Second Report of November, 1968 Grand Jury of Erie County, In re

• Decision Date: 05 March 1970
• Citation: Second Report of November, 1968 Grand Jury of Erie County, In re, 309 N.Y.S.2d 297, 26 N.Y.2d 200, 257 N.E.2d 859 (N.Y. 1970)
• Parties: , 257 N.E.2d 859, 63 A.L.R.3d 571 In the Matter of the SECOND REPORT OF the NOVEMBER, 1968 GRAND JURY OF the COUNTY OF ERIE. TWO EMPLOYEES Named in the Above-Entitled Report, Appellants; DISTRICT ATTORNEY OF the COUNTY OF ERIE, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 297

309 N.Y.S.2d 297

26 N.Y.2d 200, 257 N.E.2d 859, 63

A.L.R.3d 571

In the Matter of the SECOND REPORT OF the NOVEMBER, 1968 GRANDJURY OF the COUNTY OF ERIE. TWO EMPLOYEES Named in the Above-Entitled Report, Appellants; DISTRICT ATTORNEY OF the COUNTY OF ERIE, Respondent.

Court of Appeals of New York.

March 5, 1970.

Michael T. Sullivan, Jr., Carol Eve Casher and William J. Cunningham, Jr., Buffalo, for appellants.

Michael F. Dillon, Dist. Atty. (Peter J. Notaro, Buffalo, of counsel), for respondent.

FULD, Chief Judge.

The appellants challenge the constitutionality of section 253--a of the Code of Criminal Procedure, the statute which authorizes the grand jury to submit a report to the court concerning noncriminal misconduct or neglect in office by a public officer or employee.

The appeal is properly before us, whether the proceeding under section 253--a be regarded as criminal or civil.¹Section 517--a of the Code, it is true, recites that the Appellate Division in such a proceeding 'shall be the sole court having jurisdiction of * * * an appeal' and that its order 'shall not be subject to (further) review'(subd. 7).However, that provision was intended merely to limit further review and consideration as to the sufficiency of the evidence supporting the grand jury's report and not to preclude and prevent a challenge to the constitutionality of the very procedure authorized by section 253--a.The appellants are, therefore, entitled to have that constitutional question passed upon by the Court of Appeals, and section 517--a may not be invoked to fob off the appeal on that question even if the proceeding be deemed criminal in nature.We turn, then, to the merits of the appeal.

It has long been my view, and it was expressed in our opinion in Matter of Wood v. Hughes(9 N.Y.2d 144, 212 N.Y.S.2d 33, 173 N.E.2d 21), that, although the Constitution of this State does not itself vest the grand jury with power to make a report charging noncriminal misconduct, it does not prohibit the enactment of legislation authorizing such a report.Indeed, in Wood, the court--after noting that a strong case could be made against grand jury reports on policy grounds and that the relevant provisions of the Code of Criminal Procedure, as they then read, did not sanction them (9 N.Y.2d, at pp. 153--155, 212 N.Y.S.2d 33, 173 N.E.2d 21)--went on to say that the Legislature could, by 'a clear grant of legislative authority'(p. 156, 212 N.Y.S.2d at p. 41, 73 N.E.2d at p. 27), invest the grand jury with the power to present a report condemning public officers or employees for misconduct or laxity in office.Section 253--a, enacted after our decision in Wood, provides the authorization which the court found to be lacking when it decided that case, and there is nothing in the language or design of either section 6 of article I, or section 1 of article III, of the Constitution--the provisions relied upon by Judge Burke (Opn., pp. 301-302)--which warrants its invalidation.

However, there must be a reversal in this case in view of the court's denial of the appellants' motions for inspection of the minutes of the grand jury upon which its report was based.Following acceptance of that report by the court, the appellants moved to inspect the minutes in order to assist them in proceeding with their appeal and obtaining information to enable them to file a more complete answer.The court's denial of this motion was premised on the ground that it lacked authority to grant such an application (Memorandum of Heffron, J., July 21, 1969).We do not agree.The demands of due process, a regard for fundamental fairness, dictated that the evidence before the grand jury relating to the appellants should have been made available to them not only before they went forward with their appeals but before they were required to file their answers.It is our opinion that, unless the grand jury minutes contain matter that must needs be kept confidential or unless disclosure of those minutes would be inimical to the public interest--in which event, the court must reject and seal the report--the appellants' motions to inspect the minutes should have been granted.

The statute expressly gives the public officer or employee a right to 'file * * * an answer' to the charges contained in the report (Code Crim.Pro. § 253--a, subd. 3, par. (b)).This right, however, as well as the right to appeal from the court's determination accepting the report, would be considerably diluted, perhaps rendered nugatory, if the official or employee accused were to be denied an opportunity to ascertain the identity of the witnesses against him or the evidence upon which the report was predicated.In view of the secrecy which must, of necessity, attend proceedings of the grand jury, a right sense of justice requires that those who must 'answer (the) report' should first be accorded an examination of the minutes so that they may intelligently prepare their answer and attempt to refute the charges leveled against them.²

The report authorized by section 253--a of the Code concerns public officers whose reputations and careers may well be ruined, regardless of the final outcome of the charges, by publication of the report.Since inspection of grand jury minutes has been frequently permitted in criminal cases, where a certain degree of secrecy is justified, it certainly ought to be allowed in a case, such as the present, where such secrecy is neither necessary nor desirable.To limit the accused official or employee to a bare unsupported and unsubstantiated list of charges and allegations against him would serve to deprive him of that opportunity to be heard which is guaranteed to him by the Due Process Clause of our own State Constitution(art. I, § 6).

This conclusion does not, however--contrary to the contention advanced--require us to hold section 253-a itself unconstitutional.It is true that inspection of grand jury minutes is not expressly authorized by the statute but it is equally true that it does not preclude the court from granting such inspections.Despite the fact, remarked by Judge BURKE in his dissenting opinion (p. 302), 'that Grand Jury proceedings, by their very nature, Are intended to be confidential (seeCode Crim.Pro. § 258)', the courts have the power--wholly apart from section 253--a--to allow a party, challenging the sufficiency of the evidence before a grand jury, to inspect the minutes of its proceedings (Code Crim.Pro. § 952--t;seeMatter of Schneider v. Aulisi, 307 N.Y. 376, 381, 121 N.E.2d 375, 377;People ex rel. Hirschberg v. SupremeCt., 269 N.Y. 392, 395, 199 N.E. 634, 635;Eighmy v. People,79 N.Y. 546, 560).In point of fact, even if section 253--a could possibly be read, as Judge BURKE seems to suggest, to deprive the court of its authority to grant such an inspection, we would be privileged, nay obliged, to reject such a construction.This is the consistent teaching of our decisions.(See, e.g., People v. Finkelstein, 9 N.Y.2d 342, 345, 214 N.Y.S.2d 363, 364, 174 N.E.2d 470, 471;Kauffman & Sons Saddlery Co. v. Miller, 298 N.Y. 38, 44, 80 N.E.2d 322, 324;People ex rel. Simpson v. Wells, 181 N.Y. 252, 257, 73 N.E. 1025;see, also, Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 92 L.Ed. 840.)'No statute should be declared unconstitutional', we said in the Simpson case(181 N.Y., at p. 257, 73 N.E. at p. 1026), 'if by any reasonable construction it can be given a meaning in harmony with the fundamental law.'

The orders appealed from should be reversed and the matter remitted to the County Court of Erie County for further proceedings in accordance with this opinion.

BURKE, Judge (dissenting in part).

Although I agree that there should be a reversal, I cannot accept the conclusion that the matter should be remitted for further proceedings.Even in terms of the majority's limited due process ground, the statutory scheme is itself unconstitutional and should be struck down.The majority agrees that the appellants' lack of access to the minutes of the Grand Jury proceedings prior to filing their answers to the report and/or their appeals from the acceptance of the report constitutes a denial of due process.The court below denied their motions to inspect the minutes upon the ground that it lacked the power to grant the motions and, in this conclusion, the court below was clearly correct, as a reading of the statute indicates.The statute itself specifically provides that the record of the proceedings had pursuant to section 253--a of the Code of Criminal Procedure Shall remain sealed and that, in the event of an appeal to the Appellate Division from the order accepting the report, the 'separately sealed' minutes of the proceedings shall be furnished to the Appellate Division(Code Crim.Pro. § 517--a, subds. 5, 6).It is therefore clear that the deprivation of due process flows directly and explicitly from the statute itself.However, today's decision avoids a declaration that the statute is unconstitutional on this ground and proceeds to revise the statute(actually, to repeal certain rather explict portions of it) to provide for that which the Legislature has explicitly denied.The statute is now to be read as providing that the minutes are to be sealed and remain secret Unless either of two vague and amorphous conditions are met.Thus, if the grand jury minutes contain 'matter that Must be kept confidential', the report must be rejected and sealed by the court.It should be noted first of all that ground jury proceedings, by their very nature, Are intended to be confidential (seeCode Crim.Pro. § 258) so that the condition will apparently always be met.Furthermore, we are not here faced with a situation in which the Legislature has failed to deal with a particular matter so that a vacuum exists which the courts might reasonably act to fill.In dealing with the question whether there might be situations in which the...