Application of Johnson

• Decision Date: 03 August 1973
• Docket Number: No. 72-1344.,72-1344.
• Citation: 484 F.2d 791
• Parties: Application of Deborah JOHNSON et al.
• Court: U.S. Court of Appeals — Seventh Circuit

484 F.2d 791 (1973)

Application of Deborah JOHNSON et al.

No. 72-1344.

United States Court of Appeals, Seventh Circuit.

Argued April 13, 1973.

Decided August 3, 1973.

As Amended August 22, 1973.

Jonathan M. Hyman, Chicago, Ill., David Scribner, New York City, William J. Bender, Arthur Kinoy, Newark, N. J., for appellants.

John C. Hoyle, Atty., U. S. Dept. of Justice, Washington, D. C., James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before HASTINGS, BARNES,^* and SPRECHER, Circuit Judges.

BARNES, Circuit Judge.

This is an appeal from a decision of the District Court (1) declining to issue an order (a) annulling, and (b) directing the Clerk of the District Court to expunge, from the Records of the District Court, a report made on May 15, 1970, by the January Grand Jury of the District Court for the Northern District of Illinois, Eastern Division; and (2) dismissing, on motion of the Government, the said application for such annulment and expunction.

The order made on February 24, 1972 is concise and reads as follows:

"ENTER ORDER: Granting the Government's motion to dismiss this application to expunge a grand jury report.

"The report in question was issued by the January 1970 Grand Jury upon authorization by this court on May 15, 1970. Pursuant to this court's order, copies of the report were distributed to designated public officials, the news media, and the general public at a nominal cost.

"Fifteen months after the grand jury report had been widely distributed, these three applicants moved to expunge that report on the grounds that the grand jury exceeded its lawful authority and violated Rule 6(e), Federal Rules of Criminal Procedure, by issuing the report and, further, that these applicants were prejudiced by certain statements contained in the report itself.

"The secrecy of grand jury proceedings is not absolute; authorization of disclosure by means of grand jury reports or otherwise is committed to the discretion of the court. In re Grand Jury January, 1969, 315 F.Supp. 662 (D. Md.1970), and cases cited therein. Here, the court specifically found that disclosure of the grand Jury's findings was in the public interest. The court therefore concludes that issuance of the grand jury report was lawful.

"Furthermore, the contention that these applicants are prejudiced by the continued existence of the report also lacks merit. The report does not accuse them of any criminal conduct, nor are they under indictment in this court or any other court for activities related to the matters discussed in the grand jury report. Their reliance on Hammond v. Brown,^* 323 F.Supp. 326 (N.D.Ohio 1971), aff'd 450 F.2d 480 (6th Cir., No. 71-1278, October 22, 1971) is therefore misplaced.

"Under all of these circumstances, this court is of the opinion that the application lacks merit and should be dismissed."

Appellants assert as grounds for their application:

(a) the Grand Jury had no authority to issue the Report;

(b) the Report and its disclosure violate the rule of secrecy of grand jury proceedings;

(c) the recommendations as to conduct of executive agencies violate the doctrine of separation of powers;

(d) the recommendations as to conduct and function of news media, and the conduct of lawyers in criminal cases, are beyond the jury's lawful authority and jurisdiction;

(e) the submission of the grand jury conclusions and recommendations to "public exposure" is beyond the authority and jurisdiction of the grand jury;

(f) that the charge and findings that the failure and refusal of certain named persons to testify before the grand jury are contrary to law and the scope of the jury's authority and jurisdiction;

(g) the repetition of newspaper reports on the purported conduct of Black Panther leaders, members and adherents, including plaintiffs, was beyond the scope of the grand jury's power;

(h) the report evidences bias against the Black Panther party, its members and adherents, including plaintiffs (i) the report "acted as a public Grand Censor" of the views and conduct of the community, the Black Panther Party, its members and adherents, including the "victims of the police raid of December 4, 1969, and those of the news media";

(j) applicants were accused of conduct constituting a crime.

The United States, appearing in opposition to the motion, urges there are but two questions involved:

1. Whether the order of the district court dismissing the application to expunge is an appealable order; and

2. If so, whether the district court erred in dismissing an application to expunge from the record a grand jury report published and distributed pursuant to an order of the district court where the application was made fifteen months after the publication of the report and the applicants are not accused in the report of any illegal activity.

We need to state here further background. The notice of appeal herein was timely filed on March 23, 1972. On April 3, 1972, appellants filed a petition for a Writ of Mandamus entitled Deborah Johnson, et al. v. Chief Judge Robson, in the district court of the Northern District of Illinois No. 71 C 1908, stating they believed a Writ of Mandamus rather than an appeal to be the correct procedure to follow. (Pet. at 7). This Court denied the petition for a Writ of Mandamus to require the District Court to expunge in a short order.¹

We agree that relief through a Petition for Mandamus is the proper procedure with which to have the Court of Appeals require a district court to consider the application.²

The United States Court of Appeals is a statutory court and its jurisdiction is created and established by statute alone. 28 U.S.C. §§ 1291 and 1292 are the statutes, covering certain final opinions and certain interlocutory orders, enabling the taking of appeals. We also have jurisdiction by use of prerogative writs, authorized by 28 U.S.C. § 1651 — the "All Writs" statute. "Review by prerogative writ is extraordinary and rare." Moore, Federal Practice, § 110.01. We have no other jurisdiction than that thus given by statute.³

There being no criminal case pending against petitioners in the district court, the order of the district court was unrelated to the merits of a criminal trial, "and thus cannot be raised on appeal." Chase v. Robson, 435 F.2d 1059, 1062 (7th Cir. 1970).

Because, however, such unusual motions as that made below are "final" in the sense that they are not interlocutory with relation to any pending matter, and are final as far as any relief to petitioners is concerned, the courts have at times seen fit to rely on the so-called "supervisory mandamus" power first enunciated in and recognized by the Supreme Court in LaBuy v. Howes Leather Co., 352 U.S. 249, 259-260, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). Cf. Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L. Ed.2d 152 (1964).

While an ordinary writ of mandamus will only issue to require a district judge to act, this "supervisory jurisdiction" is said to arise under the all-writs statute, "to correct error or abuses of discretion on the part of district judges in dealing with grand jury investigations." United States v. United States District Court, 238 F.2d 713, 719 (4th Cir. 1965), cert. denied, 352 U.S. 981, 77 S.Ct. 382, 1 L.Ed.2d 365 (1957).

But appellate courts are advised to be cautious in their approach to claimed rights under the all-writs statute, and "to confine an inferior court to a lawful exercise of its prescribed jurisdiction, or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Ass'n, 319 U. S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). Obviously, the district court here had not refused to act; it acted when it denied the motion to quash, and dismissed the petition. Thus, the sole issue before this Court on the earlier mandamus petition was whether the exercise of the district court's jurisdiction was lawful, and not an abuse of discretion.

That mandamus was the proper procedure to obtain a review of the refusal of the district court to annul and expunge does not mean that the refusal by this Court to grant relief was error. Such a type of review is "extraordinary" and "reserved for exceptional cases." Ex Parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947).

This is particularly true when the appellate courts are asked to consider the manner in which the district courts supervise grand juries. In re Texas Co., 91 U.S.App.D.C. 272, 201 F.2d 177 (1952), cert. denied, 344 U.S. 904, 73 S. Ct. 283, 97 L.Ed. 698 (1952); Pet. of A. & H. Transportation Co., 319 F.2d 69, 70 (4th Cir. 1963), cert. denied, 375 U.S. 924, 84 S.Ct. 266, 11 L.Ed.2d 166 (1963); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Chase v. Robson, supra.

We hold this appeal presently before us is taken from an unappealable order, which can only be reached by a petition for mandamus. That remedy has been tried, and failed.

We recognize that other Circuit Courts have exercised jurisdiction over actions of district courts with respect to grand jury reports, either after the report had been ordered filed as a public record, or had been ordered published. An example of the former is a recent case in the Fifth Circuit, decided June 4, 1973, entitled: In re Report of Grand Jury Proceedings filed on June 15, 1972, Honorable Jerry Woodward, et al., Appellants. 479 F.2d 458. In that opinion, no reference was made to the jurisdiction of the appellate court to consider the district court's order. Neither does it appear from the opinion whether it had to do with a "special" grand jury, which was specifically authorized by Congress in 1970 (18 U.S.C. § 3333) to make reports. We know it was not in this case, however, because the May 15, 1970 Order of Publication, made by Judge Robson in this case, was made prior to the...