MATTHEWS, Chief Justice.
These appeals concern an investigative grand jury report which was subject to judicial review under Criminal Rule 6.1. The issue raised in O'Leary v. Superior Court, No. S-4105, is whether Criminal Rule 6.1 violates article I, section 8 of the Alaska Constitution. We answer that it does not.
The issue presented in In re Special Grand Jury, Nos. S-4131-34, 4159, is whether the superior court erred in ordering the entire report released. After oral argument in this case we ordered that only the "Findings, Recommendations and Conclusions" section of the report be immediately released. The names of the interested parties were deleted from that section. We have thus, implicitly, ruled that the superior court erred in ordering the entire report released. In this opinion we explain the reasons for our ruling. In addition, we order that much of the remainder of the report be released.
At the request of Alaska's Attorney General, the grand jury for the third judicial district began an investigation into the conduct of the Anchorage School District, the Anchorage Police Department and the Anchorage District Attorney's Office, relating to the investigation of a Bartlett High School teacher's sexual relationships with students.
On March 5, 1990, the grand jury issued Part I of its report which identifies deficiencies in certain statutes and policies regarding the reporting and investigation of sexual misconduct with school children. It contains recommendations for statutory and policy changes. The grand jury also explained that it had prepared a second part of its report which addressed the actions of the school district, the police department and the district attorney's office and of individuals employed by those organizations. Part II of the report was submitted to the superior court on March 15, 1990.
On March 19, 1990, the court issued an order finding that Part II meets the requirements of Criminal Rule 6.1(a)(1) and (2).
In compliance with 6.1(c) and (d) the court identified individuals whose activities were discussed in Part II, and provided them with copies of the report. Under 6.1(c)(2) any person named or identifiable has an opportunity to request a hearing, and many of them did so. They are referred to collectively in this opinion as "interested parties."
In the course of the 6.1 proceedings the court reconvened the grand jury in order to give it an opportunity to consider the written responses and testimony from certain interested parties.
While the superior court was still conducting judicial review of Part II under Rule 6.1, appellant Kevin O'Leary, Chief of the Anchorage Police Department, filed an application for original relief in this court, claiming that Criminal Rule 6.1 was unconstitutional. The application was remanded to the superior court for decision. Two newspapers, the Anchorage Daily News and the Anchorage Times, intervened at the superior court level and made similar claims. The superior court structured the proceedings to maintain the confidentiality of Part II of the report. The grand jury and two prosecutors, Stephen Branchflower and Dwayne McConnell, also joined O'Leary in arguing that Criminal Rule 6.1 is unconstitutional. The interested parties opposed O'Leary's application.
On August 1, 1990, the court issued an order ruling that "the applications of all parties to hold Criminal Rule 6.1 unconstitutional are denied." From this order O'Leary has appealed. The newspapers, the prosecutors and the grand jury join in this appeal.
II. CRIMINAL RULE 6.1 IS CONSTITUTIONAL
Criminal Rule 6.1 provides a procedure for judicial review of grand jury reports before they are published. Under the rule, reports that may damage the reputation of a person are subject to review to determine whether (1) they concern the public safety and welfare, (2) they improperly infringe upon a constitutional right of any person, and (3) the factual findings they contain are supported by substantial evidence. In addition, interested parties may be afforded an opportunity to present evidence to the grand jury and to append an explanation to the report when it is published. The question presented is whether these procedures violate the anti-suspension clause of article I, section 8 of the Alaska Constitution. Article I, section 8 provides:
The appellants' arguments that Criminal Rule 6.1 violates the anti-suspension clause are generally conclusory in nature. O'Leary states that the anti-suspension clause "leaves no room for interpretation that results in any restraint or censorship on the grand jury investigatory and reporting functions"; that the grand jury is not a part of the judicial branch of government; and that it has "an unfettered power to investigate and make recommendations." None of these conclusions are supported by case authority.
O'Leary's contention that the grand jury is not a part of the judicial branch of government seems plainly wrong. Grand juries have traditionally been viewed as an arm of the court system.
O'Leary's argument that the grand jury is not subject to "any restraint" and has "unfettered power" is also unsupported by authority. The argument, if correct, would mean that the grand jury could operate lawlessly, ignoring evidentiary privileges as well as the constitutional rights of those appearing before it. Such a position is supported by no case law of which we are aware. It is refuted by case law from the state of New York construing an analogous provision of the New York Constitution.
Section 6 of article I of the New York Constitution provides:
The New York courts have held nonetheless that the grand jury's power to investigate is subject to various legal controls:
Stern v. Morgenthau, 62 N.Y.2d 331, 476 N.Y.S.2d 810, 812, 465 N.E.2d 349, 351 (1984) (emphasis added) (citation omitted); see also Beach v. Shanley, 62 N.Y.2d 241, 476 N.Y.S.2d 765, 465 N.E.2d 304 (1984) (grand jury may not subpoena TV reporter to obtain testimony as to reporter's source because of statutory "shield law").
In Beach, the New York Court of Appeals expressed and rejected an argument as broad as O'Leary's concerning New York's analogous constitutional provision:
Beach, 476 N.Y.S.2d at 772, 465 N.E.2d at 311 (footnote and citations omitted). The court noted that the New York Constitutional Convention was prompted to adopt its anti-suspension clause because "at a special session of the [Pennsylvania] Legislature a statute was adopted suspending the grand jury investigation into a public official, and depriving the grand jury of the power to act in the matter." Beach, 476 N.Y.S.2d at 771, 465 N.E.2d at 310.
Implied in the majority's opinion in Beach and expressed in the concurring opinion of Judge Wachtler is the conclusion that had the reporter's privilege been found to have been of constitutional magnitude under the state constitution the privilege would have even more clearly been entitled to recognition notwithstanding the anti-suspension clause.
New York's anti-suspension language also does not prevent a court from editing an indictment if the goal is the protection of a constitutional right. In People v. Cirillo, 100 Misc.2d 527, 419 N.Y.S.2d 820 (1979), the defendant was charged in an indictment with three counts of perjury. He moved to amend the indictment seeking to strike the phrases "a narcotics violator" and "the narcotics violator" replacing each with his name. He asserted that the phrases were highly prejudicial and inflammatory and that their use in the indictment which was to be read to the petit jury "was in effect a flag that the said defendant was a criminal before even one scintilla of evidence was presented to the jury." While recognizing that it had no statutory authority to amend an indictment on a defendant's motion, the court, nonetheless, ruled that it inherently has this power.
Id., 419 N.Y.S.2d at 823-24 (citations omitted). Although the court did not specifically discuss the New York Constitution's non-suspension language, it did state,
Id., 419 N.Y.S.2d at 825.
Criminal Rule 6.1 is intended to guard against violations of the Alaska Constitution by a grand jury. Review to determine whether a report concerns the public safety or welfare
Reputation interests are entitled to a measure of protection under the due process clauses of the fourteenth amendment and of the Alaska Constitution.
Similar statements have been made in the grand jury context: "The courts have recognized [that injury to one's good name and reputation and impairment of one's ability to obtain employment] are substantial and legally cognizable interests entitled to constitutional protection against official governmental action that debases them." United States v. Briggs, 514 F.2d 794, 797 (5th Cir.1975). In Briggs the issue was whether individuals named by the grand jury as co-conspirators who were not indicted suffered any injury protected by the due process clause of the fourteenth amendment. The government had argued that "one's interests are not adversely affected to any extent by being publicly branded as a felon so long as he is not named as a defendant," and "if appellants have suffered injury it is at the hands of only the news media to whom they should repair for relief." Id. at 799. The court rejected these arguments and held that the grand jury's actions violated the fourteenth amendment. See also United States v. Chadwick, 556 F.2d 450, 450 (9th Cir.1977) (per curiam) ("charging appellant with the offense without making him a defendant was beyond the authority of the grand jury and a denial of due process"); Application of United Electrical, Radio & Machine Workers, 111 F.Supp. 858, 867 (S.D.N.Y. 1953) ("[A] man should not be subject to a quasi-official accusation of misconduct which he cannot answer in an authoritative forum. The Grand Jury ... when it issues such reports, is imposing the punishment of public reprimand... .").
We have held that review of the evidentiary basis for government action is an essential part of due process.
K & L Distribs. v. Murkowski, 486 P.2d 351, 358 (Alaska 1971).
Moreover, the language of the sentence containing the anti-suspension clause implies that there must be an evidentiary basis for the grand jury's recommendations.
Note, The Reportorial Power of the Alaska Grand Jury, 3 Alaska L.Rev. 295, 325-26 (1986).
Thus the requirement of Criminal Rule 6.1 that recommendations be based on substantial evidence elicited in the course of the grand jury's investigation is based both on due process considerations and on the connection between the investigation and the recommendation made in article I, section 8 of our constitution.
In our view, the anti-suspension clause does not prohibit reasonable procedural rules governing the issuance of grand jury reports.
Grand juries are an arm of the court system. As such, their operations are governed by the rules of administration, practice and procedure which the supreme court is constitutionally empowered to promulgate under article IV, section 15 of the Alaska Constitution.
The council also stated:
In promulgating Criminal Rule 6.1, we agreed with the council's conclusion that rules governing the exercise of the grand jury's investigative and reporting function were necessary in order to ensure fundamental fairness to those whose reputations might unjustifiably be injured by a grand jury report and to ensure that such reports are issued in compliance with constitutional requirements. In reaching this conclusion, we are by no means alone. All the commentators of whom we are aware who speak to the subject express the view that procedural limitations are desirable, or essential,
The framers of our constitution were acutely concerned with the need to protect the rights of citizens. This need was the chief reason cited by the primary sponsor of the grand jury reporting power to support the need for the power.
The delegates hoped to avoid the excesses which they felt were characterized by the conduct of Senator Joseph McCarthy: "[H]e indulged in vilification, character assassination, and an intimation of guilt by association."
It is not reasonably possible to believe that our constitutional framers who were so protective of personal reputational interests that they desired the legislature to make rules affording due process to those involved in legislative investigations also intended grand jury investigations to be free from due process constraints. In fact, as noted, the delegates believed that the due process clause already provided the same protection in the context of the judiciary, although grand juries were not specifically mentioned in this discussion.
Indictments issued by grand juries have traditionally been subject to various forms of judicial review. The anti-suspension language of our constitution was imported without discussion from the Missouri Constitution, which in turn is based on the New York Constitution.
The courts of the state of Alaska have the constitutional duty to review actions by agencies of the state in order to ensure compliance with all provisions of the Alaska Constitution. Malone v. Meekins, 650 P.2d 351, 356 (Alaska 1982); K & L Distribs. v. Murkowski, 486 P.2d 351, 357-58 (Alaska 1971). This function applies not only to coordinate branches of government such as the legislature, Malone, supra, and the executive branch, K & L Distribs., supra, but to component parts of the judiciary such as lower courts, and the grand jury.
Appellants also alleged that Criminal Rule 6.1 violates the first amendment of the United States Constitution and article 1, section V of the Alaska Constitution, is an improper exercise of the court's rulemaking power, is contrary to the state's public records acts, AS 09.25.100-.125, and serves to unconstitutionally expand the superior court's jurisdiction. Upon consideration we find that all of these allegations lack merit. See Hammond v. Brown, 323 F.Supp. 326, 350 (N.D.Ohio 1971), aff'd 450 F.2d 480, 482 (6th Cir.1971) (per curiam); McClatchy Newspapers v. Superior Court, 44 Cal.3d 1162, 245 Cal.Rptr. 774, 786-88, 751 P.2d 1329, 1341-42 (1988) (en banc); People v. Superior Court of Santa Barbara County, 13 Cal.3d 430, 119 Cal.Rptr. 193, 200, 531 P.2d 761, 768 (1975).
III. RELEASE OF PORTIONS OF PART II OF THE GRAND JURY REPORT
As previously indicated, at the conclusion of oral argument this court ordered that all of Part II of the Grand Jury Report entitled "Findings and Recommendations and Conclusions" (hereafter Recommendations) be immediately released, deleting only the names of interested parties. We noted that the question whether more of the Grand Jury Report would be released remained under advisement and that an opinion would follow. We now explain our reasons for ordering the immediate release of the Recommendations.
First, because article I, section 8 explicitly grants authority to grand juries "to make recommendations concerning the public welfare or safety" it is our view that the Recommendations are constitutionally authorized. The background text consisting of some 70 pages detailing the dispute
Second, we ordered release of the Recommendations on the same day we heard oral argument. This was some two weeks before a municipal election in which the office of mayor and certain municipal assembly and school board seats were being contested. Because the grand jury Recommendations were generally critical of school district actions, while finding that the police and the district attorney's office had acted appropriately, we believed that the Recommendations should be immediately released as they might have a bearing on the election. The Recommendations mentioned the names of certain interested parties who had argued that the report would adversely reflect on them. We ordered their names deleted as they were not essential to understanding the Recommendations.
We are now persuaded that the names of most of the interested parties mentioned in the Recommendations should be released. In the main, the Recommendations do not adversely reflect upon them in any serious or substantial way. Further, except as noted below, the grand jury's characterization of the interested parties' conduct meets the substantial evidence standard under Criminal Rule 6.1(c)(5).
Despite ordering the release of most of the names mentioned in the grand jury's Recommendations, we note that grand jury procedures are not well designed to provide balanced fact finding. Although the grand jury consists of unbiased citizens, the only attorney to appear before the grand jury is the prosecutor.
In one respect the Recommendations reflect adversely on individuals in a manner unsupported by substantial evidence. Since the Recommendations have already been released, the only meaningful remedy at this point is to continue to withhold the names of the interested parties whose reputations would otherwise unjustly be damaged.
In four paragraphs beginning with subparagraph (b) on page 75 of the Recommendations, the grand jury states that school officials violated an "ethical if not a legal obligation ..." concluding that school officials report of their investigation to the state "could be interpreted as an attempt to gain statutory immunity ... `just in case' a report was legally required." Use of the term statutory immunity here is an
We turn now to the question whether any portion of the background text preceding the Recommendations should be released. Although release of this text is not constitutionally required, it is part of the Grand Jury Report and should be released under Criminal Rule 6.1 unless the provisions of that rule require that some or all of it remain confidential.
Most of the first 70 pages of Part II of the report relate the history of the investigation of the Bartlett High School teacher's sexual relationships with high school students. We have reviewed this material and believe that it does not adversely reflect on the interested parties — as distinct from the Bartlett High School teacher — in any serious or substantial way. Moreover, the grand jury's description of the interested parties' conduct suggests that the substantial evidence standard of Criminal Rule 6.1(c)(5) would be satisfied in any case.
However, there is an exception to this conclusion. The grand jury details information which had previously remained confidential concerning an investigation of allegations of sexual misconduct on the part of two other teachers. The names of these teachers are not mentioned but they are identifiable given other information in the report, and they are interested parties herein. These allegations were resolved in favor of the teachers and none of the parties before this court now claim that the allegations had merit. Nonetheless, the allegations are contained in the grand jury report "in order for the grand jury to fully understand the motives and actions of individuals involved in the [present controversy]."
While it may have been useful for the grand jury to review the prior investigation, no similar purpose is served by publication of its details. The grand jury's discussion of the allegations against the teachers adds little or nothing to the comprehensibility of the Recommendations. Publication of the discussion would gravely harm the reputations of the teachers. We therefore order expunged from the Grand Jury Report all mention of this investigation for two reasons. First, the allegations against the teachers were unsubstantiated and thus were unsupported by substantial evidence. Second, publication of the allegations would improperly infringe the constitutionally protected reputational interests of the teachers. There is no countervailing constitutional end to be served by publication of the allegations since they are not necessary to an understanding of the Recommendations made by the grand jury.
COMPTON, J., with whom BURKE, J., joins, dissenting.
RABINOWITZ, J., dissenting in part.
COMPTON, Justice, with whom BURKE, Justice, joins, dissenting.
Delegate Barr proposed to the delegates attending the Alaska Constitutional Convention that there be included in the constitutional provision establishing grand juries that the grand jury's "power ... to investigate and make recommendations concerning conditions involving the public welfare or safety shall never be suspended."
4 Proceedings of the Constitutional Convention 1405.
The contrary view is reflected in the remarks of Delegate Hellenthal, who stated:
Id. at 1406.
Despite the risks catalogued by Delegate Buckalew, it is evident that most of Alaska's founders believed the grand jury's power to investigate and recommend concerning the public welfare and safety should remain unfettered. Moments after Delegate Buckalew spoke against the proposal, the convention voted, by an overwhelming
Webster's Third New International Dictionary's first definition of "never" is "not ever: not at any time; at no time." Its second is "not in any degree: not in the least: not in any way: not under any condition." Its first definition of "suspend" is "to debar or cause to withdraw temporarily from any privilege, office, or function." Indeed, the next three definitions are similar. Criminal Rule 6.1, adopted by this court pursuant to its rule making authority, not only suspends the power of grand juries to investigate and make recommendations concerning the public welfare or safety, but also permits censorship of a grand jury report generated as result of the exercise of that power before the report is even published.
The court justifies suspension and censorship of a report under the guise of protecting "any person" from improper infringement of their constitutional rights that would result from publication of the report, Rule 6.1(b)(2), or from being adversely reflected on by being "named or otherwise identified" in the report, Rule 6.1(c). It asserts that constitutional justification for the rule is found in the fourteenth amendment to the United States Constitution and in article I, section 7 of the Alaska Constitution, each of which mandate that a person may not be deprived of life, liberty, or property without due process of law. Citing Wisconsin v. Constantineau, 400 U.S. 433, 436-37, 91 S.Ct. 507, 509-10, 27 L.Ed.2d 515 (1971), the court reasons that when the state affects a person's reputation interest by attaching a "badge of infamy" to that person, the state is depriving that person of life, liberty, or property. Therefore, notice and an opportunity to be heard, i.e. due process of law, are essential. Suspension and censorship of the grand jury report in accordance with Rule 6.1 protects the person's reputation interest and hence is a constitutionally permissible method of assuring due process of law.
If the court is concerned that a person named or otherwise identified in a report, in a manner that will adversely reflect on that person, be given notice and an opportunity to be heard, a simplification of procedures contained in Rule 6.1(c) and (d) would be adequate to satisfy that concern. However, the prepublication suspension and censorship procedures provided in Rule 6.1 go far beyond satisfying that concern.
I agree with the court that the grand jury is part of the judicial function of government, and that courts have the power to edit grand jury indictments, and hence by implication edit grand jury reports that do not result in indictments. I also agree that courts are not prevented from protecting in some manner against grand jury violations of constitutional rights. However, I cannot agree that courts have the power of pre-publication suspension of grand jury reports or suppression of grand jury reports in whole or in part to protect against a grand jury violation of constitutional rights.
Most of the cases cited by the court to support its argument do not arise in in camera secrecy. An indicted defendant who moves to dismiss the indictment for insufficiency of evidence presented to the grand jury, or for procedural irregularities or misconduct on the part of actors in the grand jury proceedings, is nonetheless a named person who, after the fact, files pleadings which are public documents. That defendant's forum is a public judicial forum, even though that defendant may suffer a consequential and significant loss of reputation simply by being indicted, and even though the indictment is dismissed and the defendant never again indicted. That defendant's reputation interest may
Although "[an] indictment is not a `report' as used in [Criminal Rule 6.1] and Criminal Rule 6," a grand jury report may include allegations of criminal conduct. Criminal Rule 6.1(a)(2). It must follow from the court's reasoning that as long as all the required procedures are followed, a person named in a grand jury report may be alleged to have engaged in criminal conduct, yet aside from attaching a denial to the report, that person has no public judicial forum in which to vindicate a compromised reputation interest. Furthermore, Criminal Rule 7(c) provides that when an indictment is found, "the names of all witnesses examined before the grand jury must be inserted at the foot of the indictment, or endorsed thereon, before it is presented to the court." An indictment is a public record. Criminal Rules 6(l)(2) and (n)(1). Since the public does not know why, and may never be told why a witness was called before a grand jury which indicts a soon to be notorious defendant, that witness's reputation interest may be severely compromised, yet that witness has no public judicial forum in which to vindicate the compromised reputation interest.
I fail to understand why the reputation interest of some persons is to be protected by Criminal Rule 6.1 procedures, while the same interest of another receives no protection. The court provides no guidance, for it fails to articulate why the reputation interest of some persons is of constitutional magnitude, while the reputation interest of others is not apparently so elevated.
I do not disagree that procedures should be developed which provide "any person who is named or otherwise identified" with notice and an opportunity to be heard for the purpose of presenting his or her side of the story. Nor should persons within that class be limited to those whose reputation interest is compromised in the report of an investigative grand jury.
While I cannot understand why any person named or otherwise identified in an indictment should be treated differently from those "named or otherwise identified" in a grand jury report, it is not this anomaly that causes me to conclude that Criminal Rule 6.1 is inconsistent with article I, section 8 of the Alaska Constitution. The anomaly serves to highlight the failure of the court to utilize the proper analytical framework in determining the issue presented. Assuming that a reputation interest is protected under the Alaska Constitution, a proposition never before articulated by this court, the analysis should take place in the context of two constitutional provisions which are apparently irreconcilable. Unfortunately the focus of the court's analysis is directed to cases concerning the power of a court to adjudicate issues relating to grand jury proceedings after the fact, when it should be focused on the tension between a constitutionally created judicial body constitutionally empowered to investigate and recommend in the name of public welfare or safety, and the constitutional right of a person not to be "deprived of life, liberty, or property, without due process of law." Alaska Const., art. I, § 7. To resolve this conflict, I believe the court must first determine what is meant by the "anti-suspension" clause of article I, section 8. It chooses not to do so.
The requirement of Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), is that of notice and an opportunity to be heard. The United States Supreme Court does not suggest that the opportunity must be in camera, that it must be afforded before the fact, or that unless supported by substantial evidence, the state may not attach a "badge of infamy" to a citizen without first providing a private judicial forum to adjudicate the citizen's objections. Yet this court, in adopting Criminal Rule 6.1, has adopted what I believe to be the most restrictive construction of the "anti-suspension" clause imaginable.
The apparent conflict between article I, sections 7 and 8 of the Alaska Constitution can be reconciled by providing "any person" with notice and an opportunity to be heard during the course of grand jury proceedings, utilizing procedures herein suggested or elsewhere developed. The grand jury, and not the courts, can choose matters on which it reports and recommends, and the manner in which to do so. Its constitutional power shall never be suspended by the overlay of cumbersome procedures which provide for private judicial adjudications and review of whether the report it is to publish adversely reflects on someone, or otherwise allegedly violates his or her constitutional rights. If an aggrieved person disagrees with the report, either because it adversely reflects on that person, or because a constitutional right of that person is allegedly violated, he or she can seek relief in a public judicial forum. Alaska's constitution will not have been compromised in the process.
In my view Criminal Rule 6.1 violates the "anti-suspension" clause of article I, section 8 of the Alaska Constitution. Therefore I dissent.
RABINOWITZ, Justice, dissenting in part.
I join in the court's decision that Criminal Rule 6.1 is constitutional. I further agree with the holding of Part III expunging the section of the Report concerning the investigation of irrelevant and unproved allegations of misconduct by "two other teachers." While I agree that the bulk of the Report and Recommendations should be published, I conclude that several portions of the Report fail the Rule 6.1 test for publication and therefore should be expunged from the report prior to its release.
My disagreement is based upon the three part test of Criminal Rule 6.1.
Speculation about attempts to conceal wrongdoing and provocation of APD.
The Report refers to "fear and mistrust" and "intimidation" within Anchorage School District (ASD), and what "provoked" the Anchorage police department's
The background text: implication of perjury.
Section G of the background text is entitled "Perjury." This section begins, "[t]he Grand Jury did not indict anyone for perjury under AS 11.56.200(a) due to its belief that the evidence would not justify a trial jury in finding the elements of perjury beyond a reasonable doubt... ." The Report then describes what can be assumed are the facts upon which it bases its conclusion. Again applying a Rule 6.1 analysis, I conclude that section G should not be published.
Section G implies that various officials committed perjury, yet the evidence submitted to the grand jury was insufficient to support an indictment for this crime. A grand jury report should not be used as a vehicle to defame those whom the grand jury lacks sufficient evidence to indict.
(1) A grand jury may investigate and make reports and recommendations concerning the public safety or welfare. An indictment is not a "report" as used in this rule and Criminal Rule 6.
(2) A grand jury report may be made only upon the concurrence of a majority of the total number of grand jurors on the panel at the commencement of the proceedings resulting in the report. The report must be signed by the foreperson. A grand jury report may include allegations of criminal conduct.
(1) The judge shall determine first whether the report satisfies the requirements of subparagraph (a)(1) & (2). If it does not, the judge shall proceed under subparagraph (b)(3).
(2) The judge shall then determine if publication of the report would improperly infringe upon a constitutional right of any person, including but not limited to improper interference with a person's right to privacy or right to a fair trial in a pending or planned criminal proceeding. The judge shall make an ex parte on the record inquiry of the prosecuting attorney about any planned or pending criminal prosecutions related to the subject of the grand jury report.
(3) If the judge determines that the report does not meet the standards of subparagraphs (a)(1), (a)(2) or (b)(2) the judge shall return the report to the grand jury with an explanation of the reasons for returning the report. The grand jury may conduct further proceedings, revise the report, or seek appellate review of the judge's decision not to release the report.
(1) The judge shall order that notice of the report be provided to the person. The notice must advise the person of his or her rights as provided in this paragraph.
(2) The person may move, within ten days of notice of the report, for a hearing. The hearing will be held in camera and on the record.
(3) The person must be given a reasonable period of time prior to the hearing to examine the grand jury report and the record of the grand jury proceedings. A person receiving notice or a copy of the report and record may not disclose any matter occurring before the grand jury except as permitted by the court. Each person receiving these materials must be advised of this obligation.
(4) The person named or otherwise identified in the report may be represented by counsel at the hearing and may present argument as to whether the standards stated in subparagraph (c)(5) are satisfied. The prosecuting attorney may be present at this hearing and may also present argument. Neither side may present evidence nor examine witnesses, except that the named or otherwise identifiable person may submit a written response to the grand jury report which the person may request that the court issue with the report under paragraph (d).
(5) The judge shall determine at the close of the hearing whether that part of the report which may adversely reflect upon a named or otherwise identified person is supported by substantial evidence or, if raised at the hearing, whether the report satisfies the requirements of paragraph (b) of this rule and paragraph (1) of Criminal Rule 6. If the judge finds that these requirements are not satisfied, the judge shall return the report to the grand jury with an explanation of why the report has not been released. The court may request that the grand jury consider further evidence as to the named or otherwise identifiable person. The grand jury may conduct further proceedings, revise the report, or seek appellate review of the decision not to release the report.
(1) The court shall withhold publication of the report until the expiration of the time for making a motion for a hearing under paragraph (c). If such a motion is made, publication must be withheld pending a ruling on the motion or pending any review under paragraph (e). All proceedings under this rule are confidential until the presiding judge orders the report released.
(2) If the judge finds that the standards of paragraphs (b) and (c) are met, the judge shall order the report released. The judge may order that a response to the report by a person named or otherwise identified, or other additional materials, be attached to the report as an appendix. The report and any appendices will be filed with the clerk of the court and made available for public inspection. The court shall also direct that copies of the report and any appendices be sent to other persons as reasonably requested by the grand jury.
(1) A judicial determination under paragraph (d) of this rule is a final order for purposes of appeal. Such an appeal is governed by Appellate Rule 216 except that the appeal is to the Supreme Court. Any named or otherwise identifiable person, the state, or the grand jury by majority vote may seek review of the presiding judge's decision.
(2) The grand jury will be permitted access to the record of the in camera hearing to assist it in determining whether to pursue appellate review. The grand jury shall maintain the confidentiality of this record.
Weinstein & Shaw, Grand Jury Reports — A Safeguard of Democracy, 1962 Wash.U.L.Q. 191, 196-198, n. 28. The Missouri clause, in turn, was proposed by the Preamble & Bill of Rights Committee of the Alaska Constitutional Convention for inclusion in the Alaska Constitution. Proceedings at 1325. After various amendments only the anti-suspension language was actually incorporated in the Alaska Constitution.
In both New York and Missouri, indictments are routinely reviewed and dismissed if the reviewing court finds that the defendant's constitutional rights have been violated. See, e.g., State v. Garrett, 627 S.W.2d 635 (Mo. 1982) (en banc) (indictment challenged on the grounds that it did not contain all the essential elements of the offense and that the procedures by which the grand jury and its foreman were selected were unconstitutional); State v. Tressler, 503 S.W.2d 13 (Mo. 1973) (indictment reviewed on grounds that the Missouri grand jury system deprived defendant of his constitutional right of confrontation and his right to presence of counsel); State v. Easter, 661 S.W.2d 644 (Mo. App. 1983) (indictment reviewed to determine whether prosecutor abused the grand jury subpoena power or breached duty to present exculpatory evidence); State v. Halliburton, 531 S.W.2d 554 (Mo. App. 1975) (criminal rule requires the court to evaluate the sufficiency of the indictment and indictment may be dismissed for vagueness if it does not advise defendant of the constituent facts necessary to acquaint him with the particular charges); People v. Bacote, 143 Misc.2d 535, 541 N.Y.S.2d 305 (Sup.Ct. 1989) (indictments dismissed because the prosecutor gave the grand jury an erroneous instruction); People v. Guzman, 137 Misc.2d 129, 520 N.Y.S.2d 117 (Sup.Ct. 1987) (indictments reviewed and dismissed because prosecutor failed to reread appropriate instructions at time grand jury was considering particular case); People v. Ali, 137 Misc.2d 812, 523 N.Y.S.2d 334 (Sup.Ct. 1987) (indictments found to be defective on grounds that grand jury was presented with insufficient evidence to sustain charges and that district attorney failed to instruct grand jury on possible defense); People v. Williams, 136 A.D.2d 132, 526 N.Y.S.2d 581 (1988) (indictments dismissed on ground that grand jury inadequately instructed).
The senate's attention to the issue of the power of grand juries to investigate and make recommendations was brought in focus by a July 1, 1985 First Judicial District Grand Jury Report recommending that the senate begin impeachment proceedings against Governor Sheffield. The rules committee of the senate held impeachment hearings, but did not adopt articles of impeachment. The episode is discussed in Note, The Reportorial Power of the Alaska Grand Jury, 3 Alaska L.Rev. 295 (1986) and in Stern, Revealing Misconduct by Public Officials Through Grand Jury Reports, 136 U.Pa.L.Rev. 73, 79-82, 115-25 (1987).
The California Supreme Court wrote in People v. Superior Court of Santa Barbara County that
531 P.2d at 767-68.