Thompson v. Macon-Bibb County Hospital Authority

• Decision Date: 03 December 1980
• Docket Number: MACON-BIBB,No. 36516,36516
• Citation: 273 S.E.2d 19,246 Ga. 777
• Parties: THOMPSON et al. v.COUNTY HOSPITAL AUTHORITY et al.
• Court: Georgia Supreme Court

Page 19

273 S.E.2d 19

246 Ga. 777

THOMPSON et al. v. MACON-BIBB COUNTY HOSPITAL AUTHORITY et al.

No. 36516.

Supreme Court of Georgia.

Argued Sept. 9, 1980.

Decided Dec. 3, 1980.

Willis B. Sparks, III, Thomas J. Matthews, Asst. Dist. Attys., for appellants.

John D. Comer, H. T. O'Neal, Jr., Macon, for appellees.

NICHOLS, Justice.

This court granted certiorari to review the decision in Thompson v. Macon-Bibb County Hospital Authority, 154 Ga.App. 766, 270 S.E.2d 46 (1980). The case arose when the Bibb County Grand Jury, after investigating charges against an employee of the Medical Center of Central Georgia, returned an indictment against the employee and subsequently issued a report critical of the conduct of the staff and administration at the Medical Center. The trial court ordered the report expunged and the Court of Appeals affirmed. This Court affirms.

The powers of the grand jury are set out in Code Ann. § 59-301 et seq. These code sections authorize the grand jury to return presentments or indictments for any violations of the law. The grand jury is also authorized in specifically defined situations to examine county records and county facilities and to report on their condition. The issue presented in this case is: Does this specific statutory authority of the grand jury permit it to issue a report critical of the actions of identifiable persons without subjecting the report to expungement?

This question was answered in the negative in Kelley v. Tanksley, 105 Ga.App. 65, 123 S.E.2d 462 (1961). Kelley distinguished between reports "casting reflections of misconduct in office upon a public officer" and those reports specifically authorized by statute. The latter reports are allowed, but if they contain "statements unnecessary to the purpose sought to be accomplished by the report," they are overbroad and exceed the powers of the grand jury. Under Kelley and the Court of Appeals' decision in this case, the only proper way to accuse an identifiable person with misconduct would be to return a presentment or an indictment. On the other hand, reports of a general nature concerning those areas where the grand jury has a statutory duty to investigate are acceptable. The dividing line between acceptable reports and those reports that go too far in criticizing individuals for unindictable activity is a tenuous one. Because of the practical difficulty involved in trying to distinguish in each case between permissible and impermissible reports, and because of the fundamental individual rights implicated by a report that criticizes identifiable individuals but does not indict, this court is of the opinion that statutory reform of Code Ann. § 59-301 et seq. is required before reports similar to the one in this case could be permitted without threat of expungement. Through a revision of the applicable statutes adequate procedures may be established to resolve the difficulties inherent in the present process.

The fundamental difficulty with the present statutory scheme, as noted by the trial judge, is that "(w)hen an indictment is returned the accused has the right of an open hearing in which to be tried and thereby assert his innocence. Reports of the kind that we are dealing with here offer no such right to the one defamed ..." The failure to provide some statutory mechanism by which identifiable individuals referred to in the report may respond to the charges against them raises serious questions of due process and fairness. "Several courts have pointed out that injury to an individual ... can arise not only from the grand jury proceeding, but also from the public's belief that the grand jury speaks with judicial authority." Simington v. Shimp, 60 Ohio App.2d 402, 398 N.E.2d 812, 816 (1978). The individual who is named in the report or identifiable from it has little if any opportunity to adequately respond to the report's accusations. The report "castigates him, impugns his integrity, ... and it subjects him to the odium of condemnation, ... without giving him the slightest opportunity to defend himself." In re Presentments by Camden County Grand Jury, 34 N.J. 378, 169 A.2d 465, 471 (1961).

This court agrees with the reasoning of the Minnesota Supreme Court in In re Grand Jury of Hennepin County, 271 N.W.2d 817 (1978). There a report which did not name any individuals was nevertheless prohibited from being made public. "An informal report ... drafted after a secret investigation and based on an uncertain standard of proof,...