BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 622|
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THIRD READING
Bill No: AB 622
Author: Dickinson (D)
Amended: 9/1/11 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 7/5/11
AYES: Evans, Corbett, Leno
NOES: Harman, Blakeslee
SENATE APPROPRIATIONS COMMITTEE : 5-4, 8/25/11
AYES: Kehoe, Alquist, Pavley, Price, Steinberg
NOES: Walters, Emmerson, Lieu, Runner
ASSEMBLY FLOOR : 66-8, 6/1/11 - See last page for vote
SUBJECT : Civil grand juries
SOURCE : Author
DIGEST : This bill, until January 1, 2017, permits any
witness called to testify before a civil grand jury to have
counsel present on his/her behalf while giving sworn
testimony, except as provided.
Senate Floor Amendments of 9/1/11 removes prohibition of
counsel representing more than one witness.
ANALYSIS : Existing law provides that one or more grand
juries shall be drawn and summoned at least once a year in
each county. (California Constitution Article I, Section
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23; Penal Code Section 905.)
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. (Penal Code
Section 888.)
Existing law requires the grand jury to investigate and
report on the operations, accounts, and records of
officers, departments, or functions of the county or
district, as specified. (Penal Code Section 925.)
Existing law requires the court to, in consultation with
the district attorney, the county counsel, and at least one
former grand juror, ensure that a grand jury which
considers or takes action on civil matters receives
training that addresses, at a minimum, report writing,
interviews, and the scope of the grand jury's
responsibility and statutory authority. (Penal Code
Section 914(b).)
Existing law allows, as to any matter not subject to
privilege, with the approval of the presiding judge of the
superior court or supervising judge, a grand jury to make
available to the public part or all of the evidentiary
material, findings, and other information relied upon by,
or presented to, a grand jury for its final report in any
civil grand jury investigation, provided that the name of
any person, or facts that lead to the identity of any
person who provided information to the grand jury is not
released. (Penal Code Section 929.)
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.
Existing law also provides that a final report may be
submitted for comment to responsible officers, agencies, or
departments, including the county board of supervisors,
when applicable, upon the presiding judge's approval of the
report, as specified. For 45 days after the end of the
term, the foreperson and his/her designees, upon reasonable
notice, must be available to clarify the recommendations of
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the report. (Penal Code Section 933(a).)
Existing law requires that:
That the governing body of any public agency subject to
the reviewing authority of the grand jury comment to the
presiding judge on the findings and recommendations
pertaining to matters under its control, no later than 90
days after the grand jury submits a final report on the
operations of that public agency.
Every elected county officer or agency head must comment
to the presiding judge on the findings and
recommendations pertaining to matters under the control
of that county officer or agency head and any agency and
agencies which he or she supervisors or controls within
60 days. (Penal Code Section 933(c).)
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 Section 933.05(e).)
Existing law requires that, a grand jury shall 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. Existing law also prohibits any officer,
agency, department, or governing body of a public agency
from disclosing any contents of the report prior to the
public release of the final report. (Penal Code Section
933.05(f).)
This bill permits any witness who is called to give
testimony under oath before a civil grand jury to have
counsel present on his/her behalf while testifying.
This bill provides that counsel present before the grand
jury:
Shall not object to any questions asked of the witness or
otherwise speak to the grand jury, but may advise the
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witness during the course of examination.
Shall not disclose or use anything heard in the grand
jury room other than in the representation of the witness
he/she represents.
This bill clarifies that nothing in the section shall be
construed to grant a witness a constitutional right to
counsel under the United States or California
Constitutions, nor grant any discovery right for the
subpoenaed witness.
This bill provides that a violation of the above provisions
by counsel is a violation of the Rules of Professional
Conduct and may be reported to the State Bar of California.
The provisions of this bill sunset on January 1, 2017.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 9/1/11)
California Association of Public Authorities for In-Home
Supportive
Services
California State Association of Counties
OPPOSITION : (Verified 9/1/11)
Adam Hill, Supervisor, District Three of San Luis Obispo
County
Bill Dodd, Supervisor, Napa County Board of Supervisors
California District Attorneys Association
California Grand Juries Association
ARGUMENTS IN SUPPORT : According to the author, "This
bill would bring accountability and accuracy to written
grand jury reports by requiring the grand jury to meet with
the head of a targeted agency or department for review of a
report for accurate facts. This bill would also allow . .
. witnesses permission to have counsel present during their
testimony to a grand jury performing its civil
investigative function.
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"California has had grand juries since the state's
inception, stating that 'grand juries shall be drawn and
summoned at least once a year in each county.' �Footnote
omitted.] There are many examples of grand juries over the
last 150 years effectively uncovering waste, fraud and
abuse in local jurisdictions. However, there is also
considerable criticism of the grand jury system. Critics
decry juror ineptitute, politically motivated jurors and
abuse of the considerable power that grand juries possess.
Additionally, the recommendations of the grand jury are
often ignored or not implemented because they are
impractical, infeasible, unaffordable, or simply based on
completely fabricated facts. . . .
"Historically, grand juries operate entirely in secret,
with all parties barred from any public discussion of the
grand jury's actions. The only information that the public
may glean from a grand jury investigation is a written
report that may be issued at the end of an investigation
containing recommendations.
"Current law does not allow any witness, including the
target of an investigation, to have counsel present during
their testimony to the grand jury. 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."
ARGUMENTS IN OPPOSITION : The California District
Attorneys Association (CDAA), in opposition to this bill,
states that, "�w]e acknowledge and appreciate that
amendments have been taken to remove the provision that
required civil grand jury proceedings to be open to the
public. However, CDAA must remain opposed given the
retention of the language that permits a person to have
counsel present while testifying. We feel this change,
though limited to situations in which a person is giving
testimony under oath to a civil grand jury, deviates from
the longstanding method in which grand juries have operated
and is unnecessary. Also, we are concerned that such a
change to the civil grand jury system would be used to
bootstrap a similar change to the criminal grand jury
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system in the future."
Also in opposition, the California Grand Juries Association
remarks that, "Other sections of existing law are
inconsistent with allowing presence of attorneys in grand
jury proceedings. Section 934 prohibits the presence of
even the judge or county counsel as to civil matters at
grand jury sessions unless the grand jury asks for advice.
Grand jurors take an oath not to disclose any evidence
brought before the grand jury (section 911). Existing
statutes also prohibit and criminalize such disclosure of
evidence (sections 924.1 and 924.2)�.] There has been no
attempt to reconcile these prohibits with authorizing
attorneys to be present grand jury sessions . . .
"The overwhelming number of witnesses interviewed by a
grand jury will be county (and other local government)
employees concerning their official duties. Accordingly,
section 939.22 would add a major burden to the offices of
county counsel to represent these employees at their
interviews. The cost of this additional burden would be
substantial. County counsel representation of witnesses
before a grand jury would also constitute a conflict of
interest since county counsel also represents the grand
jury. . . .
"Aside from the expense and potential disruption,
attorneys' presence t grand jury interviews will clearly
compromise a grand jury's ability to work confidentially
and may transform interviews into adversarial hearings. .
. . �The author] says he is trying to avoid having
attorneys have to sit outside the jury room to answer
questions from a witness during the interview. But in our
experience with grand juries throughout the State, this
circumstance rarely exists in actuality."
ASSEMBLY FLOOR : 66-8, 6/1/11
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Butler, Charles Calderon, Campos, Carter,
Cedillo, Chesbro, Cook, Davis, Dickinson, Eng, Feuer,
Fletcher, Fong, Fuentes, Furutani, Beth Gaines, Galgiani,
Gatto, Gordon, Grove, Hagman, Hall, Harkey, Hayashi,
Roger Hern�ndez, Hill, Hueso, Huffman, Jones, Lara,
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Logue, Bonnie Lowenthal, Ma, Mendoza, Mitchell, Monning,
Morrell, Nestande, Norby, Olsen, Perea, Portantino,
Silva, Skinner, Smyth, Solorio, Swanson, Torres, Valadao,
Wagner, Wieckowski, Williams, Yamada, John A. P�rez
NOES: Conway, Donnelly, Halderman, Knight, Mansoor, Miller,
Nielsen, Pan
NO VOTE RECORDED: Buchanan, Garrick, Gorell, Huber,
Jeffries, V. Manuel P�rez
RJG:do 9/1/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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