BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1906 (Cook)
As Amended April 6, 2010
Hearing Date: June 15, 2010
Fiscal: Yes
Urgency: No
TW:jd
SUBJECT
Additional Grand Juries: County of San Bernardino
DESCRIPTION
This bill, sponsored by the County of San Bernardino, would
authorize the presiding judge or judge appointed to supervise
the grand jury in the County of San Bernardino to order and
direct the impanelment of an additional civil grand jury.
BACKGROUND
The functions of a county grand jury were summarized in
McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162,
1170 as follows: "The California grand jury has three basic
functions: to weigh criminal charges and determine whether
indictments should be returned [Pen. Code Sec. 917]; to weigh
allegations of misconduct against public officials and determine
whether to present formal accusations requesting their removal
from office [Pen. Code Sec. 922; Gov. Code Sec. 3060 et seq.];
and to act as the public's 'watchdog' by investigating and
reporting upon the affairs of local government [Pen. Code Secs.
919, 925 et seq.]. Of these functions, the watchdog role is by
far the one most often played by the modern grand jury in
California."
At least one grand jury is to be drawn and summoned at least
once a year in each county (Cal. Const. Art. I, Sec. 23), and
one additional grand jury may be summoned pursuant to Penal Code
Section 904.6. However, this additional grand jury may only be
a criminal grand jury. (See 76 Op. Atty. Gen. 181 (1993) (No.
93-505).) SB 2753 (Royce, Ch. 1297, Stats. 1988) specified
(more)
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that if a grand jury exists pursuant to Penal Code Section
904.6, then one grand jury must hear civil concerns.
According to the author, San Bernardino County has a great need
for the work of an additional civil grand jury, because one
civil grand jury is inadequate. The Legislature has a history
of enacting statutes authorizing specific counties to impanel
additional grand juries. In 1972, Ventura County was authorized
to impanel an additional grand jury under Penal Code Section
904.7; this statute was repealed by its own terms in 1976. In
1976, San Mateo County (Pen. Code Sec. 904.7), Contra Costa
County (Pen. Code Sec. 904.8), and Marin County (Pen Code Sec.
904.9) each were authorized to impanel an additional grand jury.
These statutes were repealed by AB 607 (Cannella, Ch. 464,
Stats. 1991), which authorized all counties to impanel one
additional grand jury. (Pen. Code Sec. 904.6.) In 1993, the
Attorney General clarified that this additional grand jury can
only hear criminal cases. (See 76 Op. Atty. Gen. 181 (1993)
(No. 93-505).) SB 796 (Runner, Ch. 82, Stats. 2007) authorized
superior court judges in Los Angeles County to impanel
additional juries, creating a maximum of three juries in order
to alleviate the overburdening of the existing grand jury. On
the other hand, AB 1854 (Garrick, 2008), a bill that would have
authorized San Diego County to appoint an additional grand jury,
died in the Senate Public Safety Committee.
This bill would authorize San Bernardino County to impanel one
additional civil grand jury for a term determined by the
presiding judge or judge appointed by the presiding judge to
supervise the civil grand jury. Additionally, this bill would
provide a limitation on such civil grand juries so that only one
additional grand jury would be impaneled at any given time.
CHANGES TO EXISTING LAW
Existing law provides that one or more grand juries shall be
drawn and summoned at least once a year in each county. (Cal.
Const. Art. I, Sec. 23; Pen. Code Sec. 905.)
Existing law defines "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 of
public offenses committed or triable in the county. (Pen. Code
Sec. 888.)
Existing law states that as used in connection with the term
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grand jury, the "required number" means 23 in a county having a
population exceeding four million; 11 in a county having a
population of 20,000 or less, on approval of the board of
supervisors; and 19 in all other counties. (Pen. Code Sec.
888.2.)
Existing law states that in any county having a population of
more than 370,000 but less than 400,000, as established by the
Government Code, the presiding judge of the superior court, upon
application by the district attorney, may order and direct the
drawing and impanelment at any time of one additional grand
jury. (Pen. Code Sec. 904.4(a).)
Existing law provides that the presiding judge may select
persons at random from the list of trial jurors in civil and
criminal cases and shall examine them to determine if they are
competent to serve as grand jurors. When a sufficient number of
competent persons have been selected, they shall constitute the
additional grand jury. (Pen. Code Sec. 904.4(b).)
Existing law states that in no event shall more than one
additional grand jury be impaneled pursuant to this section at
the same time. (Pen. Code Sec. 904.4(b).)
Existing law states that if an additional grand jury is also
authorized by another section, the county may impanel the
additional grand jury authorized by this section, or by the
other section, but not both. (Pen. Code Sec. 904.4(e).)
Existing law provides that in any county, or city and county,
the presiding judge of the superior court, or the judge
appointed by the presiding judge to supervise the grand jury
may, upon the request of the AG or the district attorney, or
upon his or her own motion, order and direct the impanelment of
one additional grand jury, which can only hear criminal cases.
(Pen. Code Sec. 904.6(a); 76 Op. Atty. Gen. 181 (1993) (No.
93-505).)
Existing law provides that each grand jury, or, if more than one
has been duly impaneled as specified, one grand jury in each
county shall be charged and sworn to investigate or inquire into
county matters of civil concern, such as the needs of county
officers or the performing of the duties of the agencies subject
to investigation. (Pen. Code Sec. 888.)
Existing law provides that whenever an additional grand jury is
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impaneled pursuant to this section, it shall inquire into any
matters that are subject to grand jury inquiry and shall have
the sole and exclusive jurisdiction to return indictments,
except for any matters that the regular grand jury is inquiring
into at the time of its impanelment. (Pen. Code Sec. 909.4(d).)
Existing law states that, to assist the grand jury in the
performance of its statutory duties regarding civil matters, the
court, in consultation with the district attorney, the county
counsel, and at least one former grand juror, shall ensure that
a grand jury that considers or takes action on civil matters
receives training that at a minimum addresses, report writing,
interviews, and the scope of the grand jury's responsibility and
statutory authority. (Pen. Code Sec. 914(b).)
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. (Pen. Code Sec. 917.)
Existing law states that the grand jury shall inquire into the
condition and management of the public prisons within the county
and shall inquire into the willful or corrupt misconduct in
office of public officers of every description within the
county. (Pen. Code Sec. 919(b) and (c).)
Existing law provides that the grand jury shall investigate and
report on the operations, accounts, and records of the officers,
departments, or functions of the county or of any special
legislative district or other district in the county created
pursuant to state law, as specified. Allows the investigations
to be conducted on a selective basis each year, but states that
the grand jury may not duplicate any examination of financial
records that has been performed for the board of supervisors, as
specified. Allows the grand jury to enter into a joint contract
with the board of supervisors to employ the services of an
expert, as specified and approved by the court. (Pen. Code
Secs. 925 and 926.)
Existing law requires each grand jury to 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. (Pen. Code Sec. 933(a).)
Existing law establishes special procedures for a county with a
population of 20,000 persons or less with respect to the
submission of a final grand jury report by a grand jury with
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fewer than 12 remaining grand jurors. (Pen. Code Sec.
933.06(a).)
Existing law states that all expenses of the grand jurors shall
be paid by the county treasurer out of the county's general
fund. (Pen. Code Sec. 931.)
This bill would authorize the County of San Bernardino to
impanel an additional civil grand jury.
This bill would authorize the presiding judge or the judge
appointed by the presiding judge to supervise the civil grand
jury and discharge the grand jury at any time within the set
term.
This bill would provide that no more than one additional civil
grand jury could be impaneled at the same time.
This bill would authorize the civil grand jury to inquire into
matters of oversight, conduct investigations, issue reports, and
make recommendations, but shall not have any jurisdiction to
issue indictments.
COMMENT
1. Stated need for the bill
The author writes:
Grand Juries can examine city governments, city redevelopment
agencies, special districts, and other local government
entities as well. However, most Grand Juries are so pressed
for time they do not stray farther than the steps of county
government, which prohibits other local entities from reaping
the benefits of the grand jury's recommendation. . . . The
heavy caseload in San Bernardino necessitates the ability to
impanel an additional Civil Grand Jury when deemed
appropriate. Increasing the number of Grand Juries will
increase the capability to conduct thorough investigations
into civil . . . proceedings as it has done for Los Angeles
County. . . . Alternatives, such as establishing an Ethics
Commission, are much more expensive and infeasible during this
time of strained budgets. AB 1906 provides the best solution
to a difficult problem.
The bill's sponsor, the County of San Bernardino, argues that
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"[t]he grand jury is charged with the distinguished and arduous
role of 'watchdog' of public office, with the potential to
uncover substantive opportunities for improvements in public
operations each year. Grand jury responsibilities associated
with overseeing San Bernardino county, the largest geographical
county, with 18,000 employees and two million residents, is
difficult under current conditions. Foremen of recent grand
juries have described their involvedness as 'impossible to do a
thorough investigation of this massive operation,' 'laborious
and exhaustive' and requiring time spent during 'evenings and
off-days.' "
2. Civil grand juries serve beneficial public function
This bill, as amended, would authorize San Bernardino County
(the County) to impanel an additional civil grand jury. A civil
grand jury is particularly useful to the public since the
majority of cases brought before it pertain either to
allegations of misconduct against public officials and
investigating and reporting upon affairs of local government.
By providing for an additional civil grand jury, as needed, each
civil grand jury will have more time to devote to each case and
ultimately be more successful in its investigation.
3. Civil grand juries do not suffer from the same potential
problems as criminal grand juries
Prior to being amended, this bill would have allowed the County
to impanel either an additional civil or an additional criminal
grand jury. The bill as introduced would have suffered from the
same procedural issues as AB 1854 (Garrick, 2008), a measure
brought by the San Diego County District Attorney. Opponents of
AB 1854 argued that creating an additional criminal grand jury
would give criminal prosecutors wide latitude to utilize the
secretive functions of criminal grand juries and deny
Constitutional rights to defendants. In criminal grand juries,
defendants are not allowed to attend the grand jury and are
therefore unable to confront witnesses or challenge evidence.
Criminal grand juries are designed for use in exceptional cases,
with most criminal cases being processed through preliminary
hearings. Since the bill now would authorize only an additional
civil grand jury, the bill does not suffer the same faults as AB
1854.
4. San Bernardino County has no other grand jury resource
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As required by Penal Code Sections 888 and 905, the County has
one grand jury that hears civil matters. However, the same
grand jury also hears criminal matters. The County states that
they do not desire to impanel a criminal grand jury as
authorized by Penal Code Section 904.6 because impaneling a
criminal grand jury is labor extensive and costly as it requires
countywide summons with a jury pool of 200 to 300 panelists.
For this reason, the County impanels a criminal grand jury on an
as needed basis. According to the sponsor, in 2009, the grand
jury hearing criminal matters was in session for 60 days.
However, the number of days for these types of proceedings
varies from year to year depending on whether or not the
district attorney's office proceeds by way of indictment as
opposed to preliminary hearing.
The County states that it has substantially more civil matters
than criminal. The large civil case load has prohibited other
local agencies such as cities, redevelopment agencies, and
school districts from effectively utilizing the civil grand jury
process. More cases would be brought for review by the civil
grand jury than are currently heard but for the overwhelming
caseload of the civil grand jury. The County argues that the
whole reason for civil grand jury review of potential agency
misconduct is being thwarted because the one civil grand jury is
overloaded and unable to investigate all of the cases. Thus,
the County states it does not need to impanel an additional
criminal grand jury pursuant to Penal Code Section 904.6.
Given that there is no other provision through which San
Bernardino could impanel a civil grand jury, this bill would
alleviate that county's overburdened grand jury by authorizing
San Bernardino to impanel an additional civil grand jury.
Support : None Known
Opposition : None Known
HISTORY
Source : County of San Bernardino
Related Pending Legislation : None Known
Prior Legislation : See Background.
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Prior Vote :
Assembly Public Safety Committee (Ayes 7, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Floor (Ayes 69, Noes 1)
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