Floyd County Grand Jury Presentments for May Term 1996., In re

• Decision Date: 25 March 1997
• Docket Number: No. A97A0638,A97A0638
• Citation: 484 S.E.2d 769,225 Ga.App. 705
• Parties: , 97 FCDR 1693 In re FLOYD COUNTY GRAND JURY PRESENTMENTS FOR MAY TERM 1996.
• Court: Georgia Court of Appeals

Page 769

484 S.E.2d 769

225 Ga.App. 705, 97 FCDR 1693

In re FLOYD COUNTY GRAND JURY PRESENTMENTS FOR MAY TERM 1996.

No. A97A0638.

Court of Appeals of Georgia.

March 25, 1997.

Michael J. Bowers, Attorney General, Michael E. Hobbs, Counsel to the Attorney General, Daryl A. Robinson, Deputy Counsel to the Attorney General, for appellant.

Stephen F. Lanier, District Attorney; Troutman Sanders, Norman L. Underwood, Atlanta, for appellee.

ELDRIDGE, Judge.

On September 6, 1996, the May Term Floyd County Grand Jury filed its presentments in the Superior Court of Floyd County. The presentments contained a report entitled "Attorney General's Investigation," which purported to detail actions of the Attorney General's Office relevant to the Hospital Authority of Floyd County (Hospital Authority) and certain individuals affiliated with the Hospital Authority. The presentment contained allegations which not only were critical of the Attorney General, but also cast reflections of misconduct and impugned the character of the Attorney General and his office.

A petition to expunge the grand jury report was filed by the Attorney General's Office on September 10, 1996, with the Superior Court of Floyd County, alleging that the report was ultra vires, contained false and misleading information, and was an abuse of the grand jury system at the hands of the Floyd County District Attorney who manipulated the grand jury in an effort to embarrass the Attorney General.

By way of background the Attorney General had previously sought and obtained a Fulton County indictment of the District Attorney in 1993 for false statements. This indictment was dismissed on venue grounds. Subsequently, an indictment charging the District Attorney with multiple counts of false statements and theft was presented by the Attorney General to a Floyd County grand jury, which rendered a no bill.

The petition to expunge further showed that the District Attorney had obtained indictments for making false statements against the Hospital Authority's attorney, Wade Monk, and against the Hospital Authority Executive Director, Bill Waters. Thereafter, the District Attorney immediately disqualified himself and his office from prosecuting the case. The Governor requisitioned the Attorney General to provide prosecutorial services in these previously indicted cases against Monk and Waters as "necessary and proper."

The District Attorney made a motion to dismiss the petition to expunge, and it was ordered sealed by the court because attached to the motion was a proposed grand jury report which had never been adopted by the grand jury. Also attached to the motion was a copy of a letter from the District Attorney to the Executive Counsel to the Governor asking that the Governor direct the Attorney General to undertake civil action against members of the Hospital Authority to resolve conflicts of interest and to recover possible improperly received profits.

A hearing was held on September 16, 1996, after which the trial court ordered that certain portions of the presentment referring to campaign contributions and referring to an Atlanta law firm doing Hospital Authority work was ordered expunged but left the remainder of the report unchanged. However, the remaining allegations in the report were left unchanged and intact by the trial court, and such matters ultimately were published in the legal organ for Floyd County. In so ruling, the trial court determined that the Attorney General was not acting as a state official in his activities involving the Hospital Authority, but as a "district attorney pro tempore." As such, the trial court concluded that the grand jury report related to local government issues, rather than a state office, and were thus proper for reporting by the grand jury. The trial court found that the grand jury digressed from its proper activities in reporting on the Attorney General's supposed motives and the "conduct of Mr. Bowers personally."

Notice of appeal was filed on October 29, 1996, because the trial court failed to completely expunge the record.

1. The first enumeration of error is that the trial court failed to expunge the entirety of that portion of the Floyd County Grand Jury Presentment for the May Term which related to the "Attorney General's Investigation" in that the remaining portion of the report concerned the actions of a state constitutional officer and state agency, and constituted an ultra vires act of the Floyd County Grand Jury beyond its statutory authority under OCGA § 15-12-71(a).

Since the grand jury proceedings are secret, OCGA § 15-12-73, it is possible that a grand jury as a group of laypersons can exceed the scope of their authority and, because of their membership, become involved in politics and in local feuds. It is for this reason that a superior court judge supervises the grand jury and has the duty to scrutinize, receive, and order filed the presentment of the grand jury. OCGA §§ 15-12-80; 15-12-100(a); 15-12-101; Thompson v. Macon-Bibb County Hosp. Auth., 246 Ga. 777, 778-779, 273 S.E.2d 19 (1980); In re Hensley, 184 Ga.App. 625, 626-627(1), 362 S.E.2d 432 (1987).

"[A] grand jury has no right in the absence of specific statutory authority to file a report charging or casting reflections of misconduct in office upon a public officer or impugning his character, except by presentment or true bill of indictment charging such individual with a specific offense against the State; and it is the fundamental right of one who is the subject of such extra-judicial report to have it expunged from the official records. [Cits.] ... It is our further opinion, however, that the instant report contained statements unnecessary to the purpose sought to be accomplished by the report, which under a reasonable interpretation thereof did by innuendo and implication cast reflections of misconduct upon the office of the [Attorney General]." Kelley v. Tanksley, 105 Ga.App. 65, 66-67, 123 S.E.2d 462 (1961).

"The grand jury had no right to return the report charging or casting reflections of misconduct in office upon the [Attorney General] or impugning his character, without a presentment or true bill of indictment charging him with a specific offense against the State; and it is the right of the [Attorney General], who is the subject of such extra-judicial report, to have it expunged from the official records. [Cit.]" Harris v. Edmonds, 119 Ga.App. 305, 166 S.E.2d 909 (1969); see also In re Presentments of the Lowndes County Grand Jury, March Term 1982, 166 Ga.App. 258, 259, 304 S.E.2d 423 (1983).

OCGA § 15-12-71(a) provides "[t]he duties of a grand jury shall be confined to such matters and things as it is required to perform by the Constitution and laws or by order of any superior court judge of the superior court of the county." Such provisions of the duties and limitations of a grand jury remain unchanged after the passage of Ga.L.1995, pp. 1292, 1296-1297, § 6. OCGA § 15-12-71(b)(1),(2) broadened the grand jury's civil powers of investigation. State v. Bartel, 223 Ga.App. 696, 479 S.E.2d 4 (1996). However, even while providing broadened powers for civil investigation, such amendment does not give a grand jury license to cast reflections of misconduct or impugn the character of a local office holder and thus exceed the purpose the presentment legitimately serves. Kelley v. Tanksley, supra at 67, 123 S.E.2d 462; see also Thompson v. Macon-Bibb County Hosp. Auth., supra at 778-779, 273 S.E.2d 19.

Further and notwithstanding that the grand jury presentment exceeded legitimate criticism of even a local official under its stated purpose, the Attorney General is not a local official. The Attorney General is a state official heading a state agency. Under no legal fiction does the expanded powers of OCGA § 15-12-71(b) allow a grand jury to civilly investigate a state official or agency; this Court expressly so held in Floyd County Grand Jury v. Dept. of Family & Children Svcs., 218 Ga.App. 832, 833-835(1), 463 S.E.2d 519 (1995). "[N]ot only are grand...