Amid swirling controversy, public protests, and mounting political interest, the Alaska Supreme Court has decided to revise hotly debated rules it imposed on citizen grand juries three years ago, and is now seeking public comment on a litany of proposed revisions aimed at addressing the festering disputes.

The proposed changes follow intense debate that erupted in 2022, as a sitting Kenai grand jury was investigating alleged high-profile corruption in the judicial branch and the Department of Law. Amid this investigation, the Alaska Supreme Court abruptly intervened with a novel procedural order (SCO 1993), effectively stifling the grand jury’s historic ability to conduct independent investigations without being managed and controlled by the very branches of government they intended to investigate.

The initial 2022 rules also prohibited a grand jury from both investigating a public issue and then indicting related criminal conduct discovered during the probe. However, the high court abruptly reversed this in early 2023 after it was pointed out that the new rule violated a grand jury’s dual constitutional role to both accuse and investigate.

In the wake of these rule changes, grand jury rights advocates held multiple rallies, met with government officials and presented material to lawmakers, local boroughs and city councils in an effort to restore the full authority of grand juries to freely investigate corrupt judges and government officials, while also issuing reports on their findings to the general public.

The issue has become a key issue in the current gubernatorial race with multiple candidates weighing in on how how they would work to restore grand jury rights.

Last year, the dispute was addressed by Alaska’s then-Attorney General Treg Taylor, who is currently running for governor. According to the Supreme Court rules, the Department of Law is now the gatekeeper of all citizens’ requests that a grand jury investigate allegations of corruption, even corruption that might involve the Department of Law itself.

While Taylor publicly stated last summer that he believed the Supreme Court’s rules were a violation of grand juries’ constitutional rights to independently hear allegations directly from citizens, he complied with the rules anyway and set up a system that attempted to both satisfy the high court and simultaneously mitigate some of the growing concerns.

Taylor admitted, however, that his new system was not ideal. It essentially formalized a process that now requires citizens to first submit allegations to the attorney general’s office, after which a team decides whether the allegations are suitable to forward on to a grand jury.

The new request for public comments will be open until April 6 of this year.

This gives the Attorney General’s office immense power over what criminal allegations a grand jury can consider, and critics note that it violates the right of citizens to petition a grand jury, directly, as is explicitly stated in the original Grand Jurors Handbook.

Prominent grand jury advocate David Haeg, along with many others, has repeatedly called on the attorney general’s office to boldly challenge the Supreme Court’s rules, especially if they are deemed to be unconstitutional. To date, that has not happened.

On Feb. 18, however, the Alaska Supreme Court issued a call for comments and recommendations on a newly revised set of rules pertaining to grand jury protocols. These revisions touch on some of the most hotly debated elements of the 2022 rules.

The proposed updates deal with Criminal Rules 6 and 6.1, which address grand juries’ dual roles – issuing criminal indictments (Rule 6) and conducting investigations into matters of public welfare or safety (Rule 6.1). Both actions are protected by Article I, Section 8 of the Alaska Constitution: “The power of grand juries to investigate and make recommendations concerning the public welfare or safety shall never be suspended.”

The request for public comments will be open until April 6 of this year.

While the changes attempt to address some of the concerns by grand jury advocates, they have already stirred critical responses by at least one prominent Alaska attorney.

The major proposed changes include the following:

— Grand juror-initiated requests: The revised rules would require the Attorney General to assign neutral attorneys for advice/assistance to grand juries.

— Non-grand juror (citizen) requests: Alaska residents could bypass the Attorney General and submit allegations of wrongdoing to a grand jury through a superior court filing. If the filings are knowingly false, there could be a $500 fine imposed by the court. Once the request is sent to the court, a clerk must seal the allegation and forward it to a presiding judge who must transmit it to a grand jury within 30 days and then notify the complainant of the outcome.

— Evidence and proceedings: The revisions would allow inadmissible evidence during grand jury investigations but limit final grand jury reports to a preponderance of “admissible” evidence.

— Review and release of grand jury reports: The revisions shift from automatic initial review by a judge to an objection-driven process, which allows both individuals and organizations or government agencies to formally object to grand jury reports and their release to the public.

While the changes attempt to address some of the concerns by grand jury advocates, they have already stirred critical responses by at least one prominent Alaska attorney who is concerned that the proposed amendments still undermine the constitutionally protected rights of grand juries to independently hear, investigate, indict and publish public reports of their findings.

The Anchorage-based attorney recently submitted comments pointing out that the revisions still undermine a grand jury’s independent oversight, chill citizen initiation, and enable governmental entities to delay or prevent public disclosure of grand jury reports.

Other points of contention deal with the fact that the newly proposed rules still restrict a grand jury’s indictment authority.

In particular, a concern has been raised that the Attorney General’s office still has the authority to assign an attorney of his choice to provide advice and assistance to the grand jury on whether to investigate an allegation.

“This creates a structural conflict when investigations involve government conduct or systemic failures: the executive branch would control the grand jury’s legal advisor for initiating, framing, and conducting investigative work,” the respondent noted. “Regardless of intent, that arrangement risks weakening independence and can operate as a practical veto – particularly for investigations that are sensitive or institutional.”

He suggested that the revised rule should “require independent counsel for the grand jury,” and “if the Court retains Attorney General involvement, it should include clear standards limiting gatekeeping discretion and ensuring the grand jury can pursue lawful inquiries.”

He also noted that the $500 proposed fine for knowingly sending flawed allegations to the grand jury could discourage citizens from alerting grand juries of legitimate wrongdoing. Additionally, he pointed out that the process of submitting allegations is not sufficiently transparent.

Recommended changes include removing the monetary sanctions or giving citizens a chance to amend or withdraw them if they are deemed frivolous by the grand jury. The attorney also suggested adding a clear tracking and notice requirement so citizens “receive written notice” of what happened to their request and when it was transmitted to the grand jury.

Another point of contention is the fact that the proposed changes would add governmental agencies as “persons” who have a legal right to object to a grand jury’s decision to release its findings to the public.

This essentially grants government entities the right to resist disclosure of investigative findings about their own performance or misconduct, thereby creating a means for delay, suppression, or over-redaction of reports that address institutional failures.

Suggestions to address this include limiting governmental objections to “narrow, concrete harms, like witness safety, active criminal investigations or legally protected confidential information, but not reputational or institutional interests.”

Other points of contention deal with the fact that the newly proposed rules still restrict a grand jury’s indictment authority.

TAKING ACTION

— Click here to read the proposed changes in their entirety and to offer suggestions on needed changes.

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