In re Davis

• Citation: 423 P.3d 1044
• Decision Date: 08 June 2018
• Docket Number: No. 118,410,118,410
• Parties: In the MATTER OF the Petition to Summon a Grand Jury Filed by Steven DAVIS.
• Court: Court of Appeals of Kansas

423 P.3d 1044

In the MATTER OF the Petition to Summon a Grand Jury Filed by Steven DAVIS.

No. 118,410

Court of Appeals of Kansas.

Opinion filed June 8, 2018.

Steven Davis, appellant pro se.

No appellee brief.

Before Arnold–Burger, C.J., Green, J., and Hebert, S.J.

Arnold–Burger, C.J.:

It is solely the province of the Legislature to make, amend, or repeal laws. The role of the judiciary is to interpret and apply those laws in actual controversies. The wisdom of a statute is not the concern of the courts. See INS v. Chadha , 462 U.S. 919, 944, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983).

We are asked today to decide what is meant by the subject-matter requirement in our Kansas statutes that a citizen-initiated grand jury petition set out "sufficient general allegations to warrant a finding that such inquiry may lead to information which, if true, would warrant a true bill of indictment." K.S.A. 2017 Supp. 22-3001(c)(2). We are also asked to apply that interpretation to the facts of this case. We are asked to do this because Steven Davis filed a petition to summon a grand jury alleging that Kansas Secretary of State Kris Kobach and others engaged in various election crimes. The district court dismissed his petition, holding that he failed to allege specific facts in his petition. Davis appealed. He asserts that in denying his petition the district court misinterpreted the statute in two key ways.

First, Davis argues that the subject-matter provision in K.S.A. 2017 Supp. 22-3001(c)(2) is directory rather than mandatory so he need not list specific allegations. In other words, when the statute uses the phrase "shall state" in referring to the contents of the petition it really means "may state." But, an analysis of the applicable caselaw leads us to conclude that the provision is mandatory. To be valid, a petition must comply with the subject-matter provision. So it must contain "sufficient general allegations to warrant a finding that such inquiry may lead to information which, if true, would warrant a true bill of indictment." K.S.A. 2017 Supp. 22-3001(c)(2).

Second, Davis argues that the district court misinterpreted the statute by requiring that his petition contain specific allegations of a crime, when only general allegations are required by the statute. His argument on this point is persuasive. The statute requires only general allegations, not specific allegations as the district court held. Moreover, because Davis' petition meets this standard, the district court erred in denying his request to summon a grand jury. As a result, we reverse and remand with directions.

FACTUAL AND PROCEDURAL HISTORY

In August 2017, Davis filed a petition to summon a grand jury under K.S.A. 2017 Supp. 22-3001(c). His petition stated:

"The grand jury shall investigate Kansas Secretary of State Kris Kobach and any of his subordinates, employees, and other affiliated persons carrying out duties related to the management of voter registration data for allegedly:

1. Destroying, obstructing, or failing to deliver online voter registration applications in violation of K.S.A. 25-2421a,

2. Possessing falsely made or altered registration books in violation of K.S.A. 25-2420,

3. Preventing qualified electors from voting in violation of K.S.A. 25-2419, and4. Being grossly neglectful with respect to their election duties in violation of K.S.A. 24-2419.

"The grand jury may further inquire into other alleged violations of law, by these or other individuals, which arise as part of the same investigation."

The County Clerk of Douglas County certified that Davis' petition had enough signatures. Even so, the district court dismissed Davis' petition without prejudice, holding:

"Wherefore, the petition has been reviewed by a majority of the district judges of the Seventh Judicial District pursuant to K.S.A. 22-3001(c)(3) to determine if the petition is in proper form. And, being well and fully advised in the premises, this court finds that the petition is not in proper form, based on the following:

"1. K.S.A. 22-3001(c)(2) requires that a petition contain, among other things, ‘sufficient general allegations to warrant a finding that such an inquiry may lead to information which, if true, would warrant a true bill of indictment.’

"2. While the other requirements of K.S.A. 22-3001(c)(2) have been met , the petition contained no allegations of specific facts that would warrant a finding that the inquiry might lead to information which, if true, would warrant a true bill of indictment." (Emphasis added.)

Davis appealed. Davis gave notice to the Kansas Attorney General of the appeal, although there does not seem to be any requirement in the statute that the State or district attorney receive notice or respond. The Attorney General did not seek to intervene in the case. As a result, there is no appellee brief for consideration.

ANALYSIS

We examine the history of the grand jury process.

To understand the grand jury process and the issues that this case raises we believe it is helpful to briefly examine the history of the grand jury system in this country and this state.

The grand jury system predates our United States Constitution and has its roots in England. Costello v. United States , 350 U.S. 359, 362, 76 S.Ct. 406, 100 L.Ed. 397 (1956) ("The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders."). "Since colonial times, the grand jury has served two functions: as a ‘shield’ between the government and the accused, and as a ‘sword’ probing into the evidence of a crime." State v. Richards , 464 N.W.2d 540, 541 (Minn. Ct. App. 1990). But "[w]here the king's grand juries had once colluded with the king's prosecutors, in pre-Revolutionary America, colonial grand juries resisted the king's representatives in America." United States v. Navarro–Vargas , 408 F.3d 1184, 1192 (9th Cir. 2005).

Grand juries during colonial times exercised broad powers. " ‘Through presentments and other customary reports, the American grand jury in effect enjoyed a roving commission to ferret out official malfeasance or self-dealing of any sort and bring it to the attention of the public at large ....’ " 408 F.3d at 1191.

The Founding Fathers deemed this power of the people to be so important that they carried the grand jury process over to our Constitution through the Bill of Rights. The constitutional right to an indictment solely by a grand jury is contained in the Fifth Amendment to the United States Constitution ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."). Accordingly, with some exceptions, federal felony criminal charges must be brought by indictments from a grand jury, rather than the mere filing of a complaint or information by the prosecutor.

But states are not required by the United States Constitution to use the grand jury process for state crimes. Hurtado v. California , 110 U.S. 516, 538, 4 S.Ct. 111, 28 L.Ed. 232 (1884) ; State v. Scott , 286 Kan. 54, 101–02, 183 P.3d 801 (2008), overruled on other grounds by State v. Dunn , 304 Kan. 773, 375 P.3d 332 (2016) ; State v. Marshall , 50 Kan. App. 2d 838, 851-52, 334 P.3d 866 (2014). In fact, the process has come under increasing scrutiny since its initial adoption. Critics believe that the grand jury process has become little more than a rubber stamp for prosecutors who present evidence to the jurors in secret, in hearsay form, with no duty to present exculpatory evidence. Witnesses are denied their right to counsel. Many believe that the grand jury process is not transparent enough and does not comply with present day notions of due process and fairness. Based on similar concerns, England abandoned the grand jury system in 1933. See Johnson v. Superior Court , 15 Cal. 3d 248, 261, 124 Cal.Rptr. 32, 539 P.2d 792 (1975) (discussion of due process limitations of grand juries).

The United States Supreme Court has noted that "[a]s a necessary consequence of its investigatory function, the grand jury paints with a broad brush." United States v. R. Enterprises, Inc. , 498 U.S. 292, 297, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991).

" ‘Unlike [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury "can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not." ’ It need not identify the offender it suspects, or even ‘the precise nature of the offense’ it is investigating. The grand jury requires no authorization from its constituting court to initiate an investigation, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge. It swears in its own witnesses, and deliberates in total secrecy. [Citations omitted.]" United States v. Williams , 504 U.S. 36, 48, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992).

Accordingly, some states have abolished the use of grand juries and initiate criminal charges solely based on a prosecutor's information or complaint with a preliminary hearing—and its attendant due process guarantees—to determine whether probable cause exists to proceed to trial on the charges. See State v. Mitchell , 200 Conn. 323, 326-30, 512 A.2d 140 (1986) (explaining reasons Connecticut voters abolished the grand jury system in 1983); Commonwealth v. Brown , 247 Pa. Super. 401, 405, 372 A.2d 887 (1977) (explaining abolition of indictment by grand jury in Pennsylvania beginning in 1976). Other states have provided for a dual system allowing prosecutions to begin either by a grand jury indictment or a prosecutor-initiated information or complaint. See Haw. Const. art. I, § 11 and Haw. Rev. Stat. § 805-1 (dual system); Neb. Rev. Stat. §§ 29-1401, 29-1601 (dual system). Some states have specifically addressed due process concerns by inserting due process...