Gone Fishing? Preventing Accusations of Investigative Subpoena Overreach

JurisdictionCalifornia,United States
AuthorBy Alexander M. Calero
Publication year2020
CitationVol. 43 No. 2
Gone Fishing? Preventing Accusations of Investigative Subpoena Overreach

By Alexander M. Calero


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Alexander M. Calero is a senior counsel at the California Department of Business Oversight and the outgoing Chair of the Public Law Executive Committee of the California Lawyers Association. Please note that the views expressed by Mr. Calero are not necessarily those of the Commissioner of Business Oversight or the staff of the Department of Business Oversight.

If you are a public attorney, at some point in your career you will likely be accused of government overreach—where a private party insists that your public entity client has exceeded legal bounds. The phrase "fishing expedition," used to insinuate that a government investigation lacks a legitimate or stated objective, is sometimes asserted when a public entity issues an investigative subpoena for the production of records or witness testimony. Public attorneys working for the state, a city, or a county can prevent accusations of investigative overreach, and readily disprove these accusations, by crafting subpoenas to fit within legal limits.

A body of case law has developed around investigative subpoenas, originating with the United States Supreme Court, and evolving in California courts. While the government's investigative subpoena authority is broad—decisions analogize this authority to that of a grand jury—there are limits.

Most cases discussing accusations of overreach address challenges to the state's subpoena authority, with a smaller number of cases addressing subpoenas issued by local governments. However, in large part, the same basic principles should apply to all investigative subpoenas issued by a public entity, whether it be a state department, a city council, county board of supervisors, or other authorized local entity body or officer.

This article surveys California and some federal case law involving common accusations of government overreach in their various forms: the public entity lacks jurisdiction to investigate; the investigation violates the Fourth Amendment's prohibition on unreasonable searches and seizures; the investigation compels self-incrimination in violation of the Fifth Amendment; and the investigation violates privacy rights.


Distinct from subpoenas issued in cases pending before criminal, civil, and administrative courts, the investigative subpoena is authorized under the Government Code.1 All California department heads are authorized to issue subpoenas.2 Specifically, Government Code section 11180 provides that state department heads may make investigations concerning "[a]ll matters relating to the business activities and subjects under the jurisdiction of the department," and "[s]uch other matters as may be provided by law."3 In furtherance of an investigation, Government Code section 11181 permits a department head to issue subpoenas "for the attendance of witnesses and the production of papers, books, accounts, documents and testimony."4

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Different sections of the Government Code authorize cities5 and counties6 to issue investigative subpoenas. Government Code section 37104 states that the legislative body of a city may issue subpoenas "requiring attendance of witnesses or production of books or other documents for evidence or testimony in any action or proceeding pending before it." Likewise, Government Code section 25170 provides that, following a determination by a county board of supervisors, the chairperson of the board may issue a subpoena "to examine any person as a witness upon any subject or matter within the jurisdiction of the board" and the subpoena may require the production of "all books, papers, and documents . . . relating to the affairs or interests of the county."

Although state and local governments find their subpoena authority in different parts of the Government Code, courts have applied state subpoena jurisprudence to address questions raised in challenges to local government subpoena authority.7 Therefore, the same basic legal principles that apply to investigative subpoenas issued by the state likely apply to subpoenas issued by a city and county.

A public entity cannot compel compliance with its own subpoenas; instead, the public entity must seek relief from the superior court.8 The subpoena enforcement processes under the Government Code for the state, a city, and a county have key differences.9 It is during these proceedings before the superior court that a subpoenaed party's accusations of government overreach or other objections are heard and decided by the court.10 Superior court orders enforcing compliance with investigative subpoenas are appealable.11


Two often cited United States Supreme Court cases addressing investigative subpoenas are Oklahoma Press Publishing Co. v. Walling12 and United States v. Morton Salt Co.13 In Oklahoma Press Publishing Co., the high court addressed the question of whether a newspaper publisher must comply with subpoenas issued by the U.S. Department of Labor to investigate potential violations of the federal Fair Labor Standards Act when the publisher maintained that the act was not applicable to it and that the question of coverage of the act to the publisher must be adjudicated before the subpoenas may be enforced.14 The Supreme Court upheld district court orders enforcing compliance with department's subpoenas and found that a public entity's investigative function in searching out violations "is essentially the same as the grand jury's," where an investigation could be undertaken to inquire not only into the existence of violations of the law but also into questions of coverage of the law over the subpoenaed party.15

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The Supreme Court further elaborated on the breadth of a public entity's investigative function in Morton Salt Co. There, Morton Salt challenged the Federal Trade Commission's authority to require production of reports showing the company's continued compliance with a court decree.16 Among other contentions, Morton Salt asserted that because the commission had made no charge of violation of either the decree or statute that the commission was invading the jurisdiction of the courts by requiring production of a new report showing compliance with the decree after the issuing court already determined compliance with the decree.17 The Supreme Court rejected Morton Salt's arguments and explained that public entities have the power of inquiry which is not derived from the judicial function.18 A public entity's power of inquiry "is more analogous to the Grand Jury," which does not depend on a case or controversy for power to get evidence.19 Instead, a public entity "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not."20

In Brovelli v. Superior Court (Mosk),21 the California Supreme Court adopted the reasoning of Oklahoma Press Publishing Co. and Morton Salt Co. At issue in Brovelli was a challenge to the California Attorney General's subpoena issued to investigate whether the concrete block industry was violating state antitrust or unfair competitions laws.22 Before disposing of the case based on a service issue,23 the California Supreme Court cited Oklahoma Press Publishing Co. and quoted from Morton Salt Co.24

The California Supreme Court, in Younger v. Jensen,25 clarifies that this power of inquiry extends beyond the purposes recognized in Morton Salt Co. and Oklahoma Press Publishing Co. In Younger, a subpoenaed party argued that the California Attorney General's investigation was preempted by federal regulation of interstate distribution of natural gas. In the case, the California Supreme Court upheld enforcement of the subpoena and commented that the Attorney General's investigation could lawfully be concerned not only with violations of the law but also with other purposes such as enforcement policy formulation "in cooperation with federal authorities and with recommendations for remedial administrative rulings and legislation."26

Despite the broad pronouncements of investigative subpoena authority, there are limits to the investigative function which may lead to accusations of government overreach.


Some accusations of government overreach are based on the subpoenaed party's claim that the public entity lacks jurisdiction to investigate. The Ninth Circuit Court of Appeal noted the term "jurisdiction" is imprecisely used by both courts and litigants.27

Where a so-called jurisdictional challenge is made, the general rule is in favor of enforcing compliance with a subpoena.28 This is because a subpoenaed party cannot avoid compliance with a subpoena by raising fact-bound challenges related to "coverage or compliance with the law," such as the subpoenaed party having a valid defense to a potential lawsuit by the public entity.29

A narrow exception to the general rule in favor of subpoena enforcement exists when the defense is jurisdictional in nature—i.e., when the public entity lacks jurisdiction over the subject of the investigation.30 However, even where this jurisdictional exception applies, the role of a reviewing court is strictly limited.31 As long as there is some "plausible" grounds for jurisdiction, or in other words, unless jurisdiction is "plainly lacking," the court should enforce compliance with the subpoena.32 The "plainly lacking" standard is necessarily a low bar to avoid tasking courts and parties with resolving complex fact-based hypotheticals before a public entity even decides whether to take legal action against a subpoenaed party.33

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In Equal Employment Opportunity Commission v. Children's Hospital Center of Northern California,34 the Ninth Circuit...

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