BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
1
3
5
SB 1357 (Cannella) 7
As Introduced February 24, 2012
Hearing date: March 27, 2012
Government Code
MK:dl
REMOVAL FROM OFFICE:
GRAND JURY ACCUSATION
HISTORY
Source: Monterey County Office of the District Attorney
Prior Legislation:SB 796 (Runner) - Chapter 82, Stats. 2007
SB 416 (Ackerman) - Chapter 25, Stats. 2005
SB 607 (Cannella) - Chapter 464, Stats.
1991
Support: California District Attorneys Association
Opposition:None known
KEY ISSUE
SHOULD A GRAND JURY IMPANELED UNDER PROVISIONS ALLOWING FOR A
CRIMINAL JURY OR A SECOND GRAND JURY BE PERMITTED TO HEAR CASES
REGARDING WILLFUL OR CORRUPT MISCONDUCT IN OFFICE?
(More)
SB 1357 (Cannella)
Page 2
PURPOSE
The purpose of this bill is to allow a second impaneled grand
jury to hear cases regarding willful or corrupt misconduct in
office.
Existing law provides that a crime or public offense is an act
committed or omitted in violation of a law forbidding or
commanding it, and to which it annexed, upon conviction, either
of the following punishments:
1. Death.
2. Imprisonment.
3. Fine.
4. Removal from office; or,
5. Disqualification to hold and enjoy any office of honor,
trust or profit in this state. (Penal § 15)
Existing law provides that ?Ýt]he first pleading on the part of
the people in a proceeding pursuant to Section 3060 of the
Government Code is an accusation. (Penal Code § 949)
Existing law provides that every superior court, whenever in its
opinion the public interest so requires, shall draw a grand
jury. (Penal Code § 904.)
Existing law provides that presiding judge in a county with a
population between 370,000 and 400,000 may impanel one
additional grand jury upon application by the district attorney.
(Penal Code § 904.4.)
Existing law authorizes the presiding judge of the superior
court, or the judge appointed by the presiding judge to
supervise the grand jury to, upon the request of the Attorney
General or the district attorney or upon his or her own motion,
order and direct the impanelment, of one additional grand jury,
as specified. (Penal Code § 904.6.)
(More)
SB 1357 (Cannella)
Page 3
Existing law provides that notwithstanding Section 904.6, the
presiding judge of the superior court of the County of Los
Angeles may impanel up to two additional grand juries upon the
request of the Attorney General or the district attorney. (Penal
Code § 904.8.)
Existing law sets for the procedure for convicting someone of
willful or corrupt misconduct in office and removal from office
for the conduct. (Government Code §§ 3060-3071.)
Existing law provides that an accusation in writing against any
officer of a district, county, or city including any member of
the governing board or personnel commission of a school district
or any humane officer for willful or corrupt misconduct in
office, may be presented by the grand jury of the county for, or
in, which the officer accused is elected or appointed.
(Government Code § 3060.)
This bill provides that the grand jury that hears cases of
willful or corrupt misconduct in office may be a grand jury
impaneled pursuant to Penal Code Section 904.4, 904.6, or 904.8.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
(More)
SB 1357 (Cannella)
Page 4
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
(More)
SB 1357 (Cannella)
Page 5
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
Under current law, district attorneys have the option to
remove public officials from office via a civil grand
jury comprised of specially selected citizens or a
criminal grand jury chosen randomly and impartially.
Because case law is unclear as to whether an accusation
is civil or criminal in nature, there is question of
whether a civil or criminal grand jury is the
appropriate tool.
In the 1970s, appellate courts began dismissing rulings
made by specially selected civil grand juries deeming
accusations to be criminal in nature. However, in 1993
(More)
SB 1357 (Cannella)
Page 6
the Attorney General opined that criminal grand juries
could not handle civil matters. Thus, if an accusation
was found to be a civil matter, the ruling from a
criminal grand jury could be dismissed. As a result, it
could take years of litigation and expense for the
courts to determine which type of grand jury should make
the ultimate decision regarding an accusation against a
public official.
SB 1357 grants the responsibility of presenting such an
accusation to a criminal grand jury, thus ensuring that
public officials guilty of willful or corrupt misconduct
can be safely removed from office without the accusation
being dismissed on procedural grounds.
2. Willful or Corrupt Misconduct in Office in General
In General:
"An accusation in writing against any officer of a
district, county, or city, including any member of the
governing board or personnel commission of a school
district or any humane officer, for willful or corrupt
misconduct in office, may be presented by the grand jury
of the county for or in which the officer accused is
elected or appointed. An accusation may not be presented
without the concurrence of at least 12 grand jurors, or
at least eight grand jurors in a county in which the
required number of members of the grand jury is 11."
(Government § 3060.)
While Penal Code Section 15 provides that removal from office is
a criminal penalty and Penal Code Section is 949 provides that
an accusation under Government Code Section 3060 is a criminal
pleading, courts have found that a proceeding under Government
Code Section 3060 is not criminal in nature:
This special statutory proceeding is not a criminal
prosecution; i.e., its object is not to convict the
(More)
SB 1357 (Cannella)
Page 7
defendant of a crime but merely to remove him or her
from office, no other punishment being authorized. (See
In re Burleigh (1904) 145 C. 35, 37, 78 P. 242; In re
Reid (1920) 182 C. 88, 89, 187 P. 7; People v. Byers
(1936) 5 C.2d 676, 682, 55 P.2d 1177; People v. Hardy
(1942) 51 C.A.2d 759, 772, 125 P.2d 874; People v. Hale
(1965) 232 C.A.2d 112, 42 C.R. 533.) (2 Witkin Cal.
Crim. Law Crimes--Government § 109.)
What constitutes misconduct does not necessarily have to rise to
the level of a crime but usually does:
The ground for removal is "willful or corrupt
misconduct in office." (Govt.C. 3060.) Because the
punishment is only removal from office, it has been
said that the "misconduct" need not constitute a
violation of any specific criminal statute. (See People
v. Harby (1942) 51 C.A.2d 759, 767, 125 P.2d 874 Ý"It
is not required that the misconduct charged against an
official should necessarily constitute a crime"];
People v. Elliott (1953) 115 C.A.2d 410, 414, 252 P.2d
661; cf. People v. Hawes (1982) 129 C.A.3d 930, 936,
181 C.R. 456 Ýintoxication by county or city officer
while in the discharge or neglect of duties is governed
by Govt.C. 3001 (supra, §108), which requires
forfeiture of office; removal of district attorney from
office under more general Govt.C. 3060, based on
intoxication during working hours, was therefore
improper].)
It is, however, difficult to conceive of an act
constituting "willful or corrupt misconduct in office"
that does not violate one of the long list of crimes of
public officers (supra, §103 et seq.) or the many
prohibitions in local ordinances. And the cases, though
few and not helpful in their discussions of this point,
almost invariably deal with acts that are prohibited by
statute or ordinance. (See, e.g., Coffey v. Superior
Court (1905) 147 C. 525, 529, 82 P. 75 Ýchief of police
(More)
SB 1357 (Cannella)
Page 8
charged with failure to prosecute gamblers; violation
of P.C. 335, supra, §108)]; People v. Harby, supra
Ýprivate use by city councilman of city-owned
automobile; violation of embezzlement statute and
ordinance forbidding unauthorized use of city
vehicles]; People v. Becker (1952) 112 C.A.2d 324, 327,
246 P.2d 103 (Ýinsurance broker, member of city board
of education; violation of conflict of interest
statute]; People v. Elliott, supra Ýconflict of
interest statutes].)
It is thus not clear when conduct that falls short of
violating a statute or ordinance will support a charge
of "official misconduct." In Mazzola v. San Francisco
(1980) 112 C.A.3d 141, 169 C.R. 127, plaintiff, a labor
union official and city airport commissioner, supported
a strike by several unions, including his, against the
city. The airport was affected by the strike, but
plaintiff did not participate in the transaction of any
airport business during the strike. Plaintiff was
removed from office on the basis of official misconduct
under the city charter. His petition for administrative
mandamus was denied, and he appealed. Held, reversed.
(More)
(a) The term "official misconduct," as used for
purposes of impeachment in the city charter, is the
virtual equivalent of the term "misconduct in office,"
as used in Cal. Const., Art. IV, §18(b), and is thus
not unconstitutionally vague. (112 C.A.3d 148, 150,
151, citing the text.)
(b) Official misconduct requires a direct relationship
between the alleged wrongdoing and the office held, and
is usually based on a specific statutory violation.
Because the charges against plaintiff had nothing to do
with performance of his duties as an airport
commissioner, and because he did not violate any
statute that would support a charge of official
misconduct, he cannot be charged with official
misconduct. (112 C.A.3d 151, citing the text.)
(c) The claim that plaintiff was guilty of conflict of
interest in violation of Govt.C. 1126 (see 1 Summary
(9th), Contracts, §624), and thus of official
misconduct, cannot be sustained. Because the city was
aware of plaintiff's union position when it appointed
him airport commissioner, it impliedly approved his
dual status. (112 C.A.3d 151, 155.)
(d) Because plaintiff did not gain any monetary
advantage for his union by using his position as
airports commissioner, he was not guilty of breach of
fiduciary duty. (112 C.A.3d 155.) (See Steiner v.
Superior Court (1996) 50 C.A.4th 1771, 58 C.R.2d 668,
infra, §111 Ýmere negligence insufficient].)(2 Witkin
Cal. Crim. Law Crimes--Govt § 110.)
3. Clarifying What Type of Grand Jury can Hear Willful or
Corrupt Misconduct in Office
The sponsor of this bill seeks to clarify that criminal grand
juries may present accusations for willful or corrupt misconduct
(More)
SB 1357 (Cannella)
Page 10
in office under Government Code Section 3060. The sponsor
believes that because case law has split on whether these
accusations are really criminal and other case law has found
that civil grand juries would not be appropriate for criminal
cases, this clarification is necessary. While there does not
appear to have been an issue with these accusations being
brought before a criminal grand jury, clarification is not
inappropriate to fend off any potential issues in the future.
This bill would provide that accusations under Government Code
Section 3060 may be brought by a criminal grand jury or an
additional criminal grand jury impaneled under the authorization
for these grand juries.
SHOULD THE LAW CLARIFY THAT CRIMINAL GRAND JURIES CAN BE USED
FOR GOVERNMENT CODE SECTION 3060 ACCUSATIONS?
***************