BILL ANALYSIS �
AB 622
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Date of Hearing: May 11, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 622 (Dickinson) - As Amended: March 30, 2011
Policy Committee: JudiciaryVote:6-4
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill reforms the state's civil grand jury system by opening
proceedings to the public under specified circumstances,
permitting certain witnesses to be accompanied by counsel, and
requiring the grand jury to meet with the head of the department
being investigated prior to issuing its final report.
Specifically, this bill:
1)Requires a civil grand jury to meet with the chief executive
or department head of an agency subject to its investigation
at least 45 days before issuing its final report to discuss
the nature of the investigation and receive input.
2)Requires that a grand jury session in which testimony under
oath is heard be open to the public, but permits the grand
jury and the attorney general or district attorney to make a
joint written request, subject to approval by the presiding
judge of the superior court, for grand jury sessions to be
conducted in private.
3)Allows a witness before a civil grand jury proceeding who is
called to give testimony under oath to have an attorney
present. The witness may confer with their attorney provided
that the attorney does not object or speak during the
proceeding or disclose anything heard in the grand jury room
and does not represent more than one witness in the same
proceeding.
FISCAL EFFECT
Costs are unknown and would vary from county to county, but
would easily exceed $150,000 statewide.
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1)Courts . The Administrative Office of the Courts (AOC), based
on a sample survey of county courts, indicates that most
respondents reported that space currently used for the civil
grand jury could not accommodate a public hearing. (This space
typically accommodates only grand jury members and court and
county officials involved in the proceedings.) Most of the
courts also responded that they do not have additional space
in courthouses to accommodate the public sessions. The AOC
further contends that the cost to provide meeting space for a
civil grand jury is not a court cost, but a county cost.
Finally, if courthouse space were to be used, this would occur
outside of normal business hours, which could result in
additional costs to the county for security. Some courts could
incur additional staff costs related to the public hearings,
and all courts could incur minor additional costs related to
processing requests for civil grand jury proceedings to be
held in private.
2)Counties . As discussed above, counties would incur
state-reimbursable costs to the extent they have to procure
meeting space specifically for public grand jury proceedings
and for additional staff resources in support of these
hearings, including security, particularly if the sessions are
held outside normal business hours. Each county would likely
incur some one-time cost to implement the new procedures of
this bill. At the time of this analysis, no specific
information was available from counties regarding these
potential costs.
3)Agency Meetings . The time necessary for a county, city, school
or community college district, or special district agency
executive to attend the required meeting with the civil grand
jury would be state reimbursable.
In summary, the annual statewide costs (mostly reimbursable)
would likely be several hundred thousand dollars at a minimum.
COMMENTS
1)Background . The grand jury system was originally designed in
twelfth century England as a citizen's body to guard against
abuses by the crown. The grand jury, and the philosophy
underpinning its creation, was later adopted in the American
colonies as a check on general governmental oppression and
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corruption. The tradition was firmly rooted in American legal
culture with the adoption of the Bill of Rights, where the
requirement of grand jury indictment was embodied in the 5th
Amendment to the United States Constitution.
The civil functions of the grand jury have been an integral
part of the legal and governmental machinery of California
since the state's inception, with California's first
constitution requiring that "grand juries shall be drawn and
summoned at least once a year in each county." While the
California Constitution provides for the formation of the
grand jury, the specific rights and powers afforded to the
grand jury are governed by various statutes. Legislation
enacted in 1880 extended the original constitutional mandate
to include the express authority to investigate corruption in
county and city governments as well as special districts.
Traditionally, grand jury proceedings have been held in secret
because policymakers have been concerned that making them
public might hamstring the investigative powers of the grand
jury by scaring away potential whistleblowers, and
discouraging those who do come forward from giving full and
frank testimony. The practice of grand jury secrecy dates as
far back as the fourteenth century.
2)Purpose . The author introduced this bill "to bring a small
measure of transparency �and fairness] to the grand jury
process . . . thereby promoting accuracy and thoroughness in
grand jury proceedings." The author believes secrecy in these
proceedings has substantial risks, stating that this practice
has "?led to allegations varying from relatively benign such
as juror ineptitude to much more serious, such as politically
motivated animus toward the target of the investigation."
a) Agency Meeting . Existing law permits, but does not
require, a grand jury to request a person or agency subject
to investigation to come before it for the purpose of
reading and discussing the findings of the grand jury
report, and to verify the accuracy of the findings prior to
its release. AB 622 would require such a meeting. The
California State Association of Counties (CSAC), writing in
support of an earlier measure containing this provision,
expressed concern about the frequency of grand jury reports
that contain either misinformation or are somehow unclear
in their final recommendation. CSAC argued that, in the
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interest of a well-balanced report, it makes sense to
require the grand jury to meet with the subject of the
investigation in order to check facts and receive comments
from the person or agency prior to issuing a final report.
The author of AB 622 contends that this measure will
prevent errors and factual mistakes in the final report,
and will increase the potential that the final
recommendations of the grand jury can be implemented,
thereby "promoting accuracy and thoroughness in grand jury
proceedings."
b) Open Proceedings . This bill requires a grand jury
session in which testimony under oath is heard be open to
the public, but provides a mechanism by which a grand jury
could make the proceedings private when necessary. In
support of this provision, the author notes, "If testimony
is presented in public, it will give others notice of the
testimony so that errors or inaccuracies can be corrected
or contrary views can be offered to the grand jury. It
will also contribute to preventing grand jurors from
questioning a witness unfairly or incompletely."
c) Witness' Right to Counsel . AB 622 also allows a witness
before a civil grand jury proceeding who is or becomes the
subject of a grand jury investigation to have an attorney
present under specified conditions during their testimony.
Proponents contend that, in the absence of having counsel
present, an uninformed witness may inadvertently waive his
or her essential rights, or may hesitate to testify
entirely because of fear of being without guidance. While
the attorney for a witness is currently prohibited from
being present during a client's testimony, witnesses before
the grand jury do have a right to confer with counsel
during the proceedings. The counsel waits outside the
hearing room, and the witness is permitted to leave the
room at any time and confer with their counsel. In
commenting on this practice, the author states, "Often the
witness will have retained counsel, but counsel must remain
outside the room resulting in an almost comedic routine of
the jurors asking a question, the witness leaving the room
to consult with counsel, and then returning to answer the
question." Twenty-one other states allow some witnesses to
have counsel present during grand jury proceedings.
3)Opposition . The California District Attorneys Association
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(CDAA) argues that opening grand jury proceedings to the
public and allowing witnesses to have counsel present would
impede the investigatory nature of the grand jury proceeding.
CDAA contends that opening the investigation to the public
makes it difficult for witnesses to be willing to come forward
and could potentially inhibit a witness from giving candid
testimony. As such, opponents assert that this measure may
have an unintended chilling effect on the testimony received,
and consequently diminish the resultant effectiveness of the
grand jury investigation.
CDAA further argues permitting witnesses to have counsel
present while giving testimony under oath would be a major
departure from existing practices, writing, "this change, even
though it is limited to situations in which a person is giving
testimony under oath to a civil grand jury, deviates from the
long-standing way in which grand juries have operated and is
unnecessary."
The California Grand Jurors' Association (CGJA) also writes in
opposition, noting that opening civil grand jury proceedings
to the public "would gut the power of the grand jury to
investigate possible misconduct by local public officials.
Requiring the examination of witnesses in public and in the
glaring lights of TV cameras will have the immediate effect of
chasing off 'whistle blowers' who fear the possibility of
retaliation." CGJA maintains that existing protections
provide sufficient opportunity for public access to grand jury
proceedings while maintaining the confidentiality of the grand
jury's watchdog functions.
4)Prior Legislation . In 2000, AB 527 (Baugh), which authorized
any witness before a grand jury who is or becomes the subject
of a grand jury investigation that may result in an
indictment, or in an accusation for willful or corrupt
misconduct in office, to have counsel present on their behalf
while they are testifying, was vetoed by Governor Davis.
In 1997, AB 829 (Thomson), as it passed in the Assembly,
required a civil grand jury to meet with the chief executive
or department head of an agency subject to its investigation
prior to issuing a final report. This bill was subsequently
amended in the Senate to address another court-related
subject.
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Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081