BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                  SB 1357|
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                                 THIRD READING


          Bill No:  SB 1357
          Author:   Cannella (R)
          Amended:  5/8/12
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  6-0, 3/27/12
          AYES:  Hancock, Calderon, Harman, Liu, Price, Steinberg
          NO VOTE RECORDED:  Anderson

           SENATE JUDICIARY COMMITTEE  :  5-0, 5/1/12
          AYES:  Evans, Harman, Blakeslee, Corbett, Leno


           SUBJECT  :    Removal from office:  grand jury accusation

           SOURCE  :     Monterey County Office of the District Attorney


           DIGEST  :    This bill provides that the grand jury 
          presenting the accusation against an officer for willful or 
          corrupt misconduct in office may also be a criminal grand 
          jury.

           ANALYSIS  :    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:

           Death.
           Imprisonment.
           Fine.
           Removal from office; or
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           Disqualification to hold and enjoy any office of honor, 
            trust or profit in this state.  (Penal Code Section 15)

          Existing law provides that ?İt]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 
          Section 949)

          Existing law provides that every superior court, whenever 
          in its opinion the public interest so requires, shall draw 
          a grand jury.  (Penal Code Section 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 Section 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/her 
          own motion, order and direct the impanelment, of one 
          additional grand jury, as specified.  (Penal Code Section 
          904.6)

          Existing law provides that notwithstanding Penal Code 
          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 Section 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 Sections 
          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 Section 3060)


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          This bill provides that a criminal grand jury, as impaneled 
          pursuant to Penal Code Sections 904.4, 904.6, or 904.8 may 
          be the grand jury that presents the above accusation.

          This bill updates the existing law provision regarding the 
          concurrence necessary among grand juries of different sizes 
          to result in an accusation, in order to account for 
          counties which the number of grand jury members is 23.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

           SUPPORT  :   (Verified  5/8/12)

          Monterey County Office of the District Attorney (source)
          California District Attorneys Association

           ARGUMENTS IN SUPPORT  :    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 
            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 

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            being dismissed on procedural grounds.

          The bill' sponsor, the Monterey County Office of the 
          District Attorney, writes, "The question İof] whether an 
          accusation is civil or criminal in nature has a direct 
          impact on which grand jury can present an accusation.  İThe 
          Attorney General's 1993 opinion] supports the argument that 
          a criminal grand jury cannot present an accusation.  On the 
          other hand, an accusation presented by a specially selected 
          civil grand jury would probably be attacked as a violation 
          of constitutional due process.  The trial or appellate 
          court ruling on the issue could very well side with the 
          earlier cases describing an accusation as criminal in 
          nature and, therefore, subject to all the due process 
          requirements for criminal prosecutions.  All of this puts 
          district attorneys in a quandary.  ?Rather than risk years 
          of litigation and much expense to settle this issue, the 
          legislature could solve the problem now by specifying which 
          grand jury may present an accusation."


          RJG:mw  5/9/12   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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