Request By:
Mr. R. Lee Steers, Jr.
Commonwealth's Attorney
49th Judicial Circuit
301 West Kentucky Avenue
P.O. Box 447
Franklin, Kentucky 42134
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have pinpointed a crisis in Allen County government. You have written that the county judge executive and the other members of fiscal court are at political odds with each other.
You enclosed a copy of a letter of the magistrates addressed to the foreman of the Allen County Grand Jury. The letter complained of spendthrifty spending and careless management, favoritism and paying of political obligations. Specifically the magistrates claimed the county judge executive authorized county road tile to be placed on private property. The magistrates appeared twice before the Grand Jury. The County Judge Executive appeared. Then the Grand Jury filed a report in which it concluded that certain tiles were installed by the County Judge Executive and other fiscal court members under questionable circumstances. However, the Grand Jury found no criminal act on the part of the County Judge Executive, nor on the part of the magistrates. The Grand Jury suggested that the county tile put on private properties be replaced and delivered to the County barn. The Grand Jury Report stated that the investigation of the tile matter basically reflected an outgrowth of the general disharmony existing between the County Judge Executive and other members of fiscal court.
The report concludes, with no indictments relative to the county tile matter.
You anticipate further attempts by both the County Judge Executive and the other members of fiscal court to seek to appear before the Grand Jury and give testimony against the other. You say this, although the Grand Jury in its report stated that "We implore, we beg, we plead with the fiscal court and the County Judge Executive to act responsibly and attempt to work in the spirit of compromise for the common good of all citizens of Allen County."
Specifically, you are asking whether, as Commonwealth's Attorney, and believing that a particular set of witnesses are only going to continue a "political harangue" without substantial evidence of criminal law violation, you have the authority to exercise your discretion in shutting off such "political testimony" from Grand Jury consideration?
Pursuant to KRS 15.725(1), the Commonwealth's Attorney has the primary responsibility within his judicial circuit to present evidence to the grand jury concerning possible violations of criminal and penal laws. This is very similar to the old KRS 69.010 and Carroll's Statutes, § 118, which, at one time, treated the criminal and civil functions of the commonwealth's attorney.
See KRS 29A.210, relating to convening a regular grand jury. The basic function of the grand jury is to inquire into the commission of crime.
Turk v. Martin, 232 Ky. 479, 23 S.W.2d 937 (1930) 939.
Concerning the grand jury's function, RCr 5.02 reads:
The court shall swear the grand jurors and charge them to inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed, or other offenses which come to their attention or of which any of them has knowledge. The court shall further instruct the grand jurors concerning inspections and reports which are required of them by law.
RCr 5.06 reads:
The circuit clerk, upon request of the foreman of the grand jury, or of the attorney for the commonwealth, made during a term of court or in vacation, shall issue subpoenas for witnesses. The attendance of witnesses may be coerced as in other judicial proceedings.
RCr 5.14 provides:
(1) The attorney for the commonwealth, or his assistant, designated by him, shall attend the grand jurors when requested by them, and he may do so on his own motion, for the purpose of examining witnesses in their presence, or of giving the grand jurors legal advice regarding any matter cognizable by them. He shall also, when requested by them, draft indictments.
(2) The grand jurors may at any time question witnesses in a closed session.
RCr 5.12 deals with the compelling of testimony of a witness before the grand jury.
From the above, the interconnected roles of the prosecutor and grand jury are at once apparent. However, if the county judge executive or other members of the fiscal court seek to appear before the grand jury, even though you, as prosecutor, have reason to believe that no actual commission of crime has occurred, it is our opinion that you do not have the authority to refuse to allow such fiscal court matters to be presented for the grand jury's consideration. The discretion of the grand jury in deciding to hear such matters is found specifically in RCr 5.02. That rule provides that the court shall charge the grand jury to inquire, inter alia, into "other offenses which come to their attention or of which any of them has knowledge." (Emphasis added). See
Matthews v. Pound, Ky., 403 S.W.2d 7 (1966). Thus if members of fiscal court complain of possible criminal violations, including KRS 61.170, the grand jury is charged with looking into the matter by hearing witnesses who voluntarily come before it or who are compelled to testify under RCr 5.12.
The power of the grand jury to investigate the possible commission of crime and return indictments is rather broad within that narrow range. 38 Am.Jur.2d, Grand Jury, § 26.
While you, as prosecutor, have the central role of presenting evidence before the grand jury (KRS 15.725 and RCr 5.14), while present with the grand jury, your role does not embrace ruling out the appearance of witnesses, which witnesses the grand jury desires to hear.
Under RCr 5.14 and KRS 15.725(1), as Commonwealth's Attorney you may make suggestions to the grand jury, where you have carefully assessed the potential evidence and actually and honestly believe that technically no criminal conduct is involved sufficient to support an indictment, that in your professional opinion no public interest would be subserved by their hearing such proffered witnesses. However, it would then lie within their sound discretion, considering their duty of inquiring into the commission of crime (KRS 29A.210, RCr 5.02, and RCr 5.14), as to whether or not such proffered witnesses would be heard by them. Moreover, in view of the extremely delicate nature of such suggestions on your part and in view of the historical autonomous role of the grand jury as an institution in our legal fabric, you would have the duty to positively tell them that, notwithstanding your views about the nonadvisability of calling certain witnesses, they have the authority and duty under KRS 29A.210, RCr 5.02 and RCr 5.14 to call the witnesses in question if they desire or believe they should. While the grand jury is the inquisitorial and accusing body, you are held to a high standard of conduct as a lawyer and elected prosecutor in advising a grand jury as to what they should hear and not hear, especially since the ultimate burden of indicting or not indicting falls on their shoulders,