BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1766       Hearing Date:    June 28, 2016    
          
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          |Author:    |Mark Stone                                           |
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          |Version:   |March 30, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|MK                                                   |
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                     Subject:  Examination of Prospective Jurors



          HISTORY
          
          Source:   San Diego County District Attorney 
                    California District Attorneys Association
                    
          Prior Legislation: AB 310 (Leach) 1999 Failed Assembly Judiciary  
          Committee
                            SB 14 (Calderon) Juror anonymity portions  
          deleted. 1997
                            AB 886 (Morrow) Failed 1997-1998 
                            AB 2922 (Hawkins) Failed 1996
                         SB 508 (Campbell) - Chapter 964, Stats. 1995 
                         SB 1199 (Mountjoy) Failed 1995

          Support:  Association of Deputy District Attorneys; California  
          Police Chiefs Association

          Opposition:California Attorneys for Criminal Justice; California  
                    Newspaper Publishers Association

          Assembly Floor Vote:                 78 - 0
          PURPOSE
          
          The purpose of this bill is to require that jurors in criminal  
          cases be referred to by something other than their names.







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          Existing law allows a court, in a criminal case, to conduct an  
          initial examination of prospective jurors.  (Code of Civil  
          Procedure § 223)

          Existing law provides that after a court's initial examination,  
          counsel for each party shall have the right to examine, by oral  
          and direct questioning, any or all of the prospective jurors.  
          (Code of Civil Procedure §223.) 

          Existing law says the court may, in the exercise of its  
          discretion, limit the oral and direct questioning of prospective  
          jurors by counsel. (Code of Civil Procedure § 223)

          Existing law provides that the court may specify the maximum  
          amount of time that counsel for each party may question an  
          individual juror, or may specify an aggregate amount of time for  
          each party, which can then be allotted among the prospective  
          jurors by counsel. (Code of Civil Procedure § 223)

          Existing law provides that voir dire of any prospective jurors  
          shall, where practicable, occur in the presence of other jurors  
          in all criminal cases, including death penalty cases. (Code of  
          Civil Procedure § 223.)

          Existing law provides that the trial court's exercise of its  
          discretion it the manner in which voir dire is conducted,  
          including any limitation on the time which will be allowed or  
          direct questioning of prospective jurors by counsel any  
          determination that a question is not in aid of the exercise of  
          challenges for cause, shall not cause any conviction to be  
          reversed unless the exercise of discretion has resulted in a  
          miscarriage of justice. (Code of Civil Procedure § 223)

          Existing law provides that the names of qualified jurors drawn  
          from the qualified juror list for the superior court shall be  
          made available to the public upon request unless the court  
          determines that compelling interest requires that this  
          information should be kept confidential. (Code of Civil  
          Procedure § 237(a)(1))

          Existing law provides that upon the recording of a jury's  
          verdict in a criminal jury proceeding, the court's record of  
          personal juror identifying information of trial jurors,  








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          consisting of names, addresses and telephone numbers shall be  
          sealed until further order of the court. (Code of Civil  
          Procedure § 237 (a)(2))

          Existing law provides that a person may petition the court to  
          access sealed jury records with a petition that is supported by  
          a declaration that includes facts sufficient to establish good  
          cause for the release of juror's personal identifying  
          information. (Code of Civil Procedure § 237 (b))

          This bill provides that, in a criminal case, the court shall  
          provide to counsel for each party the complete names of the  
          prospective jurors, both alphabetically and in the order in  
          which they will be called.

          This bill provides that the court in each criminal trial shall  
          determine a uniform manner by which each prospective juror shall  
          be addressed by the court and counsel for each party according  
          to one of the following:

                 An identification number assigned by the court.
                 The prospective juror's first name and the first initial  
               of his or her last name.
                 The prospective juror's title and last name.

          This bill provides that before examining prospective jurors, the  
          court shall advise them that, in accordance with state law, the  
          court and counsel for each party are prohibited, in all criminal  
          cases, from addressing prospective jurors by their full names  
          during jury selection and are required to address each  
          prospective juror by an identification number, by his or her  
          first name and the first initial of his or her last name, or by  
          his or her title and last name.

          Existing law allows a trial judge in civil cases to examine  
          prospective jurors in order to select a fair and an impartial  
          jury. (Code of Civil Procedure § 222.5)

          Existing law provides that after a trial judge's initial  
          examination, counsel for each party may examine any of the  
          prospective jurors, by oral and direct questioning, so that  
          counsel may intelligently exercise both peremptory challenges  
          and challenges for cause. (Code of Civil Procedure § 222.5.) 









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          Existing law provides that during any examination conducted by  
          counsel for the parties, the trial judge should permit liberal  
          and probing examination calculated to discover bias or prejudice  
          with regard to the circumstances of the particular case. (Code  
          of Civil Procedure § 222.5.) 

          Existing law provides that to facilitate the jury selection  
          process, the trial judge should provide the parties with both  
          the alphabetical list and the list of prospective jurors in the  
          order in which prospective jurors will be called. (Code of Civil  
          Procedure § 222.5.) 

          This bill provides that in a civil case, the court shall provide  
          to counsel for each party the complete names of the prospective  
          jurors, both alphabetically and in the order in which they will  
          be called.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  








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          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:


              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.

          COMMENTS
          1.  Need for This Bill
          
          According to the author:

               This commonsense and modest proposal provides privacy  
               protections to prospective jurors during the jury  








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               selection process. This bill simply provides that  
               during voir dire, a court or counsel in a criminal  
               matter must address a prospective juror by a jury  
               number, the jurors first name and last initial, or the  
               jurors title and last name.

               It is not uncommon for prospective jurors to reveal  
               their full names during voir(dire. Prospective jurors  
               are then asked to provide extensive private  
               information, including their occupation, where they  
               live, if they have children, and if they live alone or  
               with others.

               When prospective jurors reveal both their full name and  
               other personal information, they put themselves at-risk  
               of being potentially victimized. It is true that a  
               juror who feels uncomfortable about answering a  
               particularly personal question during voir dire may ask  
               the court to go into the judge's closed chambers to  
               answer the question; however, jurors do not always  
               invoke this privilege. Jurors who might already feel  
               intimidated by the jury selection process (and who want  
               to avoid interrupting the voir dire proceedings) may  
               feel pressure to answer the personal question in open  
               court rather than behind closed chambers.

               Jurors who feel reluctant about reporting to jury duty  
               for privacy reasons should be put at ease.  To the  
               extent that voir dire contributes to instances of  
               identity theft or juror intimidation among prospective  
               jurors, this bill could curb those instances.

          2.  Statutory History 

          In California the selection of trial jurors has traditionally  
          been by name, and qualified jurors' names are generally to be  
          made available to the public upon request.  In 1995 the  
          Legislature passed, and the Governor signed, SB 508 (Campbell),  
          Ch. 964, Stats. 1995 to address legislators' growing desires to  
          protect juror privacy in criminal trials.   Pursuant to SB 508,  
          as of January 1, 1996, all juror information in a criminal trial  
          in California is automatically sealed as soon as the jury  
          verdict is recorded.  Any person may petition the court for  
          access to juror information.  However, only if good cause for  








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          that information is shown on the face of the court pleadings  
          will a hearing on the release of that information even be  
          scheduled.  Otherwise, the court will bar the release of such  
          personal information.  (Code of Civil Procedure Section 237(b).)

          Between the enactment of SB 508 in 1995 and 1999 a number of  
          bills were introduced in the Legislature to "move up" the  
          secrecy shield on juror identity information from the time of  
          the verdict to the beginning of the voir dire process in all  
          criminal trials. However, all constitutional questions were  
          raised about those legislative proposals calling for automatic  
          juror anonymity and no such proposals seeking automatic voir  
          dire anonymity were passed.
          
          3.  Press-Enterprise
           
           According to the United States Supreme Court, the presumptive  
          openness of jury selection dates back to at least the 1500's in  
          England, and was common practice in America at the time the  
          Constitution was adopted.  (Press-Enterprise v. Riverside (1984)  
          464 U.S. 501.)  Allowing the public to observe the selection of  
          jurors has historically been believed to provide the public  
          needed confidence that the criminal justice system is fair and  
          unbiased.  In the voir dire process, the court and the attorneys  
          involved in criminal cases have historically questioned  
          prospective jurors to try to ensure a fair and impartial jury.   
          Personal views have traditionally been elicited from the jurors  
          to determine whether they have the ability to be fair and  
          impartial in the case before them.  Both prosecutors and defense  
          attorneys have consistently argued in the Legislature over the  
          years that access to such personal information about jurors is  
          absolutely necessary to determine whether prospective jurors  
          hold a potential bias.  

          In 1984, the United States Supreme Court considered this issue  
          in the Press-Enterprise case noted above.  The Court held that  
          there are indeed clear constitutional constraints limiting the  
          degree to which access to juror information can be barred during  
          a criminal trial.

          In that case, the Press-Enterprise newspaper moved to have the  
          voir dire examination of prospective jurors in a gruesome murder  
          case opened to the press.  The State of California opposed the  
          newspaper's motion, asserting that the jurors in this trial  








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          would not be candid with their answers if the press were present  
          during juror questioning.  The trial judge agreed and prohibited  
          the press from attending the individual voir dire proceedings.   
          The voir dire lasted six weeks, and all but three days of it  
          were closed to the public.  When the press tried to get copies  
          of the transcript of the voir dire, the trial judge denied the  
          motion on the grounds that although most of the answers by the  
          jurors were routine, there were some questions and answers that   

          were of a personal nature, and release of the information would   
          violate the privacy rights of the jurors. (Press-Enterprise,  
          supra at 507.)

          The Supreme Court rejected the trial court decision, finding  
          that, based on long historical precedent, trials, including voir  
          dire proceedings, are inherently public proceedings.  The Court  
          reasoned that a defendant is entitled to a fair and open trial  
          under the First and Sixth Amendments.  It found that openness in  
          trials enhances both the basic fairness of the criminal trial  
          and the appearance of fairness to the general public, thereby  
          giving the public confidence in the jury system.  (Id.   at 508.)  
            The Court cited Globe Newspaper Co. v. Superior Court (1982)  
          457 U.S. 596, for the important proposition that:

               Closed proceedings, although not absolutely precluded,  
               must be rare and only for cause shown that outweighs  
               the value of openness.  (Press-Enterprise, supra, at  
               509.)  
                 
          The Court found that a state's justification for closure of a  
          public criminal proceeding must be a "weighty one."   ( Id. )   
          The Court further held that trials may be held in secret only if  
          the trial court determines on a case-by-case basis that the  
          presumption of openness is overcome by an overriding interest  
          (e.g., the defendant's right to a fair trial).  The Court  
          required that the overriding interest be based on the trial  
          court's specific and articulated findings that secrecy is  
          essential to meet the overriding interest that the secrecy is  
          narrowly tailored to meet the interest, and that alternatives to  
          secrecy have been clearly considered.  In rejecting the trial  
          court's order of secrecy in Press-Enterprise, the Supreme Court  
          emphasized that, in that case, the trial court did not  
          articulate specific findings as to why it needed to close voir  
          dire; nor did it consider alternatives to closing it.  (  Id.    








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          at 513.)

          The U.S. Court of Appeals for the Fourth Circuit, relying on  
          Press-Enterprise, rejected jury anonymity in   In re Baltimore  
          Sun (4th Cir. 1988) 841 F.2d 74, stating :

               We think it no more than application of what has always  
               been the law to require a . . . court . . . to [make  
               public] the names and addresses of those jurors who are  
               sitting. . . .[W]e recognize the difficulties which may  
               exist in highly publicized trials . . . and the  
               pressure upon jurors.  But we think the risk of loss of  
               confidence in the judicial process is too great to  
               permit a criminal defendant to be tried by a jury whose  
               members may maintain anonymity.  If . . . the attendant  
               danger[s] of a highly publicized trial are too great,  
               [the court] may always sequester the jury and change of  
               venue is always possible. . . .(841 F.2d at 76-77.)  
                  
          More recent cases also affirm the need to approach anonymous  
          juries as "an unusual measure that is warranted only where there  
          is a strong reason to believe the jury needs protection or to  
          safeguard the integrity of the justice system, so that the jury  
          can perform its factfinding function?" (United States v.  
          Shryock, 342 F.3d 948, 971 (9th Cir. Cal. 2003))  In order to  
          empanel an anonymous jury the court must find:

               (1) there is a strong reason for concluding that it is  
               necessary to enable the jury to perform its factfinding  
               function, or to ensure juror protection; and (2)  
               reasonable safeguards are adopted by the trial court to  
               minimize any risk of infringement upon the fundamental  
               rights of the accused." Id. (adopting the First  
               Circuit's test from United States v. DeLuca, 137 F.3d  
               24, 31 (1st Cir. 1998)). Although these factors are  
               neither exclusive nor dispositive, courts have  
               recognized the need for jury protection based on a  
               combination of factors, including:(1) the defendants'  
               involvement with organized crime; (2) the defendants'  
               participation in a group with the capacity to harm  
               jurors; (3) the defendants' past attempts to interfere  
               with the judicial process or witnesses; (4) the  
               potential that the defendants will suffer lengthy  
               incarceration if convicted; and (5) extensive publicity  








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               that could enhance the possibility that jurors' names  
               would become public and expose them to intimidation and  
               harassment. (citations omitted)  (United States v.  
               Fernandez, 388 F.3d 1199, 1244-1245 (9th Cir. Cal.  
               2004))

          A California Supreme Court case found that the court did not  
          abuse its discretion in identifying jurors by number stating:

               We find no abuse of discretion in the trial court's  
               decision to order that the jurors be identified by  
               numbers. The prosecutor informed the court that two  
               witnesses had been threatened and one had been offered  
               a bribe. These incidents provided reasonable grounds  
               for concern that an attempt might be made to unlawfully  
               interfere with the jurors' performance of their duties.  
               Any interference with defendant's right to conduct voir  
               dire was minimized because the jurors were not  
               completely anonymous-counsel had access to the names of  
               the jurors. Defendant contends that the procedure  
               interfered with his ability to assist his counsel in  
               jury selection because he was not personally allowed  
               access to the jurors' names. Defendant argues that he  
               might not have recognized a juror's face but might have  
               recognized a name and realized he knew something about  
               the juror or the juror's family that might cause the  
               juror to be biased. Defendant's contention is  
               speculative and in any event any minor interference  
               with the conduct of voir dire that may have occurred  
               was justified by the court's legitimate concerns for  
               the safety and integrity of the jury (People v. Thomas  
               53 Cal. 4th 771, 786-789 (Cal. 2012))  

           4.  Identifying a Juror by Other Than Their Name
           
          This bill provides that in a criminal trial the court shall  
          provide to counsel for each party the complete names of the  
          prospective jurors, both alphabetically and in the order in  
          which they were called. However, the court in each criminal  
                                   trial, shall determine a uniform manner by which each  
          prospective juror shall be addressed by the court and counsel  
          for each party according to one of the following:

                 An identification number assigned by the court.








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                 The prospective juror's first name and the first initial  
               of his or her last name.
                 The prospective juror's title and last name.

          This bill prohibits the court and counsel for each party from  
          addressing prospective jurors by their full names during jury  
          selection and requires the court to inform the jury of the  
          prohibition.

          5.  Constitutional Issues?
          
          Having every juror in a criminal case addressed by something  
          other than his or her name during voir dire raises  
          Constitutional questions.  

          As noted in the cases above, the right to a public jury is  
          important not just to the right of the defendant to get a fair  
          trial but to the right of the public to have confidence in the  
          jury system.  Cases that have allowed for an anonymous juries or  
          juries where the jurors were referred to by a number have been  
          upheld when the Appellate Court has found that the trial court  
          had made a finding that the jury needed protection or that it  
          was necessary to protect the ability of a jury to perform its  
          fact-finding duty in a particular case.  It is not clear that it  
          will be Constitutional to allow this automatically in every  
          case.  It is also not clear whether each of the options would  
          have the same Constitutional problems, for example identifying a  
          person by a number only seems to give complete anonymity, maybe  
          addressing a person by last name does not since it may give some  
          indication as to a relationship with someone involved in the  
          case.

          While this bill gives the prosecution and defense access to the  
          prospective jurors names and thus may not infringe on one aspect  
          of a defendant's right to a fair trial, by not making a case by  
          case determination it appears as if it may violate the open jury  
          requirement in Press Enterprise.  This bill does not eliminate   
          Code of Civil Procedure Section 237 which provides access by the  
          public to the names of qualified jurors until a verdict has been  
          reached so is that enough to comply with Press Enterprise's  
          requirement that trials be "inherently public" proceedings?  
          6.  Support
          
          According to the San Diego County District Attorney, a sponsor  








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          of this bill:

               A constituent brought this issue to our attention after  
               experiencing the voir dire process in a local criminal  
               case. While she waited her turn to be called, she  
               witnessed a young lady, about the same age as her adult  
               daughter, get called up by her full name. She sat in  
               disbelief as the young lady divulged where she lived,  
               that she lived alone, where she worked and other very  
               personal information. The courtroom was filled with  
               other prospective jurors. All hear the young lady's  
               full name and, after a few moments of questioning knew  
               details many of us would consider very private. AB 1766  
               provides a simple fix that would protect that privacy  
               in courtrooms up and down the state.

               The measure simply requires the court and attorneys, in  
               criminal and civil cases, to address prospective jurors  
               by first name and last initial, rather than by the  
               prospective juror's full first and last names. AB 1766  
               still allows the court to provide the complete names of  
               potential jurors to both counsels, but the court and  
               counsel just would not use the full names when calling  
               or questioning the prospective jurors during the voir  
               dire process.

          7.  Oppose
          
          The California Newspaper Publishers Association opposes this  
          bill stating:

               By eliminating use of a juror's full name, this  
               legislation would remove important facts from the  
               public process and make secret information that is  
               readily available in a phone book - a person's full  
               name. This blanket rule of secrecy is contrary to the  
               presumptive First Amendment right of public access that  
               applies to all portions of a trial, particularly in a  
               criminal case. 

               The United States Supreme Court recognized this  
               presumption of openness in Press-Enterprise Co. v.  
               Riverside County Superior Court (1984) 464 U.S. 501.  
               The court held that voir dire proceedings in criminal  








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               trials are presumptively open to the public and can be  
               closed only if a trial court determines that the  
               presumption of openness is overcome by an overriding  
               interest (i.e. the defendant's right to a fair trial).

               This is a high burden: the presumption should be  
               overcome only in unusual circumstances, on a fact  
               specific, case-by-case basis. But AB 1766 would make  
               all potential juror names in California unknowable in  
               criminal court proceedings. 

               While the bill was amended to permit the public to  
               access the qualified juror list upon request, pursuant  
               to Code of Civ. Proc. Section 237, this amendment does  
               not allay the constitutional concerns because it only  
               permits access to the names of jurors who are actually  
               empaneled. Thus, the public has no way of knowing which  
               jurors were dismissed from the pool, information that  
               could be essential to knowing whether there was bias in  
               the jury selection process.  

               The open and public trial is a hallmark of the American  
               legal system. It allows the public to oversee the  
               courts, and fosters public trust that justice is being  
               served. Hiding public information about those who may  
               determine the status of another person's life and  
               liberty is tantamount to denying the public this  
               fundamental access to the courts.  If openness to the  
               courts is cut-off, the public's confidence in the  
               courts is undermined and trust in this political  
               institution is lost.

               The court in Press Enterprise got it right.  The  
               appropriate process for a potential juror to protect  
               private information is by affirmative request.  This  
               permits the court to make the  
               constitutionally-required, fact-specific finding that  
               there is an overriding interest in nondisclosure in  
               that instance.  The court recognized that there are  
               instances where the interrogation of a juror touches  
               "deeply personal matters," warranting nondisclosure,  
               but a person's identity cannot be captured in that  
               consideration.  









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               CNPA believes AB 1766 would be unconstitutional because  
               it would foreclose public access to all potential juror  
               names, without any analysis of the interests involved,  
               in every case. Because AB 1766 falls short of the Press  
               Enterprise standard, we must respectfully oppose.  


                                      -- END -