BILL ANALYSIS Ó
AB 1133
Page 1
Date of Hearing: April 12, 2011
ASSEMBLY COMMITTEE ON
Mike Feuer, Chair
AB 1133 (Silva) - As Amended: March 21, 2011
Proposed Consent
SUBJECT : Grand jurors: conflictS of interest
KEY ISSUE : Should employees or recent employees of government
agencies be allowed to participate in grand jury investigations
involving the government agencies IN WHICH they are or were
employed?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial measure seeks to minimize the risk of
conflicts of interest tainting possible civil grand jury
investigations. Currently, California statutes do not address
potential conflicts of interest between civil grand juries and
the government agencies they are investigating. According to
the bill's sponsor, the Orange County Board of Supervisors,
currently there are limited qualifications required to serve as
a grand juror in California, such as ordinary intelligence,
sound judgment and sound character. Certain individuals, such
as elected officials, individuals serving on trial juries,
individuals who recently served on a grand jury, and individuals
who have been convicted of serious crimes are statutorily
excluded from grand jury service. The presiding superior court
judge of each county is tasked with interviewing each
prospective grand juror to see if they are qualified, and then a
list of qualified grand jurors is prepared. Once a grand jury
is impaneled, no one may challenge the makeup of a grand jury
and grand jury deliberations are done in secret. According to
the supporters of this bill, the absence of any statutory
provisions addressing conflicts of interest in civil
investigations created a situation in the past where grand
jurors who were recent employees of a government agency were
then responsible to participate in the investigation of that
same agency. In the author's opinion, this potential clear
conflict of interest taints the public perception of grand
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juries as unbiased and neutral bodies in California. There is
no opposition to the measure.
SUMMARY : Seeks to address potential conflicts of interest in
civil grand jury investigations of government agencies.
Specifically, this bill requires any grand juror who is a
current employee, or a former or retired employee last employed
within the prior three years by an agency within the
jurisdiction of the civil grand jury, to inform the superior
court of that fact, and recuse himself or herself from
participating in any investigation of that agency. This would
include any discussion or vote concerning a civil investigation
of that agency.
EXISTING LAW :
1)Provides that one jury in each county of California shall be
charged and sworn to investigate or inquire into county
matters of civil concern. (Penal Code Section 888. All
further references will be to this code unless indicated
otherwise.)
2)Provides that each year the superior court shall interview
prospective grand jurors to ensure that they are qualified,
each qualified individual is then placed on a list of
recommended grand jurors, from which grand jurors are
selected. (Sections 895, 896.)
3)Provides that potential grand jurors be disqualified if a
person is already serving as a trial juror in California, has
been discharged as a grand juror within one year, has been
convicted of "malfeasance in office or any felony or other
high crime", or if that person is currently serving as an
elected public officer. (Section 893(b).)
4)Provides that before accepting a person who has been drawn as
a grand juror, "the court shall be satisfied that such a
person is duly qualified to act as such juror." After a juror
is drawn and qualified, that juror "shall be accepted unless
the court, on the application of the juror and before he is
sworn, excuses him from such service?" for any of the reasons
prescribed under law. (Section 909.)
5)Provides that no challenge can be made to the panel of grand
jurors that is selected, although the court can exclude
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individuals from grand jury service if they are unqualified
under Section 909. (Section 910.)
6)Requires each grand jury to develop its own set of procedures
and choose its own officers. (Section 916.)
7)Provides that grand jury proceedings be conducted in secret,
and that "İe]ach grand juror shall keep secret whatever he
himself or any other grand juror has said, or in what manner
he or any other grand juror has voted on a matter before him."
(Section 924.2.)
COMMENTS : This measure is sponsored by the Orange County Board
of Supervisors. The author notes in support that current law
does not address potential conflicts of interest for grand
juries exercising their civil investigative function. Instead
grand juries adopt their own rules and procedure on how to
address conflicts of interest. The author points to a past
situation where, "grand jurors, who were former employees of an
agency being investigated, participated in the investigation İof
that agency]." According to the author, "İt]his created a
perception that there was a possible bias in the outcome of the
investigation." Thus, the author describes this bill as
necessary because, "whether the bias is founded or unfounded, it
taints the public's perception of the grand jury as a neutral,
unbiased arm of the judiciary."
Background : Owing their roots to 12th century England, grand
juries have been firmly entrenched in the American legal
tradition since colonial times where the grand jury served as a
valuable forum where citizens could counter oppression and
corruption by the crown. After the revolution, grand juries
continued to play a role in civil oversight. To provide this
oversight, many states tasked grand juries with responsibilities
well beyond issuing criminal indictments, such as auditing
government accounts, examining toll roads and bridges, studying
the treatment of prisoners, as well as denouncing corrupt
government officials. Grand juries were especially important in
frontier states, where they often served as the only organized
forum where citizens could air their grievances. (See Michael
Vitiello & J. Clark Kelso, "Reform of California's Grand Jury
System", 35 Loy. L.A. L. Rev. 513, 517-22 (2002).)
Echoing this tradition, the California constitution requires
that grand juries be "drawn and summoned at least once a year in
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each county." Since California became a state, these grand
juries have not only issued criminal indictments, but have
performed civil oversight. The specific rights and functions of
the grand jury are governed by statutes enacted after the
California Constitution was drafted. This means that any
potential changes to the function of grand juries in California
do not require a constitutional amendment and can be done
statutorily.
California's Civil Grand Jury Function . California grand juries
have three core functions; to analyze criminal charges and
determine whether indictments should be issued, to look into
allegations of misconduct against public officials, and also to
act as a 'public watchdog' to investigate and report on the
functioning of local government. Although federal courts and
most states now limit the role of grand juries to investigating
criminal charges and issuing indictments, California grand
juries spend most of their time in their capacity as a 'public
watchdog', investigating local government agencies. (Brooks v.
Bindercup (1995), 39 Cal.App.4th 1287, 1290-91.)
The principal mechanism by which California grand juries perform
their oversight function is through a report submitted at the
conclusion of their investigation. This final report lays out
the grand jury's findings and recommendations relating to the
subject of the grand jury's investigation. The report is then
submitted to the presiding judge of the local superior court.
(Brooks v. Bindercup, 39 Cal.App.4th 1287, 1290-91.) After
ensuring that the grand jury acted within its legal powers, the
judge then submits the report to "responsible officers,
agencies, or departments, including the county board of
supervisors, when applicable?" (Section 933(a).) In most
instances this report is filed at the end of each jury's one
year term. (Michael Vitiello & J. Clark Kelso, "Reform of
California's Grand Jury System", supra at 526-27 (2002).)
Although a response is required from each agency being
investigated, grand jury reports are not binding and the
recommendations of the grand jury do not have to be implemented.
Nonetheless, if a recommendation is not put into place, the
agency has to offer a time frame for implementation, describe a
study to analyze the recommendation, or explain why a
recommendation won't be implemented. This response has to be
sent to the presiding superior court judge from the governing
body of the investigated agency 90 days after the report is
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issued, or 60 days if the response is sent by an elected
official. (Section 933 (a)-(c); Section 933.05; Vitiello &
Kelso, "Reform of California's Grand Jury System", supra at
527.)
Throughout California history, there have been numerous
instances where grand juries have effectively uncovered fraud,
corruption, and abuse in local government. Nonetheless, there
has been growing concern about the accuracy of grand jury
reports, and the misuse of grand juror's extensive powers. (See
Vitiello & Kelso, "Reform of California's Grand Jury System"
supra at 524-25; see also Stephanie A. Doria, "Adding Bite to
the Watchdog's Bark: Reforming the California Civil Grand Jury
System" (1997), 28 Pac. L.J. 1115, 1132-50.)
Grand Juror Selection in California . This bill would place new
restraints on which people could perform grand jury
investigations of government agencies. Currently, there are a
limited number of qualifications that a person must meet to be a
grand juror. A person must be at least eighteen years old, a
United States citizen, and must have lived in the county where
the grand jury is being impaneled for at least a year prior to
serving as a grand juror. A potential grand juror must also be
"in possession of his natural faculties, İbe] of ordinary
intelligence, İbe] of sound judgment, and İbe] of fair
character." (Section 893 (a).) Current law provides for the
disqualification of a potential grand juror if that person: is
already serving as a trial juror in California, has been
discharged as a grand juror within one year, has been convicted
of "malfeasance in office or any felony or other high crime", or
if that person is currently serving as an elected public
officer. (Section 893(b).)
The grand juror selection process varies by county. Grand
jurors either apply to serve or they are nominated to serve,
they are then interviewed by a presiding superior court judge
and selected to fill seats on the grand jury panel. (Section
896.) The list of potential grand jurors is required to be
proportionally representative of a county's population for each
different ward, judicial district, or supervisorial district.
(Section 899.) Currently, the law provides that no one can
challenge the makeup of grand jury panels, although the court
can disqualify potential grand jurors for not meeting the
limited qualifications. (Section 910.)
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The Benefit of Statutorily Addressing Conflicts of Interest .
The current lack of any statutory provisions against conflicts
of interest in civil grand juries has, the author notes, created
the possibility that government officials either currently
working for, or having recently worked for particular government
agencies might be responsible for investigating that agency.
According to the supporters of this bill, this has the potential
to damage public perception of the grand jury as a neutral and
unbiased body in California. By requiring each individual that
is working for, or has worked for a government agency being
investigated by a grand jury in the past three years to indicate
that fact and recuse him or herself from the grand jury, the
author and supporters of this bill believe these concerns can be
alleviated.
Pending Related Legislation . This Committee recently heard and
passed, AB 622 (Dickinson), which similarly addresses the civil
grand jury process. AB 622 seeks to require a civil grand jury
to meet with the chief executive or department head of an agency
subject to its investigation at least 45 days before the grand
jury issues its final report in order to ensure the accuracy of
the final report, and feasibility of its final recommendations.
In instances where a civil grand jury is hearing testimony under
oath, AB 622 additionally seeks to require the proceedings be
open to the public and press, and would permit the witness to be
accompanied by an attorney during his or her testimony.
REGISTERED SUPPORT / OPPOSITION :
Support
Orange County Board of Supervisors (sponsor)
Opposition
None on file
Analysis Prepared by : Drew Liebert and Travis Brooks / JUD. /
(916) 319-2334