Date of Hearing: March 20, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:ACR 189

Author:(Gallagher) – As Introduced Ver:February 28, 2018

SUBJECT: Civil Grand Jury Awareness Month

KEY ISSUE: SHOULD THE LEGISLATURE RECOGNIZE MARCH AS CIVIL GRAND JURY AWARENESS MONTH?

SYNOPSIS

This annual resolution declares March 2018 as Civil Grand Jury Awareness Month, recognizes those who serve on grand juries, and encourages all Californians to learn about the role of the civil grand jury in our system of government. According to the author, the intent behind this resolution is to bring awareness to the role of civil grand juries in fettering out public corruption and misconduct.

While some grand juries have been lauded for their “civil” watchdog efforts, police officer-related shootings have placed a national spotlight on the role of civil grand juries in criminal investigations. Civil grand juries are not limited to reviewing civil matters; in fact, civil grand juries have the authority to initiate investigations and investigate criminal matters.

Although this resolution recognizes civil grand juries in general, it might be more appropriate to characterize this resolution as recognition of civil grand juries that perform civil functions.

SUMMARY: Proclaims March 2018 as Civil Grand Jury Awareness Month, and recognizes the dedication and tenacity of those who volunteer to serve on a grand jury. Encourages all Californians to learn about the great role of the civil grand jury in our system of government, and applauds those who have made the civil grand jury a successful institution. Specifically, this resolution:

Makes the following findings:
1. California’s grand jury system is a unique component of our state’s government, comprised of citizens selected by the superior courts serving in each of the state’s 58 counties; and
2. A number of California counties have grand juries that perform only civil functions; and
3. Civil grand juries perform the vital functions of overseeing our local government, reporting on local government operations, and investigating public corruption and misconduct; and
4. Our civil grand juries, which exist through the dedication of the people, help to ensure that our local governments are maintaining the highest legal and ethical standards; and
5. The hard work done by our civil grand juries has had great impact throughout our communities and has helped to make California a better place; and
6. These accomplishments have only been possible through the outstanding dedication and tenacity of those who volunteer to serve as grand jurors.
Resolves as follows:
1. On behalf of the Assembly of the State of California, the Senate thereof concurring, that the Legislature hereby proclaims the month of March 2018 to be Civil Grand Jury Awareness Month in California.
2. That the Legislature recognizes those who volunteer for service on a civil grand jury, encourages all Californians to learn about the great role of the civil grand jury in our system of government, and applauds those who have made the civil grand jury a successful institution.
3. That the Chief Clerk of the Assembly transmit copies of this resolution to the author for appropriate distribution.

EXISTING LAW:

Requires that one or more grand juries shall be drawn and summoned at least once a year in each county. (Cal. Const., Art. I, Section 23.)
Provides that a grand jury is a body of citizens of the county before the court and sworn to inquire into public offenses committed or triable within the county. (Penal Code Section 888. Unless stated otherwise, all further statutory references are to that code.)
Provides that a person is competent to act as a grand juror only if the person possesses each of the following qualifications:
1. The person is a citizen of the United States of the age of 18 years or older who shall 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. The person is in possession of their natural faculties, of ordinary intelligence, of sound judgment, and of fair character.
3. The person possesses sufficient knowledge of the English language. (Section 893.)
Provides that a person is not competent to act as a grand juror if any of the following applies:
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.
4. The person is serving as an elected public officer. (Section 893.)
Requires all counties to draw and impanel at least one grand jury each year. (Section 905.)
Allows a grand jury to inquire into all public offenses committed or triable within the county and present them to the court by indictment. (Section 917 (a).)
Allows a grand jury to inquire into the case of a person imprisoned, in the jail of the county or any public jail in the county, on a criminal charge and not indicted. (Section 919.)
Requires a grand jury to investigate the operations, accounts, and records of the officers, departments, or functions of the county. (Section 925.)
Provides that if a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county, has been committed, the juror may declare it to other grand jurors, who may thereupon investigate it. (Section 918.)
Prohibits a grand jury from inquiring into an offense that involves a shooting or use of excessive force by a peace officer, as provided, that led to the death of a person being detained or arrested by the peace officer, except as provided in 9), above. (Section 917 (b).) However, this Section has been enjoined as unconstitutional in People ex rel. Pierson (2017) 7 Cal.App.5th 402, 414.)
Provides that a grand juror is to be paid fifteen dollars ($15) a day for each day serving as a grand juror, and the mileage reimbursement applicable to county employees for each mile actually traveled in attending court as a grand juror unless a higher fee or rate of mileage is otherwise provided by statute or county or city and county ordinance. (Section 890.)

FISCAL EFFECT: As currently in print this resolution is keyed non-fiscal.

COMMENTS: The grand jury is a vestige of English common law. Under the early English justice system, private prosecutors would bring criminal suits (in honor of the King) and present the proposed indictment before a grand jury for its consideration. (Hale v. Henkel (1906) 201 U.S. 43.) The grand jury would “stand between the prosecutor and the accused” to ensure that a criminal charge was based on evidence, not malice. (Ibid.) While we have jettisoned kings and private prosecutors since then, grand juries remain.

At the federal level, grand juries are used in criminal matters. The Fifth Amendment to the United States Constitution specifically cites indictment by a grand jury as a part of the process due to criminal defendants. At the federal level, the United States Attorney, prosecutors in federal courts, present evidence to a panel of 16-23 individuals who determine whether there is probable cause to believe an individual has committed a federal crime and should be put on trial. If a federal grand jury believes probable cause exists, the grand jury will issue an indictment. Recently, the use of the federal grand jury process has returned to the forefront of the American news cycle in relation to Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 Presidential Election. As part of that investigation, a grand jury was impaneled. The grand jury issued indictments of several former officials associated with President Donald Trump’s 2016 campaign.

Under the California Constitution, every county must impanel at least one grand jury a year. Although counties use a variety of ways to conduct the grand jury selection process, many select jurors from a pool of volunteer applicants. To be selected, grand jurors must be competent and possess their natural faculties, have ordinary intelligence and sound judgment, and be of fair character. Like prospective jurors on a petit jury—which considers evidence presented during a trial—persons who have been convicted of “any felony or other high crime” are ineligible to serve on a grand jury. (Penal Code Section 893(b)(3) and Code of Civil Procedure 203(a)(5).) Grand jurors sit for an entire year, and depending on the county, serve several days a week. Each juror is compensated $15 a day unless the county provides additional funding for compensation. While the compensation that jurors receive is meager—which arguably interferes with the ability to obtain a grand jury that represents a fair cross-section of the community—some grand jurors find the work rewarding.

The Term “Civil Grand Jury” may be a Misnomer. Unlike a petit jury, a civil grand jury considers accusations against public officials, and acts as the public’s watchdog over local government affairs. (McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162.) While these functions are often characterized as a grand jury’s “civil functions,” civil grand juries also have authority in criminal matters. Specifically, civil grand juries have the authority to authorize criminal prosecutions and return criminal indictments. (Ibid.) Accordingly, the fact that these entities are called civil grand juries does not mean that they necessarily perform only civil functions.

Public Scrutiny Over Grand Juries in the Performance of Criminal Functions. While some grand juries have been lauded for their “civil” watchdog efforts, the past decade’s officer-related shootings have placed a national spotlight on civil grand juries acting in their criminal capacity. In fact, the scrutiny was so great that the Legislature sought to prohibit a grand jury’s review of certain criminal matters, specifically those involving officer-related shootings when it enacted Senate Bill 227 (Mitchell, Ch. 175, Statutes of 2015). SB 227 would have prohibited a grand jury from inquiring into an offense or misconduct involving a shooting or use of excessive force by a peace officer that led to the death of the person being detained or arrested by the peace officer. (Penal Code Section 917 (b).) However, this law was held to be unconstitutional as an unlawful restriction on grand jury powers under the California Constitution. (People ex rel. Pierson v. Superior Court (207) 7 Cal.App.5th 402, 414.)

The work of civil grand juries in criminal matters continues to raise ire. As noted in the Assembly Public Safety Committee analysis of Senate Bill 227, some have called for the abolishment of grand juries, citing the secrecy and the lack of procedural oversight during grand jury proceedings:

No judges or defense attorneys participate. The rules of evidence do not apply; there are no cross-examinations of witnesses, and there are no objections. How prosecutors explain the law to the jurors and what prosecutors say about the evidence are subject to no oversight. And the proceedings are shrouded in secrecy. In high-profile, controversial cases, where officers use lethal force, prosecutors face a dilemma. If they don’t file charges against officers, they risk the wrath of the community; if they do file charges, they risk the wrath of the police and their powerful unions. By opting for secret grand jury proceedings, prosecutors pass the buck, using grand jurors as pawns for political cover. The Michael Brown and Eric Garner cases are examples of how prosecutors manipulate the grand jury process. (Judge LaDoris Hazard Cordell, Grand Juries Should be Abolished, Slate (December 9, 2014); see Assembly Public Safety Committee analysis of SB 227; June 16, 2015.)

Not surprisingly, some counties impanel grand juries to perform only civil functions and then impanel special grand juries in order to investigate specific criminal matters.

About This Resolution. This resolution acknowledges the efforts of civil grand juries. Specifically, this resolution recognizes those who volunteer for service on a grand jury and encourages all Californians to learn about the great role of the civil grand jury in our system of government. Additionally, this resolution applauds those who have made the civil grand jury a successful institution. This is the second straight year that this author has introduced a resolution recognizing Civil Grand Jury Awareness Month. Last year, this Committee supported ACR 12 (Gallagher, Resolution Chapter 33, Statutes of 2017). The author notes that the intent behind these resolutions is to bring awareness to the role of civil grand juries in fettering out public corruption and misconduct:

This resolution recognizes citizens selected to serve in grand juries for their hard work and dedication, ensuring that our local governments are maintaining the highest legal and ethical standards. Additionally, this resolution addresses the shrinking pool of volunteers, raising awareness and increasing citizen participation and diversity among civil grand jurors.

To Encourage More Volunteers and Diversity on Grand Juries, the Legislature May Wish to Consider Raising the Amount of Juror Compensation. The author notes that this resolution is intended to help address the shrinking pool of volunteers, raise awareness, and increase citizen participation and diversity among civil grand jurors. While this is a laudable goal, it is unclear whether this resolution will help achieve that result. Grand jurors must spend a significant amount of time serving as jurors (i.e., at least several days a week for an entire year.) It seems fair to say that working families are unlikely to give up that much time to serve on grand juries when the stipend or compensation is so meager ($15/day). Thus, it should be noted that raising the grand juror compensation would likely be a helpful way to increase the number and diversity of volunteers.

REGISTERED SUPPORT / OPPOSITION:

Support

Sutter County Grand Jurors Association (sponsor)

California Grand Jurors Association- San Joaquin County Chapter

Opposition

None on file

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334

ACR 189: Civil Grand Jury Awareness Month.

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