BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2011-2012 Regular Session AB 622 (Dickinson) As Amended May 27, 2011 Hearing Date: July 5, 2011 Fiscal: Yes Urgency: No RD SUBJECT Civil Grand Juries DESCRIPTION This bill would require that a civil grand jury meet with the chief executive or department head of an agency under investigation to discuss the nature of the investigation and to receive input on the report at least 45 days prior to the issuance of its final report. This bill would also permit any witness called to testify before a civil grand jury to have counsel present on his or her behalf while giving sworn testimony, except as provided. The ability to have counsel present during sworn testimony would be subject to specified limitations, including that the counsel shall not object to questions asked or disclose anything heard in the grand jury room. This bill would also provide that any witness who is the subject of the grand jury investigation has the right to disclose, in writing, exculpatory evidence. BACKGROUND The California Constitution requires each county to draw and summon at least one grand jury a year. (Cal. Const. art. I, sec. 23.) Grand juries are bodies comprised of a certain number of citizens of the county sworn to inquire of public offenses committed or triable in the county, and may be both criminal and civil. (Pen. Code Sec. 888.) The functions of a county grand jury were broadly summarized in McClatchy Newspapers v. Superior (more) AB 622 (Dickinson) Page 2 of ? Court (1988) 44 Cal.3d 1162, 1170 as follows: "The California grand jury has three basic functions: to weigh criminal charges and determine whether indictments should be returned; to weigh allegations of misconduct against public officials and determine whether to present formal accusations requesting their removal from office; and to act as the public's 'watchdog' by investigating and reporting upon the affairs of local government. Of these functions, the watchdog role is by far the one most often played by the modern grand jury in California." In this latter role, grand juries have a duty to inquire into "county matters of civil concern," and thereby have the authority to inquire about unindicted prisoners, to investigate county prisons, and the willful or corrupt misconduct in office of public officers within the county; the authority to investigate ownership, transfer, or sale of real property; the authority to investigate the operations, accounts and records of county officers, departments, or functions; and the authority to investigate the books and records of cities or joint powers agencies. (Pen. Code Secs. 919, 920, 925, 925(a).) California law requires each grand jury to submit to the presiding judge of the superior court a final report of its findings and recommendations that pertain to county government matters during the fiscal or calendar year, and permits for a final report to also be submitted to responsible officers, agencies, or departments for comment after the presiding judge has found to be in compliance with Title 4 of Part 2 of the Penal Code (Grand Jury Proceedings). Under current law, for 45 days after the end of the term, the foreperson and his or her designees must, upon reasonable notice, be available to clarify the recommendations of the report. (Pen. Code Sec. 933(a).) In addition, a grand jury is permitted, upon approval of the presiding or supervising judge, as to any matter not subject to privilege, to make available to the public evidentiary material, findings, and other information relied upon by, or presented to, a grand jury for its final report in any civil grand jury investigation. (Pen. Code Sec. 929.) This bill seeks to enhance the accountability and accuracy of grand jury reports by requiring that a civil grand jury, at least 45 days prior to the issuance of its final report, to meet with the chief executive or department head of an agency under investigation to discuss the nature of the investigation and receive input. AB 622 (Dickinson) Page 3 of ? This bill would also provide for the ability of any witness called to testify under oath before a civil grand jury to have counsel present during his or her testimony, except as specified. In addition, this bill would not grant witnesses any constitutional right to counsel, nor would it grant the subpoenaed witness any discovery rights, but it would provide a witness who is the subject of the investigation the right to disclose, in writing, exculpatory evidence, as specified. CHANGES TO EXISTING LAW Existing law provides that one or more grand juries shall be drawn and summoned at least once a year in each county. (Cal. Const. art. I, sec. 23; Pen. Code Sec. 905.) Existing law provides that each grand jury or, if more than one has been duly impaneled as specified, one grand jury in each county shall be charged and sworn to investigate or inquire into county matters of civil concern. (Pen. Code Sec. 888.) Existing law requires the grand jury to investigate and report on the operations, accounts, and records of officers, departments, or functions of the county or district, as specified. (Pen. Code Sec. 925.) Existing law requires the court to, in consultation with the district attorney, the county counsel, and at least one former grand juror, ensure that a grand jury which considers or takes action on civil matters receives training that addresses, at a minimum, report writing, interviews, and the scope of the grand jury's responsibility and statutory authority. (Pen. Code Sec. 914(b).) Existing law allows, as to any matter not subject to privilege, with the approval of the presiding judge of the superior court or supervising judge, a grand jury to make available to the public part or all of the evidentiary material, findings, and other information relied upon by, or presented to, a grand jury for its final report in any civil grand jury investigation, provided that the name of any person, or facts that lead to the identity of any person who provided information to the grand jury is not released. (Pen. Code Sec. 929.) Existing law requires each grand jury to submit to the presiding judge of the superior court a final report of its findings and recommendations that pertain to county government matters during AB 622 (Dickinson) Page 4 of ? the fiscal or calendar year. Existing law also provides that a final report may be submitted for comment to responsible officers, agencies, or departments, including the county board of supervisors, when applicable, upon the presiding judge's approval of the report, as specified. For 45 days after the end of the term, the foreperson and his or her designees, upon reasonable notice, must be available to clarify the recommendations of the report. (Pen. Code Sec. 933(a).) Existing law requires that: that the governing body of any public agency subject to the reviewing authority of the grand jury comment to the presiding judge on the findings and recommendations pertaining to matters under its control, no later than 90 days after the grand jury submits a final report on the operations of that public agency; and every elected county officer or agency head must comment to the presiding judge on the findings and recommendations pertaining to matters under the control of that county officer or agency head and any agency and agencies which he or she supervisors or controls within 60 days. (Pen. Code Sec. 933(c).) Existing law requires that, during an investigation, the grand jury meet with the subject of that investigation regarding the investigation, unless the court, either on its own determination or upon request of the foreperson of the grand jury, determines that such a meeting would be detrimental. (Pen. Code Sec. 933.05(e).) Existing law requires that, a grand jury shall provide to the affected agency a copy of the portion of the grand jury report relating to that person or entity two working days prior to its public release and after the approval of the presiding judge. Existing law also prohibits any officer, agency, department, or governing body of a public agency from disclosing any contents of the report prior to the public release of the final report. (Pen. Code Sec. 933.05(f).) This bill would require, at least 45 days prior to the issuance of its final report, that a civil grand jury meet with the chief executive or department head of an agency under investigation to discuss the nature of the investigation and to receive input from that chief executive or department. This bill would permit any witness who is called to give AB 622 (Dickinson) Page 5 of ? testimony under oath before a civil grand jury to have counsel present on his or her behalf while testifying. This bill would provide, however, that the right to counsel would not apply if a corporation is the subject of the investigation and the witness is an employee or officer of the corporation and not the subject of the grand jury investigation. This bill would provide that counsel present before the grand jury: shall not object to any questions asked of the witness or otherwise speak to the grand jury, but may advise the witness during the course of examination; shall not disclose anything heard in the grand jury room; and shall not represent more than one witness in the same proceeding (this would also apply to any law firm representing a witness). This bill would permit a prosecuting attorney to make a motion to the presiding judge for sanctions against counsel who is representing a witness and refer the violation to the State Bar of California. This bill would provide that any witness who is the subject of the grand jury investigation has the right to disclose, in writing, exculpatory evidence, including the names and address of witnesses who possess exculpatory information, to the prosecutor. This bill would clarify that nothing in the section shall be construed to grant a witness a constitutional right to counsel under the U.S. or California Constitutions, nor grant any discovery right for the subpoenaed witness. COMMENT 1. Stated need for the bill According to the author: This bill would bring accountability and accuracy to written grand jury reports by requiring the grand jury to meet with the head of a targeted agency or department for review of a report for accurate facts. This bill would also allow . . . witnesses permission to have counsel present during their testimony to a grand jury performing its civil investigative function. AB 622 (Dickinson) Page 6 of ? California has had grand juries since the state's inception, stating that "grand juries shall be drawn and summoned at least once a year in each county." ÝFootnote omitted.] There are many examples of grand juries over the last 150 years effectively uncovering waste, fraud and abuse in local jurisdictions. However, there is also considerable criticism of the grand jury system. Critics decry juror ineptitute, politically motivated jurors and abuse of the considerable power that grand juries possess. Additionally, the recommendations of the grand jury are often ignored or not implemented because they are impractical, infeasible, unaffordable, or simply based on completely fabricated facts. . . . Historically, grand juries operate entirely in secret, with all parties barred from any public discussion of the grand jury's actions. The only information that the public may glean from a grand jury investigation is a written report that may be issued at the end of an investigation containing recommendations. Current law does not allow any witness, including the target of an investigation, to have counsel present during their testimony to the grand jury. Often the witness will have retained counsel, but counsel must remain outside the room resulting in an almost comedic routine of the jurors asking a question, the witness leaving the room to consult with counsel, and then returning to answer the question. 2. Importance of confidentiality to grand jury investigations and the "watchdog" role This bill seeks to allow counsel to be present during the testimony of a witness before a civil grand jury, except under a limited circumstance. Grand jury proceedings historically do not allow for third parties, including counsel, to enter the room of a grand jury proceeding, though a witness could still otherwise retain counsel in preparation for the investigation. At several points, legislation has been introduced in California to allow for counsel to be present during testimony of a witness. Most of these bills have died short of the governor's desk, with one getting vetoed in 2000. (See Prior Legislation and Comment 2b below for further comment). a. Previous legislation on counsel in grand jury proceedings AB 622 (Dickinson) Page 7 of ? This bill would allow a witness who is testifying before a civil grand jury to bring his or her counsel into the grand jury room, except where the witness is an employee or officer of a corporation that is the subject of the investigation and the witness is not himself or herself the subject of the grand jury investigation. The bill would permit the counsel to advise the witness during his or her testimony but would prohibit counsel from making any objections to questions, disclosing anything heard in the grand jury room, or representing more than one witness in the same proceeding. This bill would also allow a prosecutor to seek sanctions against counsel if counsel violates any of those limiting-type provisions, and would further permit that the prosecutor refer the violation to the State Bar of California. Finally, the bill explicitly clarifies that it should not in any way be construed to grant a witness a right to counsel under the U.S. or state constitutions. The provisions of this bill are almost identical to the ones contained in a bill vetoed by Governor Gray Davis, AB 527 (Baugh, 2000). (Unlike this bill, however, AB 527 applied to all grand juries, including criminal, and applied only to witnesses who were the subject matter of the investigation.) In his veto message, Governor Gray Davis commented that: The current operation of the grand jury, which follows English common law practice, has remained essentially unchanged since California was admitted to the Union in 1850 and has served us well for 150 years. Thus, any major departures from existing practice warrants thorough and thoughtful consideration and debate within the legal community and among legal scholars. . . . AB 527 would place a new burden on what is now a reasonably effective grand jury system. Additionally, the presence of defense counsel in grand jury proceedings may lead to undue delays and interference with the grand jury's "fact finding process." The secrecy of grand jury proceedings is an essential element of the grand jury process. AB 527 has the potential for turning "a fact finding process" into a quasi-adversarial proceeding. Because this bill addresses only civil grand juries and not criminal grand juries, any references to prosecutors would arguably need to be removed. Such amendments, however, would AB 622 (Dickinson) Page 8 of ? not be sufficient to address the concerns that arise from these provisions. As mentioned by then-Governor Davis's veto, secrecy is vital to the grand jury process. In this way, the operation of grand juries is unique from most any other part of the American system of government that favors transparency and openness and that generally adheres to the principle that the public has a right to access all official documents and proceedings, absent extraordinary circumstances. With respect to grand jury proceedings, it is the rule-not the exception-to maintain secrecy. At its core, a grand jury is a secret tribunal and the disclosure of grand jury materials is strictly limited. This is to allow a grand jury the ability to perform its investigatory function without interference or influence. As such, there are a number of concerns that arise when the confidentiality of these proceedings is disrupted, as discussed further below. b. Impact of permitting the presence of counsel during testimony of a witness As stated in the McClatchy Newspapers case, of the three basic functions of a California grand jury, its function as the public's "watchdog" by investigating and reporting on the affairs of local government is the one most often played in the modern grand jury. (McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 1170.) It is arguably also one of its most important in a system of government that relies on various checks and balances. In performing this important watchdog role over government, secrecy enables the grand jury to operate independently and affords them the ability to be free of any outside influence or pressure that can alter the direction of an investigation's course and it enables them the freedom to delve into all potentially relevant matters without inhibition of the rules of procedure and evidence. This is not to controvert any person's rights, but to create an atmosphere that promotes the divulgence of any information pertinent to the truth. This becomes increasingly important when seeking to uncover any official misconduct. Indeed, courts have held that openness of grand jury proceedings is the exception and is permitted only where expressly provided by statute. (20A Cal Jur Criminal Law: Pretrial Proceedings Sec. 706 (citations omitted).) "Viewing that statutory scheme as a whole, it appears that the Legislature intended disclosure of grand jury materials to be strictly limited." (Daily Journal Corp. v. Superior Court AB 622 (Dickinson) Page 9 of ? (1999) 20 Cal.4th 1117, 1124.) The presence of counsel during testimony, as this bill would allow, raises questions about potential unintended consequences. While the author points to numerous states having adopted similar provisions and the fact that a witness may leave the grand jury room during testimony to consult his or her attorney standing outside the room, allowing counsel into the grand jury room would be a significant change in this state's treatment of grand juries and their ability to carry out their duties. "California's grand juries, from early statehood, have examined conditions in jails, treatment of indigent patients, accounting matters, taxation issues, public works, and law enforcement. During the early twentieth century, a number of states reformed their grand juries and ceded power to the district attorneys. Similar reform efforts failed in California because grand juries had gained the reputation as 'enemies of municipal corruption.'" (Reform of the California Grand Jury System, Michael Vitiello and Clark Kelso (2002) 35 Loy. L.A. L. Rev. 513, 521 (citations omitted).) Thus, such a change in the fundamental operations of California grand juries raises the question of whether public policy in California favors altering grand juries' existing ability to conduct proceedings away from the eyes, ears, and influence of third parties. By allowing counsel into the room, the information flow to the grand jury will necessarily be restricted as well. In turn, the ability of the grand jury to obtain necessary information relating to a needed change in local government policies or to any local government misconduct that the public needs to be made aware of, could be significantly impacted. Such a change would deviate from the longstanding policy decision in California to choose secrecy over transparency in grand jury proceedings. Moreover, as argued by the California District Attorneys Association (CDAA), it is possible that such legislation could be used to justify a similar change in the criminal grand jury system as well. Criminal grand juries are often used to determine if there is sufficient information to bring charges against an individual(s). In fact, the primary duty of a grand jury investigating criminal offenses is to clear the innocent as much as bring to trial those who may be guilty, and its opinion that a crime may have been committed by a certain individual amounts to no more than a conclusion that AB 622 (Dickinson) Page 10 of ? the case should be tried by a jury of that person's peers. (See U.S. v. Dionisio (1973) 410 U.S. 1, Berardi v. Superior Court (2007) 149 Cal.App.4th 476, and People v. Brown (1927) 81 Cal.App. 226.) Making it a quasi-adversarial procedure can significantly impact the ability of a criminal grand jury to determine whether charges should or should not be brought, potentially interfering with the carriage of justice and the effectiveness of this state's criminal justice system could be severely impacted. Accordingly, the Committee should consider whether a five year sunset should be added to this bill. That sunset would allow the Legislature to review the impact that the proposed changes have upon the ability of grand juries to carry out their investigatory responsibilities and to review whether the integrity of the confidential nature of civil grand jury proceedings is effectively maintained by the provisions of this bill prohibiting counsel from disclosing the information learned during the proceedings. The bill should also be amended to clarify the provisions relating to counsel, and strike out unnecessary language relating to exculpatory evidence. Suggested amendments: 1) On page 3, line 31, after "disclose" insert "or use" 2) On page 3, line 31, after "room" insert "other than in the representation of the witness he or she represents." 3) On page 3, strike lines 36 through 39 4) On page 4, strike lines 1-8 and insert "(b) Any violation of this section by any counsel shall be a violation of the Rules of Professional Conduct and should be reported to the State Bar of California. (c) This section shall be repealed on January 1, 2017, unless otherwise extended by statute." 5) On page 4, line 9, strike "(e)" and insert "(d)" 3. Reporting obligations of a grand jury AB 622 (Dickinson) Page 11 of ? Grand jury investigations, while incredibly secretive, ultimately result in reports for public consumption. These reports are first submitted to the presiding judge for review, to ensure that the report is in compliance with California law on grand jury proceedings. (Pen. Code Sec. 933.) Arguing that additional accuracy and accountability is needed for grand jury reports, this bill seeks to require that at least 45 days before a final report is issued, the civil grand jury meet with the chief executive or department head of an agency under investigation to discuss the nature of the investigation and to receive input on the report. Existing law takes measures of accountability and accuracy for grand jury reports, while balancing against the concern that grand jury reports remain untainted. First, a grand jury is required to meet with the subject of the investigation, unless the court determines that such a meeting would be detrimental, and it is also required to provide the affected agency with a copy of the portion of the report relating to that person or entity two days prior to its public release and after approval of the presiding judge. (Pen. Code Secs. 933(e)-(f).) Also upon the approval of the report by the presiding judge that the report is in compliance with existing law sections on the powers and duties of the grand jury, a final report may be submitted for comment to responsible officers, agencies, or departments. For 45 days after the end of their terms and the release of that report, the foreman and his or her designees must be available, with reasonable notice, in order to provide any clarification necessary about the recommendations of its report. (Pen. Code Sec. 933(a).) In addition, existing law requires that no later than 90 days after the grand jury submits a final report on the operations of a public agency to its reviewing authority, the governing body of that agency shall comment to the presiding judge on the findings and recommendations pertaining to matters under the control of that governing body. Similarly, every elected county officer or agency head for which the grand jury has responsibility shall comment within 60 days to the presiding judge on the findings and recommendations pertaining to matters under his or her control. (Pen. Code Sec. 933(c).) Among the responses that are allowed, is the option to outline why a grand jury's recommendations will not be implemented where those recommendations are not warranted or not reasonable. (Pen. Code Sec. 933.05(b)(4).) AB 622 (Dickinson) Page 12 of ? Also, if questions arise as to the basis for a grand jury report's conclusions, Committee staff notes that the Penal Code authorizes the disclosure of evidentiary material where the identity of the person disclosing the information is removed, upon approval of the presiding judge. (Penal Code Sec. 929.) The author argues that grand jury reports often get facts incorrect and cause great harm in doing so to the agencies and officials under their investigation. While egregious errors that rise to the level of defamation are not protected by existing law, even with respect to grand jurors, as noted by the author, it is beneficial for all parties involved if those errors can be reduced ahead of the release of the report. This bill would allow for an additional level of review by putting the grand jury and the entity or person subject to investigation in the same room to discuss the report, 45 days in advance. At the same time however, it is important to protect grand juries and their reports from any taint by public officials and agencies that may not wish to see certain information released to the public that the public arguably has a right to know. This is particularly true in the case where a grand jury may be accusing an official of severe misconduct. In such instances, it may not be appropriate to require that the grand jury meet with the official or agency. The following amendments would address these concerns by providing the presiding judge, or the judge supervising the grand jury in his or her place, to waive the requirement where circumstances warrant such a waiver, while still requiring that the meeting take place in the majority of investigations. Further, by reducing the time limit to 21 days, the concern that a party under investigation could unduly influence the grand jury into changing their report would be mitigated. On page 2, line 5, strike "45 days" and insert "21 days" On page 2, line 6, strike "report." and insert "report, unless the presiding judge or supervising judge, either on his or her own determination or upon request of the foreperson of the grand jury, determines that such a meeting would be detrimental." 4. Opposition to the bill The California District Attorneys Association (CDAA), in opposition to this bill, states that, "Ýw]e acknowledge and AB 622 (Dickinson) Page 13 of ? appreciate that amendments have been taken to remove the provision that required civil grand jury proceedings to be open to the public. However, CDAA must remain opposed given the retention of the language that permits a person to have counsel present while testifying. We feel this change, though limited to situations in which a person is giving testimony under oath to a civil grand jury, deviates from the longstanding method in which grand juries have operated and is unnecessary. Also, we are concerned that such a change to the civil grand jury system would be used to bootstrap a similar change to the criminal grand jury system in the future." Also in opposition, the California Grand Juries Association remarks that: Other sections of existing law are inconsistent with allowing presence of attorneys in grand jury proceedings. Section 934 prohibits the presence of even the judge or county counsel as to civil matters at grand jury sessions unless the grand jury asks for advice. Grand jurors take an oath not to disclose any evidence brought before the grand jury (section 911). Existing statutes also prohibit and criminalize such disclosure of evidence (sections 924.1 and 924.2)Ý.] There has been no attempt to reconcile these prohibits with authorizing attorneys to be present grand jury sessions . . . The overwhelming number of witnesses interviewed by a grand jury will be county (and other local government) employees concerning their official duties. Accordingly, section 939.22 would add a major burden to the offices of county counsel to represent these employees at their interviews. The cost of this additional burden would be substantial. County counsel representation of witnesses before a grand jury would also constitute a conflict of interest since county counsel also represents the grand jury. . . . Aside from the expense and potential disruption, attorneys' presence t grand jury interviews will clearly compromise a grand jury's ability to work confidentially and may transform interviews into adversarial hearings. . . . ÝThe author] says he is trying to avoid having attorneys have to sit outside the jury room to answer questions from a witness during the interview. But in our experience with grand juries throughout the State, this circumstance rarely exists in actuality. AB 622 (Dickinson) Page 14 of ? Support : California Association of Public Authorities for IHSS (CAPA); California State Association of Counties (CSAC) Opposition : Adam Hill, Supervisor, District Three of San Luis Obispo County; Bill Dodd, Supervisor, Napa County Board of Supervisors; California District Attorneys Association (CDAA); California Grand Jurors Association (CGJA) HISTORY Source : Author Related Pending Legislation : AB 1133 (Silva) would require a grand juror who is an employee of, or who was employed within the prior three years by, an agency within the civil grand jury's investigative jurisdiction to inform the foreperson and court of that fact and require the grand juror to recuse himself or herself from participating in any grand jury civil investigation of that agency. This bill is on the Senate Floor. Prior Legislation : AB 312 (Spitzer, 2004), among other things, would have permitted a final report on the operations of any public agency subject to the reviewing authority of the grand jury to be accompanied by the evidentiary material, findings, and other information relied upon by, or presented to, the grand jury for that final report. This bill died after failing passage in the Assembly Committee on Local Government. AB 527 (Baugh, 2000), See Comment 2a. AB 502 (Burton, 1997), would have required a subpoena to notify any witness not subject of a grand jury investigation, among other things, that he or she has a right to have an attorney present during the grand jury examination. This bill was referred to the Committee on the Public Safety but was never heard in committee. AB 503 (Burton, 1997), would have required a prosecutor to notify any witness who is the subject of a grand jury investigation, among other things, that he or she has a right to have an attorney present during the grand jury investigation. This bill was referred to the Committee on the Public Safety but was never heard in committee. AB 622 (Dickinson) Page 15 of ? Prior Vote : Assembly Floor (Ayes 66, Noes 8) Assembly Appropriations Committee (Ayes 11, Noes 5) Assembly Judiciary Committee (Ayes 6, Noes 4) **************