In re 2010 Denver Cnty. Grand Jury

• Decision Date: 15 March 2012
• Docket Number: No. 11CA0146.,11CA0146.
• Citation: 296 P.3d 168
• Parties: In re 2010 DENVER COUNTY GRAND JURY, and Concerning the Grand Jury Report Issued December 8, 2010.
• Court: Colorado Court of Appeals

296 P.3d 168

In re 2010 DENVER COUNTY GRAND JURY, and Concerning the Grand Jury Report Issued December 8, 2010.

No. 11CA0146.

Colorado Court of Appeals, Div. II.

March 15, 2012.

Scott W. Storey, District Attorney, Mark Pautler, Senior Chief Deputy District Attorney, Thomas M. Jackson, Chief Deputy District Attorney, Golden, Colorado, for Appellant.

Haddon, Morgan and Foreman, P.C., Jeffrey S. Pagliuca, Cleo J. Rauchway, Denver, Colorado, for Denver District Court.

Mitchell R. Morrissey, District Attorney, Joseph M. Morales, Chief Deputy District Attorney, Denver, Colorado, for Interested Party Denver District Attorney's Office.

Douglas J. Friednash, City Attorney, Stuart Shapiro, Assistant City Attorney, Karla J. Pierce, Assistant City Attorney, Denver, Colorado, for Interested Party City and County of Denver.

Opinion by Judge CASEBOLT.

¶ 1 This appeal concerns the potential public release of a report, issued by a grand jury, which declined to return an indictment in an investigation involving alleged perjury. Special prosecutor Scott W. Storey, the First Judicial District Attorney, appeals the court's order declining to release the report, contending that the report meets the “public interest” criteria of section 16–5–205.5, C.R.S.2011. He also asserts that the court erroneously refused to extend the term of the grand jury so that it could consider whether to modify its report. We conclude that the report does not address “allegations of misfeasance” within the meaning of section 16–5–205(5), and therefore the report will not be published. We also conclude that the court did not err in refusing to extend the term of the grand jury. Hence, we affirm the orders of the district court.

¶ 2 We have decided to publish this opinion because what constitutes misfeasance presents an issue of first impression involving statutory construction. SeeC.A.R. 35(f). However, because of the secrecy requirements applicable to the grand jury proceedings, seeCrim. P. 6.2 (the oath of secrecy continues until an indictment is issued or a report is made public), we are not publishing our application of the misfeasance standard to the grand jury report. Instead, we are concurrently issuing a nonpublished opinion, under seal, to the special prosecutor and counsel for the court and interested parties, which contains the application of the law to the particular facts involved.

I. Background

¶ 3 A Denver County grand jury convened in September 2010 to investigate allegations of perjury by a police officer. The grand jury did not return an indictment. It did, however, issue a report concerning its investigation, which identified purported deficiencies in policies and procedures relating primarily to the Denver Police Department. The grand jury sought to make the report public pursuant to section 16–5–205.5. That statute states, in pertinent part, that a grand jury report may be released to the public when such release would be in the “public interest.” The statute provides that release is deemed to be in the public interest only if the report addresses one or more of the following: (a) allegations of the misuse or misapplication of public funds; (b) allegations of abuse of authority by a public servant; (c) allegations of misfeasance or malfeasance with regard to a governmental function; or (d) allegations of commission of a class 1, class 2, or class 3 felony. § 16–5–205.5(5).

¶ 4 Grand jurors and the special prosecutor certified that the report met these statutory criteria and that its release would be in the public interest. The court, however, concluded that the report did not meet the public interest criteria and refused to release it.

¶ 5 The special prosecutor then moved to extend the term of the grand jury so that it could review and modify its report in light of the court's order. The court denied that motion without comment, and this appeal followed.

II. Release of Report

¶ 6 The special prosecutor asserts that the grand jury report contains allegations of government misfeasance within the meaning of section 16–5–205.5(5) and therefore should have become a public document. The statute does not define “misfeasance,” and the parties disagree over the definition we should apply. Accordingly, we must first consider how Colorado law defines “misfeasance” in a governmental function, and then decide whether the grand jury's report meets that standard.

A. Standard of Review

¶ 7 When determining whether to release a grand jury report,

[t]he role of the trial court is to review the report independently to determine whether, on its face, the report satisfies the requirement that it concern matters of public interest, as defined in the statute. By that review, the trial court is measuring the certification of the grand jury foreperson and the prosecuting attorney against the facts contained in the report.

In re 2000–2001 District Grand Jury, 22 P.3d 922, 928 (Colo.2001)( Grand Jury I ). Thus, “[t]he trial court's role in reviewing the grand jury proceedings is limited.” Id. at 926.

The statute does not authorize the court to inquire into the underlying facts that comprise the report, except to the extent that the court must determine that the certifications of the grand jury foreperson and prosecuting attorney are borne out by the report: specifically, that the report contains matters of public interest within the narrow definition of the statute.

Id.

¶ 8 We review the trial court's decision concerning release of a grand jury report as a mixed question of law and fact. In re 2003–2004 Term of State Grand Jury, 148 P.3d 440, 445 (Colo.App.2006). We review de novo the court's application of the governing statutory standards, but we will not disturb the trial court's findings of fact unless they are clearly erroneous and not supported by the record. Id.

¶ 9 Like the trial court, we limit our review to the face of the report and any attachments. Grand Jury I, 22 P.3d at 928. We may not “inquire behind the report” into underlying factual disputes or rely in any way upon sealed records or transcripts. Id. Instead, we must “measure the statutory sufficiency of the report by reviewing only the report itself and the accompanying certifications and responses.” In re 2000–2001 District Grand Jury, 97 P.3d 921, 926 (Colo.2004)( Grand Jury II ).

¶ 10 Interpretation of a statute presents a question of law that we review de novo. Robles v. People, 811 P.2d 804, 806 (Colo.1991). When interpreting a statute, “[o]ur objective is to effectuate the intent and purpose of the General Assembly.” Lobato v. Indus. Claim Appeals Office, 105 P.3d 220, 223 (Colo.2005). To discern legislative intent, we look first to the plain and ordinary meaning of the statutory language. People v. Madden, 111 P.3d 452, 457 (Colo.2005).

B. Law

¶ 11 The Colorado Constitution expressly delegates the power to regulate the grand jury to the General Assembly. Grand Jury I, 22 P.3d at 925 (citing Colo. Const. art. 2, § 23); de'Sha v. Reed, 194 Colo. 367, 371, 572 P.2d 821, 823 (1977).

¶ 12 In 1997, the General Assembly enacted section 16–5–205.5, summarized above, which has a number of procedural safeguards protecting against imprudent issuance of reports:

Specifically, a grand jury report may only issue if at least the same number of jurors required to return an indictment agree to file the report. § 16–5–205.5(1). Further, both the foreperson and the prosecuting attorney must certify that the grand jury has determined that the release of the report is in the public interest in accordance with the statute. § 16–5–205.5(4)(b). Within ten days of receiving the report, the prosecuting attorney must notify the parties named in the report so they may review it and submit a response. § 16–5–205.5(3). After the time for submission of responses, the prosecutor then submits the report to the court. § 16–5–205.5(4). The court must examine the report and make an order accepting and filing the report if the court is satisfied that the grand jury followed statutory procedures.

Grand Jury I, 22 P.3d at 926.

¶ 13 Thus, section 16–5–205.5 balanced the need to keep grand jury proceedings secret against the interest in allowing the grand jury to inform the public “about ‘government actions that fall short of criminal activity, but are nonetheless not good government.’ ” Id. at 927 (quoting Hearing on HB 97–1009 before Sen. Judiciary Comm., 61st Gen. Assemb., 1st Sess. (Jan. 21, 1997) (statement of Bill Ritter, Jr., District Attorney for Second Judicial District)); see Grand Jury II, 97 P.3d at 926. Recognizing both the dangers and benefits of releasing a grand jury report where no indictment is returned, the statute's drafters attempted to balance those competing interests. Grand Jury II, 97 P.3d at 927.

¶ 14 Historically, the grand jury has been given broad power as an investigative and accusatory body to “ferret out criminal activity.” Grand Jury I, 22 P.3d at 924 (quoting Gher v. Dist. Court, 183 Colo. 316, 319, 516 P.2d 643, 644 (1973)). Consequently, “[a] grand jury is accountable to no one and should not be used as a super-legislative body or to express views on political issues.” Id. (quoting In re 1976 Arapahoe County Statutory Grand Jury, 194 Colo. 308, 310, 572 P.2d 147, 148 (1977)). In cases involving acts of police officers, political corruption, reluctant witnesses, and organized crime, however, the grand jury provides a “necessary and worthwhile service” by ensuring impartiality in the charging process. Losavio v. Kikel, 187 Colo. 148, 151, 529 P.2d 306, 308 (1974).

¶ 15 The court in Grand Jury I, for example, held it proper for a grand jury investigating election law violations by city officials to issue a public report on its findings despite its decision not to return an indictment. Grand Jury I, 22 P.3d at 929. Although the court observed that “[t]he allegations that the report addresses concern matters that are within the statutory definition of ‘public interest,’ ” it did...