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THE PEOPLE, Appellant,
v.
TULARE COUNTY SUPERIOR COURT, Respondent.
No. F040745
In the Court of Appeal of the State of California
Fifth Appellate District
(Super. Ct. No. 51704)
APPEAL from a judgment of the Superior Court of Tulare County.
Martin Staven, Judge.
COUNSEL
Phillip J. Cline, Tulare County District Attorney, Don
H. Gallian, Assistant District Attorney, Carolyn B. Turner, Assistant
District Attorney, and Barbara J. Greaver, Deputy District Attorney,
for Appellant.
Kathleen Bales-Lange, County Counsel, and John A. Rozum
and Bryan C. Walters, Deputy County Counsel, for Respondent.
Filed March 26, 2003
A county grand jury sought access to certain juvenile
court records under Welfare and Institutions Code section 827,
[FOOTNOTE 1] subdivision (a)(1)(M). The trial court denied the
petition; we affirm. We hold that the grand jury failed to demonstrate
the records were necessary or relevant to any specific grand
jury investigation.
Appellant Tulare County Grand Jury filed a petition
in the Tulare County Superior Court under section 827, subdivision
(a)(1)(M) (subpart (M)), for an order permitting appellant to
inspect all the records of the juvenile court pertaining to In
Re Isaiah C. (Tulare County Superior Court No. J51704), a
dependency proceeding. Appellant did not support its petition
with any particular facts showing "good cause" for
the records except to state that the records were required in
connection with an ongoing "public watchdog" investigation
being conducted by appellant under Penal Code section 925. (See
McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d
1162, 1170.) The juvenile court denied the petition after appellant
refused to provide the court with any further information about
the nature or extent of its investigation or the relationship
and relevance of the records to the investigation; appellant
took the position that divulging such information would constitute
a violation of the rule of grand jury secrecy. (See, e.g. Daily
Journal Corp. v. Su perior Court (1999) 20 Cal.4th 1117,
1124-1126, 1128-1129 ( Daily Journal ) [there is a "'
strong historic policy of preserving grand jury secrecy' "
]; McClatchy Newspapers v. Su perior Court, supra, at
p. 1174-1175, 1180 ["[G]rand jury secrecy is the rule and
openness the exception, permitted only when specifically authorized
by statute" ] People v. Su perior Court (2000) 78
Cal.App.4th 403, 415-416 [grand jury process must be kept confidential].)
[FOOTNOTE 2]
DISCUSSION
I.
Section 827 and California Rules of Court, [FOOTNOTE
3] rule 1423, which control the dissemination of confidential
juvenile records, reflect a determination by the Legislature
that the juvenile court has both the "' sensitivity and
expertise' to make decisions about access to juvenile records."
( Pack v. Kings County Human Services Agency (2001) 89
Cal.App.4th 821, 827; In re Keisha T. (1995) 38 Cal.App.4th
220, 229.) Section 827 permits only certain identified categories
of individuals to inspect juvenile records without prior leave
of the juvenile court. (See § 827, subd. (a)(1)(A)-(L) (subparts
(A)-(L)).) Any "other person" not included in one of
the categories of subparts (A)-(L) who wants to see juvenile
records must secure the permission of the juvenile court. (Subpart
(M).) Subpart (M) gives the juvenile court the exclusive authority
to determine when juvenile records will be released to an "other
person." ( T.N.G. v. Superior Court (1971) 4 Cal.3d
767, 778; In re Tiffany G. (1994) 29 Cal.App.4th 443,
451; In re Michael B. (1992) 8 Cal.App.4th 1698, 1706.)
Because it is not among the chosen of subparts (A)-(L),
a grand jury has no self-executing right to inspect juvenile
records and thus must petition the court as any "other person"
under subpart (M). [FOOTNOTE 4] (In re Keisha T., supra, 38
Cal.App.4th at p. 232.) Rule 1423, subdivision (c),
requires that a subpart (M) applicant:
" petition the court for authorization using Judi
cial Council form JV-570, Petition for Disclosure of Juvenile
Court Records. The specific records sought shall be identified
based on knowledge, information, and belief that such records
exist and are relevant to the purpose for which they are being
sought. Petitioner shall describe in detail the reasons the records
are being sought and their relevancy to the proceeding or purpose
for which petitioner wishes to inspect or obtain the records."
(Rule 1423, subd.(c).)
When such a petition is presented, the juvenile court's
duty is to "balance the interests of the child and other
parties to the juvenile court proceedings, the interests of the
petitioner, and the interests of the public." (Rule 1423,
subd.(b).) To do so, the court "must take into account any
restrictions on disclosure found in other statutes, the general
policies in favor of confidentiality and the nature of any privileges
asserted, and compare these factors to the justification offered
by the applicant" in order to determine what information,
if any, should be released to the petitioner. ( Pack v. Kings
County Human Services Agency, supra, 89 Cal.App.4th at p.
829.) The court may permit access "only insofar as is necessary,
and only if there is a reasonable likelihood that the records
... will disclose information or evidence of substantial relevance
to the pending ... investigation." (Rule 1423, subd. (b).)
The process "may be lengthy, and the balance of the concerns
weigh predominately against access." ( Pack v. Kings
County Human Services Agency, supra, 89 Cal.App.4th at p. 829.)
Here, appellant made no showing, under the provisions
of rule 1423, subdivision (c) or otherwise, to warrant the release
of any of the desired records or information. Appellant simply
made a general request to the court for "[a]ll documents
within [the dependency] case file ... and information contained
therein," and appellant's only justification was the statement
"Grand Jury investigation pursuant to Penal Code 925."
Because appellant did not provide the court with any specific
facts concerning appellant's need for the records or their relevance
to any legitimate grand jury activity, the juvenile court had
no basis upon which to determine whether and to what extent the
request was appropriate. The court was unable to balance the
confidentiality interests of the juvenile with the interests
of the grand jury acting in its public watchdog function. The
court therefore properly denied appellant's subpart (M) petition.
II.
Appellant's stance on this appeal is the same as its
stance in the juvenile court. Appellant claims the juvenile court
was compelled to grant it unrestricted access to the identified
juvenile records with "no questions asked" because
it is a grand jury and there is a public interest in the unfettered
investigative power of the grand jury which overrides what appellant
characterizes as the public's lesser interest in the confidentiality
of juvenile court records. Citing M.B. v. Su perior Court
(2002) 103 Cal.App.4th 1384, appellant takes the position its
status as a grand jury armed with the power to investigate matters
of public concern established, without more, the required "good
cause" for an access order under subpart (M). Appellant's
argument rests upon the premise that there is an irreconcilable
conflict between section 827 and Penal Code section 925 which
must be resolved in favor of the public policy concerns underlying
Penal Code section 925. [FOOTNOTE 5]
We agree that strong public policy underlies the civil
investigative function of a grand jury. ( People v. Superior
Court (1973 Grand Jury) (1975) 13 Cal.3d 430, 436-437.) But
strong public policy also underlies the confidentiality accorded
to juvenile proceedings ( T.N.G. v. Superior Court, supra,
4 Cal.3d at p. 778); in fact, the policy is so substantial it
has resisted unrestricted intrusions based upon federal First
Amendment rights. (See San Bernardino County Dept. of
Public Social Services v. Superior Court, supra, 232 Cal.App.3d
at pp. 204-205.)
Appellant does not suggest a principled basis upon which
we might prefer its interests over those of the juvenile system;
appellant merely assumes that its identity as a grand jury suffices.
Whether this is so is beside the point, because we think any
conflict between the competing public policies has already been
resolved by the branch of government -- the Legislature -- vested
with the constitutional power to decide what is wise and what
is unwise public policy and which policy considerations are entitled
to preeminence. (See Superior Court v. County of Mendocino
(1996) 13 Cal.4th 45, 52-53 [the choice among competing public
policy considerations in enacting laws is a legislative, not
a judicial, function]; T.N.G. v. Superior Court, supra, 4
Cal.3d at p. 781 [Legislature's decision in favor of the confidentiality
of juvenile records represents a policy choice].) Thus far, the
lawmakers have not been of the mind to permit a grand jury to
have access to confidential juvenile records in the absence of
a court order entered upon an adequate showing of need and relevance.
Title 4 of Part 2 of the Penal Code, including sections 924 and
924.1, was first enacted in 1959. (Stats. 1959, ch. 501, p. 2443,
§ 1.) Penal Code section 924.1 was amended in 1986. (Stats.
1986, ch. 357, § 1.) Other provisions of Title 4 have been
amended and added to regularly over the years. The Supreme Court's
jurisprudence on the strict rule of grand jury secrecy extends
back to at least 1862. (See Daily Journal, supra, 20 Cal.4th
at pp. 1125-1126.) Section 827 was first enacted in 1961 (stats.
1961, ch. 1616, p. 3494, § 2) and has been amended virtually
every year since it first appeared (see Historical and Statutory
Notes to section 827). We must presume from this history that
the Legislature had the principle of grand jury secrecy in mind
when it produced, and as it has continuously changed, section
827 and thus that the Legislature intentionally omitted grand
juries from the select list found in the present version of subparts
(A)-(L). ( Bailey v. Superior Court (1977) 19 Cal.3d 970,
977-978, fn. 10.) And, even if the omission was the product of
legislative oversight, we cannot correct the mistake. ( Burden
v. Snowden (1992) 2 Cal.4th 556, 562 ["Where the words
of the statute are clear, we may not add to or alter them to
accomplish a purpose that does not appear on the face of the
statute or from its legislative history" ]; Or nelas
v. Randolph (1993) 4 Cal.4th 1095, 1105-1106, fn. 8 [accord];
see Code Civ. Proc., § 1858 [a court must not "insert
what has been omitted" ].) [FOOTNOTE 6]
Appellant also appears to take the position that rule
1423 is invalid because, by imposing specific procedural requirements
on a petitioner and by directing the factors the court must take
into account in ruling on a petition, the rule impermissibly
restricts what appellant claims is the juvenile court's subpart
(M) statutory authority to permit access regardless of any consideration
of "good cause." First, there is no fatal inconsistency
between rule 1423 and subpart (M). Section 827 authorizes certain
categories of individuals to have access to dependency records
without court permission and requires all others to secure a
court order as a condition of access. The Legislature's decision
to give some but not all persons free entry into juvenile records
manifests an intent that those not expressly enumerated must
show a legitimate need for the records. Rule 1423 is the Judicial
Council's considered statement of those procedures and elements
pertinent to a decision by the juvenile court to permit access
to one not automatically entitled to it. We think the contents
of the current rule deal with appropriate matters of procedure
and are not inconsistent with the letter or spirit of subpart
(M). (See Cal. Const. art. VI, § 6; Schmier v. Supreme
Court (2000) 78 Cal.App.4th 703, 709-710.) Indeed -- and
with apologies to Voltaire -- because the Legislature gave juvenile
courts the authority to receive and rule on petitions for access
but did not prescribe any implementing procedures or substantive
standards, if rule 1423 did not exist the courts would have to
invent it. (Code Civ. Proc. § 187; Walker v. Superior
Court (1991) 53 Cal.3d 257, 266-267 [courts have inherent power
to devise new procedures to help insure the efficient administration
of the courts]; In re Jeanette H. (1990) 225 Cal.App.3d
25, 34-35.)
Additionally, to the extent appellant means to say that
rule 1423 circumscribes what appellant considers the courts'
power under subpart (M) to permit access to a person not listed
in subparts (A)-(L) without a showing of good cause, the Legislature
rejected any intention to grant such unrestricted authority to
the courts by the very language used in section 827 and by the
manner in which the statute was constructed. Had the Legislature
been inclined to allow any applicant access to juvenile records
for any reason or for no reason, section 827 would not read as
it does.
Nothing in M.B. v. Superior Court, supra, 103
Cal.App.4th at p. 1384, persuades us otherwise. M.B. did not
address section 827. M.B. instead dealt with a subpoena duces
tecum issued in a criminal grand jury proceeding. The court held
that such a subpoena need not be supported by an affidavit demonstrating
"good cause" and materiality. ( Id. at p. 1393.)
The decision rested upon the distinction between general civil
proceedings and criminal proceedings, and found that Code of
Civil Procedure sections 1985 and 1987.5, the statutes which
require that an affidavit of good cause and materiality be served
with a subpoena duces tecum, simply did not apply to either criminal
trials or criminal grand jury proceedings. ( M.B. v. Superior
Court, supra, 103 Cal.App.4th at pp. 1394-1395.)
M.B. does restate the proposition that the "'
law presumes, absent a strong showing to the contrary, that a
grand jury acts within the legitimate scope of its authority.'
" (103 Cal.App.4th at p. 1386, italics omitted.) However,
the precedent for the principle was the United States Supreme
Court's opinion in United States v. R. Enterprises, supra
, 498 U.S. at pp. 300-301, a criminal case which addressed
only rule 17(c) of the Federal Rules of Criminal Procedure, and
the three opinions cited by the United States Supreme Court --
United States v. Mechanik (1986) 475 U.S. 66, Hamling
v. United States (1974) 418 U.S. 87, and United States v.
Johnson (1943) 319 U.S. 503 -- were also federal criminal
cases. Moreover, even if the presumption applies to civil grand
jury matters, there remains the Legislature's express exclusion
of all grand juries, whether or not acting within the scope of
their authority, from the list of persons and entities with an
untrammeled right of access to juvenile records and information.
A grand jury's desire for juvenile information which arises from
an otherwise legitimate investigation implicates the public policy
interests behind Penal Code section 925 but does not implicate
the public policy interests behind juvenile confidentiality,
and, as we have concluded, the Legislature in section 827 explicitly
rejected the notion that the former should always prevail over
the latter.
Undoubtedly the grand jury plays an important role as
a public watch dog ( McClatchy Newspapers v. Superior Court,
supra, 44 Cal.3d at p. 1170; Board of Retirement v. Santa
Barbara County Grand Jury (1997) 58 Cal.App.4th 1185, 1187),
but the standoff between the competing policies served by section
827 and Penal Code section 925, if there is such a standoff,
can only be resolved, if it is to be resolved, by the Legislature.
DISPOSITION
The order denying appellant's petition for access to
the specified juvenile court records and information is affirmed.
Each side shall bear its own costs on appeal. [FOOTNOTE 7]
Dibiaso, Acting P.J.
WE CONCUR: Buckley, J., Wiseman, J.
March 28, 2003 CALIFORNIA
::::::::::::::::::::::::::::: FOOTNOTE(S) :::::::::::::::::::::::::::::
FN1. All further references to "section 827"
or "§ 827" are to Welfare and Institutions Code
section 827.
FN2. The statutes pertaining to and governing grand
jury proceedings are found in Title 4 of Part 2 of the Penal
Code. Included among these provisions are Penal Code sections
924 [a grand juror who willfully discloses, before the defendant
has been arrested, the existence of a felony information or indictment
is guilty of a misdemeanor], 924.1, subdivision (a) [a grand
juror "who, except when required by a court, willfully discloses
any evidence adduced before the grand jury, or anything which
he himself or any other member of the grand jury has said, or
in what manner he or she or any other grand juror has voted on
a matter before them, is guilty of a misdemeanor" ], 924.2
[a grand juror must keep secret what he or she or any other grand
juror has said and how or in what manner he or she or any other
grand juror has voted], and 924.3 [a grand juror may not be questioned
about anything said by the grand juror or how the grand juror
has voted except to the extent it relates to perjury by the grand
juror to the grand jury].
FN3. All further references to rules are to the California
Rules of Court unless otherwise indicated.
FN4. Appellant concedes subpart (M) is the only means
by which it may obtain access to the sought after information.
Penal Code section 921 in part gives the grand jury free access
to all public records within the county, but juvenile records
are not public. ( In re Keisha T., supra, 38 Cal.App.4th
at p. 232.)
FN5. We assume for purposes of this opinion that appellant
is correct in its assertion that, regardless of the circumstances
and conditions, any subpart (M) disclosure whatsoever to the
juvenile court, to the minor, or to any interested party (see
In re Keisha T., supra , 38 Cal.App.4th at p. 240) of
any information about appellant's investigation or its purpose
in seeking the juvenile records would violate the rule of grand
jury secrecy. (See Daily Journal, supra , 20 Cal.4th at
pp. 1124-1125; § 827, subd. (a)(3)(B).) We therefore do
not consider whether appellant's stance is in fact correct, nor
do we explore any related issue, such as whether means may be
available by which to guard against the dissemination of grand
jury information, secret or not, presented in support of a subpart
(M) petition. (See, e.g., In re Keisha T., supra, 38 Cal.App.4th
at pp. 240-241; § 827, subd. (a)(4); rule 1423, subd. (c)
[in camera proceedings]; rule 1423, subd. (b) [protective orders].)
FN6. We note that the United States Supreme Court has
been unwilling to allow grand juries to secure records on demand
for purposes of federal criminal proceedings if the holder of
the records lacks sufficient information about the subject of
the investigation. In United States v. R. Enterprises (1991)
498 U.S. 292, 300-301, the court observed that "a court
may be justified in a case where unreasonableness is alleged
in requiring the Government to reveal the general subject of
the grand jury's investigation before requiring the challenging
party to carry its burden of persuasion" that the demand
is unreasonable. ( Id . at p. 302.)
FN7. The parties are separate departments of the same
entity and are represented by separate county entities. The costs
of the appeal are ultimately coming out of the same financial
pot.
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