Goldstein.petition For Supreme Court Review Goldstein V Superior Court

O

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

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

PETITION

FOR

REVIEW

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; (626) 243-1111 FAX Attorneys for Petitioners for Review/Real Parties in Interest COUNTY OF LOS ANGELES, JOHN VAN DE KAMP, and CURT LIVESAY

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

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

PETITION

FOR

REVIEW

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; (626) 243-1111 FAX Attorneys for Petitioners for Review/Real Parties in Interest COUNTY OF LOS ANGELES, JOHN VAN DE KAMP, and CURT LIVESAY

TABLE

PETITION

OF CONTENTS

FOR REVIEW

ISSUE PRESENTED WHY REVIEW

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

SHOULD

BE GRANTED ................................................

FINALITY

OF THE COURT OF APPEAL'S

FACTUAL

BACKGROUND

LEGAL DISCUSSION A.

CONCLUSION

OPINION .....................

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

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

California's Broad Rule of Secrecy and Nondisclosure Concerning Grand Jury Materials Must Prevail, Absent Specific Statutory Exception ..................................... .....................................................................

1 2 2 2 7

7 14

TABLE OF AUTHORITIES Cases Allen v. Payne (1934) 1 Cal. 2d 607 ............................................. Daily Journal Corp. v. Superior Court (1999) 20 Cal.4 th 1117 ..................................... Douglas Oil Co. v. Petrol Stops Northwest,

13

i 5, 10, 11, 12, 13

441 U.S. 211 (1979) .........

6, 7

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

5, 6

Los Angeles Times v. Superior Court (2003) 114 Cal.App.4 th247 .................................................

5

McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162 ................................................

4, 5, 7

People v. Tinder (1862) 19 Cal. 539 ............................................. Socialist Workers Party v. Grubisic, 619 F.2d 641 (7th Cir. 1980) ....................................

12

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

7

StatuIes 42 U.S.C. § 1983 .....................................................................

3

Penal Code § 924.2 ..............................................................

4, 11

Penal Code § 929 ................................................................

4, 11

Penal Code § 939.1 ..............................................................

9, 11

Rules Cal. Rules of Court, Rule 8.500(b)(1) .............................................

2

Federal Rule of Criminal Procedure

6

5.5_

6(e) ........................................

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

THOMAS

LEE GOLDSTEIN,

{

PETITION

Petitioner, V°

SUPERIOR COUNTY,

COURT OF LOS ANGELES

--

2nd Cir. No. B199147

FOR REVIEW

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

Respondent.

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

PETITION

FOR REVIEW

ISSUE PRESENTED Does the Superior Court have inherent power to disclose secret grand jury materials, notwithstanding and limit such disclosure?

statutory provisions which govern

WHY REVIEW SHOULD BE GRANTED This Court should grant review becausethe Court of Appeal's published opinion fails to enforcethe legislative policy for preserving

l secrecy of grand jury materials, and fails to implement this Court's rulings which mandate obedience to the statutorily The Court of Appeal's

expressed legislative policy.

opinion will allow public disclosure

jury materials in a manner heretofore

prohibited,

of grand

and will severely impair

-th--_fune-t-ion-of.th--_grand jury_ The opinion creates disuniformity

of decision and raises an

important question of law; Cal. Rules of Court, Rule 8.500(b)(1).

FINALITY

OF THE COURT OF APPEAL'S

The Court of Appeal's 17: "The order granting Goldstein's this court.

(Cal.Rules

OPINION

August 23, 2007 opinion states, at p. writ petition is final immediately

as to

of Court, rule 8.264(b)(3).)"

There has been no petition for rehearing filed in the Court of Appeal.

FACTUAL

BACKGROUND

Thomas Lee Goldstein was arrested for murder in 1979 after an eyewitness

identification

p. 3, Ex. B hereto].

was made [see Court of Appeal Opinion ("Opn."),

At Goldstein's

trial which resulted in his conviction

charged, testimony was given by one Edward Floyd Fink who had been

as

placed in Goldstein's cell two daysafter the arrest, andwho testified that Goldstein said he was in jail becausehe had shot a man [Opn., p.4]. In 1988,the Los Angeles County Grand Jury began investigating misuse ofjailhouse

informants

in criminal trials, and issued its report in

1990 [Opn., p. 4]. The report criticized the Los Angeles County District Attorney

for deliberately

failing to take steps necessary

jailhouse

informant testimony,

specifically

to curtail misuse of

by failing to create a centralized

index -to:disseminateimpeaehment-information

pertain_g

to informants

[Opn., p. 4]. Goldstein was released from custody after he filed a petition for habeas corpus which resulted in an August 2002 hearing before a federal magistrate where the eyewitness identification,

against Goldstein

Goldstein presented evidence that jailhouse

had received benefits for cooperating magistrate

recanted his

with law enforcement,

found Fink was representative

addressed in the grand jury's

informant Fink

of the jailhouse

and the federal

informants

report [Opn., p. 5].

Goldstein filed a civilsuit

in the Central District of California under

42 U.S.C. § 1983 alleging wrongful conviction

and incarceration

an alleged pattern and practice of misusing jailhouse

based on

informant testimony

[Opn., p. 5]. He sued the arresting agency City of Long Beach and four of its police officers, as well as these petitioners Angeles,:its

for review, County of Los

District Attorney John Van de Kamp, and prosecutor

Curt

Livesay [Opn., p. 5]. In furtherance

of his lawsuit, Goldstein

sought access to grand jury

materials through informal means [Opn., p. 6], followed by the federal District Court's issuance of a subpoena to the Superior Court of Los Angeles County [Opn., p. 7]. Upon objection to the subpoena by counsel for the Superior Court, Goldstein withdrew

the subpoena and filed a motion

seeking access to the material [Opn., p. 7]. The Superior Court (Hon. Peter Espinoza)

conducted a.hearingon

Goldst_in's

motion and thereafter issued

a written denial of the motion [Opn., p. 8]. Judge Espinoza found that the statutes on which Goldstein relied (namely, Penal Code §§ 924.2, 929, and 939.1) did not apply to his situation, and that in the absence of express statutory authorization, general rule of secrecy in grand jury proceedings McClatch¥ Newspapers

the

prevailed as specified by

v. Superior Court (1988) 44 Cal.3d 1162 [Opn., p.

8]. Goldstein

sought relief by mandamus.

The Court of Appeal issued

an order directing real parties in interest to address whether the statutes on which Goldstein relied for disclosure

"are applicable to the investigatory

function of the grand jttry or whether those statutes are limited to criminal proceedings"

[Order of May 3, 2007, attached as Exhibit A hereto].

Goldstein and real parties briefed these issues extensively. to oral argument on August 15, 2007, where Goldstein's

The matter went counsel agreed

during the courseof argument that he had not urged the Superior Court that it had inherent authority to order disclosure of grand jury materials. The Court of Appeal issued its opinion [Exhibit B] on August 23, 2007.

The court agreed with Judge Espinoza that the statutes on which

Goldstein relied for disclosure of grand jury materials were inapplicable [Opn., p. 9-11], and recognized Angeles

in accordance

with its earlier opinion in Los

Times v. Superior Court (2003) 114 Cal.App.4 th 247 that there is

no presumptive

right of ascess -to grand jury materials under California

[Opn., p. 12]. The court, however, to McClatch¥

Newpapers

gave an unduly restrictive

law

interpretation

v. Superior Court, supra, 44 Cal.3d 1162,

viewing .that decision as involving only what the court termed "public disclosure"

of grand jury materials

[Opn., p. 12] and resorting instead to

this Court's much earlier opinion in Ex Parte Sontag (1884) 64 Cal. 525 to fred a nonstatutory

"interests of justice"

exception to the rule of grand jury

secrecy [Opn., p. 13-17]. While acknowledging

this Court's broad statement in Daily Journal

Corp. v. Superior Court (1999) 20 Cal.4 th 1117, 1124 that in California whole matter of disclosing grand jury materials

is regulated by statute

[Opn., p. 14], the Court of Appeal treated that decision dismissively had McClatch¥)

the

(as it

for examining what the court termed "public disclosure"

grand jury proceedings, Sontag (about regulating

of

and attempted to distinguish the same statement in disclosure

of grand jury materials by statute) as

pertaining only to the particular statutethere involved (i.e., whether grand juror Sontagcould be compelled to disclosehis vote on indictment) [Opn., p. 14-15]. Despite the admitted fact that Goldstein sought secret grandjury materials to usein public litigation, the court maintained does not involve public disclosure Goldstein seeks disclosure

of grand jury materials.

that "this case Rather,

of grand jury materials pursuant to a protective

order limiting use of the materials to his pending federal civil rights case. Under these e_eumstanees,..the

general role of.no public right of access is.

simply not in issue" [Opn., p. 12]. At the same time, and without paying heed to subsequent enactments

statutory

and the legislative policy embodied in them, the Court of

Appeal seized on dicta in Sontag to fred that "there remains an interests of justice exception"

to exclusively

[Opn., p. 15] when disclosure justice or the protection

statutory regulation

becomes necessary

of public disclosure

for the purposes

of public

of private rights [Opn., p. 15, citing Ex Parte

Sontag, supra, 64 Cal. at 526]. Based on this reasoning, the court looked to federal authority in Douglas Oil Co. v. Petrol Stops Northwest,

441 U.S. 211,219-220

(1979)

and Federal Rule of Criminal Procedure 6(e) to proclaim that "a similar rule appears in California compel disclosure

law" under the Sontag case allowing Goldstein to

of secret grand jury materials

[Opn., p. 13]. The court

failed to take account of California public policy as manifested

in

legislative enactments,and did not explain why it had taken 123years since Sontagto discover a supposedinherentjudicial power contrary to legislative mandatesof nondisclosure.

1 The court then adopted the conclusion and the procedure

stated in Douglas Oil, supra,

laid out in Socialist Workers Party v. Grubisic, 619 F.2d

641 (7th Cir. 1980) to direct the Superior Court on remand in providing Goldstein with disclosure

of grand jury materials

[Opn., p. 15-17].

LEGAL DISCUSSION A. California's

Broad Rule of Secrecy and Nondisclosure

Concerning

Grand Jury Materials Must Prevail, Absent Specific Statutory Exception. Goldstein seeks to obtain discovery of secret grand jury information for the sake of pursuing his civil suit venued in federal court. In McClatch¥

Newspapers

v. Superior Court, supra, 44 Cal.3d 1162,

the Court decided that a grand jury report exceeded "when it announced

the grand jury's

of testimony,

documentary

summaries

investigation,

including

and analyses of testimony,

exhibits;" id. at 1167. In rebuking the requested

the Court held that "such disclosure would be fundamentally with governing legislation

legal limits

intention to disclose raw evidentiary

materials gathered during a secret watchdog transcripts

established

setting out the parameters

and disclosure, inconsistent

of proper grand jury

reporting and providing for the secrecyof grandjury proceedingswhich is centralto the effective functioning of the grandjury systemin California;" ibid. The Court recognized that a basic function of a California jury is '`to act as the public's

'watchdog'

upon the affairs of local government..,

by investigating

and reporting

the watchdog role is by far the one

most often played by the modern grand jury in California;" --(citations-and--footnote.omitted)_

grand

Although

id. at 1170

the-issuance,ofareport_onAts

investigation

"is the normal end product of the grand jury's

performance

of its watchdog

activity in the

function" (j_d.at 1171), the Court found that

there were specific statutory limits on the issuance of reports; ibid. Turning to common law principles holding that the secrecy of all grand jury proceedings the Legislature's

is deeply rooted i(i(_,at 1173), the Court easily found

intent "to incorporate

this well-established

heritage of

secrecy into the present grand jury system" as "plainly and amply shown in the gove_ing

provisions

of the Penal Code;" ibid. Numerous justifications

arising in sound policy were offered, including the fostering of candid testimony by witnesses, protection disclosure,

the avoidance of influencing

testimony,

of accused innocents from harm to their reputations leading to the conclusion

and the by

that these vital goals "are best

achieved when secrecy is maintained

even after the conclusion

jury investigation;"

For, "It]he grand jury as a public

id. at 1174-1175.

of a grand

institution

serving the community might suffer if those testifying

today

knew that the secrecy of their testimony would be lifted tomorrow;" 1175 (citations and internal punctuation

id. at

omitted).

The Court took care to note that excesses by grand jurors which amounted to defamation

could be curbed by established judicial

(id. at 1177), but that "disclosure appearing

remedies

of adverse comments by witnesses

in secret before the grand jury presents quite a different problem"

( ibidq italics in original) .and that "the Legislature this type of damage to reputation disclose raw evidentiary

in effect has prevented

by denying the grand jury any authority to

materials by means of its reports" (j_d..at 1177-

1178). In part because the grand jury had failed to obtain the Superior Court's permission

to conduct proceedings

939.1 (a statute ineffectually attempted wholesale

in public under Penal Code §

relied on by Goldstein), the grand jury's

disclosure

of secret materials was unlawful when it

failed to follow the statutorily required procedure

i(i(_,at 1179-1180)

"grand jury secrecy is the rule and openness the exception, permitted when specifically

since only

authorized by statute" (J_d_. at 1180).

At the end of its opinion in McClatch¥,

the Court took up amicus

curiae arguments that judicial restraint of disclosure affected the public's right to scrutinize public affairs (j_d.at 1183). Here we begin to see the "public disclosure" undefined

element so important to the Court of Appeal, but left

by that court or by this Court in McClatch¥,

and even so

irrelevant when taken in context. In all events, the Court found that "[t]he people, actingthrough their electedrepresentativesor through exercise of the initiative power, may authorizethe disclosure attemptedhere, but they I

I

have not done so to date, presumably

for the policy reasons we have

discussed;" id. at 1184. Those policy reasons would appear to hold tree whether the one seeking disclosure of secret materials organization

is a news

or a curious private individual, albeit one potentially

with a

-personal-stake in the information_ The upshot of the McClatchy

decision is a finding of inherent

judicial power for the purpose of limiting a grand jury from acting unlawfully,

and for the sake of preventing

a disclosure

of secret materials

which would offend the legislative formula for maintaining

secrecy as

expressed in statute; id. at 1184. More recently, in Daily Journal Corp. v. Superior Court, supra, 20 Cal.4 th 1117, the Court dealt with a contest over information criminal grand jury which investigated bankruptcy

compiled by a

events concerned with the

of Orange County and which concluded without indictment.

The Daily Journal litigation involved another effort by news media to obtain secret grand jury information

("all testimony

and documents;"

id. at

1120). The Court "granted review to determine whether the superior court,

O

in the absence of a statutory provision for disclosure under these circumstances,

properly released the grand jury materials to the public. As

10

t

O

will appear,we concludethat it did not;" ibid. In a respect extremely pertinent to the present case,the challenged order had directed the district attorney to releaseall transcripts and documents,based on two grounds:ftrst, on the public's right to know "under the First Amendment and independently

and the California

(reminiscent

Constitution;"

and secondly

of the present matter), on "the court's

'inherent equity, supervisory and administrative

powers';"

id. at 1121.

Achieving the-same effect as in. the present ease_ the Court of Appeal had affmned the order of disclosure, determining statutory provision

"that, in the absence of any

limiting its authority, a superior court has inherent

power to order the release of otherwise secret grand jury materials whenever the advantages interest in disclosure;" "interests of justice"

gained by secrecy are outweighed

by a public

ibid. While not phrased in the same terms as the inherent power announced

by the Court of Appeal

here, it comes close enough in result. Refuting this conclusion,

the Court prefaced

its analysis by citing

(among others) the same statutes lately relied on by Goldstein, reviewing the public policy reflected in Penal Code § 939.1 and § 924.2 Da(D(D(_D___y Journal, supra, 20 Cal.4 th at 1122-1123),

as well as noting the 1998

enactment of Penal Code § 929 i(_. at 1124). Then, the Court framed the issue in stating, "It]he question before us is whether the superior court in this matter had authority to disclose grand jury materials to the public when

11

none of the foregoing statutes was applicable;" qualification

ibid. The Court stated no

or restriction with respect to "public" as opposed to any other

kind of disclosure, no special rule based on the happenstance seeking disclosure was a news organization, for a party wanting to use the information

that the party

nor any hint of a different rule for the sake of a lawsuit.

Instead, the Court harked back to its seasoned opinion of a prior day to note that: "As we explained more than a century ago: 'In this State the whole matter [of disclosing

grand jury proceedings]

is regulated by statute.'

(Ex Parte Sontag (1884) 64 Cal. 525, 527. By enacting the statutes governing

the 'exceptional

cases' (ibid.) in which a court may order

disclosure

of grand jury materials, the Legislature

the field; absent express legislative authorization, disclosure.

has, in effect, occupied a court may not require

[fla.];" Daily Journal, supra, 20 Cal.4 *hat 1124-1125.

How clear and definitive that language is. The Legislature occupied the field. Absent express legisl_itive authorization, not require disclosure. a restatement

has

a court may

And yet, the concept is no innovation,

but is instead

of law well known (or at least of long standing),

for even two

decades before the 1884 Sontag opinion, the Court had reached a similar result in,People v. Tinder (1862) 19 Cal. 539 (Daily Journal, supra, 20 Cal.4 th at 1125). In its discussion of these cases and others, the Daily Journal decision did not pause to make distinctions

12

about the identity or capacity of

the party seeking disclosure , about the purpose for which disclosure was sought, or about the final disposition rulings were not constrained become inapplicable

of the material sought.

The Court's

to the realm of "public disclosure"

so as to

to other cases; see, e.g., Allen v. Pa_-ne (1934) 1

Cal.2d 607, 608, cited for the proposition

that the legislative history of the

grand jury revealed a practice of defining and delimiting its powers by express statutory grant, such that the Court "declined to resort to the very vaguejusfificat-ion..of

'inherent'

or 'implied'

powers;" Daffy Journal, supra,

20 Cal.4 _ at 1125. One seeks in vain to justify the Court of Appeal's

new development

of an implied or inherent exception to strict legislative control over grand jury disclosure,

"public" or otherwise.

The exception certainly cannot be

supported by the holding in Daily Journal where the Court rejected the idea of an inherent power in the judiciary to order disclosure of secret grand jury materials; id. at 1128 ("Otherwise,

if superior courts could disclose

materials based only on their inherent powers, the statutory rules governing disclosure of grand jury testimony exception").

would be swallowed up in that large

"Thus, contrary to the Court of Appeal, we conclude that

whatever exercise of authority to disclose grand jury materials has not been expressly permitted by the Legislature

is prohibited;"

id. at 1129.

Indeed, our Court of Appeal, striving to distinguish authority on the basis of "public disclosure,"

13

preceding

never articulated

how the

information

Goldstein strives to get will not be the subject of"public

disclosure"

in an open court of law attended by news media representatives

among others in the public realm, despite possible use ofundescribed protective

orders.

That, after all, is exactly what Goldstein

seeks: public

use of in£ormation in a public trial, wielded to help his privately motivated effort to prove his case. There is thus no reasoned dichotomy between the "public disclosure" limitation -and Goldstein's-personally

interested.use

or distinction

as seen by the Court of Appeal, of the .information in a public

trial. The distilled teaching of the controlling authorities for separation of powers between the judicial government.

is one of respect

and the legislative branches of

Where the Legislature has carefully crafted a mere few

exceptions to the rule of grand jury secrecy, the judicial branch should tread carefully to avoid inventing new exceptions that will eviscerate

the

legislative formula through engrafting vague and ill-suited notions of judicial discretion.

CONCLUSION Whereas this Court's prior opinions have recognized

limited

instances of irdaerent judicial authority to prevent improper disclosure secret grand jury materials

in accordance with legislative mandates

of

of

secrecy, the Court of Appeal has now devised a concept of inherent judicial

14

authority to do the opposite, by ordering disclosure materials regardless

of the legislative mandates

The Court of Appeal's published unheralded

of secret grand jury

against disclosure.

opinion reflects a profoundly

and unjustified conception of the relationship

courts, the grand jury, and the legislature branch. disuniformity

The opinion creates

of decision and involves an important

The decision, if left unreviewed,

between the

question of law.

will usher in a disruptive tide of

discovery into secret grand jury materials, in a manner ineffectually

fettered

by the broad concept of judicial discretion in place of orderly grand jury disclosure as the law requires: according to strict limits set by legislative direction. As a result, without review, the grand jury in California will be severely impaired in its role of civil watchdog

and in its other functions,

as

witnesses tailor their once-secret testimony to avoid the personal repercussions longstanding

of disclosure, rather than being able to rely as before on the rule of secrecy.

In effect, the new rule allowing judicial

disclosure will result in self-generated witnesses,

nondisclosure

by grand jury

fi-ustrating the mission of both civil and criminal grand juries.

15

Accordingly,

petitioners

County of Los Angeles, John Van de

Kamp, and Ckn't Livesay respectfully

pray that this petition for review be

granted.

DATED:

September 4, 2007

Respectfully

submitted,

COLLINS, COLLINS, MUIR & STEWART, LLP

Jo

TOMAS A. GUTERRES DOUGLAS FEE Attorneys for Petitioners for Review/ Real Parties in Interest COUNTY OF LOS ANGELES, JOHN VAN DE KAMP, and CURT LIVESAY

16

CERTIFICATE

OF WORD

COUNT

I certify that pursuant to California Rules of Court, Rule 8.204, the i attached (Petition For Review) is proportionately

spaced, has a typeface of

13 in Times New Roman font and contains 3,266 words based upon the word count from Microsoft Word 2002.

Dated:

September 4, 2007

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

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

17

MAY.30,2007 2:56PM

COACLERKS OFFICE

NO.3b28

P. 2/2

IN THE COURT OF APPEAL OF THE STATE OF CALIF_a_-,IIA

SECOND APPELLATE DISTRICT

•

'

THOMAS LEE GOLDSTEIN, Petitioner, V,

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

DIVISION THREE

_ _

_

_._._

.t_,__ O

__...._j_4__,..'_ _@2

B199147

--_,_ .

(Los Angeles .County Super. Or, No. BH004311 (Peter Espinoza, Judge) ORDER

Respondent, CITY OF LONG BEACH, et al,, Real Parties in Interest.

BY THB COURT: Tlie petition for writ of mandate _ied May 21, 2007, has been read and considered, Counsel for real parties in interest are direoted to file response to the petition on or before June 14, 2007, The response should include, but is not limited to, briefimg as to whether the cited statutory provisions (Pen. Code §§ 924.2, 929, and 939.1) are applicable to the investigatory ftmetion of the grand jury or whether those statutes are limited to criminal proceedings. The reply must be filed no later than June 29, 2007,

MAY.30.2007 2:56PM

COACLERKS OFFICE

N0.3528

P. 1/2

COURT OF APPEAL - STATE OF CALIFORNIA Second Appellate District - Clerk's Office JOSEPH A. LANE, CLERK OF THE COURT (213) 830-7000 I

I

FAX COVER SI=IEET DATE:

May 30, 2007

John J. Collins

TO: FAX #:

FROM:

626-243-1111

Zaida Heraldez, Deputy Clerk, Division 3

Division 3:

213-830-7103

Number of pages including cover sheet:

,

|

.....

Order dated 5/30/07 Thomas Lee Goldstein V,

&C.hA. City of Long Beach et al

i

2

i

CERTIFIED IN THE COURT OF APPEAL SECOND

FOR PUBLICATION OF THE STATE OF CALIFORNIA

APPELLATE

DIVISION

THOMAS

DISTRICT

THREE

B199147

LEE GOLDSTEIN,

Petitioner,

(Los Angeles County Super. Ct. No. BH004311)

V.

SUPERIOR COURT OF LOS ANGELES COUNTY,

,AUOs 007

Respondent;

JOSEPHA. L_,_L.

GRAND JURY OF THE COUNTY OF LOS ANGELES

Clerk DeputyClerk

et al.,

Real Parties in Interest.

ORIGINAL

PROCEEDINGS

in mandate.

Peter Espinoza,

Judge.

Petition granted. Kaye, MeLane & Bednar. ski, Ronald O. Kaye, David S. McLane, Bednarski

Marilyn E.

and Matthew N. Sirolly for Petitioner.

No _ippearanee for Respondent. Raymond G. Fortner, Jr., County Counsel and Gordon W. Trask, Principal Deputy, for Real Party in Interest Grand Jury of the County of Los Angeles. Collins, Collins, Muir & Stewart, John J. Collins, Tomas A. Guterres, Douglas

Fee and Eric C. Brown for Real Parties in Interest County of Los Angeles,

John Van de Kamp and Curt Livesay.

Thomas Lee Goldstein

seeks writ review of an order of the superior court

denying Goldstein access tothe raw evidentiary O,

1989 and 1989-1990 Los Angeles into the misuse ofjailhouse

County Grand Juries during their investigation

informants

seeks these materials in connection

materials received by the 1988-

over the preceding

10 years.

Goldstein

with his pending federal civil rights lawsuit

(42 U.S.C. § 1983) in which he asserts he wrongfully

was convicted of murder in

1980 and spent 24 years in prison based on the perjured testimony of a jailhouse informant.

The trial court denied Goldstein's

motion, finding the statutory

provisions relied upon by Goldstein (Pen. Code, §§ 924.2, 929 & 939.1) did not authorize disclosure.

The trial court concluded that, absent express authorization,

the general rule of grand jury secrecy, stated in McClatchy Court (1988) 44 Cal.3d 1162 (McClatchy Newspapers), However, Goldstein which McClatchy

addressed.

Rather, Goldstein

grand jury materials to redress an injustice investigated willing to abide by a protective

v. Superior

prevailed.

does not seek public disclosure

Newspapers

Newspapers

of grand jury materials, seeks discovery

of

by the grand jury, and he is

order limiting the use of the grand jury materials to

his pending federal civil rights case. In these circumstances,

we conclude the

Superior Court of Los Angeles County, as part of its iiaherent authority to prevent injustice and as part of its supervisory grant Goldstein's

power over the grand jury, has discretion to

motion if he is able to demonstrate

that disclosure

"for the purposes of public justice, or for the protection

is necessary

of private rights .... "

(Ex Parte Sontag (1884) 64 Cal. 525, 526.) In making this determination, court should engage in the three-step test announced Stops Northwest

(1979) 441 U.S. 211,222,

the trial

in Douglas Oil Co. v. Petrol

[60 L.Ed.2d

156] (Douglas

Oil).

Under that test, parties seeking grand jury material in federal court must make a particularized

showing that (1) the material they seek is needed to avoid a possible

injustice in another judicial

proceeding,

(2) the need for disciosure

the need for continued secrecy, and (3) the request is structured material so needed.

is greater than

to cover only

We therefore grant the writ petition and remand the matterto the trial court with directions to reconsiderGoldstein's motion in light of the views expressedin this opinion. If.the trial .courtdeterminesGoldstein has demonstrateda need to • discover the grand jury materials that outweighs the need for continuedsecrecy, it should also indicate the terms of the protective order, if any, under which the material is disclosed to Goldstein. In the event the trial court concludesjustice does not requ_e discovery in this c_e, it nonethelessmust assessthe need for continuing secrecyof the grandjury materials. As indicated in Socialist Workers Party v. Grubisic (1'980) 619 F.2d 641 (Socialist Workers Party), the trial court must perform this task in,order to allow the federal court to make an informed assessment,

and one that comports with considerations

of comity, in determining

in

Goldstein's

federal civil rights case whether the grand jury materials are subject to

disclosure under federal law. BACKGROUND 1. Goldstein 's 1980 conviction of murder. On November

16, 1979, Goldstein was arrested for murder based on a

homicide that occurred apartment.

13 days earlier a few blocks from Goldstein's

At the timel Goldstein was a 30-year-old

wag. studying engineering convictions • suggested.the

veteran of the Marines who

at Long Beach City College.

or history of violence.

No one acquainted

Goldstein had no prior with the murder victim ever

victim had ever had any contact with Goldstein.

eviden, ce linked Goldstein • based on a shooting.incident

to the homicide:

Goldstein

No forensic

became a suspect in the case

that occurred a week after the homicide.

• An e3rev¢itness to that incident saw the gunman enter Goldstein's build.ing. Long Beach police detectives thereafter includingGoldstein's; homicide.

Although

.the photographs

Long Beach

apartment

showed numerous photographs,

to Loran Campbell, one of the five eyewitnesses Campbell

did not recognize

any of the individuals

and Goldstein did not match Campbell's

3

depicted in

initial description

murder suspect, one of the detectives focused on Goldstein's if Goldstein could have been the individual Campbell

to the

photograph

of the

and asked

saw running from the scene.

Campbell replied it was possiblebut he was not certain. One of the detectives thereafter wrote in a police report that Campbell hadselectedGoldstein's photograph and said: "That looks like the man. I'm not sure and I'm not positive but that looks like him." Campbell thereafter identified Goldstein at Goldstein's murder trial. However, asnoted below, Campbell later retractedhi_ identification, of Goldstein, explaining he had been influenced by the detectivesand his desire to assisttheir investigation. Two daysafter Goldstein's arrest,Edward Floyd Fink, a heroin addict with several prior felony convictions, was placed in the samecell as Goldstein in the Long Beach City Jail. At,Goldstein's murder trial, Fink testified Goldstein told him he was in jalI becausehe shot a man in a dispute over money. Fink also testified he received no benefit as a result of his testimony. Goldstein was convicted as •charged.. 2. The grandjury Commencing misuse ofjailhouse concluded

proceedings.

in ! 988, the Los Angeles

informants in criminal trials.

misuse ofjailhouse

10-year period.

informants

impeachment

In 1990, it issued a report that

County District Attorney's

and informed declination

to curtail the misuse ofjailhouse

deficiencies

pertaining

to informants,

office,

to t.ake the action

informant testimony."

included failing to create a centralized information

the

had been pervasive over the preceding

With respect to the Los Angeles

the grand jury found "deliberate necessary

County Grand Jury investigated

These

.....

index to disseminate such as the benefit they

received for their testimony and their history of cooperation with law enforcement. On August

30, 1990, the Superior Court of Los Angeles County issued an

order stating the "material aecumulated

and used by the 1988-89 GrandJury

1989-90 Grand Jury in their investigations secure by thecourt.

of the jitilhouse informants

['[[] The .material is not to be viewed, inspected

except by order of the Presiding Judge, Assistant Supervising

Judge of the Criminal Division."

and the

is to be kept or copied

Presiding Judge, or the

3. Federal habeas corpus proceedings

result in Goldstein's

release from

prison. At an evidentiary

hearing conducted by Magistrate Robert N. Block in

August of 2002 in connection with a federal petition for writ of habeas corpus filed by Goldstein, the eyewitness identification

of Goldstein.

at Goldstein's Campbell

the police and he identified Goldstein

tria!, Loran Campbejl,

explained he had been overanxious

Goldstein also presented

to help

based on what flae police told him and his

desire to be a good citizen, not based on his observations homicide.

recanted his

on the night of the

evidence of benefits Fink received during _e

time he cooperated with law enforcement. At the conclusion testimony

of the hearing, Magistrate Block found Campbell's

credible and further found Fink was representative

informant addressed in the grand jury's report.

of the jailhouse

Magistrate Block stated:

"It is

readily apparent to this Court that Fink fits the profile of the dishonest jailhouse informant that the Grand Jury Report found to be highly active in Los Angeles County at the time of [Goldstein's]

conviction."

As a result of Magistrate Blocks'

findings, Goldstein was released from custody in April of 2003, after serving 24 years in prison. ,

4. Goldstein files a civil rights action in federal district court. On November California,

29, 2004, Goldstein

filed a civil suit in the Central District of

stating causes of action under the federal civil rights statute, 42 U.S.C.

§ 1983, based on his assertedly wrongful

conviction and incarceration.

In his

federal civil rights case, Goldstein is suing the City of Long Beach, four individual Long Beach police detectives, the County of Los Angeles, John Van de Kamp.and Curt Livesay.

Goldstein's

federal lawsuit asserts, inter alia, the defendants

Go.ldstein's

conviction based on their pattern and practice of misusing

ofjailhouse

informants

in criminal cases.

obtained

the testimony

5. Goldstein's

attempts to access the grand jury material.

Goldstein initially soflght access to the grand jury material by letter dated February

1, 2006, to the Presiding Judge of the Superior Court of Los Angeles

County and.the supervising judge of the criminal division. Court of Los Angeles County _ereinafter

counsel indicated willingness

of the material to Goldstein's

the Superior

referred to as "court counsel"}, initially

indicated the superior court would not disclose the material. Goldstein's

Counselfor

However, when

to abide by a protective

order limiting use

federal civil rights case, court counsel indicated a

subpoena .would be needed in order to release the grand jury material. On July 5, 2006, Goldstein sent court counsel further information case including the declaration

ofVema

about the

Wefald, an attorney who had accessed the

grand jury materials in cormection with two federal habeas corpus proceedings. Wefald asserted that Douglas Dalton, special counsel appointed to assist the grand jury in its investigation

into the misuseofjailhouse

informants, told her the grand

jury materials were indexed and organized for the express purpose of facilitating review of the material by future litigants. 1

1

Goldstein asserts Wefald's

statements regarding the organization

and

indexing of the grand jury materials are not hearsay in that she personally has accessed the material. Nonetheless, Goldstein has separately filed an application admit the declaration declaration.

of Douglas Dalton to avoid the hearsay problem in Wefald's

In the declaration,

that the underlying

Dalton states: "It was the intent of the Grand Jury

materials upon which the Report was based be made available to

anyone affected by jailhouse remedies.

informant abuses as.may be necessary to pursue their

This was a reason for the records to be preserved.

the Report, the GrandJury:specifically Grand Jury during their investigation

At the conclusion

of

states that 'the materials developed by the will be preserved

G.J. Rpt. at 153. The materials were preserved.., future litigation and/or court proceedings. Attorney's

to

under secure conditions.'

so that they could be accessed in

The Grand Jury asked the District

Office to cooperate in providing access to the materials developed by the

Grand Jury in its investigation.

Id. at 152-3."

On July 7, 2006, Goldstein serveda subpoenaissued in his federal civil rights caseon the SuperiorCourt of Los Angeles

County requesting production

of

the grand jury materials. On July 27, 2006, court counsel objected to the subpoena and requested Goldstein

volhntarily

with_aw

it and seek access to the material "[p]ursuant

to the

[the 1990 .order of the Superior Court, by filing a motion] before the Presiding Judge, the Assisting

Presiding Judge, or the Supervising

Judge of the Criminal

Division. of the Superior Court." Goldstein complied with the request on September

19, 2006.

motion relied on various Penal Code sections and specifically

Goldstein's

asked Ne trial court

to set forth in its ruling whether and to what extent there was a continuing need for secrecy of the material in order to,permit Goldstein

to litigate the issue in federal

court. Counsel for the County of Los Angeles (hereinafter counsel"),

appearing

on behalf of the grand jury, filed a response to Goldstein's

motion that essentially

conceded Gold.stein might eventually

the grand jury materials by enforcing a subpoena federal civil rights case, citing Socialist Socialist subpoena

Workers Party, supra, 619 F.2d 641.

Workers Party directs that a federal district court enforce a federal

seeking disclosure of state grand jury materials only after first allowing secrecy of the materials.

The federal court thereafter considers this .information should be ordered under the three-part

. We deferred ruling on Goldstein's matter for decision. determine, Goldstein's

be granted access to

duces tecum issued in Goldstein's

the state court to determine the need for continuing

disclosure

referred to as "county

in determining

Douglas

application

whether

Oil test. Under that test,

pending submission

of the

As discussed more fully below, this case requires us to

as a matter of law, whether the trial court had authority to grant request for disclosure.

Consequently, this declaration, remand.

we deny Goldstein's

Dalton's

declaration

is not rele_rant to that issue.

request.

Obviously,

Goldstein is free to submit

and any other evidence at his disposal, to the trial court upon

as noted above, parties seeking grand jury transcripts must make a particularized showing .that (1) the material they seek is needed to avoid a possible injustice in another judicial proceeding,

(2) the need for disclosure is greater than the need for

continued secrecy, and (3) the request is structured to cover only material so needed.

(Douglas Oil, supra, 441 U.S. atp. 222.) County counsel indicated that, if the superior court found a continuing

to maintain secrecy of the requested

documents,

need

it should specify which documents

should remain sealed and why. County counsel requested the trial court appoint a special master to review the pleadings

in Goldstein's

federal case and the grand jury.

materials at issue and thereafter advise the trial court. In reply, Goldstein the need for continued secrecy and opposed county counsel's special master be appointed as causing unnecessary

disputed

suggestion

that a

delay.

On March 13, 2007, the trial court conducted a hearing on the motion. At the hearing, Wefald, the attorney who previously materials,

indicated it had been a relatively

because the "records were organized"

had accessed the grand jury

simple matter to review the material

for the benefit of future litigants.

Wefald

stated there was an index of witnesses,

an index of exhibits and three binders

containing

of every witness.

summaries

of the testimony

On March 22, 2007, the trial court issued a written denial of Goldstein's motion.

The trial court found the Penal Code sections cited by Goldstein

apply to the situation presented and, in the absence of a statute expressly O

disclosure, proceedings

Goldstein could not overcome the general rule that grand jury are secret.

(MeClatchy Newspapers,

supra, 44 Cal.3d 1162.)

did not permitting

Goldsteinthen filed the instant petition for writ of mandate.2 Goldstein's petition assertshe again has serveda subpoenaissuedin the federal civil rights case on the SuperiorCourt of Los Angeles County requestingthe grandjury materials. DISCUSSION In tlqAscase,we must first determinewhether the trial court was correct in its ruling that none of the statutory provisions cited by Goldstein authorized disclosure of the grandjury materials. Finding the trial court correctly concluded they did not, .wenext considerwhether the trial court, independentof any statutoryprovision, had authority to permit accessto the requestedgrandjury materials for use in Goldstein's civil rights caseto prevent injustice. Finally, we consider the trial court's obligation to perform the statecourt function contemplated in Socialist Workers Party. 1. The statutory provisions Goldstein

cited by.Goldstein

are not applicable.

claims the trial court had discretion to disclose the grand jury

materials he requested pursuant to Penal Code sections 924.2, 929 and 939.1. 3 None of the cited sections assists Goldstein. a.. Section 924.2. Section 924.2 provides:

"Each grand juror shall keep secret whatever he

himself or any other grand juror has said, or in what manner he or any other grand •. juror has voted on a matter before them.

Any court may require a grand juror to

disclose the testimony of a witness examined by a grand jury, for the purpose of asoertaining whether it is consistent or to disclose the testimony

with that given by the witness before the cqurt,

given before the grand jury by any person, upon a

2 Goldstein also filed an appeal from the denial of the motion to discover the grand jury materials. (B 198860 filed May 11, 2007.) We address the merits of Goldstein's writ petition because it appears the issue presented is one of importance that should be resolved promptly: (See Phelan v. Superior Court (1950) 35 Cal.2d 363,370.) 3 Subsequent unspecified statutory references are to the Penal Code.

charge against suchperson for perjury in giving his testimony or upon trial therefor." Go'ldsteinargues section924.2, originally enacted assection 926 in 1872, makesclear the legislative intent to codify the power of the superior court to disclose grandjury materials for use in an ongoing judicial proceedingwhen necessaryto achievejustice. Goldstein notesthe language of the sectionis archaic. He assertsthere is no need for a live witness to be before the court at the time of the requestfor disclosure. Rather, the sectionrequires only an active, ongoing litigation. Goldstein assertsthe trial court should have read section 924.2 expansively to accomplish the result intended. Section924.2 was enactedto protect grandjurors by limiting the circumstancesunder which they could be called aswitnesses. (People v. Northey (1888) 77 Cal. 618, 633.) Further, Goldstein

does notclaim

the trial of his federal case will give testimony that is inconsistent

a witness at

with testimony

given before the grand jury and there is no pending perjury investigation. section 924.2 has no application

Thus,

here.

b. Sections 929 and 939.1. Section 929 provides:

"As to any matter not subject to priv_ege, with the

approval of the presiding judge of the superior court or the judge appointed by the presiding judge to supervise the grand jury, a grand jury may make available to the public part or all of the evidentiary upon by, or presented investigation

material, findings,

relied

to, a grand jury for its final report in any civil grand jury

provided that the name of any person, or facts that lead to the

identity of any person who provided information released ....

and other information

to the grand jury, shall not be

"

Section 939.1 allows public grand jury sessions when,an investigation the public interest.

10

affects

Goldstein arguessections929 and 939.1, readtogether,provide authority to releasethe grand jury materials at issuehere. However, section929, by its express terms, merely permits a sitting grandjury to incorporateportions of the raw evidentiary material it received into its report. Section 929was not enacteduntil I

1998, eight years after the grand jury report on the misuse ofjailhouse Moreover,

section 929 requires the grand jury to obtain approval from the superior

court before it includes raw evidentiary applicable

inform_nts.

material in its report.

Section 939.1 is not

because the grand jury held no public sessions.

In sum, we agree with the trial court's assessment

of the statutory provisions

cited by Goldstein. 2. The superior court that supervised limited disclosure

a grand jury retains authority

of grand jury materials to prevent

injustice.

a. General rule against public disclosure of grandjury Both federal and California law recognize secrecy in order to perform their functions.4 "distinct interests served by safeguarding proceedings"

p. 219.) "First, ifpreindictment

proceedings

proceedings.

that grand juries must operate in

Douglas

Oil itemized several of the

the confidentiality

relative to a criminal indictment.

to make

of grand jury

(Douglas Oil, supra, 441 U.S. at were made public, many prospective

witnesses would be hesitant to come forward vol..untarily, knowing that those against whom they testify would be aware of that testimony. who appeared

Moreover,

witnesses

before the grand jury would be less likely to testify fully and frankly,

as they would be open to retribution as well as to inducements.

There

also would

4 As observed in McClatchy Newspapers, California law has authorized grand juries to perform three basic purposes: '_to weigh criminal charges and determine whether indictments should be returned (§ 917); to weigh allegations of misconduct against public officials and determine whether to present formal accusations requesting their removal from office (§ 922; see Gov. Code, § 3060 et seq.); and to act as the public's 'watchdog' by investigating and reporting upon the affairs of local government (e.g., §§ 919, 925 et seq.). Of these functions, the watchdog role is by far the one most often played by the modern grand jury in California. [Citations.]" (McClatchy Newspapers, supra, 44 Cal.3d at p.1170, fla. omitted.) 11

be therisk.that thoseaboutto be indicted would flee, or would try to influence individual grandjurors to vote against indictment. Finally, by preserving the secrecy of the proceedings,we assurethat personswho are accusedbut exonerated by the grandjury will not be held up to public ridicule." .(Ibid.) McClatchy Newspapers

observed that secrecy also is r_ecessary "when the

grand jury conducts a watchdog investigation (McClatchy

Newspapers,

of local government

investigations..,

indictment,

a particular

is obviously critical to both functions

(Ibid.) Moreover, "in considering

jury proceedings,

Though the

and report serve a different social purpose than the criminal

eticiting candid testimony

grand jury."

the effects of disclosure

the courts must also consider not only the immediate

effects upon future

(Douglas Oil, supra, 441 U.S. atp. 222.)

For all these reasons, the general rule is that there is no presumptive public access to grand jury materials under California law. (Los Angeles Superior

Court (2003) 114 Cal.App.4th

right of Times v.

247, 263.) However, this case does not

involve public disclosure of grand jury materials. disclosure

of the

of grand

grand jury, but also the possible effect upon the functioning.of

grand juries."

"

require that witnesses

testify without fear of reproach by their peers or Neir superiors. investigation

....

supra, 44 Cal.3d at p. 1175.) In that circumstance,

• "the efficacy and credibility of watchdog

watchdog

operations

of gran&jury materials pursuant

Rather, Goldstein

to a protective

seeks

order limiting use of the

materials to his pending federal civil rights case. Under these circumstances, general rule of no public right of access is simply not in issue.

12

.the

b. Disclosure

of grand jury materials to prevent

Douglas Oil noted "it has been recognized

injustice.

that in some situations justice

may demand that discrete portions of transcripts be made available for use in subsequeflt proceedings.

[Citation.]"

(Douglas Oil, supra, 441 U.S, at pp. 219-

220.) The high court observed that "recogr_mon '" " of the occasional need for Iitigants to have access to grand jury transcripts Proc., 6(e)(2)(C)(i)

that disclosure

directed by a court preliminarily

led to the provision

in Fed. Rules Crim.

of grand jury transcripts to or in conjunction

may be made 'when so

with a judicial proceeding.'

"

(td. at p. 220.) We believe a similar rule appears in California 6i{-Cgl. 5-2-,57-ad-d_sseit_-eth_ had voted on an indictment.

a grand juror couldbe

law. Ex Parte Sontag, supra, compel_d-to

re-veai _bw he

Sontag noted grand jurors ate bound by their oath

"to preserve inviolate the secrets of the grand jury room.

Public policy would seem

to forbid vain disclosures

'But,' say Thompson and

made to gratify idle curiosity.

Merriam, 'when, for the purposes rights, it becomes necessary,

of public justice, or for the protection

of private

in a court of justice, to disclose the proceedings

grand jury, the better authorities

now hold that this may be done ....

of the

(Thorn. &

Mer. on Juries, § 703.)5 (Id. at p. 526.) Consequently,

we conclude that, under both federal and state law, when, in

the words of Ex Parte Sontag, supra, '64 Cal. at p. 526, "it becomes necessary, in a court of justice, to disclose the proceedings statutory provision expressly superior court that supervised

authorizing

of the grand jury," the absence of a such disclosure

does not foreclose the

the grand jury from permitting

prevent injustice.

13

limited disclosure to

O In determining whetherjustice requires disclosure in any given situation, the trial court should apply the well settledthree-part test announcedin Douglas Oil. D

In that case, the United States Supreme Court synthesized decisions related to discovery of grand jury materials

two of its earlier

(Dennis v. United States

(1966) 384 U.S. 855, 8701[16 L.Ed.2d 9ff3]; United States v. Procter & Gamble (1958) 356 U.S. 677, 682 [2 L.Ed.2d 1077]) and announced for determining

the following "standard

when the traditional secrecy of the grand jury may be broken:

Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek.is needed to avoid a possible injustice in another judicial proceeding, the need for disclosure request is struc_red

that

is greater than the-need for continued secrecy, and that their

to c-over only mate_al

so needed?'

(Douglas OfT, supra, 44"[

U.S. atp. 222.) Although the high court framed this test in reference

to Fed. Rules Crim.

Proc., rule 6(e), we note that rule 6(e) was not the source of the authority for disclosing grand jury materials when the interests of justice require it. Rather, Douglas Oil indicated the authority, to disclose grand jury materials flows from the court's inherent responsibility

to prevent injustice and rule 6(e) merely reflected

that authority. We are aware that in Daily Journal Corp. v. Superior

Court (1999)

20 CaI.4th 1117, 1I24, another case involving public disclosure of grand jury proceedings,

our Supreme Court relied upon Ex Parte Sontag, supra, 64 Cal. at

p. 527, for the proposition jury proceedings]

that,"

'In this State the whole matter [of disc!osing grand

is regulated by statute.' '.' (Daily Journal Corp. v. Superior

Court, supra, at p. 1124.) However, as noted above, the matter at issue in Sontag was whether an individual voted on an indictment. statute," specifically,

grand juror could be compelled

to disclose how he had

It was that matter that Sontag held was "regulated

by

the Penal Code section relating to the oath of a grand juror.

Quoted in full, Sontag stated:

','No case has been called to our attention in which it

has been held that a grand juror could be compelled

14

to answer how he voted with

respectto the finding of a particular indictment. [_ In this Statethe whole matter is regulatedby statute." (Ex.Parte Sontag, supra, at p. 527.) • It therefore jury proceedings

appears that, although the matter of public disclosure

is governed by statute, there remains an interests of justice

excepti@n that may require limited disclosure

of grand jury proceedings

the words ofEx Parte Sontag, it becomes necessary justice, or for the protection of.private rights ....

[recognizing

when, in

"for the purposes of public

" (Ex Parte Sontag, supra,

at p. 526; see also People v. Superior Court (Mouchaourab) 403,436-437

of grand

64 Cal.

(2000) 78 Cal.App.4th

the right of an indicted defendant to assert a due proce.ss

right to discover nontestimonial

portions of grand jury proceedings

in connection

wi_ a mot{on to _t as{de a cri_ninai indictment].) Consequently,

the matter must be remanded

-determine whether application

to permit the trial court to

of the three-part Douglas Oil test requires disclosure

of the grand jury materials Goldstein seeks to prevent injustice. •. 3. Procedure

to be followed

by.the trial court in the event it concludes

Goldstein is not entitled to the grand jury materials under the interests of justice test. If, after applying the Douglas Oil balancing court concludes

test to the instant facts, the trial

Goldstein is not entitled to any portion of the grand jury materials

he seeks, there remains the matter of the trial court's "Workers

obligation under Socialist

Party to advise the federal district court with jurisdiction

pending civil rights case of the need for continuing undisclosed

issue where both the court

the grand jury and the court presiding

federal courts.

over the current matter were

Douglas Oil concluded the better practice was to have the court that

supervised the grand jury make a written evaluation jury secrecy.

secrecy with _espect to the.

state grand jury materials.

Douglas Oil considered this procedural supervising

over Goldstein's.

Thereafter,

the cou_ presiding

of the need for continued

over the current judicial

would evaluate the request for disclosure in light of the supervising

15

grand

proceeding court's

assessmentof_e needfoi continuedsecrecy. (Douglas Oil, supra, 441 U.S. at. pp. 230-231.) • Socialist Workers.Party.adapted

this procedure

to the situation presented

where plaintiffs in a federal civil rights action sought transcripts jury,

Socialist

of a state grand

Workers Party noted the state court's rule of secrecy with respect to

the grand jury materials had to accede to the federal claims of the plaintiffs, would be determined under federal common law. Socialist concluded that "when state grand jury proceedings [pursuant to application

of Douglas

lYorkers Party

are subject to disclosure

Oil], comity dictates that the federal courts

defer action on any disclosure requests until the party seeking disclosure the state sfiige_isory

court has considered

continuing need for secrecy." Socialist

(Socialist

Workers Party explained,

forestall unnecessary

shows that

his request and has ruled on the Workers Party,.supra,

"This preliminary

619 F.2d at p..644.)

stage is designed merely to

intrusion by the federal courts in state grand jury proceedings

or, at least, to ensure that the important considered."

which

state interest in secrecy is thoroughly

(Ibid.)

As can be seen from the forgoing,

if the trial court determines

upon remand

that Goldstein is not entitled to the grand jury materials under state law, it nonetheless

has an obligation to assess the need for continuing secrecy and prepare

a written evaluation of that need as an aid to the federal court's consideration issue.

This obligation is especially

access to the materials.

significant

of the

where the trial court has denied

Such a ruling suggests the trial court found a strong need to

prevent lifting.the veil of secrecy.

In that circumstance,

the trial court has a duty to

ensure, to the extent it is able, that the federal court is advised of the specifics of the need for secrecy.

Consequently;

to the extent the trial court denies Goldstein's

request on remand, it shall state in writing the need for continuing the federal court may consider this factor in determining entitled to access these materials under federal law.

16

secrecy so that

whether Goldstein

is

DISPOSITION The order to show causeis discharged. The writ petition is granted. The matter is remanded to the trial court with directions .to reconsider motion for access to the raw evidentiary materials presented 1989-1990 grand juries in their investigations

to the 1988-1989 and

of the misuse ofj ailhouse informants

in light of the views expressed in this opinion. denies Goldstein's

Goldstein"s

In the event the trial court again

motion, it shall indicate in writing the reasons that necessitate

continuing secrecy of the materials as to which discovery

is denied in order to

permit the federal court to apply the Douglas Oil test in Goldstein's rights case. The order grant'mg Goldstein's

federal civil

writ petition is final immediately

thins court.-(-Cal. RUles of-C0u_, ruleS/2-64-(b)-(3_0 Golds_ffm shall recOverhis in this appellate proceeding. CERTIFIED

FOR PUBLICATION

KLEIN, P. J.

We

concur:

CROSKEY,

J.

ALDRICH,

J.

17

as to eOsts

PROOF OF SERVICE (CCP _ 1013(a) and 2015.5") State of CaliforoJa,

) ) SS.

County of Los Angeles

)

lamemployedintheCountyof [] LosAngdes [] I am over the age of 18 and not a party to the within action; my business address is: []

1100 El Centre Street, Pest Office Box 250, South Pasadena,

[]

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

Orange, StataofCalifomia.

California 91030.

On this date, I served the foregoing document described as PETITION FOR REVIEW on the interested parties in this action by placing same in a sealed envalope, addressed as follows: SEE ATTACHED

SERVICE LIST

[]

IBY MAIL1 - I caused such envalope(s) with postage thereon fully prepaid to be placed in the United States marl in South Pasadena, California. I am"readily familiar" with the firm's practice ofcoUectinn andprocessing 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 sewed, service is -presumed-in_ralid.-if.postaLcancellation-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 fully 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

[]

(BY ELECTRONIC FILING AND SERVICE) - I served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List.

[]

FEDERAL

EXPRESS

documents

with delivery

[] []

- I caused the envelope fees provided

PROVIDING FOR OVERNIGHT DELIVERY

to be delivered to an authorized

courier or driver authorized

to receive

for.

(BY FACSIMILE) - I caused the above-desoribed 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 (949) 7184801 (Newport Beach) indicated all pages were transmitted. (BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s). Executed on September 4, 2007 at: South Pasadena, California.

[]

(STATE) - I declare under penalty ofpeijury under the laws of the State of California that the above is true and correct.

[]

{FEDERAL) made.

- I declare that I am employed

in the office era member

Lilly Y. Fukui __

of the bar of this court at whose

direction

the service was

Thomas Lee Goldstein v. City of Long Beach, et al. Case No.: CV04-9692 AB3VI(Ex) Our File No. 16293 SERVICE LIST I

"'Davicl'S_"l_'cL_e"....................................................................................... : Theresa M. Traber, Esq. K.AYE, McLANE & BEDNARSKI LLP 128 North Fair Oaks Avenue Pasadena, CA 91103 (626) 844-7660; fax: (626) 844-7670 ATTORNEYS FOR PETITIONER

.........

I ....................................................

Traber & Voorhees 128 N. Fair Oaks Aveue, Suite 204 Pasadena, CA 91103 (626) 585-9611; fax (626) 577-7079 CO-COUNSEL FOR PETITIONER

..T,.H.o...._...,S.. L..-....G. OL.p..S.TE_ ........................................................................... ..T._q_.S...L......qO...L..p..S. TE.tN... ................................................... Clerk of the Court 2_or deliveryto: Hon. Peter Espinoza, Div. 123 L.A. Superior Court Criminal_Justice.Center 210 West Temple Street Los Angeles, CA 90012-3210

D. Brett Bianco, Esq. Court Counsel Los Angeles Superior Court 11 ! N. I_'ll Street_ Room 546 Los Angeles, CA 90012-3014 (213) 974-5137; fax (213) 625-3964 ATTORNEYS FOR LOS ANGELES COUNTY SUPERIOR COURT Gordon W. Trasl_ Esq. Principal Deputy County Counsel 648 Kenneth Hahn Hall of Administration 500 West Temple Street Los Angeles, CA 90012-2713 ATTORNEY FOR LOS ANGELES COUNTY and THE LOS ANGELES COUNTY GRAND JURY

Clerk of the Court California Court of Appeal Second Appellate District, Div. Three 300 So. Spring Street, FI.2, N. Tower Los Angeles, CA 90013-1212 (213) 830-7000

19