejecting plaintiffs’ constitutional challenge to the provision, the Court of Appeal ultimately dismissed the appeal. We granted review.

IV

Plaintiffs acknowledge that the Legislature, in enacting section 6259(c), intended that a trial court decision under the Public Records Act would be subject to review in the Court of Appeal only by extraordinary writ (which *120they already have pursued, albeit unsuccessfully) and not by direct appeal. Plaintiffs maintain, however, that the Legislature lacked the constitutional authority to prescribe this form of appellate review of a superior court ruling under the Public Records Act. Plaintiffs assert that the California Constitution grants them the right to have the Court of Appeal review a superior court decision under the Public Records Act by direct appeal, and that affording them appellate review of such a decision only by extraordinary writ is constitutionally impermissible.

Plaintiffs rest their constitutional argument upon article VI, section 11, of the California Constitution, which provides that, with the exception of cases in which a judgment of death has been imposed, “courts of appeal have appellate jurisdiction when superior courts have original jurisdiction . . . .”4 Plaintiffs contend that this constitutional provision mandates that whenever a superior court has original jurisdiction in a cause, the parties have a constitutional right to a direct appeal in the Court of Appeal. Because the Legislature has provided that the superior court has original jurisdiction in an action under the Public Records Act (Gov. Code, §§ 6258, 6259, subd. (a)), plaintiffs maintain that, under article VI, section 11, they have a constitutionally based right to file and pursue a direct appeal in the Court of Appeal in any such action, and that the Legislature lacks the authority to substitute review by extraordinary writ for direct appeal in such an action.

I disagree with plaintiffs’ position. Assuming, without deciding, that the current “appellate jurisdiction” provision of article VI, section 11, properly should be interpreted to preclude the Legislature from abrogating any and all appellate review of a superior court decision in an action under the Public Records Act (cf. In re Sutter-Butte By-Pass Assessment (1923) 190 Cal. 532, 537 [213 P. 974]), in my view plaintiffs have failed to demonstrate that article VI, section 11, should be interpreted to bar the Legislature from adopting the much more modest provision of the Public Records Act here at issue, which does not bar all appellate review of a trial court ruling under the act but provides for review of such decisions in the Courts of Appeal by extraordinary writ rather than by direct appeal.

In analyzing plaintiffs’ constitutional claim, it is important to recognize that the constitutional challenge that plaintiffs have mounted in this case *121necessarily rests upon the very broad proposition that the “appellate jurisdiction” provision of article VI, section 11, requires that all cases falling within the constitutionally established appellate jurisdiction of the Courts of Appeal be subject to review by direct appeal, and does not permit the Legislature to provide for exclusive review by extraordinary writ in any case falling within such appellate jurisdiction. In pressing their claim, plaintiffs have not suggested that there is anything in the nature or subject matter of an action under the Public Records Act that renders a trial court ruling under that act susceptible to adequate appellate review only by direct appeal, and not by extraordinary writ. (Cf. In re Shafter-Wasco Irr. Dist. (1942) 55 Cal.App.2d 484, 487-488 [130 P.2d 755] [noting the constitutional question that would be raised by a statutory provision imposing an unreasonably short time limit for the determination of an appeal].) Thus, for example, plaintiffs do not contend that superior court actions under the Public Records Act generally are so protracted, or so factually or legally complex, that the Legislature could not reasonably have concluded that the Courts of Appeal properly could review trial court orders in such cases through the traditional extraordinary writ procedure, rather than the more elaborate and time-consuming process of a direct appeal.5 Nor do plaintiffs contend there is anything in the nature of the particular rights or interests at stake in a Public Records Act proceeding that suggests that limiting appellate review of a trial court ruling in such a case to review by extraordinary writ, rather than direct appeal, inadequately would protect the interests at issue. (Indeed, as we have seen, the Legislature enacted section 6259(c) precisely because it concluded that the substitution of writ review in place of direct appeal would, in practice, better protect the interests and objectives underlying the Public Records Act.) Instead, plaintiffs simply assert that whenever a cause of action falls within the original jurisdiction of the superior court, the “appellate jurisdiction” provision of article VI, section 11, compels the Court of Appeal to review the final determination of that cause by direct appeal, even when the Legislature has concluded that the rights sought to be protected by the superior court action would be better preserved by providing for exclusive review by extraordinary writ in the Court of Appeal.

*122In my view, neither the language or history of article VI, section 11, nor the past decisions interpreting and applying this provision or its constitutional predecessors, support plaintiffs’ broad constitutional argument. As the lead opinion thoroughly and persuasively explains, the term “appellate jurisdiction” that appears in article VI, section 11, long has been understood to encompass an appellate court’s review of a lower court decision either by direct appeal or by extraordinary writ. (See, e.g., People v. Turner (1850) 1 Cal. 143, 145-149; see generally, 2 Witkin, Cal. Procedure (3d ed. 1985) Courts, § 254, pp. 277-278.) Furthermore, the lead opinion also demonstrates that the debates at the Constitutional Conventions of 1849 and 1879—though they include numerous references to a general “right of appeal”—contain no suggestion that the convention delegates ever considered the relatively esoteric point presented by the case now before us, namely whether, and under what circumstances, appellate review of a lower court ruling may or may not be conducted by extraordinary writ, as contrasted with direct appeal. Finally, plaintiffs have not identified any previous decision that, in applying either article VI, section 11, or its constitutional predecessors, purports to hold (or even to intimate) that in all cases falling within the appellate jurisdiction of an appellate court, appellate review invariably must be by way of direct appeal rather than extraordinary writ.

As an historical matter, there always have existed categories of cases in which the final decision of a superior court has been subject to review not by direct appeal, but only by means of some form of extraordinary writ issuable by a higher court. (See, e.g., Tyler v. Connolly (1884) 65 Cal. 28, 32-33 [2 P. 414] (conc. opn. of Morrison, C. J.) [contempt order is not subject to review by appeal, but may be reviewed by petition for writ of certiorari or habeas corpus in a higher court]; In re Crow (1971) 4 Cal.3d 613, 621, fn. 8 [94 Cal.Rptr. 254, 483 P.2d 1206] [lower court order denying habeas corpus relief is not subject to appeal, but may be reviewed by a new petition for habeas corpus filed in a higher court].) Moreover, throughout the years, the Legislature has found, in a variety of settings, that the need for a speedy, final determination of certain discrete issues arising in the course of trial litigation justifies the adoption of statutory provisions permitting a trial court’s resolution of such issues to be challenged in an appellate court only through the prompt filing of a petition for extraordinary writ (and not in a subsequent direct appeal of the final judgment rendered in the case). The decisions of the California courts regularly have upheld and applied such legislative measures. (See, e.g., McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 257 [74 Cal.Rptr. 389, 449 P.2d 453] [under former Code Civ. Proc. § 416.3 (now Code Civ. Proc. § 418.10, subd. (c)), a defendant in a civil case may challenge only by extraordinary writ a trial court order refusing to quash service, and may not raise the issue on direct appeal from *123a judgment entered after trial on the merits]; People v. Brown (1993) 6 Cal.4th 322, 334-335 [24 Cal.Rptr.2d 710, 862 P.2d 710] [under Code Civ. Proc. § 170.3, a superior court order denying a statutory peremptory challenge to a trial judge is subject to review only by extraordinary writ and may not be reviewed on direct appeal of the final judgment]; see also People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709-714 [135 Cal.Rptr. 392, 557 P.2d 976] [juvenile court order, finding defendant fit to be tried as an adult in superior court, is subject to challenge only by peremptory writ and may not be reviewed on direct appeal of the final superior court judgment].)

In my view, these diverse authorities demonstrate that the state Constitution generally has hot been interpreted to require that appellate review of a superior court decision invariably proceed by direct appeal, but instead has been viewed as permitting a considerable degree of legislative innovation in devising appellate procedures that are compatible with the particular issue or ruling subject to review and that, at the same time, serve to promote a fair and efficient judicial system. (See generally, Haight v. Gay (1857) 8 Cal. 297, 300 [“The Legislature . . . can pass no act impairing the exercise of [a court’s constitutionally conferred] appellate power. [¶] But while the Legislature cannot substantially impair the right of appeal, it is certainly competent to regulate the mere mode in which this right must be asserted.”].) Under the interpretation urged by plaintiffs, and apparently embraced by the dissenting opinion, however, the Legislature seemingly would lack the authority to substitute writ review for direct appeal in any case falling within the historically established “appellate jurisdiction” of the Court of Appeal. Thus, for example, if the Legislature were to find in the future that the appellate process was becoming unduly burdened by direct criminal appeals in which the only issue raised (and thus the issue determinative of the cause) concerned a minor discrepancy (of a few days or less) as to the credit to which the defendant was entitled in the computation of his or her sentence, the Legislature apparently would be foreclosed from providing for appellate review in such cases by extraordinary writ, rather than by direct appeal.

Taking into consideration the language and history of article VI, section 11, and the relevant judicial authorities noted above, I conclude that the Legislature—having determined that appellate review by extraordinary writ, rather than by direct appeal, would better protect the rights afforded by the Public Records Act—did not violate article VI, section 11, in enacting the challenged provisions of section 6259(c).

As stated at the outset of this concurring opinion, however, in reaching this conclusion I do not believe it is necessary or appropriate to determine, at this juncture, whether the provisions of article VI, section 11, should be *124interpreted to permit the Legislature to substitute writ review for direct appeal in all cases or in specific contexts not presented here. A statute that purported to substitute writ review for direct appeal in all cases falling within the appellate jurisdiction of the Courts of Appeal clearly would present constitutional considerations quite different from those raised under the limited Public Records Act provision here at issue. Similarly, a statute that purported to substitute writ review for direct appeal in, for example, all cases resulting in a felony conviction, or in all contract or tort actions, also would present, from the perspective of both the Court of Appeal and the parties, constitutional considerations of a considerably different magnitude from those evoked by the statute now before us. In my view, in resolving this case there is no reason to set forth a broad constitutional rule that could be understood to validate those types of measures. It will be time enough to address the constitutional questions raised by such legislation if and when the Legislature chooses to enact measures of this scope.

V

Because I conclude that section 6259(c) is constitutional, I concur in the lead opinion’s affirmance of the Court of Appeal’s dismissal of the appeal.

Arabian, J., concurred.

For convenience, I employ the term “direct appeal” in the same sense as the lead opinion. (See lead opn., ante, at p. 91, fn. 1.)

Section 6259(c) currently provides in relevant part: “In an action filed on or after January 1,1991, an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order . . . from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. . . . A stay of the order or judgment shall not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. . . .”

Indeed, had plaintiffs not waited so long to seek the records and to file their action in superior court, the speedy appellate review afforded by section 6259(c) might have enabled them to obtain an appellate decision as to the propriety of the trial court ruling prior to the city council election.

Article VI, section 11, currently provides in its entirety: “The Supreme Court has appellate jurisdiction when judgment of death has been pronounced. With that exception courts of appeal have appellate jurisdiction when superior courts have original jurisdiction and in other causes prescribed by statute. [¶] Superior courts have appellate jurisdiction in causes prescribed by statute that arise in municipal courts in their counties. [¶] The Legislature may permit appellate courts to take evidence and make findings of fact when jury trial is waived or not a matter of right.”

In view of the provisions of Government Code section 6259, subdivision (a), which set forth the general procedures that a superior court is to follow in an action under the Public Records Act, plaintiffs would have been hard pressed to make such a contention. Section 6259, subdivision (a), provides: “Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The court shall decide the case after examining [1] the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, [2] papers filed by the parties and [3] any oral argument and additional evidence as the court may allow.” (Italics and bracketed numbers added.)