RULING MAY IMPACT MINOR CASES

Superior Court appellate panel backs discovery in defense of infractions

The San Diego City Attorney’s Office violated the constitutional rights of a man who was cited for disobeying the city’s ban on overnight camping in 2019 by not turning over evidence supporting the citation, a panel of the Superior

Court appellate division concluded last month.

But while the lawyer for the man, Matthew Houser, said the ruling broke new ground and now requires prosecutors to provide arrest information in minor cases, the City Attorney’s Office said it has no plans to change its procedures.

The ruling could affect thousands of people in the city and county who each year are charged with infractions — lower-level offenses that are typically traffic charges such as speeding, or violations of local municipal codes.

Such charges often carry fines and other penalties and almost never result in jail. The city has argued that it is not obligated to turn over evidence supporting the infractions charges because they are less serious, low-level cases. In this ruling the panel of judges rejected that contention.

In Houser’s case, the ruling focused on the obligation of prosecutors to provide certain information, a process known as discovery. The U.S. Supreme Court held in the famous 1963 case of Brady v. Maryland that failing to turn over discovery violates the due process rights of individuals.

Several years ago, City Attorney Mara Elliot adopted a new policy requiring people charged with infractions to get discovery not from her office but from the police agency itself.

City lawyers don’t prosecute cases in infractions court, and do not have to under state law. No city lawyers have appeared to prosecute citations for more than 20 years. Typically, when the cases are contested, the issuing police officer appears with whatever evidence

comes with the case.

Attorney Colleen Cusack, who represents clients in infractions court, often pro bono, has been fighting against that policy for years. In Houser’s case, she argued that in order to get discovery she was required to issue a subpoena and pay about $25 for records.

That process and cost are unfair, she argued, since people charged with more serious crimes of misdemeanors and felonies get discovery at no charge directly from prosecutors.

When she did not get all the records she sought for Houser’s case, she convinced a San Diego Superior Court commissioner to issue a court order mandating that the city turn over records. But the city still did not fully comply with the order, records in the case show.

After months of legal wrangling, a San Diego Superior Court commissioner in August ruled that the city’s failure to turn over the discovery violated the due process rights articulated in the Brady decision. Based on that, the commissioners dismissed the case.

A three-judge panel of the Superior Court upheld that ruling after the city appealed. The panel said that “substantial evidence supports an inference that the City Attorney made no efforts to learn and disclose

Brady-required materials. Accordingly, Mr. Houser’s federal Constitutional rights under Brady were violated in this case.”

Cusack said the ruling was important and will apply to other infractions cases. “This decision tells commissioners they can dismiss cases for non-compliance with discovery in infractions,” she said in an email. “It is the first case in the country to do so.”

But Leslie Wolf Branscomb, a spokesperson for Elliott, said that the city does not see it that way, and that the ruling applies only to Houser’s case.

“The Houser decision is binding only to that case and does not require a change in process,” she wrote in a statement. “A binding decision would come from the California Court of Appeal or the California Supreme Court.”

The San Diego District Attorney’s Office also prosecutes infractions outside the city. Spokesperson Steve Walker said that the office is still studying how the decision applies.

“Historically, in the rare instances when our office receives discovery requests, we have not produced discovery in infraction matters and have referred those requests to the ticketing agency,” he wrote. “We are currently assessing the Houser decision and its impact on our office.”