BILL ANALYSIS Ó SB 1357 Page 1 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 SB 1357 Page 2 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 SB 1357 Page 3 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 SB 1357 Page 4 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 SB 1357 Page 5 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 SB 1357 Page 6 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. SB 1357 Page 7 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 SB 1357 Page 8 Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334