BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1357
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          Date of Hearing:   June 26, 2012

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                    SB 1357 (Cannella) - As Amended:  May 8, 2012

                                  PROPOSED CONSENT

           SENATE VOTE  :   37-0
           
          SUBJECT  :  Removal from Office: Grand Jury Accusation 

           KEY ISSUE :  Should existing law specify that the "grand jury" 
          that is authorized to present an accusation against a public 
          official includes a criminal grand jury as well as a civil grand 
          jury? 

           FISCAL EFFECT  :  As currently in print this bill is keyed 
          non-fiscal.

                                      SYNOPSIS

          Existing law provides for the removal of a public official who 
          engages in willful or corrupt misconduct while in office.  As a 
          first step in this removal process, a written accusation against 
          the official may be presented by the "grand jury" of the county 
          in which the official holds office.  However, existing law is 
          not clear as to whether "grand jury" refers only to the civil 
          grand juries that are summoned at least once a year in each 
          county, or if it includes the additional criminal grand juries 
          that are impaneled as needed upon the order of the presiding 
          judge of the superior court.  According to the author, this 
          ambiguity is aggravated by the fact that courts have dismissed 
          cases based on civil grand jury indictments if the accusations 
          are deemed to be criminal in nature.  Meanwhile, a 1993 Attorney 
          General opinion held that criminal grand juries cannot handle 
          matters deemed civil.  This has created a dilemma for district 
          attorneys seeking to remove corrupt public officials from 
          office: if they obtain an accusation from a civil grand jury 
          under the relevant Government Code provisions, they run the risk 
          of dismissal if the accusation is deemed criminal in nature; yet 
          the 1993 Attorney General's opinion appears to preclude the use 
          of criminal grand juries.  The fact that "corruption" and 
          "misconduct" as applied to the actions of public officials are 
          not always neatly categorized as criminal or civil in nature, or 








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          involve some combination of both, only exacerbates the problem.  
          This bill would attempt to solve this problem by simply 
          clarifying that the "grand jury" authorized to present an 
          accusation against a public official under existing law includes 
          not only the regular civil grand jury, but also a criminal grand 
          jury.  The bill is sponsored by the Monterrey County District 
          Attorney's Office and supported by the California District 
          Attorneys Association.  There is no known opposition to this 
          bill, which has not received any negative floor or committee 
          votes to date. 

           SUMMARY  :  Provides that the existing statute authorizing a 
          "grand jury" to present accusations against a local public 
          officer for willful or corrupt misconduct includes a criminal 
          grand jury, as defined.  Specifically,  this bill  :  

          1)Provides that the grand jury presenting an accusation against 
            a public official for willful or corrupt misconduct in office 
            may also be the additional grand jury impaneled by order of 
            the presiding judge of a superior court, pursuant to relevant 
            provisions of the Penal Code. 

          2)Updates the existing law provision that sets forth the number 
            of jurors who must concur before an accusation may be 
            presented to take account of recent changes in the required 
            number of jurors for some counties. 

           EXISTING LAW  : 

          1)Provides that every superior court, whenever in its opinion 
            the public interest so requires, shall draw a grand jury.  
            Specifies the number of grand jurors that must be drawn, 
            depending upon the county's population.  (Penal Code Section 
            904.)

          2)Authorizes the presiding judge of the superior court, upon the 
            request of the Attorney General or the district attorney, or 
            upon his or her own motion, to impanel an additional grand 
            jury, as specified.  Specifies slightly modified procedures 
            for specific counties.  (Penal Code Sections 904.4-904.8.)

          3)Sets forth the procedure for accusing and removing a public 
            official for willful or corrupt misconduct in office.  
            Provides that an accusation in writing against a public 
            official for willful or corrupt misconduct in office may be 








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            presented by the grand jury of the county in which the officer 
            accused is elected or appointed.  (Government Code Sections 
            3060-3071.)

          4)Provides, pursuant to the above, that an accusation may not be 
            presented without the concurrence of at least twelve grand 
            jurors, or at least eight grand jurors in a county in which 
            the required number of members of the grand jury is eleven.  
            (Government Code Section 3060.)

          5)Requires that one or more grand juries be drawn and summoned 
            at least once a year in each county.  (California Constitution 
            Article 1 Section 23.)

          6)Defines a grand jury as a body of the required number of 
            persons returned from the citizens of the county before a 
            court of competent jurisdiction, and sworn to inquire into 
            public offenses committed or triable within the county.  
            Specifies that one grand jury in each county shall be charged 
            and sworn to investigate or inquire into county matters of 
            civil concern.  (Penal Code Section 888.)

          7)Establishes the required number of grand jurors as follows: 23 
            in a county having a population exceeding four million; 11 in 
            a county having a population of 20,000 or less; and 19 in all 
            other counties.  (Penal Code Section 888.2.) 

           COMMENTS  :  Existing law provides for the removal of a public 
          official who engages in willful or corrupt misconduct while in 
          office.  As a first step in this removal process, a written 
          accusation against the official may be presented by the "grand 
          jury" of the county in which the official holds office.  
          However, existing law is not clear as to whether "grand jury" 
          refers only to the civil grand juries that are regularly drawn 
          and summoned at least once a year in each county, or if it 
          includes the ad hoc criminal grand juries that are impaneled as 
          needed upon the order of the presiding judge of the superior 
          court.  This bill would specify that accusations raised under 
          these statutory provisions may be presented by either a civil 
          grand jury or a criminal grand jury.  

           Background  :  There are two types of grand juries in California.  
          Article 1 Section 23 of the California Constitution requires 
          that each year a grand jury must be impaneled in each of the 
          state's 58 counties.  These annual, constitutionally-required 








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          grand juries are often called "civil" grand juries.  However, 
          provisions of the Penal Code - as amended in 1991 - authorize 
          the presiding judge of a superior court to summon an 
          "additional" grand jury as needed to serve the public interest.  
          These juries are often called "criminal" grand juries, both 
          because they are authorized by the Penal Code and because they 
          are given authority to "return indictments."  (Penal Code 
          904.6.)  In cases where additional grand juries have been 
          created, however, at least one grand jury in each county is 
          designated to investigate or inquire into "matters of civil 
          concern."  (Penal Code Section 888.)  Although not expressly 
          stated in the statutes, it is generally assumed that this one 
          grand jury that investigates "matters of civil concern" is the 
          constitutionally-required grand jury or "civil grand jury," 
          whereas those grand juries created pursuant to the Penal Code 
          are "criminal grand juries" that bring criminal indictments.  
          That the different types of grand juries have different 
          functions is partly a reflection of the multiple functions that 
          grand juries serve in California.  As identified by the 
          California Supreme Court, these functions include (1) weighing 
          criminal charges and, if necessary, returning criminal 
          indictments; (2) weighing allegations of misconduct against 
          public officials and determining whether to present formal 
          accusations; and (3) acting as the public's "watchdog" by 
          investigating and reporting on the affairs of local government.  
          (McClatchy Newspapers v. Superior Court (1988) 44 Cal. 3d 1162, 
          1170.) 

          As noted above, one of the grand jury functions identified by 
          the California Supreme Court includes "weighing allegations of 
          misconduct against public officials."  Government Code Sections 
          3060 through 3070 set forth the process for removing local 
          public officers for misconduct in office.  (Statewide elected 
          officials, members of the Board of Equalization, and state court 
          judges are removed by impeachment.)  This removal process begins 
          when a "grand jury" presents "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 humane officer, for willful or corrupt misconduct in 
          office."  (Government Code Section 3060.)  Although the plain 
          language of the statute does not specify whether "grand jury" 
          refers to the constitutionally-required "civil" grand jury or 
          the additional "criminal" grand jury, existing case law, an 
          Attorney General's opinion, and the broader statutory framework 
          strongly suggest that the Legislature contemplated that the 








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          civil grand jury, which has traditionally been assigned a 
          "watchdog" function over "matters of civil concern," was the 
          "grand jury" that would initiate the removal process.  This 
          reading is reinforced by the fact that Government Code Section 
          3060 speaks in terms of bringing an "accusation" instead of an 
          "indictment," as the latter term usually indicates a formal 
          criminal charge.  

          According to a 1993 opinion of the Attorney General, the above 
          reading is also reinforced by Penal Code Section 888, which 
          states that "if more than one Ýgrand jury] has been impaneled" 
          pursuant to the Penal Code, then "one grand jury in each county, 
          shall be charged and sworn to investigate or inquire into county 
          matters of civil concern."  While in theory this "one grand 
          jury" could be one of the "additional" grand juries created 
          under the Penal Code, the Attorney General concluded that most 
          likely this provision contemplates that the "one grand jury" 
          would be the "civil grand jury" created pursuant to the 
          constitutional requirement.  That the "one grand jury" would 
          also be the one to present an accusation against a public 
          official is suggested, according to the Attorney General's 
          opinion, by other sections of the Penal Code.  Specifically, 
          section 904.6 authorizes the "additional" grand juries and gives 
          them "sole and exclusive jurisdictions over  indictments  ," unless 
          the matter has already been assigned to the "regular grand 
          jury."  The Attorney General argued that the use of the word 
          "indictment" (as opposed to "accusation") suggested that these 
          juries were restricted to criminal matters.  Section 914.1, on 
          the other hand, which cross references the Government Code 
          sections on removing public officers, speaks in terms of the 
          grand jury's role in the "investigation of, or inquiry into, 
          county matters of civil concern."  (76 Ops. Cal. Atty. Gen. 181, 
          183-187.)  The Attorney General's opinion concluded that "the 
          additional jury authorized by Section 904.6 is restricted to 
          criminal matters only and may not perform civil oversight 
          functions" (Id. at 187), and bringing accusations against public 
          officials is apparently a "civil oversight function." 

          According to the author and sponsor, the prevailing 
          understanding that the "regular" civil grand juries are 
          responsible for bringing an accusation for removal of a public 
          officer, while the "additional" criminal grand juries handle 
          criminal matters, creates a "quandary" for local district 
          attorneys.  To begin with, the author and sponsor correctly 
          point to case law suggesting that the "willful and corrupt 








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          misconduct" that can be the basis for accusation and eventual 
          removal of a public officer does not always fit neatly into a 
          "civil" or "criminal" category, and that accusations of willful 
          or corrupt misconduct are necessarily the same as criminal 
          indictments.  (See e.g. Steiner v. Superior Court (1996) 50 Cal. 
          App. 4th 1771; People v. Hale (1965) 232 Cal. App. 2d 112.)  
          According to the author, courts have dismissed cases based on 
          civil grand jury indictments if the accusations are deemed to be 
          criminal in nature.  At the same time, as discussed above, the 
          Attorney General has concluded that criminal grand juries cannot 
          handle matters deemed civil.  This has created a dilemma for 
          district attorneys seeking to remove corrupt public officials 
          from office: if they obtain an accusation from a civil grand 
          jury under the relevant Government Code provisions, they run the 
          risk of dismissal if the accusation is deemed criminal in 
          nature; if they obtain an accusation from a criminal grand jury 
          - assuming they can even do that - they run the risk of 
          dismissal if the accusation is deemed civil in nature.  This 
          bill would attempt to solve this problem by simply clarifying 
          that the "grand jury" authorized to present an accusation 
          against a public official under existing law includes not only 
          the regular civil grand jury, but also any additional criminal 
          grand jury.  This bill will expressly authorize a district 
          attorney to seek an accusation from either a civil grand jury or 
          a criminal grand jury.  Presumably, a district attorney would 
          choose one or the other depending upon the nature of the 
          misconduct, but in either case, this bill would make it clear 
          that one of the additional criminal grand juries may bring an 
          accusation under Government Code Section 3060. 

           Number of Jurors Who Must Concur to Bring an Accusation  :  In 
          addition, this bill makes one technical correction to existing 
          law.  Government Code Section 3060 currently provides that an 
          accusation cannot be presented without the concurrence of at 
          least twelve grand jurors, or at least eight grand jurors in a 
          county in which the required number of grand jurors is eleven.  
          At the time this language was enacted, grand juries had either 
          nineteen or eleven grand jurors, depending upon population.  
          Since that time, the law has been amended to provide for 
          twenty-three grand jurors in a county with a population that 
          exceeds four million.  Taking account of this change, this bill 
          would specify that an accusation cannot be brought without the 
          concurrence of nineteen jurors in a county that requires 
          twenty-three jurors. 









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           ARGUMENTS IN SUPPORT  :  According to the author, 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."  The author continues,

            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 being dismissed on procedural 
            grounds.

          The bill' sponsor, the Monterey County District Attorney's 
          Office, claims that the question of "whether an accusation is 
          civil or criminal in nature has a direct impact on which grand 
          jury can present an accusation."  The sponsor believes that the 
          1993 Attorney General opinion, discussed above, "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 Ýif the matter is 
          deemed criminal] . . . 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."

           REGISTERED SUPPORT / OPPOSITION  :

           Support:
           
          Monterey County District Attorney's Office (sponsor)
          California District Attorneys Association 
           
            Opposition 
           
          None on file 








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           Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334