Gutierrez v. Medley , 359 Utah Adv. Rep. 46 ( 1998 )

STEWART, Justice,

concurring:

I concur with the majority in holding that the Subpoena Powers Act does not permit prosecutors to take discovery depositions after the filing of an information. I submit that a contrary construction of the Act would raise significant due process issues.

Furthermore, given the many recent revelations of oppressive prosecutorial abuses by various federal special prosecutors under the federal Independent Counsel Act,¹ which vests special prosecutors with broad inquisitional powers directed at the person, I again reiterate the objections I stated with respect to the Utah Act and this Court’s opinion in In re Criminal Investigation, 754 P.2d 633, 659-66 (Utah 1988) (Stewart, Assoc.C.J., dissenting). That opinion sustained the constitutionality of the Act with respect to its preinformation ex parte inquisitorial procedures. I pointed out in that dissent the vast potential, if not temptation, for prosecutors— whether well-meaning, unduly zealous, or partisan — to crush personal liberties and rights of privacy. I repeat what I stated in my dissent in In re Criminal Investigation:

I believe the Subpoena Powers Act (the “Act”) is unconstitutional on its face. The United States Supreme Court has observed, in language which I believe is applicable to this ■ Act, “A general, roving, offensive, inquisitorial, compulsory investigation, conducted by a commission without any allegations, upon no fixed principles, and governed by no rules of law, or of evidence, and no restrictions except its own will, or caprice, is unknown to our constitution and laws; and such an inquisition would be destructive to the rights of the citizen, and an intolerable tyranny.” Jones v. S.E.C., 298 U.S. 1, 27, 56 S.Ct. 654, 662, 80 L.Ed. 1015 (1935) (quoting In re Pacific Ry. Comm’n, 32 F. 241 (C.C.Cal.1887)). This language applies in essential respects to the powers the Legislature has sought to confer on county prosecutors and the Attorney General. The Subpoena Powers Act vastly extends the compulsory inquisitorial power of state and county prosecutors over both citizens and government officials. Anglo-American history is fraught with examples of abuses of similar powers by government officials.

754 P.2d at 659-60.

1 . Independent Counsel Reauthorization Act of 1994, 28 U.S.C. §§ 591-99.