In re the 2000-2001 District Grand Jury in & for the First Judicial District

Justice MARTINEZ,

dissenting.

The ability of parties named in a grand jury report to respond sufficiently to the report varies depending on the nature and amount of information in the report. In some cases, parties may not need to look beyond a grand jury report to respond to the points raised in the report. When a grand jury report details the evidence underlying its conclusions, the report may equip named parties with sufficient information to respond. However, in other cases, named parties may require more information than that provided in a grand jury report. Thus, when a report fails to specify the evidence underlying its conclusions, parties may need more information to respond adequately to the report.

I am concerned with the latter situation in which a named party lacks enough information to prepare a comprehensive response to a grand jury’s findings. To the extent that the majority holds that parties named in a grand jury report are not automatically entitled to wholesale discovery of the grand jury record, I agree. However, I dissent to the majority’s opinion because section 16 — 5— 205.5, 6 C.R.S. (2003) cannot be reasonably interpreted to deprive parties named in a grand jury report from obtaining enough information regarding the grand jury’s findings to respond sufficiently.

I consider the opportunity for a party named in a grand jury report to respond to that report, provided in section 16-5-205.5, in the context of the case law and statutory law in existence at the time of the enactment. After discussing grand jury secrecy generally, I reiterate the principle that secrecy will not be maintained solely for the sake of secrecy. I next consider the concerns of the General Assembly in 1977 for protecting witnesses and the subsequent continuing interest in protecting witnesses when the General Assembly permitted the release of certain grand jury reports. Because concerns for secrecy must be weighed against named parties’ interest in information necessary to exercise its right to respond adequately to a grand jury report, I would remand this case to the district court for such a determination.

Accordingly, to determine whether the named parties here may access grand jury materials, I would have the district court consider whether protecting the release of materials serves the purposes of grand jury secrecy. The court should next evaluate the parties’ ability to formulate sufficient responses to the grand jury report based on the information contained in the report to determine the need for additional information, as well as the relevancy and usefulness of the requested materials. Finally, the court should weigh the remaining interest in grand jury secrecy against the named parties’ need for particular information.

This court has previously held that it will only protect the secrecy of grand jury proceedings to the extent the purposes of secrecy are served. Granbery v. Dist. Court, 187 Colo. 316, 320-22, 531 P.2d 390, 393 (Colo.1975). Generally, courts have cited five reasons to keep grand jury proceedings secret. First, secrecy prevents the escape of those that the grand jury may indict. Id. at 321, 531 P.2d at 393 (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958)). Second, secrecy allows the grand jury to deliberate freely without the threat of influence or harassment by those subject to indictment. Id. Third, secrecy prevents perjury or tampering of witnesses testifying either before the grand jury or at trial. Id. Fourth, secrecy encourages people with information regarding the commission of crimes to come forth and disclose such information. Id. Finally, secrecy protects an individual exonerated after a grand jury investigation from the disclosure that they were the subject of such an investigation. Id.

In Granbery, this court examined these purposes, concluded that they were not furthered when documents procured for use in a grand jury investigation were withheld, and allowed disclosure of the documents. Id. at 322, 531 P.2d at 393-94. Documents procured for use in a grand jury investigation, some of which were introduced as exhibits before the grand jury, were sought for use in an administrative hearing. Id. at 318-20, 531 P.2d at 392. In beginning its analysis, the court explained that disclosure of grand jury secrecy “must be done discreetly and limitedly, and only when a compelling need outweighs the countervailing policy of secrecy.” Id. at 320, 531 P.2d at 392. The court then emphasized that the policies behind grand jury secrecy may be secondary to other interests, stating that “secrecy for secrecy’s sake should no longer be the rule in Colorado. Rather, the maintenance of the wall of secrecy around grand jury testimony should be grounded upon sound reason.” Id. at 320, 531 P.2d at 393. Applying these principles to the case before it, the court reasoned that secrecy concerns were not promoted because the documents in question were sought for reasons independent from their use in. the grand jury proceedings. Id. at 322, 531 P.2d at 393-94.

Thus, in Granbery, this court made clear that the disclosure of grand jury materials will be prevented only when withholding those materials promotes the policies of secrecy. In my opinion, the court should apply the rule of Granbery and 'ask whether the purposes of secrecy are promoted by withholding grand jury records from parties named in the grand jury report. As this court stated in Granbery, courts should not enforce secrecy when the purposes of secrecy are not furthered.

Often, courts may find that many of the purposes of grand jury secrecy will not be served by preventing the release of materials to parties named in the grand jury report. By the time that parties named in a grand jury report are notified of the report, grand jury proceedings have ceased and the grand jury has decided not to issue an indictment. Thus, many of the reasons for maintaining secrecy cited in Granbery will evaporate. For example, after grand juries conclude investigations, no need exists “to insure the utmost freedom to the grand jury in its deliberations” or “to prevent persons subject to indictment or their friends from importuning the grand jurors.” Id. at 321, 531 P.2d at 393. Similarly, preventing the escape of those whose indictment may be contemplated is no longer a concern. See id. Moreover, after conclusion of grand jury deliberations, the subordination of perjury is not a danger. See id. However, some concerns of grand jury secrecy remain after grand juries end their deliberations. For example, courts must evaluate whether disclosure would further the purpose of “encouragfing] free and untrammeled disclosures by persons who have information with respect to the commissions of crimes.” Id. Thus, courts must examine whether furtherance of this purpose prevents disclosure.

Notably, in some cases, withholding grand jury materials from parties named in a grand jury report may actually thwart an objective of grand jury secrecy. The secrecy of grand jury proceedings functions “to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation.... ” Id. When a published grand jury report discloses the names of individuals under investigation, the individuals’ identities are no longer shielded from the public. Thus, the purpose of keeping the names of individuals subject to investigation is defeated.

The policy of upholding grand jury secrecy only when it furthers the purposes of secrecy is consistent with actions of the General Assembly. By enacting the grand jury statutes, the General Assembly has conceded that the interests of secrecy in grand jury proceedings must, at times, bow to other interests. For example, the General Assembly has pierced grand jury secrecy by allowing witnesses to have counsel present. See § 16 — 5—204(4)(d), 6 C.R.S (2003). Similarly, the General Assembly has allowed the release of the grand jury report to the public. See § 16-5-205.5. In addition, this court has acknowledged the General Assembly’s concession that the secrecy of grand jury proceedings must be secondary to other concerns, noting that “the secrecy provision of the grand jury should not always be such that the public is kept in the blind.” In re 2000-2001 District Grand Jury in and for the First Judicial District Concerning the Grand Jury Report on the. Proland Annexation, (“Grand Jury I ”), 22 P.3d 922, 927 n. 7 (Colo.2001) (quoting A Bill for an Act Concerning Release of Grand Jury Reports in Which No Indictment is Returned: Hearing on HB 97-1009 before Senate Judiciary Comm., 61st Gen. Assemb., 1st Sess. (Feb. 18, 1997) (statement of Bill Ritter, Jr., District Attorney for the Second Judicial District)). Thus, the General Assembly has not viewed the secrecy of grand jury proceedings as a superceding interest.¹ The rule of Granbery is therefore consistent with the General Assembly’s view that grand jury secrecy is necessary to the extent it furthers policy purposes.

Though few justifications may remain for keeping grand jury proceedings secret, courts should, consistent with Granbery, ask whether withholding materials from parties named in a grand jury report furthers the reasons for secrecy in grand jury proceedings. However, to determine whether grand jury materials should be disclosed to named parties when the purposes for keeping those materials secret may have little or no remaining validity, I next look to the statutory provisions concerning grand jury secrecy and the release of grand jury reports.

Concern arose in the 1970s after a grand jury report criticized county officials in Arapahoe County. A Bill for an Act Concerning Grand Juries: Hearing on SB 77-186 before House Judiciary Comm., 51st Gen. Assemb., 1st Sess. (Apr. 13, 1977) (statements of Senator Ray Kogovsek) (“[A]t least in my opinion, had the incident not happened, ... we wouldn’t be discussing how grand jury reports should be handled.”). The incident prompted the General Assembly to reform the grand jury reporting process out of fairness to the county officials who were criticized. Dale Tooley, then the Denver District Attorney, described that the release of the report criticizing the county officials was “unfair” because the officials “literally had no chance to defend themselves, to reply, except to the press.” Id. (statements of Dale Too-ley). Senator Ray Kogovsek echoed Tooley, noting that the county officials “felt that they didn’t have their day in court” and that they “were left holding the bag.” Id. (statements of Senator Kogovsek).

The protective measures subsequently enacted offer unique procedural safeguards designed to prevent grand jury abuses. See §§ 16-5-204, -205.5. For example, the General Assembly granted witnesses called before grand juries the right to have counsel present in the grand jury room. See § 16-5-204(4)(d). Implementation of these safeguards grew from attitudes that our state’s grand jury system had become a “powerful instrument of persecution controlled and directed by the very overzealous and politically motivated prosecutors the grand jury was originally intended to check.” A Bill for an Act Concerning Grand Juries: Hearing on SB 77-186 before Senate Judiciary Comm., 51st Gen. Assemb., 1st Sess. (Feb. 16, 1977) (statement of Emily Hixon, Coalition to End Grand Jury Abuse).

In 1997, section 16-5-205.5 was enacted to permit the release of certain grand jury reports but with an attempt to guarantee that individuals were not publicly criticized without an opportunity to defend themselves, reflecting the broader protective nature of Colorado grand jury laws. Interpreting section 16-5-205.5 as creating an opportunity for named parties to respond sufficiently to a grand jury report avoids the due process problems that arise from the majority’s construction of the section. As the majority correctly asserts, mere publication of a grand jury report that criticizes reputations does not run afoul of due process because personal reputations are not protected property rights. Paul v. Davis, 424 U.S. 693, 711-12, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). However, due process violations may occur if a report criticizing an individual is published and also results in “tangible injury such as termination of employment.” 1 Sara Sun Beale et al., Grand Jury Law & Practice § 2:4 (2d ed. 2002). When the grand jury report causes loss of a protected property interest, a due process violation may arise unless the affected party had notice of the allegations against him and an opportunity to refute them. Id.; see also Bd. of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Therefore, allowing parties sufficient opportunity to respond avoids subsequent due process issues.

When interpreting section 16-5-205.5, we can conclude that the General Assembly intended to allow parties named in a grand jury report to respond sufficiently when viewed against the context in which the statute was passed, the protective purposes it was intended to serve, the due process dangers that an alternate construction created, and this court’s case law. Because the statute was part of a larger statutory scheme designed to prevent grand jury abuses and was passed to protect individuals from public criticism without opportunities to defend themselves, we can infer that the General Assembly intended to confer a substantive right onto individuals named in a grand jury report to respond to criticism. Additionally, we can assume the General Assembly aimed to enact a statute that comported with due process. See, e.g., Meyer v. Lamm, 846 P.2d 862, 876 (Colo.1993) (“The presumption of constitutionality accorded all statutes also assumes that the legislative body intends the statutes it adopts to be compatible with constitutional standards.”). More importantly, we can assume that the General Assembly was aware of our past judicial decisions. See, e.g., State Engineer v. Castle Meadows, Inc., 856 P.2d 496, 504 (Colo.1993). Specifically, in Granbery, we articulated that we would only preserve the secrecy of grand jury proceedings as long as the purposes of secrecy were furthered. Granbery, 187 Colo. at 320, 531 P.2d at 393. Therefore, in my view, section 16-5-205.5 allows parties named in grand jury proceedings to access grand jury materials to the extent that the purposes of grand jury secrecy are no longer served and to the extent that the accessed materials are necessary and relevant to construct a sufficient response. Thus, courts must next determine whether the grand jury report provides enough information to allow named parties to respond sufficiently.

When a grand jury report adequately informs named parties of the grounds for the conclusions, courts may conclude that disclosure of grand jury materials is not necessary. However, when the report lacks explanation, disclosure is necessary to allow parties to respond. Preventing parties from crafting sufficient responses is concerning because a report that criticizes an individual’s behavior may damage their reputation. Additionally, the broad evidentiary bases for allegations prevent parties from narrowing or tailoring their responses.

The inability of named parties to respond sufficiently to a grand jury report" becomes particularly troubling when the report criticizes an individual’s behavior or suggests wrongdoing. Such allegations may affect an individual’s reputation and character because “[i]n the public mind, accusation by report is indistinguishable from accusation by indictment.” Wood v. Hughes, 9 N.Y.2d 144, 212 N.Y.S.2d 33, 173 N.E.2d 21, 26 (1961). Because a report “subjects those against whom it is directed to the same public condemnation and opprobrium as if they had been indicted,” it can be “at once an accusation and a final condemnation.” Id.

Additionally, the bases for the criticism may be broad and thus difficult to refute by the parties. Grand juries consider a broader range of evidence than that in a jury trial because fewer rules apply that can exclude evidence. See United States v. Calandra, 414 U.S. 338, 354-55, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (grand jury witness not permitted to invoke exclusionary rule in refusing to answer questions based on evidence obtained from unlawful search and seizure); Losavio v. Robb, 195 Colo. 533, 536, 579 P.2d 1152, 1154 (1978) (“[T]he grand jury is given broad investigatory powers and is entitled to subpoena all evidence necessary for its deliberations.” (internal quotes and citation omitted)); People v. Wilkinson, 37 Colo.App. 531, 533, 555 P.2d 1167, 1169 (1976) (stating that grand juries allow “laymen ... to conduct their inquiries unrestricted by the technical rules of evidence”). As a result, a report may be based “upon the grand jury’s own criteria of public or private morals” and “charge[] the violation of subjective and unexpressed standards of morality.” Wood, 212 N.Y.S.2d 33, 173 N.E.2d at 26. Thus, because grand juries have broad evidence on which to base allegations, named parties unaware of additional inconsistent evidence may not be able to generate persuasive rebuttals.

By conferring to parties the right to respond to a grand jury report, section 16-5-205.5 implicitly entitles named parties to enough information to respond to the report. Without such information, the statutory right lacks substance because parties are limited to responding with little more than “I disagree.”

In this case, the majority was correct to deny the City of Blackhawk wholesale discovery of the entire grand jury record. However, I would have remanded the ease to the district court to determine the extent to which the purposes of grand jury secrecy continue to be served by withholding the materials. The court should then determine whether the City had enough information, either in the grand jury report itself or in the materials it received from the district attorney, to respond sufficiently to the grand jury report. If the trial court determines that the City lacked enough information to respond sufficiently to the report, the trial court should next evaluate the information requested and determine which portions of the grand jury materials would be relevant to the City’s response. Finally, the court should weigh the remaining interests in grand jury secrecy against the named parties’ need for information and thus decide what information, if any, should be released to the named parties.

For these reasons, I do not agree with the majority’s resolution of this case. Accordingly, I respectfully dissent.

I am authorized to state that Justice BENDER joins in this dissent.

1 . The majority points to the district court's limited role, as explained in Grand Jury I, to support its argument that the General Assembly did not intend that named parties would be able to inquire into the grand jury record. The majority essentially contends that if the trial court cannot examine the grand jury record, neither can parties named in the report. First, I dissented from the majority decision in Grand Jury I. See Grand Jury I, 22 P.3d at 929-33. Second, I note that different concerns surround the trial court's role in grand jury reports and named parties. Limits on grand jury reporting were enacted to protect parties subject to investigation. Trial courts' limited roles in monitoring the publication of reports and their content creates greater reasons to allow named parties to publish meaningful responses in their defense.