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O'Leary et al v. Superior Court, Thrird Judicial District (8/9/91), 816 P 2d 163
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
KEVIN O'LEARY, ANCHORAGE DAILY )
NEWS, ANCHORAGE TIMES, STATE OF ) Supreme Court No. S-4105
ALASKA, STEPHEN E. BRANCHFLOWER, )
and DWAYNE W. McCONNELL, ) Trial Court No.
) 3AN-90-5881 Civil
v. ) O P I N I O N
SUPERIOR COURT, THIRD JUDICIAL )
DISTRICT, and the HONORABLE BRIAN ) [No. 3736 - August 9,
C. SHORTELL, as Presiding Judge, )
) Supreme Court Nos.
In the Matter of the Grand Jury ) S-
for the Third Judicial District )
at Anchorage for the Term of ) Trial Court No.
Proceedings in January, 1990. ) 3AN-90-832 Civil
IN RE SPECIAL GRAND JURY )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Brian C. Shortell,
Appearances: Clark Reed Nichols, James
N. Leik, Perkins Coie, Anchorage, for
Appellant O'Leary. D. John McKay, Middleton,
Timme & McKay, Anchorage, for Appellant
Anchorage Daily News. Theodore E. Fleischer,
Cynthia L. Ducey, Guess & Rudd, Anchorage,
for Appellant Anchorage Times. Randy M.
Olsen, Assistant Attorney General, Fairbanks,
Douglas B. Baily, Attorney General, Juneau,
for Appellants McConnell and Branchflower.
David Mannheimer, Assistant Attorney General,
Anchorage, Douglas B. Baily, Attorney
General, Juneau, for Appellant State of
Alaska. James P. Doogan, Assistant Attorney
General, Fairbanks, Douglas B. Baily,
Attorney General, Juneau, for the Grand Jury.
James H. McComas, Schleuss & McComas,
Anchorage; Howard S. Trickey, Jermain,
Dunnagan & Owens, P.C., Anchorage; John B.
Patterson, Kelly & Patterson, Anchorage;
William F. Dewey, Anchorage; William P.
Bryson, Anchorage, for Interested Parties.
Before: Matthews, Chief Justice,
Rabinowitz, Burke, Compton, and Moore,
MATTHEWS, Chief Justice.
COMPTON, Justice, with whom BURKE,
Justice, joins, dissenting.
RABINOWITZ, Justice, dissenting in part.
These appeals concern an investigative grand jury
report which was subject to judicial review under Criminal Rule
6.1. The issue raised in O'Leary v. Superior Court, No. S-4105,
is whether Criminal Rule 6.1 violates article I, section 8 of the
Alaska Constitution. We answer that it does not.
The issue presented in In re Special Grand Jury, Nos. S-
4131-34, 4159, is whether the superior court erred in ordering
the entire report released. After oral argument in this case we
ordered that only the "Findings, Recommendations and Conclusions"
section of the report be immediately released. The names of the
interested parties were deleted from that section. We have thus,
implicitly, ruled that the superior court erred in ordering the
entire report released. In this opinion we explain the reasons
for our ruling. In addition, we order that much of the remainder
of the report be released.
At the request of Alaska's Attorney General, the grand
jury for the third judicial district began an investigation into
the conduct of the Anchorage School District, the Anchorage
Police Department and the Anchorage District Attorney's Office,
relating to the investigation of a Bartlett High School teacher's
sexual relationships with students.
On March 5, 1990, the grand jury issued Part I of its
report which identifies deficiencies in certain statutes and
policies regarding the reporting and investigation of sexual
misconduct with school children. It contains recommendations for
statutory and policy changes. The grand jury also explained that
it had prepared a second part of its report which addressed the
actions of the school district, the police department and the
district attorney's office and of individuals employed by those
organizations. Part II of the report was submitted to the
superior court on March 15, 1990.
On March 19, 1990, the court issued an order finding
that Part II meets the requirements of Criminal Rule 6.1(a)(1)
and (2).1 The court also found the requirement of 6.1(b) that
"the publication of the report will not improperly infringe upon
the constitutional right of any person"was satisfied. However,
it held that the procedures specified in 6.1(c) and (d) (judicial
review if report adversely reflects on identifiable person) would
be required since the report might reflect adversely on named or
In compliance with 6.1(c) and (d) the court identified
individuals whose activities were discussed in Part II, and
provided them with copies of the report. Under 6.1(c)(2) any
person named or identifiable has an opportunity to request a
hearing, and many of them did so. They are referred to
collectively in this opinion as "interested parties."
In the course of the 6.1 proceedings the court
reconvened the grand jury in order to give it an opportunity to
consider the written responses and testimony from certain
interested parties.2 In response to this evidence the grand jury
revised Part II of its original report and requested that it be
published. On August 7, 1990, the court issued a final order
concluding that Part II of the report satisfied all requirements
for release and ordered that it be published on August 21, 1990.
The court also ordered, however, that publication would be stayed
automatically if any interested party filed a notice of appeal
before that time.3 The interested parties have appealed.
While the superior court was still conducting judicial
review of Part II under Rule 6.1, appellant Kevin O'Leary, Chief
of the Anchorage Police Department, filed an application for
original relief in this court, claiming that Criminal Rule 6.1
was unconstitutional. The application was remanded to the
superior court for decision. Two newspapers, the Anchorage Daily
News and the Anchorage Times, intervened at the superior court
level and made similar claims. The superior court structured the
proceedings to maintain the confidentiality of Part II of the
report. The grand jury and two prosecutors, Stephen Branchflower
and Dwayne McConnell, also joined O'Leary in arguing that
Criminal Rule 6.1 is unconstitutional. The interested parties
opposed O'Leary's application.
On August 1, 1990, the court issued an order ruling
that "the applications of all parties to hold Criminal Rule 6.1
unconstitutional are denied." From this order O'Leary has
appealed. The newspapers, the prosecutors and the grand jury
join in this appeal.
II. CRIMINAL RULE 6.1 IS CONSTITUTIONAL
Criminal Rule 6.1 provides a procedure for judicial
review of grand jury reports before they are published. Under
the rule, reports that may damage the reputation of a person are
subject to review to determine whether (1) they concern the
public safety and welfare, (2) they improperly infringe upon a
constitutional right of any person, and (3) the factual findings
they contain are supported by substantial evidence. In addition,
interested parties may be afforded an opportunity to present
evidence to the grand jury and to append an explanation to the
report when it is published. The question presented is whether
these procedures violate the anti-suspension clause of article I,
section 8 of the Alaska Constitution. Article I, section 8
No person shall be held to answer for a
capital, or otherwise infamous crime, unless
on a presentment or indictment of a grand
jury, except in cases arising in the armed
forces in time of war or public danger.
Indictment may be waived by the accused. In
that case the prosecution shall be by
information. The grand jury shall consist of
at least twelve citizens, a majority of whom
concurring may return an indictment. The
power of grand juries to investigate and make
recommendations concerning the public welfare
or safety shall never be suspended.
The appellants' arguments that Criminal Rule 6.1
violates the anti-suspension clause are generally conclusory in
nature. O'Leary states that the anti-suspension clause "leaves
no room for interpretation that results in any restraint or
censorship on the grand jury investigatory and reporting
functions"; that the grand jury is not a part of the judicial
branch of government; and that it has "an unfettered power to
investigate and make recommendations." None of these conclusions
are supported by case authority.
O'Leary's contention that the grand jury is not a part
of the judicial branch of government seems plainly wrong. Grand
juries have traditionally been viewed as an arm of the court
system.4 The proceedings of our Constitutional Convention
demonstrate that the framers of the Alaska Constitution shared
O'Leary's argument that the grand jury is not subject
to "any restraint"and has "unfettered power"is also unsupported
by authority. The argument, if correct, would mean that the
grand jury could operate lawlessly, ignoring evidentiary
privileges as well as the constitutional rights of those
appearing before it. Such a position is supported by no case law
of which we are aware. It is refuted by case law from the state
of New York construing an analogous provision of the New York
Section 6 of article I of the New York Constitution
The power of grand juries to inquire
into the wilful misconduct in office of
public officers, and to find indictments or
to direct the filing of informations in
connection with such inquiries, shall never
be suspended or impaired by law.6 (Emphasis
The New York courts have held nonetheless that the grand jury's
power to investigate is subject to various legal controls:
[T]hose powers although extensive, are
not unlimited. For example, [the grand jury]
may not violate a valid privilege, whether
derived from the Constitution, statutes or
the common law. Additionally, its powers to
compel testimony and the production of
evidence must "be exercised in accordance
with the procedural and evidentiary rules
laid down in the Criminal Procedural Law and
Stern v. Morgenthau, 465 N.E.2d 349, 351 (N.Y. 1984) (emphasis
added) (citation omitted); see also Beach v. Shanley, 465 N.E.2d
304 (N.Y. 1984) (grand jury may not subpoena TV reporter to
obtain testimony as to reporter's source because of statutory
In Beach, the New York Court of Appeals expressed and
rejected an argument as broad as O'Leary's concerning New York's
analogous constitutional provision:
[U]nder respondent's argument, all
statutory restrictions on a grand jury's
ability to investigate public officers would
be invalid. Thus, the spousal, attorney-
client, physician-patient, clergy,
psychologist, and social worker privileges
would all be ineffective. Similarly, a grand
jury investigating corruption would be able
to give complete immunity to private citizens
who have engaged in bribery or extortion,
regardless of a prosecutor's desire to obtain
waivers. Finally, to the extent that the
normal rules of evidence are applicable to
grand juries, a question might be raised as
to their force when they operate to "impair"
an investigation of a public officer.
Beach, 465 N.E.2d at 311 (footnote and citations omitted). The
court noted that the New York Constitutional Convention was
prompted to adopt its anti-suspension clause because "at a
special session of the [Pennsylvania] Legislature a statute was
adopted suspending the grand jury investigation into a public
official, and depriving the grand jury of the power to act in the
matter." Beach, 465 N.E.2d at 310.7 The New York court held
that the objective of the anti-suspension clause was to prevent
legislation which deprived the grand jury of authority to act.
Implied in the majority's opinion in Beach and
expressed in the concurring opinion of Judge Wachtler is the
conclusion that had the reporter's privilege been found to have
been of constitutional magnitude under the state constitution the
privilege would have even more clearly been entitled to
recognition notwithstanding the anti-suspension clause.
New York's anti-suspension language also does not
prevent a court from editing an indictment if the goal is the
protection of a constitutional right. In People v. Cirillo, 419
N.Y.S.2d 820 (Sup. Ct. 1979), the defendant was charged in an
indictment with three counts of perjury. He moved to amend the
indictment seeking to strike the phrases "a narcotics violator"
and "the narcotics violator"replacing each with his name. He
asserted that the phrases were highly prejudicial and
inflammatory and that their use in the indictment which was to be
read to the petit jury "was in effect a flag that the said
defendant was a criminal before even one scintilla of evidence
was presented to the jury." While recognizing that it had no
statutory authority to amend an indictment on a defendant's
motion, the court, nonetheless, ruled that it inherently has this
The courts have exercised their power to
set aside and quash indictments even in the
absence of legislative grant when it appears
to be founded upon a lack of evidence or
involving illegal and incompetent testimony.
This power is based upon the inherent right
and duty of the courts to protect the citizen
in those circumstances involving a
substantial invasion of his constitutional
. . . .
Every court has inherent power to do all
things reasonably necessary for the
administration of justice within the scope of
Id. at 823-24 (citations omitted). Although the court did not
specifically discuss the New York Constitution's non-suspension
language, it did state,
[T]here is no law, constitutional or
otherwise, proscribing the power of the court
on its own motion to permit the defendant's
application, nor any interdiction against the
striking of a portion of the indictment.
Id. at 825.
Criminal Rule 6.1 is intended to guard against
violations of the Alaska Constitution by a grand jury. Review to
determine whether a report concerns the public safety or welfare8
recognizes that grand jury reports are limited by article I
section 8 to "recommendations concerning the public welfare or
safety." The review under subsection (b)(2) to determine whether
publication would improperly infringe on the constitutional right
of any person is explicitly constitutionally based.
Reputation interests are entitled to a measure of
protection under the due process clauses of the fourteenth
amendment and of the Alaska Constitution.9 In Wisconsin v.
Constantineau, 400 U.S. 433, 436-37 (1971), the Supreme Court
[S]ome state and federal administrative
procedures are summary by reason of necessity
or history. Yet certainly where the State
attaches "a badge of infamy"to the citizen,
due process comes into play. . . .
Where a person's good name,
reputation, honor, or integrity is at stake
because of what the government is doing to
him, notice and an opportunity to be heard
Similar statements have been made in the grand jury
context: "The courts have recognized [that injury to one's good
name and reputation and impairment of one's ability to obtain
employment] are substantial and legally cognizable interests
entitled to constitutional protection against official
governmental action that debases them." United States v. Briggs,
514 F.2d 794, 797 (5th Cir. 1975). In Briggs the issue was
whether individuals named by the grand jury as co-conspirators
who were not indicted suffered any injury protected by the due
process clause of the fourteenth amendment. The government had
argued that "one's interests are not adversely affected to any
extent by being publicly branded as a felon so long as he is not
named as a defendant,"and "if appellants have suffered injury it
is at the hands of only the news media to whom they should repair
for relief." Id. at 799. The court rejected these arguments and
held that the grand jury's actions violated the fourteenth
amendment. See also United States v. Chadwick, 556 F.2d 450, 450
(9th Cir. 1977) (per curiam) ("charging appellant with the
offense without making him a defendant was beyond the authority
of the grand jury and a denial of due process"); Application of
United Electrical, Radio & Machine Workers, 111 F. Supp. 858, 867
(S.D.N.Y. 1953) ("[A] man should not be subject to a quasi-
official accusation of misconduct which he cannot answer in an
authoritative forum. The Grand Jury . . . when it issues such
reports, is imposing the punishment of public reprimand
. . . .").
We have held that review of the evidentiary basis for
government action is an essential part of due process.
The review of factual determinations
becomes a review to find whether the
administrative decision has passed beyond the
lowest limit of the permitted zone of
reasonableness to become capricious,
arbitrary or confiscatory.
K & L Distribs. v. Murkowski, 486 P.2d 351, 358 (Alaska 1971). Although we
suggested in K & L Distribs. that this was a lower standard of review than the
substantial evidence standard, the difference, if any, seems more theoretical than
real. Substantial evidence is evidence that, in light of the whole record, a
reasonable mind would accept as adequate to support the conclusion at issue. Burgess
Construction Co. v. Smallwood, 698 P.2d 1206, 1210 (Alaska 1985). Thus, evidence
which passes the K & L Distribs. test, that which is above the "lowest limit of the
permitted zone of reasonableness,"would seem to also pass the substantial evidence
Moreover, the language of the sentence containing the
anti-suspension clause implies that there must be an evidentiary
basis for the grand jury's recommendations.
The section links the grand jury's
investigating and reporting powers. It does
not empower the grand jury to make
recommendations in the abstract or based upon
speculation. The grand jury must base its
recommendation upon the results of its
investigation. If the investigation does not
disclose evidence sufficient to support the
conclusions and recommendations, the court
should not publish the report.
Note, The Reportorial Power of the Alaska Grand Jury, 3 Alaska L.
Rev. 295, 325-26 (1986).
Thus the requirement of Criminal Rule 6.1 that recom
mendations be based on substantial evidence elicited in the
course of the grand jury's investigation is based both on due
process considerations and on the connection between the
investigation and the recommendation made in article I, section 8
of our constitution.
In our view, the anti-suspension clause does not
prohibit reasonable procedural rules governing the issuance of
grand jury reports.10 In 1955 and 1956 when the framers of the
Alaska Constitution met, the power of grand juries to issue
reports independent of indictments was a subject which was
vigorously debated nationally.11 The majority view was that such
reports were not permissible.12 The framers of the Alaska
Constitution desired to unambiguously place Alaska among those
states which recognized the grand jury's power to recommend
without indicting and to prevent this power from being abrogated.
This is the manifest purpose of the anti-suspension clause.13
There is, however, nothing in the convention debates which
suggests that the delegates intended the grand jury to operate in
a legal vacuum when exercising its power to investigate and
Grand juries are an arm of the court system. As such,
their operations are governed by the rules of administration,
practice and procedure which the supreme court is
constitutionally empowered to promulgate under article IV,
section 15 of the Alaska Constitution.14 See Criminal Rule 6
(governing convening and discharge of grand juries and
proceedings before grand juries). In 1988 we promulgated
Criminal Rule 6.1 following recommendations by the judicial
council and the standing committee on criminal rules. In making
its recommendation, the council published a comprehensive and
scholarly report, The Investigative Grand Jury in Alaska (1987),
which reviewed the history of the grand jury and its
investigative and reporting powers. The council study was
requested by the Alaska State Senate in 1985.15 The council
concluded that procedures like those contained in Criminal Rule
6.1 were needed to achieve a proper balance between the values
inherent in the grand jury's investigative and recommending
function on the one hand and the constitutional rights of
individuals on the other. The council concluded:
While safeguards are needed, the grand
jury, as a citizens' body, serves a valuable
function in its investigative role. A proper
balance between the grand jury's reporting
power and other constitutionally-protected
rights of individuals can be achieved through
the development of procedures that provide:
(a) due process protections for individuals
named or referred to in reports; (b) judicial
review; and (c) guidelines for the
publication and dissemination of reports.16
The council also stated:
Basic fairness and constitutional
due process require that persons identified
in grand jury reports be provided with
certain protections not currently specified
by Alaska law. . . .
If the report reflects adversely on
a person who is named in the report or whose
identity can be determined in the report:
[the council recommends] (1) that the report
be supported by substantial evidence, (2)
that it be related to the public welfare or
safety, and (3) that it not infringe upon any
protected rights or liberties of that person.
. . . .
No guidelines, statutes or case law
presently exist in Alaska to provide
standards for judicial review of grand jury
reports. Other than the constitutional
requirement that the report address some
aspect of "the public welfare or safety",
judges have no additional guidance in
reviewing the subject matter of reports or
the circumstances under which a report should
In promulgating Criminal Rule 6.1, we agreed with the
council's conclusion that rules governing the exercise of the
grand jury's investigative and reporting function were necessary
in order to ensure fundamental fairness to those whose
reputations might unjustifiably be injured by a grand jury report
and to ensure that such reports are issued in compliance with
constitutional requirements. In reaching this conclusion, we are
by no means alone. All the commentators of whom we are aware who
speak to the subject express the view that procedural limitations
are desirable, or essential, to protect personal reputational
interests.18 Moreover, the United States Congress,19 many of the
state legislatures and state courts,20 federal courts, and the
American Bar Association21 have expressed concern that individuals
will be harmed if grand juries exercise unfettered reporting
The framers of our constitution were acutely concerned
with the need to protect the rights of citizens. This need was
the chief reason cited by the primary sponsor of the grand jury
reporting power to support the need for the power.22 In the
context of legislative and executive investigations, the
delegates were sufficiently concerned about the possibility of
damage to the reputation of individuals that special language was
attached to the due process clause of the Alaska Constitution
which guarantees to all persons "fair and just treatment in the
course of legislative and executive investigations."23
The delegates hoped to avoid the excesses which they
felt were characterized by the conduct of Senator Joseph
McCarthy: "[H]e indulged in vilification, character
assassination, and an intimation of guilt by association."24 The
delegates hoped that this clause would prompt the legislature to
make rules of procedure to safeguard the reputational interest of
individuals.25 The judiciary was excepted from this clause, but
not because the delegates wanted the courts to have the power to
treat individuals unfairly. Instead, the delegates believed that
the concept of due process itself directly constrained the
judiciary while it less clearly applied to legislative and
It is not reasonably possible to believe that our
constitutional framers who were so protective of personal
reputational interests that they desired the legislature to make
rules affording due process to those involved in legislative
investigations also intended grand jury investigations to be free
from due process constraints. In fact, as noted, the delegates
believed that the due process clause already provided the same
protection in the context of the judiciary, although grand juries
were not specifically mentioned in this discussion.
Indictments issued by grand juries have traditionally
been subject to various forms of judicial review. The anti-
suspension language of our constitution was imported without
discussion from the Missouri Constitution, which in turn is based
on the New York Constitution.27 In those states the clause is,
however, solely applicable to investigations resulting in
indictments. Wood v. Hughes, 173 N.E.2d 21 (N.Y. 1961); Matter
of Interim Report of the Grand Jury, 553 S.W.2d 479 (Mo. 1977).
We are aware of no cases construing the anti-suspension clauses
of the constitutions of either Missouri or New York which suggest
that judicial review of an indictment amounts to a suspension of
the grand jury's power.28 Since the framers of the Alaska
Constitution used language which did not bar judicial review in
the context from which it was taken, it reasonably can be
concluded that there was no intention to bar judicial review in
the new context in which the phrase was used.
The courts of the state of Alaska have the
constitutional duty to review actions by agencies of the state in
order to ensure compliance with all provisions of the Alaska
Constitution. Malone v. Meekins, 650 P.2d 351, 356 (Alaska
1982); K & L Distribs. v. Murkowski, 486 P.2d 351, 357-58 (Alaska
1971). This function applies not only to coordinate branches of
government such as the legislature, Malone, supra, and the
executive branch, K & L Distribs., supra, but to component parts
of the judiciary such as lower courts, and the grand jury.29 It
would be a radical deviation from this consistent line of
authority to conclude that the anti-suspension clause means that
this power does not exist with respect to grand jury reports.
This would mean that only the grand jury can judge whether it has
complied with the limitations imposed on its action by the
constitution and whether it has violated the constitutionally
protected rights of others. We see nothing in the language of
the anti-suspension clause, in the debates of the Constitutional
Convention, or in the relevant legal history which lends even
slight credence to this view.
Appellants also alleged that Criminal Rule 6.1 violates
the first amendment of the United States Constitution and article
1, section V of the Alaska Constitution, is an improper exercise
of the court's rulemaking power, is contrary to the state's
public records acts, AS 09.25.100-.125, and serves to unconstitu
tionally expand the superior court's jurisdiction. Upon consider
ation we find that all of these allegations lack merit. See
Hammond v. Brown, 323 F. Supp. 326, 350 (N.D. Ohio 1971), aff'd
450 F.2d 480, 482 (6th Cir. 1971) (per curiam); McClatchy
Newspapers v. Superior Court, 751 P.2d 1329, 1341-42 (Cal. 1988)
(en banc); People v. Superior Court of Santa Barbara County, 531
P.2d 761, 768 (Cal. 1975).
III. RELEASE OF PORTIONS OF PART II OF THE GRAND JURY REPORT
As previously indicated, at the conclusion of oral
argument this court ordered that all of Part II of the Grand Jury
Report entitled "Findings and Recommendations and Conclusions"
(hereafter Recommendations) be immediately released, deleting
only the names of interested parties. We noted that the question
whether more of the Grand Jury Report would be released remained
under advisement and that an opinion would follow. We now
explain our reasons for ordering the immediate release of the
First, because article I, section 8 explicitly grants
authority to grand juries "to make recommendations concerning the
public welfare or safety"it is our view that the Recommendations
are constitutionally authorized. The background text consisting
of some 70 pages detailing the dispute between the Anchorage
School District, the Anchorage Police Department and the
Anchorage District Attorney's office does not stand on the same
constitutional footing. We believe that such background material
is implicitly covered by article I, section 8 only to the extent
that it is necessary to make the grand jury's Recommendations
understandable. We find that the Recommendations are understand
able without the background text, given Part I of the Grand Jury
Report which has been previously published, and public
information which has been widely disseminated concerning the
underlying dispute. Thus there is no constitutional compulsion
to release the background text.
Second, we ordered release of the Recommendations on
the same day we heard oral argument. This was some two weeks
before a municipal election in which the office of mayor and
certain municipal assembly and school board seats were being
contested. Because the grand jury Recommendations were generally
critical of school district actions, while finding that the
police and the district attorney's office had acted
appropriately, we believed that the Recommendations should be
immediately released as they might have a bearing on the
election. The Recommendations mentioned the names of certain
interested parties who had argued that the report would adversely
reflect on them. We ordered their names deleted as they were not
essential to understanding the Recommendations.30 We did not
order the interested parties' names deleted because we
necessarily agreed with their contentions that the report
adversely reflected on them or was unsupported by substantial
We are now persuaded that the names of most of the
interested parties mentioned in the Recommendations should be
released. In the main, the Recommendations do not adversely
reflect upon them in any serious or substantial way. Further,
except as noted below, the grand jury's characterization of the
interested parties' conduct meets the substantial evidence
standard under Criminal Rule 6.1(c)(5).
Despite ordering the release of most of the names
mentioned in the grand jury's Recommendations, we note that grand
jury procedures are not well designed to provide balanced fact
finding. Although the grand jury consists of unbiased citizens,
the only attorney to appear before the grand jury is the
prosecutor.31 The prosecutor generally decides what evidence will
be presented to the grand jury and those under investigation have
no notice or opportunity to be heard, no ability to call
witnesses on their own behalf, no right to cross-examine
witnesses, and no right to present their arguments. While under
Criminal Rule 6.1 the trial judge may order the grand jury to
consider evidence on behalf of an interested party, this order is
made only after the grand jury has already at least tentatively
committed itself to a report adversely reflecting on the party.
Thus, it should be widely understood that grand jury reports may
be extremely one-sided. They should not be given the same degree
of credence as a trial court judgment.
In one respect the Recommendations reflect adversely on
individuals in a manner unsupported by substantial evidence.
Since the Recommendations have already been released, the only
meaningful remedy at this point is to continue to withhold the
names of the interested parties whose reputations would otherwise
unjustly be damaged.
In four paragraphs beginning with subparagraph (b) on
page 75 of the Recommendations, the grand jury states that school
officials violated an "ethical if not a legal obligation . . ."
concluding that school officials report of their investigation to
the state "could be interpreted as an attempt to gain statutory
immunity . . . `just in case' a report was legally required."
Use of the term statutory immunity here is an obvious misnomer.
Statutory immunity is immunity from prosecution for a particular
crime which is granted to a person so that he may be compelled to
testify against another in a prosecution for the same or a
related crime.32 An effort to obtain statutory immunity may imply
that the person making the effort committed a crime. There is
absolutely no evidence that any school officials involved in this
case ever mentioned, or sought, statutory immunity. Thus, this
aspect of the Recommendations does not satisfy the substantial
We turn now to the question whether any portion of the
background text preceding the Recommendations should be released.
Although release of this text is not constitutionally required,
it is part of the Grand Jury Report and should be released under
Criminal Rule 6.1 unless the provisions of that rule require that
some or all of it remain confidential.
Most of the first 70 pages of Part II of the report
relate the history of the investigation of the Bartlett High
School teacher's sexual relationships with high school students.
We have reviewed this material and believe that it does not
adversely reflect on the interested parties -- as distinct from
the Bartlett High School teacher -- in any serious or substantial
way. Moreover, the grand jury's description of the interested
parties' conduct suggests that the substantial evidence standard
of Criminal Rule 6.1(c)(5) would be satisfied in any case.
However, there is an exception to this conclusion. The
grand jury details information which had previously remained
confidential concerning an investigation of allegations of sexual
misconduct on the part of two other teachers. The names of these
teachers are not mentioned but they are identifiable given other
information in the report, and they are interested parties
herein. These allegations were resolved in favor of the teachers
and none of the parties before this court now claim that the
allegations had merit. Nonetheless, the allegations are
contained in the grand jury report "in order for the grand jury
to fully understand the motives and actions of individuals
involved in the [present controversy]."
While it may have been useful for the grand jury to
review the prior investigation, no similar purpose is served by
publication of its details. The grand jury's discussion of the
allegations against the teachers adds little or nothing to the
comprehensibility of the Recommendations. Publication of the
discussion would gravely harm the reputations of the teachers.
We therefore order expunged from the Grand Jury Report all
mention of this investigation for two reasons. First, the
allegations against the teachers were unsubstantiated and thus
were unsupported by substantial evidence. Second, publication of
the allegations would improperly infringe the constitutionally
protected reputational interests of the teachers. There is no
countervailing constitutional end to be served by publication of
the allegations since they are not necessary to an understanding
of the Recommendations made by the grand jury.34
For the above reasons, we order released Part II of the
Grand Jury Report of March 15, 1990, with deletions as noted
above.35 We also order that the final written responses of those
interested parties who are still mentioned in the expunged report
and who have preserved their right to file such responses be
attached as an appendix.36
COMPTON, Justice, with whom BURKE, Justice, joins,
Delegate Barr proposed to the delegates attending the
Alaska Constitutional Convention that there be included in the
constitutional provision establishing grand juries that the grand
jury's "power . . . to investigate and make recommendations
concerning conditions involving the public welfare or safety
shall never be suspended."37 The proposal was vigorously debated.
Delegate Buckalew spoke strongly against it, stating:
[M]y prime objection to this particular
amendment is that . . . the grand jury might
have under investigation the conduct of some
particular public office, for example the
governor, or any public official, the local
tax collector. They don't have enough
evidence to return an indictment but this
would give them the power to blast him good
and hard, and I think it would lead to all
kinds of trouble and I think it is an unheard
of provision. The recommendation of the
Committee [without the language contained in
the proposal] provided that the grand jury
could investigate, they could return
indictments, but it certainly did not give
them the privilege to more or less defame
somebody if they did not have quite enough
action for a [true] bill. Under this they
could discredit him completely, and he would
have no way of answering. He might be able
to come back and get the report of the grand
jury stricken from the records of the court,
but the damage would then be done. I think
it is extremely dangerous because a citizen
would not have any protection. Once it was
published the only thing he could do would be
to then come in and ask the court to strike
portions of it. For that reason I would
object to it.
4 Proceedings of the Constitutional Convention 1405.
The contrary view is reflected in the remarks of
Delegate Hellenthal, who stated:
[I]t is true there is little protection
against what they call . . . a runaway grand
jury, but in the history of the United States
there have been few runaway grand juries,
extremely few, and I think that the broad
statement of power . . . asked for [by the
proposal] is proper and healthy.
Id. at 1406.
Despite the risks catalogued by Delegate Buckalew, it
evident that most of Alaska's founders believed the grand jury's
power to investigate and recommend concerning the public welfare
and safety should remain unfettered. Moments after Delegate
Buckalew spoke against the proposal, the convention voted, by an
overwhelming margin, to adopt it.38 Thus was born what now
appears as the last sentence of article I, section 8 of the
Alaska Constitution: "The power of grand juries to investigate
and make recommendations concerning the public welfare or safety
shall never be suspended."
Webster's Third New International Dictionary's first
definition of "never"is "not ever: not at any time; at no time."
Its second is "not in any degree: not in the least: not in any
not under any condition." Its first definition of "suspend" is
"to debar or cause to withdraw temporarily from any privilege,
office, or function." Indeed, the next three definitions are
similar. Criminal Rule 6.1, adopted by this court pursuant to
its rule making authority, not only suspends the power of grand
juries to investigate and make recommendations concerning the
public welfare or safety, but also permits censorship of a grand
jury report generated as result of the exercise of that power
before the report is even published.
The court justifies suspension and censorship of a
report under the guise of protecting "any person"from improper
infringement of their constitutional rights that would result
from publication of the report, Rule 6.1(b)(2), or from being
adversely reflected on by being "named or otherwise identified"
in the report, Rule 6.1(c). It asserts that constitutional
justification for the rule is found in the fourteenth amendment
to the United States Constitution and in article I, section 7 of
the Alaska Constitution, each of which mandate that a person may
not be deprived of life, liberty, or property without due process
of law. Citing Wisconsin v. Constantineau, 400 U.S. 433, 436-37
(1971), the court reasons that when the state affects a person's
reputation interest by attaching a "badge of infamy" to that
person, the state is depriving that person of life, liberty, or
property. Therefore, notice and an opportunity to be heard, i.e.
due process of law, are essential. Suspension and censorship of
the grand jury report in accordance with Rule 6.1 protects the
person's reputation interest and hence is a constitutionally
permissible method of assuring due process of law.
If the court is concerned that a person named or
otherwise identified in a report, in a manner that will adversely
reflect on that person, be given notice and an opportunity to be
heard, a simplification of procedures contained in Rule 6.1(c)
and (d) would be adequate to satisfy that concern. However, the
pre-publication suspension and censorship procedures provided in
Rule 6.1 go far beyond satisfying that concern.
I agree with the court that the grand jury is part of
the judicial function of government, and that courts have the
power to edit grant jury indictments, and hence by implication
edit grand jury reports that do not result in indictments. I
also agree that courts are not prevented from protecting in some
manner against grand jury violations of constitutional rights.
However, I cannot agree that courts have the power of pre-
publication suspension of grand jury reports or suppression of
grand jury reports in whole or in part to protect against a grand
jury violation of constitutional rights.
Most of the cases cited by the court to support its
argument do not arise in in camera secrecy. An indicted
defendant who moves to dismiss the indictment for insufficiency
of evidence presented to the grand jury, or for procedural
irregularities or misconduct on the part of actors in the grand
jury proceedings, is nonetheless a named person who, after the
fact, files pleadings which are public documents. That
defendant's forum is a public judicial forum, even though that
defendant may suffer a consequential and significant loss of
reputation simply by being indicted, and even though the
indictment is dismissed and the defendant never again indicted.
That defendant's reputation interest may be permanently
compromised in the process.
Although "[an] indictment is not a 'report' as used in
[Criminal Rule 6.1] and Criminal Rule 6,"a grand jury report may
include allegations of criminal conduct. Criminal Rule
6.1(a)(2). It must follow from the court's reasoning that as
long as all the required procedures are followed, a person named
in a grand jury report may be alleged to have engaged in criminal
conduct, yet aside from attaching a denial to the report, that
person has no public judicial forum in which to vindicate a
compromised reputation interest. Furthermore, Criminal Rule 7(c)
provides that when an indictment is found, "the names of all
witnesses examined before the grand jury must be inserted at the
foot of the indictment, or endorsed thereon, before it is
presented to the court." An indictment is a public record.
Criminal Rules 6(l)(2) and (n)(1). Since the public does not
know why, and may never be told why a witness was called before a
grand jury which indicts a soon to be notorious defendant, that
witness's reputation interest may be severely compromised, yet
that witness has no public judicial forum in which to vindicate
the compromised reputation interest.
I fail to understand why the reputation interest of
some persons is to be protected by Criminal Rule 6.1 procedures,
while the same interest of another receives no protection. The
court provides no guidance, for it fails to articulate why the
reputation interest of some persons is of constitutional
magnitude, while the reputation interest of others is not
apparently so elevated.
I do not disagree that procedures should be developed
which provide "any person who is named or otherwise identified"
with notice and an opportunity to be heard for the purpose of
presenting his or her side of the story. Nor should persons
within that class be limited to those whose reputation interest
is compromised in the report of an investigative grand jury.
While I cannot understand why any person named or
otherwise identified in an indictment should be treated
differently from those "named or otherwise identified"in a grand
jury report, it is not this anomaly that causes me to conclude
that Criminal Rule 6.1 is inconsistent with article I, section 8
of the Alaska Constitution. The anomaly serves to highlight the
failure of the court to utilize the proper analytical framework
in determining the issue presented. Assuming that a reputation
interest is protected under the Alaska Constitution, a
proposition never before articulated by this court, the analysis
should take place in the context of two constitutional provisions
which are apparently irreconcilable. Unfortunately the focus of
the court's analysis is directed to cases concerning the power of
a court to adjudicate issues relating to grand jury proceedings
after the fact, when it should be focused on the tension between
a constitutionally created judicial body constitutionally
empowered to investigate and recommend in the name of public
welfare or safety, and the constitutional right of a person not
to be "deprived of life, liberty, or property, without due
process of law." Alaska Const., art. I, 7. To resolve this
conflict, I believe the court must first determine what is meant
by the "anti-suspension"clause of article I, section 8. It
chooses not to do so.
The requirement of Wisconsin v. Constantineau, 400 U.S.
433 (1971), is that of notice and an opportunity to be heard.
The United States Supreme Court does not suggest that the
opportunity must be in camera, that it must be afforded before
the fact, or that unless supported by substantial evidence, the
state may not attach a "badge of infamy"to a citizen without
first providing a private judicial forum to adjudicate the
citizen's objections. Yet this court, in adopting Criminal Rule
6.1, has adopted what I believe to be the most restrictive
construction of the "anti-suspension"clause imaginable.39 This
procedural rule is not the least bit deferential to the "anti-
suspension"clause. Indeed, it mocks it. If the language of the
constitutional provision is not clear enough, the rejection of
Delegate Buckalew's objections to it persuade me that the
constitutional debate has both addressed and answered the
question whether the "anti-suspension"clause is to be construed
restrictively or expansively. Only an expansive construction is
consistent with its plain language and the debate and vote. I
see no need to resort to proceedings and judicial interpretations
regarding the state constitutions of New York and Missouri for
illumination, interesting though they may be.
The apparent conflict between article I, sections 7 and
8 of the Alaska Constitution can be reconciled by providing "any
person" with notice and an opportunity to be heard during the
course of grand jury proceedings, utilizing procedures herein
suggested or elsewhere developed. The grand jury, and not the
courts, can choose matters on which it reports and recommends,
and the manner in which to do so. Its constitutional power shall
never be suspended by the overlay of cumbersome procedures which
provide for private judicial adjudications and review of whether
the report it is to publish adversely reflects on someone, or
otherwise allegedly violates his or her constitutional rights.
If an aggrieved person disagrees with the report, either because
it adversely reflects on that person, or because a constitutional
right of that person is allegedly violated, he or she can seek
relief in a public judicial forum. Alaska's constitution will
not have been compromised in the process.
In my view Criminal Rule 6.1 violates the "anti-
suspension" clause of article I, section 8 of the Alaska
Constitution. Therefore I dissent.
RABINOWITZ, Justice, dissenting in part.
I join in the court's decision that Criminal Rule 6.1
is constitutional. I further agree with the holding of Part III
expunging the section of the Report concerning the investigation
of irrelevant and unproved allegations of misconduct by "two
other teachers." While I agree that the bulk of the Report and
Recommendations should be published, I conclude that several
portions of the Report fail the Rule 6.1 test for publication and
therefore should be expunged from the report prior to its
My disagreement is based upon the three part test of
Criminal Rule 6.1.40 Because the Report concerns the public
welfare, application of the test for publication concerns the
second and third prongs of the Rule 6.1 test. These are (1)
Would publication infringe a constitutional right of any person?41
and (2) If publication would reflect adversely on an identifiable
person, is the report supported by substantial evidence?42
Application of the Rule 6.1 test leads me to conclude that the
following portions of the Grand Jury's Report and Recommendations
should be expunged prior to publication.
Speculation about attempts to conceal wrongdoing and
provocation of APD.
The Report refers to "fear and mistrust" and
"intimidation"within Anchorage School District (ASD), and what
"provoked" the Anchorage police department's (APD) enforcement
response. A common understanding of provoke is "to stir up on
purpose: bring about deliberately." Webster's Third New Int'l
Dictionary 1827 (1961). The Report further states that "The
Grand Jury can understand how their actions could have been
viewed as attempts to conceal wrongdoing." Such statements
reflect adversely on identifiable persons; yet, in my view, they
are so speculative they fail the substantial evidence test and
should not be published.
The background text: implication of perjury.
Section G of the background text is entitled "Perjury."
This section begins, "[t]he Grand Jury did not indict anyone for
perjury under AS 11.56.200(a) due to its belief that the evidence
would not justify a trial jury in finding the elements of perjury
beyond a reasonable doubt . . . ." The Report then describes
what can be assumed are the facts upon which it bases its
conclusion. Again applying a Rule 6.1 analysis, I conclude that
section G should not be published.
Section G implies that various officials committed
perjury, yet the evidence submitted to the grand jury was
insufficient to support an indictment for this crime. A grand
jury report should not be used as a vehicle to defame those whom
the grand jury lacks sufficient evidence to indict.43
Rule 6.1. Grand Jury Reports.
(a) Authority to Issue Reports.
(1) A grand jury may investigate and make reports and recom
mendations concerning the public safety or welfare. An
indictment is not a "report"as used in this rule and Criminal
(2) A grand jury report may be made only upon the
concurrence of a majority of the total number of grand jurors on
the panel at the commencement of the proceedings resulting in the
report. The report must be signed by the foreperson. A grand
jury report may include allegations of criminal conduct.
(b) Initial Judicial Review. The grand jury shall present
any proposed report to the presiding judge of the judicial
district. The judge shall examine the report and the grand jury
record before the grand jury is discharged. The judge may order
production of audio copies or transcripts of the grand jury
proceeding and may request the prosecuting attorney to submit a
summary of the evidence presented to the grand jury. The judge
shall make specific findings on the record as required by the
(1) The judge shall determine first whether the report
satisfies the requirements of subparagraph (a)(1) & (2). If it
does not, the judge shall proceed under subparagraph (b)(3).
(2) The judge shall then determine if publication of the
report would improperly infringe upon a constitutional right of
any person, including but not limited to improper interference
with a person's right to privacy or right to a fair trial in a
pending or planned criminal proceeding. The judge shall make an
ex parte on the record inquiry of the prosecuting attorney about
any planned or pending criminal prosecutions related to the
subject of the grand jury report.
(3) If the judge determines that the report does not meet
the standards of subparagraphs (a)(1), (a)(2) or (b)(2) the judge
shall return the report to the grand jury with an explanation of
the reasons for returning the report. The grand jury may conduct
further proceedings, revise the report, or seek appellate review
of the judge's decision not to release the report.
(c) Judicial Review If Report Adversely Reflects on
Identifiable Person. If the judge determines that the standards
of paragraph (b) are satisfied, the judge shall determine whether
any part of the report may reflect adversely on any person who is
named or otherwise identified in the report. "Person"includes a
natural person or an organization, but does not include a
governmental subdivision or agency. If the report may adversely
reflect on any identifiable person, the judge shall proceed under
the following subparagraphs (c)(1) - (5).
(1) The judge shall order that notice of the report be
provided to the person. The notice must advise the person of his
or her rights as provided in this paragraph.
(2) The person may move, within ten days of notice of the
report, for a hearing. The hearing will be held in camera and on
(3) The person must be given a reasonable period of time
prior to the hearing to examine the grand jury report and the
record of the grand jury proceedings. A person receiving notice
or a copy of the report and record may not disclose any matter
occurring before the grand jury except as permitted by the court.
Each person receiving these materials must be advised of this
(4) The person named or otherwise identified in the report
may be represented by counsel at the hearing and may present
argument as to whether the standards stated in subparagraph
(c)(5) are satisfied. The prosecuting attorney may be present at
this hearing and may also present argument. Neither side may
present evidence nor examine witnesses, except that the named or
otherwise identifiable person may submit a written response to
the grand jury report which the person may request that the court
issue with the report under paragraph (d).
(5) The judge shall determine at the close of the hearing
whether that part of the report which may adversely reflect upon
a named or otherwise identified person is supported by
substantial evidence or, if raised at the hearing, whether the
report satisfies the requirements of paragraph (b) of this rule
and paragraph (1) of Criminal Rule 6. If the judge finds that
these requirements are not satisfied, the judge shall return the
report to the grand jury with an explanation of why the report
has not been released. The court may request that the grand jury
consider further evidence as to the named or otherwise
identifiable person. The grand jury may conduct further
proceedings, revise the report, or seek appellate review of the
decision not to release the report.
(d) Release of Report.
(1) The court shall withhold publication of the report
until the expiration of the time for making a motion for a
hearing under paragraph (c). If such a motion is made,
publication must be withheld pending a ruling on the motion or
pending any review under paragraph (e). All proceedings under
this rule are confidential until the presiding judge orders the
(2) If the judge finds that the standards of paragraphs (b)
and (c) are met, the judge shall order the report released. The
judge may order that a response to the report by a person named
or otherwise identified, or other additional materials, be
attached to the report as an appendix. The report and any
appendices will be filed with the clerk of the court and made
available for public inspection. The court shall also direct
that copies of the report and any appendices be sent to other
persons as reasonably requested by the grand jury.
(1) A judicial determination under paragraph (d) of this
rule is a final order for purposes of appeal. Such an appeal is
governed by Appellate Rule 216 except that the appeal is to the
Supreme Court. Any named or otherwise identifiable person, the
state, or the grand jury by majority vote may seek review of the
presiding judge's decision.
(2) The grand jury will be permitted access to the record
of the in camera hearing to assist it in determining whether to
pursue appellate review. The grand jury shall maintain the
confidentiality of this record.
1 Criminal Rule 6.1 is set forth in its entirety in the
appendix to this opinion.
2 This action was authorized under Criminal Rule 6.1(c)(5):
The court may request that the grand
jury consider further evidence as to the
named or otherwise identifiable person.
3 Automatic stay pending appeal is provided for under Rule
4 See Levine v. United States, 362 U.S. 610, 617 (1960)
("The grand jury is an arm of the court and its in camera
proceedings constitute a `judicial inquiry.'"); Brown v. United
States, 359 U.S. 41, 49 (1959) ("A grand jury is clothed with
great independence in many areas, but it remains an appendage of
the court, powerless to perform its investigative function
without the court's aid . . . ."); Cobbledick v. United States,
309 U.S. 323, 327 (1940) ("The Constitution itself makes the
grand jury a part of the judicial process."); United States v.
Stevens, 510 F.2d 1101, 1106 (5th Cir. 1975) ("[A] grand jury is
essentially an agency of the court, and exercises its powers
under the authority and supervision of the court."); People v.
Superior Court of Santa Barbara County, 531 P.2d 761, 766 (Cal.
1975) (en banc) ("[T]he grand jury serves as an integral part of
the court system."). But see United States v. Chanen, 549 F.2d
1306, 1312 (9th Cir. 1977) ("The grand jury is . . . not
relegated by the Constitution to a position within any of the
three branches of the government.").
5 According to Delegate Ralph Rivers, "[T]he grand jury is
essentially a part of the judiciary process and is called by the
courts." 2 Proceedings of the Alaska Constitutional Convention
(Proceedings) 1281 (January 5, 1956). The original committee
proposal concerning the power of grand juries stated that a grand
jury could be convened by a "judge of a court having the power to
try and determine felonies." This was changed after other
amendments had been adopted and the federal model was substituted
for this language. Proceedings at 1339.
6 This clause served as the model for section 16 of article
I of the Missouri Constitution of 1945 which provides:
That a grand jury shall consist of
twelve citizens, any nine of whom concurring
may find an indictment or a true bill:
provided, that no grand jury shall be
convened except upon an order of a judge of a
court having the power to try and determine
felonies; but when so assembled such grand
jury shall have power to investigate and
return indictments for all character and
grades of crime; and that the power of grand
juries to inquire into the willful misconduct
in office of public officers, and to find
indictments in connection therewith, shall
never be suspended. (Emphasis added).
Weinstein & Shaw, Grand Jury Reports - A Safeguard of Democracy,
1962 Wash. U. L. Q. 191, 196-198, n.28. The Missouri clause, in
turn, was proposed by the Preamble & Bill of Rights Committee of
the Alaska Constitutional Convention for inclusion in the Alaska
Constitution. Proceedings at 1325. After various amendments
only the anti-suspension language was actually incorporated in
the Alaska Constitution.
In both New York and Missouri, indictments are routinely
reviewed and dismissed if the reviewing court finds that the
defendant's constitutional rights have been violated. See, e.g.,
State v. Garrett, 627 S.W. 2d 635 (Mo. 1982) (en banc)
(indictment challenged on the grounds that it did not contain all
the essential elements of the offense and that the procedures by
which the grand jury and its foreman were selected were
unconstitutional); State v. Tressler, 503 S.W.2d 13 (Mo. 1973)
(indictment reviewed on grounds that the Missouri grand jury
system deprived defendant of his constitutional right of
confrontation and his right to presence of counsel); State v.
Easter, 661 S.W.2d 644 (Mo. App. 1983) (indictment reviewed to
determine whether prosecutor abused the grand jury subpoena power
or breached duty to present exculpatory evidence); State v.
Halliburton, 531 S.W.2d 554 (Mo. App. 1975) (criminal rule
requires the court to evaluate the sufficiency of the indictment
and indictment may be dismissed for vagueness if it does not
advise defendant of the constituent facts necessary to acquaint
him with the particular charges); People v. Bacote, 541 N.Y.S.2d
305 (Sup. Ct. 1989) (indictments dismissed because the prosecutor
gave the grand jury an erroneous instruction); People v. Guzman,
520 N.Y.S.2d 117 (Sup. Ct. 1987) (indictments reviewed and
dismissed because prosecutor failed to reread appropriate
instructions at time grand jury was considering particular case);
People v. Ali, 523 N.Y.S.2d 334 (Sup. Ct. 1987) (indictments
found to be defective on grounds that grand jury was presented
with insufficient evidence to sustain charges and that district
attorney failed to instruct grand jury on possible defense);
People v. Williams, 526 N.Y.S.2d 581 (App. Div. 1988)
(indictments dismissed on ground that grand jury inadequately
7 The framers of the Missouri Constitution drew on the same
example and on that of Louisiana under Governor Huey Long where,
according to the speaker, "the grand jury and all other agencies
charged with the investigation of public officials were
abolished." Weinstein, supra, 62 Wash. U. L. Q. at 197 n.28.
8 See Criminal Rule 6.1(a)(1) and (b)(1).
9 Article I, section 7 provides:
No person shall be deprived of life,
liberty, or property, without due process of
law. The right of all persons to fair and
just treatment in the course of legislative
and executive investigations shall not be
10 At the time the clause was adopted territorial courts
routinely reviewed grand jury indictments for compliance with
law. See United States v. Larson, 125 F. Supp 360 (D. Alaska
1954) (indictment dismissed on the ground that it did not state
an offense); United States v. Bell, 108 F. Supp. 777 (D. Alaska
1952) (indictment dismissed because it did not state facts
sufficient to constitute an offense against the United States).
11 See e.g., Comment, Constitutional Law - Judicial Powers -
Legality of the Grand Jury Report, 52 Mich. L. Rev. 711 (1954).
12 Id. at 723; Application of United Electrical, Radio &
Machine Workers, 111 F. Supp. 858, 866 (S.D.N.Y. 1953).
13 See supra notes 6 and 7 and accompanying text.
14 Article IV, section 15 provides:
The supreme court shall make and
promulgate rules governing the administration
of all courts. It shall make and promulgate
rules governing practice and procedure in
civil and criminal cases in all courts.
These rules may be changed by the legislature
by two-thirds vote of the members elected to
15 Alaska Judicial Council, The Investigative Grand Jury in
Alaska app. A.1 (1987) (quoting Senate Resolve No. 4 First
Special Session, 1985). The resolve language read:
BE IT RESOLVED that the Senate
respectfully requests the Judicial Council to
study use of the power of the grand jury to
investigate and make recommendations and that
the council make recommendations to the
supreme court and the legislature to assure
effective and proper use of that power with
protective safeguards to protect abuse and
assure basic fairness; and be it
FURTHER RESOLVED that the Senate
respectfully requests the Judicial Council to
consider a possible amendment to the State
Constitution for presentation to the voters
for ratification concerning the need to
strengthen the grand jury system consistent
with due process and standards established
through publications including but not
limited to materials published by the
National Institute of Justice, United States
Department of Justice, Grand Jury Reform: A
Review of Key Issues, 1983.
The senate's attention to the issue of the power of grand
juries to investigate and make recommendations was brought in
focus by a July 1, 1985 First Judicial District Grand Jury Report
recommending that the senate begin impeachment proceedings
against Governor Sheffield. The rules committee of the senate
held impeachment hearings, but did not adopt articles of
impeachment. The episode is discussed in Note, The Reportorial
Power of the Alaska Grand Jury, 3 Alaska L. Rev. 295 (1986) and
in Stern, Revealing Misconduct by Public Officials Through Grand
Jury Reports, 136 U. Pa. L. Rev. 73, 79-82, 115-25 (1987).
16 Alaska Judicial Council, The Investigative Grand Jury in
Alaska ii (1987).
17 Id. at ii-iii.
18 Stern, Revealing Misconduct by Public Officials Through
Grand Jury Reports, 136 U. Pa. L. Rev. 73, 132 (1987); Kuh, The
Grand Jury "Presentment": Foul Blow or Fair Play? 55 Colum. L.
Rev. 1103, 1132 (1955); Note, The Reportorial Power of the Alaska
Grand Jury, 3 Alaska L. Rev. 295, 326 (1986); Comment,
Constitutional Law - Judicial Powers - Legality of the Grand Jury
Report, 52 Mich. L. Rev. 711, 725 (1954).
19 See 18 U.S.C. 3333 (1988) (providing for pre-publication
judicial review of special grand jury reports).
20 People v. Superior Court of Santa Barbara County, 531 P.2d
761 (Cal. 1975); State v. Wurdman, 187 S.W. 257 (Mo. 1916); In
the Matter of the Report of Washoe County Grand Jury, 590 P.2d
622, 625-26 (Nev. 1979); In re Presentment of Camden County Grand
Jury, 89 A.2d 416 (N.J. 1952). See generally, Stern, 136 U. Pa.
L. Rev. at 77-79 nn.7-8, 10.
The California Supreme Court wrote in People v. Superior
Court of Santa Barbara County that
the numerous cases throughout the United
States which have addressed the question
uniformly recognize that under the common law
the court which convenes a grand jury has the
authority to refuse to file a report that
violates governing legal standards.
531 P.2d at 767-68.
21 American Bar Association, Grand Jury Policy and Model Act,
4 (1982) (quoted in Stern, 136 U. Pa. L. Rev. at 77 n.7).
22 Proceedings at 1405-06 (comments of Delegate Barr).
23 Alaska Const. art. I, 7, set out supra note 9.
24 Proceedings at 1449 (statement of Delegate Taylor).
25 Proceedings at 1465, 1467 (statements of Delegates R.
Rivers and V. Rivers).
26 Proceedings at 1448-50 & 1465 (statements of Delegate R.
27 Supra note 6.
28 See cases discussed supra note 6, which illustrate the
review of grand jury indictments which takes place in Missouri
and New York.
29 See, e.g., Wamser v. State, 652 P.2d 98 (Alaska 1982)
(violation of defendant's constitutional right to be present for
all communication between court and jury is reversible error);
Dixon v. State, 605 P.2d 882 (Alaska 1980); Adams v. State, 598
P.2d 503 (Alaska 1979) (grand jury did not have enough evidence
properly before it to indict defendant and so indictment was
invalid); State v. Ison, 744 P.2d 416 (Alaska App. 1987)
(indictment improper because grand jury was not presented with
sufficient evidence to support the charge); Smaker v. State, 695
P.2d 238 (Alaska App. 1985) (trial court abused its discretion
and violated defendant's right to due process by refusing to
allow defendant to call witness); Depp v. State, 686 P.2d 712
(Alaska App. 1984) (defendant sought to have indictment dismissed
on ground that rural Alaskans were systematically excluded from
30 None of the interested parties were candidates in the
pending municipal election.
31 Here, the prosecution was represented by an assistant
district attorney from Fairbanks. All district attorneys and
their assistants are employees of the State Department of Law.
32 See AS 12.50.101 (authorizing the use of statutory
immunity in certain circumstances).
33 The names of the interested parties who are wrongly said
to have sought statutory immunity have also been deleted from the
background text where they may be identified with that
34 Justice Rabinowitz takes the position that because the
grand jury considered indicting certain individuals for perjury
but decided not to do so on the grounds of insufficient evidence,
the discussion in the report concerning perjury should be
deleted. In our view this position conflicts with Criminal Rule
6.1 which provides that "a grand jury report may include
allegations of criminal conduct"without also requiring that the
allegations be accompanied by an indictment. Criminal Rule
6.1(a)(2). Similarly, Criminal Rule 6(n)(2) contemplates that a
report may issue under Criminal Rule 6.1 even where a defendant
has not been held to answer in an indictment. While we agree
that a grand jury report should not be used as a vehicle to
defame those whom the grand jury lacks sufficient evidence to
indict, the public informational values of the grand jury's
investigative and recommending function must also be considered.
The balance which has been struck between individual rights and
public informational values is reflected by the substantial
evidence standard and the due process protections contained in
the rule, not by a flat prohibition on the discussion of
potential criminal conduct when the grand jury chooses not to
35 We have reviewed the other claims of the interested
parties and find them to be without merit.
36 In view of the deletions we have made, the interested
parties should be given a reasonable time within which to make
deletions from their final written responses as appropriate.
37 As originally proposed, this provision gave grand juries
the power "to investigate and make recommendations concerning
conditions detrimental to the public welfare or safety." 4
Proceedings of the Constitutional Convention 1406 (emphasis
added). During the debate being discussed here, the words
"detrimental to"were changed to "involving." Id. This change
was suggested by Delegate Hellenthal, who believed that it should
be made clear in the constitution that "the investigatory power
of a grand jury is extremely broad,"and that "a grand jury can
investigate anything." Id. As finally passed, "conditions
involving" was itself deleted, leaving only "to investigate and
make recommendations concerning the public welfare or safety" as
the only constitutional limitation on a grand jury investigation.
38 After a roll call vote, the result was "44 yeas, 8 nays,
and 3 absent." 4 Proceedings of the Constitutional Convention
39 In the Memorandum of Intervenor Anchorage Daily News,
some alternative procedures for harmonizing the conflicting
interests are suggested, including retaining most of the present
rule, but making proceedings under sections 6.1(c) and (d) open
to the public. Another alternative not there suggested, but
deserving of consideration, would be to give a person named or
otherwise identified notice and an opportunity to be heard,
including the right to be represented by counsel, in the course
of the investigatory grand jury proceeding. While this
alternative might slow down the grand jury investigation, it
would obviate the need for the cumbersome proceedings presently
required. The grand jury itself would determine whether to
include, modify or exclude its reference to a person named or
otherwise identified. Other less restrictive alternatives come
to mind, including requiring the availability of a judge to rule
on some issues as they arise, not after a complete report has
been prepared, submitted and reviewed.
40The majority implies that under a balancing test,
background text receives less weight than recommendations. I
agree with this formulation. However, I have not attempted to
balance any competing interests; rather, I cite those instances
where, in my view, the text of the Report fails the test for
publication under Criminal Rule 6.1.
41Criminal Rule 6.1(b)(2).
42Criminal Rule 6.1(c).
43Although Criminal Rule 6.1 authorizes courts to prohibit
publication of grand jury reports which are tainted by
prosecutorial abuse of the grand jury process, this record does
not require that the allegations of abuse be addressed.