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.
                                          


                                      -- END -





          










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