Granato v. Salt Lake County Grand Jury

• Decision Date: 10 December 1976
• Docket Number: No. 14425,14425
• Citation: 557 P.2d 750
• Parties: Frank GRANATO, Plaintiff and Appellant, v. The SALT LAKE COUNTY GRAND JURY et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 750

557 P.2d 750

Frank GRANATO, Plaintiff and Appellant, v. The SALT LAKE COUNTY GRAND JURY et al., Defendants and Respondents.

No. 14425.

Supreme Court of Utah.

Dec. 10, 1976.

Phil L. Hansen, D. Frank Wilkins, Salt Lake City, for plaintiff and appellant.

R. Paul Van Dam, Salt Lake County Atty., Salt Lake City, Walter R. Ellett, Murray, Stephen H. Anderson, Salt Lake City, for defendants and respondents.

WAHLQUIST, District Judge:

The appellant was the Chairman of the Salt Lake County Planning Commission. The Salt Lake County Grand Jury indicted him on two counts of requesting bribes and two counts of receiving bribes, all allegedly to affect zoning matters. He was taken into custody, on the warrants, and released on his own promise to appear.

The complete criminal file is not before this court, but the briefs of the parties concede that the District Court conducting the criminal proceeding refused to review the verbatim transcript of the witnesses on which the Grand Jury apparently relied in returning the indictment. In effect he has refused to review the sufficiency of the evidence to support the indictment. The criminal court also refused to order a preliminary hearing. The same court apparently disappointed the appellant herein by limiting the bill of particulars and the appellant's right to discovery. The judge cited State v. Faux, a 1959 case 9 Utah 2d 350, 345 P.2d 186 and permitted the defense counsel to examine the testimony of witnesses on the indictment, but prohibited the copying of the testimony and denied other requests. The appellant immediately filed this civil complaint in the nature of a writ of habeas corpus. He alleges that his freedom is constructively restrained by the defendants because:

1. The indictment in Criminal No. 28220 against the appellant was issued without sufficient probable cause.

2. The appellant was denied verbatim copies of transcripts of testimony of any and all witnesses who appeared before the grand jury relative to the indictment.

3. The appellant was denied the names, addresses, and telephone numbers of all persons interviewed by the grand jury to determine both inculpatory and exculpatory evidence.

4. The appellant was denied taking depositions of all persons deemed necessary for adequate preparation of his defense to the indictment.

5. The appellant was denied a preliminary examination before trial on the indictment.

The respondents moved tto dismiss the complaint. They assert that it does not state a cause of action upon which relief can be granted. The District Court (the same judge hearing the criminal matter) granted the motion to dismiss, but then apparently made an order in the criminal case suspending the proceedings until the appeal from his order in the civil matter was decided.

The named defendants in this civil proceeding are: first the 1975 Salt Lake County Grand Jury, second the Foreman thereof and the individual members, third some John Does 1 through 10 who have never been served or appeared.

The individual grand jurors, either individually or as a group, had no right nor power to make any disclosure of the testimony before it without a court order. ¹ Grand jury members as such have no power or obligation to account to individuals indicted for the logic of their action. The grand jurors have no power to either grant or free this appellant from the constructive restraints present on him. It is abundantly clear that the defendants herein named, either individually or as a 'Grand Jury,' are without the power to grant any of the relief here prayed for without an express court order; and no such express court order is alleged. The District Court therefore was justified in dismissing the complaint.

There is another compelling reason that the dismissal of the complaint was proper. Setting aside the obvious fact that the named defendants were powerless to grant the relief requested and assuming that a party with such power had been named a defendant, then the issue appears 'Should the writ of habeas corpus have been granted?' The Court holds that it should not.

This Court has held many times that the extraordinary writ of habeas corpus cannot be used in effect as a substitute for the orderly processes of appeal. ² What is requested in this case is in effect an intermediate appeal. If this writ were granted, it would have the effect of placing the criminal division of the District Court under the supervision of the civil division of the District Court via the surreptitious route of writ of habeas corpus. The development of such a procedure would be highly undersirable. The proceeding has in effect caused the delay of the criminal proceeding for over six months. If the Supreme Court deemed this a proper case to hear an intermediate appeal, it could grant such an appeal; ³ but to permit such a power to rest in the civil division of the District Court would cause an unnecessary complication in the process of criminal proceedings. The District Court was therefore justified in dismissing this application for release as an improper effort to substitute the extraordinary writ for the intermediate appeal.

In order for this Court to reach the issues requested to be determined by the appellant herein, the Court would not only have to ignore the obvious error in the naming of defendants, but would also have to ignore the unjustified attempt to develop a new form of intermediate appeal and then proceed to meet the purported issues head on. The Court refuses to do so. Insofar as the civil complaint is a justification for the delay of the criminal proceedings, in no longer exists.

The order dismissing the complaint is affirmed. The individual members of the grand jury named as defendants are awarded their costs, if any, herein.

CROCKETT, J., and RONALD O. HYDE and J. ROBERT BULLOCK, District Judges, concur.

MAUGHAN, Justice (dissenting):

Plaintiff, Chairman of the Salt Lake County Planning and Soning Commission, was indicted by a Grand Jury on two counts of soliciting a bribe and two counts of accepting a bribe; all are felonies. Plaintiff filed a petition for a writ of habeas corpus, alleging the illegality of his constructive restraint. The trial court dismissed the action on the ground the complaint failed to state a claim upon which relief could be granted. Plaintiff appeals. We should reverse, in part.

Prior to filing the complaint, plaintiff filed four motions seeking: 1) Verbatim copies of transcripts of testimony of all witnesses who appeared before the grand jury relative to the indictment, 2) The names, addresses, and telephone numbers of all persons interviewed by the grand jury to determine both inculpatory and exculpatory evidence, 3) Depositions of all persons deemed necessary for adequate preparation of his defense to the indictment, and 4) A preliminary examination before trial on the indictment.

The trial court denied motions 3) and 4); motion 2) was granted only insofar as to those witnesses whom the state would call at the trial. In regard to motion 1), plaintiff was denied verbatim copies of testimony of any witnesses who appeared before the grand jury relative to the indictment, but he was permitted to read the transcript of testimony of the three witnesses whose names were endorsed on the indictment. He was denied the right to take verbatim notes concerning the testimony of these three witnesses.

Thereafter, plaintiff filed the instant petition on the ground the trial court had no jurisdiction to proceed; because there was no probable cause for the indictment, and his restraint was in violation of due process and equal protection clauses of the state and federal constitutions.

We should rule that plaintiff could raise the issues in a habeas corpus proceeding; he is entitled to a preliminary hearing; he should be able to take depositions, except for members of the grand jury. The trial court did not err in limiting the names and addresses of witnesses to be revealed to plaintiff. Plaintiff should be permitted to make a verbatim copy only of the testimony of the witnesses whose names were endorsed upon the indictment as witnesses.

Did plaintiff state a cause of action upon which relief may be granted? I think so. The state vigorously urges plaintiff is not entitled to a writ of habeas corpus; because he is not restrained of his liberty--he is free on his own recognizance.

Rule 65B(a), U.R.C.P., provides:

. . . Where no plain, speedy and adequate remedy exists, relief may be obtained by appropriate action under these rules, on any one of the grounds set forth in subdivisions (b) and (f) of the Rule.

Plaintiff has proceeded under Rule 65B(f), U.R.C.P.

Appropriate relief by habeas corpus proceedings shall be granted whenever it appears to the proper court that any person is unjustly imprisoned or otherwise restrained of his liberty. . . .

In the case of In re Smiley ¹ the issue before the court was whether the remedy of habeas corpus was available to one who was at liberty on his own recognizance. The court observed that the use of habeas corpus had not been restricted to situations in which the applicant was in actual physical custody, but had been involved to relieve a wide variety of other restraints on a man's liberty. Both bail and a release on one's own recognizance are devices to assure one will attend court when his presence is required, and there are meaningful sanctions to assure such agreement is fulfilled. The court held such an individual is not free to go where he will, for he is subject to restraints not shared by the public generally; and, therefore, he is under sufficient constructive custody to permit him to invoke the writ. ²

In this jurisdiction, the writ of habeas corpus is used to protect one who is restrained of his liberty where there exists no jurisdiction or authority, or where the requirements of the law have been so ignored of distorted the party is substantially and effectively denied what...