Ex parte Robinson

• Decision Date: 30 January 1936
• Docket Number: 6 Div. 898
• Citation: 231 Ala. 503,165 So. 582
• Parties: Ex parte ROBINSON.
• Court: Alabama Supreme Court

165 So. 582

231 Ala. 503

Ex parte ROBINSON.

6 Div. 898

Supreme Court of Alabama

January 30, 1936

Original petition of Lewey Robinson for mandamus to Robt. J. Wheeler as Judge of the Circuit Court, Jefferson County.

Writ awarded conditionally.

Horace C. Wilkinson, of Birmingham, for petitioner.

Geo Lewis Bailes, Sol., and Robt. G. Tate, Deputy Sol., both of Birmingham, for respondent.

FOSTER Justice.

Petitioner who is also appellant, moved the circuit court to expunge from its records the report of a grand jury of Jefferson county in which petitioner and his official acts were criticized. That report stated that they failed to find evidence of such corruption as would warrant impeachment, but much evidence to show improper conduct in the management of the city's affairs, which they thought should be condemned in the strongest terms. No indictments were returned against petitioner, but he, as a city commissioner of Birmingham, was severely criticized by the report which went into much detail respecting his official conduct, which they thought was due to be, and was thus, condemned.

There is no question but that the circuit court had the power to expunge such report, if it should have been done. There are many cases reported in which such procedure was successfully prosecuted, and they will be here cited in connection with the propriety of such a report of the grand jury.

The only case in Alabama which deals with such a report is a suit for defamation against a newspaper for publishing the report. Parsons v. Age-Herald Publishing Co., 181 Ala. 439 61 So. 345, 349. Arising in that manner, the question was collateral to that which we now have. The court was inquiring whether it was such a judicial or public record as to be privileged. The court held that matter in such a report which touched the fitness for the office, or fidelity of its service, or propriety of official conduct, were properly matters of public interest, and privileged: holding that the law of defamation in that respect was "a compromise between private rights and the public good, and other cases must be decided as they arise, with a due regard for these conflicting interests." Before reaching that conclusion, the opinion states a principle whose language has been frequently quoted in cases decided by the courts of other states, 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." The opinion does not assert that the practice is legally justified, but the first quotation has often been treated by other courts as holding that it is not legally justified, since it asserted that such report is no part of a judicial proceeding, actual or potential.

It is made apparent in the later case of Peinhardt v. West, 217 Ala. 12, 115 So. 88, that the holding of the Court was merely that it was published as a document which carried the privilege. It was not because it was the province of the grand jury to make such a report. 22 A.L.R. 1367 et seq. And it has been held that members of the grand juries making such report are not subject to libel suits. Irwin v. Murphy, 129 Cal.App. 713, 19 P.2d 292. That opinion also justifies grand juries in making such reports. That is the only case we have seen which does so (not subsequently overruled), but the question was collateral, as in our Parsons Case, supra, which does not, as we have shown, go to the extent of saying that the grand jury has that legal right. We have not looked into the statutes of that state to see how far they are controlling on that subject.

On the other hand, where the question has arisen on direct attack as here, with one accord, the cases hold that the officer when he is thus criticized has the right in such a proceeding as this to have the report expunged. In one case it is thus expressed: "While...