People Ex Rel. Losavio v. J. L.

No. 27933 No. 27892 Losavio, Jr., of the State of Colorado ex rel. J. E. District Attorney within and the Tenth Judicial District of State of L., County Statutory Colorado v. J. a Witness before the 1977 Pueblo Jury Grand 23) P.2d Rehearing July

Decided June 1978. denied 1978. Losavio, Jr., J. E. District Attorney, Marshall, Warren T. Deputy, for plaintiff-appellant. Biddle,

Darol C. for defendant-appellee.

En Banc. MR. JUSTICE ERICKSON opinion delivered the of the Court. This appeal was taken pursuant to the provisions of section 16-12- 102, C.R.S. court, 1973. The construing district in 16-5-204(4)(d), section (1977 C.R.S. 1973 found Supp.), portion of the statute unconstitu- provides tional which attorney “an in present grand jury room shall take an oath secrecy.” We reverse the trial court.

The issues in this case involve the constitutionality of section 16-5- 204(4)(d), (1977 C.R.S. Supp.):

“(d) Any witness subpoenaed to appear testify grand before a or jury books, produce documents, papers, objects or other grand before such jury shall be entitled to assistance of counsel during any time that such being witness is questioned presence in the grand jury, such and counsel during be in the room with his client such may present jury ques- However, tioning. permitted only counsel for the witness shall be to coun- objections, arguments, sel with witness and shall not make or address grand jury. may Such counsel be retained or for may, the witness assistance, any person financially adequate appointed unable to obtain in the same manner person eligible appointed as were counsel. attorney present An room jury secrecy. shall take an oath of court, hearing, If the at an in camera determines that counsel disrup- was tive, then the court order counsel to remain outside courtroom advising when his client. No shall be permitted provide counsel in the room to more than one witness in the same criminal in- vestigation, except with the of the permission jury.” reading 16-5-204(4)(d), (1977

A close of section C.R.S. 1973 Supp.), reveals that the Assembly expand General intended to the protec and, grand juries, time, tions afforded witnesses before at the same to in secrecy grants sure continued of the process. The statute witnesses present have counsel during questioning witnesses, room extends that to all including However, those unable financially private to retain counsel. provisions designed to preserve secrecy grand jury, of the attorneys present room are to take the required traditional oath of secrecy prohibited and are from providing counsel to more than one wit single ness in investigation, except criminal permission grand jury.

The trial court held that the attorney’s oath requirement contained in 16-5-204(4)(d), section C.R.S. 1973 Supp.), was in- constitutionally grounds. First, firm on three was held to be violative of the equal protection clause of the Fourteenth Secondly, Amendment. provision was grand held to violate a jury right witness’ to the effective representation of counsel of his own choice. And finally, the require- ment was declared to be overbroad in violation of process guarantees. due addressing conclusion,

Before the trial court’s we are confronted with question concerning threshold possible existence and extent of a right witness’ to counsel prior to the enactment of section 16-5- 204(4)(d), C.R.S. Supp.). 1973 This inquiry crucial to a proper case, light determination of this of the fact that the trial court implicitly assumed that the prior practice grand of permitting jury witnesses to ab- sent themselves during questioning to consult with counsel outside the con- grand fínes of jury room remains available.

Under principles law, well-established constitutional jury witnesses cannot insist upon presence of counsel in the jury room. 564, 1768, United States v. Mandujano, 425 U.S. 96 S.Ct. 48 Groban, (1976); 330, L.Ed.2d 212 510, In re 352 77 U.S. S.Ct. 1 L.Ed.2d Downer, (1957); 264, 376 v. (1976). 192 Colo. 557 P.2d 835 498 out that: pointed Mandujano, supra, plurality States v.

United he could have assist- that if he desired was also informed “Respondent grand jury room. counsel, not be inside the that counsel could but ance criminal pro- of the law. No a correct recital plainly statement was That the Sixth Amend- against hence ceedings respondent, been instituted had . .” play. come into . right to counsel had not ment lacks a access to counsel also permitting practice The established Daniels, 461 F.2d 1076 States v. foundation. In United that he 1972), rejected indigent witness’ contention (5th the court Cir. room: counsel outside appointed was entitled to First, right it is clear there is claim to of counsel. “We deal first grand jury. before a In re appearing for witnesses right no to counsel 376, 330, 510, (1957). Groban, 333, 380 77 S.Ct. 1 L.Ed.2d 352 U.S. much, indigent argues that when an witness is ad- concedes as but Daniels attorney he must also advised that present, vised that he have an counsel, free appointed one will be for him his own provide he is unable defend- no such The need advise a simply requirement. of cost. There is stages only counsel arises at certain critical appointed ant of his ap- Daniels was not under indictment when he proceedings. criminal Merely because a or other ad- only he was a witness. peared; permit chosen to a witness to retain his own counsel body ministrative has omitted.) controlling.” (Footnote is not courts, however, recognized the accepted practice per have

Several to counsel outside the room mitting grand jury jury witnesses access E.g., and have to such an as a incorrectly “right.”1 referred opportunity denied, (2d 1968), United States cert. Capaldo, 402 F.2d Cir. 821 394 989, 1476, 22 United States v. De- U.S. 89 S.Ct. L.Ed.2d 764 1969). Sapio, (S.D.N.Y. 436 299 F.Supp. required by conclusion the established case law inescapable

The witnesses the opportunity is that courts have chosen to afford concerning his with an outside the room to consult Silbert, against See Counsel in the self-incrimination. privilege Defense —Jury Prayers, The Answer to the White Collar Criminal’s Grand a rea The established reflects 15 Am.Crim.L.Rev. of the traditional role of the and workable accommodation sonable protection compulsory and the interest of a witness to obtain grand jury L.Ed.2d Entrances (1966), Am.Crim.L.Rev. Federal Grand argument See context. and Exits (1964), See Jury legal generally, Escobedo v. been advanced that §7.5 Miranda v. and — (rev. Hixson, conceptual Witness National Lawyers Meshbesher, 2d ed. J. Reif Bringing Arizona, Representation basis to support Right 1977). Down The Curtain 384 U.S. Guild, to Counsel Illinois, a constitutional Representation in the Grand 378 U.S. Before 86 S.Ct. on the Absurd Drama Grand 478, of Jury Witnesses to counsel Jury, 16 L.Ed.2d 694 S.Ct. Room, 41 F.R.D. 1758, Before of legislative enactment. absence of a in the self-incrimination section 16-5- various of provisions of the scrutiny Close legislature intended (1977 reveals that the 204(4)(d), Supp.), C.R.S. expands which system and substitute a practice established to abolish the ef insuring while continued grand jury witnesses afforded protections the that attor requires Colorado statute grand The ficacy jury process. represent attorneys such secrecy prohibits take an neys investigation single criminal without witness in a ing more than one the to be Nothing purposes obvious than that is more jury permission. attorneys were routinely permitted evaded by the statute could served grand jury room and avoid the statute’s remain outside the to choose to conclude, therefore, witness’ counsel. We relating to provisions various concerning the provisions legislative comprehensive enactment negates grand jury assumption room appear of counsel to longer is to exist as an alternative. No that the continues prior room to consult counsel after the permitted witness to leave incriminating statutory proce The potentially question. asks a rights of the witnesses that only protect appear dure is intended to not directed at conservation of the time of jury, before the but is also affording witness the jury. By every counsel Assembly the General a means for jury proceeding, provided witness, avoiding rights every the constitutional while the de protecting leaving room to lay occasioned the witness consult counsel.

I. Equal Protection The trial court’s conclusion that the oath violated rights to under equal protection the Fourteenth Amendment to the United grounded States Constitution was in the incorrect assumption counsel could refuse take the oath and counsel outside the confines of upon assumption, room. Based the trial court found physically that counsel inside the room present impermis were sibly differently attorneys provided treated than who counsel outside classification, grand jury room. Absent a rational basis for the the court guarantees that equal protection concluded were violated. fallacy analysis upon assumption the court’s rests its that the legislative

prior practice continues as an alternative to the scheme. It does subject Consequently, not. statute does not create a classification challenge under the clause. equal protection

II. Choice Counsel expressly prohibition The trial court did not hold that 16-5-204(4)(d), multiple representation contained in section C.R.S. 1973 nonetheless, did, was It endorse the Supp.), unconstitutional. 500

argument precluded that the represent- ing particular jury investigation than one witness a more before therefore, and, right infringed upon the witness’ to counsel of his own disagree. choice. We

It is well-established that a defendant’s choice retained Seale, obstructed. United States v. unnecessarily counsel should not be Sheiner, (7th 1972); United States 461 F.2d 345 Cir. v. 410 F.2d 337 denied, 825, cert. (2d Cir.), 68, (1969). 396 U.S. 90 24 S.Ct. L.Ed.2d 76 guaranteed Amendment, however, The to counsel by Sixth does not include an United particular lawyer. absolute to counsel from a Poulack, denied, States (1st 1977), cert F.2d v. 556 83 Cir. 434 U.S. Robinson, 986, 613, United States v. (1977); 54 98 S.Ct. L.Ed.2d 480 denied, (5th 1016, cert. 1977), 735, 553 F.2d 429 Cir. 434 U.S. 98 S.Ct. Bernstein, United States (1978); 54 761 (2d L.Ed.2d F.2d v. 533 775 denied, cert. 1976), Cir. 429 U.S. 998,_S.Ct._,_L.Ed.2d Rundle, Carey _, (3d v. 409 cert. 1969), F.2d 1210 Cir. denied, 946, 964, 397 U.S. 90 S.Ct. 25 127 L.Ed.2d The court Rundle, Carey v. supra, set forth relevant consideration: “Desirable as it that a is defendant obtain counsel of private his own choice, goal be weighed that must and balanced an equally desira- public ble need for the efficient and effective administration of criminal justice. . .”. danger

The multiple representation inherent in directly witnesses implicates society’s interest in ef jury secrecy and matter, As fectiveness. a practical attorneys rarely totally will be able to eliminate what has been discovered in a prior when appearance offering counsel to subsequent witness. representation Successive of vari ous in single investigation witnesses will inevitably criminal result in the knowledge accumulation of helpful which is witness who is called to witness, testify however, No last. is entitled to be furnished with information to assist him in the evasion of issues or the concealment of facts. Pennsylvania Supreme recognized Court the potential impair

ment of jury secrecy which is multiple involved in representation Takiff, Pirillo 511, 462 Pa. on (1975), A.2d 896 affirmed reargument, Pa., (1975), appeal dismissed and cert. 352 A.2d 11 denied, 423 U.S. (1976): S.Ct. L.Ed.2d “It is also manifest in supervising judge the order of the no two of the subpoenaed witnesses who are parties petition may this be represented by the portion same counsel. This of the is essential order to secure the se- crecy grand jury proceeding. We do not mean to imply multiple representation Here, will never tolerated level. how- ever, defendant, each potential where witness was a and the Court received information testimony might each officer be expected witnesses, and where the extent the other one or more of incriminate to the activity known criminal cross-involvement possible multiple of se- requirements individual witnesses hidden from the Court but multiple judge rep- to permit crecy, inappropriate supervising it is resentation.” the of an upheld disqualification which have court decisions

Recent single in a than one witness sought represent to more attorney who balancing of the interests upon a investigation have been based grand jury grand jury society’s interest the and in before representation of the witness the Investigation In re investigations. grand jury in effective Before 1977, 1977); Jury, (4th Lynchburg Grand F.2d 652 Cir. February, 563 supra; Takiff, Pirillo v. 1976); (5th re F.2d 262 Cir. Gopman, In 531 Jury Grand Multiple Representation Supervising Note, see of Witnesses, Investigation re court, in (1977). 57 B.U.L.Rev. 544 1977, Jury, supra, Grand determined February, Lynchburg the Before in a par- of may multiple representation the favor the denial balance case: ticular The first case, principles. we a conflict of two whole think there is

“On the in attorney to representation is the entitlement the witnesses one procedural federal law or whether a matter of grand jury proceedings as grand jury right pursue is the to its right. The second the functions, the to investigation right public every the which includes right to testimony. forgotten And not to be the courts con- man’s officers, two come in con- attorneys. principles their own the ‘When trol other, give the both reasonable construc- with each court must them a flict Mandujano, tion, extent.’ 425 so both to a reasonable preserve as to them 590, concurring (Mr. Brennan and at 96 S.Ct. at 1783. Justice p. p. U.S. Burr, 38, 39, States v. 25 No. 14692 United pp. from Fed.Cas. quoting (C.C.Va. 1807)). conflict of interest (e) appears We think when a investigative record, here, grand jury’s may it does which affect the the as witness, testimony of a that the public of may deprive function and discretion, court, action to remove the appropriate take may district its And conflict, judge did in this case. we think this which is all the district lawyer. It particular it a of a may although may deprive witness done all, prin- and both represented him of the to be so deprive does not may as well as be.” ciples preserved are detri the potential

Our General confronted Assembly, grand jury secrecy and effi upon impact multiple representation mental the various interests. All a accommodation of cacy, effected reasonable counsel, statutorily entitled to al a are now witnesses before attorney. No though necessarily particular the advice of a room, however, represent may provides who counsel without single investigation one witness in more than against multiple was intended representation The prohibition permission. and preserve secrecy process effectiveness of the was constitutionally permissible limitation to counsel.

III. Due Process ground The third trial court’s decision was that the process protections. violated due previously We have legislative held that a statute which bears no rational relationship sought end to be achieved process violates due is unconstitutional. Taylor, Moreover, People (1975). 189 Colo. 540 P.2d 320 a stat narrowly legislative ute must be drawn to effect purpose and must not Tersch, See v. Von be overbroad. 180 Colo. P.2d In United States v. Amazon Industrial Chemical Corp., F.2d 1931), (D.Md. following court articulated the reasons for jury secrecy:

“(1) prevent To escape of those whose indictment be contem- (2) plated; insure the utmost freedom to its delibera- tions, subject and prevent persons to to indictment or their friends from grand jurors; (3) importuning the prevent to of perjury subornation or with the witness who tampering testify before jury and later it; appear (4) encourage the trial of those indicted by to and free un- by trammeled persons disclosures who have with respect information to crimes; (5) the of protect commission to the innocent accused iswho exon- erated from of disclosure the fact that he has been investigation, under standing and from of expense no trial where there was probability of guilt.” States, Pittsburg

See also Plate Glass Co. United 395, v. U.S. re Biaggi, S.Ct. 3 L.Ed.2d 1323 (2d 478 F.2d 489 Cir. 1973).

We find statutory that the oath requirement rationally re to legitimate lated further the jury secrecy. interest in All attorneys take prior being must the oath to allowed to counsel to a witness. general The statute simply extends the rule that all persons associated with the be sworn to secrecy. See Crim. P. jury process 6.2, 6.3.

Similarly, the does proscribe not constitution ally protected rights. We any have been cited case which holds that grand jury the interest in secrecy is superceded speech free considera tions. Consequently, we find trial court’s conclusion without merit.

Accordingly, ruling is reversed.

MR. CHIEF concurring JUSTICE PRINGLE part dissenting in and in part.

MR. JUSTICE GROVES MR. JUSTICE CARRIGAN dissent- ing. concurring: dissenting JUSTICE PRINGLE

MR. CHIEF that which holds majority opinion of the portion from that I dissent effected 16-5-204(4)(d), Supp.) C.R.S. 1973 of Section enactment to con- grand jury witness of a permitting implied repeal an concerning potentially room grand jury with outside attorney an sult incriminating questions. re- majority provisions that opinion agree portion

I with the of se- an oath room to take grand jury attorney present quiring are crecy valid. has the jury that the agree majority position

I do not before a two or more clients lawyer representing a to forbid power counsel right employ has any I think citizen a grand jury. him. not be- represent I do that counsel wishes to providing his choice right. authority deprive him that has the any lieve dissenting: MR. JUSTICE CARRIGAN

I dissent. respectfully holding

First, majority opinion’s with the I take issue room, with counsel outside in no witnesses have consult held, we providing right. of a such a While have absence statute Downer, (1976), People 557 P.2d 835 a Colo. inside presence

witness insist on the his may not room, whether, issue inde- we have never addressed the fundamental counsel outside statute, a witness a to consult pendent neg- opinion passing assumes in majority room. The effect virtually question, answer to that crucial threshold without discus- ative sion. that,

I aware four members of the United plurality opinion, am that the Sixth Amendment does not States Court have asserted Supreme jury at that guarantee witness counsel inside a room because him. yet against no have been instituted point proceedings” “criminal Mandujano, 564, 1768, United States v. 96 S.Ct. 48 L.Ed.2d 425 U.S. (1976). precedent. But not And not even a plurality opinion plu- 212 a is Mandujano right is rality opined that there no constitutional court Brennan, joined to counsel outside by In room. fact Justice result, Marshall, concurring opinion that pointed Justice out of a Supreme squarely presented question Court case had ever no 603, 1789, Id. right 96 S.Ct. at 48 grand jury witness’ to counsel. out, legal many 238. scholars have pointed L.Ed.2d at As Justice Brennan right argued there well be a constitutional to counsel before the that right counsel its expanding in view of to and “substantive affinity” consequent privilege “co-extensiveness” with the to and And see self-incrimination. Ibid. Id. n. 20.

504 if the Supreme

Even Court had decided that United States Con- witnesses, guarantee stitution does not counsel to there would right guaranteed question remain serious whether such a is the Col- Constitution, II, 18, orado either in Article sections 16 and or elsewhere. that, courts, federal, It has been well said “State no than less are and ought to guardians be the that, of our liberties.”1 Therefore it follows “State courts cannot rest they when have afforded their full citizens the constitutions, protections of the too, federal constitution. State are a font liberties, of individual their protections extending beyond often re- those quired by Supreme interpretation Court’s of federal law.”2

This court previously recognized that it free is to evoke state con- provisions adopting protections stitutional broader of fundamental rights espoused by than those E.g., Supreme United States Court. Hayhurst, v. 292, (1977). 194 Colo. 571 P.2d 721

My point in exists necessarily that there a constitutionally guar- right anteed counsel in jury proceedings. My point is rather that this court merely should not right exists, assume no such and base — — holdings other on assumption. right it exists is im- too portant be brushed aside so lightly. Rather we should directly confront question carefully decide the after considering the authorities which acknowledged have that there freely consult with counsel im- See, mediately e.g., outside the United States v. room. Capaldo, 402 F.2d 821 (2d 1968); United States v. DeSapio, 299 Cir. (S.D.N.Y. 1969). 436 F.Supp. majority recognizes,

As the opinion itself strong arguments there are Illinois, that Escobedo v. 478, 1758, 378 U.S. 84 S.Ct. 12 L.Ed.2d 977 Arizona, and Miranda v. (1964), 436, 1602, 384 U.S. 86 S.Ct. 16 (1966), L.Ed.2d legal 694 conceptual for holding basis there is a Major- to counsel in the context. ity (at 5, 494, opinion, n. 1 p. slip opinion) 195 Colo. P.2d 580 25. See also the persuasive argument of Mr. Justice Brennan United Mandujano, States 564, 602-09, 1768, 425 U.S. 1789-1792, 96 S.Ct. 212, (1976) L.Ed.2d 237-242 (concurring opinion). my opinion, the answer to question this is neither so clearcut nor obviously well-settled as majority opinion would seem to indicate. The well-documented,3 and potential and have been reality abuse Brennan, Rights, W. State Constitutions and the Protection Individual 90 Harv. L. Rev. Mosk, (1977). Rights, See also S. The New States’ L. Calif. Enforcement 2 90 Harv. L. Rev. at 491. Rodis, Abuse, E.g., Lawyer's Jury (1978); A Guide to Grand 14 Crim. L. Bull. 123 Shannon, Jury: Agency The Grand True Tribunal the or Administrative the Prosecutor?, Note, Jury Proceedings: 2 New Mexico L. Rev. 141 Grand The Prosecutor, Judge, Influence, the Trial and Undue 39 U. Chi. L. Rev. 761 this real warrants our close of the need danger consideration for protection hold, the of witnesses before those bodies. To as the court does rights that there is no at today, grand counsel jury proceed- is a ings, dangerous precedent.

Second, assuming even to enactment arguendo prior that of section 16-5-204(4)(d), consulting C.R.S. 1973 counsel outside the Supp.), grand right, jury only “practice” strongly disagree room was and not a I majority opinion’s premise with the that enactment of that statute effected “implied repeal” long-standing practice. an The prior practice was the certainly passage, any legisla- well-known at time the statute’s tive intent to render new statutory procedures easily exclusive could have been The lack of expressed. any expression such evinces an intention that the established remains as an alternative. statute, construing any starting must be the point plain, ordi-

nary meaning Assembly of the words chosen the General its express intention. 16-5-204(4)(d) language clearly

The of section reflects an intent that to, of, procedures prior prac- its be alternatives rather than exclusive that a example, provides tice. For the statute witness “shall be entitled to during any being' of counsel time that witness is ques- assistance such presence grand jury,” tioned in the of such but states that “counsel during present question- in the room with his client such ing.” added.) (Emphasis language

This in the juxtaposition mandatory permissive same clearly statutory right sentence indicates an intent to to the as- counsel, inside permit jury sistance of but to the use of counsel however, option. majority opinion, room at witness’ misconstrues language this that if plain require a witness desires assistance of all, counsel at counsel must function within the room and jury subject therefore be to the oath and the limitation on repre- senting multiple clients. (d) 16-5-204(4)

With similar section import, states “[ajttorney present in the shall take an oath of se- room crecy.” added.) (Emphasis Obviously language implies that an attor- ney “present not in the room” need not take the oath. Had the legislature intended the adopted by majority opinion construction attorneys statute would have the oath of all simply required representing jury proceedings, just “present clients of those in the Rather, concluded, room.” statutory language as the trial court that an clearly implies attorney may choose not to take oath and meet his client outside the room.

Similarly, language and with the same other of the statute import, prohibits multiple attorneys “provide client who counsel representation added.) language This (Emphasis implies room.” multiple representation imposed

there are no restrictions on client on at- room, counsel outside torneys attorneys who since such not hear the and would not be able jury proceedings would therefore to communicate what has been heard to other clients who are scheduled to grand jury, implication as later witnesses before the accords appear of purpose protect secrecy jury proceedings. with statute’s to recognize principles statutory While I of construction dictate fairly that a statute to more than one susceptible interpretation should to uphold constitutionality, possible, construed so as its I am equally obligation mindful of our to the state constitution. In uphold only this case 16-5-204(4)(d) a strained construction of section can support the conclu- sion that procedures its were intended to be exclusive and to forbid the prior practice. majority opinion, attempting strong The to avoid the statute, challenge equal protection ignores raised simply language. statute’s plain my opinion, In we should seek to determine the clearly stated intent of the by any statute unburdened concern for the con- Then, then, stitutional consequences. only and should we consider and de- cide equal protection claim. majority

Even if the opinion’s 16-5-204(4)(d) construction of section correct, were attempt the statute’s to forbid lawyers representing two consent, or more clients before a jury, grand jury’s without the un- constitutionally infringes regulate on this court’s to authority practice of law. regulation

It is well-established that of law practice in Colorado is a Buckles, exclusively matter province of this court. Denver Bar Association v. Public Colo. 453 P.2d 404 Commission, Utilities 154 Colo P.2d Attempted power by exercise of that any body other violates the constitutional doc- Const., trine of powers. Colo. separation of Art. III. unduly statute here in question restricts the of every person

to free choice of an attorney. Moreover it encroaches on this court’s au- thority regulate to attorney’s representation multiple of clients by purport- ing empower each jury to determine whether each ap- pearing permitted before it will be represent more than one client. Prior statute, to enactment of representation this of multiple clients in the same matter was only by court, limited the canons of promulgated ethics by this e.g., the conflict of interest restrictions set out in Canon 5 of the Code of Professional Responsibility. Under those canons several clients who de- sired to be represented by in a matter attorney, the same whether to eco- otherwise, legal nomize on fees or were free to so elect. Even if there were among clients, conflict of interest multiple they could all employ same attorney provided they joint consented representation to the full with Now, knowledge of the attorney’s right conflict. to represent more than one uniform, client before a jury depends, merely on court, guidelines on statewide established this but the vicissitudes temporary, grand jury, by any deciding each local unrestrained rules in not, attorney may, which and which more represent than one client. effect, 16-5-204(4)(d) section regulation aspect removes one power law from the supervisory places this court it in lay jurors hands of various groups unassociated this court unguided by any legislature’s power regulate standards. The grand jury system,4 judiciary’s not authorize with does it to interfere the long-recognized authority regulate exclusive to of the law. legislative is this infirmity justified by

Nor recitation the of interest the preserving secrecy grand jury proceedings. denying of Without va- the concern, legislative may by that it a lidity of nonetheless be effected judicial that unconstitutionally means invades If the prerogatives. legisla- governing attorneys ture feels that additional rules are needed to protect due co- secrecy, appropriate, respect mutual between equal, government branches of need be requires brought ordinate that that to this together any suggested court’s attention to the gov- additions rules erning conduct of attorneys.

Today’s majority 16-5-204(4)(d), of section interpretation by forbid- any one ding attorney representing one more than wit- ness, impose legal will needless of expense duplication services. Grand (e.g., nearly witnesses with identical interests a many members of union) will to separate labor each have retain and a pay attorney pre- to appear there of pare proceedings, even where is no conflict suggestion attorney There interest. has been no of misconduct requiring might rule. who Any attorney by this new misconduct violate secrecy justice rules or otherwise of prejudice administration before can be grievance dealt with this court’s A committee. blan- against ket prohibition by legislature representation unjust- multiple impermissible. ified and assuming arguendo

Finally, general even assembly that the possesses regulate power to client multiple representation juries, before 16-5-204(4) adopted (d) obviously the method un- section amounts to delegation constitutional power. general legislature validly delegate

As rule the legislative body to an if power only provides administrative it sufficient to standards State, power. E.g., Elizondo guide the exercise of 194 Colo. 570 P.2d case, however, general delegated

In this assembly has one aspect body to be regulate is to power jury system regulated, and, done so with no limitation on any addition, has Const., II, Colo. Art. Sec. 23. grand jury, a non- The result is that each power. of that

jury’s exercise citizens, and unfet- granted complete been lay continuing body basis whether a entirely partic- ad hoc to determine on an tered discretion one client. There more than permitted represent will be ular guide or restrict exercise absolutely no standards procedural are safeguards its abuse. and there are no power, Therefore, multiple clients before representation even if control, grand juries legislative and even were juries were a matter for legislative could agencies power appropriately to which administrative 16-5-204(4)(d) delegation by section would still be delegated, the effected governing principles a blatant violation of well-established State, legislative supra. Elizondo v. delegation powers. joins GROVES in this to state that MR. JUSTICE

I am authorized dissent.

No. 27746 Colorado; John C. Peterson v. Ground Water Commission State Kuiper, Engineer C. J. Colorado State and Executive Director of the Ground Commission of the State of Colorado Water 629) P.2d Rehearing June denied Decided 1978. June 1978.

Case Details

Case Name: People Ex Rel. Losavio v. J. L.

Court Name: Supreme Court of Colorado

Date Published: Jun 5, 1978

Citation: 580 P.2d 23

Docket Number: 27933, 27892

Court Abbreviation: Colo.