SUPREME COURT CASE NO.

S155944 8Ur"_R'_M_ COUNT

FILED
IN SEP25 ZOI7
SUPREME COURT OF THE STATE OF CALIFOII_d_ric k K. Ohlrich Clerk
THOMAS LEE GOLDSTEIN
Petitioner,

VS.

LOS ANGELES COUNTY SUPERIOR COURT

Respondent,

CITY OF LONG BEACH; JOHN HENRY MILLER; WILLIAM

COLLETTE; LOGAN WREN; WILLIAM MacLYMAN; THE COUNTY
OF LOS ANGELES; JOHN VAN DE KAMP; CURT LIVESAY,
Real Parties in Interest.

After a Decision By the Court of Appeal,

2 ndAppellate District, Division 3
Appellate Court Case No. B 199147
(Hon. Joan Dempsey Klein, Presiding Justice)

CONSOLIDATED ANSWER TO PETITIONS FOR REVIEW

RONALD O. KAYE (No. 145051)

email: rok_kmb @earthlink.net
DAVID S. McLANE (No. 124952)
email: davemclane_kmb@earthlink.net
MARILYN E. BEDNARSKI (No. 105322)
email: mbednarski_kmb @eartlalink.net
MATTHEW N. SIROLLY (No. 239984) (of counsel)
email: Matthew@Sirolly.net
KAYE, McLANE & BEDNARSKI, LLP
128 North Fair Oaks Avenue
Pasadena, California 91103
Telephone: (626) 844-7660
Facsimile: (626) 844-7670

Attorneys for Appellant and Petitioner

THOMAS LEE GOLDSTEIN
SUPREME COURT CASE NO. S155944

IN THE
SUPREME COURT OF THE STATE OF CALIFORNIA

THOMAS LEE GOLDSTEIN

Petitioner,

VS.

LOS ANGELES COUNTY SUPERIOR COURT

Respondent,

CITY OF LONG BEACH; JOHN HENRY MILLER; WILLIAM

COLLETTE; LOGAN WREN; WILLIAM MacLYMAN; THE COUNTY
OF LOS ANGELES; JOHN VAN DE KAMP; CURT LIVESAY,
Real Parties in Interest.

After a Decision By the Court of Appeal,

2 ndAppellate District, Division 3
Appellate Court Case No. B 199147
(Hon. Joan Dempsey Klein, Presiding Justice)

CONSOLIDATED ANSWER TO PETITIONS FOR REVIEW

RONALD O. KAYE (No. 145051)

emall: rok_kmb@earthlink.net
DAVID S. McLANE (No. 124952)
email: davemclane_kmb@earthlink.net
MARILYN E. BEDNARSKI (No. 105322)
email: mbednarski kmb@em_ink.net
MATTHEW N. SIROLLY (No. 239984) (of counsel)
emall: Matthew@Sirolly.net
KAYE, McLANE & BEDNARSKI, LLP
128 North Fair Oaks Avenue
Pasadena, California 91103
Telephone: (626) 844-7660
Facsimile: (626) 844-7670

Attorneys for Appellant and Petitioner

THOMAS LEE GOLDSTEIN
TABLE OF CONTENTS
PAGE

TABLE OF AUTHORITIES .................................... ii

INTRODUCTION ............................................ 1

STATEMENT OF ADDITIONAL ISSUES ........................ 7

ARGUMENT ................................................ 8

I. THIS COURT SHOULD NOT REVIEW THE

APPELLATE COURT DECISION BECAUSE IT IS
A WHOLLY REASONABLE EXPLICATION OF
LONG ESTABLISHED LEGAL PRINCIPLES, NOT
THE ANNOUNCEMENT OF A NEW RULE OF
LAW ............................................ 8

II. COUNTY COUNSEL'S REQUEST FOR A STAY

OF THE APPELLATE COURT DECISION
SHOULD BE DENIED ............................ 13

A° COUNTY COUNSEL HAS NOT CITED ANY

AUTHORITY SUPPORTING HIS REQUEST
FOR A STAY AND SUCH A STAY WOULD
ONLY CAUSE FURTHER UNJUST DELAY
OF GOLDSTEIN'S FEDERAL COURT
PROCEEDINGS ............................ 13

B° THERE IS NO LEGITIMATE REASON TO

STAY THE TRIAL COURT'S PREPARATION
OF A WRITTEN ANALYSIS OF THE
SECRECY CONCERNS RAISED BY THIS
MATERIAL, SINCE THERE IS NO DISPUTE
OVER THE DUTY OF THE SUPERIOR COURT
TO PROVIDE SUCH AN ANALYSIS TO THE
FEDERAL COURT ......................... 14

CONCLUSION ............................................ 16
 TABLE OF AUTHORITIES

CALIFORNIA CASES PAGE

Daily Journal Corp. v. Superior Court

(1999) 20 Cal.4th 1117 ........................... 4, 9-10, 12

Ex Parte Sontag
(1884) 64 Cal. 525 .................................. 1, 4, 9

Goldstein v. Superior Court

(2007) 154 Cal. App. 4th 482 .................. 2, 4, 6, 8, 13, 15

MeClatehy Newspapers v. Superior Court

(1988) 44 Cal.3d 1162 ................................. 4, 9

Shepherd v. Superior Court

(1976) I7 Cal. 3d i07, 127 .............................. 10

FEDERAL CASES PAGE

Dennis v. United States

(1966) 384 U.S. 855 ..................................... 8

Douglas Oil Co. v. Petrol Stops Northwest

(1979) 441 U.S. 211 .............................. 2, 4, %9

Lueas v. Turner
(7th Cir. 1984) 725 F. 2d 1095 ........................... 14

Metzler v. United States

(9t_ Cir. 1933) 64 F.2d 203 ................................ 8

Socialist Workers'Party v. Grubisie

(7th Cir. 1980) 619 F.2d 641 ............................. 14

United States v. Procter & Gamble

(1958) 356 U.S. 677 ..................................... 8
 TABLE OF AUTHORITIES (CONT.)

FEDERAL CASES PAGE

United States v. ex tel Woodward v. Tynan,

(10th Cir. 1985) 757 F. 2d 1085 .......................... t4

United States v. Socony-Vaeuum Oil Co.

(1940) 310 U.S. 150 ..................................... 8

U.S. Industries, Inc. v. United States District Court

(9th Cir. 1965) 345 F.2d 18 ............................... 8

SISTER-STATE CASES PAGE

Diamen v. U.S.
(D.C.1999) 725 A.2d 501 ................................. 9

Euresti v. Valdez
(Tex.App. 1989) 769 S.W.2d 575 ........................... 9

Hinojosa v. State
(Ind. 2003) 781 N.E.2d 677 ............................... 9

In re Grand Jury of Douglas County

(2002) 263 Neb. 981 ..................................... 9

In re Investigatory Grand Jury No.2004-01

(2006) 50 Conn.Supp. 23 ................................. 9

In re Jessup's Petition
(1957) 50 Del. 530 ...................................... 8

Keen v. State
(Fla. 1994) 639 So.2d 597 ................................ 9

Mannon v. Frick
(1956) 365 Mo. 1203 .................................... 8

iii
 TABLE OF AUTHORITIES (CONT.)

SISTER-STATE CASES PAGE

Milliean v. State
(Ala.Crim.App.1982) 423 So.2d 268 ....................... 9

People v. Di Napoli
(1970) 27 N.Y.2d 229 .................................... 8

State v. Beck
(1960) 56 Wash.2d 474 .................................. 8

State ex reL Ronan v. Superior Court In and For Marieopa County

(1964) 95 Ariz. 319 ...................................... 8

State v. Carillo
(1973) 112 R.I. 6 ....................................... 8

Sutton v. State
(1975) 25 Md.App. 309 ................................ 8-9

State v. Greer
(1981) 66 Ohio St.2d 139 ................................. 9

State v. HargTeld
(1981) 290 Or. 583 ...................................... 9

State v. Doliner
(1984) 96 N.J. 236 ...................................... 9

State v. Higgins
(La. 2005) 898 So.2d 1219 ................................ 9

STATUTES PAGE

Cal. Penal Code § 924.2 ..................................... 7, i2

Cal. Penal Code § 9.29 . .-....................................... 7

iv
SUPREME COURT CASE NO. S155944

IN THE
SUPREME COURT OF THE STATE OF CALIFORNIA

THOMAS LEE GOLDSTEIN

Petitioner,

VS.

LOS ANGELES COUNTY SUPERIOR COURT

Respondent,

CITY OF LONG BEACH; JOHN HENRY MILLER; WILLIAM

COLLETTE; LOGAN WREN; WILLIAM MacLYMAN; THE COUNTY
OF LOS ANGELES; JOHN VAN DE KAMP; CURT LIVESAY,
Real Parties in Interest.

After a Decision By the Court of Appeal,

2 nd Appellate District, Division 3
Appellate Court Case No. B 199147
(Hon. Joan Dempsey Klein, Presiding Justice)

CONSOLIDATED ANSWER TO PETITIONS FOR REVIEW

INTRODUCTION

Over one hundred years ago this Court, in Ex Parte Sontag, wrote,

"when for the purposes of public justice, or for the protection of private

rights, it becomes necessary, in a court of justice, to disclose the

proceedings of the grand jury, the better authorities now hold that this may

be done." (1884) 64 Cal. 525,526 (emphasis in original) (quoting

Thompson and Merriam). It is evident that this Court was referring to the

rule of particularized need that would later be more fully developed in

federal case law- i.e., courts have the power to order the disclosure of grand
jury materials to litigants when there is a particularized needto use them "in
a court of justice" andthis need outweighsthe interestsof secrecy.See, e.g.,
Douglas Oil Co. v. Petrol Stops Northwest (1979) 441 U.S. 211.

The legitimacy of this rule does not appear to have been seriously

doubted by California courts. As the record in the case at bar makes clear,

the same grand jury materials that Goldstein seeks to access have been

disclosed, in the past, to other litigants by flae Los Angeles Superior Court.

See Goldstein v. Superior Court (2007) 154 Cal. App. 4th 482, 488.1

Indeed, it is evident that in 1990 the Los Angeles County Grand Jury and

the judge presiding over it preserved the grand jury materials at issue for the

specific purpose of making them available to future litigants. Id. at 4872,

488 n.13

1 "On July 5, 2006, Goldstein sent court counsel further information

about the case including the declaration of Verna Wefald, an attorney who
had accessed the grand jury materials in connection with two federal habeas
corpus proceedings. Wefald asserted that Douglas Dalton, special counsel
appointed to assist the grand jury in its investigation into the misuse of
jailhouse informants, told her the grand jury materials were indexed and
organized for the express purpose of facilitating review of the material by
future litigants."

2 "On August 30, 1990, the Superior Court of Los Angeles County
issued an order stating the 'material accumulated and used by the 1988-89
Grand Jury and the 1989-90 Grand Jury in their investigations of the
jai!house informants is to be kept secure by the court. [9 The material is not
to be viewed, inspected or copied except by order of the Presiding Judge,
Assistant Presiding Judge, or the Supervising Judge of the Criminal
Division.'"

3 "In the declaration, Dalton [special counsel appointed to assist

the Los Angeles County Grand Jury in its investigation into the misuse of
jailhouse informants] states: 'It was the intent of the Grand Jury that the
underlying materials upon which the Report was based be made available to
 The Petitioners - Los Angeles County, JohnVan de Kamp, Curt
Livesay, andLos Angeles County Counsel4- claim that the Appellate
Court's decision, which adoptsthe federal test for particularized need,will
have a radical effect on California's grandjury system.Their claim has no
merit.

anyoneaffected byjallhouse informant abusesas may be necessaryto

pursuetheir remedies. This was a reasonfor the recordsto be preserved.At
the conclusion of the Report, the Grand Jury specifically statesthat 'the
materials developedby the Grand Jury during their investigation will be
preservedunder secureconditions.' G.J. Rpt. at 153.The materials were
preserved.., so that they could be accessedin furore litigation and/or court
proceedings.The Grand Jury askedthe District Attorney's Office to
cooperatein providing accessto the materials developedby the Grand Jury
in its investigation. Id. at 152-3.'"

4 Goldstein renewshis objection, madein the court below, to Los

Angeles County Counselclaiming to appearon behalf of the Los Angeles
County Grand Jury, particularly sinceCounty Counsel is assertinga
position that is in direct conflict with the actual position of Los Angeles
County Grand Jury that investigatedthe jailhouse informant scandal.As
discussedabove, supra notes 1-3, the 1989-1990 Los Angeles County
Grand Jury clearly intended to make these materials available to future
litigants, and the special counsel who worked directly with this grand jury,
Douglas Dalton, has so stated in a sworn declaration on file with the
Appellate Court.
Los Angeles County Counsel's claim to represent the Grand Jury is
particularly problematic given the fact that: (1) the County is a defendant in
Goldstein's civil rights action, creating an apparent conflict of interest, and
(2) the Grand Jury is a state entity, not a County entity (as County Counsel
himself pointed out in the court below). Although Goldstein recognizes that
County Counsel does provide legal advice to the Grand Jury in regard to
certain matters and that County Counsel was originally requested to appear
on behalf of the Grand Jury in this matter by the Superior Court, Goldstein
believes that under the conditions of the current proceeding it is unjust to
characterize County Counsel's position as that of the Los Angeles County
Grand Jury.
 Ex Parte Sontag reveals that the principle of disclosure of grand

jury materials in cases of particularized need was recognized by California

courts as early as 1884. And, as described above, the record in this case

demonstrates that the principle has long been applied without hesitation by

Califomia courts. Indeed, this Court has approvingly cited Douglas Oil -

the main United States Supreme Court case which lays out the

particularized need test and the very case the Appellate Court turned to for a

formulation of the particularized need test- when explaining the secrecy

concerns associated with the California grand jury system. See Daily

Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117,1126; McClatchy

Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 1173, 1 I75.

Moreover, as the Appellate Court held, Daily Journal Corp. and

McClatchy Newspapers - the cases Petitioners rely on- are not controlling

here since these cases involved requests forpublic disclosure - attempts to

obtain grand jury materials for publication in newspapers - not requests for

limited disclosure for use in ongoing litigation. Goldstein, supra, 154 Cal.

App. 4th at 494-95

For this reason, the Appellate Court's decision is wholly reasonable

and justified. It does not create disuniformity in the law. It simply explains

the basis for the ongoing validity of the particularized need test under
current California law and offers a concrete formulation of this test based

on Douglas Oil.

All that Goldstein is asking for is that this test be applied to his case.

Thomas Goldstein spent over 24 years wrongfully imprisoned for a crime

he did not commit. See Goldstein, supra, 154 Cal. App. 4th at 486-88. His

wrongful imprisonment was in large part the result of perjured testimony by

ajallhouse informant, Edward Floyd Fin_k, who was later found, by the

4
federal magistrate judge who recommend granting Goldstein's habeas

corpus petition, to "fit[] the profile of the dishonest jailhouse informant that

the" 1989-1990 Los Angeles County Grand Jury determined "to be highly

active in Los Angeles County at the time of [Goldstein's] conviction." Id. at

487. Goldstein is seeking access to the underlying materials from this grand

jury investigation for use in his ongoing federal civil rights case. Clearly

these are highly relevant and necessary materials- materials which almost

certainly include documents and testimony from the defendants and

witnesses who will testify in Goldstein's federal civil rights case.

Moreover, because 17 years have passed since the grand jury

investigation, the grand jury materials have become absolutely critical to

Goidstein's case. Over the last 17 years witnesses' memories have faded

and documentary evidence has been lost, making it impossible for Goldstein

to gather from any other source the sort of evidence the Grand Jury had at

its disposal 17 years ago.

While the passage of time has made the grand jury materials more

critical to Goldstein's case, it simultaneously has diminished the need for

keeping the materials secret. For example, many of the witnesses and the

subjects of their testimony have moved on to positions where the

revelations of their words and deeds could no longer cause them harm.

Most importantly, Goldstein does not seek to reveal these materials

to the public. Rather, he only intends to use the materials for the purpose of

litigation and will abide by a protective order to guard against public

disclosure. Thus, Goldstein's request presents no threat to the policies

underlying grand jury secrecy.

For all of these reasons, the Appellate Court's decision does not

merit Supreme Court review and should be left standing to offer guidance
to future litigants.
As a separatematter, Goldstein objects to the stay of the Appellate

Court's decision requestedby Los Angeles County Counsel.County

Counsel offers no legal authority whatsoever for requesting a stay in this

situation. (See County Counsel Petition for Review at 2, 4-5.) Goldstein's

attempts to abide by state court procedures regarding grand jury disclosure

have already caused him to suffer twenty months of delay. See Goldstein,

supra, 154 Cal. App. 4th at 488-90. Further delay is not only unjust to

Goldstein, it frustrates the ongoing federal court proceedings, which have

been delayed multiple times, in part, because of this very issue.

In particular, Goldstein strenuously objects to staying the portion of

the Appellate Court's ruling that orders the Superior Court to provide a

written analysis of the secrecy concerns raised by this material to the federal

court. Such a stay has no basis in reason, since a written analysis of secrecy

would not, in and of itself, constitute disclosure. 5 Indeed, County Counsel

appears to concede that it will suffer no harm if a stay in not granted here:

County Counsel has repeatedly argued in its own petition for review, the

remedy of disclosure by the federal court is not in anyway linked to an

interpretation of California law. (County Counsel Petition for Review at

17-20.)

Thus, staying the portion of the Appellate Court ruling that requires

preparation of a secrecy statement for the federal court would serve no

purpose other than tounjustly delay Goldstein's ability to resolve this issue

5 If there are concerns that specific wimesses or pieces of evidence

would need to be discussed in the secrecy statement, the statement could be
provided to the federal court under seal, temporarily preventing its release
to the parties in this action.
 andfurther frustrate the federal court proceedingsthat alreadyhave been

delayednumeroustimes over the last three years,in large part out of

deferenceto the statecourt.6

Although ad infinitum delay serves the purposes of the defendants in

Mr. Goldste'm's civil rights case, it does not serve the purposes of justice

nor does it comport with principals for federal-state comity.

STATEMENT OF ADDITIONAL ISSUES

If this Court does review the Appellate Court's decision, Goldste'm

requests consideration of the following additional issues that were not

raised by the Petitioners: Do Penal Code sections 929 and 924.2 authorize

disclosure of the grand jury materials to Goldstein? In particular does, Penal

Code section 924.2 create a statutory basis for application of the

particularized need test (as formulated in Douglas Oil) by California courts

and does Penal Code section 929 create a statutory basis for the disclosure

.. of grand jury materials from an investigation into public malfeasance where

the Grand Jury ctearly intended to make these materials available to future

litigants?

//

//

//

6As discussed below, in section II of the Argument, there is an

outstanding federal court subpoena for the grand jury materials, which was
served in March of 2007 (the second such subpoena served by Goldste'm).
This subpoena has not yet been enforced by the federal court due to
considerations of federal-state comity.
 ARGUMENT

Io THIS COURT SHOULD NOT REVIEW THE APPELLATE

COURT DECISION BECAUSE IT IS A WHOLLY
REASONABLE EXPLICATION OF LONG ESTABLISHED
LEGAL PRINCIPLES, NOT THE ANNOUNCEMENT OF A
NEW RULE OF LAW, AND DOES NOT CREATE
DISUNIFORMITY IN THE LAW.

Despite Petitioners' claims, the Appellate Court's decision will not

e,ffect a radical change in the law nor upset the traditions of grand jury

secrecy. The Appellate Court's decision embraces the well-settled U.S.

Supreme Court test- laid out 27 years ago in Douglas Oil- for piercing

grand jury secrecy where litigants have shown a particularized need for

grand jury materials and their need for the materials outweighs the interests

in preserving their secrecy. See Douglas Oil Co. v. Petrol Stops Northwest

(1979) 441 U.S. 211; Goldstein, supra, 154 Cal. App. 4th at 494.

The particularized need test is hardly radical. It has been well-

developed in federal law. See, e.g., Metzler v. United States, (9th Cir. 1933)

64 F.2d 203; United States v. Socony-Vacuum Oil Co. (1940) 310 U.S. 150,

233-34; Dennis v. United States (1966) 384 U.S. 855; United States v.

Procter & Gamble ('1958) 356 U.S. 677; U.S. Industries, Inc. v. United

States District Court (9th Cir. 1965) 345 F.2d 18, 21; Douglas Oil Co. v.

Petrol Stops Northwest (1979) 441 U.S. 211.

Moreover, many other states have adopted some version of this test.

See, e.g., Mannon v. Frick (1956) 365 Mo. 1203; In re Jessup's Petition

(1957) 50 Del. 530; State v. Beck (1960) 56 Wash.2d 474, 489-91; State ex

tel. Ronan v. Superior Court In and For Maricopa County (1964) 95 Ariz.

319, 332-33; People v. Di Napoli (1970) 27 N.Y.2d 229; State v. Carillo

(1973) 112 R.I. 6, 11-12; Suttonv. State (1975) 25 Md.App. 309, 314-15,
334; State v. Greer (1981) 66 Ohio St.2d 139; State v. HargTeld (1981) 290

Or. 583,592; Milliean v. State, 423 So.2d 268 (Ala.Crim.App.1982); State

v. Doliner (1984) 96 N.J. 236, 246-48; Euresti v. Valdez (Tex.App. 1989)

769 S.W.2d 575, 578-79; Keen v. State (Fla. 1994) 639 So.2d 597, 600;

Diamen v. U.S. (D.C.1999) 725 A.2d 501,532-33; In re GrandJuz_y of

Douglas County (2002) 263 Neb. 981,987-89; Hinojosa v. State (Ind.

2003) 781 N.E.2d 677; State v. Higgins (La. 2005) 898 So.2d 1219, 1241;

In re Investigatory Grand Jury No.2004-01 (2006) 50 Conn.Supp. 23.

Petitioners argue that the Appellate Court's adoption of the federal

particularized need test from Douglas Oil will radically undermine

California's grand jury system. But the federal grand jury system is alive
and well.

The particularized need test has not undermined the policies of grand

jury secrecy in the federal court- policies which this Court has suggested

are identical to those motivating the secrecy of California grand juries. In

Daily Journal Corp. and McClatchy Newspapers, the cases most heavily

relied upon by Petitioners, this Court approvingly cites and quotes Douglas

Oil when explaining the polices motivating grand jury secrecy in California.

Daily Journal Corp, supra, 20 Cal.4th at 1126; McClatchy Newspapers,

supra, 44 Cal.3d at 1173, 1175.

If the Douglas Oil test has not undermined these policies in the

federal court system, it is difficult to imagine how it could undermine the

exact same policies in California. But this is what the Petitioners argue.

Petitioners arguments have no merit.

In fact, the particularized need test has been long applied and used in

California. As mentioned above, Ex Parte Sontag shows that, as early as

1884, the concept of particularized need was embraced by this Court.

9
Moreover, as explained above,the record in the caseat bar showsthat the
principle of particularized needhasbeen usedto disclosethe very materials
Goldstein seeks.

Indeed, it is highly likely that the reasonthat there are so few

published casein California discussingparticularized need is because,for
more than a century, it was been assumed,without dispute,that California
courts have the power to disclose grandjury materialsto litigants who have

demonstrateda particularized need for the materials.

This Court has suggestedasmuch. In Shepherd v. Superior Court
this Court explicitly discussed the federal particularized need test, 7

approving of it without belaboring its obvious soundness:

In any event, as the high court was careful to point out, there
may be cases of urgent and particularized need in which [the
policies of grand jury secrecy] must be made to yield to some
extent in order to accommodate the demands of truth and
fairness in civil litigation. Although the 'indispensable
secrecy of grand jury proceedings' [citation] must not be
broken except where there is a compelling necessity [,] [there]
are instances when that need will outweigh the countervailing
policy.'

Shepherdv. Superior Court (1976) 17 Cal. 3d 107, 127 (quoting United

States v. Proctor and Gamble 365 U.S. 677, 682), partially overruled on

different grounds by, People v. Holloway (2004) 33 Cal. 4th 96, 131.

Despite Petitioners' claims, the Appellate Court decision does not

create disuniformity in the law. Although Daily Journal Corp. v. Superior

Court has language suggesting that California courts lack inherent authority

7 The Court was discussing the official information privilege of section

1040 of the California Evidence Code, in relation to a District Attorney's
assertion that the policies of grand jury secrecy justified refusal to disclose
evidence.

10
to disclose grand jury materials to the public, this case does not control

Goldstein's request. As the Appellate Court explained, Daily Journal Corp.

explicitly defined the issue as whether public disclosure was proper:

We wanted review to determine whether the superior court, in

the absence of a statutory provision for disclosure under these
circumstances, properly released the grand jury materials to
the public.

Daily Journal Corp., supra, 20 Cal.4th at 1120 (emphasis added).

Unlike the newspaper outlets in Daily Journal, Goldstein does not

seek to make grand jury materials available to the general public, but rather

to use them, under a protective order, in ongoing litigation.

Petitioners attempt to blur this distinction by arguing that disclosure

of the materials for use in Goldstein's case would necessarily result in

disclosure of these materials to the public during Goldstein's trial. (County

Counsel Petition for Review at 13; County Petition for Review at 13-14.)

This argument is a red-herring. Goldstein will not be engaging in a blanket

disclosure of this material at trial.

To the extent disclosure does occur at trial, it will be very limited

and controlled by the terms of a protective order. First, of course, even

before being disclosed to the litigants in this case, the materials will be

reviewed by the court to determine if the need for disclosure outweighs the

need for secrecy. Second, prior to disclosure at trial, the court can again

review the limited subset of materials that the litigants intend to use and

reapply the balancing test. At this point, the court can further protect

secrecy through redacting the material or limiting their use (or even

requiring that they be submitted to the jury under seal).

Moreover, in regard to available witnesses, public disclosure of

grand jury transcripts could only occur for purposes of impeachment or

11
 refreshing recollection (purposes incontestably authorized by the legislature

under Penal Code section 924.2), because the direct use of this testimony

would violate the hearsay rule.

Similarly, most, if not all, of the useful documentary evidence

obtained from_the grand jury records would not be subject to grand jury

privilege, since it would consist of documents that were produced wholly

independent of the Grand Jury, e.g., memos or correspondence from the

DA's office created prior to the impaneling of the grand jury (but which

have been lost or destroyed during the ensuing 17 years). These documents

would not become subject to a grand jury privilege simply because copies

of them were submitted to the grand jury as evidence.

Likewise, the separation of powers arguments raised by Petitioners

are a red herring. Unlike, in Daily Journal Corp, the Appellate Court in the

case at bar did not hold that a court has inherent judicial power to take

control of the grand jury and force it to disgorge its materials in a non-

judicial context- i.e., to newspapers for publication. The context here

remains entirely within the judicial function: disclosure of the materials for

the sake of ongoing litigation. Courts are well-placed to regulate conduct in

their own proceedings.

Petitioners' position, not the Appellate Court's position, is the

radical one. They ask this.Court to eliminate the traditional power of

California courts to disclose grand jury materials to litigants with a

particularized need for those materials. If granted, this will effectively

overrule at least 120 years of California court practice and part ways with

both well-settled federal law and the general development of the laws

relathag to grand jury secrecy in the United States.

12
H. COUNTY COUNSEL'S REQUEST FOR A STAY OF THE
APPELLATE COURT DECISION SHOULD BE DENIED.

Ao COUNTY COUNSEL HAS NOT CITED ANY

AUTHORITY SUPPORTING HIS REQUEST FOR A
STAY AND SUCH A STAY WOULD ONLY CAUSE
FURTHER UNJUST DELAY OF GOLDSTEIN'S
FEDERAL COURT PROCEEDINGS.

Los Angeles County Counsel's request to stay the Appellate Court

decision should be denied. County Counsel offers no legal authority

whatsoever for his request and no reasons why it would be prejudiced if a

stay is not granted. (See County Counsel Petition for Review at 2, 4-5.)

On the other hand, further delay is unjust to Goldstein. Well over a

year and a half of delay has already resulted from Goldstein's attempts to

abide by state court procedures regarding grand jury disclosure. See

Goldstein, supra, 154 Cal. App. 4th at 488-90. Goldstein has diligently and

conscientiously attempted to follow the procedures dictated to him, even

withdrawing his first federal court subpoena for these materials at the

behest of the Superior Court. Id. at 489.

Further delay would also conflict with principles of federal-state

comity by frustrating the ongoing federal court proceedings. Goldstein's

federal civil rights case has already been continued multiple times, in part,

because of this very issue.

The Appellate Court made its order final immediately, id. at 496-97,

likely because it recognized that injustice and conflicts with principles of

comity would result from timber delay. The Appellate Court's order should

be respected.

13
 Bo THERE IS NO LEGITIMATE REASON TO STAY THE
TRIAL COURT'S PREPARATION OF A WRITTEN
ANALYSIS OF THE SECRECY CONCERNS RAISED
BY THIS MATERIAL, SINCE THERE IS NO DISPUTE
OVER THE DUTY OF THE SUPERIOR COURT TO
PROVIDE SUCH AN ANALYSIS TO THE FEDERAL
COURT.

There is no dispute over the federal court's power to order disclosure

of these grand jury materials and the duty of the Superior Court to cooperate

in reviewing these materials and releasing them to the federal court. 8

Neither of the petitions for review raise issue with the Appellate Court's

opinion to extent that it addresses the Superior Court's duties in this regard.

(See County Counsel Petition for Review at 1; County Petition for Review

at 1.)

In fact, Petitioner County Counsel strenuously argues in its petition

for review that federal court disclosure is the appropriate remedy for

8 However, Goldstein does disagree with County Counsel's claim

that "[t]here is a minority of U.S. Circuit Court of Appeals authority
suggesting, as a matter of federalism, that a federal court seeking state court
Grand Jury materials lacks jurisdiction to compel production." (County
Counsel Petition for Review at 19.)
As far as Goldstein is aware, there is no such authority. The cases
that County Counsel cite to for this position hold precisely the opposite.
Socialist Workers'Party v. Grubisic (7th Cir. 1980) 619 F.2d 641,644
("federal law determines the scope of the privilege covering these materials,
and the requirement that these plaintiffs ftrst seek disclosure through the
avenues available to them in the state court does not give the state courts a
veto over disclosure in this federal civil rights case."); Lucas v. Turner (7th
Cir. 1984) 725 F. 2d 1095, 1099 (quoting Social Workers'Party for the
same proposition); United States v. ex tel Woodward v. Tynan, (10th Cir.
1985) 757 F. 2d 1085, 1089 ("The Attorney General's claim arises under
federal law, and so the privileged nature of these materials under state law
is not controlling.").

14
Goldstein. (County Counsel Petition for Review at 17-20.)

County Counsel vaguely suggest that the issue has not been

properly raised with the Superior Court. (County Counsel Petition for

Review at 18.) This claim is nothing except willful blindness to the facts.

A federal court subpoena was properly served on the Superior Court in the

summer of 2006 and only withdrawn at the Superior Court's behest.

Goldstein, supra, 154 Cal. App. 4tb at 489. In his motion to the Superior

Court, Goldstein specifically requested that the Superior Court prepare a

written, statement of the need for secrecy for the benefit of the federal court

and cited the relevant supporting case law. Id. In his response to this

motion, County Counsel also urged the Superior Court to prepare such a

statement and reiterated the federal case law cited by Goldstein. Id. Superior

Court simply ignored this request. See id. at 490.

More importantly, at this juncture, since March 23, 2007 there has

been an outstanding federal subpoena for these materials duly served on the

superior court (Goldstein's second subpoena for these materials). See id. at

490. The only reason the federal court has stayed proceedings to compel

production of these records is out of respect for the principles of comity-

i.e., a desire to allow this issue to be fully vetted by the state court before

becoming involved in it. The federal court deserves to be treated with

respect in return. Staying production of a statement of secrecy regarding

these materials would serve no purpose except frustrating federal court

proceedings and unjustly dragging out Goldstein's case.

Given all this, it is inconceivable why County Counsel would request

a stay preventing the Superior Court from producing a written analysis of

secrecy concerns raised by these materials.

Such a stay can serve no legitimate purpose. Regardless of the

15
 outcome of the current proceedings, the federal court will still be obligated,

under federal law, to apply the particularized need test to determine whether

the grand jury materials should be disclosed and the Superior Court will still

be obligated, under the Supremacy Clause of the Constitution, to cooperate

with the federal court in its application of federal law.

If a statement regarding the secrecy needs of these materials is

delayed, it will only mean that further delay will result at the conclusion of

these proceedings as Goldstein and the federal court wait for the Superior

Court to prepare such a statement.

CONCLUSION

Despite Petitioners' assertions, the appellate court decision in this

case does not announce any radical change in the law nor does it threaten.

the California grand jury system. It is a reasoned explication of established

law. The decision offers important guidance to litigants in so far as it

clarifies the nature of well-establish particularized need test in California

courts under current California law. But it is evident that this test has long

been accepted and applied without problems by California Courts.

For these reasons the appellate court's decision does not justify

Supreme Court review and Goldstein respectfully requests that the petitions
for review be denied.

DATED: September 24, 20007 Respectfully submitted,

KAYE, McLANE & BEDNARSKI, LLP

B
MATTHEW N.
Attorneys
Thomas Lee Goldstein

16
 CERTIFICATE OF WORD COUNT

The text of this Answer consists of 4,476 words as counted by the

Corel Wordperfect word-processing program used to generate it.

DATED: September 24, 2007

MATTHEW N.

17
 PROOF OF SERVICE

1 I, Veronica Aguilar, declare that I am a resident or employed in

2 Los Angeles County, California; that my business address is KAYE,

3 McLANE & BEDNARSKI, LLP, 128 North Fair Oaks Avenue, Pasadena,

4 California 91103; that I am over the age of eighteen years; that I am

5 not a party to the above-entitled action; that I am employed in the

6 Law Offices of KAYE, McLANE & BEDNARSKI, whose partners are members

7 of the Bar of the United States District Court for the Central

8 District of California, and at whose direction I served the:

10 Consolidated Answer To Petitions For Review

11

12 On September 24, 2007, following ordinary business practice, service

13 was:

14 [ ] Placed in a closed [X] By hand- [X] Placed in a sealed

envelope, for delivery addressed envelope for
15 collection and as follows: collection and mailing
interoffice delivery Theresa Traber ONLY via United States
16 addressed as follows: Mail, addressed
as follows:
I7
[ ] By facsimile as follows: [ ] By electronic mail:
18

19

20 *EEE SERVICE LIST ATTACHED* "

21
This proof of service is executed at Los Angeles, California, on
22
September 24, 2007. I declare under penalty of perjury that the
23
foregoing is true and correct to the best of my knowledge.
24

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27 Aguilar

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 1 SERVICE LIST
2 Theresa M. Traber
Traber & Voorhees
3 128 N. Fair Oaks Avenue, Suite 204
Pasadena, CA 91103
4 (Co-Counsel for Petitioner Thomas L. Goldstein)

5 Belinda R. Mayes, Esq.

Principal Deputy City Attorney
6 OFFICE OF THE CITY ATTORNEY
333 West Ocean Boulevard, iI t_ Floor
7 Long Beach, CA 90802-4664
(Attorney for Real Parties in Interest
8 the City of Long Beach and Logan Wren)
9
Thomas J. Feeley, Esq.
10 LAW OFFICES OF THOMAS J. FEELEY, P.C.
600 Wilshire Blvd., Suite 900
11 Los Angeles, CA 90017
(Attorneyfor Real Party in Interest William McLyman)
12
Michael M. Peters, Esq.
13 TAUBMAN, SIMPSON, YOUNG & SULENTOR
One World Trade Center
14 P.O. Box 22670
Long Beach, CA 90811
15
(Attorney for Real Party in Interest John Henry Miller)
16
Peter J. Ferguson, Esq.
17 FERGUSON_ PRAET & SHERMAN
1631 East 18 t_ Street
18 Santa Ana, CA 92705-7101
(Attorney for Real Party in Interest William Collette)
19
John J. Collins, Esq.
20 Collins, Collins, Muir & Stewart, LLP
ii00 E1 Centro Street
21
South Pasadena, CA 91030
22 (Attorney for Real Parties in Interest Los Angeles County,
John Van de Kamp, and Curt Livesay)
23
Gordon W. Trask, Principal Deputy County Counsel
24 648 Kenneth Hahn Hall Of Administration
500 W. Temple Street
25' Los Angeles, CA 90012-2713
(Attorney for Los Angeles County and the Los Angeles
26 County Grand Jury)
27

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 1
SERVICE LIST
2
D. Brett Bianco
3 Court Counsel
Los Angeles Superior Court
4 ill N. Hill Street, Room 546
Los Angeles, CA 90012-3014
5 (Attorney for Los Angeles County Superior Court)

6
Honorable Peter Espinoza
Los Angeles Superior Court
7
Department 123
8 210 W. Temple Street
Los Angeles, CA 90012
9

10 Clerk
Second Appellate Court, Division 3
11 300 N. Spring Street
Los Angeles, CA 90012
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