*1 the motion for a new trial ruling on for remittitur.

motion O’LEARY, News, Anchorage Daily

Kevin Times, Alaska,

Anchorage Ste State Branchflower, Dwayne

phen W. E.

McConnell, Appellants, COURT, THIRD JUDICIAL

SUPERIOR

DISTRICT, Brian C. Honorable

Shortell, Presiding Judge, Appellees. Jury for the

In the Matter of Anchorage

Third Judicial District at Proceedings Term of in Janu

for the

ary, 1990.

In re JURY. SPECIAL GRAND S-4105,

Nos. S-4131 to S-

4134 and S-4159.

Supreme Alaska. Court of

Aug. *2 Leik, Nichols, N. Per-

Clark Reed James Coie, appellant Anchorage, for kins O’Leary. Middleton, McKay, Timme &

D. John appellant Anchor- McKay, Anchorage, for age Daily News. Fleischer, Cynthia Ducey, L.

Theodore E. Rudd, Anchorage, appellant for Guess & Anchorage Times. Olsen, Gen., Atty. Asst. Fair-

Randy M. Gen., banks, Baily, Atty. Douglas B. Ju- neau, and Branch- appellants for McConnell flower. Mannheimer, Gen., Atty. Asst. An-

David Gen., chorage, Douglas Baily, Atty. B. Ju- neau, appellant State of Alaska. Gen., Doogan, Atty. investigation High Fair- James P. Asst. Bartlett Gen., Atty. relationships banks, Douglas Baily, B. Ju- School teacher’s sexual neau, Jury. for the students. McComas, H. & On issued

James Schleuss McCo- March mas, Jermain, I its Trickey, Howard Dunna- Part defi- S. identifies *3 P.C., Owens, Anchorage, policies in re- gan John B. ciencies certain statutes and & Patterson, Patterson, garding reporting investigation the and Kelly & William F. Bryson, Anchorage, with school It Dewey, William P. for sexual misconduct children. parties. statutory for interested contains recommendations changes. grand jury and policy C.J., MATTHEWS, Before and explained prepared it that had second RABINOWITZ, BURKE, COMPTON and part report its the which addressed ac- MOORE, JJ. district, police the the de- tions of school partment attorney’s and the office district OPINION employed orga- and of individuals those report II of nizations. Part the was sub- MATTHEWS, Chief Justice. 15, superior mitted to court on March the appeals investigative These concern an grand jury report subject which was 19, 1990, On March the court issued an under Rule 6.1. review Criminal II finding order that Part meets re- in O’Leary Superior issue raised 6.1(a)(1) quirements of Rule and Criminal Court, S-4105, No. is whether Criminal (2).1 requirement The court also found I, Rule 6.1 8 of the violates article section 6.1(b) publication report that “the Alaska Constitution. We that it answer improperly infringe upon will not the con- does not. any person” right stitutional was satis- presented Special The issue in In re However, procedures it fied. held that the 4159, S-4131-34, Jury, Nos. 6.1(c) (d) specified (judicial and if review superior whether court erred order- report on adversely reflects identifiable report the entire After released. oral report person) required would be since argument in only this case we ordered that might reflect on named or identi- “Findings, and Con- Recommendations fiable individuals. report clusions” section of the be immedi- 6.1(c) (d) compliance In and ately released. names of the interest- whose activities court identified individuals parties ed were deleted from that section. II, provided were discussed Part thus, implicitly, We have that ruled report. Under copies them with superior in ordering court erred the entire 6.1(c)(2) identifiable person named report explain opinion released. In this we request hearing, opportunity has an addition, In ruling. the reasons for our we They are re- many of them did so. order that much of the remainder of the opinion as “in- collectively in this ferred report be released. parties.” terested I. BACKGROUND proceedings the In the course of the 6.1 request Attorney grand jury

At in order to Alaska’s Gen- court reconvened eral, grand jury judicial give opportunity for the third it an to consider writ- began testimony investigation responses district an into the con- ten from certain District, Anchorage parties.2 response to this evi- duct of the School interested In Anchorage Department Part II its Police and the An- dence the revised Office, original report chorage Attorney’s relating requested District entirety may request 1. Criminal Rule 6.1 is set forth in its The court appendix opinion. to this evidence as the named or consider further person. identifiable otherwise 2. This action was authorized under Criminal 6.1(c)(5): Rule August 7, welfare, (2) published. On the court improperly infringe concluding II issued a final order that Part any person, report requirements satisfied all findings they the factual contain published release and ordered that it supported substantial evidence. ordered, August addition, 1990. The court also parties may interested be afford- however, publication stayed would be opportunity present ed an evidence to automatically any party if interested filed a append explana- and to appeal notice of before that time.3 The published. tion to the when it is parties appealed. interested question presented proce- is whether these anti-suspension dures violate the clause of superior While the court was still con- I, article section 8 of the Alaska Constitu- ducting judicial Part II review of under I, provides: tion. Article section 8 6.1, appellant O’Leary, Rule Kevin Chief *4 person No shall be held to answer for a Anchorage Department, Police filed an capital, crime, or otherwise infamous un- application original court, for relief in this presentment on less a or indictment of a claiming that Criminal Rule 6.1 was uncon- grand jury, except arising in cases stitutional. The application was remanded armed public forces time of war or superior court for decision. Two danger. Indictment may by be waived newspapers, Anchorage Daily News the accused. prosecu- that case the Times, Anchorage and the intervened at by tion shall be grand information. The superior court level and made similar jury shall consist of at least twelve citi- superior claims. The court structured the zens, a majority of concurring whom proceedings confidentiality to maintain the may return an power indictment. The report. grand of Part II of the jury The grand juries investigate to and make rec- prosecutors, Stephen and two Branchflow- ommendations public wel- McConnell, Dwayne er and joined also safety fare or suspended. never be O’Leary arguing that Criminal Rule 6.1 is parties unconstitutional. The interested appellants’ arguments The that Criminal opposed O’Leary’s application. Rule 6.1 anti-suspension violates the clause generally are conclusory in nature. 1, 1990, August

On the court issued an O’Leary anti-suspension states that ruling order applications that “the of all clause interpretation “leaves no room for parties to hold Criminal Rule 6.1 unconsti- that in any censorship results restraint or tutional are denied.” From this order grand jury investigatory report- O’Leary appealed. newspapers, ing functions”; grand jury that the is not a prosecutors grand and the jury join in part judicial government; of the branch of appeal. this power

and that it has “an unfettered to II. CRIMINAL RULE 6.1 IS investigate CONSTITU- and make recommendations.”

TIONAL supported by None of these conclusions are authority. case

A. provides grand Criminal Rule procedure O’Leary’s 6.1 contention that the judicial for review of jury reports part is not a of the branch of published. before are rule, government plainly wrong. Under the seems reports may damage reputation traditionally juries been viewed as an subject are system.4 proceedings review to determine arm of the court (1) they whether public concern the safety Convention our Constitutional demon- stay pending appeal provided ("A 3. Automatic great is indepen- is clothed with 6.1(d)(1). areas, under Rule many append- but it dence in remains an court, age powerless perform its inves- States, 610, 617, 4. See Levine v. United 362 U.S. aid_”); tigative function without the court's 1038, 1043, (1960) ("The 80 S.Ct. 4 L.Ed.2d 989 States, 323, 327, Cobbledick United 309 U.S. 60 grand jury is an arm of the court and its in 540, 542, (1940) (“The S.Ct. 84 L.Ed. 783 Consti- proceedings ‘judicial camera quiry.’ 49, constitute a in- part tution itself makes the ”); States, Brown v. United 359 U.S. Stevens, judicial process.”); United States v. 510 539, 545-46, S.Ct. 3 L.Ed.2d 609 article I of the Seetion 6 of New York framers of the Con- strate understanding.5 provides; Constitution shared stitution power inquire grand juries into argument O’Leary’s misconduct in office of wilful subject “any restraint” jury is not officers, and to find indictments or to power” unsup is has “unfettered filing of informations in con- direct if by authority. argument, cor ported shall never inquiries, nection with such rect, mean that the could would suspended impaired law.6 lawlessly, ignoring evidentiary operate added.) (Emphasis privileges as well The New York courts have held none- it. rights appearing Such a those before in- jury’s theless that position supported by no case law of vestigate subject legal to various con- It we are aware. is refuted case trols: construing law from the state of New York [Tjhose extensive, analogous powers although provision an of the New York example, For unlimited. Constitution. [the ("[A] (5th Cir.1975) tion for inclusion the Alaska Constitution. F.2d court, agency is‘essentially Proceedings exer at 1325. After various amend- supervi powers authority only anti-suspension language cises its under the ments *5 court.”); People Superior actually incorporated sion of the v. Court Constitu- of 430, County, 119 Santa Barbara 13 Cal.3d Cal. tion. 193, 198, 761, (1975) (en Rptr. Missouri, P.2d 766 531 In both New York and indictments banc) (“[T]he grand jury integral as an serves routinely reviewed and dismissed if the re system.”). part of the court But see United viewing finds court that the defendant’s consti Chanen, 1306, (9th v. F.2d 1312 Cir. States 549 See, rights e.g., tutional have been violated. ("The 1977) grand jury relegated by is ... not Garrett, (Mo.1982) (en State v. 627 S.W.2d 635 any position the Constitution to a within of the banc) (indictment challenged grounds on the government.”). three branches that it contain the essential did not all elements procedures by and that the which offense Rivers, According Delegate Ralph to "[T]he grand jury were and its foreman selected essentially judiciary jury part a Tressler, unconstitutional); v. were State 503 process 2 and is called the courts.” Proceed- (Mo.1973) (indictment reviewed on S.W.2d 13 ings of the Alaska Constitutional Convention grounds grand jury system that the Missouri 5, 1956). (Proceedings) (January orig- 1281 deprived right of defendant his constitutional of proposal concerning power inal committee presence and his to of coun confrontation sel); grand juries grand jury of stated a could be Easter, (Mo.App. 644 State v. 661 S.W.2d "judge having convened of a court 1983) (indictment to determine wheth reviewed power try to and determine felonies." This was prosecutor grand jury subpoena er abused the changed after other amendments had been power duty present exculpatory breached to adopted and the federal model was substituted Halliburton, evidence); v. 531 554 State S.W.2d language. Proceedings for this at 1339. (criminal requires (Mo.App.1975) rule the court sufficiency and to evaluate the of the indictment as for 6. This clause served the model section 16 may vagueness for if it indictment dismissed of of article I of the Missouri Constitution 1945 does advise defendant of the constituent not provides: which necessary acquaint partic facts to him with the jury of That shall consist twelve citi- 535, Bacote, charges); People ular v. 143 Misc.2d zens, concurring may of nine whom find (indictments (Sup.Ct.1989) dis 541 N.Y.S.2d 305 provided, an indictment or a true bill: that no prosecutor gave missed because the grand jury except an convened instruction); jury People v. an erroneous Guz judge having power order of a of court 129, man, (Sup.Ct. N.Y.S.2d 117 137 Misc.2d 520 felonies; try to and determine but when so 1987) (indictments be reviewed and dismissed power grand jury such shall have assembled appropriate prosecutor cause reread failed to investigate and indictments all return considering was at time crime; instructions grades character and that the 812, Ali, case); People particular 137 Misc.2d v. juries inquire into the will- (indictments (Sup.Ct.1987) 523 334 officers, N.Y.S.2d misconduct in ful office of grounds therewith, found defective on in indictments connection find presented added). insufficient evidence to was with suspended. (Emphasis shall never be Shaw, charges attorney failed sustain that district Jury Reports Weinstein & Safe- —A defense); 191, possible Peo Democracy, Wash.U.L.Q. to instruct on guard 1962 132, Williams, 196-198, clause, turn, ple 526 v. 136 N.Y.S.2d A.D.2d n. 28. The Missouri (1988) (indictments ground Rights proposed by Bill of 581 dismissed the Preamble & instructed). grand jury inadequately the Alaska Constitutional Conven- Committee of privilege, may objective not violate a valid New York court held that the jury] Constitution, derived from the anti-suspension prevent whether clause was to or the common law. Additional- statutes legislation deprived compel testimony ly, powers its authority to act. production of evidence must “be ex- Implied in majority’s opinion proce- with the ercised in accordance expressed concurring Beach and evidentiary rules laid down dural and opinion Judge Wachtler is the conclusion Procedural Law and oth- the Criminal reporter’s privilege that had the been er statutes.” magni- found to have been constitutional 331, Morgenthau, 62 N.Y.2d Stern v. privi- tude under the state constitution the 349, 810, 812, 465 N.E.2d N.Y.S.2d lege clearly would have even more been (citation omitted); (1984) added) (emphasis recognition notwithstanding entitled to Shanley, 62 N.Y.2d

see also Beach anti-suspension clause. 765, 465 N.E.2d 304 476 N.Y.S.2d New anti-suspension language York’s (grand subpoena reporter TV testimony reporter’s prevent editing source also does not a court from to obtain as to law”). statutory goal protection because of “shield an indictment if the is the right. People of a constitutional In v. Cir Beach, Ap- York the New Court illo, 100 Misc.2d 419 N.Y.S.2d 820 peals expressed rejected argument (1979), charged the defendant was in an O’Leary’s New as broad perjury. indictment with three counts provision: analogous York’s seeking He moved to amend the indictment respondent’s argument, all statu- [UJnder phrases “a to strike narcotics violator” grand jury’s ability tory restrictions on a replacing “the narcotics violator” each investigate public officers would be his name. He Thus, phras asserted that the spousal, attorney- invalid. client, highly prejudicial physician-patient, clergy, psycholo- es were and inflammato *6 gist, privileges ry and social worker would and that their use in the indictment Similarly, grand all be ineffective. a petit jury which was to be read to the “was jury investigating corruption would be flag in effect a that the said defendant was give complete immunity private able to to a criminal before even one scintilla of evi engaged in bribery citizens who have presented jury.” to the dence was While extortion, regardless prosecutor’s of a recognizing statutory author that it had no Finally, desire to obtain waivers. ity defen to amend an indictment on a extent that the normal rules of evidence court, nonetheless, motion, ruled dant’s the applicable juries, question to a power. inherently that it has this might to their be raised as force when power their to The courts have exercised they operate “impair” investigation to quash indictments even set aside and public of a officer. legislative grant when it the absence of 772, Beach, 476 N.Y.S.2d at 465 N.E.2d at upon a lack of appears to be founded (footnote omitted). 311 and citations involving illegal incompe- evidence or court noted that the New York Constitu- power This is based testimony. tent prompted adopt tional Convention was to duty of right and the the inherent anti-suspension its clause because “at a in those cir- protect the citizen courts to special [Pennsylvania] Legis- session of the involving a substantial inva- cumstances adopted a suspending lature statute was rights. sion of his constitutional grand jury investigation public the into a official, depriving Beach, power all

power Every to act in the matter.” inherent to do 476 court has 771, necessary reasonably N.Y.S.2d at 465 N.E.2d at 310.7 The for the ad- things investigation public charged 7. The framers of the Missouri Constitution drew cies with Weinstein, example supra, on the same and on that of Louisiana 62 officials were abolished.” where, Huey Long according under Governor to Wash.U.L.Q. at 197 n. 28. speaker, agen- "the and all other

IfiQ scope recognized injury good justice within the to one’s name ministration [that jurisdiction. reputation impairment its one’s employment] are ability to obtain substan- (citations Id., 419 at omit- N.Y.S.2d 823-24 cognizable interests legally tial and entitled ted). Although specifical- the court did not protection against official to constitutional ly the New Constitution’s discuss York governmental action debases them.” state, non-suspension did language, it 794, Briggs, 514 F.2d 797 United States v. law, no other- constitutional or [TJhere (5th Cir.1975). Briggs the issue was wise, proscribing the court whether individuals named permit on its motion own defen- co-conspirators who were not indict- any application, dant’s nor interdiction injury protected by due any ed suffered against striking portion process clause of fourteenth amend- indictment. argued government ment. had Id., 419 at N.Y.S.2d affected “one’s interests are being publicly B. branded as extent long a felon so as he is not named as a Criminal Rule 6.1 is intended to defendant,” “if appellants have suf- against guard violations of the Con injury only fered at it is the hands by grand jury. stitution Review to deter repair news media whom should mine whether a concerns the rejected relief.” at 799. The court Id. safety recognizes welfare8 arguments these held that the jury reports by article I are limited section jury’s actions violated the fourteenth pub 8 to “recommendations amendment. States v. See United safety.” lic welfare or The review under Chadwick, (9th Cir.1977) 450, F.2d 450 556 (b)(2) pub subsection determine whether curiam) (per (“charging appellant improperly infringe lication would making without him a defendant offense any person explic beyond authority itly constitutionally based. process”); Application and a denial of due Reputation interests are entitled to Electrical, Radio & Machine United pro protection a measure of under the due Workers, F.Supp. cess clauses of fourteenth amendment (S.D.N.Y.1953) (“[A] man should not be and of the Alaska Constitution.9 In Wis mis- subject quasi-official accusation of Constantineau, consin U.S. *7 he au- conduct which cannot answer an 436-37, 509-10, 507, 91 S.Ct. 27 L.Ed.2d Jury forum. ... thoritative The Grand (1971), Supreme 515 the Court wrote: reports, imposing the when issues such is and federal administrative state [S]ome punishment public reprimand_”). of procedures summary by of are reason We have held that review eviden- history. certainly Yet necessity or tiary government action is an basis for badge “a of where the State attaches part process. essential of due citizen, process infamy” to the due comes into play.... be- The of factual determinations review ad- to find whether the name, comes review good reputa- person’s

Where a passed beyond decision has tion, ministrative honor, integrity is at or stake be- permitted limit of the zone of the lowest government doing cause of the to what capricious, to become ar- reasonableness him, opportunity and notice bitrary confiscatory. or heard are essential. Murkowski, v. 486 P.2d have been made K & L Distribs.

Similar statements (Alaska 1971). 351, “The 358 the context: courts 6.1(a)(1) (b)(1). persons just of to and all fair treatment 8. See Criminal Rule legislative of in- in the course executive I, provides: Article 7 section infringed. vestigations shall not be life, liberty, deprived No of property, process The of law. without due 170

Although suggested in L I, we K & Dis the recommendation made article sec- was a tribs. that this lower standard of of tion 8 our constitution. substantial stan review than the evidence dard, difference, any, if the seems more C. real. theoretical than Substantial evidence view, In anti-suspension our that, light evidence of the whole prohibit clause does not proce reasonable record, accept a reasonable mind would governing dural rules the issuance of adequate support at issue. conclusion grand reports.10 In 1955 and 1956 Smallwood,

Burgess Co. Construction when the framers of the Alaska Constitu (Alaska 1985). Thus, 698 P.2d met, power grand juries tion to issue passes evidence which the K L& Distribs. independent reports test, indictments was a that which is above the limit “lowest reasonableness,” subject vigorously which was permitted zone debated nat pass ionally.11 majority would view seem to the substantial was that reports permissible.12 evidence test. such were not framers the Alaska Constitution desired Moreover, language sentence unambiguously place among containing anti-suspension clause im- recognized those states which plies evidentiary there must be an power jury’s to recommend without indict grand jury’s basis for the recommenda- prevent and to power being from tions. abrogated. purpose This is the manifest The section links the jury’s investi- anti-suspension is, clause.13 There gating reporting powers. It does however, nothing in the convention debates empower not jury to make suggests delegates which that the intended recommendations in the abstract operate legal in a vacuum upon speculation. based exercising when investigate its must base its recommendation and recommend. investigation. results of its If the inves- tigation not does disclose suffi- evidence juries Grand are an arm of the court support cient to conclusions rec- such, system. operations gov- As their ommendations, the pub- court should administration, prac- erned rules of report. lish the procedure tice and the supreme Note, Reportorial Power the Alas- is constitutionally empowered court ka Jury, 3 Alaska 325- L.Rev. IV, promulgate under article section 15 of (1986). the Alaska Constitution.14 See Criminal (governing convening discharge Rule 6 requirement Thus the Rule Criminal grand juries proceedings 6.1 that recommendations before based sub- juries). promulgated stantial we evidence elicited in the course of jury’s investigation following Rule 6.1 Criminal recommenda- is based both process on due considerations and on the tions council and the stand- *8 connection the investigation between and committee on rules. In criminal mak- 723; 10. At adopted Application Electrical, the time the clause was territorial 12. at Id. United Workers, routinely F.Supp. courts reviewed Radio & Machine indict- 111 866 (S.D.N.Y.1953). compliance ments for with United law. See Larson, (D.Alaska F.Supp. States v. 125 360 supra 13. accompanying See notes 6 and 7 and 1954) (indictment ground dismissed on the that text. offense); Bell, it did not state an United States (D.Alaska 1952) (indictment F.Supp. 777 IV, provides: 14. Article section 15 dismissed because it did not state facts suffi- supreme promul- The court make and against cient to constitute an offense States). the United gate governing rules the administration of all promulgate courts. It shall make and rules governing practice procedure and in civil and Comment, e.g., 11. See Constitutional Law—Judi- criminal cases in all courts. These rules Legality Jury Report, changed cial the by by Grand legislature be the two-thirds Powers— (1954). 52 Mich.L.Rev. 711 vote the members to each elected house. If recommendation, report reflects on a pub- council the the ing its report in the or who named scholarly re- and comprehensive a lished identity whose can be determined Jury in Investigative port, The Grand report: (1) council that (1987), history [the recommends] the reviewed Alaska by report supported substantial investigative its and grand jury and evidence, (2) that it be related to the study powers. council was reporting public (3) or safety, welfare that it in by the Alaska State Senate requested infringe upon any protected not rights or proce- that council concluded 1985.15 The person. that liberties of Rule like contained in Criminal dures those proper bal- to achieve a 6.1 were needed in inherent the values

ance between guidelines, No or statutes case law jury’s investigative and recommend- presently provide exist stan- one and the con- ing function on the hand judicial dards for review of on the oth- rights of individuals stitutional reports. Other than the constitutional er. The council concluded: requirement report that address aspect some “the welfare needed, safeguards are While safety”, judges guid- no additional a body, serves valu-

jury, a citizens’ reviewing ance in subject matter of A investigative in its role. able function reports or the circumstances under which grand jury’s proper balance between should be issued.17 reporting constitutional- power other 6.1, promulgating In ly-protected rights of can be Rule we individuals Criminal agreed development with council’s conclusion that through the achieved governing rules exercise (a) process procedures provide: due jury’s investigative reporting function protections for individuals named or re- necessary were order to ensure funda- review; (b) reports; ferred to in reputations mental fairness to those whose (c) guidelines publication for the by might injured unjustifiably be reports.16 dissemination of reports jury report and to ensure that such The council also stated: compliance with constitutional issued Basic fairness constitutional due conclusion, reaching this requirements. persons process require that identified in All alone. the com- by we are no means grand jury reports provided with cer- whom we are aware who mentators of specified protections currently tain speak subject express view desirable, es- procedural limitations are Alaska law.... Council, Investigative published National Institute of 15.Alaska Judicial terials Justice, Justice, Department Jury App. (quoting United States Grand in Alaska A.1 Issues, Session, Key Jury A Review Grand Special Senate Resolve No. 4 First Reform: 1985). language The resolve read: pow- the issue of the attention to The senate’s respect- BE IT RESOLVED that the Senate investigate rec- grand juries to and make er of fully requests study Council to Judicial brought by July in focus ommendations power use of the to investi- Jury Report District First Judicial gate and recommendations and make begin impeach- recommending that senate council make su- recommendations against proceedings ment Governor Sheffield. preme legislature court and the to assure ef- impeach- senate held rules committee proper use fective and of that adopt hearings, ment impeachment. Note, but did not articles protective safeguards protect abuse and as- episode discussed *9 sure basic fairness: Reportorial Power the Alaska The of RESOLVED that the Senate re- FURTHER (1986) Jury, and in 3 Alaska L.Rev. 295 Grand spectfully requests the to Judicial Council Stern, Revealing by Misconduct Public Officials possible consider amendment State Jury Reports, Through 136 U.PaX.Rev. Grand 73, presentation 79-82, (1987). for to the voters Constitution for 115-25 strengthen the need to ratification Council, Investigative Judicial The 16. Alaska system consistent with due (1987). Jury in Grand Alaska ii process through and standards established publications including 17. ii-iii. but not limited to ma- Id. at 172

sential, protect personal reputational judiciary excepted clause, to in- was from this Moreover, terests.18 the United States delegates but not because the wanted the Congress,19many legislatures of the state courts to have the to treat individu- courts,20 courts, and state federal and the unfairly. Instead, delegates als be- American Bar Association21 have ex- concept lieved that the process of due itself pressed concern that individuals will be directly judiciary constrained the while it grand juries harmed if exercise unfettered clearly applied legislative less to and execu- reporting power. investigations.26 tive The framers of our constitution were It is not reasonably possible to believe acutely protect concerned with the to need that our constitutional framers who were rights of citizens. This need was the protective personal so reputational of inter- by chief primary sponsor reason cited ests they legislature desired the to grand jury reporting power sup- make rules affording process due to those port power.22 the need for the In the con- involved in legislative investigations also legislative investiga- text of and executive intended jury investigations to be tions, delegates sufficiently were con- process fact, free from due constraints. In possibility damage cerned about the of noted, delegates believed that reputation special of individuals that process due already provided clause language process was attached to the due protection same judi- context of the clause of the Alaska Constitution which ciary, although grand juries spe- were not guarantees persons just to all “fair and cifically mentioned in this discussion. treatment legislative the course of investigations.”23 executive Indictments by grand juries issued traditionally subject been to various forms delegates hoped to avoid the excess- of review. The anti-suspension lan- es by felt were characterized guage of our constitution imported the conduct of Joseph McCarthy: Senator without discussion from the Missouri Con- indulged vilification, character as- “[H]e stitution, which in turn sassination, is based on the New guilt and an intimation of York Constitution.27 In those delegates association.”24 states the hoped is, however, clause prompt legislature solely applicable this clause would in- procedure make rules of safeguard vestigations resulting indictments. reputational interest of 144, individuals.25 The Hughes, v. 9 Wood N.Y.2d 212 Stern, Revealing 18. formly recognize Misconduct Public that under the common law Offi- Through Jury Reports, cials Grand 136 U.Pa. the court which convenes a has the 73, (1987); Kuh, L.Rev. Jury 132 The Grand authority to refuse to file a that violates Play? “Presentment": Foul Blow or Fair 55 Co- governing legal standards. 1103, Note, (1955); lum.L.Rev. Repor- 1132 531 P.2d at 767-68. torial Power Jury, the Alaska Grand 3 Alaska 295, Comment, (1986); L.Rev. 326 Constitution- Association, Jury Policy 21. American Bar Grand legality al Law—Judicial the Grand Act, Stern, (quoted Powers— and Model 4 136 711, Jury Report, (1954). 52 Mich.L.Rev. 725 7). U.Pa.L.Rev. at 77 n. (1988) (providing 19. See 18 § U.S.C. 3333 (comments Proceedings 22. at 1405-06 of Del- pre-publication judicial special grand review of Barr). egate jury reports). People Superior 20. v. Court Santa Barbara Const, I, 7, 23. supra art. set out § note 9. 430, 193, County, Cal.Rptr. 13 Cal.3d 119 531 (1975); Wurdman, P.2d 761 State v. 187 S.W. (statement Proceedings Delegate 24. at 1449 (Mo.1916); Report 257 In the Matter Taylor). 121, County Jury, Washoe Grand 95 Nev. 622, (1979); P.2d 625-26 re Presentment Proceedings (statements 25. at of Del- County Jury, Camden 10 N.J. 89 A.2d Rivers). egates R. Rivers and V. (1952). Stern, generally, See 136 U.Pa. 7-8, L.Rev. at 77-79 nn. 10. (statements Proceedings 26. at 1448-50 & 1465 Supreme People California Court wrote in Rivers). Delegate R. Superior County Court Santa Barbara throughout the numerous cases the United question States which have Supra addressed the uni- note 6.

173 33, (1961); Appellants alleged 21 that Crimi 173 N.E.2d Matter N.Y.S.2d nal 6.1 the first Jury, 553 Rule violates amendment Report the Grand Interim of of S.W.2d (Mo.1977). of of the United Constitution and 479 We are aware no States arti 1, Constitution, anti-suspension construing the claus- cle section V of Alaska cases improper is an exercise of the constitutions of either Missouri or court’s rule- es of the making power, suggest judicial contrary that re- to the state’s New York which acts, 09.25.100-.125, suspen- public records AS amounts to a view of an indictment grand unconstitutionally expand Since the serves to jury’s power.28 su sion of the perior Upon jurisdiction. Constitution used court’s considera of the Alaska framers judicial allegations tion find all these language did not bar review we that which taken, Brown, it lack merit. v. from which was it See Hammond 323 the context 326, (N.D.Ohio 1971), F.Supp. there reasonably can be concluded that was 350 450 aff'd Cir.1971) 480, (6th (per curiam); in the F.2d 482 no intention to bar review phrase McClatchy Newspapers Superior v. new context in which the was used. Court, 1162, 774, Cal.Rptr. 44 Cal.3d 245 state courts of Alaska 786-88, 1329, (en 751 P.2d 1341-42 duty to review ac have the constitutional banc); Superior People v. Santa Court of by agencies of state in order tions to 430, 13 119 County, Barbara Cal.3d Cal. compliance provisions with all ensure 193, 200, 761, Rptr. (1975). 531 P.2d 768 Meekins, Constitution. Malone v. 351, (Alaska 1982); K 650 P.2d 356 & L III. RELEASE OF PORTIONS OF PART Murkowski, v. 486 P.2d 357- Distribs. II OF THE GRAND JURY REPORT (Alaska 1971). applies This function not 58 indicated, previously As at conclusion government only coordinate branches of to argument this oral court ordered all Malone, legislature, supra, such as the Jury Report II of Part the Grand enti- branch, Distribs., L the executive K & su “Findings tled and Recommendations component parts judi to pra, but (hereafter Recommendations) Conclusions" courts, ciary and the such lower released, only immediately deleting jury.29 It would be a radical deviation parties. names interested We noted authority from this consistent line to question whether more of the anti-suspension conclude that clause Jury Report would be released re- does not exist with means opin- mained under advisement and that an respect jury reports. to This would explain ion would follow. We now our only judge can mean that ordering reasons the immediate release complied it has with the limita whether of the Recommendations. imposed tions on its action the constitu First, I, section 8 tion whether it violated the consti because article grand juries protected explicitly grants authority tutionally rights others. We nothing language of the anti- “to make recommendations see clause, suspension safety” our view that the debates welfare Convention, constitutionally in the rele Recommendations Constitutional slight background text consist legal history vant which lends even authorized. dispute detailing the pages of some 70 credence this view. id); Ison, (Alaska App. supra v. 744 P.2d 416 28. cases discussed note which illus- State See 1987) (indictment improper the review of indictments trate because place takes in Missouri and New York. presented sufficient evidence to was not State, charge); support the v. 695 P.2d Smoker See, State, (Alas e.g., v. 652 P.2d Wamser 98 1985) (Alaska (trial App. court abused its 1982) (violation ka of defendant’s constitutional right to due discretion and violated defendant’s present for all communication be refusing process by to allow defendant call error); jury is tween court and reversible Dixon State, (Alaska witness); Depp P.2d 712 v. (Alaska State, 1980); 605 P.2d Adams v. 1984) (defendant sought App. indictment have State, (Alaska 1979) (grand jury 598 P.2d 503 ground that rural Alaskans were dismissed systematically enough properly did before it evidence juries). excluded from indict defendant so indictment inval *11 District, Anchorage parties’ between the School of the interested conduct meets the Anchorage Department Police and the An- substantial evidence standard under Crimi- 6.1(c)(5). chorage Attorney’s District office not nal Rule does footing. stand on the same constitutional Despite ordering the release of background We believe that such material most of the names mentioned in the I, implicitly covered article section 8 Recommendations, jury’s we note that only necessary to the extent that it is to grand jury procedures are not de well grand jury’s make the Recommendations signed provide to finding.. balanced fact understandable. We find that the Recom- Although grand jury consists unbi mendations are understandable without the citizens, only attorney appear ased to text, given background Part I of the Grand grand jury prosecutor.31 before is the Jury Report previously which has been prosecutor generally decides what evi published, information which presented dence will be grand jury to the widely has been disseminated investigation and those under have no no underlying dispute. Thus there is no heard, tice or opportunity ability no compulsion to release the behalf, call witnesses on their right own no background text. witnesses, cross-examine and no present arguments. their While under Second, we ordered release of the judge may Criminal Rule 6.1 the trial order day Recommendations on the same we grand jury to consider evidence on be argument. heard oral This was some two half party, of an interested this order is municipal weeks before a election in which only made after the already mayor municipal the office of and certain tentatively at least committed itself to a assembly and school board seats were be report adversely reflecting party. on the contested. Because the Thus, it should widely be understood that generally Recommendations were critical grand jury reports may extremely one- actions, of school district finding while They given sided. should not be the same police attorney’s and the district office degree of judg credence as a trial court appropriately, had acted we believed that ment. the Recommendations should be immediate ly they might released as bearing have a on respect one the Recommenda the election. The Recommendations men tions adversely reflect on individuals in a par tioned the names of certain unsupported interested manner by substantial evi argued ties had report who that the would dence. Since the Recommendations have adversely reflect on already released, them. We ordered only been meaningful their names deleted as were not remedy point essen at this is to continue to with understanding tial the Recommendat hold the parties names of the interested ions.30 We did not reputations order the interested whose would unjust otherwise parties’ names ly damaged. deleted because we neces sarily agreed with their contentions that paragraphs In four beginning with sub- report adversely reflected on them or (b) paragraph page 75 of the Recommen- unsupported by was substantial evidence. dations, states that school persuaded

areWe now that the names of legal officials violated an “ethical if not a parties most of the interested mentioned in obligation concluding ...” that school offi- the Recommendations should be report released. cials investigation their main, In the the Recommendations do not interpreted state “could be attempt as an reflect them in gain serious statutory immunity ‘just ... Further, way. except substantial legally as not- case’ a was required.” Use below, grand jury’s ed characterization statutory immunity term here is an Here, parties prosecution 30. None of the interested represented by were candi- 31. attorney pending municipal assistant district district dates in the from Fairbanks. All election. attorneys and their assistants are em- ployees Department of the State of Law. *12 investigation an of al- immunity is fidential Statutory misnomer. obvious particular part prosecution legations for a of sexual misconduct on the immunity from so that granted person is to a which other teachers. The names of these crime of two testify against compelled to may be they he not are teachers are mentioned but or a prosecution in a for the same another given other in the information identifiable statu- An to obtain crime.32 effort related they parties are report, and interested may immunity imply that the tory allegations These resolved herein. were crime. effort making the committed par- teachers of the of the and none favor absolutely any There is no evidence this court now claim that ties before ever involved in this case school officials Nonetheless, al- allegations had merit. mentioned, sought, statutory immunity. grand jury contained in the legations are Thus, aspect of the Recommendations this fully “in for the report order satisfy the evidence not substantial does motives of indi- understand the and actions test.33 in the [present involved controver- viduals question turn now to the whether We sy].” preced-

any portion background of the text be re- it useful ing may the Recommendations should While have been Although text is not jury prior leased. release of this in grand for the review the constitutionally required, part is by vestigation, purpose no similar is served Jury Report should be released grand jury’s publication of its details. The provi- Rule 6.1 unless the under Criminal against allegations of the discussion require or all that rule that some sions of nothing adds little or to the com teachers it remain confidential. prehensibility Recommendations. gravely Publication of discussion would II of pages the first of Part Most of reputations We harm the of the teachers. history relate the of the investi- report expunged order from the Grand High of the Bartlett School teach- therefore gation high investiga relationships Jury Report school all mention of this er’s sexual material First, allegations We reviewed this students. reasons. tion for two that it re- does not and believe were against the teachers unsubstantiated distinct parties the interested flect on unsupported by thus were substantial —as High Bartlett teacher—in from the School Second, publication alle of the evidence. Moreover, way. any serious or substantial infringe the con gations improperly would jury’s the interest- description stitutionally protected reputational inter parties’ suggests conduct that the sub- ed counter the teachers. There is no ests of Rule evidence standard of Criminal stantial by served vailing constitutional end be 6.1(c)(5) ease. would satisfied allegations they since are publication of the understanding an However, necessary not exception to this there an by the infor- made details Recommendations conclusion. con- previously jury.34 had remained mation which allega- grand jury report may (authorizing stat- include AS 12.50.101 the use of that “a

32. See circumstances). requir- immunity utory certain tions of criminal conduct” without allegations accompanied 6.1(a)(2). Similarly, Criminal Rule parties indictment. who 33. The names interested 6(n)(2) contemplates that a re- statutory immunity wrongly sought Criminal Rule said to have background Rule 6.1 even port issue under Criminal have also been deleted from answer they may held to with that a defendant not been where be identified where text agree While we in an indictment. accusation. report a vehicle to should be used as whom the lacks suffi- those defame position that Rabinowitz 34. Justice takes indict, public information- evidence to indicting cient cer- because the considered investigative jury’s al values recommending perjury not to but decided tain individuals evidence, con- must also be grounds function so on the insufficient do has been struck concerning perjury The balance which sidered. discussion rights public informa- position this between individual should be deleted. In our view evi- provides the substantial values reflected conflicts with Criminal Rule 6.1 tional reasons, For the above order investigate, they we released could return indict- Jury Report Part II of the Grand of March ments, certainly but it give did not them 15, 1990, with deletions as noted above.35 privilege to more or less defame We also order that the final written re- somebody if they did quite not have sponses parties of those interested who are enough action for a bill. Under [true] expunged report still mentioned in the could discredit him completely, *13 preserved who have their file such way and he would have no answering. responses appendix.36 be attached as an might He be able to come get back and grand the of the jury stricken COMPTON, J., BURKE, J., with whom court, from the records of the but the joins, dissenting. damage would then be done. I think it is RABINOWITZ, J., dissenting part. extremely dangerous in because a citizen any protection. would not have Once it COMPTON,Justice, BURKE, with whom published only thing was the he could do Justice, joins, dissenting. would be to then come in and ask the Delegate proposed delegates Barr to the portions court to strike it. For that attending the Alaska Constitutional Con- object reason I would to it. vention that there in be included the consti- 4 Proceedings of the Constitutional Con- provision establishing grand juries tutional vention 1405. grand jury’s “power that the ... to investi- gate and make recommendations concern- contrary view is reflected the re- involving public conditions the welfare Delegate Hellenthal, marks of who stated: safety suspended.” or shall never be is true protection there is little [I]t proposal vigorously was debated. Del- against what call a runaway ... egate spoke against it, strongly Buckalew grand jury, history but stating: United States there have been few runa- [M]y prime objection particular to this way grand juries, few, extremely and I grand amendment is that jury ... think that the broad power statement of might investigation have under the con- [by ... asked for proposal] proper is office, particular public duct of some healthy. example governor, any public offi- at Id. 1406. cial, They the local tax collector. don’t Despite enough catalogued by Delegate evidence to risks return an indict- Buckalew, give

ment but this it is evident that power would them the most of Alas- hard, good to blast him ka’s and I think founders believed the jury’s power would investigate lead to all kinds of I trouble and and recommend con- cerning think it is an provision. public unheard of welfare safety recommendation of the Committee should remain unfettered. Moments after [with- out language propos- Delegate contained spoke against Buckalew pro- provided posal, voted, could al] convention an over- process dence protections standard and the due concerning recommendations conditions detri- rule, prohibition public contained in the not a flat mental safety.” welfare or 4 Pro- potential ceedings on the discussion of criminal conduct Constitutional Convention 1406 (emphasis added). During when the chooses not to being indict. the debate dis- here, cussed changed the words "detrimental to” were "involving.” 35. We have reviewed the other change claims of the Id. This Hellenthal, parties suggested by Delegate interested and find them to be without who believed merit. that it should be made clear in the constitution investigatory power that “the of a made, broad," extremely In view of the deletions we have and that "a can parties given investigate interested anything.” should be a finally passed, reasonable Id. As deleted, time involving” within which to make leaving deletions from their “conditions only was itself responses appropriate. investigate final written "to and make recommendations public safety" welfare or as the originally proposed, provision gave only 1. As limitation on a grand juries power investigate investigation. "to and make adopt margin, jury report it.2 Thus was in accordance whelming appears as the born what now last sentence protects person’s reputation Rule 6.1 I, section 8 of the Alaska Consti- article constitutionally per interest and hence is a juries tution: “The to in- assuring process missible method of due vestigate and make recommendations con- law. cerning safety welfare If the concerned a court is suspended.” never be report, named or otherwise identified New Webster’s Third International Dic- in manner reflect that will first definition “never” is tionary’s, person, given oppor- notice and an time; any “not at at time.” ever: not no heard, tunity simplification proce- degree: any Its is “not in not in the second 6.1(c) (d) dures in Rule contained would any way: least: not under condi- adequate satisfy that concern. How- “suspend” tion.” first definition of Its *14 ever, suspension the prepublication “to temporarily debar or cause withdraw censorship procedures in provided Rule 6.1 office, any privilege, from or function.” go beyond Indeed, satisfying far that concern. three the next definitions are sim- 6.1, adopted by ilar. Rule Criminal this agree grand I with the court that the pursuant making court its rule authori- jury part is judicial function of ty, only suspends power grand not of government, pow- and that courts have the juries investigate and make recommen- indictments, er to edit jury public concerning the or dations welfare by hence implication edit re- safety, permits censorship also of a but ports that do in not result indictments. I report generated as jury result of agree prevented are not that courts power of that exercise before the re- against from in protecting some manner port published. is even of violations suspension justifies court and cen rights. However, agree I cannot that guise sorship pro of a under the pre-publication power courts tecting “any person” improper from in suspension jury reports or sup- fringement rights of their constitutional pression reports in whole or publication that from would result part protect against in a report, 6.1(b)(2), being Rule or from ad rights. violation of constitutional versely by being reflected on “named or in the report, otherwise identified” Rule by ofMost the cases cited the court to 6.1(c). justifi It asserts that constitutional support its in argument do not arise in cation found in for the rule is the four secrecy. camera An indicted defendant teenth amendment United States who moves to dismiss the indictment for I, and in article Constitution section 7 of insufficiency presented to of evidence Constitution, each of which grand jury, irregularities procedural or for person may deprived that a mandate be or in part misconduct on the of actors life, liberty, property without due grand jury proceedings, is nonetheless a process Citing of law. Wisconsin v. Con fact, person who, named after the files stantineau, 433, 436-37, 400 U.S. 91 S.Ct. pleadings public which are documents. 507, 509-10, (1971), 27 L.Ed.2d 515 That is a defendant’s forum court reasons that when the state affects a forum, may though even that defendant person’s reputation attaching interest a significant consequential suffer a loss “badge infamy” person, to that the state indicted, reputation being simply by life, depriving person liberty, is though even the indictment dismissed Therefore, property. notice and oppor an again tunity heard, and the defendant never indicted. process law, due i.e. Suspension reputation are interest censorship may essential. That defendant’s vote, yeas, 2. After a roll call the result was stitutional "44 Convention nays, Proceedings and 3 absent." 4 of the Con- pro- any per- I permanently compromised why While cannot understand be son named or otherwise identified an cess. differently indictment should be treated Although indictment is not a ‘re- “[an] from those “named or otherwise identified” port’ Rule as used 6.1] [Criminal grand jury report, in a it is not anoma- this 6,” may grand jury report Criminal Rule ly that causes me to conclude that Criminal allegations conduct. include of criminal I, Rule 6.1 inconsistent with article sec- 6.1(a)(2). It must follow Criminal Rule tion 8 of the Alaska Constitution. The long reasoning that as from the court’s anomaly highlight serves the failure of followed, required procedures are all the proper analytical the court to utilize the grand jury report in a person named determining framework issue con- alleged engaged to have in criminal presented. Assuming reputation that a in- duct, yet attaching from a denial to aside protected terest is under the Alaska Consti- report, public judi- no tution, proposition never before articu- compro- vindicate a cial forum which to court, analysis lated should take Furthermore, reputation mised interest. place in the context of two constitutional 7(c) provides Rule Criminal when provisions apparently irreconcila- found, indictment is “the names of all wit- Unfortunately ble. the focus of the court’s nesses examined before analysis is directed to cases must inserted at the foot of the indict- adjudicate of a court to issues relat- ment, thereon, it is or endorsed before *15 jury proceedings after the presented to the court.” An indictment is fact, when it should be focused on the 6(l )(2) public record. Criminal Rules tension constitutionally between a created (n)(l). public why, Since the does not know judicial body constitutionally empowered to may why never be told a witness was investigate and recommend the name of called before a which indicts a public safety, or welfare and the constitu- defendant, soon to be notorious that wit- “deprived tional of a not to be reputation severely ness’s interest be life, liberty, property, of or without due compromised, yet pub- that witness has no I, Const., process of law.” Alaska art. 7.§ judicial lic forum in which to vindicate the conflict, To resolve this I the court believe compromised reputation interest. by must first what is meant the determine why reputation I fail understand the I, “anti-suspension” clause of article sec- persons protected interest of some is to be tion 8. It chooses not to do so. procedures, Criminal Rule 6.1 while the requirement of v. Con Wisconsin protec- same interest of another no receives stantineau, 400 U.S. 91 S.Ct. provides guidance, tion. The court no for (1971), an L.Ed.2d 515 is that of notice and why reputation it fails to articulate the opportunity to heard. The United be persons interest of some is of constitutional suggest does not Supreme States Court magnitude, reputation while the interest of camera, opportunity that the must be in apparently others is not so elevated. fact, before the that must be afforded disagree procedures I do not should supported by evi that unless substantial developed provide “any person which dence, “badge may not attach a of the state who is named or otherwise identified” providing with infamy” first to a citizen without opportunity notice and an adjudicate be heard for private judicial forum to purpose presenting court, of his or her side Yet objections. citizen’s story. persons 6.1, Nor should adopted within that has adopting Criminal Rule reputation class be limited to those whose I to be the most restrictive what believe compromised “anti-suspension” interest is in the of an construction investigative grand jury. imaginable.3 procedural This rule is clause rule, Anchorage making proceedings In the Memorandum of Intervenor but under sections News, Daily 6.1(c) (d) procedures public. open some alternative for Another alter- harmonizing conflicting sug- deserving suggested, interests are native not there sideration, but of con- gested, including retaining present give person most of the would be to named or

J79 my view Rule 6.1 violates “anti- Criminal deferential not the least bit I, “anti-suspension” clause of article sec- Indeed, it mocks it. suspension” clause. tion 8 Alaska Constitution. There- provi the constitutional language If the I fore dissent. enough, rejection sion not clear objections per Delegate to it Buckalew’s RABINOWITZ, Justice, dissenting in that the constitutional debate suade me part. the question and answered both addressed join I court’s decision that Criminal “anti-suspension” is to whether the clause agree I Rule 6.1 is constitutional. further restrictively expansively. be construed expunging III holding of Part Only expansive construction is consist Report section of inves- language ent with and the debate plain its unproved tigation allega- irrelevant and pro and vote. I see no need resort to other tions misconduct “two teach- ceedings interpretations re agree the bulk of ers.” While I garding the state constitutions of New should Report and Recommendations illumination, York and Missouri for inter portions I published, conclude that several esting though they may be. Report 6.1 test fail the Rule I, apparent conflict between article publication and therefore should be ex- and 8 of the Alaska Constitution sections 7 punged report prior from the to its release. by providing “any per- can be reconciled disagreement My the three based opportunity and an son” with notice part test Rule 6.1.1 Because Criminal grand jury pro- during heard the course welfare, Report ap- concerns the ceedings, utilizing procedures sug- herein plication publication of the test for con- gested developed. or elsewhere prongs cerns the third second and courts, jury, can mat- and not the choose (1) publica- Rule 6.1 test. These are Would recommends, reports ters which it infringe right of any tion a constitutional to do Its and the manner so. publication person? If would re- *16 never power shall be sus- person, adversely flect on an identifiable is overlay pro- pended by the cumbersome report supported substantial evi- private provide judicial for cedures which Rule 6.1 Application dence? of the test adjudications and review whether the following leads me to conclude that adversely report publish Jury’s Report it is to reflects on portions of the Grand someone, allegedly expunged pri- or otherwise violates Recommendations should be publication. or to rights. ag- or If his her constitutional grieved person disagrees report, with the Speculation attempts to about conceal adversely it either because reflects on wrongdoing provocation APD. person, right or a constitutional because violated, person allegedly he or she Report “fear and The refers to mistrust” public judicial Anchorage can seek relief in a forum. “intimidation” within (ASD), “pro- will not and what Alaska’s constitution have been School District department’s Anchorage police compromised process. voked” balancing majority opportunity implies 1. The that under notice and an otherwise identified heard, right test, including weight represent- background to be less than text receives counsel, investigatory of the ed in the course agree with this I formula- recommendations. grand jury proceeding. While this alternative However, attempted to balance tion. I have not might grand jury investigation, down the slow rather, interests; I any competing cite those would need for the obviate the cumbersome view, where, my the text of the instances required. proceedings presently The Report publication under fails for Crim- the test include, itself determine whether to mod- would inal Rule 6.1. ify or to a exclude its reference named or Other less restrictive otherwise identified. 6.1(b)(2). 2. Criminal Rule mind, including requiring alternatives come to judge availability rule of a on some issues 6.1(c). Criminal Rule arise, they complete report not after a prepared, been submitted and reviewed. signed by foreperson. A response. A common must be (APD) enforcement report may allegations up grand jury include understanding provoke is “to stir deliberately.” conduct. bring about of criminal purpose: Web- Dictionary Int’l ster’s Third New (b) Initial Judicial Review. The (1961). Report The further states that present any proposed report to jury shall their Jury can understand how “The Grand judge presiding district. attempts have been viewed as actions could judge report shall examine the and the The wrongdoing.” conceal Such statements record before persons; reflect on identifiable discharged. judge produc- The order view, speculative my are so yet, copies transcripts or of the tion of audio evidence test and they fail the substantial may request the grand jury proceeding and published. should summary prosecuting attorney to submit a presented of the evidence implication background text: The jury. judge specific shall make find- perjury. required by ings on the record as the fol- background text is enti- Section G lowing subparagraphs. “Perjury.” begins, This section tled “[t]he (1) judge shall determine first anyone perju- Jury did not indict report require- satisfies the whether 11.56.200(a)due to its ry under AS belief (a)(1) (2). subparagraph If it ments of & justify would not a trial evidence not, judge proceed under does perjury finding the elements of (b)(3). subparagraph doubt_” The Re- beyond a reasonable judge shall then determine if can be assumed port then describes what improperly publication of the would its conclu- are the facts which it bases infringe right upon a constitutional Again analysis, I applying sion. a Rule 6.1 person, including improp- but not limited to pub- conclude that section G should not be person’s right er interference with a lished. pending privacy or to a fair trial implies G that various officials Section planned proceeding. judge criminal perjury, yet the evidence sub- committed parte in- shall make an ex on the record insufficient to mitted to the quiry prosecuting attorney about A support an indictment for this crime. any planned pending prosecu- criminal grand jury report should not be used as a subject tions related to the to defame those whom the vehicle jury report. *17 to indict.4 jury lacks sufficient evidence (3) judge If the determines that the re- port does not meet the standards of sub- APPENDIX (a)(1), (a)(2) (b)(2) paragraphs judge or the Jury Reports. Rule 6.1. Grand report return the to the shall (a)Authority Reports. to Issue explanation for re- with an of the reasons grand jury may turning report. the The (1) grand jury may investigate A and proceedings, further revise the re- conduct reports and recommendations con- make appellate of the port, or seek review cerning public safety or An welfare. report. judge’s decision not to release the “report” indictment is not a as used rule and Criminal Rule 6. Report Adversely (c) Review If Judicial If the

(2) grand jury report may made on Identifiable Person. A be Reflects judge the standards of only upon majority the concurrence of a determines satisfied, (b) paragraph judge are shall grand jurors the total number of on the report proceed- any part determine whether of the panel at the commencement of the may any person on who is ings resulting report. report The reflect grand jury process, require Although this record does not Criminal Rule 6.1 authorizes courts prohibit publication grand jury reports allegations of abuse be addressed. that the by prosecutorial of the which are tainted abuse that the consider further evi- dence as to the named or otherwise identifi- report. identified named or otherwise person. grand jury may The able conduct person or an “Person” includes a natural proceedings, report, further revise the or gov- not include a organization, but does appellate seek of the review decision not agency. If the ernmental subdivision report. release the any report may adversely reflect on identi- judge proceed un- person, fiable shall (d) Report. Release of (c)(1) (5). following subparagraphs der the — (1) publication The court shall withhold (1) judge The order that notice of shall report expiration until the of the person. report provided be to the The making hearing time for a motion for a person of his or her notice must advise (c). If paragraph under such a motion is rights provided paragraph. as in this made, publication pend- must be withheld (2) move, person may The within ten ing ruling pending any on motion or days report, hearing. of notice of the for a (e). paragraph proceed- review under All hearing held in The will be camera and ings under this rule are confidential until the record. presiding judge report orders the re- (3) person given must be a reason- leased. period prior hearing able of time to the (2) judge If finds that the standards report examine the and the (b) (c) met, paragraphs judge grand jury proceedings. A record of the report judge order the released. The person receiving copy notice or a may response report by order that a to the report may and record not disclose identified, person named or otherwise occurring matter before the ex- materials, other additional be attached to cept permitted by per- as the court. Each report appendix. report as an receiving son these materials must be ad- any appendices will be filed with the clerk obligation. of this

vised of the court made available for (4) person named or iden- otherwise inspection. The court shall also direct that report may represented by tified in the be copies report any appendices hearing may present counsel at the persons reasonably re- sent to other argument as to whether the standards stat- quested by grand jury. (c)(5) subparagraph ed in are satisfied. (e) Appeal. prosecuting may attorney present hearing may present argu- at this para- A judicial determination under may present ment. Neither side evidence (d) graph this rule is a final order witnesses, except nor examine gov- purposes appeal. appeal Such person named or otherwise identifiable may except by Appellate erned Rule 216 response submit written Any appeal Supreme is to the Court. jury report may request which the person, the identifiable named or otherwise that the court issue with the under state, majority vote grand jury by or the (d). paragraph judge’s presiding seek review *18 (5) judge shall determine at the close decision. hearing part whether ac- (2) permitted will be report reflect hearing in camera cess to the record of the named or otherwise identified pur- determining to assist it whether or, supported by substantial evidence if appellate sue review. hearing, report raised at the whether the record. confidentiality maintain the of this requirements paragraph (b) satisfies the paragraph rule and of this Criminal judge

Rule 6. If the finds that these re- satisfied, judge

quirements are not report

shall return the why explanation

with an may request

not been released. court