Wood v. Hughes

• Decision Date: 23 February 1961
• Citation: 9 N.Y.2d 144,212 N.Y.S.2d 33
• Parties: , 173 N.E.2d 21 In the Matter of James F. WOOD, Individually and as Foreman of the May, 1959 Term of the Grand Jury for the County of Schenectady, Appellant, v. Charles M. HUGHES, as Justice of the Supreme Court of the Fourth Judicial District of the State of New York, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 33

212 N.Y.S.2d 33

9 N.Y.2d 144, 173 N.E.2d 21

In the Matter of James F. WOOD, Individually and as Foreman

of the May, 1959 Term of the Grand Jury for the

County of Schenectady, Appellant, v. Charles M. HUGHES, as Justice of the Supreme Court of the

Fourth Judicial District of the State of New York,

Respondent.

Court of Appeals of New York.

Feb. 23, 1961.

Morris Marshall Cohn, Dist. Atty., Schenectady, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Dunton F. Tynan and Paxton Blair, Albany, of counsel), for respondent.

Manuel Lee Robbins, New York City, for Grand Jury Association of New York County, Inc., amicus curiae.

FULD, Judge.

Although long the subject of controversy in our lower courts, this is the first time that we have had the occasion to consider whether a grand jury, whose investigation into charges of misconduct on the part of public officials uncovered no evidence warranting an indictment, may, nevertheless, present to the court for filing as a public record a report which censures and castigates their conduct in office.

The case before us arises out of an inquiry by a Schenectady County Grand Jury into charges leveled against the County Highway Department. The investigation yielded no evidence of corruption or other criminality and, accordingly, as the grand jury itself recognized, there was no basis for any indictments. Despite this, the grand jury prepared, and sought to have filed and made public as a 'court record,' a 19-page report, most of which is devoted to criticism of the practices of the Highway Department as 'contrary to the general interests of the public'. ¹ Although it does not expressly name the individuals involved, the report leaves little doubt as to the identity of the persons responsible for the claimed derelictions. The court 'received' the document, but, except for one paragraph dealing with conditions of windows in the county jail, ordered it 'sealed', to be opened only upon court order.

Thereupon, the foreman of the grand jury, asserting that the report deals with 'matters of great public concern and interest' and pertains to 'the proper * * * administration of government and the conduct of public officials', instituted this article 78 proceeding to compel the Supreme Court Justice who had presided over the term for which the jury had been drawn to file it as a public record. The Appellate Division dismissed the petition. The only prior appellate court decision is to the contrary (Jones v. People, 101 App.Div. 55, 92 N.Y.S. 275, appeal dismissed Matter of Jones, 181 N.Y. 389, 74 N.E. 226) and opinion at the trial court level has been divided. ² We granted leave to appeal because of the importance of the question in the administration of justice.

We pass over quickly the respondent's contention that the petitioner lacks standing to bring this proceeding. He sues both as foreman of the grand jury and individually and, whether or not he may sue in his individual capacity, it is clear that he does have status to sue as foreman of the grand jury responsible for the report. The circumstance that the term of that grand jury had expired did not preclude him from instituting the present proceeding, particularly in view of its great public importance. See, e. g., Plumbing etc., Ass'n v. New York State Thruway Auth., 5 N.Y.2d 420, 422, note 1, 185 N.Y.S.2d 534, 535; United Press Ass'ns v. Valente, 308 N.Y. 71, 76, 123 N.E.2d 777; Adirondack League Club v. Black Riv. Regulating Dist., 301 N.Y. 219, 222, 93 N.E.2d 647, 648.

Turning to the merits, we note, first, that in this State the grand jury derives its powers solely from Constitution and statute (N.Y.Const. art. I, § 6; Code Crim.Pro., pt. IV, tit. IV, ch. II, §§ 223-260; see People v. Stern, 3 N.Y.2d 658, 661, 171 N.Y.S.2d 265, 266). While the Constitution does provide that the common law is continued as the law of New York, it explicitly declares that it is only continued 'subject to such alterations as the legislature shall make concerning the same' (N.Y.Const. art. I, § 14; see, also, N.Y.Const. of 1777, art. XXXV). And the detail and comprehensiveness of the legislation enacted to regulate the duties, powers and functions of the grand jury (Code Crim.Pro., §§ 223-260) leave no doubt that the Legislature manifested its intention to supplant the common law on the subject. In fact, the Commissioners on Practice and Pleadings, who in 1849 recommended the prototype of the present statute (see Report to N. Y. State Legislature of Commissioners on Practice and Pleadings on Code of Criminal Procedure (1849), pp. 115-129), regarded the then existing common-law powers of the grand jury as 'vague and unlimited' and proposed the new provisions for the very purpose of supplying 'a clear and well understood definition of (the grand jury's) powers' (p. 115). It is, accordingly, pointless to probe the uncertain state of the common law as to the grand jury's powers. ³ If there is authorization for a grand jury report, it must be found in either Constitution or statute.

The only constitutional provision on the subject was first adopted by the 1938 Constitutional Convention and added to the Constitution the following year. Contained in article I, section 6, it reads as follows: 'The power of grand juries to inquire into the wilful misconduct in office of public officers, and to find indictments or to direct the filing of informations in connection with such inquiries, shall never be suspended or impaired by law'. As the discussion preceding adoption of the amendment discloses (see Revised Record of Constitutional Convention of 1938, Vol. 3, pp. 2570-2573), it had nothing whatsoever to do with the grand jury's power to make or file a report. On the contrary, after noting that there 'is very grave doubt' whether that body has 'any such power * * * at all', its proponent, the Honorable Philip Halpern, stated that he drafted the provision 'very carefully to avoid the question' (p. 2573). Actually, as Delegate Halpern explained to the Convention (p. 2571), the proposal was advanced solely for the purpose of making certain that the Legislature of this State would never be able to do what the Legislature and Governor of Pennsylvania had attempted, namely, take from the grand jury its authority to investigate and indict for alleged criminal acts by public officials. See, also, Dauphin County Grand Jury Investigation Proceedings (No. 2), 332 Pa. 342, 346 et seq., 2 A.2d 802, 804; Note, 52 Harv.L.Rev. 151.

These clear expressions of the purpose thus sought to be accomplished by the quoted provision of section 6 of article I find precise embodiment in its language. Not only does it avoid any intimation of a grand jury power to make or publish a report, but, in so many words, it inseparably links the grand jury's power 'to inquire into the wilful misconduct of public officers' with its power 'to find indictments * * * in connection with such inquiries'. Here, rather than constitutional recognition of a power to report, is explicit constitutional guarantee of a power in the grand jury to inquire and indict.

Nor does any provision of statute suggest that the grand jury has the power to make a report directed at supposed mismanagement by public officials. Section 223 of the Code of Criminal Procedure defines a grand jury as 'a body of persons * * * sworn to inquire (into) crimes committed or triable in the county.' Section 245 declares that the grand jury has the 'power', indeed, the 'duty, to inquire into all crimes committed or triable in the county, and to present them to the court.' And section 253 requires and authorizes the grand jury to 'inquire' (1) into 'the case of every person imprisoned in the jail of the county, on a criminal charge, and not indicted'; (2) into 'the wilful and corrupt misconduct in office, of public officers of every description, in the county'; and (3) into 'the condition and management of the public prisons in the county.' The plain and simple fact is that, although the Legislature has, in 40 separate sections of the Code of Criminal Procedure, dealt in most comprehensive and detailed fashion with the grand jury, its powers and functions (§§ 223-260), it nowhere mentions reports, much less authorizes their filing or publication.

It is urged, however, that a power 'to inquire' necessarily implies a power to report the result of the inquiry and that, therefore, the power given the grand jury by section 253 to inquire into 'wilful and corrupt misconduct' of public officials authorizes the publication of the report here in question. The argument is not persuasive.

The key words are not the words 'to inquire' but, rather, 'wilful and corrupt misconduct'. Every action by a grand jury presupposes an inquiry; the subject matter of the inquiry must be found in other words. Here, the jury did inquire and, by its own admission, failed to find that there was 'wilful and corrupt misconduct'. Where, then, is the authority for it to publish, under the immunity which attaches to grand jury actions, any more than the statement that no evidence of such misconduct was found?

Indeed, if the argument advanced that the power to report is implicit in the power to inquire had merit, it would mean that the grand jury would likewise be entitled, by virtue of section 245 of the Code which requires it to 'inquire into all crimes', to make and publish a report in any and every case whether touching on the conduct of public officers or the behavior of private citizens. Such a consequence, involving the possibility of the publication of an untold number of reports concerning every variety and aspect of private life, could hardly have been intended by the limited legislative grant. Even if the language were less clear than it is, we would hesitate to conclude that the 1849 draftsmen of the Criminal Code, who believed that the preservation of the grand jury's usefulness 'depends upon a clear and well understood definition...