In re Grand Jury Transcripts

• Decision Date: 27 January 1970
• Docket Number: Misc. No. 595.
• Parties: In the Matter of Disclosure of GRAND JURY TRANSCRIPTS.
• Court: U.S. District Court — Southern District of Ohio

309 F. Supp. 1050

In the Matter of Disclosure of GRAND JURY TRANSCRIPTS.

Misc. No. 595.

United States District Court, S. D. Ohio, E. D.

January 27, 1970.

John C. Young, City Atty., and William C. Melvin, Asst. City Atty., Columbus, Ohio, for applicant.

William W. Milligan, U. S. Atty., and were within ambit of rule permitting Alvin J. McKenna, Asst. U. S. Atty., Philip R. Michael, Atty., Dept. of Justice, Washington, D. C., on behalf of United States, Paul Scott, Harold Wonnell, Richard Addison, Paul Cassidy, Robert Bell, David Kessler, George E. Tyack and Frank Shearer, Columbus, Ohio, in opposition to application.

OPINION AND ORDER

KINNEARY, District Judge.

This matter is before the Court on the application, made by Robert H. Baus, Chief of Police, City of Columbus, Ohio, for an order releasing the transcript of the Grand Jury proceeding taken in the case of United States of America v. Ryan, Cr. No. 9253 (S.D.Ohio 1969). The applicant also seeks authorization for the use of said transcript in certain proceedings to be held before the Director of Public Safety for the City of Columbus, Ohio, with respect to disciplinary charges brought against several of the policemen-defendants in the case of United States of America v. Ryan, supra.

At the hearing held on this matter on January 26, 1970, the City Attorney for the City of Columbus, Ohio, indicated on behalf of the applicant that only certain parts of the Grand Jury transcript were being sought, namely, the testimony of the witnesses John Kaiser, Melvin Helmandollar and Lewis Mullins.

Rule 6(e) of the Federal Rules of Criminal Procedure provides in part:

Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.

An initial determination to be made is whether or not the proceedings in which this Grand Jury testimony is sought to be used is "preliminarily to or in connection with a judicial proceeding." The Supreme Court of Ohio has held, with respect to a proceeding essentially the same as that to be held before the Director of Public Safety of the City of Columbus, Ohio, that the acts of the director in inquiring into the cause of such suspension of a police officer and rendering a judgment thereon are administrative and quasi judicial, and not judicial. State ex rel. Smith v. Barnell, 109 Ohio St. 246, 142 N.E. 611 (1924).

The Court determines that the quasi judicial nature of the proceedings before the Director of Public Safety brings those proceedings within the ambit of Rule 6(e) Fed.R.Crim.P. in that they are "preliminarily to or in connection with a judicial proceeding." In Doe v. Rosenberry, 152 F.Supp. 403 (S.D. N.Y.1957), the Court held that preliminary inquiry by a Bar Grievance Committee with respect to whether a complaint should be filed and disciplinary proceedings instituted against a member of the Bar was quasi judicial in nature and thus disclosure of certain Grand Jury testimony was permissible under Rule 6(e) Fed.R.Crim.P. In affirming the order of the district court, the Second Circuit said:

We cannot agree that the Rule 6(e) should be limited to criminal proceedings; on the contrary we hold that, prima facie, the term "judicial proceeding" includes any proceeding determinable by a court, having for its object the compliance of any person, subject to judicial control, with standards imposed upon his conduct in the public interest, even though such compliance is enforced without the procedure applicable to the punishment of crime. Doe v. Rosenberry, 255 F.2d 118, 120 (2d Cir. 1958).

The City Charter of the City of Columbus, Ohio provides, with respect to a judgment of the Director of Public Safety on the suspension of a police officer, for appeal to the City Civil Service Commission and thereafter to the Court of Common Pleas. See, analogously, §§ 143.27 and 119.12, Ohio Revised Code. Thus, resort to judicial review is clearly contemplated with respect to the hearings before the Director of Public Safety. The Court further relies on the case of In re Bullock, 103 F.Supp. 639 (D.C. District of Columbia 1952) wherein the court stated:

The right to an office or employment with the Government or any of its agencies is not a "vested property right". citing cases "If they (the police officers) were guilty of the reprehensible conduct attributed to them, namely, of accepting graft in return for protecting Gross in his illegal business, their continued retention on the police force would have made law enforcement

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