Opinion
Rehearing Denied June 28, 1973.
Opinions on pages 637-653 omitted.
Opinion appearing on pages 637 to 647 deleted due to hearing granted.
Opinion appearing on pages 648 to 653 deleted on direction of Supreme Court by order dated August 8, 1973.
For Opinion on Hearing, see, 119 Cal.Rptr. 193, 531 P.2d 761.
[108 Cal.Rptr. 210]David D. Minier, Dist. Atty. of County of Santa Barbara by Patrick J. McKinley, Deputy Dist. Atty., for petitioner and John W. Carpenter.
George P. Kading, County Counsel, Robert D. Curial, Chief Asst. County Counsel, Marvin Levine, Deputy County Counsel, for respondent.
Stanford D. Herlick, San Bernardino, amicus curiae petitioner.
COMPTON, Associate Justice.
The District Attorney of Santa Barbara County, David D. Minier, acting on his own behalf as a taxpayer and on behalf of the People of the State of California, filed a petition for mandate and prohibition against respondent, the Superior Court of Santa Barbara County, Judge Floyd C. Dodson, presiding. The 1973 Santa Barbara Grand Jury and John W. Carpenter, Sheriff-Coroner of the County of Santa Barbara, are designated as the real parties in interest. Sheriff Carpenter, however, has filed with this court a document entitled 'Notification of Representation of Real Party in Interest, John W. Carpenter, Sheriff-Coroner of the County of Santa Barbara,' stating 'It is my desire that the District Attorney of the County of Santa Barbara represent me in all proceedings before the Court in this matter. Insofar as I am a Real Party in Interest with respect to the prayed for relief, my interests are identical to the Petitioners.'
The Grand Jury has filed a similar document stating that 'The 1973 Santa Barbara County Grand Jury does not believe that it is necessary to have representation but is interested in the resolution of the questions raised in the petition and will abide by whatever decision is forthcoming.'
According to the petition, the district attorney seeks (1) 'to prevent the enforcement of an order by the respondent directing the 1973 Santa Barbara Grand Jury to submit all reports to the presiding judge for his approval before they are filed;' (2) 'to compel the respondent to set aside portions of its unlawful charge to the 1973 Santa Barbara Grand Jury in which the respondent directed the Grand Jury to submit said reports, and further, directed the Grand Jury that it was prohibited from commenting on a public official in a Grand Jury report unless the official was indicted or accused,' and (3) 'to compel the respondent to set aside its order suppressing an interim report that was attempted to be [108 Cal.Rptr. 211] filed by the 1972 Santa Barbara Grand Jury.'
At issue is the power of the superior court of a county to exercise control over the content of a report filed by the Grand Jury under the authority of Penal Code sections 928 and 933.
Penal Code section 928 provides that 'Every grand jury shall investigate and report upon the needs of all county officers in the county, including the abolition or creation of offices and the equipment for, or the method or system of performing the duties of, the several offices. It shall cause a copy of such report to be transmitted to each member of the board of supervisors of the county.'
Penal Code section 933 provides that 'On or before December 31 of each year, each grand jury impaneled during that calendar year shall submit to the presiding judge of the superior court a final report of its findings and recommendations that pertain to county government. No later than the 60th day after the discharge of said grand jury, the board of supervisors shall comment on the findings and recommendations of a grand jury that pertain to county government matters under the con trol of the board and every elective county officer shall report to the board of supervisors on the findings and recommendations pertaining to such county officer. All such comments and reports shall forthwith be submitted to the presiding judge of the superior court who impaneled the grand jury for the previous calendar year. A copy thereof shall be placed on file with the county clerk and shall remain on file in the office of the county clerk.'
It is the position of petitioner that the Grand Jury should be permitted to file its report 'unfettered, unhampered and unrestrained by the arbitrary acts of a Superior Court Judge imposing requirement of prior approval of Grand Jury reports.' On the other hand respondent's position is generally that it has the authority 'To assure that the report is limited to subjects cognizable by the grand jury; to assure that the report is based on an actual investigation by the grand jury or a committee thereof; to protect individual members of the grand jury and the county from civil claims for damages as a result of dissemination of libelous nonprivileged material; and, to assure that no violation of law has occurred in connection with disclosure of occurrences or testimony before the grand jury which the law requires remain secret.'
Additionally, respondent contends that for reasons to be discussed, infra, the matter of the instant petition is moot.
FACTS GIVING RISE TO THIS PETITION
On October 3, 1972, the District Attorney of Santa Barbara presented evidence before the 1972 Santa Barbara Grand Jury concerning the Santa Barbara County Pathologist, Lawrence L. McAlpine, M.D. Dr. McAlpine performed as county pathologist at the Santa Barbara County General Hospital under a contract with the county. This contract called for Dr. McAlpine to operate the Pathology Department at the hospital and to conduct training and teaching, all in accordance with professional standards. Dr. McAlpine was to receive the sum of $120,000.00 per annum for furnishing this service.
Those who testified at the hearing were a deputy sheriff assigned to the coroner's detail, a representative of a mortuary, Sheriff Carpenter, the administrator of the County General Hospital, a deputy county counsel, the county administrative officer and Dr. McAlpine. Following this testimony the Grand Jury filed with the superior court an interim report containing certain conclusions and recommendations and appended to that report was a transcript of the testimony of the above named witnesses.
On October 24, 1972, at a closed meeting of the Grand Jury, attended by the presiding judge, Assistant Presiding Judge Stevens, members of the county counsel's office and the office of the District Attorney, Judge Dodson rejected the interim report [108 Cal.Rptr. 212] as being beyond the scope of the jury's duties, warned of possible libel actions against the jurors arising from statements in the report and informed them of his duty and right to see that the report not be made public. Judge Dodson then ordered the report sealed and directed the jury to turn to preparation of their final report with the assistance if necessary of the county counsel.
On January 9, 1973, the Grand Jury submitted a final report to the presiding judge which was filed.
A part of the final report of the 1972 Grand Jury contained a special report which read as follows: 'During an investigation of the Pathology Department of the General Hospital, the Grand Jury was made aware of contract hiring procedures prevailing throughout the County. Furthermore, lack of communication between the various departments, department heads and administrators was brought to our attention. These two matters caused serious concern among the entire Grand Jury. It was felt that since many of these practices occur in other departments, it was a matter for a special report. FINDINGS: 1. The Administrator or Department head, the individual and his attorney are the only ones involved in the drawing up of conditions of Contract Employees. 2. The Administrator or Department Head is solely responsible for the investigation of qualifications of Contract Employees. 3. The amount of monies involved with Contract Employees appears to be a matter of concern only between individuals involved. These positions are not processed by County Personnel Department, nor are they subject to any of their regulations. 4. The County Counsel's office called to our attention the lack of time allowed their office in a great many cases to thoroughly study contents of contracts before sending them to the Board of Supervisors for their approval. 5. Even though there was great dissatisfaction with the personnel involved, no other responsible persons were made aware of problems that had been occurring over a period of several months. RECOMMENDATIONS: 1. Contracts should be based on a competitive-prevailing basis. They should, where necessary, be based on a fee for service not on a high percentage of gross receipts. 2. Medical doctors employed by the County should be fully evaluated regarding their professional qualifications by a carefully selected screening board. This board should include doctors of medicine, administrators, and appropriate other officials. Further, thorough background investigations should be made on prospective medical applicants prior to the time of their employment, to determine their reputation and competency in their profession. 3. All contracts should be presented to the County Counsel's office a minimum of seven (7) business days prior to being placed on the agenda of the Board of Supervisors. 4. The 1972 Santa Barbara County Grand Jury strongly restates the urgent need of a citizen Board [108 Cal.Rptr. 215] of Directors at the Santa Barbara General Hospital.'
Thereafter, on January 9, 1973, the presiding judge charged the 1973 Grand Jury, including the following instruction:
'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 approved it for filing.' It is this instruction which is the focal point of the controversy.
The Grand Jury is an instrumentality of the courts of the state. (In re [108 Cal.Rptr. 213] Shuler, 210 Cal. 377, 405, 292 P. 481.) Although its powers are broad, it has no inherent investigatory powers not granted by statute. (Allen v. Payne, 1 Cal.2d 607, 36 P.2d 614; Greenberg v. Superior Court, 19 Cal.2d 319, 121 P.2d 713; In re Gannon, 69 Cal. 541, 11 P. 240; Matter of Tyler, 64 Cal. 434, 1 P. 884.)
The Penal Code of this state contains certain enumerated powers and duties of the Grand Jury which, in addition to sections 928 and 933, supra, are:
Section 917: 'The grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment.'
Section 919(c): 'The grand jury shall inquire into: . . . (c) The wilful or corrupt misconduct in office of public officers of every description within the county.'
Section 922: 'The powers and duties of the grand jury in connection with proceedings for the removal of district, county, or city officers are prescribed in Article 3 (commencing with Section 3060), Chapter 7, Division 4, Title 1, of the Government Code.'
Section 925: 'The grand jury shall annually make a careful and complete examination of the accounts and records, especially those pertaining to revenue, of all the officers of the county, and report as to the facts it has found, with such recommendations as it may deem proper and fit.'
Thus the Grand Jury is empowered to examine the operations and accounts and needs of county offices and to inquire into the misconduct of county public officers of every description within the county.
The determination of what is a 'public office' depends 'not upon how the particular office in question may be designated nor upon what a statute may name it, but upon the power granted and wielded, the duties and functions performed, and other circumstances which manifest the nature of the position and mark its character, irrespective of any formal designation.' (Leymel v. Johnson, 105 Cal.App. 694, at 697, 288 P. 858, at 859; 21 Cal.Jur. 819, 820.)
That Dr. McAlpine was a public official is not open to question. His power to make official decisions regarding cause of death and related matters and his apparent autonomy of operation, made him a 'public official' within the purview of the Penal Code sections in question and his activities were a legitimate subject for Grand Jury scrutiny.
The authority of the Grand Jury to report on the results of its investigations has been discussed in two leading California cases. Irwin v. Murphy, 129 Cal.App. 713, 19 P.2d 292, involved an investigation into the death of one of the participants in a boxing match. The Grand Jury failed to return an indictment but in reporting on its investigation, it branded the boxing commissioners as unfit and recommended the lifting of the referee's license for carelessness and inefficiency. The referee brought a defamation action against the members of the Grand Jury alleging that the jury had exceeded its jurisdiction in filing such report. The Court of Appeal disagreed and stated at page 717, 19 P.2d at page 293: '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. . . . Such a duty, coupled with the power of investigation, almost demands completeness of disclosure on matters investigated. . . . [I]f a grand jury is authorized and bounden to inquire of public offense, a necessary element of this power must be the power and duty to disclose the result of the inquiry.' The court thus concluded that the report was privileged as a judicial proceeding.
In Monroe v. Garrett, 17 Cal.App.3d 280, 94 Cal.Rptr. 531, plaintiff brought a taxpayer's action against the Grand Jury of Los Angeles seeking reimbursement of sums spent by it in filing a report alleged to be beyond its jurisdiction.
[108 Cal.Rptr. 214]There the Grand Jury had conducted an investigation into three criminal cases involving public offenses committed on college and high school campuses. Subsequently the Grand Jury filed a report critical of the Educational Opportunities Program and recommended that students and faculty members who were held for trial of a criminal offense alleged to have taken place on campus be suspended pending disposition of the case. The Court of Appeal held that the report was not beyond the authority of the Grand Jury stating at page 283, 94 Cal.Rptr. at page 532: 'The Grand Jury may inquire into all public offenses committed or triable within the county. (Pen.Code, § 917; People v. Beatty (1860) 14 Cal. 566.) Although the Grand Jury should not engage in fishing expeditions of its own, the Attorney General has the authority to direct the Grand Jury to investigate matters of public interest. (Pen.Code § 923; (1962) 2 Santa Clara Lawyer, 78, 82; see also Samish v. Superior Court (1938) 28 Cal.App.2d 685, 83 P.2d 305.) Even if the grand jury cannot initiate investigations and make recommendations it can investigate and make recommendations if the investigation grows out of legitimate inquiry into criminal or corrupt activity. ((1964) 52 Cal.L.Rev. 116, 122, 123.)'
To be sure, there are limitations upon the Grand Jury's authority to report on its activities.
Penal Code section 939.9 requires that any report be based solely on an investigation conducted by the Grand Jury itself. Penal Code section 930 enacted since the decision in Irwin v. Murphy, supra, provides: 'If any grand jury shall, in the report [under Pen.Code § 928] comment upon any person or official who has not been indicted by such grand jury such comments shall not be deemed to be privileged.'
Further limitations on the conduct of grand juries are contained in Penal Code section 924 making it a misdemeanor for a grand juror to wilfully disclose the fact of an indictment prior to the arrest of the defendant, and Penal Code section 924.1 which makes it a misdemeanor for a grand juror to disclose evidence adduced before the grand jury or the manner in which any member of the jury voted.
These various sections stand as statutory injunctions against certain conduct. They carry no express or implied authority of the court to prevent their violation by the device of censoring the grand jury's reports or predetermining, without litigation, whether any comments of the jury are libelous.
Had the Legislature intended to invest the court with the power sought to be exercised by the respondent here, it could have easily done so. For example, in enacting Penal Code section 930 removing the shield of privilege from comment on persons not indicted, the Legislature could have simply invested the court with the power of review before release of the report. An example of such specific legislation is to be found in Penal Code section 938.1(b) enacted in 1971 which provides in case of an indictment or accusation that 'The transcript shall not be open to the public until 10 days after its delivery to the defendant or his attorney. Thereafter the transcript shall be open to the public unless the court orders otherwise on its own motion or on motion of a party pending a determination as to whether all or part of the transcript should be sealed. If the court determines that there is a reasonable likelihood that making all or any part of the transcript public may prejudice a defendant's right to a fair and impartial trial, that part of the transcript shall be sealed until the defendant's trial has been completed.' In the absence of a similar specific legislative grant of authority to the court in connection with the Grand Jury's reports, we cannot infer its existence.
Respondent relies on the language of Penal Code section 933 which requires the Grand Jury to 'submit' its annual report to the presiding judge. Such reliance is misplaced. That section also provides that the board of supervisors shall 'submit' [108 Cal.Rptr. 215] their comments and recommendations on the Grand Jury report to the presiding judge prior to filing with the county clerk. Surely it was not intended that the court be able to alter the board's contribution. The court is simply the designated point of reception for the transmission of the reports.
The section makes no mention of the right of the judge to interfere with the transmission process, going either way, in order to satisfy his own individual idea of what is proper for a grand jury report. Out of such silence can come no implied power to censor Grand Jury reports.
As one of the legal advisers to the Grand Jury, the court has certain access to the jury and its deliberations but the role of adviser is not one of exercising any control of the type here involved.
The clear intent of the Legislature appears to call for the Grand Jury to prepare and file an independent report. Such independence necessarily calls for a report intact in all particulars, unaltered by outsiders--in brief, the unadulterated report of the Grand Jury. The action of the court in rewriting or impeding the transmission of the report is the equivalent of placing another person on the jury, one with supervening editorial, or suppression power. The report, if altered as a result of addition or excision by the judge, would not be based solely on the independent investigation of the jury as demanded by Penal Code section 939.9.
The court's assumption of a duty to protect the grand jurors as individuals undoubtedly springs from the most altruistic motives. So too, with the court's desire to shield a non-indicted person from gratuitous condemnation. These motives must, however, yield to the public need to retain an independent grand jury.
While the law of libel and slander or other civil and criminal sanctions may not be the most effective safeguards against grand jury excesses, the legislative scheme in California provides no other. Nothing is to be found in that scheme which constitutes the presiding judge as the sole arbiter of propriety in grand jury reporting.
The action of the respondent in suppressing the interim report of the 1972 Grand Jury was error.
The charge to the 1973 Grand Jury, insofar as it calls for submission of reports for the judge's approval prior to filing, is also in error.
We decline, however, to order respondent to set aside its suppression of the interim report of the 1972 Grand Jury. Both the report and the Grand Jury have been overtaken by the passage of time. The regular impanelment of the 1973 Grand Jury ended the life of the old jury (Halsey v. Superior Court, 152 Cal. 71, 91 P. 987) and the content of the interim report appears to have been substantially covered in the final report of the Grand Jury. It is now a practical impossibility at this date to determine if the 1972 jury intended the final report to subsume its interim report. In any event, since a comparison of interim and final reports indicates substantially similar content, the problem of the interim report appears to be moot.
On the other hand, the question of the reporting power of the 1973 Grand Jury is not moot. The court's instruction to the jury and to the clerk evidences a clear intent to exercise control over future reports.
Let a peremptory writ of prohibition issue prohibiting the respondent Superior Court of Santa Barbara County from (1) altering, amending or in any way interfering with the filing of future reports of the Grand Jury, or (2) attempting to coerce or dictate the Grand Jury's determination of the content of its reports.
ROTH, P. J., and HERNDON, J., concur.
Page 38 of the part of the final report contained the following language. 'Ventura County's contract for Group Pathologists at a cost of $60,000.00, based on a fee for service, and not on a percentage of gross receipts, is a more realistic approach. Santa Barbara County with its 100,000 smaller population should pay less for this service. The new proposed contract is $7,500.00 per month for six months. This would mean an annual salary of $90,000.00 per year which we deem excessive. In 1970 the County Pathologist was paid $26,042.00 per year. CITIZEN BOARD OF DIRECTORS: All our findings accentuate the obvious need for a Citizens' Board of Directors at Santa Barbara General Hospital. This is a very acceptable procedure at most private hospitals. Men of good will should be very much in favor of such a body. It adds nothing to the County costs and much to the efficiency and productivity which this Hospital sorely needs. We wish to emphasize the fact that the Santa Barbara General Hospital is still overstaffed. This is apparent to any visitor to the Hospital. This situation is sanctioned by the Administrators and paid for by the taxpayers.'