Movants to Quash Multicounty Grand Jury Subpoena v. Dixon, 184 P.3d 546

Movants to Quash Multicounty Grand Jury Subpoena v. Dixon

184 P.3d 546

Okla.

2008

Check Treatment

*1 54G

2008 OK 36 QUASH

MOVANTS TO MULTICOUNTY SUBPOENA,

GRAND JURY

Petitioners, Bryan DIXON,

The Honorable

Respondent. 104,072.

No.

Supreme Court of Oklahoma. *2 Ravitz, A.

Robert Public Defender Okla- Miller, County, Digilio homa Andrea Assis- County, tant Public Defender of Oklahoma City, Oklahoma OK. Edmondson, General,

W.A. Drew Rinehart, Sandra D. Senior Assistant Attor- General, McCormick, ney Joel-lyn Assis- General, City, tant Oklahoma OK. COLBERT, J.

T1 On granted General's multicounty grand jury. form a subsequently subpoenas received from the super- and asked the quash They vising judge subpoenas. argued subpoenas of an were investigation activity into oc- curring county, a fact admitted judge General. The denied jurisdictions petition cоmplementary filed a current and request Petitioners' with the Court of Court and the Court of Crimi- prohibition a writ They requested a also Appeals. Appeals. nal proceed- stay ings the resolution of the issue. The pending I. THE JURISDICTION OF SUPREME *3 Appeals stay issued the of Criminal Court AND COURT COURT OF CRIMINAL the matter to this Court for its and referred APPEALS jurisdiction proper- of whether determination T5 There is a fine line between the Supreme ly lay Court or the Court with jurisdiction Supreme that of the Court and of Appeals. of Criminal Appeals, particularly of the Court Criminal 2007, 16, January this issued 12 On Court when the of is at jurisdiction assuming original an order issue. Jurisdictional conflicts between the dissolving stay. acknowledged that We mercifully two courts have been few. "This completed had scarcity of conflict is a testament both the work, matter fell but held within jurisdictional clarity of boundaries between exception to the doctrine of mootness as an willingness the two Courts and the constant yet evading capable recurring of of issue law of the members of each Court observe and (U.S.A.), Tyree, Inc. v. review. Chandler comply jurisdictional with their restrictions." 16, ¶ 12, 598, 2004 87 P.3d 601. then OK We Appeals, v. Carder Court Criminal of declared that a has 1830, 1, 416, OK T 595P.2d 418.

jurisdiction occurring erimes 353(A) Appeals 16 The Court of Criminal based on section of 22, by Legislature in jurisdiction appellate title as amended has exclusive over erim- jurisdiction inal cases unless that 2008. is altered 7, 4; § statute. Okla. Const. art. State v. 13 The General filed a motion Blevins, 4, ¶ 2, 270, 1992 OK CR 825 P.2d publish asking this Court to either the order Appeals 271. The of Court Criminal also has opinion. sought or issue a formal jurisdiction limited to issue writs in aid of its grounds ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍rehearing on the the order appellate jurisdiction. Henry State ex rel. v. larger resolve the issue of whether failed to Mahler, 3, ¶ 12, 82, 85; 786 P.2d multicounty describing statutes Pitman, v. Hurst 1950 OK CR 90 Okla. grand jury's jurisdiction violate the Okla- (syl. Crim. 213 P.2d no. homa Constitution. Petitioners also asserted Court). However, general superin it has no jurisdiction lay properly with the Court tending power over the lower courts. Card Appeals, Supreme of Criminal not the Cоurt. ¶ er, 1978OK 595 P.2d at 419. parties We directed the to file briefs and now opinion rehearing. issue this on Supreme appel 17 The Court has jurisdiction T4 This Court endeavors to resolve a num- late all arising over cases in law First, opinion. ber of issues with this we equity, or in single exception with the clarify, 4; possible, § seek to to the extent criminal cases. Okla. Const. art. see Corr., distinction Dep't. between those matters which also Smith v. Okla. 95, ¶ 6, Supreme 37 P.3d 873. The Supreme supervisory Court exercises full jurisdiction general superintending and those which the Court of Court also has con Appeals appellate juris- courts, agencies, exercises trol over all lower commis Second, sions, diction over criminal cases. we seek and boards created state law. § Supreme Okla. Const. art. 4. The Court clarify jurisdiction Third, grand jury. tangentially, general seek superintending we also exercises this clarify Legislature's power any jurisdiction to enact control to resolve conflict in provisions Supreme statutes to further the of the Con- between the Court and the Court of hope achieving Appeals; stitution. In the those Criminal those decisions are made aims, Id; begin analysis case-by-case we with an of the con- on a basis and are final.1 "case-by-case" approach necessarily evolving This understanding appro- re- sults in an ters, Quash Jury Subpoenas including empameling and au- Movants to 2, 839 655, 656; Powers, P.2d thority jury, 1992OK ¶ fall within the Mahler, 3, ¶ 11, at appellate OK exclusive Okla- homa Court. Okla. Const. art. juris Appeals has no The Court of Criminal VII, § 4. Because such dual review decisions of the diction to matters, important over it is Owens, Dancy v. Court. conflicting that the two courts do not take (syl. by4 126 Okla. 258 P. no. positions. Court). Tele., Inc. v. Griffin T8 The has directed Su- 12, 847 (emphasis P.2d preme grant to determine whether to juris 1 10 haveWe deferred to the limited General's to con- diction of the Court of Criminal *4 multicounty grand jury. a vene Okla. Stat. when the determination of the extent of a 851(A)(8) 22, § (Supp.2007). tit. When it multicounty grand jury's authority raised is application, this issue grants an Court must procedure uniquely sues of criminal within jury's setting pur- an order forth the Smith, expertise. that Court's 2001 OK an pose. Id. Once it issues order to convene ¶¶ 6-7, 37 at In P.3d 873. Woolverton v. multicounty grand jury, Supreme Multi-County Jury, petitioners Grand jurisdiction general Court retains over the Court, original Supreme filed an action in the of the order. seeking prohibition a regarding writ of a question raised here-whether a multi- multicounty grand jury's subpoena for fin county grand jury jurisdiction to has the gerprints, palmprints, samples. and blоod illegal activity occurring only investigate 859 P.2d 1112. Because it county-calls general analysis one for a of analysis called for an of the constitutional statutory constitutional and norms as multi-county grand jury's proce limits of a multicounty jury's juris- apply to the discovery dural to conduct in the analysis clearly an within diction. Such is bodily form a part of search as of a criminal purview. this Court's investigation, we concluded that the action T9 This Court has exercised this facet of jurisdiction was within the оf the Court of jurisdiction past to determine the Appeals and it Criminal transferred to that multicounty grand jury's jurisdic- a extent of Court. Supreme tion. Court consid- Woolverton, present 1 11 Unlike situa- multicounty grand jury's authority ered the analysis requires generalized tion a of consti- investigate illegal activity during cam- statutory triggers tutional and norms and paigns public that office. We held "the supervisory this Court's constitutional role. seope of aof multicoun- 7, § Okla. art. 4. This Court is Const. ty grand jury by an of convened order this chаrged by determining statute with Court is within the of this Court multicounty grand jury's seope of the author- public and is a matter of concern." ity. (Supp.2007). § broad Okla. Stat. tit. 142, T2, 839 P.2d at 656. The request original Petitioners' return this Appeals acknowledged of this Court Criminal action to the Court of Criminal is

approach when the referred denied. subsequent arising

a matter from the same IL, OF THE JURISDICTION grand jury to that Court: MULTICOUNTY GRAND grand jury Oklahoma is unusual in that JURY concerning criminal fall matters cases appellate jurisdiction juries within the of this are a Grand matter Court, whereas, grand jury mat- law in Oklahoma. all other priate line of dеmarcation between the Mahler, tional issue. See State ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ex rel. Henry jurisdiction and that the Court Court's 82; Evans, Waldon v. Appeals. confusing The results can be acknowledge CR P.2d 311. We against when a more recent decision is viewed a confusion, but conclude hard-and-fast rule older, backdrop factually similar cases justice. the ends of would not serve reaching opposite jurisdic- conclusion on grand jury § A can

Const., 18.2 be within art. single county a investigate or to First, of three methods. a one convened Petitioners, multiple According counties.3 a judge must convene district General is not authorized to allegations of criminal acts within investigate convene a to investi judge presented if the with gate occurring single activities within a coun petition signed by appropriate number contend, therefore, ty. They multi- qualified county. from that See- electors county grand jury convened ond, judge unilaterally can convene pursuant to this Court's allegations subpoe order lacked the criminal acts within a These na investigation Petitioners as of an into two have existed since state first methods alleged to have occurred within hood. submitted county.4 approved an and the voters amendment claim, fully T 14 To evaluate this we must creating the article section 18 third meth interpreting review the statutes and case law od. This method allows the Gener the constitutional creation of the al to file an to convene a grand jury. which enacted the "crimеs Multicounty Jury Act in 1987. Okla. to have been committed in said (2001 §§ Stat. tit. Supp.2007). 350-868 & involving multicounty criminal activities." *5 Attorney Section 351 directs the General to argue €13 Petitioners that article see- application multicounty file the to convene a permits Attorney tion con- General to Court, (The grand jury Supreme with the grand jury vene a for one of two distinct recipient application specified is not in (1) investigate purposes: to "erimes which Constitution.) enacted, originally As see- alleged are to have been cоmmitted in said 351(A)(1) Attorney tion directed the General (2) county;" investigate or to "crimes which to file an when he "considers it to alleged involving multicounty are ... crimi- public be in the grand interest to convene a words, nal In activities." other Petitioners jury jurisdiction extending beyond with interpret language in the constitutional single county." Upon grant- boundaries of a disjunctive, authorizing Attorney General jury ing application, grand only Supreme to convene a with one of two Court was 351(B)(1) possible objectives: by either to directed section to issue an or- (Bill (Grand Rights), grand jury investigating Article of section 18 duct in crimes Jury) pro- alleged of the Oklahoma Constitution now which are to have been committed in vides: county involving multicounty said or criminal activities; grand jury when so assembled such grand jury composed A shall be twelve power inquire shall have into and return (9) (12) persons, any concurring nine of whom grades indictments for all character and may grand find an or true bill. A indictment provisions crime. All other of the Constitution jury upоn be convened shall the order of a or the laws of this state in conflict with the motion; judge upon his own or such provisions of this constitutional amendment grand jury by judge shall be ordered a district hereby expressly repealed. upon filing petition signed by of a therefor legislature prevent shall enact laws to qualified county equal electors of the to the making, filing, circulating, in and corruption signatures required propose leg- number of submitting petitions calling convening for a by county by pеtition islation a initiative as grand jury. provided in Section 5 of Article V of the Okla- (Emphasis emphasized language Constitution, homa with the minimum number paragraph was added in 1971. The final was (500) required signatures being five hundred added in 1995. (5000); being and the maximum five thousand providing any year and further that in calendar short, interpret the word "or"" as grand jury pur- in which a has been convened "either/or," while the General inter- therefor, petition any suant to a then subse- prets it as "and/or." quent petition during filed the same calendar year require shall double the minimum num- signatures required jury 4. The a ber of as were order authorized with "the hereunder petition; inquire grand jury for the first or such shall into and return upon filing grades be ordered convened a indictments for all character of verified (77) application by any seventy-seven General the State crimes in and all counties Oklahoma who shall have to con- of the State of Oklahoma." multicounty grand juries in jury multicounty grand to authorize "convene a der to occurring in vestigate criminal activities approved all counties having jurisdiction over ¶¶ 16-19, requested Supreme Court county. 58 P.3d at 921- single the State 22. Evidence obtained as of an investi General." in the multicounty grand enacted, gation that exceeded the addition, originally section therefore, jury's authority, properly sup was jurisdiction of the multi- provided that jury throughout pressed. extend county grand "shall designated all counties through

the state or Legislature responded quickly 117 The in the Court's order." State Multicounty Bеsdicek and amended Jury give multicounty grand Act to Beedicek, the Court of 115 In State juries multicounty declared that a county in or whether arise one more to investi lacked county. provides than one Section 351 now alleged to have occurred gate crimes granting that the Court's order county. 2002 OK CR 53 P.3d 917. one application shall "[clon- General's interlocutory appeal from a Besdicek was multicounty grand jury having juris- vene a arising a multi- prosecution from any single multiple ... diction jury invеstigation. It consid county grand pro- counties of this state." Section 358 now pursuant evidence obtained ered whether multicounty jurisdiction of a "[t]he vides that jury's subpoena was throughout ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍... shall extend properly suppressed because the state, to, including but limited than criminal activities did not involve more maintain, however, county." Petitioners that, The Court concluded be have no effect because the these amendments 851(A)(2)(a) permitted the At cause section multicounty jury's jurisdiction limit- torney request and cannot be ed the Constitution "organized public erime or *6 changed expanded or statute. both, corruption, involving or more than one state," county grant it the of the did not We, therefore, again 118 turn to multicounty grand jury jurisdiction to inves Constitution. One of the earli Oklahoma ¶ 4, tigate single county. within a Id. 58 P.3d opinions by this states the est issued Court at 918. principle basic of constitutional clarity years with a still resonates {16 Appeals then of Criminal Court later: provided examined whether the Cоnstitution construing provision a of a Constitu- jurisdiction. arti missing It focused on tion, primary inquiry is to ascertain the language permitting the cle section 18's framers, people and of the intention of the Attorney to convene a to General same, con- adopted who such alleged investigate "crimes which are to have determination, technical struction county involving committed in said or been and, rule, disregarded, a rules should be as activities," multicounty criminal and conelud- a liberаl a mean between a strict and implied that the ed that the use of "or" construction followed. investigate jury could be convened either Hooker, State ex rel. Caldwell multicoun criminal activities or (syl. P. no. ¶ 14, ty criminal but not both. Id. activities Court). who The intent of those "Nothing at in Section 18 53 P.3d 920-21. adopted provi a constitutional framed and grand jury, empaneled specif gives a for the if possible; found in the text if sion must be investigating 'multicounty crim purpose ic may ambiguous, courts not the text is activities," investigate inal meaning. beyond search it for additional See single county." activities isolated to State, 621 P.2d Draper v. omitted). (emphasis The Court also exam 1142,1145-46. title used when the constitu ined ballot {19 authorizes presented to the vot Article section 18 tional amendment was Attorney history grand jury by the Gener legislative well convened ers 1971 as alleged are "investigat[e] al to crimes which conclude that the did not intend Attorney thorizes the General "to conduct county committed in said or to have been involving multicounty grand jury eriminal activities." It investigating crimes language seems to this that the is clear which to have been committed import is that it its reasonable county involving multicounty in said or grand jury by the authorizes a convened criminal activities." crimes proposed change does not affect the county in one or more whether occur statutory power grand jury of a to investi- contrary than A conclusion-re gate and indict for crimes "committed or quiring the General to determine triable" within the where it is con- filing for a before proposed vened. The amendment extends any possible activity whether criminal was jury investigation "reach" aof uncanny single county-presumes limited to a to include also "criminal activities" that foresight on the of the Genera may occur in counties other tham the l.5 county where convened. Legislative history provides any clari added.) (Emphasis explanation That re- was ty missing language. from the constitutional by authority lеased. of House Concurrent Admittedly, question placed text (1971) Resolution No. 1002 which directed debate, on the did not add much to the ballot Legislative the State Council inform the merely phrase since it substituted the "one press proposed of the nature of county" county," for "said while the title of amendments before the election. "Single term the amendment used the Bezdicek, Multi-County." §21 apparent It ¶¶ 16-19, at 921-22. On October intended for the expand amendment 25, 1971, however, the Executive Committeе existing grand jury jurisdiction to allow a (which Legislative in the State Council extending Speaker cluded House and the beyond single county. Indeed, Legisla- Senate) pro President tem of the issued arguably ture intended to allow a press (incorporating release materials dated county grand jury investigate multicounty 1971) following explana with the October long activities so as it was convened proposed tion of the amendment: supports General. This present conclusion that procedures addition to for con- *7 vening grand jury, has the proposed the amend- crimes II, 18, county many ment to Article Section whether occur in orders the or (in convening any county of a counties. An artificial line between state) by judge upon county juries the applica- grand and not, by juries tion the General. It au- apparently, also was within the con- Obviously, provide composition the Court of Criminal State of Oklahoma to for opposite reached the cek, conclusion in State v. juries; providing grand juries Bezdi be 28, 2002 OK CR 53 We P.3d 917. do not upon filing petition signed convened the of a lightly disregard reasoning, that Court's but we by qualified county; the electors of a establish- reject holding pursuant must to this Court's ing signature requirements numerical for the authority opinion. as discussed in I of this sufficiency petitions; allowing of such the At- torney General to convene and conduct According page 5 of a June 1971 document juries, upon filing application, the aof verified Legislative from the Oklahоma Council, titled to have been com- Amendments; ''Pending Legisla- Constitutional involving multi-county mitted in one or Referenda; Petitions; 1971," tive Initiative activities; granting grand juries such proposed short title amendment was: power grades to indict for all character Convening by of Grand Juries Elector Petition crimes, approved by people? be by Investigation or General for Questions Oklahoma State Since Statehood Single Multi-county or Criminal Activities. 1907-1994, published by Depart- the Oklahoma question plаced The of the text state on the Libraries, 1994, (em- p. ment of December 123 ballot: phasis amending Shall a Constitutional Amendment II, Article Section of the Constitution of the

553 Legislature.7 templation of the and return indictments for all kinds of crimes self-executing could not be limited

was However, by por statute. Id. the fact that THE OF LEGISLATURE III. POWER provision are tions of self- that the 122 further conclude We pro executing does not mean that the entire properly exercised its Legislature Bill, self-executing. House 1951 visiоn is See necessary, jurisdic clarify, once it was ¶ 288, 0, (syl. by1 OK 287 P.2d at 625 no. multicounty grand jury. "The tion of Court). Indeed, article section 18 was to all Legislature of the extends Legisla in again amended 1995to direct the legislation withdrawn rightful subjects of not legislation prevent corrup ture to enact in therewith." by the Constitution or conflict grand jury process. tion ¶ 288, 0, 1951 In re House Bill No. by2 (syl. P.2d no. 205 Okla. Further, though it even "has no Court). position propose power abridge provision or extend a proper analysis. We do would revеrse the Constitution when the same is self-execut to decide not examine the Constitution ing," Legislature completely pre is not Legislature permitted to act. whether the is acting self-executing vented from on a consti 1836,¶ 19, 362 P.2d Logan, Tate v. provision, County tutional Kiowa Excise Bd. Rather, examine the Consti 674-75. we ¶ Ry., v. St. Louis-S.F. 1956OK Legislature ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tution to decide whether Legislature P.2d 681. The retains the acting. Id. Constitutional prohibited from protect power to enact statutes to better strictly Legislature limitations on the rights granted, "provide specific a more any doubt is resolved favor construed and remedy carrying convenient out" con Legislature's power to act. Id. The language, supply particulars stitutional change a Legislature has the stat language where the constitutional is "not as provision enacting ute a constitutional Hooker, complete may be desirable." clarify many if it an even waits P. at the failure to act years to do so and Court). (syl. nos. 4-5 Legislatures contrаry of a previous because may in that it curtail or is limited understanding right construction or place rights guaran on the undue burdens impair Legislature's right a future does not teed the Constitution. Id. ¶26, 362 P.2d at 675. to act. however, reading argue, 125 A careful of article section 123 Petitioners this that it cannot be treated as has declared article section 18 "self- 18 demonstrates example, entirely self-executing. For section executing" such that cannot provides that General can legislation to extend or alter its effect. enact 5, 53 Bezdicek, jury, P.3d at file an to convene body overly specify but does not to whom or to what 918. This assertion results from legis- be made. The reading of this Court's statement should broad *8 latively-authorized explanation pro- only that article where we concluded 2, indicat- posed the 1971 amendment to section 18 sections 18 and 19 secured "inviolate number, make by jury, ed that General would right [and] to trial judge, provi- but that unanimity, impartiality jurors." to a district and 3, 839 actually 142, not included in the lan- P.2d at 656. two sion was "[These 1987, Leg- In executing guage of the amendment. provisions [are] self (em by declaring that omission mandatory respects." in these islature remedied and addition, apply General should phasis this Court held 22, tit. Court. Okla. Stat. giving a mul- language that the constitutional 851(A)(Supp.2007). § ticounty grand jury power inquire into analysis acknowledge the constitutional We briefs con- cal cannot override Petitioners' statutory imperatives and informative historical tained an exhaustive which this Court and under jury system English analysis and in multicounty grand jury operate. and the However, law. that histori- American common Legislature acted within Similarly,the OPALA, J., dissenting € 26 it clarified the constitu when its dispositive posed question The for our by providing that a multi- language tional 2, 18, decision is whether the text of Art. See. have jury should county grand Const., Ok1. on the confers activities, whether those multicounty grand convene in a or mul activities occurred jury occurring activities within passing amending the tiple and counties. single county. in The court's answer is Jury Multicounty Act to address the Grand pronouncement affirmative. Its relies ex- jury, clusively legislative on the "clarification" of properly exercised its au language, the constitutional Art. See. thority clarify language the constitutional Const., Multicounty Ok. contained in the provide specific procedures carry out and Act, Jury Supp. Grand 22 0.98.2001 and 0.8. in article 18 of rights contained section 2007,§§ 851and358. County, the Constitution.8 Kiowa reaching today's T2 In conclusion 677; Hooker, utterly court has abdicated role as 98 P. 964. legal system's recognized paramount exclusive arbiter the Constitution's CONCLUSION meaning. Legislature's The discretion is Constitution sets forth The Oklahoma unlimited, although its conclusions are convening jury. three methods Marbury often entitled to much deference. The third method allows Gener- Madison, v. Cranch L.Ed. 60 al, approval, to convene upon (1803); Flores, City Boerne v. 521 U.S. jurisdic- having the 515 and 2162 and S.Ct. investigate erimes in one or more tion to (1997). 2172, 138 L.Ed.2d 624 Multicounty Jury Act counties. The yield I T3 decline to to thе proper Legislature's power is a exercise paramount court's and exelusive to act legislation to effect the constitutional to enact as the ultimate arbiter of the constitution's protections provisions. Specifically, see- Madison, Marbury City text.1 supra; v. title tions 351 and 858 of as amended Flores, supra. Boerne v. 2003, do not violate the Constitution. subpoenas question is- 128 The were

sued investigation of an into ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍criminal activ- ity place taking 2008 OK 34 subpoenas proper were a exercise of the SMALYGO,Jr., Smalygo Millard d/b/a multicounty grand jury's jurisdiction. Homes, Petitioner, court, therefore, properly refused to subpoenas. quash the T. David GREEN and The Workers' ORIGINAL JURISDICTION PREVI- Compensation Court, ASSUMED, oUSLY REHEARING Respondents. GRANTED, RELIEF DENIED. 102,950. No. WINCHESTER, C.J.; CONCUR: Supreme Court of Oklahoma.

EDMONDSON,V.C.J.; HARGRAVE, KAUGER,WATT,TAYLOR,COLBERT, REIF, JJ. OPALA,

DISSENTS: J. *9 However, as this 1. Court and the Court of Crimi The ultimate and determination held, previously nal have meaning prov of the Constitution's remains the attempted exceeded its when it to limit the ince of the Judicial Branch. Kimel v. Bd. Florida type activity subject grand jury investigation 62, 81, Regents, 528 U.S. 120 S.Ct. Of directly because it contradicts the Constitution. 145 L..Ed.2d 522. Bezdicek, 28, ¶ 14, P.3d at 920-921; Quash Movants Grand Jury Subpoe v. nas