Criminal Investigation, 7th Dist. Court No. CS-1, Matter of

• Decision Date: 31 March 1988
• Docket Number: No. 20268,CS-1,20268
• Citation: 754 P.2d 633
• Parties: In the Matter of a CRIMINAL INVESTIGATION, 7TH DISTRICT COURT NO.
• Court: Utah Supreme Court

Page 633

754 P.2d 633

In the Matter of a CRIMINAL INVESTIGATION, 7TH DISTRICT COURT NO. CS-1.

No. 20268.

Supreme Court of Utah.

March 31, 1988.

David L. Wilkinson, Paul M. Warner, Stanley H. Olsen, Robert N. Parrish, and Suzanne M. Dallimore, Salt Lake City, for appellant.

Donald B. Holbrook, George W. Pratt, and Elizabeth M. Haslam, Salt Lake City, for respondents Maxfield, Stott and Colby.

Max D. Wheeler and Rodney R. Parker, Salt Lake City, for respondents Thompson, Conklin, Ziemski, Bowman, Mike Thompson & Associates, Guardex, Alarmex and Vanguard, Inc.

Stephen B. Nebeker and John A. Adams, Salt Lake City, for respondent Utah Power and Light Co.

F. Robert Reeder, Francis M. Wikstrom, and Michael L. Larsen, Salt Lake City, for respondent Emery Mining Corp.

Sumner J. Hatch, Salt Lake City, for respondent Fletcher.

ZIMMERMAN, Justice:

Utah's attorney general appeals from a final order of the Seventh Judicial District Court holding unconstitutional an act entitled Subpoena Powers for Aid of Criminal Investigation and Grants of Immunity ("Subpoena Powers Act" or "Act"). Utah Code Ann. §§ 77-22-1 to -3 (1982). The Act creates a second method for formally investigating criminal activities in addition to the already authorized state grand jury. It provides the attorney general and county attorneys with the power to subpoena witnesses, grant transactional immunity, and conduct investigations in secret, all with limited judicial supervision.

Beginning in 1983, the attorney general used the powers conferred by the Act to conduct an investigation into alleged criminal activities involving security operations at Utah Power and Light Company ("UP & L"). The investigation led to the filing of criminal charges. The respondents in this appeal are various individuals and companies that challenged subpoenas issued to them during the investigation. The district court dismissed the criminal investigation, ruling that the Act is facially unconstitutional and was unconstitutionally applied because it fails to provide for adequate judicial review to protect against abuse of power, is too vague, and fails to protect rights of due process and privileges against self-incrimination.

We agree that the Act was unconstitutionally applied and affirm the dismissal of the UP & L investigation. However, we reverse the lower court's ruling that the Act is facially unconstitutional because we find that the Act is subject to an interpretation incorporating a number of substantive and procedural safeguards which bring the Act into constitutional compliance.

I. The Subpoena Powers Act

The Subpoena Powers Act was passed in 1971 upon a legislative determination that there had been "a marked increase in crime and criminal activity within this state." Utah Code Ann. §§ 77-45-19 to -21 (1971). As amended and recodified in 1980, the Act's purposes are to

grant subpoena powers in aid of criminal investigations and to provide a method of keeping information gained from investigations secret both to protect the innocent and to prevent criminal suspects from having access to information prior to prosecution and to clarify the power ... to grant immunity from prosecution to witnesses....

Utah Code Ann. § 77-22-1 (1982). The express provisions of the amended Act ¹ allow the attorney general and county attorneys (hereinafter referred to conjunctively as "state's attorneys"), upon a showing of good cause, to receive approval from a district court for carrying out a criminal investigation. Once an investigation is approved, the state's attorney may, without additional court authorization, subpoena witnesses to testify or produce other evidence, where such evidence "may be relevant to the investigation in the judgment of the attorney general or county attorney." Id. at § 77-22-2(1).

The only notice expressly required to be given to a subpoenaed person is of the time and place of the interrogation, that it is "in aid of criminal investigation," and that he or she has a right to counsel. Id. at § 77-22-2(2). There is no express provision that those served with subpoenas must be notified of any right to challenge the subpoena, of a privilege against self-incrimination, or of a right to have further information about the nature of the investigation.

The Act allows any district court, upon written application of the state's attorney, to impose secrecy orders excluding nonessential persons from "any investigative hearing or proceeding" and requiring that the interrogation of any witness be held in secret and that the record of "such proceeding be secret." Id. at § 77-22-2(3). The secrecy orders are to remain in effect until the court for good cause directs otherwise. Section 77-22-3 gives state's attorneys the power to grant transactional immunity to witnesses ² and provides a contempt procedure for compelling testimony from a person who refuses to comply "on the ground that he may be incriminated thereby."

II. The UP & L Investigation

On January 26, 1983, Judge Bunnell of the Seventh Judicial District Court in Emery County, on application by the attorney general, authorized the investigation of criminal activities pursuant to the Subpoena Powers Act. The scope of the investigation was set forth in a good cause affidavit, signed by a special agent of the attorney general, that accompanied the application. The affidavit stated that on the basis of a confidential report prepared by the Utah Department of Business Regulation's Division of Public Utilities, interviews with unnamed sources, and an investigation of UP & L, the affiant had concluded that certain of UP & L's assets had been stolen. The affidavit described the stolen assets as UP & L's labor and materials. The affidavit further alleged that the theft of these assets had been accomplished by kickbacks, payoffs, bid-fixing, falsification of shipment and delivery information, personal use or sale of UP & L property, and threats.

After determining that the statutory requirement of "good cause" to conduct an investigation had been shown, the district court authorized the attorney general to begin the criminal investigation. The court further authorized the attorney general to issue subpoenas compelling the attendance and sworn testimony of witnesses and the production of books, records, and other tangible items that constitute evidence "which is or may be relevant or material" to the investigation. Finally, the district court ordered that the Act's secrecy provision should apply to the record, to the "proceedings" of the investigation, and significantly, to the good cause affidavit.

Pursuant to this grant of authority, the attorney general's staff issued numerous subpoenas during 1983 and 1984. According to the attorney general, the majority of the subpoenas were directed to banks, state agencies, and other document repositories. In addition, the attorney general directed subpoenas to each of the respondents to this appeal: UP & L, certain officers and employees of UP & L, ³ Emery Mining Corporation, which operates UP & L's coal mining properties, and individuals associated with companies, as well as the companies, that provided security services to UP & L. ⁴

Each of the subpoenas stated that it was "authorized by order of the District Court" and that "[d]isobedience to this order is punishable by contempt of Court." None of the subpoenas issued described the nature or scope of the investigation, nor were any of the respondents informed as to the general subject matter of the attorney general's investigation. None of the respondents were informed that they were targets of the investigation. Some were told prior to their interrogation or production of documents that they had the right to exercise their privilege against self-incrimination. During the course of the investigation, the attorney general instructed witnesses that the secrecy provisions of the Act prohibited their speaking to anyone other than their counsel about the proceedings.

In April of 1984, the State filed criminal bribery, racketeering, and antitrust charges, as well as civil antitrust claims, against UP & L's former corporate security officer and individuals associated with the security service companies, alleging that they had unlawfully secured contracts for security services between those companies and UP & L. The criminal investigation authorized by the district court continued after these charges were brought.

The following month, UP & L and certain officers and employees of UP & L, all respondents here, filed motions for protective orders and motions to quash subpoenas. Respondents argued that the Subpoena Powers Act is unconstitutional on its face and as applied. They maintained that the Act is vague, permits unreasonable searches, and violates witnesses' privileges against self-incrimination because it does not provide for adequate disclosure to subpoenaed witnesses concerning whether they are targets of the investigation and the nature of the matter being investigated. They further claimed that the attorney general was misusing his authority to conduct a criminal investigation by issuing subpoenas under the Act for purposes actually related to civil discovery.

At a May 30, 1984, hearing on these motions, the district court denied the motion to quash. The court ruled that the Act would be presumed constitutional provided that the prosecutors (i) inform subpoenaed witnesses whether they were targets of the investigation, (ii) inform targets of the nature and scope of the matter under investigation, and (iii) conduct the investigation within the parameters of the good cause affidavit. Finally, the district court instructed the state's attorneys not to use the information obtained under the Act for purposes of civil discovery.

In June, the criminally and civilly charged respondents moved to quash subpoenas directed to them, arguing that the subpoenas were overly broad and that it was improper to issue them...