In the Matter of the Petition to Summon a Grand Jury Filed by Steven Davis.
BY THE COURT
Interpretation of a statute is a question of law over which
appellate courts have unlimited review. The most fundamental
rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. An
appellate court must first attempt to ascertain legislative
intent through the statutory language enacted, giving common
words their ordinary meanings. When a statute is plain and
unambiguous, an appellate court should not speculate about
the legislative intent behind that clear language, and it
should refrain from reading something into the statute that
is not readily found in its words.
subject-matter requirements in a citizen-initiated grand jury
petition are mandatory.
Whether a citizen-initiated grand jury petition is legally
sufficient is subject to de novo review.
citizen-initiated grand jury petition does not require
specific factual allegations.
as a complaint, indictment, or information in a criminal case
shall be a plain and concise written statement of the
essential facts constituting the crime charged and is
sufficient if it incorporates the language of the statute, so
too are citizen-initiated grand jury petitions.
Although charging documents must show that the crime alleged
occurred within the statute of limitations and must allege
the precise time of the commission of an offense if time is
an indispensable ingredient in the offense, the same is not
true of the allegations in a citizen-initiated grand jury
from Douglas District Court; Peggy C. Kittel, judge. Opinion
filed June 8, 2018. Reversed and remanded with directions.
Davis, appellant pro se.
Arnold-Burger, C.J., Green, J., and Hebert, S.J.
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
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
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).
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
and Procedural History
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.
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, and
4. 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."
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
"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
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.
examine the history of the grand jury process.
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
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.
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.
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.
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
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 ...