BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1357 (Cannella)
As Amended April 23, 2012
Hearing Date: May 1, 2012
Fiscal: No
Urgency: No
RD
SUBJECT
Removal from Office: Grand Jury Accusation
DESCRIPTION
Existing law provides that an accusation in writing against any
public officer, as specified, for willful or corrupt misconduct
in office, may be presented by the grand jury of the county for,
or in, which the officer accused is elected or appointed. An
accusation requires the concurrence of at least 12 grand jurors,
or at least eight grand jurors in a county in which the required
number of members of the grand jury is 11.
This bill would provide that the grand jury presenting the
accusation may be a criminal grand jury, as specified.
BACKGROUND
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. (See Pen. Code Secs. 888,
904.4-904.8.) The California Constitution requires each county
to draw and summon at least one grand jury a year, and that
whenever the public interest so requires, the superior court of
a county must order a grand jury to be drawn. (Cal. Const. art.
I, Sec. 23; Pen. Code Sec. 904.) Under Penal Code Sections
904.4, 904.6, and 904.8, an additional (criminal) grand jury may
be impaneled, as specified, upon request of the district
attorney, Attorney General, or the presiding judge of the
superior court.
In McClatchy Newspapers v. Superior Court (1988), the California
(more)
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Supreme Court broadly summarized the functions of a California
grand jury as follows: "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; see 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.)." (44 Cal.3d 1162, 1170.)
With respect to this second role described above, Government
Code Section 3060 et seq. provide the procedures for a grand
jury to remove a public officer, as specified, from office for
willful or corrupt misconduct. First and foremost, an
accusation must be presented to the district attorney by the
grand jury, stating the offense constituting willful or corrupt
misconduct by the public officer. (Gov. Code Secs. 3060 -
3062.) After the accusation is presented, the district attorney
must serve a copy of the accusation and a written notice on the
defendant to appeal, and upon answer and appearance of the
defendant, there is a trial by jury, in the same manner as the
trial of an indictment. (Gov. Code Secs. 3063, 3069, 3070.)
Importantly, though this removal proceeding may be criminal in
nature, an accusation, however, is not the same as an
indictment, nor is this proceeding to remove a public officer
for misconduct the equivalent of a criminal prosecution. The
ultimate objective is not to convict a defendant of a crime, but
rather, to remove an officer who is shown to have engaged in
willful or corrupt misconduct from office. (See 2 Witkin Cal.
Crim. Law Crimes - Govt Sec. 109; see also People v. Hale (1965)
232 Cal.App.2d 112.)
Additionally, while misconduct does not require that a criminal
act have taken place, these proceedings almost invariably deal
with violations of law and typically involve a knowing violation
of a criminal statute. (Steiner v. Superior Court (1996), 50
Cal. App. 4th 1771, 1778-9 (citations omitted); see also People
v. Hardy (1942) 51 Cal. App. 2nd 759, 767, "official misconduct
does not necessarily imply corruption or criminal intention.")
At the very least, however, the types of acts and omissions that
constitute willful or corrupt misconduct are more than just mere
negligence to perform one's official duties. In other words,
there must at least have been a purposeful failure to carry out
the mandatory duties of the office, if not outright criminal
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behavior. (Id.)
Existing law does not specify whether or not it is a civil grand
jury or a criminal grand jury that presents the accusation.
This bill, sponsored by the Monterey County District Attorney's
Office, would provide that a criminal grand jury may present the
accusation against any public officer, as specified, for willful
or corrupt misconduct in office. This bill would also update
the existing law provision regarding the concurrence necessary
among grand juries of different sizes to result in an
accusation, in order to account for counties in which the number
of grand jury members is 23.
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 provides that a grand jury is 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 within the
county. 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 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 criminal grand jury,
as specified. (Pen. Code Secs. 904.4, 904.6, 904.8.)
Existing law provides that the powers and duties of the grand
jury in connection with proceedings for the removal of district,
county, or city officers are prescribed commencing with Section
3060 of the Government Code. (Pen. Code Sec. 922.)
Existing law provides for the removal of a public officer, as
specified, for willful or corrupt misconduct in office. (Gov.
Code Sec. 3060 et seq.) Existing law provides that an
accusation in writing against any officer, as specified, may be
presented by the grand jury of the county for or in which the
officer accused is elected or appointed. Existing law provides
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that an accusation requires the concurrence of at least 12 grand
jurors, or at least eight grand jurors in a county in which the
required number of members of the grand jury is 11. (Gov. Code
Sec. 3060.)
This bill would provide that a criminal grand jury, as impaneled
pursuant to Penal Code Sections 904.4, 904.6, or 904.8 may be
the grand jury that presents the above accusation.
This bill would provide that in counties of 23, concurrence of
14 members is necessary for an accusation.
COMMENT
1. Stated need for the bill
According to the author:
Under current law, district attorneys have the authority to
present an accusation to remove public officials from office
for willful or corrupt misconduct via either a civil grand
jury comprised of specially selected citizens or a criminal
grand jury chosen randomly and impartially.
Past case law is unclear as to whether an accusation is civil
or criminal in nature, so there is question of whether a civil
or grand jury is the appropriate tool. In the 1970s,
appellate courts began dismissing rulings made by specially
selected civil grand juries deeming accusations to be criminal
in nature. However, in 1993 the Attorney General opined that
criminal grand juries could not handle civil matters. Thus
if an accusation was found to be a civil matter, the ruling
from a criminal grand jury could be dismissed. As a result,
it could take years of litigation and expense for the courts
to determine which type of grand jury should make the ultimate
decision regarding an accusation against a public official.
SB 1357 grants the authority �to present] such an accusation
to a criminal grand jury, thus ensuring that public officials
guilty of willful or corrupt misconduct can be safely removed
from office without the accusation of being dismissed on
procedural ground.
The sponsor of this bill, the Monterey County District
Attorney's Office, writes, "The question �of] whether an
accusation is civil or criminal in nature has a direct impact on
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which grand jury can present an accusation. �The Attorney
General's 1993 opinion] supports the argument that a criminal
grand jury cannot present an accusation. On the other hand, an
accusation presented by a specially selected civil grand jury
would probably be attacked as a violation of constitutional due
process. The trial or appellate court ruling on the issue could
very well side with the earlier cases describing an accusation
as criminal in nature and, therefore, subject to all the due
process requirements for criminal prosecutions. All of this
puts district attorneys in a quandary. . . . Rather than risk
years of litigation and much expense to settle this issue, the
legislature could solve the problem now by specifying which
grand jury may present an accusation."
2. Presentation of the accusation
This bill would provide that a criminal grand jury, as impaneled
under Sections 904.4, 904.6, or 904.8 of the Penal Code may
present this accusation. These sections permit a superior court
presiding judge to impanel an additional criminal grand jury (in
addition to the civil grand jury that must be impaneled each
year under the California Constitution) under specified
circumstances-namely, upon the request of the district attorney
or Attorney General.
The sponsor explains that:
The accusation is rarely used. Since the original statutes
were enacted in 1882, only 42 appellate opinions refer to the
accusation. A recent survey of prosecutors revealed about a
dozen cases in which the accusation has been used since 1980.
Nonetheless, the procedure can be a valuable tool where the
misconduct is serious but not criminal. It is also useful
when the misconduct is only discovered several years after its
occurrence. �Government Code Sec. 3074 extends the statute of
limitations for the purposes of removal to 6 years] . . .
In the 1970's and in the 1980's, a series of court cases began
challenging the way members of a grand jury were selected.
Prior to the 1970s, the usual approach of local judges was to
recruit prominent citizens to compose the so-called 'blue
ribbon' grand jury. Then the appellate courts began ruling
that grand juries were returning criminal indictments should
be randomly and impartially selected. The courts allowed
defendants to obtain dismissals of indictments returned by the
'blue ribbon' grand juries. In 1991, the California
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legislature responded to this problem by providing in Penal
Code Section 904.6 the authority for the court in each county
to impanel an "additional" (criminal) grand jury with the sole
authority to return indictments. . . . The result was that a
court could impanel a civil grand jury comprised of specially
selected citizens to oversee local government operations and
the court could also impanel a criminal grand jury using a
random and impartial selection procedure. Which grand jury,
civil or criminal had the power to present an accusation
remained unclear. The California courts have never directly
addressed the issue.
As such, this bill seeks to settle the question of whether or
not criminal grand juries may present an accusation to remove a
public official from office for willful or corrupt misconduct,
by specifically providing them with the authority to do so.
a. Civil grand juries versus criminal grand juries,
generally
Under existing law, each year there must be at least one grand
jury impaneled in each county. In addition to that grand
jury, additional grand juries can be impaneled under Sections
904.4, 904.5, 904.7, and 904.8 of the Penal Code. All but
904.7 are related to conditions upon which an additional
criminal grand jury can be impaneled by a county's Superior
Court presiding judge upon the request of the district
attorney or Attorney General. Where more than one grand jury
is impaneled, at least one grand jury must be charged and
sworn with those duties (i.e. be a civil grand jury). (Pen.
Code Sec. 888.) This bill would provide that a criminal
grand jury, summoned pursuant to those sections, may be the
grand jury that presents the accusation to trigger the
proceedings for the removal of an official from office for
willful or corrupt misconduct pursuant to Government Code
Section 3600.
Because existing law does not specify which grand jury shall
present the accusation of willful or corrupt misconduct, it is
foreseeable that a civil grand jury could be the grand jury
that presents the accusation depending on the circumstances,
as could any one of the additional civil or criminal grand
juries that may be summoned. That accusations of misconduct
in office would be presented at least on occasion by a civil
grand jury is to be expected, given the primary function of a
civil grand jury is that of a "watchdog," as noted by the
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California Supreme Court in McClatchy Newspapers. (See
Background.) Investigations of a civil grand jury could, and
are intended to, unveil the type of misconduct that would lead
to an accusation and removal proceedings.
On its face, this bill does not explicitly prohibit a civil
grand jury from carrying out its investigatory duties and
presenting an accusation where appropriate; it merely provides
for the authority for a criminal grand jury to do so as well,
as specified. However, by specifying that the grand jury
presenting the accusation may be the additional grand jury
impaneled pursuant to Penal Code Sections 904.4, 904.6, or
904.8, the concern could arise that this bill would implicitly
suggest that only these grand juries have the authority to
present an accusation and thereby impede the authority of the
county's primary, or regular, (civil) grand jury to present
accusations. The following amendment avoids this outcome.
Suggested amendment :
On page 2, line 3, after "may" insert "also"
b. Accusations are distinct from indictments and removal
proceedings are not criminal prosecutions, but they can be
criminal in nature at times
This bill seeks to clarify that a presentation of an
accusation may be made by an additional criminal grand jury
impaneled pursuant to Penal Code Sections 904.4., 904.6 or
904. 8.
In a 1993 opinion letter, the Attorney General (AG) was asked
to define the scope of duties for an additional grand jury
that is impaneled pursuant to Penal Code Section 904.6 and, in
doing so, concluded that these specific grand juries' are
restricted to criminal matters only. (76 Ops. Cal. Atty. Gen.
181, page 2; see Pen. Code Sec. 904.6(d); Secs. 904.4, 904.8
each have similar language in subdivision (d) of their
respective sections.) In looking to the legislative history
of the bill that enacted Section 904.6, the AG quoted from
this Committee's analysis, in relevant part for this bill, as
follows:
The long standing right of grand juries to issue
indictments was qualified by Hawkins v. Superior Court (22
Cal.3d �584]) in 1978, wherein the court opined that "due
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process requires that an indicted defendant is entitled on
his timely motion to a post-indictment preliminary
hearing." Thus, as a preliminary hearing was required to
follow a grand jury proceeding, the indictment was
generally abandoned in favor of a preliminary hearing on
the charges in municipal court, and the function of the
grand jury was limited to governmental oversight and the
occasional criminal action in cases of official
malfeasance.
Last year, the voters adopted Prop 115, the "Crime Victims
Justice Initiative," which overruled Hawkins by permitting
an indictment as the initiation of criminal proceedings
without a requirement of subsequent preliminary hearing �.
. .] Some �district attorneys] have chosen to exercise this
option freely, therefore imposing a significant criminal
workload on grand juries still responsible for their civil
obligations. . . . This bill would bifurcate the
institution of the grand jury into two forms, civil and
criminal authorizing counties to combine both functions in
a single grand jury, or to establish independent criminal
grand juries upon the decision of the presiding judge of
the superior court or at the request of the District
Attorney or Attorney General.
The civil grand jury would be authorized to inquire into
county matters or return accusations of misconduct by
public officials in the manner such juries functioned prior
to Proposition 115 and pursuant to Hawkins; the criminal
grand jury would be authorized to return indictments for
public offenses pursuant to Proposition 115. Individuals
serving in the capacity of criminal grand jurors, whether
on an independent panel or a unified body bringing an
indictment in a criminal case, would be required to meet
standards specified for criminal grand jury service. (76
Ops. Cal. Atty. Gen. 181, pages 3-4.)
Thus, impliedly, the AG opinion seemed to recognize the
distinction drawn above between criminal indictments for
public offenses and accusations of misconduct by public
officials, and the clear direction from the AG that the latter
was intended as a function of the civil grand jury while the
former is a function of a criminal grand jury. The author and
the sponsor of this bill, the Monterey County District
Attorney's Office, contend that this AG opinion has been
interpreted to mean that a criminal grand jury cannot present
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accusations of willful or corrupt misconduct, though the issue
was not at the core of the opinion.
According to background materials provided to this Committee
by proponents of this bill, a series of cases in the 1970s and
80s resulted in successful attacks on the presentation of
indictments by "blue ribbon" grand juries that were not
representative of the community and excluded minorities in
violation of due process guarantees under the U.S.
Constitution. (Criminal grand jury members are selected at
random under Penal Code Sections 904.4, 904.6, and 904.8.)
The sponsor of this bill argues that such case law, together
with the 1993 AG opinion, raises the issue of whether an
accusation is criminal or civil and leaves district attorneys
"in a quandary. If a district attorney uses the civil grand
jury, the accusation may be dismissed because a court finds
the proceeding is a criminal action and the members of the
civil grand jury were not impartially selected. If a district
attorney uses a criminal grand jury, the accusation is subject
to attack on the ground that the criminal grand jury has no
authority to present an accusation because it is a civil
action. Rather than risk years of litigation and much expense
to settle this issue, the legislature could solve the problem
now by specifying which grand jury may present an accusation."
At the same time, Committee staff notes that even though
California courts have ruled that grand juries which are
returning criminal indictments should be randomly and
impartially selected, with respect to accusations
specifically, the courts have also made clear that accusations
of willful or corrupt misconduct in office are distinct from
criminal indictments. (See 52 Cal. Jur. Public Officers and
Employees Sec. 143; see e.g. In re Burleigh (1904) 145 Cal.
35, 36; People v. Hale (1965) 232 Cal.App.2d 112, 118, citing
Fitts v. Superior Court of Los Angeles County (1936) 6 Cal.2d.
230, 235.) Moreover, "the act or omission for which an
officer may be removed does not necessarily imply corruption
or criminal intent or the commission of a crime." (People v.
Hale, 232 Cal.App.2d at 118-119, citing People v. Harby (1942)
51 Cal.App.2d 759, 767, People v. Elliot (1953) 115
Cal.App.2d. 410, 414.) Indeed, "this special statutory
proceeding �as provided for in Government Code Section 3600 et
seq.] is not a criminal prosecution; i.e., its object is not
to convict the defendant of a crime but merely to remove him
or her from office, no other punishment being authorized."
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(See 2 Witkin Cal. Crim. Law Crimes - Gov't Sec. 109; see e.g.
In re Burleigh 145 Cal. at 37, In re Reid (1920) 182 Cal. 88,
89; People v. Byers (1936) 5 Cal.2d. 676, 682; People v. Harby
51 Cal.App.2d at 772; People v. Hale 232 Cal.App.2d at 119.)
However, Committee staff also notes that California courts
have also found that the removal procedure is criminal in
nature, and must be regarded as pertaining to crimes and
offenses against the state. (See e.g. People v. Hale 232
Cal.App.2d at 117, citing numerous cases.)
Thus, while there is arguably a difference between indictments
and accusations, if there is any ambiguity as to whether civil
grand juries may solely present accusations or if criminal
grand juries may do so as well, this bill would provide a
degree of clarity by specifying that criminal grand juries
have the ability to present accusations for the purposes of
removing public officers from office for willful or corrupt
misconduct pursuant to Section 3060 of the Government Code.
Support : California District Attorneys Association
Opposition : None Known
HISTORY
Source : Monterey County District Attorney's Office
Related Pending Legislation : None Known
Prior Legislation : SB 1394 (Montieth, Ch. 105, Stats. 1996)
amended Government Code Section 3060 specify the number of
jurors required to make an accusation in smaller counties with
grand juries of only 11 jurors.
Prior Vote : Senate Committee on Public Safety (Ayes 6, Noes 0)
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