Ex parte Burns

• Decision Date: 30 June 1954
• Docket Number: 7 Div. 238
• Citation: 261 Ala. 217,73 So.2d 912
• Parties: Ex parte BURNS.
• Court: Alabama Supreme Court

Page 912

73 So.2d 912

261 Ala. 217

Ex parte BURNS.

7 Div. 238.

Supreme Court of Alabama.

June 30, 1954.

Wilkinson & Skinner, Birmingham, for petitioner.

Si Garrett, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., amici curiae.

STAKELY, Justice.

Arthur Burns, the Solicitor of the 16th Judicial Circuit, moved the circuit court to expunge from its records the report of a Grand Jury of Etowah County in which he and his official acts were criticized. The court overruled and denied the motion and from this ruling of the court, the present appeal has been taken, with a prayer in the alternative for a writ of mandamus.

On October 12, 1953, the Grand Jury of Etowah County returned into court a report which was received and filed, which contains a number of accusations against the appellant. The accusations may be summarized as follows:

'1. Lack of cooperation between the sheriff's office and the Solicitor's office.

'2. An unwillingness on the part of the Solicitor to better relations between the Solicitor and the sheriff.

'3. Inefficiency.

'4. A bad attitude on the part of the Solicitor.

'5. The use of profane language in the performance of the Solicitor's official duties.

'6. Carelessness on the part of the Solicitor.

'7. Indifference on the part of the Solicitor.

'8. Lack of diligence in the prosecution of defendants brought before courts and grand juries charged with violation of prohibition laws.

'9. Repeated reduction of charges of transporting--to charges of violation of the prohibition laws--by the Solicitor.

'10. The treatment of hibitual violators of the prohibition laws as first offenders.

'11. Preferential consideration of a syndicate selling bonded whiskey over those charged with distilling or selling moonshine whiskey.

'12. Failure to prosecute in a fearless and impartial manner.

'13. Lack of diligence in condemning motor vehicles seized for transporting more than five gallons of liquor.

'14. Wearing fire-arms or a pistol in and about the courthouse and in and about his official duties.'

The grand jury did not indict or recommend impeachment proceedings against appellant.

Appellant filed a motion to expunge the report and each sentence, paragraph and part of the report that criticized appellant.

The Attorney General filed a motion to overrule and deny appellant's motion to expunge. The motion of the Attorney General was based on the grounds that the appellant had requested the Attorney General to investigate appellant's office, that the appellant publicly charged the sheriff with failure to enforce adequately the prohibition laws and the sheriff publicly charged the appellant, as Solicitor, with the same thing; that the charges were published in the Gadsden Times, a newspaper of general circulation in Gadsden and in Etowah County; that the appellant and the sheriff engaged in a public dispute through the newspapers on or about May 31, 1953; that the appellant appeared as a witness before the grand jury; that the grand jury returned the report sought to be expunged at the conclusion of the investigation.

Appellant made a motion to strike the motion of the Attorney General and to overrule and deny the motion of the Attorney General.

The court overruled appellant's motion to strike the motion of the Attorney General. The case was then submitted to the court on stipulations between counsel that certain publications were made in the Gadsden Times which were attached to the stipulation with the understanding however that the movant, Arthur Burns, did not admit the materiality of such facts. The court took the matter under advisement and on the 1st day of February, 1954, entered an order overruling and denying the appellant's motion to expunge the report of the grand jury. To this ruling of the court the appellant reserved an exception and now brings the case here by appeal and in the event an appeal will not lie, he asks in the alternative for a writ of mandamus, requiring Judge Pittman to grant his motion to expunge.

We have then a situation in which a grand jury has made a report highly critical of Arthur Burns in connection with the discharge of his duties as Solicitor of the 16th Judicial Circuit of Alabama. A part of the report is not only critical but defamatory and derogatory in its nature. There was, however, no indictment found by the grand jury against Arthur Burns nor was there any recommendation in the report that impeachment proceedings be instituted against him. Appellant has made a motion to expunge the report and this brings before us a matter of considerable importance.

In Ex parte Robinson, 231 Ala. 503, 165 So. 582, there was a motion to expunge from its records the report of a Grand Jury of Jefferson County in which the petitioner as City Commissioner and his official acts were criticized. The opinion in Ex parte Robinson, supra, quotes the language from the opinion in Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 61 So. 345, as follows:

'* * * 'They (grand jurors) are neither required nor authorized by any statute to report the result of such investigations (sections 4497 and 4519, Code) when they fail to find any impeachable fault or offense; and when they report and criticize any misconduct, real or fancied, of lesser grade, it cannot be for the purpose of invoking any judicial action, and is in fact no part of any judicial proceeding, actual or potential.' The opinion at another place proceeds: 'We cannot overlook the fact, which is a matter of common knowledge, that grand juries in this state have immemorially exercised this form of supervision over the official conduct of county officers, and have from time to time admonished them of alleged official misconduct, and criticized them for supposed official improprieties, and have brought such matters to the attention of the public, as a part of their general report to the court. This practice has the sanction at least of general custom, and may perhaps be justified by considerations of public welfare or necessity.' * * *'

It should be noted from the foregoing that it is a matter of common knowledge that a practice has grown up of long-time duration in which grand juries in Alabama have exercised supervision over the official conduct of county officers of lesser grade than impeachable fault or offense, have admonished them from time to time of alleged official misconduct, have criticized them for supposed official improprieties and have brought such matters to the attention of the public as a part of their general report to the court. It is asserted that this practice has the sanction at least of general custom and may well be based on considerations of public welfare or necessity. But the opinion in Ex parte Robinson, supra, goes on to show that a grand jury should never, where it has legal evidence of the commission of crime or impeachable conduct, merely criticize the official, but on the contrary, should either indict or recommend his impeachment or in fairness remain silent. The opinion quotes with approval these words from In re: Wilcox, 153 Misc. 761, 276 N.Y.S. 117, at page 124:

'* * * 'It cannot be that it was ever contemplated that this body, created for the protection of the citizen, was to have the power to set up its own standards of public or private morals, and to arraign citizens at the bar...