BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1133 (Silva)
As Amended: March 21, 2011
Hearing Date: June 7, 2011
Fiscal: No
Urgency: No
RD
SUBJECT
Grand Jurors: Conflict of Interest
DESCRIPTION
This bill would require a grand juror who is an employee of, or
who was employed within the prior three years by, an agency
within the civil grand jury's investigative jurisdiction to
inform the foreperson and court of that fact and require the
grand juror to recuse himself or herself from participating in
any grand jury civil investigation of that agency.
BACKGROUND
The California Constitution requires each county to draw and
summon at least one grand jury a year. (Cal. Const. Art. I,
Sec. 23.) Grand juries are bodies comprised of a certain number
of citizens of the county sworn to inquire of public offenses
committed or triable in the county, and may be both criminal and
civil. (Pen. Code Sec. 888.) The functions of a county grand
jury were broadly 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; to weigh
allegations of misconduct against public officials and determine
whether to present formal accusations requesting their removal
from office; and to act as the public's 'watchdog' by
investigating and reporting upon the affairs of local
government. Of these functions, the watchdog role is by far the
one most often played by the modern grand jury in California."
In this latter role, grand juries have a duty to inquire into
(more)
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"county matters of civil concern," and thereby have the
authority to inquire about unindicted prisoners, to investigate
county prisons, and the willful or corrupt misconduct in office
of public officers within the county; the authority to
investigate ownership, transfer, or sale of real property; the
authority to investigate the operations, accounts and records of
county officers, departments, or functions; and the authority to
investigate the books and records of cities or joint powers
agencies. (Pen. Code Secs. 919, 920, 925, 925(a).) After such
civil investigations, and upon approval of the judge, the grand
jury may release its findings, in the form of a final report, to
the public. (Pen. Code Sec. 929.)
California state law requires that a person meet minimum
qualifications in order to serve on a grand jury, including that
he or she: be at least eighteen years old; be a United States
citizen; have lived in the county where the grand jury is being
impaneled for at least a year prior to serving as a grand juror;
be in possession of his or her natural faculties, of ordinary
intelligence, and of sound judgment and fair character; and have
sufficient knowledge of the English language. (Pen. Code Sec.
893(a).) State law also sets forth circumstances under which a
person is deemed not competent to act as a grand juror: the
person is serving as a trial juror in any court of the state;
has been discharged as a grand juror in the state within one
year; has been convicted of malfeasance in office or any felony
or other high crime; or is serving as an elected officer. (Pen.
Code Sec. 893(b).) Furthermore, California law provides for
specific exemptions and excuses under which a person may be
relieved from liability to serve as a grand juror. (Pen. Code
Sec. 894; see Code of Civ. Proc. Secs. 204, 218, and 219.)
None of these provisions explicitly prohibit a person from
serving on a grand jury if he or she has a conflict of interest
pertaining to a subject of investigation by the civil grand
jury, though counties may have rules and regulations that govern
such situations.
Recently, in Orange County, a controversy arose as to the issue
of a potential conflict of interest on the part of one member of
the grand jury whose presence and participation "may have
tainted the entire report." (City of Santa Ana, City Council
Letter, August 16, 2010, pg. 1,
< http://www.ocgrandjury.org/pdfs/street-car/santa-ana-mayor-respo
nse.pdf > �as of June 2, 2011].) In a letter to the Presiding
Judge of the Superior Court, the City Council wrote, "That
member has been an active civic participant in Santa Ana for
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many years. He was serving as a city commissioner at the time
this investigation began and was removed from his position by
the City Council in October 2009 for reasons unrelated to this
investigation or his membership on the Grand Jury. We believe
that these along with other facts are sufficient grounds for the
subject member to have been required to abstain from any
participation in this investigation." (Id.) As noted in the
letter, while many county grand juries have their own rules and
regulations, some of which address potential conflicts of
interest or bias and when to require abstention, Orange County
does not have any such rule.
The Council further noted that, "Due to grand jury secrecy, we
are not able to determine what further involvement the subject
member had in the investigation or whether he sought or obtained
advice on his participation. But merely based upon the
inconsistent and contradictory actions of the Grand Jury recited
in this letter and the standards imposed on grand juries in
other counties, the Santa Ana City Council believes that this
investigation and report are irreparably tainted by the
participation by a member with a potential conflict of interest
and potential bias." (Id. at 2.)
This bill, sponsored by the Orange County Board of Supervisors,
would provide that a person who is currently employed or was
recently employed by an agency that is under the investigative
jurisdiction of a civil grand jury must inform the foreperson
and the court of the conflict and must recuse him or herself
from participating in any grand jury civil investigation of that
agency, including any discussion or vote concerning a civil
investigation of that agency.
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 also
provides limited circumstances under which the presiding judge
of the superior court, upon application by the Attorney General
or district attorney, may order and direct the drawing and
impanelment of one additional grand jury. (Pen. Code Secs.
904.4(a), 904.6(a), 904.7(a), 904.8(a).) Existing law also
provides that if an additional grand jury is also authorized by
another section, the county may impanel the additional grand
jury authorized by the first section, or by the other section,
but not both. (Pen. Code Sec. 904.4(e).)
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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. (Pen. Code Sec. 888.)
Existing law permits a grand jury to inquire into all public
offenses committed or triable within the county and present them
to the court by indictment. (Pen. Code Sec. 917.) A grand
juror who knows or has reason to believe that a public offense,
triable within the county, has been committed, is permitted to
declare it to his fellow jurors, who may thereupon investigate
it. (Pen. Code Sec. 918.)
Existing law requires that the grand jury 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. (Pen. Code Sec. 925.)
Existing law requires a person possess each of the following
qualifications in order to be deemed competent to act as a grand
juror:
1. be a citizen of the United States of the age of 18 years or
older and have been a resident of the state and of the county
or city and county for one year immediately before being
selected and returned;
2. be in possession of his natural faculties, of ordinary
intelligence, of sound judgment, and of fair character; and
3. be possessed of sufficient knowledge of the English
language. (Pen. Code Sec. 893(a).)
Existing law provides a person is not competent to act as a
grand juror if any of the following apply:
1. the person is serving as a trial juror in any court of this
state;
2. the person has been discharged as a grand juror in any court
of this state within one year;
3. the person has been convicted of malfeasance in office or
any felony or other high crime; or
4. the person is serving as an elected public officer. (Pen.
Code Sec. 893(b).)
Existing law provides for specified exemptions and excuses which
relieve a person from having to serve as a grand juror. These
generally permit a person to be excused only if there exists an
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undue hardship or the person is a peace officer, as specified.
(Code of Civ. Proc. Secs. 204, 218, 219; Pen. Code Sec. 894.)
Existing law prohibits any challenge to an individual juror,
except as made by the court for want of qualification, as
prescribed. (Pen. Code Sec. 910.)
Existing law requires that, before considering a charge against
any person, the foreman of the grand jury state to those present
the matter to be considered and the person to be charged with an
offense in connection therewith. Existing law also requires
that the foreman direct any member of the grand jury to retire
if he or she has a state of mind in reference to the case or to
either party that will prevent him from acting impartially and
without prejudice to the substantial rights of the party to
retire. Any violation of this provision by the foreman or any
grand juror is punishable by contempt. (Pen. Code Sec. 939.5.)
Existing law provides, in part, that each grand jury shall
determine its rules of proceeding. (Pen. Code Sec. 916.)
This bill would require a grand juror who is an employee of, or
who was employed within the prior three years by, an agency
within the civil grand jury's investigative jurisdiction to
inform the foreperson and court of that fact.
This bill would also require the grand juror to recuse himself
or herself from participating in any grand jury civil
investigation of that agency, including any discussion or vote
concerning a civil investigation of that agency.
COMMENT
1. Stated need for the bill
According to the author:
There are no statutes that pertain to grand jury conflicts of
interest or bias in the context of a grand jury's civil
investigative function. Existing law has left it up to each
grand jury to adopt its own rules on how to handle such
conflicts. This bill would require a grand juror to abstain
from participating in investigations due to a conflict of
interest arising from prior or current employment.
Recently, a concern arose where grand jurors, who were former
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employees of an agency being investigated, participated in the
investigation. This created a perception that there was a
possible bias in the outcome of the investigation.
Whether the bias is founded or unfounded, it taints the
public's perception of the grand jury as a neutral, unbiased
arm of the judiciary. The addition of Section 916.2
pertaining to conflicts of interest would help alleviate some
of that concern.
2. Current law does not contain any conflict of interest
provisions with respect to civil grand jurors
This bill would create a conflict of interest rule with respect
to civil grand juries that would require a grand juror who is
employed or was employed within the prior three years by an
agency under the investigative jurisdiction of the grand jury to
recuse himself or herself from participating in that grand jury
investigation of that agency. The requirement that the juror
recuse himself or herself from participation would include any
participation in any discussion or vote concerning that agency.
Currently, there are a limited number of statutory
qualifications to serve as a grand juror. While state law also
provides the general rules and guidelines for the selection of
grand jurors (Pen. Code Sec. 852 et seq.) and for the impaneling
process (Pen. Code Sec. 904 et seq.), the specific grand juror
selection process varies by county. Some counties may also have
grand jury conflict of interest rules, while others do not. The
problem that arose in the City of Santa Ana and spurred the need
for this bill, however, arguably could arise in any county.
This bill's conflict of interest provision would create a
statewide rule that would apply to any civil grand juror, in any
county of the state, irrespective of a county's own grand jury
conflict of interest provisions (or lack thereof).
a. Competency and Excuses
The required statutory qualifications of a grand juror are
minimal, as discussed in the Background section of this
analysis. After the court finds that a person is duly
qualified to act as a grand juror, the person is considered
drawn and the court must accept that person as a juror unless
the court, on the application of the juror and before the
juror is sworn, excuses him or her from service for any of the
reasons provided for by specified sections of law. If no
exemption or excuse applies and the juror is otherwise
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competent, the juror cannot be further challenged. (Pen. Code
Secs. 909-910; Code of Civ. Proc. Secs. 204, 218, and 219.)
These provisions, in conjunction with those requiring the
secrecy of grand jurors and their proceedings (see Comment 4,
below) and the general prohibition of questioning of juror as
to their votes or discussions, except as allowed in special
specified circumstances, contribute to the difficulty of
ascertaining whether a juror has a bias or prejudice in the
investigation, absent that juror volunteering the information
him or herself. This bill would in effect deem a person
incompetent to participate in any grand jury proceedings,
including discussions and votes, in relation to an agency by
which the juror is employed or was previously employed in the
prior three years.
b. Prejudiced Jurors
There is no conflict of interest provision in state law that
directly regulates the issue which this bill aims to address.
Penal Code Section 939.5 addresses the analogous issue of
"prejudiced" jurors in criminal grand juries. That section
requires the foreperson of the grand jury state to the grand
jurors the matter to be considered and the person to be
charged with an offense in connection therewith, before
actually considering a charge against any person.
Accordingly, the foreperson must direct any member of the
grand jury to retire if he or she "has a state of mind in
reference to the case or to either party which will prevent
him from acting impartially and without prejudice to the
substantial rights of the party." Violations of this section
are punishable by the court as contempt.
Relatedly, case law interpreting Penal Code Section 918 also
speaks to the relevance of the impartiality, or lack thereof,
of a grand juror. That section allows a member of a grand
jury who knows or has reason to believe that a public offense,
triable within the county, has been committed to declare it to
his fellow jurors, who may thereupon investigate it. In
discussing a section similar to the current Section 918, the
California Supreme Court held that a grand juror who declares
his or her knowledge of a public offense cannot be present at
the investigation of that offense by his or her fellow jurors,
except in the capacity of a witness during the actual taking
of his or her testimony. (People v. Bright (1910), 157 Cal.
663, 666.)
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While neither that holding in People v. Bright, nor Section
939.5's rule with regard to potential prejudice of criminal
grand jurors is directly on point, both are analogous to this
bill in that they similarly seek to ensure the impartiality of
grand jurors in grand jury investigations. This bill
specifically seeks to address the issue of potential conflicts
of interest that arise from the current employment or recent
past employment of a grand juror by an agency subject to the
investigative jurisdiction of the civil grand jury on which he
or she serves. As the author notes, without requiring the
grand juror to make this fact known to the foreperson and the
court and to recuse himself or herself from participating in
any investigation of that agency as this bill would do, there
arises a perception of bias in the outcome of the decision
when that conflict is later discovered by the public.
Moreover, it is possible that at least in some cases, the bias
is not just perceived but actual. In those situations,
justice will arguably have been averted. Existing law's
silence on this specific situation further illustrates the
potential need to address this specific conflict of interest
issue on a statewide level.
From a public policy standpoint, it is not unreasonable to
find that a person who could have direct knowledge or other
conflict with the matter for which the agency is being
investigated should be disqualified from participating from
the proceedings for lack of impartiality, in light of the
efforts to alleviate analogous problems under existing law.
c. Potential preemption issue and suggested amendment
As noted above, some counties may have their own conflict of
interest rules for grand jurors. In some cases, these rules
may be more restrictive, and therefore stronger, than the rule
proposed by this bill. The following amendment would ensure
that this bill does not preempt any stronger rules in place at
the time of enactment of this bill, as well as any stronger
future rules:
On page 2, line 2, after "916.2" insert "(a)"
On page 2, after line 9, insert:
(b) This section shall be in addition to any local rules
regarding conflict of interest for grand jurors. A local
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jurisdiction may create rules in addition to this provision.
3. Potential taint of impropriety in grand jury investigations
Impartiality of grand jurors is fundamental to the system of
grand juries, especially in light of the nature of these
proceedings as described in Comment 4 below.
In the introductory remarks of their law review article
entitled, Reform of California's Grand Jury System, Professors
Michael Vitiello and Clark Kelso state that:
In theory, the grand jury is a remarkable institution. Praised
by some as the "'protector of the citizenry against arbitrary
prosecution,'" the grand jury involves ordinary citizens in
the administration of criminal justice; and in California, the
civil grand jury gives ordinary citizens the power to
investigate local political entities to root out corruption. .
. . �R]ecent events in California's political history serve
as reminders that well-designed institutions may be subject to
abuse. (35 Loy. L.A. L. Rev. 513, 513-514 (2002).)
The author points to a recent example in Orange County, where
"grand jurors, who were former employees of an agency being
investigated, participated in the investigation. This created a
perception that there was a possible bias in the outcome of the
investigation." (See Background.) As stated by the author,
"�w]hether the bias is founded or unfounded, it taints the
public's perception of the grand jury as a neutral, unbiased arm
of the judiciary." Public perception of improper conduct or
prejudice on part of a grand juror, whether it is substantiated
or not, arguably undermines the grand jury system's integrity
and, ultimately, its usefulness to the public or ability to
carry out the duties with which grand jurors have been
historically charged. Secrecy, as discussed in Comment 4 below,
is paramount to the operations of grand jurors, and becomes more
difficult to justify in the face of such accusations of
impropriety.
4. Secrecy of grand jury investigations supports the need for
conflict of interest rules
This bill seeks to help to assure that grand jurors do not have
a bias or prejudice that stems from a conflict of interest
created by their current or recent employment with the agency
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that is the subject of the grand jury investigation.
Transparency and openness have historically proven the best
combatants against allegations of unfair bias, impropriety, or
misconduct. Even more so, they have traditionally served as the
greatest safeguards against any such negative influences taking
hold in any governmental realm or proceeding, be they
legislative, executive, or judicial in nature. The operation of
grand juries, however, is distinct from most any other part of
this American system of government in that it creates a special
exception to the general rule that the American people have a
right to any official documents and proceedings, absent
extraordinary circumstances such as executive privilege or
national security. Here, it is the rule, not the exception, to
maintain secrecy.
A grand jury is a secret tribunal and the disclosure of grand
jury materials is strictly limited; generally, grand jurors may
not disclose evidence brought before the jury or the content of
their deliberations. Unlike other court proceedings to which
access is presumed, there is no presumptive right of access to
grand jury proceedings; the proper functioning of the grand jury
system uniquely depends upon the secrecy of grand jury
proceedings. Indeed, courts have held that openness of grand
jury proceedings is an exception to the general rule of secrecy
and permitted only where expressly provided by statute. (20A Ca
Jur Criminal Law: Pretrial Proceedings Sec. 706, citations
omitted.)
Given the expansive scope of grand jury investigations and the
necessary secrecy associated with those proceedings, it makes it
all the more difficult to ascertain or defend the fairness of
proceedings when it is later discovered that a grand juror is or
was recently an employee of the agency under the grand jury's
jurisdiction. This in turn, increases the necessity to
eliminate any doubt as to the objectivity of those serving on a
particular grand jury and the fairness of the proceedings. The
fact that the grand jurors are selected at random and need only
meet certain minimum statutory requirements support these
apparent tenets of fairness and objectivity that underlie the
grand jury process; requiring, as this bill would do, that any
juror recuse him or herself from the jury for such a conflict of
interest as is created by the nature of employment of an agency
subject to the grand jury's investigatory responsibilities and
duties further bolsters those same tenets.
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This, in conjunction with the considerations discussed in
Comments 2 and 3 above, further supports the need for a
statewide rule concerning jurors who have or recently had an
employment relationship with an agency that is the subject of
the grand jury investigation.
Support : None Known
Opposition : None Known
HISTORY
Source : Orange County Board of Supervisors
Related Pending Legislation : AB 622 (Dickinson), would require
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 the grand jury issues its final report in
order to ensure the accuracy of the final report, and
feasibility of its final recommendations. In instances where a
civil grand jury is hearing testimony under oath, AB 622
additionally would require the proceedings be open to the public
and press, and would permit the witness to be accompanied by an
attorney during his or her testimony. This bill is in the
Senate Rules Committee, awaiting assignment.
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 68, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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