California Supreme Court to Decide If Parties Have Right to Appellate Review Before Complying With Cities' Legislative Subpoenas

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The California Supreme Court announced this week that it will decide an important question about enforcing legislative subpoenas issued by cities to aid investigations: If a trial court orders a party to comply with such a subpoena, is the party automatically entitled to have an appellate court review that order before the party must comply?

The Court will decide that question in the context of a dispute over subpoenas that the City of Dana Point issued to require five medical marijuana dispensaries to produce records the City could use to determine if they are operating legally. After a trial court ordered the dispensaries to comply with the subpoenas, each filed a notice appealing the order to the Fourth District Court of Appeal, based in Orange County. In 2007, the Sixth District Court of Appeal in San Jose held that a party in such circumstances has the right to appeal the order enforcing the subpoena. (City of Santa Cruz v. Patel (2007) 155 Cal.App.4th 234; read the relevant part here.) Such an appeal automatically stays the order until the court of appeal decides the case, which usually takes at least a year. In the Dana Point cases, the court of appeal issued an order stating that the parties did not have the right to appeal, but must instead seek review by petitioning the court of appeal to issue an extraordinary writ. This is an important difference: courts of appeal can and usually do deny writ petitions summarily and within weeks, without full briefing, oral argument, or a written opinion. Moreover, filing such a petition does not automatically stay the order, though the party resisting compliance can ask the courts for such a stay.

The California Supreme Court has now agreed to resolve the dispute over how a party resisting a legislative subpoena can secure appellate review. While the issue in these cases is limited to subpoenas issued by a city under Government Code section 37104, the Court's ruling may also resolve a parallel, unsettled dispute over appellate review of administrative subpoenas issued by State agencies and departments.

The five cases are:

  • Enforcement Against Dana Point Safe Harbor Collective, No. S180365
  • Enforcement Against The Point Alternative Care, Inc., No. S180468
  • Enforcement Against Holistic Health, No. S180560
  • Enforcement Against Beach Cities Collective, No. S180749 and
  • Enforcement Against Dana Point Beach Collective, No. S180803

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