BILL ANALYSIS �
SB 1357
Page 1
Date of Hearing: June 26, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1357 (Cannella) - As Amended: May 8, 2012
PROPOSED CONSENT
SENATE VOTE : 37-0
SUBJECT : Removal from Office: Grand Jury Accusation
KEY ISSUE : Should existing law specify that the "grand jury"
that is authorized to present an accusation against a public
official includes a criminal grand jury as well as a civil grand
jury?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Existing law provides for the removal of a public official who
engages in willful or corrupt misconduct while in office. As a
first step in this removal process, a written accusation against
the official may be presented by the "grand jury" of the county
in which the official holds office. However, existing law is
not clear as to whether "grand jury" refers only to the civil
grand juries that are summoned at least once a year in each
county, or if it includes the additional criminal grand juries
that are impaneled as needed upon the order of the presiding
judge of the superior court. According to the author, this
ambiguity is aggravated by the fact that courts have dismissed
cases based on civil grand jury indictments if the accusations
are deemed to be criminal in nature. Meanwhile, a 1993 Attorney
General opinion held that criminal grand juries cannot handle
matters deemed civil. This has created a dilemma for district
attorneys seeking to remove corrupt public officials from
office: if they obtain an accusation from a civil grand jury
under the relevant Government Code provisions, they run the risk
of dismissal if the accusation is deemed criminal in nature; yet
the 1993 Attorney General's opinion appears to preclude the use
of criminal grand juries. The fact that "corruption" and
"misconduct" as applied to the actions of public officials are
not always neatly categorized as criminal or civil in nature, or
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involve some combination of both, only exacerbates the problem.
This bill would attempt to solve this problem by simply
clarifying that the "grand jury" authorized to present an
accusation against a public official under existing law includes
not only the regular civil grand jury, but also a criminal grand
jury. The bill is sponsored by the Monterrey County District
Attorney's Office and supported by the California District
Attorneys Association. There is no known opposition to this
bill, which has not received any negative floor or committee
votes to date.
SUMMARY : Provides that the existing statute authorizing a
"grand jury" to present accusations against a local public
officer for willful or corrupt misconduct includes a criminal
grand jury, as defined. Specifically, this bill :
1)Provides that the grand jury presenting an accusation against
a public official for willful or corrupt misconduct in office
may also be the additional grand jury impaneled by order of
the presiding judge of a superior court, pursuant to relevant
provisions of the Penal Code.
2)Updates the existing law provision that sets forth the number
of jurors who must concur before an accusation may be
presented to take account of recent changes in the required
number of jurors for some counties.
EXISTING LAW :
1)Provides that every superior court, whenever in its opinion
the public interest so requires, shall draw a grand jury.
Specifies the number of grand jurors that must be drawn,
depending upon the county's population. (Penal Code Section
904.)
2)Authorizes the presiding judge of the superior court, upon the
request of the Attorney General or the district attorney, or
upon his or her own motion, to impanel an additional grand
jury, as specified. Specifies slightly modified procedures
for specific counties. (Penal Code Sections 904.4-904.8.)
3)Sets forth the procedure for accusing and removing a public
official for willful or corrupt misconduct in office.
Provides that an accusation in writing against a public
official for willful or corrupt misconduct in office may be
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presented by the grand jury of the county in which the officer
accused is elected or appointed. (Government Code Sections
3060-3071.)
4)Provides, pursuant to the above, that an accusation may not be
presented without the concurrence of at least twelve grand
jurors, or at least eight grand jurors in a county in which
the required number of members of the grand jury is eleven.
(Government Code Section 3060.)
5)Requires that one or more grand juries be drawn and summoned
at least once a year in each county. (California Constitution
Article 1 Section 23.)
6)Defines a 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 into
public offenses committed or triable within the county.
Specifies that 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.)
7)Establishes the required number of grand jurors as follows: 23
in a county having a population exceeding four million; 11 in
a county having a population of 20,000 or less; and 19 in all
other counties. (Penal Code Section 888.2.)
COMMENTS : Existing law provides for the removal of a public
official who engages in willful or corrupt misconduct while in
office. As a first step in this removal process, a written
accusation against the official may be presented by the "grand
jury" of the county in which the official holds office.
However, existing law is not clear as to whether "grand jury"
refers only to the civil grand juries that are regularly drawn
and summoned at least once a year in each county, or if it
includes the ad hoc criminal grand juries that are impaneled as
needed upon the order of the presiding judge of the superior
court. This bill would specify that accusations raised under
these statutory provisions may be presented by either a civil
grand jury or a criminal grand jury.
Background : There are two types of grand juries in California.
Article 1 Section 23 of the California Constitution requires
that each year a grand jury must be impaneled in each of the
state's 58 counties. These annual, constitutionally-required
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grand juries are often called "civil" grand juries. However,
provisions of the Penal Code - as amended in 1991 - authorize
the presiding judge of a superior court to summon an
"additional" grand jury as needed to serve the public interest.
These juries are often called "criminal" grand juries, both
because they are authorized by the Penal Code and because they
are given authority to "return indictments." (Penal Code
904.6.) In cases where additional grand juries have been
created, however, at least one grand jury in each county is
designated to investigate or inquire into "matters of civil
concern." (Penal Code Section 888.) Although not expressly
stated in the statutes, it is generally assumed that this one
grand jury that investigates "matters of civil concern" is the
constitutionally-required grand jury or "civil grand jury,"
whereas those grand juries created pursuant to the Penal Code
are "criminal grand juries" that bring criminal indictments.
That the different types of grand juries have different
functions is partly a reflection of the multiple functions that
grand juries serve in California. As identified by the
California Supreme Court, these functions include (1) weighing
criminal charges and, if necessary, returning criminal
indictments; (2) weighing allegations of misconduct against
public officials and determining whether to present formal
accusations; and (3) acting as the public's "watchdog" by
investigating and reporting on the affairs of local government.
(McClatchy Newspapers v. Superior Court (1988) 44 Cal. 3d 1162,
1170.)
As noted above, one of the grand jury functions identified by
the California Supreme Court includes "weighing allegations of
misconduct against public officials." Government Code Sections
3060 through 3070 set forth the process for removing local
public officers for misconduct in office. (Statewide elected
officials, members of the Board of Equalization, and state court
judges are removed by impeachment.) This removal process begins
when a "grand jury" presents "an accusation in writing against
any officer of a district, county, or city, including any member
of the governing board or personnel commission of a school
district or humane officer, for willful or corrupt misconduct in
office." (Government Code Section 3060.) Although the plain
language of the statute does not specify whether "grand jury"
refers to the constitutionally-required "civil" grand jury or
the additional "criminal" grand jury, existing case law, an
Attorney General's opinion, and the broader statutory framework
strongly suggest that the Legislature contemplated that the
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civil grand jury, which has traditionally been assigned a
"watchdog" function over "matters of civil concern," was the
"grand jury" that would initiate the removal process. This
reading is reinforced by the fact that Government Code Section
3060 speaks in terms of bringing an "accusation" instead of an
"indictment," as the latter term usually indicates a formal
criminal charge.
According to a 1993 opinion of the Attorney General, the above
reading is also reinforced by Penal Code Section 888, which
states that "if more than one �grand jury] has been impaneled"
pursuant to the Penal Code, then "one grand jury in each county,
shall be charged and sworn to investigate or inquire into county
matters of civil concern." While in theory this "one grand
jury" could be one of the "additional" grand juries created
under the Penal Code, the Attorney General concluded that most
likely this provision contemplates that the "one grand jury"
would be the "civil grand jury" created pursuant to the
constitutional requirement. That the "one grand jury" would
also be the one to present an accusation against a public
official is suggested, according to the Attorney General's
opinion, by other sections of the Penal Code. Specifically,
section 904.6 authorizes the "additional" grand juries and gives
them "sole and exclusive jurisdictions over indictments ," unless
the matter has already been assigned to the "regular grand
jury." The Attorney General argued that the use of the word
"indictment" (as opposed to "accusation") suggested that these
juries were restricted to criminal matters. Section 914.1, on
the other hand, which cross references the Government Code
sections on removing public officers, speaks in terms of the
grand jury's role in the "investigation of, or inquiry into,
county matters of civil concern." (76 Ops. Cal. Atty. Gen. 181,
183-187.) The Attorney General's opinion concluded that "the
additional jury authorized by Section 904.6 is restricted to
criminal matters only and may not perform civil oversight
functions" (Id. at 187), and bringing accusations against public
officials is apparently a "civil oversight function."
According to the author and sponsor, the prevailing
understanding that the "regular" civil grand juries are
responsible for bringing an accusation for removal of a public
officer, while the "additional" criminal grand juries handle
criminal matters, creates a "quandary" for local district
attorneys. To begin with, the author and sponsor correctly
point to case law suggesting that the "willful and corrupt
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misconduct" that can be the basis for accusation and eventual
removal of a public officer does not always fit neatly into a
"civil" or "criminal" category, and that accusations of willful
or corrupt misconduct are necessarily the same as criminal
indictments. (See e.g. Steiner v. Superior Court (1996) 50 Cal.
App. 4th 1771; People v. Hale (1965) 232 Cal. App. 2d 112.)
According to the author, courts have dismissed cases based on
civil grand jury indictments if the accusations are deemed to be
criminal in nature. At the same time, as discussed above, the
Attorney General has concluded that criminal grand juries cannot
handle matters deemed civil. This has created a dilemma for
district attorneys seeking to remove corrupt public officials
from office: if they obtain an accusation from a civil grand
jury under the relevant Government Code provisions, they run the
risk of dismissal if the accusation is deemed criminal in
nature; if they obtain an accusation from a criminal grand jury
- assuming they can even do that - they run the risk of
dismissal if the accusation is deemed civil in nature. This
bill would attempt to solve this problem by simply clarifying
that the "grand jury" authorized to present an accusation
against a public official under existing law includes not only
the regular civil grand jury, but also any additional criminal
grand jury. This bill will expressly authorize a district
attorney to seek an accusation from either a civil grand jury or
a criminal grand jury. Presumably, a district attorney would
choose one or the other depending upon the nature of the
misconduct, but in either case, this bill would make it clear
that one of the additional criminal grand juries may bring an
accusation under Government Code Section 3060.
Number of Jurors Who Must Concur to Bring an Accusation : In
addition, this bill makes one technical correction to existing
law. Government Code Section 3060 currently provides that an
accusation cannot be presented without the concurrence of at
least twelve grand jurors, or at least eight grand jurors in a
county in which the required number of grand jurors is eleven.
At the time this language was enacted, grand juries had either
nineteen or eleven grand jurors, depending upon population.
Since that time, the law has been amended to provide for
twenty-three grand jurors in a county with a population that
exceeds four million. Taking account of this change, this bill
would specify that an accusation cannot be brought without the
concurrence of nineteen jurors in a county that requires
twenty-three jurors.
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ARGUMENTS IN SUPPORT : According to the author, because "case
law is unclear as to whether an accusation is civil or criminal
in nature, there is question of whether a civil or criminal
grand jury is the appropriate tool." The author continues,
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
responsibility of presenting 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 being dismissed on procedural
grounds.
The bill' sponsor, the Monterey County District Attorney's
Office, claims that the question of "whether an accusation is
civil or criminal in nature has a direct impact on which grand
jury can present an accusation." The sponsor believes that the
1993 Attorney General opinion, discussed above, "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 �if the matter is
deemed criminal] . . . 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."
REGISTERED SUPPORT / OPPOSITION :
Support:
Monterey County District Attorney's Office (sponsor)
California District Attorneys Association
Opposition
None on file
SB 1357
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Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334