SCO 1993: VIEWPOINT DISCRIMATION SHUTS DOWN GRAND JURY INVESTIGATIONS INTO GOVERNMENT ABUSE

 SCO 1993: VIEWPOINT DISCRIMATION SHUTS DOWN GRAND JURY INVESTIGATIONS INTO GOVERNMENT ABUSE

By Jessica Schultz Pleasant, The Conservative Fem

Viewpoint based discrimination allows for only one group's opinion over another. The U.S. Supreme Court believes this type of regulated speech regulation the most “egregious”. A law that allows content-based regulation is exemplified by social media platforms banning sexually explicit material. An example of viewpoint discrimination would be a social media platform allowing only one political party to exercise their first Amendment.

Alaska has a history of politicians that abuse their power being protected by the government. Governor William Sheffield was caught giving contracts to donors to his campaign. The grand jury report was withheld from the people of Alaska. The only reason the report was made public was because someone called the media to pick up the report in a courthouse waste bin. The grand jury investigation against Sheffield led the jury to admonish Sheffield but not to indict. This fact creates fear that a recent grand jury report for the charges of perjury against retired judge Margaret Murphy will continue to be held in secrecy.

Due to Supreme Court Order 1993, the DA is acting as legal representative of the SOA when he is allowed to filter complaints citizens have filed. Not only is this a case of conflict of interest, but also discrimination and abuse of power by officials and State agencies.

According TO CR 6.1, the district attorney may reject a complaint for a civil investigative grand jury by the following, CR 6.1(a)(3) states the grand jury’s authority to investigate and issue reports, “[T]he issue involves a matter of general importance to a large number of people, rather than to an individual or a small group of individuals,” and, “An issue that concerns primarily a private matter rather than one that concerns the general public is not generally an issue concerning the public welfare or safety within the scope of a grand jury’s investigative authority.”

In Turner Broad. Systems v. F.C.C. (512 U.S. 622, 647 (1994), the court was asked to determine if a facially neutral law may discriminate when in “operation” if it favors or disfavors a particular point of view. When SCO 1993 is put into action, the government’s dual role, as complaint intake officer and the State’s legal representative.

The District Attorney’s ability to act legally on behalf of the State allows him discretion to suppress complaints against the State. In Cohen v. California, 403 U.U. 15, 18, 26 (1971), a law may still violate the First Amendment because the enforcement involves government action subject to the First Amendment.

The State claims the rule changes made in SCO 1993 were needed to create a process for the multiple active complaints waiting to go before the grand jury. In Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 812 (1985), the court found that a “facially neutral and valid justification” cannot a law “that is in fact based on the desire to suppress a particular point of view."

In Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995), the Court found a law regulating speech based on “specific motivating ideology” or the speaker’s “opinion or perspective” is viewpoint-based discrimination. SCO 1993's changes to Criminal Rule 6.1 is a law that “invites” discriminatory enforcement. CR 6.1 “gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.” (Lakewood v. Plain Dealer Publ’g Co. v. , 486 U.S. 750, 759, 772 (1988))

The District Attorney's New powers invites discriminatory enforcement to prevent complaints against the State to gain validity before an investigative grand jury. As the State’s legal representative, the district attorney and the State are made uncomfortable under public pressure. The Court found a “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint (Tinker v. Des Moines Indep. Community School District, 393 U.S. 503 (1969))

The State and Court have explained the process to request the civil investigative grand jury should give the district attorney discretion to present a complaint before the grand jury. In CR 6.1, there is a long list of new exceptions and exemptions to access a grand jury. These are red flags for view-point discrimination.

SCO 1993 has gone so far as to ban “individuals and small groups” from making complaints. According to McMillan v. Coakley, 573 U.S. 464, 488, 490 (2014), a law violates the First Amendment if it does “burden[ed] substantially more speech than necessary to achieve the government’s interest.” CR 6.1(a)(1) states the purpose of the rule is to advance public welfare and safety. Based upon the legislation and Court’s argument and the use of statutory constructions, the rule changes that deny “individuals and small groups” from filing a complaint and give the district attorney new powers do not advance the public’s interest into public welfare and safety.

He can now deny the grand jury’s subpoena of officials if, by his opinion, the subpoena. There are many exceptions and exemptions to subpoena power of the grand jury. According to CR 6.1 the district attorney has the following new authorities to block grand jury subpoenas. These provisions are the following found at CR 6.1(e)(1). The rule allows the district attorney to use discretion to assume the grand jury is acting in bad faith to subpoena officials. Previously, the grand jury was not hindered with such “arbitrary” and “ambiguous” rules.

Per CR 6.1(e)(1), “If the prosecuting attorney reasonably believes that a subpoena approved by the majority of grand jurors was not approved in good faith, would be unreasonably burdensome on the recipient, is not reasonable, or is not necessary, the prosecutor may, without consent from or authorization by the grand jury, inform the superior court and seek a judicial determination whether the subpoena shall issue.”

According to AS 18.80.060(a)(5), the Alaska Commission of Human Rights (ACHR), it is meant to “eliminate discrimination because of race, religion, color, national ancestry, physical or mental disability, age, sex, marital status, changes in marital status, pregnancy, or parenthood.” The commission claims its goal is to: (1) study; (2) research; and (3) make a report. “ The commission may study problems of discrimination, research and make its own reports.

According to Alaska’ Commission of Human Rights, 18.80.020, “The commission consists of seven commissioners, appointed by the governor for staggered terms of five years, and confirmed by the legislature.” This may explain why there has been a lack of support from civil rights officials for the citizens at the Alaska Grand Juror Association.

Per AS 18.80.060(b)(2), the Commission will need permission from the governor to have assistance to perform the Commission’s duties. The rule states the Commissions may “call upon the departments and agencies of the state, with the approval of the governor, for cooperation and assistance in carrying out” its duties.

This may explain why there has been a lack of support from civil rights officials for the citizens at the Alaska Grand Juror Association. SCO 1993 cannot stand due to foundational errors identified through statutory construction standards. These unconstitutional provisions are key provisions needed for the rest of the rule’s changes. Therefore, my above argument against certain provisions in the rule changes cannot be resolved with the Severability Clause.

Sources:

1.https://constitution.congress.gov/browse/essay/amdt1-7-4-3/ALDE_00013120/#ALDF_00019188

2. https://constitution.congress.gov/browse/essay/amdt1-7-4-3/ALDE_00013120/#essay-25 facially neutral

3. https://constitution.congress.gov/browse/essay/amdt1-7-4-2/ALDE_00013119/ on its face

1. Law need not single out a particular ideology or message to be viewpoint-based, however. For example, a law that categorically prohibits religious speech may be viewpoint-based even if it does not draw sectarian distinctions. ( Jump to essay-1Iancu v. Brunetti, No. 18-302, slip op. at 6 (U.S. June 24, 2019).

2. Jump to essay-2As explained in the Overview, there are certain contexts in which the government can draw viewpoint-based distinctions, such as when the government itself is the speaker. See Amdt1.7.4.1 Overview of Viewpoint-Based Regulation of Speech. See also Amdt1.7.8.2 Government Speech and Government as Speaker; Amdt1.7.13.6 Selective Funding Arrangements; Amdt1.7.13.7 Government’s Message Versus Private Speakers.

3. Reed v. Town of Gilbert, 576 U.S. 155, 168 (2015) (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995))

4. Amdt1.7.4.1 Overview of Viewpoint-Based Regulation of Speech

5. https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-viewpoint-based-regulation-of-speech

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court considers viewpoint-based regulation of speech to be “an egregious form of content discrimination.” 2 A

(Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995))

6. A law3 is viewpoint-based when it regulates speech based on its “specific motivating ideology” or the speaker’s “opinion or perspective”. (Rosenberger, 515 U.S. at 829)

7. Laws that do not single out a specific viewpoint on their face, but that were enacted for the purpose of suppressing an idea or message, or otherwise invite discriminatory enforcement, sometimes run afoul of the First Amendment as well. (See Amdt1.7.4.5 Viewpoint Neutrality in Forum Analysis)

8. https://www.adn.com/opinions/2019/11/23/alaskans-and-impeachment-the-case-of-gov-bill-sheffield/

9. https://apnews.com/article/alaska-legislature-impeachments-obituaries-anchorage-1170fb15c1c8024136d83ea93ef87085

10. https://www.aclu.org/documents/tinker-v-des-moines-landmark-supreme-court-ruling-behalf-student-expression

11. Alaska Supreme Court Order 1993

12. CR 6.1 of Alaska

13. Alaska Civil Rights

14. Alaska Constitution First Amendment of Alaska

15. United States First Amendment

16. https://www.law.cornell.edu/supremecourt/text/393/503