Goldstein.answer To Petition To Review Goldstein V Superior Court

SUPREME

COURT CASE NO. S155944

8Ur"_R'_M_ COUNT

FILED IN

SEP25 ZOI7

SUPREME COURT OF THE STATE THOMAS LEE GOLDSTEIN

OF CALIFOII_d_ric

k K. Ohlrich Clerk

Petitioner, VS.

LOS ANGELES

COUNTY

SUPERIOR

COURT Respondent,

CITY OF LONG BEACH; JOHN HENRY MILLER; WILLIAM COLLETTE; LOGAN WREN; WILLIAM MacLYMAN; THE COUNTY OF LOS ANGELES; JOHN VAN DE KAMP; CURT LIVESAY, Real Parties in Interest. After a Decision By the Court of Appeal, 2 ndAppellate District, Division 3 Appellate Court Case No. B 199147 (Hon. Joan Dempsey Klein, Presiding Justice) CONSOLIDATED

ANSWER

TO PETITIONS

FOR REVIEW

RONALD O. KAYE (No. 145051) email: rok_kmb @earthlink.net DAVID S. McLANE (No. 124952) email: [email protected] MARILYN E. BEDNARSKI (No. 105322) email: mbednarski_kmb @eartlalink.net MATTHEW N. SIROLLY (No. 239984) (of counsel) email: [email protected] KAYE, McLANE & BEDNARSKI, LLP 128 North Fair Oaks Avenue Pasadena, California 91103 Telephone: (626) 844-7660 Facsimile: (626) 844-7670 Attorneys for Appellant and Petitioner THOMAS LEE GOLDSTEIN

SUPREME COURT CASE NO. S155944

SUPREME THOMAS

IN THE OF THE STATE OF CALIFORNIA

COURT

LEE GOLDSTEIN Petitioner, VS.

LOS ANGELES

COUNTY

SUPERIOR COURT Respondent,

CITY OF LONG BEACH; JOHN HENRY MILLER; WILLIAM COLLETTE; LOGAN WREN; WILLIAM MacLYMAN; THE COUNTY OF LOS ANGELES; JOHN VAN DE KAMP; CURT LIVESAY, Real Parties in Interest. After a Decision By the Court of Appeal, 2 ndAppellate District, Division 3 Appellate Court Case No. B 199147 (Hon. Joan Dempsey Klein, Presiding Justice) CONSOLIDATED

ANSWER

TO PETITIONS

FOR REVIEW

RONALD O. KAYE (No. 145051) emall: [email protected] DAVID S. McLANE (No. 124952) email: [email protected] MARILYN E. BEDNARSKI (No. 105322) email: mbednarski kmb@em_ink.net MATTHEW N. SIROLLY (No. 239984) (of counsel) emall: [email protected] KAYE, McLANE & BEDNARSKI, LLP 128 North Fair Oaks Avenue Pasadena, California 91103 Telephone: (626) 844-7660 Facsimile: (626) 844-7670 Attorneys for Appellant and Petitioner THOMAS LEE GOLDSTEIN

TABLE OF CONTENTS PAGE

TABLE OF AUTHORITIES INTRODUCTION

....................................

............................................

STATEMENT

OF ADDITIONAL

ARGUMENT

................................................

I.

II.

ISSUES

1 ........................

THIS COURT SHOULD NOT REVIEW THE APPELLATE COURT DECISION BECAUSE IT IS A WHOLLY REASONABLE EXPLICATION OF LONG ESTABLISHED LEGAL PRINCIPLES, NOT THE ANNOUNCEMENT OF A NEW RULE OF LAW ............................................ COUNTY COUNSEL'S REQUEST FOR A STAY OF THE APPELLATE COURT DECISION SHOULD BE DENIED ............................ A°

B°

CONCLUSION

ii

7 8

8

13

COUNTY COUNSEL HAS NOT CITED ANY AUTHORITY SUPPORTING HIS REQUEST FOR A STAY AND SUCH A STAY WOULD ONLY CAUSE FURTHER UNJUST DELAY OF GOLDSTEIN'S FEDERAL COURT PROCEEDINGS ............................

13

THERE IS NO LEGITIMATE REASON TO STAY THE TRIAL COURT'S PREPARATION OF A WRITTEN ANALYSIS OF THE SECRECY CONCERNS RAISED BY THIS MATERIAL, SINCE THERE IS NO DISPUTE OVER THE DUTY OF THE SUPERIOR COURT TO PROVIDE SUCH AN ANALYSIS TO THE FEDERAL COURT .........................

14

............................................

16

TABLE OF AUTHORITIES CALIFORNIA

PAGE

CASES

Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117 ...........................

4, 9-10, 12

Ex Parte Sontag (1884) 64 Cal. 525 ..................................

1, 4, 9

Goldstein v. Superior Court (2007) 154 Cal. App. 4th 482 .................. MeClatehy Newspapers v. Superior Court (1988) 44 Cal.3d 1162 ................................. Shepherd v. Superior Court (1976) I7 Cal. 3d i07, 127 ..............................

FEDERAL

CASES

2, 4, 6, 8, 13, 15

4, 9

10

PAGE

Dennis v. United States (1966) 384 U.S. 855 ..................................... Douglas Oil Co. v. Petrol Stops Northwest (1979) 441 U.S. 211 ..............................

8

2, 4, %9

Lueas v. Turner (7th Cir. 1984) 725 F. 2d 1095

...........................

14

Metzler v. United States (9t_ Cir. 1933) 64 F.2d 203 ................................ Socialist Workers'Party v. Grubisie (7th Cir. 1980) 619 F.2d 641 .............................

8

14

United States v. Procter & Gamble (1958) 356 U.S. 677 .....................................

8

TABLE FEDERAL

OF AUTHORITIES

(CONT.)

CASES

PAGE

United States v. ex tel Woodward v. Tynan, (10th Cir. 1985) 757 F. 2d 1085 .......................... United States (1940)

v. Socony-Vaeuum 310 U.S. 150

U.S. Industries,

Oil Co.

.....................................

Inc. v. United States District

(9th Cir. 1965) 345 F.2d 18

SISTER-STATE

t4

8

Court

...............................

CASES

8

PAGE

Diamen v. U.S. (D.C.1999)

725 A.2d 501 .................................

9

Euresti v. Valdez (Tex.App.

1989) 769 S.W.2d 575 ...........................

Hinojosa v. State (Ind. 2003) 781 N.E.2d 677

...............................

9

9

In re Grand Jury of Douglas County (2002) 263 Neb. 981 .....................................

9

In re Investigatory Grand Jury No.2004-01 (2006) 50 Conn.Supp. 23 .................................

9

In re Jessup's Petition (1957) 50 Del. 530 ......................................

8

Keen v. State (Fla. 1994) 639 So.2d 597 ................................

9

Mannon v. Frick (1956) 365 Mo. 1203 ....................................

iii

8

TABLE OF AUTHORITIES SISTER-STATE

(CONT.)

CASES

PAGE

Milliean v. State (Ala.Crim.App.1982)

423 So.2d 268 .......................

9

People v. Di Napoli (1970) 27 N.Y.2d 229 ....................................

8

State v. Beck (1960) 56 Wash.2d 474 .................................. State ex reL Ronan v. Superior Court In and For Marieopa (1964) 95 Ariz. 319 ......................................

8 County 8

State v. Carillo (1973) 112 R.I. 6 .......................................

8

Sutton v. State (1975) 25 Md.App. 309

................................

8-9

State v. Greer (1981) 66 Ohio St.2d 139 ................................. State v. HargTeld (1981) 290 Or. 583 ......................................

9

9

State v. Doliner (1984) 96 N.J. 236

......................................

State v. Higgins (La. 2005) 898 So.2d 1219 ................................ STATUTES

9

9 PAGE

Cal. Penal Code § 924.2 ..................................... Cal. Penal Code § 9.29 . .-....................................... iv

7, i2 7

SUPREME COURT CASE NO. S155944 IN THE SUPREME

COURT OF THE STATE OF CALIFORNIA

THOMAS LEE GOLDSTEIN Petitioner, VS.

LOS ANGELES

COUNTY SUPERIOR

COURT Respondent,

CITY OF LONG BEACH; JOHN HENRY MILLER; WILLIAM COLLETTE; LOGAN WREN; WILLIAM MacLYMAN; THE COUNTY OF LOS ANGELES; JOHN VAN DE KAMP; CURT LIVESAY, Real Parties in Interest. After a Decision By the Court of Appeal, 2 nd Appellate District, Division 3 Appellate Court Case No. B 199147 (Hon. Joan Dempsey Klein, Presiding Justice) CONSOLIDATED

ANSWER

TO PETITIONS

FOR REVIEW

INTRODUCTION Over one hundred years ago this Court, in Ex Parte Sontag, wrote, "when for the purposes of public justice, or for the protection

of private

rights, it becomes necessary, in a court of justice, to disclose the proceedings be done."

of the grand jury, the better authorities (1884) 64 Cal. 525,526

Thompson and Merriam). rule of particularized

(emphasis

now hold that this may

in original) (quoting

It is evident that this Court was referring to the

need that would later be more fully developed in

federal case law- i.e., courts have the power to order the disclosure of grand

jury materials to litigants when there is a particularized needto use them "in a court of justice" andthis need outweighsthe interestsof secrecy.See, e.g., Douglas Oil Co. v. Petrol Stops Northwest The legitimacy

(1979) 441 U.S. 211.

of this rule does not appear to have been seriously

doubted by California courts. As the record in the case at bar makes clear, the same grand jury materials that Goldstein

seeks to access have been

disclosed, in the past, to other litigants by flae Los Angeles Superior Court. See Goldstein v. Superior Court (2007) 154 Cal. App. 4th 482, 488.1 Indeed, it is evident that in 1990 the Los Angeles County Grand Jury and the judge presiding specific purpose

over it preserved the grand jury materials at issue for the

of making them available to future litigants. Id. at 4872,

488 n.13

1 "On July 5, 2006, Goldstein sent court counsel further information about the case including the declaration of Verna Wefald, an attorney who had accessed the grand jury materials in connection with two federal habeas corpus proceedings. Wefald asserted that Douglas Dalton, special counsel appointed to assist the grand jury in its investigation into the misuse of jailhouse informants, told her the grand jury materials were indexed and organized for the express purpose of facilitating review of the material by future litigants." 2 "On August 30, 1990, the Superior Court of Los Angeles County issued an order stating the 'material accumulated and used by the 1988-89 Grand Jury and the 1989-90 Grand Jury in their investigations of the jai!house informants is to be kept secure by the court. [9 The material is not to be viewed, inspected or copied except by order of the Presiding Judge, Assistant Presiding Judge, or the Supervising Judge of the Criminal Division.'" 3 "In the declaration, Dalton [special counsel appointed to assist the Los Angeles County Grand Jury in its investigation into the misuse of jailhouse informants] states: 'It was the intent of the Grand Jury that the underlying materials upon which the Report was based be made available to

The Petitioners - Los Angeles County, JohnVan de Kamp, Curt Livesay, andLos Angeles County Counsel4- claim that the Appellate Court's decision, which adoptsthe federal test for particularized need,will have a radical effect on California's grandjury system.Their claim has no merit.

anyoneaffected byjallhouse informant abusesas may be necessaryto pursuetheir remedies. This was a reasonfor the recordsto be preserved.At the conclusion of the Report, the Grand Jury specifically statesthat 'the materials developedby the Grand Jury during their investigation will be preservedunder secureconditions.' G.J. Rpt. at 153.The materials were preserved.., so that they could be accessedin furore litigation and/or court proceedings.The Grand Jury askedthe District Attorney's Office to cooperatein providing accessto the materials developedby the Grand Jury in its investigation. Id. at 152-3.'" 4 Goldstein renewshis objection, madein the court below, to Los Angeles County Counselclaiming to appearon behalf of the Los Angeles County Grand Jury, particularly sinceCounty Counsel is assertinga position that is in direct conflict with the actual position of Los Angeles County Grand Jury that investigatedthe jailhouse informant scandal.As discussedabove, supra notes 1-3, the 1989-1990 Los Angeles County Grand Jury clearly intended to make these materials available to future litigants, and the special counsel who worked directly with this grand jury, Douglas Dalton, has so stated in a sworn declaration on file with the Appellate Court. Los Angeles County Counsel's claim to represent the Grand Jury is particularly problematic given the fact that: (1) the County is a defendant in Goldstein's civil rights action, creating an apparent conflict of interest, and (2) the Grand Jury is a state entity, not a County entity (as County Counsel himself pointed out in the court below). Although Goldstein recognizes that County Counsel does provide legal advice to the Grand Jury in regard to certain matters and that County Counsel was originally requested to appear on behalf of the Grand Jury in this matter by the Superior Court, Goldstein believes that under the conditions of the current proceeding it is unjust to characterize County Counsel's position as that of the Los Angeles County Grand Jury.

Ex Parte Sontag reveals that the principle of disclosure of grand jury materials in cases of particularized

need was recognized by California

courts as early as 1884. And, as described above, the record in this case demonstrates

that the principle has long been applied without hesitation by

Califomia courts.

Indeed, this Court has approvingly

cited Douglas Oil -

the main United States Supreme Court case which lays out the particularized formulation

need test and the very case the Appellate of the particularized

need test-

Court turned to for a

when explaining the secrecy

concerns associated with the California grand jury system. See Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117,1126; McClatchy Newspapers

v. Superior Court (1988) 44 Cal.3d 1162, 1173, 1 I75.

Moreover,

as the Appellate Court held, Daily Journal Corp. and

McClatchy Newspapers

- the cases Petitioners

rely on-

here since these cases involved requests forpublic obtain grand jury materials for publication

disclosure - attempts to

in newspapers

limited disclosure for use in ongoing litigation.

are not controlling

- not requests for

Goldstein, supra, 154 Cal.

App. 4th at 494-95 For this reason, the Appellate and justified.

Court's decision is wholly reasonable

It does not create disuniformity

in the law. It simply explains

the basis for the ongoing validity of the particularized current California

law and offers a concrete formulation

need test under of this test based

on Douglas Oil. All that Goldstein is asking for is that this test be applied to his case. Thomas Goldstein spent over 24 years wrongfully

imprisoned

for a crime

he did not commit. See Goldstein, supra, 154 Cal. App. 4th at 486-88. wrongful imprisonment ajallhouse

informant,

His

was in large part the result of perjured testimony by Edward Floyd Fin_k, who was later found, by the

4

federal magistrate judge who recommend

granting Goldstein's

habeas

corpus petition, to "fit[] the profile of the dishonest jailhouse

informant that

the" 1989-1990 Los Angeles County Grand Jury determined

"to be highly

active in Los Angeles

County at the time of [Goldstein's]

conviction."

Id. at

487. Goldstein is seeking access to the underlying materials from this grand jury investigation

for use in his ongoing federal civil rights case. Clearly

these are highly relevant and necessary materialscertainly include documents

and testimony from the defendants

witnesses who will testify in Goldstein's Moreover, investigation, Goidstein's

materials which almost and

federal civil rights case.

because 17 years have passed since the grand jury

the grand jury materials have become absolutely critical to case. Over the last 17 years witnesses'

and documentary

memories have faded

evidence has been lost, making it impossible

for Goldstein

to gather from any other source the sort of evidence the Grand Jury had at its disposal 17 years ago. While the passage of time has made the grand jury materials more critical to Goldstein's

case, it simultaneously

has diminished

the need for

keeping the materials secret. For example, many of the witnesses and the subjects of their testimony have moved on to positions revelations

where the

of their words and deeds could no longer cause them harm.

Most importantly,

Goldstein does not seek to reveal these materials

to the public. Rather, he only intends to use the materials for the purpose of litigation and will abide by a protective disclosure.

Thus, Goldstein's

underlying

grand jury secrecy.

order to guard against public

request presents no threat to the policies

For all of these reasons, the Appellate

Court's decision does not

merit Supreme Court review and should be left standing to offer guidance

to future litigants. As a separatematter, Goldstein objects to the stay of the Appellate Court's decision requestedby Los Angeles County Counsel.County Counsel offers no legal authority whatsoever

for requesting

a stay in this

situation. (See County Counsel Petition for Review at 2, 4-5.) Goldstein's attempts to abide by state court procedures

regarding grand jury disclosure

have already caused him to suffer twenty months of delay. See Goldstein, supra, 154 Cal. App. 4th at 488-90. Further delay is not only unjust to Goldstein, it frustrates the ongoing federal court proceedings,

which have

been delayed multiple times, in part, because of this very issue. In particular, the Appellate

Goldstein strenuously

objects to staying the portion of

Court's ruling that orders the Superior Court to provide a

written analysis of the secrecy concerns raised by this material to the federal court. Such a stay has no basis in reason, since a written analysis of secrecy would not, in and of itself, constitute disclosure. 5 Indeed, County Counsel appears to concede that it will suffer no harm if a stay in not granted here: County Counsel

has repeatedly

argued in its own petition for review, the

remedy of disclosure by the federal court is not in anyway linked to an interpretation

of California law. (County Counsel Petition for Review at

17-20.) Thus, staying the portion of the Appellate preparation

Court ruling that requires

of a secrecy statement for the federal court would serve no

purpose other than tounjustly

delay Goldstein's

ability to resolve this issue

5 If there are concerns that specific wimesses or pieces of evidence would need to be discussed in the secrecy statement, the statement could be provided to the federal court under seal, temporarily preventing its release to the parties in this action.

andfurther frustrate the federal court proceedingsthat alreadyhave been delayednumeroustimes over the last three years,in large part out of deferenceto the statecourt.6 Although

ad infinitum delay serves the purposes of the defendants

Mr. Goldste'm's

civil rights case, it does not serve the purposes of justice

nor does it comport with principals for federal-state STATEMENT

OF ADDITIONAL

If this Court does review the Appellate requests consideration

of the following

in

comity. ISSUES

Court's decision, Goldste'm

additional issues that were not

raised by the Petitioners: Do Penal Code sections 929 and 924.2 authorize disclosure of the grand jury materials to Goldstein?

In particular

Code section 924.2 create a statutory basis for application particularized

need test (as formulated

does, Penal

of the

in Douglas Oil) by California

courts

and does Penal Code section 929 create a statutory basis for the disclosure .. of grand jury materials from an investigation

into public malfeasance

where

the Grand Jury ctearly intended to make these materials available to future litigants?

//

// //

6As discussed below, in section II of the Argument, there is an outstanding federal court subpoena for the grand jury materials, which was served in March of 2007 (the second such subpoena served by Goldste'm). This subpoena has not yet been enforced by the federal court due to considerations of federal-state comity.

ARGUMENT Io

THIS

COURT

SHOULD

NOT REVIEW

COURT DECISION BECAUSE REASONABLE EXPLICATION

THE APPELLATE

IT IS A WHOLLY OF LONG ESTABLISHED

LEGAL PRINCIPLES, NOT THE ANNOUNCEMENT NEW RULE OF LAW, AND DOES NOT CREATE DISUNIFORMITY IN THE LAW.

Despite Petitioners'

claims, the Appellate

OF A

Court's decision will not

e,ffect a radical change in the law nor upset the traditions of grand jury secrecy. The Appellate Court's decision embraces the well-settled Supreme Court test-

laid out 27 years ago in Douglas Oil-

U.S.

for piercing

grand jury secrecy where litigants have shown a particularized

need for

grand jury materials and their need for the materials outweighs the interests in preserving

their secrecy. See Douglas

Oil Co. v. Petrol Stops Northwest

(1979) 441 U.S. 211; Goldstein, supra, 154 Cal. App. 4th at 494. The particularized

need test is hardly radical.

It has been well-

developed in federal law. See, e.g., Metzler v. United States, (9th Cir. 1933) 64 F.2d 203; United States v. Socony-Vacuum

Oil Co. (1940) 310 U.S. 150,

233-34;

Dennis v. United States (1966) 384 U.S. 855; United States v.

Procter

& Gamble ('1958) 356 U.S. 677; U.S. Industries,

States District

Inc. v. United

Court (9th Cir. 1965) 345 F.2d 18, 21; Douglas

Petrol Stops Northwest Moreover,

Oil Co. v.

(1979) 441 U.S. 211.

many other states have adopted some version of this test.

See, e.g., Mannon v. Frick (1956) 365 Mo. 1203; In re Jessup's Petition (1957) 50 Del. 530; State v. Beck (1960) 56 Wash.2d 474, 489-91; State ex tel. Ronan v. Superior Court In and For Maricopa 319, 332-33;

County (1964) 95 Ariz.

People v. Di Napoli (1970) 27 N.Y.2d 229; State v. Carillo

(1973) 112 R.I. 6, 11-12; Suttonv.

State (1975) 25 Md.App. 309, 314-15,

334; State v. Greer (1981) 66 Ohio St.2d 139; State v. HargTeld (1981) 290 Or. 583,592;

Milliean v. State, 423 So.2d 268 (Ala.Crim.App.1982);

v. Doliner (1984) 96 N.J. 236, 246-48;

State

Euresti v. Valdez (Tex.App.

1989)

769 S.W.2d 575, 578-79; Keen v. State (Fla. 1994) 639 So.2d 597, 600; Diamen v. U.S. (D.C.1999)

725 A.2d 501,532-33;

Douglas County (2002) 263 Neb. 981,987-89; 2003) 781 N.E.2d 677; State v. Higgins In re Investigatory Petitioners particularized California's

Hinojosa v. State (Ind.

(La. 2005) 898 So.2d 1219, 1241;

Grand Jury No.2004-01 argue that the Appellate

need test from Douglas

In re GrandJuz_y of

(2006) 50 Conn.Supp.

23.

Court's adoption of the federal

Oil will radically undermine

grand jury system. But the federal grand jury system is alive

and well. The particularized

need test has not undermined

jury secrecy in the federal court-

policies which this Court has suggested

are identical to those motivating

the secrecy of California grand juries.

Daily Journal Corp. and McClatchy relied upon by Petitioners,

the policies of grand

Newspapers,

this Court approvingly

Oil when explaining the polices motivating

In

the cases most heavily cites and quotes Douglas

grand jury secrecy in California.

Daily Journal Corp, supra, 20 Cal.4th at 1126; McClatchy

Newspapers,

supra, 44 Cal.3d at 1173, 1175. If the Douglas Oil test has not undermined

these policies in the

federal court system, it is difficult to imagine how it could undermine exact same policies in California. But this is what the Petitioners Petitioners

the

argue.

arguments have no merit.

In fact, the particularized California. As mentioned

need test has been long applied and used in

above, Ex Parte Sontag shows that, as early as

1884, the concept of particularized

need was embraced by this Court. 9

Moreover, as explained above,the record in the caseat bar showsthat the principle of particularized needhasbeen usedto disclosethe very materials Goldstein seeks. Indeed, it is highly likely that the reasonthat there are so few published casein California discussingparticularized need is because,for more than a century, it was been assumed,without dispute,that California courts have the power to disclose grandjury materialsto litigants who have demonstrateda particularized need for the materials. This Court has suggestedasmuch. In Shepherd v. Superior Court this Court explicitly discussed the federal particularized approving

need test, 7

of it without belaboring its obvious soundness:

In any event, as the high court was careful to point out, there may be cases of urgent and particularized need in which [the policies of grand jury secrecy] must be made to yield to some extent in order to accommodate the demands of truth and fairness in civil litigation. Although the 'indispensable secrecy of grand jury proceedings' [citation] must not be broken except where there is a compelling necessity [,] [there] are instances when that need will outweigh the countervailing policy.' Shepherdv.

Superior Court (1976) 17 Cal. 3d 107, 127 (quoting United

States v. Proctor and Gamble 365 U.S. 677, 682), partially different grounds by, People v. Holloway Despite Petitioners'

overruled

on

(2004) 33 Cal. 4th 96, 131.

claims, the Appellate

Court decision does not

create disuniformity

in the law. Although Daily Journal Corp. v. Superior

Court has language

suggesting that California

courts lack inherent authority

7 The Court was discussing the official information privilege of section 1040 of the California Evidence Code, in relation to a District Attorney's assertion that the policies of grand jury secrecy justified refusal to disclose evidence. 10

to disclose grand jury materials to the public, this case does not control Goldstein's

request. As the Appellate

Court explained, Daily Journal Corp.

explicitly defined the issue as whether public disclosure was proper: We wanted review to determine whether the superior court, in the absence of a statutory provision for disclosure under these circumstances, properly released the grand jury materials to the public. Daily Journal Corp., supra, 20 Cal.4th at 1120 (emphasis added). Unlike the newspaper outlets in Daily Journal, Goldstein

does not

seek to make grand jury materials available to the general public, but rather to use them, under a protective

order, in ongoing litigation.

Petitioners attempt to blur this distinction by arguing that disclosure of the materials for use in Goldstein's

case would necessarily

disclosure of these materials to the public during Goldstein's

result in trial. (County

Counsel Petition for Review at 13; County Petition for Review at 13-14.) This argument is a red-herring.

Goldstein

will not be engaging in a blanket

disclosure of this material at trial. To the extent disclosure does occur at trial, it will be very limited and controlled by the terms of a protective

order. First, of course, even

before being disclosed to the litigants in this case, the materials will be reviewed by the court to determine

if the need for disclosure outweighs the

need for secrecy. Second, prior to disclosure

at trial, the court can again

review the limited subset of materials that the litigants intend to use and reapply the balancing test. At this point, the court can further protect secrecy through redacting the material or limiting their use (or even requiring that they be submitted to the jury under seal). Moreover,

in regard to available witnesses,

grand jury transcripts

public disclosure

could only occur for purposes of impeachment 11

of or

refreshing

recollection

(purposes incontestably

authorized by the legislature

under Penal Code section 924.2), because the direct use of this testimony would violate the hearsay rule. Similarly, most, if not all, of the useful documentary

evidence

obtained from_the grand jury records would not be subject to grand jury privilege,

since it would consist of documents

independent

that were produced

of the Grand Jury, e.g., memos or correspondence

DA's office created prior to the impaneling

wholly

from the

of the grand jury (but which

have been lost or destroyed during the ensuing 17 years).

These documents

would not become subject to a grand jury privilege simply because copies of them were submitted to the grand jury as evidence. Likewise, the separation of powers arguments raised by Petitioners are a red herring. Unlike, in Daily Journal Corp, the Appellate Court in the case at bar did not hold that a court has inherent judicial power to take control of the grand jury and force it to disgorge its materials in a nonjudicial context-

i.e., to newspapers

remains entirely within the judicial

for publication.

The context here

function: disclosure of the materials for

the sake of ongoing litigation. Courts are well-placed

to regulate conduct in

their own proceedings. Petitioners'

position, not the Appellate

radical one. They ask this.Court California

Court's position, is the

to eliminate the traditional power of

courts to disclose grand jury materials to litigants with a

particularized

need for those materials. If granted, this will effectively

overrule at least 120 years of California both well-settled

court practice and part ways with

federal law and the general development

relathag to grand jury secrecy in the United States.

12

of the laws

H.

COUNTY COUNSEL'S APPELLATE COURT COUNTY

Ao

REQUEST DECISION

COUNSEL

FOR A STAY OF THE SHOULD BE DENIED.

HAS NOT CITED

ANY

AUTHORITY SUPPORTING HIS REQUEST STAY AND SUCH A STAY WOULD ONLY FURTHER FEDERAL

UNJUST COURT

FOR A CAUSE

DELAY OF GOLDSTEIN'S PROCEEDINGS.

Los Angeles County Counsel's

request to stay the Appellate

Court

decision should be denied. County Counsel offers no legal authority whatsoever

for his request and no reasons why it would be prejudiced

if a

stay is not granted. (See County Counsel Petition for Review at 2, 4-5.) On the other hand, further delay is unjust to Goldstein. Well over a year and a half of delay has already resulted from Goldstein's abide by state court procedures regarding

grand jury disclosure. See

Goldstein, supra, 154 Cal. App. 4th at 488-90. conscientiously withdrawing

attempts to

Goldstein has diligently and

attempted to follow the procedures

dictated to him, even

his first federal court subpoena for these materials at the

behest of the Superior Court. Id. at 489. Further delay would also conflict with principles of federal-state comity by frustrating the ongoing federal court proceedings.

Goldstein's

federal civil rights case has already been continued multiple times, in part, because of this very issue. The Appellate

Court made its order final immediately,

likely because it recognized

id. at 496-97,

that injustice and conflicts with principles

comity would result from timber delay. The Appellate be respected.

13

of

Court's order should

Bo

THERE IS NO LEGITIMATE REASON TO STAY THE TRIAL COURT'S PREPARATION OF A WRITTEN ANALYSIS OF THE SECRECY CONCERNS RAISED BY THIS MATERIAL, SINCE THERE IS NO DISPUTE OVER THE DUTY OF THE SUPERIOR COURT TO PROVIDE SUCH AN ANALYSIS TO THE FEDERAL COURT.

There is no dispute over the federal court's power to order disclosure of these grand jury materials and the duty of the Superior Court to cooperate in reviewing

these materials and releasing them to the federal court. 8

Neither of the petitions for review raise issue with the Appellate

Court's

opinion to extent that it addresses the Superior Court's duties in this regard. (See County Counsel Petition for Review at 1; County Petition for Review at 1.) In fact, Petitioner County Counsel strenuously for review that federal court disclosure

argues in its petition

is the appropriate remedy for

8 However, Goldstein does disagree that "[t]here is a minority of U.S. Circuit suggesting, as a matter of federalism, that Grand Jury materials lacks jurisdiction to Counsel Petition for Review at 19.) As far as Goldstein is aware, there

with County Counsel's claim Court of Appeals authority a federal court seeking state court compel production." (County is no such authority. The cases

that County Counsel cite to for this position hold precisely the opposite. Socialist Workers'Party v. Grubisic (7th Cir. 1980) 619 F.2d 641,644 ("federal law determines the scope of the privilege covering these materials, and the requirement that these plaintiffs ftrst seek disclosure through the avenues available to them in the state court does not give the state courts a veto over disclosure in this federal civil rights case."); Lucas v. Turner (7th Cir. 1984) 725 F. 2d 1095, 1099 (quoting Social Workers'Party for the same proposition); United States v. ex tel Woodward v. Tynan, (10th Cir. 1985) 757 F. 2d 1085, 1089 ("The Attorney General's claim arises under federal law, and so the privileged nature of these materials under state law is not controlling."). 14

Goldstein.

(County Counsel Petition for Review at 17-20.)

County Counsel vaguely suggest

that the issue has not been

properly raised with the Superior Court. (County Counsel Petition for Review at 18.) This claim is nothing except willful blindness to the facts. A federal court subpoena was properly served on the Superior Court in the summer of 2006 and only withdrawn at the Superior Court's behest. Goldstein, supra, 154 Cal. App. 4tb at 489. In his motion to the Superior Court, Goldstein specifically requested that the Superior Court prepare

a

written, statement of the need for secrecy for the benefit of the federal court and cited the relevant supporting case law. Id. In his response to this motion, County Counsel also urged the Superior Court to prepare such a statement and reiterated the federal case law cited by Goldstein. Id. Superior Court simply ignored this request. See id. at 490. More importantly, been an outstanding

at this juncture,

since March 23, 2007 there has

federal subpoena for these materials duly served on the

superior court (Goldstein's

second subpoena for these materials).

490. The only reason the federal court has stayed proceedings production

See id. at

to compel

of these records is out of respect for the principles of comity-

i.e., a desire to allow this issue to be fully vetted by the state court before becoming involved in it. The federal court deserves to be treated with respect in return. Staying production

of a statement of secrecy regarding

these materials would serve no purpose except frustrating proceedings

and unjustly dragging out Goldstein's

Given all this, it is inconceivable

federal court

case.

why County Counsel would request

a stay preventing the Superior Court from producing

a written analysis of

secrecy concerns raised by these materials. Such a stay can serve no legitimate purpose. 15

Regardless

of the

outcome of the current proceedings,

the federal court will still be obligated,

under federal law, to apply the particularized the grand jury materials should be disclosed

need test to determine

and the Superior Court will still

be obligated, under the Supremacy Clause of the Constitution, with the federal court in its application

whether

to cooperate

of federal law.

If a statement regarding the secrecy needs of these materials is delayed, it will only mean that further delay will result at the conclusion these proceedings

of

as Goldstein and the federal court wait for the Superior

Court to prepare such a statement.

CONCLUSION Despite Petitioners'

assertions, the appellate court decision in this

case does not announce any radical change in the law nor does it threaten. the California

grand jury system. It is a reasoned explication

law. The decision offers important guidance clarifies the nature of well-establish

of established

to litigants in so far as it

particularized

need test in California

courts under current California law. But it is evident that this test has long been accepted and applied without problems by California Courts. For these reasons the appellate court's decision does not justify Supreme Court review and Goldstein respectfully

requests that the petitions

for review be denied.

DATED: September 24, 20007

Respectfully submitted, KAYE, McLANE & BEDNARSKI,

B MATTHEW N. Attorneys Thomas Lee Goldstein

16

LLP

CERTIFICATE

OF WORD

COUNT

The text of this Answer consists of 4,476 words as counted by the Corel Wordperfect

word-processing

program used to generate it.

DATED: September 24, 2007

MATTHEW

17

N.

PROOF

1 2

I, Veronica Los

Angeles

3 McLANE 4

Aguilar,

&

County,

91103;

LLP,

that

5 not a party

to

the

6

Law

of

KAYE,

7

of

of

the

Offices the

Bar

8 District

of

declare

California;

BEDNARSKI,

California

OF

128

California,

I am a resident

that

my

& BEDNARSKI,

at

Oaks

that whose

District

whose

is

Avenue,

I am

in

KAYE,

Pasadena,

years;

that

employed

partners

Court

direction

or employed

address

of eighteen

action;

States

and

business

Fair

the age

above-entitled

United

that

North

I am over

McLANE

SERVICE

I am

in the members

the

Central

for

are

I served

the:

9 10

Consolidated

Answer

To Petitions

For

Review

11 12

On September

13

was:

14

[ ] Placed in a closed envelope, for collection and interoffice delivery addressed as follows:

15 16

24,

2007,

following

ordinary

business

practice,

service

[X] Placed in a sealed envelope for collection and mailing via United States Mail, addressed as follows:

[X] By handdelivery addressed as follows: Theresa Traber ONLY

I7 [ ] By

facsimile

as follows:

[ ] By

electronic

mail:

18 19 20

*EEE

SERVICE

LIST ATTACHED*

"

21 This

proof

of service

is executed

at Los

Angeles,

California,

on

22 September

24,

2007.

foregoing

is true

I

declare

under

penalty

of

perjury

23 and

correct

to

the

best

of my

knowledge.

24 25 26 27 28

Aguilar

that

the

1 2 3 4 5 6 7 8 9 10 11

SERVICE

LIST

Theresa M. Traber Traber & Voorhees 128 N. Fair Oaks Avenue, Suite 204 Pasadena, CA 91103 (Co-Counsel for Petitioner Thomas L. Goldstein) Belinda R. Mayes, Esq. Principal Deputy City Attorney OFFICE OF THE CITY ATTORNEY 333 West Ocean Boulevard, iI t_ Floor Long Beach, CA 90802-4664 (Attorney for Real Parties in Interest the City of Long Beach and Logan Wren) Thomas J. Feeley, Esq. LAW OFFICES OF THOMAS J. FEELEY, P.C. 600 Wilshire Blvd., Suite 900 Los Angeles, CA 90017 (Attorneyfor Real Party in Interest William

McLyman)

12 13 14 15

Michael M. Peters, Esq. TAUBMAN, SIMPSON, YOUNG & SULENTOR One World Trade Center P.O. Box 22670 Long Beach, CA 90811 (Attorney for Real Party in Interest

John

Peter J. Ferguson, Esq. FERGUSON_ PRAET & SHERMAN 1631 East 18 t_ Street Santa Ana, CA 92705-7101 (Attorney for Real Party in Interest

William

Henry

Miller)

16 17 18

Collette)

19 20 21 22

John J. Collins, Esq. Collins, Collins, Muir & Stewart, LLP ii00 E1 Centro Street South Pasadena, CA 91030 (Attorney for Real Parties in Interest John Van de Kamp, and Curt Livesay)

Los

Angeles

23 24 25' 26

Gordon W. Trask, Principal Deputy County 648 Kenneth Hahn Hall Of Administration 500 W. Temple Street Los Angeles, CA 90012-2713 (Attorney for Los Angeles County and the County Grand Jury)

27 28

2

Counsel

Los

Angeles

County,

1

SERVICE

LIST

2 3 4 5 6 7 8

D. Brett Bianco Court Counsel Los Angeles Superior Court ill N. Hill Street, Room 546 Los Angeles, CA 90012-3014 (Attorney for Los Angeles County

Superior

Honorable Peter Espinoza Los Angeles Superior Court Department 123 210 W. Temple Street Los Angeles, CA 90012

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Clerk Second Appellate Court, 300 N. Spring Street Los Angeles, CA 90012

Division

3

Court)