O'Leary v. Superior Court, Third Judicial District

816 P.2d 163, 1991 Alas. LEXIS 86
CourtAlaska Supreme Court
DecidedAugust 9, 1991
DocketS-4105, S-4131 to S-4134 and S-4159
StatusPublished
Cited by5 cases

This text of 816 P.2d 163 (O'Leary v. Superior Court, Third Judicial District) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Leary v. Superior Court, Third Judicial District, 816 P.2d 163, 1991 Alas. LEXIS 86 (Ala. 1991).

Opinions

OPINION

MATTHEWS, Chief Justice.

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.

I. BACKGROUND

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 identifiable individuals.

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 [166]*166published. 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

A.

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 provides:

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 demon[167]*167strate that the framers of the Alaska Constitution shared this understanding.5

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 Constitution.

Seetion 6 of article I of the New York Constitution provides;

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Related

Keller v. French
205 P.3d 299 (Alaska Supreme Court, 2009)
In Re Grand Jury Subpoena
41 F. Supp. 2d 1026 (D. Alaska, 1999)
O'Leary v. Superior Court, Third Judicial District
816 P.2d 163 (Alaska Supreme Court, 1991)

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Bluebook (online)
816 P.2d 163, 1991 Alas. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oleary-v-superior-court-third-judicial-district-alaska-1991.