THERE IS A tenet of American democracy that has fallen by the wayside in most every state except for one: California. It’s the convening of civil grand juries, which are bodies of ordinary citizens that investigate issues in public government and then compile a report and make recommendations. Yet few residents are aware of them and what they do.
Part of the problem is that many people confuse civil grand juries with criminal grand juries, which go over evidence presented by prosecutors to determine if an indictment is warranted. But civil grand juries in California are different in that they carry out a watchdog function over local governments and some nonprofits, which in this state means 58 counties.
Their findings aren’t punitive, but they do shine a light on how counties in the state could improve governance, and, yes, sometimes their reports can be damning.
Take a civil grand jury report last year in Santa Clara County that accused five members of the Santa Clara City Council of having unethical ties to the San Francisco 49ers. The report alleged that the council members met regularly with 49ers lobbyists before council meetings but did not record or divulge what transpired, leading some to believe that the council members were in the pocket of the football franchise and not working in the interest of the city.
A copy of the civil grand jury report was leaked to the city’s police union, which used it to attack City Councilmember Anthony Becker, who is accused of being one of the “49er Five” that met with the team’s representatives. The union opposed Becker’s mayoral bid and used information from the report to hurt his candidacy.
In another odd twist, Becker himself is accused of leaking the report. In April of this year, he was charged by the Santa Clara County District Attorney’s Office for allegedly lying about leaking the civil grand jury report early, a felony. Becker was also charged with allegedly violating his duty to keep the report confidential. He has pleaded not guilty.
A throwback to pre-colonial times
Most civil grand jury reports don’t rise to the level of exposing city or county corruption, but they do outline serious problems. This year, reports from counties in the greater Bay Area examined lax oversight of cemeteries in the city of Sonoma, huge backups and understaffing at the Monterey County coroner’s office, the timeliness — or lack thereof — of child abuse and neglect investigations in Alameda County, the lack of affordable housing in Contra Costa County, and the critical teacher shortage in San Francisco, to name a few.
The jury’s size depends on a county’s population, but most have 19 members. They generally release between six or seven reports during their term, which runs for the fiscal year from July to June.
Civil grand juries actually go back centuries, originating in 12th century England, according to the California Grand Jurors’ Association (CGJA). The practice came to our shores with colonialization, when the first body was convened in the Massachusetts Colony in 1635. By the 1890s, Southern states convened the juries to serve as boards of revision for taxes or examine the sufficiency of the bonds of all county officers.
Yet by the end of World War II, most states stopped using the grand jury for civil matters, according to the CGJA, which estimates that only about seven states continue to have some sort of grand jury watchdog function, and “in Nevada a grand jury is convened (usually for a specific purpose) a minimum of three times a decade and only when the court decides one is needed.”
California is the only state with a robust, ongoing and comprehensive civil grand jury system.
Lou Panetta, president of CGJA, says the work his all-volunteer organization does is a labor of love. The association trains civil grand jurors, gives them pointers and guidelines for writing their reports, and tries to the get the word out about the existence of the bodies in the first place.
The biggest challenges he said he faces are differentiating civil grand juries from criminal grand juries to the general public and advocating for more diverse participants.
Not for fame or fortune
Like any jury duty, the pay is low — $15 per day plus mileage — and the job is time-consuming, making the job attractive for intrepid and intellectually curious retirees of means but harder for single moms, students or anyone else who can’t devote that much time or money. But for those who do participate, it’s rewarding, he said.
“We work hard to make local government better,” said Panetta. “The civil grand jury is not adversarial. We’re not looking to find somebody guilty. We’re looking to improve local government, make it more effective, more efficient.”
A bill is currently in the California Assembly to raise the daily rate for jurors to $100. Sponsored by Assemblymember Phil Ting, D-San Francisco, the bill mimics a pilot program in San Francisco last year that paid $100 a day to jurors for trials and found that 81 percent of them could not have served were it not for the increased pay. This meant that 63 percent of the jurors self-identified as people of color, as well as being a representation of those with an average yearly income of under $40,000.
“We work hard to make local government better. The civil grand jury is not adversarial. We’re not looking to find somebody guilty. We’re looking to improve local government, make it more effective, more efficient.”Lou Panetta, California Grand Jurors’ Association
Panetta said his organization also has to combat the impression that, since the civil grand juries have no authority to demand or enforce change, what’s the point? Well, it’s downright American, for one thing.
“It’s really very, very simple,” he said. “It’s one of the very basic forms of democracy, because it’s citizens overviewing government and reporting to fellow citizens … It brings forth more efficient, effective government with more accountability.”
Once a report is compiled, the jury makes recommendations as to who should read it, like the county board of supervisors or a city council. In some instances, the jury can require a response from a body, though it cannot require them to act on its findings.
Civil grand juries have access to basically anything they want in the form of records, personnel files, internal reports or access to key players, and they even have subpoena power. But that doesn’t always mean that local governments will comply, as happened recently in Alameda County.
Conflicts and controversies
The turmoil began last year when the Alameda County District Attorney’s Office under former District Attorney Nancy O’Malley withdrew its usual assistance for the jury for an investigation into the District Attorney’s Office itself, citing a conflict of interest, according to the final report by the jury.
Then when new District Attorney Pamela Price took office in January, her office withdrew support for all investigations by the jury entirely. The District Attorney’s Office generally acts as primary legal advisors for civil grand juries, along with providing procedural and administrative support, and its withdrawal created a standstill for all the investigations that the jury had already spent seven months carrying out.
“We don’t know why it happened,” said Torin Fischer, the foreperson for the previously empaneled civil grand jury. “I’m not going to speculate. It did cause some frustration.”
When the reports finally came out this summer, the jury included a rebuke of the District Attorney’s Office.
“It is an understatement to say that this unprecedented months-long disruption challenged our ability to fully conduct and conclude our investigations and produce this report within the limit of our term,” reads the report. “We, the grand jurors, with the help of the Presiding Judge, County Counsel and others, have overcome this challenge and fully stand behind the investigations reported here.”
Among those reports was one about members of former District Attorney O’Malley’s office, accusing them of using county-owned computers to help her re-election campaign in 2018.
In Marin County this year, a scathing civil grand jury report about the District Attorney’s Office alleged dysfunction, understaffing and civil rights violations of inmates in the county jail. Though District Attorney Lori Frugoli expressed opposition and dismay at the jury’s findings, she never impeded the body’s investigation into her office.
Retired judge and former San Francisco Supervisor Quentin Kopp, a champion for civil grand juries, wrote the introduction to the CGJA handbook, summing up their importance in society.
“The grand jury constitutes citizen participation in its more idealistic and practical way,” he wrote, citing George Washington’s take on the “noble principle” that office-holding ought to be understood as a responsibility assumed “rather than an opportunity exploited.”
“That’s what grand jurors practice,” wrote Kopp.
Anyone who wants to learn more about the juries, read their reports, recommend investigations and learn how to participate can go to their county’s website and search “civil grand jury.” More information is also available at the CGJA website.
This article is part of U.S. Democracy Day, a nationwide collaborative on Sept. 15, the International Day of Democracy, in which news organizations cover how democracy works and the threats it faces. To learn more, visit usdemocracyday.org.