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California’s civil grand juries (“CGJs”) are one of the oldest institutions in the state’s civic architecture. Enshrined in the state constitution, the CGJs were conceived as a check on local government — a body of ordinary citizens empowered each year to scrutinize the operations of counties, cities, and special districts, and to report their findings to the public. The idea is a noble one: participatory democracy in its most direct form, the citizenry keeping watch over those who govern them.
I know this because I recently sat on one. And the experience left me with serious doubts about whether this institution, as currently structured, is doing more harm than good.
Good intentions, glaring gaps
Let me be clear about what the CGJ is not. Unlike a criminal grand jury, it is not presented a docket of cases by a prosecutor. There are no attorneys marshaling evidence. I arrived naively expecting something like that — a structured legal proceeding guided by trained professionals. What I found instead was a group of volunteers who quickly made decisions about the validity of the few citizen complaints that had come in, and then proceeded to select their own subjects to investigate, conduct their own investigations, and render their own judgments. Prosecutor, defense, and judge — all rolled into one. The term “checks and balances” does not come to mind.
That structural problem is compounded when the jury’s composition doesn’t reflect the community it oversees. The jury I served on was almost exclusively white — in a county where 40% are not. When the same body decides what to investigate, how to investigate it and what conclusions to draw, the demographics of that body are not a side issue. They determine whose concerns get elevated and whose get ignored.
The California Grand Jurors’ Association does an admirable job providing incoming jurors with a two-day training program covering how to identify cases, conduct investigations, and write reports. Two days. That is the entirety of the baseline preparation before these citizen volunteers are sent out to evaluate the professional operations of county departments, public agencies, and special districts. If the CGJ finds that they do need legal guidance, its advisor is the county counsel, who also happens to represent the very county being investigated, notwithstanding assurances that the designated attorney is walled off from the rest of the office.
Some wealthier, more populous counties supplement the two days of instruction with additional training of their own. But that only sharpens the inequity: the counties that are best positioned to run a qualified grand jury are also the ones with the deepest bench of relevant experience to draw on. In the rural counties where the institution is most prone to failure, those two days are all there is. It’s a little like giving a volunteer two days of fire training — rather than the normal 200+ hours — and asking them to save lives and put out your house fire. The intent is sincere. The preparation is not remotely adequate.
The problems go beyond the expertise of the individual jurors. Standing up a fully functional investigative body from scratch every single year is itself an enormous undertaking — recruiting members, establishing internal governance, learning a new records management system, selecting and scoping investigations, managing document requests, conducting interviews, and producing polished public reports, all within twelve months. Our jury was a testament to how brutally difficult that is. Nearly half the jurors disappeared before the term ended, including members who actually brought investigative experience to the table.
The procedural rules governing how the jury gathers testimony compound all of these challenges. Witnesses are required to appear and answer questions — refusal risks a subpoena — yet they are prohibited from discussing those questions with anyone outside the room to confirm accuracy. They receive no questions in advance, arriving unprepared to give thorough, accurate answers on complex institutional matters. And they testify without being placed under oath, meaning there is no legal consequence for answers that turn out to be wrong, whether by accident or design.
The theory is that witnesses and documents will check each other — that contradictions and corroborations across multiple sources will allow the jury to triangulate the truth. The reality is something murkier: a tangle of varying, sometimes conflicting accounts from witnesses who were unprepared, unsworn, and unable to consult colleagues or records before answering. From that tangle, the jury selects the version of events that best fits the conclusion it has already begun to form. That is not investigation. It is confirmation bias with a gavel.
To be fair: across 58 CGJs operating each year over the past 175 years, there have no doubt been excellent reports — genuine contributions to public accountability. But a stopped clock is right twice a day. Pointing to the occasional standout report does not make the case for the institution; it makes the case that the exception does not make the rule.
The small population problem
The structural weaknesses of the CGJ are amplified considerably in counties with small populations. In a major metropolitan area, the jury pool is large enough that you might reasonably expect to seat jurors with relevant expertise — someone who has worked in public administration, a former investigator, a planner, an accountant. In a small population county, you take who you can get. That makes it particularly crucial for citizens in these communities who do have investigative or professional experience to step up and serve.
The result, in practice, is a rotating cast of retirees and engaged citizens — people with genuine civic spirit but rarely with the professional background the work demands. It is asking people who have never spent a minute reviewing a building application, evaluating a budget, or managing a public contract to credibly critique the work of professionals who do exactly that every single day. The gap between the jurors’ expertise and the procedures they are investigating is not a minor problem. It is the central problem.
And that gap has real consequences. Critical reports issued by jurors lacking substantive knowledge and investigative experience run a very serious risk of driving out the public servants they target — people often working for understaffed, underfunded agencies doing their best on shoestring budgets. Leveling criticism from a position of procedural authority but practical ignorance is not accountability. It is, at its worst, a form of glorified bullying dressed up in civic virtue.
Consider what that can look like in practice. The county I served in had been the subject of two consecutive critical grand jury reports targeting the lack of procedures at the planning department, among other issues. Not long after, the director of planning resigned and took the same position in a neighboring county with a larger population. That departure may have been purely coincidental or an indirect consequence of the sustained scrutiny.
But everyone can agree on what comes next: finding a replacement planning director will be extraordinarily difficult for a county that is financially broke, recently received a state audit criticizing its management, currently has no permanent CEO, no permanent county counsel, and now no planning director. The grand jury may have identified real problems. It may also have made them considerably worse.
And throughout this process, the burden on the agencies under investigation is rarely discussed. Responding to a CGJ requires substantial staff time — locating and producing documents, responding to interview requests, and formally answering each finding in the published report. For the kinds of lean agencies that are most frequently the subject of these investigations, that burden is anything but trivial. Understaffed local agencies that are already struggling to carry out their core missions are asked to divert scarce resources to satisfy a process run by people with limited context and investigative experience. The cost to the public, in delayed services and diverted staff, is real — and almost entirely invisible.
There are better ways
None of this is to say the oversight function the CGJ is meant to serve is unimportant. It is essential. Local government, particularly at the special district level, can operate with startlingly little public scrutiny. The question is whether the CGJ is the right tool for the job.
California counties already have district attorneys’ offices with trained investigators. Each county’s Local Agency Formation Commissions — LAFCOs — regularly produce rigorous, professional analyses of special districts. Investigative journalism, properly resourced, has the expertise, the independence and the public accountability to do this work well. Any of these alternatives, given the resources currently devoted to the CGJ system, would likely produce more credible and accurate results.
The CGJ was born of a genuine democratic impulse — the belief that ordinary citizens should have the power to hold their government accountable. That impulse is worth honoring. But honoring it means being honest when the institution we have built around it is no longer equal to the task. California’s CGJs, particularly in the smaller counties that do not enjoy the luxury of larger populations with a wide array of expertise, is in need of serious reform — or serious reconsideration.
I say this as someone who served on one, who believes in the purpose it was designed to serve, and who came away convinced that good intentions are no substitute for the right tools.
Dan Potash worked for and with government agencies at the federal, state, and local levels for all of his 35-year professional career, mostly as an attorney.
Thanks for this summary, Dan. As a member of the same CGJ that you served on, I agree with your observations. I resigned before my term ended out of frustration and the Grand Jury’s lack of progress, because of many of the issues that you mention.
One large part of the problem is that the current state-wide CGJ system requires jurors with varying levels of computer skills to learn a very complicated Microsoft software application before they can begin to exchange emails, save documents, or join video calls.
Until the CGJ juror screening process requires a minimal set of computer skills, rural counties like Mendocino are going to be very inefficient and dysfunctional, even though the citizen volunteers have the best intentions of serving their community.
Hey, super clear situation, BTW I live in Covelo. Can you write another article outlining a viable solution set?
“But everyone can agree on what comes next: finding a replacement planning director will be extraordinarily difficult for a county that is financially broke, recently received a state audit criticizing its management, currently has no permanent CEO, no permanent county counsel, and now no planning director.”
That sounds distressingly familiar.
Hi Dan, former juror here too. I would love to chat about how to address your concerns – email is sean at ungovr dot org. I think it would make for a great follow-up piece. We are certainly at a point where technology can help enormously with government transparency and accountability. And this can apply much more broadly than California.
Thank you for your service, however disillusioning it was. I think your voice matters and your questions are more than local. How are we going to wake up to the problems we face as a county, as a state, as a nation, as a world?
The problem I see, after two consecutive terms, the second as Foreman, is that this isn’t a compelled service, it’s volunteer. So naturally it attracts the retired folks (of a certain age) who are civic minded but just looking for something to fill their time. That’s the problem. They generally lack technical skills, and come to the table with closed minds and preconceived notions. CGJs need budgets, and they need a better cross section of society. They should be compelled just like any other jury.
I read this op-ed with mixed emotions because I served on this same civil grand jury and came away with a very different perspective.
There is a lot I could say in response. The problem is, there is also a lot I cannot say.
Those of us who served as grand jurors took an oath and are bound by confidentiality. I took that obligation seriously while I was serving, and I still take it seriously today. I am not going to violate that oath simply because someone else has chosen to publicly characterize what happened during our term.
But I do think readers deserve to understand something important: they are hearing one person’s version of the experience.
There are circumstances, discussions and events from our term that I cannot talk about publicly. That makes responding to some of the claims in this piece difficult. It also creates an unfortunate situation where one former juror can tell his version of the story knowing that other people who were in the room may not be able to publicly provide the context that is missing.
So I will speak only to what I can.
A civil grand jury is made up of ordinary citizens. That is not a flaw in the system. It is the point of the system. We bring different backgrounds, careers, experiences and perspectives to the table. We receive training, but we also learn throughout the year. We ask questions. We review documents. We conduct interviews. We challenge one another. And, yes, sometimes we disagree.
Could grand jurors use more training? Certainly. I would support that. Could the process be improved? Of course. I would support that too.
But I don’t agree with comparing civil grand jurors to untrained firefighters being sent into a burning building. We weren’t putting out fires or making life-and-death decisions. We were conducting government oversight. And we weren’t doing it alone or without rules, procedures, legal guidance and the ability to seek additional information.
I also strongly disagree with the suggestion that the jury simply chose whatever version of events supported a conclusion it had already reached. That is a serious accusation to make about the people who served alongside the author.
It certainly does not describe how I approached my work.
Every juror has a responsibility to come into an inquiry with an open mind. We have a responsibility to recognize our own biases, disclose conflicts when they exist, listen to information that may contradict what we initially believed and follow the facts wherever they lead. We also have a responsibility to show up and do the work. The integrity of a civil grand jury depends just as much on the conduct and commitment of its individual members as it does on the structure of the institution itself.
That part of this conversation shouldn’t be overlooked.
I am proud of much of the work we accomplished. I am also fully capable of recognizing where the civil grand jury system could be stronger. The two are not mutually exclusive.
What I won’t do is use information obtained through confidential grand jury proceedings to win a public argument. My oath means more to me than that.
So when reading one former juror’s account of our shared experience, I simply ask readers to remember that there were other people in that room.
We may remember the experience differently.
And some of us are choosing to honor our confidentiality obligations rather than explain publicly why.
Kudos to Ms. Simmons for providing an alternative perspective on Civil Grand Jury service to that described by Dan Potash in his scathing OpEd. Having served on four CGJ’s…twice in Mendocino County and twice in a neighboring county, I am bemused by many of his criticisms and by his proposed solutions.
I can only surmise that Mr. Potash’s extensive personal education and experience left him impatient and inattentive during the extensive training and report writing workshops provided by CGJA. Virtually all of his criticisms are addressed during these sessions. During in-person and on-line trainings, CGJA also provides contacts for personal assistance, as needed, and an introduction to online tools to guide investigations, test hypotheses, and craft reports and recommendations. Each jury also has access to County Counsel when legal questions arise. Ultimately, County Counsel reviews and can provide feedback on each report. The Presiding Judge approves reports prior to publication. The extent to which each CGJ panel accesses these resources depends in large part on the foreperson and members of the panel…but the resources DO exist and rural counties regularly produce meaningful, impactful reports.
While not every CGJ report will be perfect, the work provides a unique perspective on local government that can be valuable to elected officials, government employees, and the public’s understanding of agencies on which they depend. The California Constitution requires that each of the State’s 58 counties seat a CGJ each year. This is not an institution that can be casually dismissed or replaced. The CGJ watchdog function, as defined by the Penal Code, is very different from the criminal investigations conducted by the District Attorney or the oversight of Special Districts by LAFCO (also a state-mandated, county-level agency).
The Potash Op Ed makes a valid point about the difficulty of recruiting CGJ jurors with relevant skills, experience, and ability to make a year-long commitment to time-consuming challenging work. Rural counties are not alone in this. While larger, more-affluent counties have greater populations, the pool of actual volunteers is inevitably shallow and tends to produce older panels lacking in diversity and proficiency with whatever technology their county provides. However, having more applicants does not allow a county to hand-pick jurors. The Penal Code specifies only that jurors must be 18 and residents of the county. By law, members of each panel are seated by a random draw from the pool of volunteers. They may not be selected based on personal education, skills, or experience. This produces panels of “ordinary citizens” with widely varying backgrounds and experiences.
As Ms. Simmons observes, respect for confidentiality and rejection of bias are essential to serve on a CGJ. Equally critical, is a commitment to the CGJ’s collegial process. Collegial CGJ work demands a commitment by each juror to full participation, mutual respect, active listening, cordial debate and dissent, and an insistence on rigorous testing of diverse perspectives to ensure the validity of Findings and the plausibility of Recommendations.
Collegial work does not come easily to most people. It is a disciplined process that tends to be slow, confusing, and painstaking. It can be particularly taxing on the patience and humility of capable, goal-oriented jurors who may be unaccustomed to focusing on the strengths of others rather than dismissing those they perceive as impeding progress. More than anything else, the Potash OpEd demonstrates that neither he nor some of his fellow jurors understood the value of this critical discipline and practiced it in their work.
The Op Ed denies the value of CGJ investigations and reports as time and resource-consuming activities of questionable validity, yet the example provided fails to support that interpretation. The Mendocino County Planning Department has drawn public criticism for decades. Multiple Planning Directors have moved on to better paying counties after exhausting their efforts to repair a system that can best be described as Kafkaesque. Attributing the most recent departure to reports by the CGJ strains one’s credulity. To the contrary, keeping a spotlight on a troubled county agency is clearly in the CGJ wheelhouse.
Mendocino, like other rural, low-income counties, struggles to finance needed public services over a wide geographic area. Limited tax revenue, coupled with the burden of public employees pension funding limit the County’s ability to compete for qualified staff with more affluent nearby counties. These challenges are not a reason to dismiss the Civil Grand Jury. To the contrary, they elevate the importance of the CGJ as a resource for focussing government attention on specific areas of concern and for educating the public about how local agencies are functioning, the obstacles they face in meeting public needs and demands, and how processes might be streamlined and economies realized.
As Ms. Simmons notes, CGJ work requires personal integrity. Respect for confidentiality and rejection of bias and unfounded assumptions are essential qualities for every juror. The Penal Code, Best Practices taught by CGJA, and the collective voice of the Plenary provide essential guard rails. Reports are also reviewed by County Counsel and require final approval by the Presiding Judge. Collegiality is at the root of the investigative process. This does not mean simply “getting along”. It requires mutual respect, listening to alternative perspectives, drawing on individual strengths, and using the many tools provided by CGJA to test perceptions against verifiable facts and craft plausible recommendations for positive change. Collegial work tends to be arduous and slow. Working with a team of “ordinary citizens” can strain the patience and humility of those accustomed to a professional pace, yet it is the process through which California citizens can opine on the workings of local government and recommend actions for positive change. Among my many lessons learned from four years of CGJ service is that while knowledge, skills, and perspectives vary on each panel, every juror has something to offer.
DP is correct that rural, low-income counties are challenged by having a particularly shallow pool of potential jurors. That simply makes it more important for those, like him, who are endowed with relevant skills and experience, to listen and absorb the thorough initial training and report writing workshops offered by CGJA and become resources for their peers.