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The Grand Jury

The Role of the Civil Grand Jury
in California

Notes on the Practice of Citizenship
in a Constitutional Republic

 

Just as citizenship is a slippery term, the role of civil grand juries in California is sometimes difficult to grasp, not only for other citizens, but civil grand jurors themselves and the elected and appointed local-government officials who occasionally are on the receiving end of grand jury investigations.

Please don’t interpret this last statement as criticism. As I mention in my book about civil grand juries, the statutes governing the institution are typically obscurely worded, awkwardly written, and frequently vague. For the most part, the statutes might be thought of as an old-fashioned inner tube with a patch on almost every square inch. The patches are, of course, statutes, each written at different times in California history and no doubt in a similar climate of confusion and uncertainty that surrounds the institution today.

Among this pastiche of opaquely written codes, you will find almost no clues to the Legislature’s intended role, if it has one, for the civil grand jury. Unfortunately, most of the codes pertaining to the institution went on the books before the California Legislature provided declarations of legislative intent for some bodies of law, such as the Public Records Act. It is little wonder, therefore, that grand jurors, public officials, the news media, legal scholars, and anyone else who has anything to do with the institution often define it to suit themselves.

The Grand Jury Nobody Knows

When I first started studying it more than 40 years ago, I found the civil grand jury something of a puzzle. In those days, there was only one type of grand jury, and it had both civil and indicting authority. Today, the grand jury has been split into two forms: one that has the civil function and one that can indict. I am, of course, presently referring to the civil (sometimes called the “watchdog”) variety.

Because of my work in the 1960s, I was frequently in contact with elected and appointed officials in California local government. When the subject of grand juries arose among them, it was difficult to obtain a consistent picture of the institution from their comments. Few of them seemed to like it, and others expressed confusion about its purpose. In fact, one newspaper reporter of that time wrote a feature story about the institution titled “The Grand Jury Nobody Knows.”

One example of either hostility to the institution or ignorance about it among local-government elected officials came to light a few years ago. The Stanislaus County Board of Supervisors directed their taxpayer-funded lobbyist to find a legislator to sponsor an amendment to the Brown Act to include the civil grand jury within its scope. Owing to some effective counter-lobbying, the effort failed. At the time, I wondered why the Board of Supervisors would attempt to change such a well-established, fundamental, and necessary characteristic of the institution: the confidentiality and secrecy imposed on it by law. The episode reminded me of the story about the woman who told Dr. Samuel Johnson that his dictionary incorrectly defined part of the anatomy of the horse. When asked why he could make such a basic mistake in a horse-loving society, he replied, “Ignorance, madam, pure ignorance.”

About 20 years ago, when I first started training grand jurors, I spent many hours in law libraries reading case law about the civil grand jury. In terms of the numbers of cases, this was not a big chore. My search in case law for a clear, definitive statement of the role of the grand jury disclosed some clues here and there. In time, my review of the history of the grand jury in England--particularly the institution’s early struggles to find a place for itself--helped the grand jury’s role in our Constitutional order take shape in my thinking. This was important because in training civil grand jurors, and writing about their work, the last thing one wants to do is set them and other citizens on the wrong path. Unless one understands this historical background, many of the current statutes pertaining to the civil grand jury are merely bare bones.

Another source that I expected to find useful in my search turned out to be not very helpful. I refer to the charges that superior court judges are required by law to deliver to grand jurors when they impanel them. In many cases, these charges are boilerplate. Years ago, someone must have written a “model” charge for civil grand juries, and since that time, it has been widely used throughout the State by superior court judges. From time to time, one finds a charge, however, that a judge has written himself or herself. Although I have not read all of these documents, some that I have examined were improvements over the boilerplate charge but, nevertheless, did not express concretely anything that one might think of as a “role” for the civil grand jury.

It would be difficult to find a more apt metaphor to explain the problem than the old story of the blind men and the elephant. You will recall that each of the men grabbed a different part of the creature and, depending on which portion they grasped, they concluded that it must be a palm tree (the fan-like ears of the beast), a large rope for mooring a ship to a dock (the trunk), a huge pillar holding up a statue (a leg), or a rough piece of fabric (the hide). Of course, each man thought he had the right perspective.

The Civil Grand Jury and its Constitutional Setting

I am going to tell you what I think the role of the civil grand jury in California should be but not, I trust, in the manner of the blind men. The role I propose is based on the statutes pertaining to the civil grand jury in the context of its historical development. In other words, the role of the civil grand jury can best be understood by examining the statutes in terms of English and American social and political history. This does not result in a role that is startling, but it does put some flesh on the bare bones of the statutes of our day.

The result of this exegesis is a role that amounts merely to performing its primary statutory function more pointedly and, thereby, better. This concept of the role is compatible not only with the statutes but with pertinent comments by appellate judges in case law concerning the institution. Likewise, my view of the role harmonizes with official legal opinions I have read pertaining to the authority of the civil grand jury in California local government. You must be reading these words with some puzzlement. Possibly you are thinking, “Well, if all that is so, your idea of the grand jury’s role must not be very startling.” I don’t know if you will find it startling, but you will probably find it to be a somewhat different perspective than what you might previously have encountered.

Later, I’ll tell you what I think the role of the civil grand jury should be. Then you may decide if my proposal has merit. First, it is important that I establish some groundwork. In social science, “role” is generally defined as a set of expected behaviors for someone occupying a particular social status. The civil grand jury is a statutory institution; it has only the authority the Legislature has granted it. Therefore, its role can not and must not be defined as what grand jurors or others expect, imagine, or desire it to be without reference to the pertinent statutes. Rather, the work of civil grand jurors is regulated by what the Legislature authorizes them to do, not by the personal preferences, desires, or hopes of grand jurors. Unfortunately, if you read grand jury final reports from across the State, you will too often find blind men still grappling the elephant. And you will find documented examples of institutional role confusion in my book. I am making this point to assure you that the role I propose, different though it might be from what you have been told, is based on the law, not whim or fanciful thinking. Again, the role I propose is to do exactly what the law authorizes the civil grand jury to do but doing it well, thoroughly, and with no pulled punches.

If the wishes, desires, or expectations of grand jurors, public officials, and other citizens should not define the role of the grand jury, what should? The statutory role of the civil grand jury must be understood in terms of the form of government in which its enabling laws are embedded. You may recall from any civics course you might have taken that we live in a political system that is based on the assumption that citizens are its reason for being and the source of its authority. Other republics existed before ours, but none of them was deliberately planned, which is one reason why we sometimes refer to the men who did the planning as “Framers.” In this sense, the American Republic is often said to be an experiment in self-government. You may also recall that the designers of our republic were, generally speaking, people whose ancestors for centuries were subjects of kings and queens in England, not citizens of a self-governing polity.

Most of the designers, or Founders or Framers, were also readers. As readers of English descent, they had a good background in English constitutional history. They knew that for hundreds of years before the American Revolution, liberty was caught in a tug-of-war between the ideas of popular government and rule by royalty. They were also familiar with attempts to establish democracies and republics in ancient times and how and why they grew, flourished, and eventually died.

One of the lessons of history that the Founders kept in mind as they debated about the form and content of our Constitution was that power tends to concentrate. They also knew that, sooner or later, even kings or queens who ascend to power with good intentions often begin to behave tyrannically. Because of this, and some other reasons, the Constitution was designed to slow down the accumulation of power and its abuse. This is one of the justifications of the doctrine of the separation of powers, for example. The knowledge of how governments and rulers are corrupted was the basis for much of what we have in our Constitution, including a guarantee for a Republican form of government and the First Amendment.

The clash between the King and the barons at Runnymede was about the arbitrary exercise of power, and, of course, other concerns such as local self-government, punishment appropriate to the crime committed, and the urgency for citizens to have some say about the taxes imposed on them. The Runnymede face-off was not about power as such but, rather, its capricious, arbitrary, and inconsistent application. This is why phrases such as “due process” and “rule by law, not men” are associated with the Great Charter and the English and American constitutions. It is probably not far from the mark to think of some of the Founders as being obsessed with the abuse of power by government.

I realize I am simplifying centuries of English history in a few short paragraphs, but the point I wish to make is that one reason the grand jury in England, and later in this country, acquired its reputation is its record for standing between the executive (meaning a king or queen in England or a president, governor, mayor, and so on in this country) and citizens in cases of unjust use of executive power. As an aside, one must concede that the grand jury’s history is not altogether virtuous. There are far too many cases of grand jurors abusing the power and prestige of the institution by supporting big city and county bosses, jobbery, and slavery. In general, however, the grand jury’s considerable prestige is exemplified in such phrases as “the court of last resort,” “the sword and shield,” “the palladium of liberty,” and so on.

Another point of this short review of the history of liberty and self-government is that both necessarily require citizen oversight of how government conducts itself on behalf of citizens who create and support it. In this sense, the procedures of local government--how it does its job, not why--acquires an importance that many citizens do not recognize, understand, or appreciate. This assumes, of course, that the procedures themselves are reasonable, just, and lawful, and that they serve something more than the interests of those who govern, namely, to use the old terms, the “commonweal” or the “common good.”

The Role of the Civil Grand Jury

As I considered the question, “What is the role of the civil grand jury in California,” a theme ran through my thinking. The general idea was that the civil grand jury, by virtue of its statutes and case law, is uniquely suited for the role I believe it should enact in society. First, the several phases of its evolution coincide with the development of the idea of self-government through the centuries of its existence. Second, the term “grand jury” is familiar even to many citizens who know little or nothing about self-government. Third, its special place in the political history of Great Britain and the United States is the product of episodes in which it stood between citizens and the arbitrary abuse of government power. In short, the civil grand jury has the potential to play a role in society that no other institution can enact. The trick is for civil grand jurors to accept the responsibility for moving the institution further in the direction of that potential.

The word that I first thought of to describe the role of the civil grand jury in California was “reminder,” in the sense of one who reminds others of the vision, destiny, or ideals of an institution, society, or some other social system. Although “reminder” captured the essence of the civil grand jury at its best, I decided on the phrase “civics teacher” as an alternative. Unfortunately, “reminder” evokes images of sticky notes, shopping lists on refrigerator doors, and pieces of string tied around fingers. The word also seems less appropriate than “civics teacher” for another reason: It is unsuitable in situations where, for some reason, citizens never learned that of which they are to be reminded. Therefore, I use “teacher” or “civics teacher” until a better term is found.

Thinking of the civil grand jury as a teacher brings to mind that precocious and brilliant commentator on life in the United States four decades after the Constitutional Convention, Alexis de Tocqueville. He is often drawn into discussions about American political life and history, and for good reason. However, he did err on one point, in my opinion. Although he had a high regard for American juries, he saw one of the functions of our jury system as a school for civic education. Because of his well-deserved reputation as an astute observer of the American political system, his characterization of the jury as a means for training citizens in basic civics has been widely quoted. In this respect, I think Tocqueville had things upside down. It would be better for our country if jurors, including grand jurors, came to their tasks not as pupils, but as teachers. The implication of being a pupil is that one is learning something. In the case of the civil grand jury, not much can be accomplished by an aggregation of civic novices. Unfortunately, this is sometimes the case, which is one reason why civil grand jurors too frequently include in their final reports a thank you to the impaneling judge for “giving us the opportunity to learn about local government.”

Civil grand jurors and jurors who serve on indicting grand juries are, of course, citizens. Dozens of research reports have been written in recent years about how uninformed many citizens are about their governments. One hundred and seventy-four years after Tocqueville’s book was published, matters have improved little in this regard. However, as Jimmy Durante used to say, “Them’s the conditions that prevail.” Notwithstanding Tocqueville and Jimmy Durante, I still think civil grand jurors can be civics teachers rather than civics students. Here are three examples of what they could teach other citizens about local government at work, or not at work:

  1. An inspection of travel expenses claimed by a superintendent of schools revealed that he spent, without authorization, $16,000 a month for two years on air fares for himself and a female companion, bought her expensive meals in restaurants, and had roses regularly sent to the hotel rooms where the couple stayed during their domestic and foreign travels on “school business.”
  2. A sample study of dozens of coin-operated parking meters in the downtown business area of a large California city revealed that 66% of the parking meters were in error.
  3. A routine study of sales taxes collected by one of California’s largest cities disclosed discrepancies amounting to thousands of dollars that occurred because local tax-collecting agencies had not notified retailers of a State-mandated sales tax reduction.

These are not exactly the kind of grievances the barons who stared King John down at Runnymede had in mind, but they are about how local government functions. More than that, they illustrate the occasional misuse of the power--intentional or otherwise--of the executive branch of government, and in this sense, the barons might have applauded the citizens who discovered these problems.

Suppose that every California civil grand jury conducted two effective procedural investigations a year for each of 10 years. That would be more than 1,000 civics lessons a decade Statewide, possibly enough to command the attention of those we hire to develop and maintain the hundreds of procedures by which the work of local government is conducted each day. These, of course, are not very eye-catching or dramatic achievements and probably would not have made the headlines of the Runnymede daily Picayune Enquirer. But this much can be said for them: Their disclosure would contribute positively to the daily lives of citizens in the communities where these examples of citizen activism occurred.

As one of our most revered newsmen would say, here’s “the rest of the story.” A high school senior conducted the first of the three studies I summarized. The second and third projects were conducted by two different youngsters under the age of 16, with some parental guidance. The young man who outed the travel-loving school superintendent happened to be the editor of the school newspaper where he “broke” the story. Two years later, he was elected to the school board where he had conducted his research. Three school board members were voted out of office by citizens who backed the crusading young editor. The 12-year-old girl’s parking-meter project for a science fair resulted in State legislation to improve the accuracy of parking meters. I do not know what happened later to the youngsters who conducted the second and third studies. By now, they might be enrolled in Yale law school or the Kennedy School of Government at Harvard. As practitioners of applied citizenship, these young citizens are to be admired for the lessons they taught the King Johns of their local governments and the news media and other citizens of their communities.

The Grand Jury Civics Curriculum

You might have noticed that the three examples I just cited were not unlike what civil grand juries occasionally do in this State. You will find examples of civil grand jury achievements in my book, Grand Juries in California, so I will not repeat them here. Instead, let’s briefly consider the “reminder” or “civics teacher” role of the grand jury in light of these three examples; for example, what did public officials and other citizens learn from reading newspaper stories about these three accounts of active citizenship? Even more important, what were the self-government implications of the public exposure of the procedural failures in these three episodes? In particular, what do these examples have to do with self-government?

First, possibly the most important reminder for citizens in general is that ours is a political system in which citizens can inquire into local-government activities, with only very few exceptions.

Second, responsible civil grand jury investigations affirm a basic premise of self-government that the Founders often wrote about, namely, that nothing about the nature of self-government immunizes it from decay, degradation, and corruption. Only a vigilant citizenry can accomplish that task, and this is why Dr. Benjamin Rush commented that the American Revolution must never end.

Third, the incidents emphasize that there is much more to civic responsibility than voting, writing letters to the editor, paying taxes, marching in Fourth of July parades, and working for one’s political party.

Fourth, the incidents remind public officials of something I have heard them say themselves on occasion: “They keep us on our toes.”

Systems, methods, procedures, books, records, and accounts are the means by which local governments conduct work on behalf of citizens. These terms also define the jurisdiction of the civil grand jury in California. Because civil grand jurors have considerable autonomy in how they decide their agenda, they can entirely ignore these matters or concentrate intensely on them. When they do the former, the lesson their pupils (public officials or other citizens) learn is to ignore civic matters and abandon them to whomever “sees their opportunities and takes ’em.” When civil grand jurors use the statutes entrusted to them to scrutinize the method by which their local governments function, citizens learn more than the single lesson that “honest graft” is a risky business for those who conduct it. They learn that the dull-sounding terms such as systems, methods, procedures, books, records, and accounts define whether local government is conducted by the few for the few, or whether the phrase, “the public’s business” still has meaning. They also learn that because the business of local government is the public’s business, citizens have not merely the right to ensure that local government functions on their behalf, but they have an obligation to do so. Every time a civil grand jury recommends an improvement in how local government works, public officials and employees become pupils: They are reminded that when citizens inspect local-government operations, they do so in the spirit of constitutional self-government, which is the master lesson of the civil grand jury school house.

Conclusion

In some fashion, every procedure, system, or method is a tool for using the power of government. If a procedure, system, or method is destructive, most likely an abuse of power has occurred or will occur. Procedures, systems, or methods regulate the use of power or focus it effectively on some worthwhile objective. In contrast, a corrupted or ineffective system, method, or procedure is a sign of a corrupted or ineffective governmental power. Civil grand jurors who interpret the procedural emphasis of the institution’s enabling statutes as an unwarranted shackling of the exercise of its authority reveal a serious limitation of civic imagination. Even if a citizen’s complaint is entirely about a matter of public policy, a careful analysis of it will almost always reveal that it involves, or could involve, one or more procedures. Thus, thorough deliberation about an issue that seems at first glance to be about policy might disclose its procedural, systems, or methods implications, thereby opening the door for a productive civil grand jury inquiry.

The policy–procedure distinction is more than a technical nicety. If the statutes pertaining to the civil grand jury were explicit about this matter, much of the confusion, uncertainty, and controversy that arise every year among civil grand jurors and elected and appointed officials would be prevented. However, if the California State Legislature does not clarify or update the statutes in this regard, civil grand jurors can nevertheless benefit from the distinction by observing it during their terms of service. Adding a few paragraphs about the distinction in their final reports and procedure manuals would accomplish much, providing the wording is clear, examples are provided, and the wisdom and rationale of the distinction is explained.

If civil grand jurors confine their energies to the evaluation of local-government procedures, systems, methods, and so on, they will encourage improvements in their local communities that cannot be achieved by fruitlessly diluting their time and resources as trespassers on the policies of elected and appointed officials. Acting either on the complaints of citizens or on their own initiative, civil grand jurors will enhance the effectiveness of the institution if they conduct a few investigations into crucial procedures thoroughly rather than superficially investigating many.

By carefully focusing their energies on what the statutes permit, civil grand jurors can transform the civil grand jury from a hazily perceived civic curiosity into a vital, necessary function as a teacher of the art of self-government. One lesson to be taught is that honest, effective, and efficient local government results from well-conceived-and-implemented methods, systems, and procedures. When civil grand jurors rise to the challenge of objectively and thoroughly evaluating local-government procedures without hiring consultants or “experts” to do so, they affirm that citizens of their communities are capable, without expert assistance, of successfully monitoring how well public officials and employees serve the men and women who elect and employ them. The civil grand jury thereby becomes a role model for other citizens who might be motivated to conduct such research themselves.

The leading civics lesson that civil grand jurors can teach their fellow citizens is how they can see themselves, not as passive subjects of monarchs but as active officers of the public corporations called local governments. In an era plagued by reports of public corruption, civic disillusionment among citizens, and a growing concern about the legitimacy of government, it is difficult to think of any function more important for civil grand jurors than reminding themselves, other citizens, and those who operate the machinery of local government that this mechanism must be appropriate for our form of government rather than that of dictatorships, kleptocracies, or oligarchies.

I would like to conclude with an original thought to encourage you in the year ahead. Unfortunately, I cannot improve on what Mark Twain told a group of young people in 1901: “Always do right. This will gratify some people and astonish the rest.”


May 1, 2008

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