Goldstein.brief On The Merits Goldstein V Superior Court

SUPREMECOURT

FILED

S155944

NOVt 4 2007 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

Freclericl_ K, Ohrlch _lOrk

THOMAS LEE GOLDSTEIN, Petitioner, V.

SUPERIOR

COURT OF LOS ANGELES

COUNTY,

Respondent.

Grand Jury of the County of Los Angeles, County of Los Angeles, John-Van de Kamp, and Curt Livesay, Real Parties in Interest.

After a Decision by the Court of Appeal Second Appellate District, Division Three Case No. B199147

BRIEF ON THE MERITS

......

John J. Collins, Esq. • Tomas A. Guterres, Esq. Douglas Fee, Esq. (State Bar No. 116995) COLLINS, COLLINS, MUIR & STEWART, LLP 1100 E1 Centro Street South Pasadena, CA 91030 (626) 243-1100; FAX (626) 243-1111 Attorneys for Petitioners for Review and Real Parties in Interest COUNTY OF LOS ANGELES, JOHN VAN DE KAMP, and CURT LIVESAY

@®@[PV

O

$155944

O

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

THOMAS LEE GOLDSTEIN, Petitioner, v.

0

SUPERIOR

COURT OF LOS ANGELES

COUNTY,

Respondent.

Grand Jury of the County of Los Angeles, County of Los Angeles, John Van de Kamp, and Curt Livesay, Real Parties in Interest.

After a Decision by the Court of Appeal Second Appellate District, Division Three Case No. B199147

BRIEF

ON THE MERITS

John J. Collins, Esq. Tomas A. Guterres, Esq. Douglas Fee, Esq. (State Bar No. 116995) COLLINS, COLLINS, MUIR & STEWART, LLP 1100 E1 Centro Street South Pasadena, CA 91030 (626) 243-1100; FAX (626) 243-1111 Attorneys for Petitioners for Review and Real Parties in Interest COUNTY OF LOS ANGELES, JOHN VAN DE KAMP, and CURT LIVESAY

TABLE OF CONTENTS

BRIEF ON THE MERITS CALIFORNIA DOES NOT RECOGNIZE A COURT'S INHERENT POWER TO IMPOSE AN "INTERESTS OF JUSTICE" EXCEPTION TO STATUTORY CONTROL OVER THE RULE OF GRAND JURY NONDISCLOSURE

I°

A°

•-

.B.

Rule in California: Nondisclosure of Grand Jury Materials ............................................................. Justifications -1.

°

o

II.

Rule of Nondisclosure

Bo

Co

2 ....... 4

The Main Purpose of California's Grand Juries is to Act as a Watchdog on Governmental Operations ...................................................

4

Under the California Constitution, Only the Legislature is Empowered to Regulate Disclosure of Grand Jury Materials, Thus There Is No Inherent Judicial Power to Order Disclosure ....................................................

5

There is No Inherent Judicial Authority to Create Exceptions to the Rule of Nondisclosure ....... 8

THE RULE OF NONDISCLOSURE IS NOT AFFECTED BY A DIFFERING CONCEPT APPLICABLE TO FEDERAL GRAND JURIES ............................................ Ao

III.

for the Califomia

....... 2

10

The Federal Grand Jury Serves a Different Function Than the California Grand Jury .................................

10

The Federal Justice System Has a Different Mode of Regulating Grand Jury Disclosure ..............................

12

California is Not Bound by Federal Authority on Watchdog Grand Jury Disclosure ...............................

14

CONCLUSION

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

15

TABLE

OF AUTHORITIES

Cases Allen v. Payne (1934) 1 Cal.2d 607 ......................................................... Daily Journal Corp. v. Superior Court (1999) 20 Cal.4 th 117 ...........................

2, 3, 6, 7, 8, 9, 10, 13, 14

Douglas Oil Co. v. Petrol Stops Northwest 441 U.S. 211 ............................................................ Ex Parte Sontag (1884) 64 Cal. 525 .... _._............................................... Fitts v. Superior Court (1936) 6 Cal.2d 230 .................... McClatch¥ Newspapers v. Superior Court (1988) 44 Cal.3d 1162 .................. Monroe v. Garrett (1971) 17 Cal.App.3d

8

13, 15

3, 13

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

5, 6, 7, 13

:._. ...................

2, 3, 4, 5, 13

280 .................................................

11

People v.'Superior Court (1973 Grand Jury for Santa Barbara Count) (1975) 13 Cal.3d 430 .................................................. 10, 12 People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4 th 403 .................................................

Constitutional

15

Provisions

Cal. Const., § 18, art. 4 .............................................................

±±

5

Rules Cal. Rules of Court, Rule 8.200(a)(5) ............................................ F.R. Crim. P. 6(e)(3)(E)-(G) .................................................

2 12, 13

Treatises 4 Witkin, Cal. Crim. Law, Criminal Procedure 39, p. 57 (3d Ed. 2000) ............................. 9 Witkin, Cal. Proc., Appeal § 941, p. 982 (4_ Ed. 1997) .......

iii

_............................

4

14

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

THOMAS

S 155944

LEE GOLDSTEIN, dl

SUPERIOR COUNTY,

Petitioner,

BRIEF ON THE MERITS

V,

After a Decision by the Court of Appeal Second Appellate District, Division Three B199147

COURT OF LOS ANGELES

Respondent.

GRAND JURY OF THE COUNTY OF LOS ANGELES, COUNTY OF LOS ANGELES, JOHN VAN DE KAMP, CURT LIVESAY, Real Parties In Interest.

BRIEF

TO THE HONORABLE THE

ASSOCIATE

JUSTICES

ON THE MERITS

CHIEF JUSTICE OF

THE

OF CALIFORNIA

AND

CALIFORNIA

SUPREME

and Real Parties

in Interest

COURT: Come now County

Petitioners

of Los Angeles,

for Review

John Van

de Kamp,

and Curt

Livesay,

and

respectfully presenttheir brief on the merits which adoptsand incorporates by reference their petition for review and the brief on the merits filed by Grand Jury of the County of Los Angeles, pursuant to California Court,'Rute

Rules of

8.200(a)(5). io

CALIFORNIA

DOES NOT RECOGNIZE

POWER EXCEPTION

TO IMPOSE

A COURT'S

AN "INTERESTS

TO STATUTORY

CONTROL

INHERENT

OF JUSTICE" OVER THE RULE OF

GRAND JURY NONDISCLOSURE Rule in California:

Nondisclosure

of Grand Jury Materials

As this Court stated in McClatch¥

Newspapers

v. Superior

Court

(1988) 44 Cal.3d 1162, 1180, "grand jury secrecy is the rule and openness the exception,

permitted only when specifically

line with this observation, important enumerated

purposes

served

the Court further noted that, "[r]ecognizing by grand jury

only three situations

materials is permitted;"

in which

secrecy, disclosure

the Legislature

In the has

of raw evidenfiary

id. at 1178.

The Court most recently grand jury materials

authorized by statute."

addressed

in Daily Journal

the rule barring

Corp. v. Superior

Cal.4 th 117 by stating that, in California,

disclosure

of

Court (1999) 20

the whole matter of disclosing

grand jury materials is regulated by statute; id. at 1124. The only exception

to the rule barring

2

disclosure

of grand jury

materials

applies when disclosure

McClatch¥,

is specifically

authorized

by statute; see

supra, 44 Cal.3d at 1171, 1173, and Daily Journal, supra, 20

Cal.4 th at 1124-1125. The single hint judicial

discretion

venerable

of a different

may be' invoked

rule suggesting

to permit

that nonstatutory

disclosure

appeared

case of Ex Parte Sontag (1884) 64 Cal. 525, citing in dicta an

authority of the day which stated that certain undescribed be allowed when necessary

for the purposes

collateral to the decision's was unnecessary

might

or for the

in Sontag (which was

holding on a motion to set aside an indictment)

to determination

affirmance

disclosures

of public justice

protection of private rights; id. at 526. That reference

Court's

ifi the

of the case, and was followed up by the

that "[i]n this state the whole

matter

[of grand jury

secrecy] is regulated by statute;" id. at 527. .It appears

that no valid

that

have

principle

courts

California

inherent

authority

authority

has embraced

to make

mandated by statute and allow access to grand jury materials the nondisclosure

rule.

viz., to prevent disclosure which was not specifically supra,

44 Cal.3d at 1184).

not

in disregard of

To the contrary, the Court has recognized

judicial authority only for the purpose of accomplishing

(see McClatch¥,

exceptions

the

inherent

the exact opposite: authorized

This holding

by statute

in McClatch¥

would appear to override the dated Sontag dicta, at least by implication. Accordingly,

as a foundational

premise, the settled rule in California

is that secret grand jury materials may not be disclosed absent a specific statutory authorization for such disclosure. B.

Justifications for the California Rule of Nondiselosure 1.

The Main Purpose of California's Grand Juries is to Act as a Watchdog on Governmental.Operations.

In McClatch¥, fundamentally parameters

the

Court

inconsistent

with

held governing

of proper grand jury reporting

grand jury proceedings

basic functions

'watchdog'

by investigating

id. at 1170.

often played

by the modern

This observation

Crim. Law, Criminal function

of today's

would

setting

"IT]he watchdog

for the secrecy of of the

grand jury" is "to act as the upon the affairs of local

role is by far the one most

in California;"

appears well founded

Procedure

out the

on the fact that one of the three

and reporting

grand jury

be

supra, 44 Cal.3d at 1167.

of '°dae California

government;"

omitted).

legislation

and providing

McClateh¥,

This holding was largely premised

public's

"disclosure

which is central to the effective functioning

grand jury system in California;"

recognized

that

ibid. (citations

(see, e.g., 4 Witldn, Cal..

§ 39, p. 57 (3d Ed. 2000): "The principal

grand jury is to scrutinize

the conduct

of the public

business of the county. [citation]"). For reasons

more fully explained

secrecy of grand jury proceedings, that institution's

below,

it is evident

carefully nurtured

that "It]he

and protected

long history, continues to serve important

during

interests at the

present time and in the particular McClatch¥,

context

of watchdog

investigations;"

supra, 44 Cal.3d at 1184.

2.

Under the California Empowered Materials, Order

Among

to

Constitution,

Regulate

Thus

There

Only the Legislature

Disclosure

Is No Inherent

of

Grand

Judicial

is

Jury

Power

to

Disclosure.

the numerous

legal jurisdictions

throughout

the United

States and at the federal level, California has its own approach to allocating the decision-making In Fitts v. Superior

power over disclosure

of secret grand jury materials.

Court (1936) 6 Cal.2d 230, this issue was addressed

connection with motions to quash a grand jury's removal

of the Los Angeles

County

District

in

accusation praying for the Attorney;

id. at .232.

The

question presented was the validity of the accusation when returned by only eleven grand jurors; ibid. parties'

The question was answered in the context of the

differing contentions

as to whether

the California

Constitution,

in

using the term "grand jury," meant the grand jury as it existed at common law, or alternatively

whether it referred to a completely

statutory body not

known to the common law; id. at 233. Examining liability

of public

constitutional Legislature o

Cal. Const., § 18, art. 4 and its terms for impeachment officers,

provision the power

must

the Court

stated,

"the

be so construed

to determine

all matters,

latter

part

or

of this

as to confer

upon

the

including

preliminary

procedural steps, essential to accomplish the objective;" Fitts, supra, 6 Cal.2d at 234.

The Court explained

"the State Constitution,

its analytic

as distinguished

approach

from the Federal

by noting that Constitution,

does not constitute a. grant of power, or an enabling act, to the Legislature, but rather constitutes therefore,

a limitation

upon the powers of that body.

that we do not look to the Constitution

Legislature

it follows,

to determine whether

the

is authorized to do an act, but only to see if it is prohibited.

In

other words, unless restrained by constitutional invested with the whole of the legislative

provision, the Legislature

is

power of the state. [citations];"

ibid. The Fitts decision determinatioil law (of which California Constitution convention provisions

went on to explain the constitutional

of issues pertaining the grand jury

Legislature's of 1849,

first the

to a grand jury.

Noting that the common

system

is a product)

meeting

subsequent

Court

reasoned

of 1879, like the convention

that

was adopted to "It]he

_.)

of the constitutional

domain

the

[constitutional]

all questions

the grand jury not expressly covered by the Constitution;"

of the Legislature's

adoption-of

at the

of 1849, by failing to make further

as to the grand jury left to the Legislature

This explanation

basis for

and common

over "all questions

affecting

id. at 241. law framework

affecting the grand jury"

supported the Court's more recent decision in Daily Journal, supra,

20 Cal.4 th 1117. There, the Court decided that in the absence of a statutory

O provision

for disclosure,

public; id. at 1120.

O

disclosure

grand jury materials

The Court reviewed

could not be released to the

a number

of statutes governing

and other issues relevant to grand juries, and observed that "[b]y

enacting the statutes governing

the 'exceptional

cases'

[] ha which a court

0 may order disclosure

of grand jury materials, the Legislature

occupied the field; absent express legislative authorization,

Q

require disclosure;"

id. at 1124-1125

(foomote

has, in effect, a court may not

5, citing to FiR___As, supra, 6

Cal.2d 230, 241, omitted). Ultimately,

with

reference

to the issue

of how

the California

Q Constitution

operates

to allocate

authority

for making

decisions

about

disclosure of secret grand jury materials, the Court used defml"tive terms in ....

confm-ning its decision to "reject the conclusion that the superior court had authority under Califomiadaw to its supervisory

to disclose all grand jury materials pursuant

role over grand jury proceedings"

since "there is no basis

for allowing an exercise of inherent judicial power by the superior court to circumvent •required

existing

legislation

for the accomplishment

in this area, when of a constitutionally

function;" Daily Journal, supra, 20 Cal.4 _hat 1130-1131 Accordingly, courts through

such power defined

powers,

judicial

(footnote omitted).

the rule is clear: it is only the Legislature,

inherent

is not

which has sole authority

and not the

to create

exception to the rule barring disclosure of secret grand jury materials.

any

3.

There

is

No

Exceptions The Court's

Inherent

Authority

to

Create

to the Rule of Nondisclosure.

decisions

ambiguity, of understanding: of inherent judicial

Judicial

in McClatchy in California,

and Daily Journal permit

no

there is no basis for an exercise

power to .permit public disclosure

of secret grand jury

materials. Bolstering

the rejection

powers to manufacture nondisclosure,

of any argument

exceptions

that courts have inherent

to statute when it comes to grand jury

the Daily Journal decision cited to Allen v. Pavne (1934) 1

Cal.2d 607, 608 which had examined jury, and which "revealed -bye

a practice ._

vague justification

the legislative of defining

history

of the grand

and delimiting

an area, we dec--61inedto resort-to the very

of inherent or implied powers;"

Cal.4 *hat 1125 (internal punctuation

Daffy Journal, supra, 20

omitted).

Still, some few continue to insist on arguing the point. petitions

for review

prohibition

in the present

was merely a limited prohibition

individual

matter,

Goldstein

against exercise of inherent judicial

was to a news organization

its powers

In opposing

suggested

that the

powers to order disclosure

which applied only when the disclosure

or the public at large, rather than to a discrete

such as Goldstein who wanted to use the secret information

in a

limited fashion for his personal aims. That suggestion

is not borne out in examining

existing

authority.

Rejecting a similar suggestionphrased in terms of permitting disclosure in the particular casebefore it on a "sui generis" basis,the Court declined that invitation while conveying its "doubt that the rule adoptedby the Court of Appeat could be .sonarrowly circumscribed. Its effect would, instead, be d,

immediate and far-reaching:

whenever

public,

in a matter of public interest,

requested

have authority balancing

disclosure

test ....

[this] request for so fundamental addressed

20 Cal.4 ta at 1133-1134

prohibition

of the

a court would

to pierce the veil of grand jury secrecy based on a simple

law is more appropriately supra,

the media, or any member

against

"public

to the Legislature;"

(emphasis

disclosure"

applies not just to news organizations,

a change in existing

supplied).

of secret

Daily Journal, Accordingly,

grand jury

the

materials

but applies as weU to "any member

of the public" such as Goldstein. Goldstein

also suggested that the reasons

for secrecy are no longer

important, given the passage of time between 2007 and release of the grand jury report in 1990, since the involved individuals report was based might no longer be affected. examined

the

This contention too has been

and rejected: "In]or does the legislative scheme permit a court to

disclose grand jury testimony, concludes

on whose testimony

absent express statutory authority, because it

that the privacy interests

of a particular

target or witness

are de

minirnis;" Daily Journal, supra, 20 Cal.4 th at 1133. That is because there is more

at stake,

namely

'_:he continued

importance

of maintaining

the

heritage of grand jury secrecy when there has not been an indictment, order to preserve the effectiveness protect

witnesses

reputation,

against

of disclosing

of the grand jury process,

adverse

consequences,

their testimony;"

in

as well as to

including

damage

to

Daily Journal, supra, 20. Cal.4 th

6

at 132 (citation omitted). There is no room for disagreement courts have consistently

rejected

over the fact that California

the idea of a hypothetical

inherent power

of courts to order disclosure of grand jury materials when such disclosure is not authorized by statute. II. THE RULE OF NONDISCLOSURE DIFFERING

CONCEPT

FEDERAL A.

IS NOT AFFECTED APPLICABLE

BY A

TO

GRAND JUR!ES

The Federal Grand Jury Serves a Different Function than the California Grand Jury. The Court has examined

jury system in reference jurisdictions,

including

the question of California's

grand

to the differing role the grand jury plays in other the federal

system.

(1973 Grand Jury for Santa Barbara Court considered

unique

the grand jury's

In People v. Superior

County) (1975)

"important

operation of many facets of local government"

Court,

13 Cal.3d 430, the

'watchdog' in reference

function over the to the question

whether the Superior Court must accept or may refuse to file a report which

10

exceeds the grand jury's power

of "limited

whereby

"It]he

legal authority;

review

court's

[] implicit

sole function

id. at 433.

The Court found a

in the statutory in this realm

scheme"

(ibid.)

lies in its power

to

prevent the official filing of an illegal report;" id. at 434.

Q

Distinguishing jurisdictions,

Q

American

the California

the Court noted

jurisdictions,

grand jury from grand juries

that "[i]n California,

[fla.] the grand jury's

operations

of a variety of local government

respected

heritage,"

throughout

which

unlike

some

role as a 'watchdog' activities

in other other

over the

has a long and well

%he Legislature

has continualIy

J expanded the boundaries domain;"

id. at 436.

of the grand jury's

Contrasting

Court noted that "[f]ederal juries lack authority

investigatory

the California

and federal systems,

courts have generally

to issue 'reports'

and reportorial

held that federal

the

grand

on public affairs;" id. at 436, fla. 4

(citations omitted). The Court explained

the basis for these significant

noting that "[p]ast cases have recognized

the valuable

differences

and unique role a

grand jury fulfills in carrying out its authorized investigations on its findings and recommendations," 17 Cal.App.3d government,

280,

citing to Monroe

284 for the proposition

that

by

and reporting

v. Garrett (1971)

"[i]n our system

of

a Grand Jury is the only agency free from possible political or

official bias that has an opportunity any broad basis.

It performs

to see the operation

a valuable public purpose

11

of government

on

in presenting

its

O conclusions

drawn from that over-view;"

People v. Superior Court, supra,

13 Cal.3d at 436-437 (internal punctuation

omitted).

It is thus apparent that the unique California is a very different

creature of government

"watchdog"

grand jury

than grand juries in the federal

m system, which function.

Q

generally

do not perform

an investigatory

This fact strongly suggests that the manner

and other similar systems deal with disclosure the California B.

'`watchdog"

The Federal

or reportorial

in which the federal

issues has no pertinence

to

grand jury.

Justice

System Has a Different

Mode of Regulating

0 Grand

Jury Disclosure.

In the federal system, grand juries are regulated 6(e)(3)(E)-(G),

which

rule is entitled

"Recording

under F.R.Crim.P. and Disclosing

the

Proceedings." Without

repeating

the extensive

text of these

federal rule, it bears remark that by enacting Congress

has

carefully

disclosure

of materials

operate in a "watchdog"

determined

of the

this rule, the United

the methods

States

of and limitations

from federal grand juries which function.

subsections

generally

on

do not

There is no parallel in California rules of

procedure. Courts at the federal level have spoken to the issue of how Congress reacted

to its understanding

"Indeed, recognition

of the way

federal

grand juries

operate.

of the occasional need for litigants to have access to

12

O grand

jury

transcripts

6(e)(2)(C)(i)

that disclosure

so directed

the

provision

in

Fed.RuleCrim.Proc.

of grand jury transcripts

may be made

to or in connection

Douglas Oil Co. v. Petrol Stops Northwest,

'when

with a, judicial

441 U.S. 211, 220

(fla. omitted). It was with

8

to

by _ court preliminarily

proceeding;"

o

led

evolved

specific

for balancing

reference

to F.R.Crim.P.

a need for disclosure

6 that

standards

against a need for continued

secrecy with regard to federal grand juries; id. at 222. It is notable that federal courts do not go beyond,

but instead act

8 within, the legislative mandate imposed by F.R.Crim.P. there is a parallel to the California permitted

by legislative

rule which bars disclosure

enactment;

see McClatch¥,

1167, Daily Journal, supra, 20 Cal.4 _ at 1124-1125, Cal. at 527 ("In this State the whole proceedings]

6. In this respect,

matter

supra,

except when 44 Cal.3d at

and Sontag, supra, 64

[of disclosing

Grand Jury

is regulated by statute.").

This difference

in the mode of regulating

grand juries also reflects

the contrast between federal and state constitutions,

whereby the California

legislature

is invested with the whole legislative

power of the state unless

restrained

by

opposed

constitution's enactments;

constitutional

provisions,

grant of power to Congress

as

to

for the purpose

the

federal

of legislative

Fitt____s_s, supra, 6 Cal.2d at 234.

In summation,

the analogy

of federal

13

authority

on grand

jury

disclosure is of doubtful usefulness juries

are

concerned

largely

when one considers

with

criminal

functions (in direct opposition to California's California

Legislature

has completely

rather

than

grand juries),

by virtue of its constitutional

occupied

that federal grand

and because the

role within this state

the field of grand jury disclosure

supra, 20 Cal.4 m at 1124-1125),

a situation

investigatory

(Daily Journal,

without parallel

in the federal

system. C.

California Grand

is Not Bound by Federal

Authority

on Watchdog

Jury Disclosure.

As explained above, over the last 150 and more years California developed

its own approach

to dealing with the unique

jury which serves a significantly

different

purpose

California

has

grand

than the federal grand

iury generally does. Of course, decisions of the United States Supreme Court are binding "on

state

courts

constitutionality statutes;"

when

a

federal

question

of a statute or construction

9 Witkin, California

Procedure,

such

as

of the federal Constitution

or

Appeal

is

involved,

§ 941, p. 982 (4_ Ed.

1997; citations omitted). In the matter at bench, however, involved,

since the issues

regarding

a legislative

rather than

concerned

enactment

constitutionality

there is no such federal question are the effect of California

law

and the inherent power of the judiciary,

of a statute

14

or construction

of the federal

constitution

or statutes.

Insofar

as the authority

Supreme Court is concerned,

of courts

lower than

"the prevailing

the United

States

view appears to be that the

decisions of the lower federal courts, although entitled to great weight,

are

d_

not binding on state courts;" id. at § 942, p. 983. Once again, the matter in question has to do with California power

of California

criminal procedure

legislative

enactments

courts; rather than interpretation

authorities

has been

addressed

are most persuasive

the

California

proceedifigs, federal Rules

which

statutory scheme. California

Northwest

scheme

regulating

grand jury procedure

Procedure,

which

Accordingly,

'_Federal

a state statute or

The issue before us arises

is not based upon any federal

criminal

grand

enactments ....

jury the

are based on the Federal

are different

from the California

we resolve the issue at bar on the basis of

law and decline defendants'

adopt the balancing

courts.

when the issue involves

statutory

cases discussing of Criminal

grand jury.

by our state's

rule which is based upon a federal enactment. from

of federal rules of

concerned with a grand jury that has a different function

and operating rules than the California %vatchdog" This issue

and the inherent

test derived

invitation to follow federal law and

from Douglas

Oil Co. v. Petrol Stops

(1979) 441 U.S. 211;" People v. Superior Court (Mouchaourab)

(2000) 78 Cal.App.4 m 403,427 Accordingly,

(citations and fla. omitted).

the non-California

15

authority

on which

Goldstein's

position is based is not dispositive

of the issue, and provides no grounds for

deviating from the established California rule on grand jury nondisclosure. III. CONCLUSION 6

The Court of Appeal decided

in error that California

inherent power to disclose secret grand jury proceedings, the error by invoking

federal procedures

unique structure and function of California's The only way to obtain disclosure by following

statutory

enactments

devised

which

courts have

and compounded

are not relevant

"watchdog"

grand jury.

of secret grand jury materials by the California

function

in this regard.

For the sake of maintaining established

is

Legislature.

There is no inherent judicial authority to invade the constitutional of the Legislature

to the

the California

grand jury in its long-

role, these real parties in interest pray the Court to determine

that the grand jury materials sought by petitioner to the rule of nondisclosure,

and to reverse

of Appeal's decision.

16

Goldstein remain subject

anything

contrary in the Court

DATED:

November

9, 2007

Respectfully

submitted,

COLLINS, COLLINS, MUIR & STEWART, LLP

TOMAS A. GUTERRES DOUGLAS FEE Attorneys for Petitioners Real Parties in Interest

for Review/

COUNTY OF LOS ANGELES, JOHN VAN DE KAMP, and CURT LIVESAY

17

CERTIFICATE

OF WORD COUNT

I certify that pursuant to California Rules of Court, Rule 8.204, the attached (Brief on the Merits) is proportionately

spaced, has a typeface of

6

13 in Time.s New Roman font and contains 3,378 words based upon the word count from Microsoft Word 2002.

Dated:

November 9, 2007

Respectfully submitted, Collins, Collins, Muir & Stewart, LLP

By: Attorneys for Petitioners for Review/Real Parties in Interest COUNTY OF LOS ANGELES, JOHN VAN DE KAMP, and CURT LIVESAY

18

PROOF OF SERVICE (CCP _ 1013(a) and 2015.5) StateofCalifornia,

) ) SS.

County of Los Angeles

)

l am employed in the County of [] LosAngeles , [] I am over the age of 18 and not a party to the within action; my business address is: []

1100 El Centre Street, Post Office Box 250, South Pasadena, California 91030.

[]

620 Newport Center Drive, Suite 200, Newport Beach, CA 92660-8002

Orange, StateofCalifomia.

On this date, I served the foregoing document described as BRIEF ON THE MERITS on the interested parties in this action by placing same in a sealed envelope, addressed as follows: SEE ATTACHED SERVICE LIST

[]

- I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in South Pasadena, California. I am"readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at: South Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal caucellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

[]

(BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fitly prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in South Pasadena, California.

[]

BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT

[]

(BY ELECTRONIC recipients

FILING

listed on the attached

AND SERVICE)

- I served a hue copy, with all exhibits,

electronically

DELIVERY

on designated

Service List.

[]

FEDERAL EXPRESS - I mused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for.

[]

(BY FACSIMILE) - I caused the above-desaribed document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (626)2431111 (So. Pasadena) or (9,19)718-4801 (Newport Beach) indicated all pages were lmusmitted. (BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s).

[]

Executed on November 9, 2007 at: South Pasadena, California. []

(STATE_ - I declare uader penalty of perjury under the laws of the State of California that the above is hue and correct.

[]

(FEDERAL) -t declare that I am employed in the office era member of the bar of this court at whose-direction the service was made.

LillyF@i_ Y.

_

Thomas Lee Goldstein v. City of Long Beach_ et al. Case No.: CV04-9692 AHM (Ex) Our File No. 16293 SERVICE LIST

David S. McLane .KAY-E, McLANE & BEDNARSKI LLP 128 North Fair Oaks Avenue Pasadena, CA 91103 (626) 844-7660; fax: (626) 844-7670 ATTORNEYS FOR PETITIONER THOMAS L. GOLDSTEIN

Theresa M. Traber, Esq Traber & Voorhees 128 N. Fair Oaks Avenue, Suite 204 Pasadena, CA 91103 (626) 585-9611; fax(626) 577-7079 CO-COUNSEL FOR PETITIONER THOMAS L. GOLDSTEIN

Clerk of/he Court For deliveryto: Hon. Peter Espinoza, Div. 123 L.A. Superior Court Criminal Justice Center

D. Brett Bianco, Esq Court Counsel Los Angeles Superior Court 111 N. Hill Slreet, Room 546 Los Angeles, CA 90012-3014 (213) 974-5137; fax (213) 625-3964 ATTORNEYS FOR LOS ANGELES COUNTY SUPERIOR COURT Gordon W. Trask, Esq. Principal Deputy County Counsel 648 Kenneth Hahn Hall of Administration 500 West Temple Slreet Los Angeles, CA 90012-2713 ATTORNEY FOR LOS ANGELES COUNTY and

210 West Temple S/feet Los Angeles, CA 90012-3210

Clerk of/he Court California Court of Appeal Second Appellate Dis/riot, Div. Three 300 So. Spring Slreet, F1.2, N. Tower Los Angeles, CA 90013-1212 (213) 830-7000 ..........................................................

Supreme Court of California Ronald Reagan Bldg 300 S. Spring St., F1. 2 Los Angeles, CA 90013-1233 (213) 830-7570 Original and 13 copies via CA Overnite Guaranteed overnite delivery

2O

,.T._..LQS.._..GELES

C.OU.NTY ..G._.,,_,,.R.Y ".............