Metropolitan News-Enterprise


Thursday, April 13, 2017


Page 1


S.C. Declines Review of Ruling Tossing Ban on Grand Jury Police Shooting Probes


By a MetNews Staff Writer


The California Supreme Court yesterday unanimously declined to review a Third District Court of Appeal ruling invalidating a 2015 law that would have barred grand juries from inquiring into a police officer’s use of lethal force.

Attorney General Xavier Becerra asked the high court, which held its weekly conference in San Francisco yesterday, to take up the case on its own motion after the parties declined to seek review. Becerra said the case “raises important questions about the power of the legislature under the state constitution and merits further review.”

The Court of Appeal ruled in January in People ex rel. Pierson v. Superior Court (2017) 7 Cal.App.5th 402 that the amendment to Penal Code §917 intruded on the constitutional authority of the grand jury. The legislation, Justice M. Kathleen Butz noted, is “the first legislative effort in 167 years to constrict the grand jury’s power under the Constitution to exercise its power of indictment.”

The law said that “the grand jury shall not inquire into an offense that involves a shooting or use of excessive force by a peace officer…that led to the death of a person being detained or arrested by the peace officer.”

It was enacted in response to high-profile police shootings around the country, and its stated purpose was to increase transparency and accountability in court proceedings that determine whether charges will be brought against an officer who uses deadly force during an arrest.

Becerra said in his amicus letter he was concerned that the ruling was not supported by the language or history of the California Constitution, and that it may have broader consequences. Although his office had no prior involvement in the case, Becerra said he was “committed to participate in any future proceedings ordered by the Supreme Court.”

The litigation arose out of proceedings initiated by El Dorado District Attorney Vern Pierson in connection with a South Lake Tahoe police officer’s fatal shooting of a suspect. When Pierson began subpoenaing witnesses, including the officer and the police chief, the South Lake Tahoe Police Officers’ Association and Police Supervisors’ Association filed motions to quash the subpoenas and dismiss the grand jury.

El Dorado Superior Court Judge James R. Wagoner granted the motions, and Pierson sought a writ. The Court of Appeal directed the trial court to vacate its orders.

Butz wrote:

“To allow the Legislature to restrict this constitutional role in part would be to concede the power to restrict it in its entirety, a position that has never been endorsed in any precedent in the entire history of our jurisprudence, and which was specifically withheld from the Legislature in the enactment of the Constitution of 1879.”

In other conference action, the justices declined to review a Fourth District Court of Appeal ruling, which said that a libel suit by the operator of a substance abuse treatment center against a defendant who republished a critical newspaper article on his website was not subject to dismissal under the anti-SLAPP statute because it does not concern a matter of public interest.

Div. Three, in its Dec. 20 opinion in Dual Diagnosis Treatment Center, Inc. v. Buschel (2016) 6 Cal.App.5th 1098, affirmed Orange Superior Court Judge Ronald Bauer’s denial of the motion brought by Leonard Buschel and his nonprofit group, Writers in Treatment, Inc.

No high court justice voted to grant review.

Buschel edits and publishes the group’s electronic newsletter, which includes excerpts from, and links to, articles about drug and alcohol abuse treatment.

Dual Diagnosis Treatment Center, Inc., which does business as Sovereign Health of California, filed suit two years ago after Buschel referenced and linked to an Orange County Register article, originally published five years earlier. The article said that Sovereign was being investigated for running an unlicensed residential treatment program, and that the doctor running it had been stripped of his license “for conducting unethical drug trials on mentally ill patients.”

Buschel subsequently published a “Retraction and Apology,” containing language provided by Sovereign, which sued about three weeks later for libel, false light, and negligence. Buschel and Writers in Treatment claimed in their anti-SLAPP motion that the suit arose from the exercise of First Amendment rights in connection with a matter of public interest—“how addiction treatment facilities operate”—and that the plaintiff was unlikely to prevail because of federal statutory immunity for online republication of third-party content.

The plaintiff responded that the article had nothing to do with matters of public interest and that it was likely to prevail because no immunities applied.

Justice Eileen Moore, writing for the Court of Appeal, agreed with the trial judge that the anti-SLAPP statute did not apply.

The defendants, she said, were arguing what one court called “the synecdoche theory of public issue”—that any statement that relates to a broader topic that is of public interest is covered by the statute.

The statements at issue, she said, considered nothing more than the purported license status of a single facility. “They did not concern treatment and rehabilitation facilities, in general, or even all of Sovereign’s facilities,” the justice noted.

She distinguished M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, which held that a Sports Illustrated story that used a photo of the plaintiffs’ Little League team to illustrate a story about a former coach convicted of child molestation dealt with a public issue. Unlike the article linked to by Buschel, however, the SI piece dealt with a broader issue, that of child molestation in youth sports, Moore said.


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