In California the grand jury, in addition to determining whether or not to indict individuals suspected of crime, exercises an important "watchdog" function over the operation of many facets of local government. To fulfill this oversight role, the grand jury has been granted extensive statutory authority to prepare "reports" disclosing its findings and recommendations for improvement in the administration of local government. At the same time the decisions, without contradiction, hold that the grand jury is a component part of the superior court. The question presented in this case is whether that superior court must accept and file any report which the grand jury prepares or may refuse to accept and file a report which exceeds the grand jury's legal authority.
In an original proceeding instituted by the District Attorney of Santa Barbara County, the Court of Appeal concluded that a superior court must accept any report submitted by a grand jury; in accordance with this conclusion, the appellate court determined that a writ of prohibition should issue restraining the respondent superior court from reviewing any grand jury report submitted to it in the future.
For the reasons discussed hereafter, we have concluded that in this state superior courts are empowered to exercise a limited review of a proposed grand jury report to ensure that the report does not exceed the grand jury's lawful authority.
In so holding, however, we emphasize that the scope of the superior court's reviewing role is strictly confined to ensuring that reports do not extend beyond the legal boundaries of the grand jury's broad reportorial power. The superior court possesses no authority to edit or seal a report simply because the court disagrees with the report's conclusion, or believes that its recommendations were hastily reached or were not "justified." The court's sole function in this realm lies in its power to prevent the official filing of an illegal report: for example, a report on matters which the grand jury has not itself investigated or a report concerning activities of a distant municipality not lying within the grand jury's province.
The facts which gave rise to the instant proceeding are not in dispute. On October 3, 1972, the Santa Barbara District Attorney presented evidence before the 1972 Santa Barbara Grand Jury concerning the county pathologist, Dr. McAlpine. Witnesses before the grand jury included a deputy sheriff assigned to the coroner's detail, a representative of a mortuary, the sheriff, the county hospital administrator and Dr. McAlpine. After hearing the testimony the grand jury submitted to the superior court an "Interim Report" detailing a series of "irregularities" for which Dr. McAlpine was allegedly responsible and setting forth certain recommendations for procedural changes in the handling of financial and other matters in the county hospital's pathology department.
On October 24, 1972, Judge Dodson, the presiding judge of the Santa Barbara Superior Court, met with the grand jury and explained at some length why he believed that the interim report did not satisfy applicable legal standards. Judge Dodson stressed that a grand jury report which directs serious accusations at a specified individual "`castigates him, impugns his integrity ... and ... subjects him to the odium of condemnation by an arm of the judicial branch of the government, without giving him the slightest chance to defend himself....'" The presiding judge also warned the jurors that statements in the report could subject each of them to libel actions. (See Pen. Code, § 930.) Finally, the judge informed the jurors that because of his conclusions as to the impropriety of the report, he had both a right and a duty to see that the report was not filed or made public. Judge Dodson then ordered the
On January 9, 1973, the grand jury submitted a final report to the superior court which contained a "special report" on the pathology department of the county hospital. This special report reiterated many of the recommendations contained in the earlier interim report but omitted the specific allegations of misconduct by Dr. McAlpine which the earlier report detailed. The superior court accepted and filed the final report.
Thereafter, in advising the 1973 grand jury of its powers and duties (see Pen. Code, § 914), Judge Dodson instructed: "In accordance with established policy of many courts, I instruct you to deliver to me all grand jury reports prior to filing them, and I instruct the clerk of this court not to accept for filing any grand jury report until I have accepted it for filing."
The District Attorney of Santa Barbara County then filed the instant petition for writ of mandate and prohibition in the Court of Appeal, seeking (1) to restrain the superior court from requiring the 1973 grand jury to submit all reports to the presiding judge for his approval prior to filing, and (2) to compel the superior court to set aside its order sealing the interim report of the 1972 grand jury.
Relying upon the absence of any specific statutory provision authorizing a court's review of grand jury reports, the Court of Appeal granted petitioner's initial request, and determined that a writ should issue "prohibiting the respondent Superior Court of Santa Barbara County from ... altering, amending or in any way interfering with the filing of future reports of the Grand Jury...." The Court of Appeal declined, however, to order the superior court to unseal the interim report, reasoning that the filing of the grand jury's final report — containing many of the same items covered by the interim report — had rendered the district attorney's second request moot.
In California, unlike some other American jurisdictions,
Past cases have recognized the valuable and unique role a grand jury
Although the propriety of grand jury reports on local governmental affairs finds support in a long history, a grand jury's investigatory and reporting power has been bounded. Penal Code section 939.9 constitutes perhaps the most obvious limitation on the grand jury's reportorial authority, providing explicitly that "[a] grand jury shall make no report, declaration or recommendation on any matter except on the basis of its own investigation of the matter...."
The numerous statutory provisions noted above, which grant the grand jury authority to investigate and report on numerous facets of local government, also limit the grand jury's investigation and reporting authority to the specifically enumerated fields.
Despite these recognized legal limitations on the grand jury's reporting authority, petitioner contends that even if a proposed grand jury report contravenes such legal bounds, a superior court must accept the report for filing; petitioner maintains that because no statute explicitly gives the superior court authority to enforce the legal restrictions on the grand jury's reporting power by refusing to accept an unauthorized report, the superior court lacks any such authority. In this regard plaintiff urges that the grand jury is completely independent of the superior court and thus that, in the absence of statute, the court lacks any legitimate basis on which to "censor" even a legally unauthorized grand jury report.
Petitioner's argument misconceives the nature of the grand jury institution in California and its relationship to the courts. Although petitioner suggests that the grand jury is a completely freewheeling entity, separate and distinct from the judicial branch of government, the governing provisions uniformly refute such a characterization. Penal Code section 888 defines a grand jury as "a body of the required number of persons returned from the citizens of the county before a court of competent jurisdiction. ..." (Italics added.)
As this court stated emphatically almost 90 years ago: "There is no doubt that a grand jury is part of the court by which it is convened, and that it is under the control of the court...." (In re Gannon (1886) 69 Cal. 541, 543 [11 P. 240]. See generally Kennedy & Briggs, Historical and Legal Aspects of the California Grand Jury System (1955) 43 Cal.L.Rev. 251, 260-262; accord Levine v. United States (1960) 362 U.S. 610, 617 [4 L.Ed.2d 989, 995, 80 S.Ct. 1038]; Brown v. United States (1959) 359 U.S. 41, 49 [3 L.Ed.2d 609, 616, 79 S.Ct. 539].)
In recognizing that the grand jury serves as an integral part of the court system, subject to the court's general supervision, we do not at all diminish the full independence of action which the grand jury must, and does, enjoy in performing its vital investigatory and reporting function.
Petitioner, however, seeks to extend the grand jury's independence to indefensible extremes, arguing that even when a grand jury violates its statutory mandate, a superior court has no choice but to file an unlawful report. Petitioner contends that nothing in the codes authorizes the courts to do otherwise and that without statutory authorization the court may not refuse to accept any proposed report. For several reasons, we cannot agree with this contention.
First, although there is no statute which explicitly authorizes the superior court to refuse to accept an unauthorized report,
Moreover, not only do the existing statutes suggest the propriety of a limited court review of proposed grand jury reports, but such judicial authority is confirmed by the established common law doctrine in this area.
As in so many other instances, we face here competing values; the value of the protection of the public through the unrestricted power of the grand jury to probe and expose the operations of government, as opposed to the value of the protection of the individual from unlawful and unauthorized conduct of that tribunal. Although we recognize the advantage of a wide range in the grand jury's investigatory authority, we do not accept the extreme position that such authority is absolute or that its sweep is so extensive that under any and all circumstances its proposed reports may be publicized. Since the grand jury is an arm of the court and part of the judicial system, the court, subject to appellate review, may in some instances, limited though they may be, refuse to file a proposed report. It would be anomalous for a court of law to participate in the law's violation by filing a report that was itself the statute's violation.
In light of the above conclusion, petitioner's request for a writ of prohibition restraining the superior court from reviewing any grand jury report prior to filing is denied.
Wright, C.J., Sullivan, J., and Clark, J., concurred.
Preliminarily two observations are appropriate. First, it should be clearly understood that we are here concerned with the grand jury's investigative function, as distinguished from its accusatory role. The latter is an integral part of the criminal judicial process and thus invokes issues of constitutional dimension not apposite in this proceeding.
Second, no party appears to doubt that the superior court judge, in refusing to accept and file the grand jury's report, was well motivated.
The majority sugar-coat their conclusion by referring to "restricted" court control of grand jury reports (ante, p. 434) and "limited" authority to bury a proposed report (ante, pp. 440, 441). However polite the terminology, the ultimate result is that the grand jury, a duly constituted public agency, is denied the right to file its investigative conclusions with the court, and thus its report must remain forever concealed from the public. Censorship by any other name — restricted or limited — is nevertheless censorship. And censorship by a benevolent censor is no less censorship.
All parties concede there is no statutory authority for the superior court to refuse to accept and file the grand jury report, which by law shall be submitted to the presiding judge of that court. (Pen. Code, § 933.) That should end all judicial inquiry. However, the superior court relies on a vague and undefined inherent power to coerce the grand jury into refraining from reporting on subjects beyond the court's subjective concept of grand jury limitations. The anomalous result is that the court expands its jurisdiction in order to contract the jurisdiction of the grand jury.
As the majority note, a number of California cases have recognized the grand jury's investigative role. The case of Monroe v. Garrett (1971) 17 Cal.App.3d 280, 284 [94 Cal.Rptr. 531], is cited (ante, p. 437), but the majority overlook the impact of the very language they quote: "The public may, of course, ultimately conclude that the jury's fears were exaggerated or that its proposed solutions are unwise. But the debate which reports ... provoke [can] lead only to a better understanding of public governmental problems." (Italics added.) The public, not a judge, is to draw conclusions from the grand jury report. The public is to be provoked into debate; the judge is not to prevent debate by suppressing the report.
There are a number of cases which refer to the grand jury as a "judicial body," and from such references the majority leap to the loose generalization of an 1886 dictum (In re Gannon (1886) 69 Cal. 541, 543 [11 P. 240]) that the grand jury "is under the control of the court...." I cannot believe that the majority really mean to approve absolute court control of a grand jury.
In any event, the cases employed to support the majority's conclusion
Turpen v. Booth (1880) 56 Cal. 65, 69, involved a claim for civil damages against grand jurors; and in deciding against liability, the court said of grand jurors that "in the performance of such duties the law invests them with judgment and discretion." McFarland v. Superior Court (1948) 88 Cal.App.2d 153, 160 [198 P.2d 318], involved a writ of prohibition growing out of a manslaughter prosecution; said the court of the grand jury, "It is entitled to the respect and support of the courts."
Irwin v. Murphy (1933) 129 Cal.App. 713 [19 P.2d 292], not only fails to support the majority, it contains a discussion leading to a directly contrary conclusion. Said the court, at page 717: "Appellant argues that when the commission of a public offense is being inquired into or investigated the power of the grand jury is limited to a definite charge, whether by indictment or otherwise, against the person being investigated; that if the grand jury does not find sufficient evidence to indict, the power of the body terminates and any act thereafter is in excess of jurisdiction. We think this too narrow a construction to be placed upon the powers of a grand jury. As a matter of routine, if nothing further, the power to investigate includes as an integral part thereof the right and duty to report the result of such investigation." (Italics added.)
The several authorities from other jurisdictions cited by the majority are not helpful. They originate from states the grand jury traditions of which are so divergent that in totality they prove little other than that the digests will provide a case for virtually any proposition. The fact remains that no California case has held, or suggested, that a right exists in a judge to subject to prior approval the work product of the grand jury.
Indeed, no statute gives to a court the duty or right to investigate or report on county or other governmental affairs. Nevertheless the ability to suppress the whole, or to excise parts, of a report, in effect places with the court responsibility over the investigating and reporting of matters
The proper course is the traditional course. The grand jury may file its report — with the court only because the law directs that to be the resting place — and the grand jury alone assumes the responsibility for content. If there is to be any prior restraint on the grand jury, its work or its work product, the Legislature must authorize it. To date that has not been done.
The majority declare that fears of judicial censorship of grand jury investigations "are unfounded." (Ante, p. 441.) While they are understandably reluctant to discuss specifics of the case which gave rise to the problem before us, the majority graphically illustrate, by their conclusion, that there are very real perils to free public communication by a grand jury which has performed its duties.
The grand jury in this case considered operations of the county hospital's pathology department. The interim report sealed by the judge was the result of this investigation; the inquiry had been prompted by testimony of the sheriff-coroner of the county. The sheriff-coroner recited specific instances of maladministration of the pathology department of the county hospital, and related his apprehensions over the manner in which the alleged irregularities could affect homicide investigations, autopsies, insurance and potential civil liability. The hospital administrator is a county department head appointed by the board of supervisors, and the hospital itself is a revenue collecting agency of the county. Accordingly there can be no doubt that the grand jury's inquiry was justified under Penal Code section 925 (revenue), section 928 (county officers) and section 933 (county government).
Despite the manifest propriety of the investigation and of the substance of the subsequent report, the superior court judge saw fit to arbitrarily suppress the document. Such result in circumstances as clear as these certainly fails to warrant the sanguinity of the majority in discounting as "unfounded" any fears of judicial censorship.
But if we assume arguendo that the body proposed to report on subjects outside its ken, such a report might reflect upon its source, yet the irrelevance or impropriety of the official document does not justify its suppression. There are traditional and statutory boundaries to grand jury
A legislature may not enact an unconstitutional statute; such an act is wholly beyond its authority and jurisdiction. Yet no court would attempt to prevent the legislative body, by injunction or other order, from proceeding as it sees fit. As an independent public body it has the right to proceed, even in error. A court cannot enjoin the publication of a libel, prevent the erroneous exercise of discretion by a public official, or prohibit the commission of a crime. By parity of reasoning, a court cannot prevent a grand jury from expressing views on subjects the court believes improper, whether by direct order or by suppression of a report. When the court here attempted to do so, it acted on a misguided notion that its general advisory function embraced the role of censor. Yet pertinent code sections refer only to the court's duty to instruct the grand jurors (Pen. Code, § 914.1), to charge them as to their duties (ibid.), and to advise them when such advice is asked (Pen. Code, § 934). No authorization to tamper with the grand jury report is given to the court. Indeed, under Penal Code section 928, the grand jury is to submit a copy of its report on needs of county officers directly to each member of the board of supervisors. Since such copy does not go to the supervisors through the court, it seems clear that the Legislature anticipated no judicial revision.
Justice Black declared in New York Times Co. v. United States (1971) 403 U.S. 713, 724 [29 L.Ed.2d 822, 830, 91 S.Ct. 2140]: "Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health." Justice Frankfurter wrote in Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 532 [96 L.Ed. 1098, 1121, 72 S.Ct. 777]: "To paraphrase Doctor Johnson, if nothing may be shown but what licensors may have previously approved, power, the yea-or-nay-saying by officials, becomes the standard of the permissible." Or, to quote the blunt characterization by Justice Douglas in Hannegan v. Esquire, Inc. (1946) 327 U.S. 146, 158 [90 L.Ed. 586, 593, 66 S.Ct. 456]: "[A] requirement that literature or art [or public reports] conform to some norm prescribed by an official smacks of an ideology foreign to our system."
When Plato wrote that poets should be banished from his idyllic republic, he based his magisterial proposal on grounds that have been
I would issue the writ.
McComb, J., and Burke, J.,
Petitioners' application for a rehearing was denied February 26, 1975. McComb, J., and Mosk, J., were of the opinion that the application should be granted.
In reaching this conclusion the court rejected the contention that the California grand jury was a "purely" statutory body, wholly distinct from its common law predecessor. The court declared: "The [California] grand jury system is a product of the common law.... The members of the  constitutional convention in providing for a grand jury must have had in mind the grand jury as known to the common law.... The Constitution of 1879 did not attempt to change the historic character of the grand jury, and the system its members had in mind was evidently the same system that had come down to them from the common law. It is in no sense a statutory grand jury as distinguished from the common-law grand jury.... We must conclude ... that the Constitution of 1879 when it refers to the grand jury refers to it as it had always been known and understood prior thereto." (6 Cal.2d at pp. 240-241.) (See generally Kennedy & Briggs, Historical and Legal Aspects of the California Grand Jury System (1955) 43 Cal.L.Rev. 251, 262.)