BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1292 Hearing Date: April 12, 2016
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|Author: |Stone |
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|Version: |March 28, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Grand Juries: Reports
HISTORY
Source: California Special Districts Association
Prior Legislation: AB 829 (Thomson) - Chapter 443, Statutes of
1997
SB 1457 (Kopp) - Chapter 1170, Statutes of 1996
Support: Association of California Healthcare Districts;
California Association of Recreation and Park
Districts; California Fire Chiefs Association;
California Grand Jurors' Association; Fire Districts
Association of California
Opposition:California Attorneys for Criminal Justice
PURPOSE
The purpose of this bill is to: (1) require each grand jury to
hold an exit interview with the subject of their investigations
to discuss the findings of the report, as specified; (2) allow a
grand jury to provide a draft of their findings to the subject
of the report, in order to receive initial comments on the
draft, as specified; and (3) grant the subject of an
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investigation the option to provide comments on the report that
will be released and posted with the grand jury report, as
specified.
Existing law provides that one or more grand juries shall be
drawn and summoned at least once per year in each county.
(California Constitution Article I, Section 23.)
Existing law requires that in all counties there shall be at
least one grand jury drawn and impaneled in each year. (Penal
Code § 905.)
Existing law provides that when the grand jury is impaneled and
sworn, it shall be charged by the court and the court shall give
the grand jurors such information as it deems proper, or as is
required by law, as to their duties and as to any charges for
public offenses returned to the court or likely to come before
the grand jury. (Penal Code § 914(a).)
Existing law provides that the grand jury may inquire into all
public offenses committed or triable within the county and
present them to the court by indictment. (Penal Code § 917.)
Existing law states that if a member of a grand jury knows, or
has reason to believe, that a public offense, triable within the
county has been committed, he may declare it to his fellow
jurors, who may investigate it. (Penal Code § 918.)
Existing law states that a grand jury may inquire into the case
of every person imprisoned in the jail of the county on a
criminal charge and not indicted. (Penal Code § 919(a).)
Existing law states that a grand jury shall inquire into the
condition and management of the public prisons within the
county. (Penal Code § 919(b).)
Existing law states that a grand jury shall inquire into the
willful or corrupt misconduct in office of public officers of
every description within the county. (Penal Code § 919(c).)
Existing law states that a grand jury may investigate and
inquire into all sales and transfers of land, and into the
ownership of land, which, under the state laws, might or should
escheat to the State of California, as specified. (Penal Code §
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920.)
Existing law states that a grand jury is entitled to free
access, at all reasonable times, to the public prisons, and to
the examination, without charge, of all public records within
the county. (Penal Code § 921.)
Existing law states that the grand jury shall investigate and
report on the operations, accounts, and records of the officers,
departments, or functions of the county including those
operations, accounts, and records of any special legislative
district or other district in the county created
pursuant to state law for which the officers of the county are
serving in their ex officio capacity as officers of the
districts. The investigations may be conducted on some
selective basis each
year, but the grand jury shall not duplicate any examination of
financial statements which has been performed by or for the
board of supervisors pursuant to Section 25250 of the Government
Code; this provision shall not be construed to limit the power
of the grand jury to investigate and report on the operations,
accounts, and records of the officers, departments, or functions
of the county. (Penal Code § 925.)
Existing law states that the grand jury may at any time examine
the books and records of any incorporated city or joint powers
agency located in the county. In addition to any other
investigatory powers granted by this chapter, the grand jury may
investigate and report upon the
operations, accounts, and records of the officers, departments,
functions, and the method or system of performing the duties of
any such city or joint powers agency and make such
recommendations as it may deem proper and fit. The grand jury
may investigate and report upon the needs of all joint powers
agencies in the county, including the abolition or creation of
agencies and the equipment for, or the method or system of
performing the duties of, the several agencies. It shall cause
a copy of any such report to be transmitted to the governing
body of
any affected agency. As used in this section, "joint powers
agency" means an agency described in Section 6506 of the
Government Code whose jurisdiction encompasses all or part of a
county. (Penal Code § 925a.)
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Under existing law a grand jury may, and when requested by the
board of supervisors shall, investigate and report upon the
needs for increase or decrease in salaries of the county-elected
officials. A copy of such report shall be transmitted to the
board of supervisors. (Penal Code § 927.)
Under existing law every grand jury may investigate and report
upon the needs of all county officers in the county, including
the abolition or creation of offices and the equipment for, or
the method or system of performing the duties of, the several
offices. Such investigation and report shall be conducted
selectively each year. The grand jury shall cause a copy of
such report to be transmitted to each member of the board of
supervisors of the county. (Penal Code § 928.)
Under existing law each grand jury shall submit to the presiding
judge of the superior court a final report of its findings and
recommendations that pertain to county government matters during
the fiscal or calendar year. Final reports on any appropriate
subject may be submitted to the presiding judge of the superior
court at any time during the term of service of a grand jury. A
final report may be submitted for comment to responsible
officers, agencies, or departments, including the county board
of supervisors, when applicable, upon finding of the presiding
judge that the report is in compliance with this title. For 45
days after the end of the term, the foreperson and his or her
designees shall, upon reasonable notice, be available to clarify
the recommendations of the report. (Penal Code § 933(a).)
Under existing law one copy of each final report, together with
the responses thereto, found to be in compliance with this title
shall be placed on file with the clerk of the court and remain
on file in the office of the clerk. The clerk shall immediately
forward a true copy of the report and the responses to the State
Archivist who shall retain that report and all responses in
perpetuity. (Penal Code § 933(b).)
Under existing law no later than 90 days after the grand jury
submits a final report on the operations of any public agency
subject to its reviewing authority, the governing body of the
public agency shall comment to the presiding judge of the
superior court on the findings and recommendations pertaining to
matters under the control of the governing body, and every
elected county officer or agency head for which the grand jury
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has responsibility pursuant to Section 914.1 shall comment
within 60 days to the presiding judge of the superior court,
with an information copy sent to the board of supervisors, on
the findings and recommendations pertaining to matters under the
control of that county officer or agency head and any agency or
agencies which that officer or agency head supervises or
controls. In any city and county, the mayor shall also comment
on the findings and recommendations. All of these comments and
reports shall forthwith be submitted to the presiding judge of
the superior court who impaneled the grand jury. A copy of all
responses to grand jury reports shall be placed on file with the
clerk of the public agency and the office of the county clerk,
or the mayor when applicable, and
shall remain on file in those offices. One copy shall be placed
on file with the applicable grand jury final report by, and in
the control of the currently impaneled grand jury, where it
shall be
maintained for a minimum of five years. (Penal Code § 933(c).)
Under existing law for purposes of subdivision (b) of Section
933, as to each grand jury finding, the responding person or
entity shall indicate one of the following:
(1) The respondent agrees with the finding.
(2) The respondent disagrees wholly or partially with the
finding, in which case the response shall specify the
portion of the finding that is disputed and shall include
an explanation of the reasons therefor.
(Penal Code § 933.05(a).)
Under existing law for purposes of subdivision (b) of Section
933, as to each grand jury recommendation, the responding person
or entity shall report one of the following actions:
(1) The recommendation has been implemented, with a summary
regarding the implemented action.
(2) The recommendation has not yet been implemented, but
will be implemented in the future, with a timeframe for
implementation.
(3) The recommendation requires further analysis, with an
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explanation and the scope and parameters of an analysis or
study, and a timeframe for the matter to be prepared for
discussion by the officer or head of the agency or
department being investigated or reviewed, including the
governing body of the public agency when applicable. This
timeframe shall not exceed six months from the date of
publication of the grand jury report.
(4) The recommendation will not be implemented because it
is not warranted or is not reasonable, with an explanation
therefor.
(Penal Code § 933.05(b).)
Under existing law if a finding or recommendation of the grand
jury addresses budgetary or personnel matters of a county agency
or department headed by an elected officer, both the agency or
department head and the board of supervisors shall respond if
requested by the grand jury, but the response of the board of
supervisors shall address only those budgetary or personnel
matters over which it has some decision-making authority. The
response of the elected agency or department head shall address
all aspects of the findings or recommendations affecting his or
her agency or department. (Penal Code § 933.05(c).)
Under existing law a grand jury may request a subject person or
entity to come before the grand jury for the purpose of reading
and discussing the findings of the grand jury report that
relates to that person or entity in order to verify the accuracy
of the findings prior to their release. (Penal Code § 933.05
(d).)
Existing law requires that, during an investigation, the grand
jury meet with the subject of that investigation regarding the
investigation, unless the court, either on its own determination
or upon request of the foreperson of the grand jury, determines
that such a meeting would be
detrimental. (Penal Code § 933.05 (e).)
Existing law requires a grand jury to provide to the affected
agency a copy of the portion of the grand jury report relating
to that person or entity two working days prior to its public
release and after the approval of the presiding judge. No
officer, agency, department, or governing body of a public
agency shall disclose any contents of the report prior to the
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public release of the final report. (Penal Code § 933.05 (f).)
Existing law creates the Ralph M. Brown Act which requires, with
specified exceptions, that all meetings of a legislative body of
a local agency, as those terms are defined, be open and public
and that all persons be permitted to attend and participate.
(Chapter 9 (commencing with Section 54950) of Part 1 of Division
2 of Title 5 of the Government Code.)
This bill would delete the authority of a grand jury to request
a subject person or entity to come before it for purposes of
reading and discussing the findings of a grand jury report. The
bill would instead require a grand jury to conduct at least one
exit interview of an official or other responsible
representative of each entity to which recommendations will be
directed in a final grand jury report. The bill would authorize
the grand jury, with the court's approval, to provide to the
exit interviewee a copy of the draft findings related to that
entity and would allow the subject entity to provide written
comments to the grand jury concerning the draft findings within
a time to be determined by the grand jury, but at least five
working days after providing the draft findings to the exit
interviewee. The bill would require any draft findings given to
the exit interviewee to remain confidential, would prohibit
those findings from being distributed to anyone outside the
entity prior to or after the release of the final report, and
would prohibit the exit interviewee and any board, officer,
employee, or agent of the entity from publicly revealing any
other information obtained during the exit interview prior to
the public release of the report.
This bill would require a grand jury to provide to the affected
entity a copy of the portion of the grand jury report relating
to that person or entity no later than six working days prior to
its public release and after the approval of the presiding
judge. The bill would authorize the subject person or entity to
submit a preliminary response on behalf of the affected entity
to the presiding judge of the superior court who impaneled the
grand jury, with a copy of that preliminary response submitted
to the grand jury, no later than six working days after receipt
of a copy of the grand jury final report by the affected agency.
The bill would require the grand jury to release, when the
final report is publicly released, a copy of any preliminary
response that relates to the final report either by posting the
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preliminary response on an Internet Web site or by electronic
transmission with the final report, as specified.
This bill would authorize the governing body of an affected
entity to meet in closed session to discuss and prepare written
comments of the affected entity to the confidential draft
findings and the facts related to those confidential draft
findings of the grand jury report submitted to the entity by the
grand jury pursuant to the provisions described above. The bill
would also authorize the governing body of an affected entity to
meet in closed session to discuss and prepare a written
preliminary response to a grand jury final report submitted to
the entity by the grand jury pursuant to the provisions
described above. The bill would require, if a legislative body
of a local agency meets to discuss the final report of the grand
jury at either a regular or special meeting after the public
release of a grand jury final report, the legislative body to do
so in a meeting conducted pursuant to the Ralph M. Brown Act
unless exempted from this requirement by some other provision of
law.
This bill would make its provisions operative beginning July 1,
2017.
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.
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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
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
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1.Need for This Bill
According to the author:
Civil grand juries serve as a watchdog over local
governments. Each of California's 58 counties has its own
independent grand jury, made up of community volunteers.
They are charged with performing investigations of local
government agencies, which include city, county and special
district governments. At the conclusion of their
investigations, the grand juries publically release reports
detailing their findings and making recommendations for the
subjects of their investigation. These reports provide
necessary information for the public to hold their local
governments accountable.
While the majority of grand jury reports are accurate,
occasionally there are reports that are made public that
contain false or inaccurate information. Such reports are
a disservice to the public, and are liable to undermine the
credibility of an important grand jury system. SB 1292
promotes the integrity of the grand jury system and assists
the grand jury in increasing the accuracy of their
publically released reports, while maintaining the
fundamental principles of the civil grand jury as an
independent watchdog.
SB 1292 will ensure that every grand jury has met with the
subject of its reports, and give the public the benefit of
seeing how its local governments respond to the reports at
the time they are issued. The people are best served by a
thorough process, and should know what their governments
have to say about it.
2.Grand Juries in California
The California Supreme Court summarized the statutory scheme
which regulates the grand jury process:
Each county must have at least one grand jury drawn and
impaneled every year. (§ 905; see Cal. Const., art. I, §
23.) The grand jury consists of "the required number of
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persons returned from the citizens of the county before a
court of competent jurisdiction," and sworn to inquire into
both "public offenses" within the county and "county
matters of civil concern." (§ 888; see § 888.2 [specifying
"required number" of grand jurors based on county size];
see also §§ 904.4-904.8 [authorizing "additional" grand
juries depending on county size].) This general authority
over both criminal and civil matters involves three
functions: (1) weighing criminal charges and deciding
whether to present indictments (§ 917), (2) evaluating
misconduct claims against public officials and deciding
whether to formally seek their removal from office (§ 922),
and (3) acting as the public's "watchdog" by investigating
and reporting upon local government affairs. (§§ 919-921,
925 et seq.; see McClatchy Newspapers v. Superior Court
(1988) 44 Cal.3d 1162, 1170 [245 Cal. Rptr. 774, 751 P.2d
1329] (McClatchy).) In counties with a single grand jury,
that one body performs all three functions. (See 76
Ops.Cal.Atty.Gen. 181, 182 (1993) [concluding that any
additional grand jury authorized by statute is restricted
to criminal matters and may not perform civil oversight
functions].)
In California, unlike other jurisdictions, the grand jury
most often plays the civil oversight role. (McClatchy,
supra, 44 Cal.3d 1162, 1170; see 1973 Grand Jury, supra, 13
Cal.3d 430, 436, fn. 4 [distinguishing federal grand juries
insofar as they do not report on public affairs].) Many
statutes identify specific topics of inquiry. In
performing its functions, the grand jury operates in
secret. (E.g., §§ 915, 924.2, 939; see § 911 [oath].) It
may [730] retain auditors, appraisers and other experts
(§ 926), and has subpoena power (§ 939.2; see § 921 [access
to public records]). At the end of its term, the grand jury
must issue a final report to the presiding judge of the
superior court (§ 933, subd. (a)), documenting all findings
therein. (§ 916; see 1973 Grand Jury, supra, 13 Cal.3d 430,
434 [interim report].)
(People v. Garcia, 52 Cal. 4th 706, at 729-30 (2011).)
3. Effect of This Bill
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As stated above, in California, unlike some other American
jurisdictions, the grand jury is a citizen "watchdog" group
investigating and reporting on activities of local government.
There are a number of local entities that can be investigated by
a civil grand jury, including cities, counties, special
districts, and an unknown number of elected officials. The
California Supreme Court has confirmed the independence of the
grand jury and the inherent value of its final report: "The
modern final report, containing the grand jury's findings and
recommendations on the subject of its investigations is the
normal end product of its watchdog functions and is the only
formal means by which the grand jury can hope to effectuate its
recommendations." (McClatchy Newspapers v. Superior Court, 44
Cal. 3d 1162, 1171-72 (1988).)
This bill changes procedures relating to a local entities
involvement in the final report of the grand jury.
Specifically, according to the sponsors and the author of this
legislation, Senate Bill 1292 will:
1. Require each grand jury to hold an exit interview
with the subject of their investigations to discuss the
findings of the report.
2. Afford grand juries with the option of providing a
draft of their findings to the subject of the report in
order to receive initial comments on the draft.
3. Grant the subject of an investigation the option to
provide comments on the report that
will be released and posted with the grand jury report at
the time it is made publically available.
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