Report of Grand Jury, In re

• Decision Date: 28 July 1953
• Docket Number: No. 7856,7856
• Citation: 260 P.2d 521,123 Utah 458
• Parties: In re REPORT OF GRAND JURY. SHOEMAKER et al. v. STATE.
• Court: Utah Supreme Court

Page 521

260 P.2d 521

123 Utah 458

In re REPORT OF GRAND JURY SHOEMAKER et al. v. STATE.

No. 7856.

Supreme Court of Utah.

July 28, 1953.

George S. Ballif, Provo, E. Richard Collister, Jr., Atty. Gen., for appellants.

Clifford L. Ashton, Salt Lake City, C. M. Aldrich, Provo, for respondents.

WOLFE, Chief Justice.

This is an appeal from an order of the lower court granting the motion of the respondents to expunge from the records of the court certain portions of a report made by a Utah County grand jury.

In August of 1951 a grand jury was drawn and impaneled for Utah County. In its charge to the jurors, the court directed them to report any 'undesirable or questionable' conditions worthy of special comment which they might find in the course of their investigation, even though no indictment may be found, in order that the 'public of this County may be informed as to the condition of the health of their government and administration.' After deliberating for three and one-half months, the grand jury presented a report entitled 'Grand Jury Presentment,' signed individually by each juror. The report, comprised of seven divisions, consisted of findings and recommendations concerning (1) the Utah State Training School in American Fork, Utah County, (2) the Utah State Hospital (3) operations of the State Road Commission in Utah County (4) affairs of Utah County (5) the Alpine School District (6) law enforcement in Provo City, and (7) general recommendations. The report both commended and condemned, and in some instances either charged or cast inferences of maladministration and misconduct on the part of certain public officers.

After the report had been presented to the court and made public, the respondents moved to have the report expunged from the records of the court and filed affidavits in support of their motions. The respondents are the commissioners of the State Welfare Commission which has supervision of the State Training School and the State Hospital, the commissioners of the State Road Commission, and Provo City. Upon hearing the motions, the court below ordered expunged those portions of the report dealing with the State Training School, the operations of the State Road Commission in Utah County and part of the report dealing with law enforcement in Provo City. From that order this appeal is prosecuted, the appellant contending that in this state a grand jury may make a report of its investigations even though it does not return an indictment.

Before considering the appellant's contention, it should be noted that throughout this opinion we will refer to the grand jury's report as a report although the jury in the instant case entitled it a 'presentment.' The respondents claim that a 'presentment' by a grand jury is not a report of conditions found by the jurors, but is an informal accusation of a crime addressed to the public prosecutor and differing from an indictment only in form. In some cases the two words are used interchangeably. The words 'presentment' and 'present' appear in Sec. 77-18-4, Utah Code Annotated 1953, prescribing the oath which must be administered to the foreman of the grand jury:

'* * * You, as foreman of the grand jury, do solemnly swear that you will diligently inquire into and true presentment make of all public offenses against the laws of this state, committed or triable within this county, of which you shall have or can obtain legal evidence. * * * That you will present no person through malice, hatred or ill-will, and you will not leave any unpresented through fear; favor or affection, or for any reward or the promise or hope thereof; but in all your presentments you will state the truth, the whole truth and nothing but the truth, according to the best of your skill and understanding, so help you God.' (Emphasis added.)

Again, in the Fifth Amendment to the Constitution of the United States, the word 'presentment' is used:

'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; * * *.' (Emphasis added.)

It would seem that the word 'presentment' was employed in the above statute and constitutional amendment as meaning an accusation of crime. But because this question of nomenclature is collateral to the matter with which we are here concerned, no purpose would be served in further pursuing it.

Counsel for the appellant and the respondents are not in agreement as to whether at common law a grand jury could make a report of conditions deemed by them to be in need of remedying. In the appellant's brief, quotations from W. S. Holdsworth, 'A History of English Law', vol. X, pp. 146-151 are set out wherein the author states that in England in the eighteenth century, grand juries reported that particular statutes had not been enforced by officials responsible for their observance. 'The most important class of cases to which this procedure was applied was the class of cases concerned with the maintenance of roads, bridges, gaols, and other county buildings. Inhabitants were presented for not repairing their highways; counties were presented for not repairing bridges, gaols or houses of correction; and disputes between different districts were fought in proceedings initiated in this manner. So normal was this procedure in these cases that it was approved and encouraged by the Legislature.'

The respondents contend that this practice referred to by Holdsworth was isolated and not general and that such practice was abolished by statute in England in 1827 and 1835. The following cases hold that at common law a grand jury could not make a report not followed by an indictment: In re Presentment to Superior Court, Hudson County, 14 N.J.Super. 542, 82 A.2d 496; Bennett v. Kalamazoo Circuit Judge, 183 Mich. 200, 150 N.W. 141; In re Report of Grand Jury of Baltimore City, 152 Md. 616, 137 A. 370.

In this state, we have statutes prescribing the powers and duties of grand juries. Five of those statutes will be here quoted:

77-19-1, Utah Code Annotated 1953: 'The grand jury may inquire into all public offenses within the jurisdiction of the court committed or triable within the county, and present them to the court by indictment, or by an accusation in writing.'

77-19-4: 'The grand jury shall not be bound to hear evidence for the defendant; but it is their duty to weigh all the evidence submitted to them, and when they have reason to believe that other evidence within their reach will explain away the charge, they should order such evidence to be produced, and for that purpose may require the prosecuting attorney to issue process for the witnesses.'

77-19-6: 'If a member of a grand jury knows, or has reason to believe, that a public offense within the jurisdiction of the court has been committed, he must declare the same to his fellow jurors, who must thereupon investigate the same.'

77-19-7: 'The grand jury must inquire into the case of every person imprisoned in the jails of the county on a criminal charge and not indicted or informed against; into the conditions and management of the public prisons within the county; and into the wilful and corrupt misconduct in office of public officers of every description within the county.'

77-19-8: 'They shall also be entitled to free access at all reasonable times to the public prisons, and to an examination without charge of all public records within the county.'

California and New York have substantially identical statutes. In those two states, intermediate courts of appeal have construed their statutes as allowing grand juries, even though they find no indictment, to make reports to the court of conditions found by them although their reports, directly or indirectly, charge or infer maladministration or misconduct on the part of public officials. In the case of In re Jones, 1905, 101 App.Div. 55, 92 N.Y.S. 275, 276, 16 N.Y.Anno.Cas. 15, 19 N.Y.Crim.Rep. 59; Id. 181 N.Y. 389, 74 N.E. 226 a grand jury made a report censuring certain public officers for improper performance of their duties, but did not indict them. A motion by the individuals censured to expunge the report was denied and an appeal was taken to the Appellate Division of the Supreme Court which affirmed the action of the lower court. After setting out the provisions of sec. 260 and 261 of the New York Code of Criminal Procedure (which sections are substantially identical with sections 77-19-7 and 8, Utah Code Annotated 1953, quoted above) the court said:

'We may assume that these powers are conferred for some purpose. Official inquiry intends either official action or official report. As such powers are limited to inquiry, and the grand jury has no executive or administrative authority in the premises, the result of any inquiry must be report or statement which shall call attention to the wrong. The grand jury can but report to the court to which it was returned, and by which it is discharged. Such reports are commonly termed 'presentments.' * * *

'I think, therefore, that any final finding upon the exercise of these inquisitorial powers may be called a presentment, and that it may be regarded as final, and not improper, because an indictment cannot or does not follow it. * * *

'Such inquiry as is required by sections 260 and 261 may reveal misconduct, inattention, or shortcomings of public officials, and the report or presentment might be colorless or ineffective unless it specified individual delinquencies. I think that in such a case the grand jury can properly point out those individuals who, as officials, are deemed responsible, and that the presentment may stand though it be not followed by an indictment. It may be pertinent to call attention to the fact that inefficiency, carelessness, or neglect may require correction, and yet not justify indictment, and...