Opinion
TOBRINER, J. In California the grand jury, in addition to determining whether or not to indict individuals suspected of crime, exercises an important “watchdog” function over the operation of many facets of local government. To fulfill this oversight role, the grand juiy has been granted extensive statutory authority to prepare “reports” disclosing its findings and recommendations for improvement in the administration of local government. At the same time the decisions, without contradiction, hold that the grand jury is a component part of the superior court. The question presented in this case is whether that superior court must accept and file any report which the grand jury prepares or may refuse to accept and file a report which exceeds the grand jury’s legal authority.
In an original proceeding instituted by the District Attorney of Santa Barbara County, the Court of Appeal concluded that a superior court must accept any report submitted by a grand juiy; in accordance with this conclusion, the appellate court determined that a writ of prohibition should issue restraining the respondent superior court from reviewing any grand jury report submitted to it in the future.
For the reasons discussed hereafter, we have concluded that in this state superior courts are empowered to exercise a limited review of a proposed grand jury report to ensure that the report does not exceed the grand jury’s lawful authority, As we shall explain, although California statutes establish a broad realm in which the grand jury is authorized to investigate and report, the grand jury’s domain is not unlimited; if a proposed grand jury report exceeds established legal limits, the superior court which convenes the grand jury and which is responsible for its supervision may properly refuse to file the report. Although no California statute explicitly authorizes such judicial action, this limited review is implicit in the statutory scheme confining the grand jury’s investigatory authority to specifically enumerated subjects and is confirmed by the numerous common law decisions throughout the [434]United States which uniformly recognize the propriety of a restricted court review of grand jury reports.
In so holding, however, we emphasize that the scope of the superior court’s reviewing role is strictly confined to ensuring that reports do not extend beyond the legal boundaries of the grand jury’s broad reportorial power. The superior court possesses no authority to edit or seal a report simply because the court disagrees with the report’s conclusion, or believes that its recommendations were hastily reached or were not “justified.” The court’s sole function in this realm lies in its power to prevent the official filing of an illegal report: for example, a report on matters which the grand juiy has not itself investigated or a report concerning activities of a distant municipality not lying within the grand juiy’s province. Because the requested relief would preclude even this most restricted superior court review, we deny the writ.
The facts which gave rise to the instant proceeding are not in dispute. On October 3, 1972, the Santa Barbara District Attorney presented evidence before the 1972 Santa Barbara Grand Juiy concerning the county pathologist, Dr. McAlpine. Witnesses before the grand juiy included a deputy sheriff assigned to the coroner’s detail, a representative of a mortuaiy, the sheriff, the county hospital administrator and Dr. McAlpine. After hearing the testimony the grand jury submitted to the superior court an “Interim Report” detailing a series of “irregularities” for which Dr. McAlpine was allegedly responsible and setting forth certain recommendations for procedural changes in the handling of financial and other matters in the county hospital’s pathology department.
On October 24, 1972, Judge Dodson, the presiding judge of the Santa Barbara Superior Court, met with the grand jury and explained at some length why he believed that the interim report did not satisfy applicable legal standards. Judge Dodson stressed that a grand jury report which directs serious accusations at a specified individual “ ‘castigates him, impugns his integrity . . . and . . . subjects him to the odium of condemnation by an arm of the judicial branch of the government, without giving him the slightest chance to defend himself. . . .’” The presiding judge also warned the jxirors that statements in the report could subject each of them to libel actions. (See Pen. Code, § 930.) Finally, the judge informed the jurors that because of his conclusions as to the impropriety of the report, he had both a right and a duty to see that the report was not filed or made public. Judge Dodson then ordered the [435]interim report sealed and directed the jury to túm to preparation of its final report with assistance, if necessary, of the county counsel.
On Januaiy 9, 1973, the grand jury submitted a final report to the superior court which contained a “special report” on the pathology department of the county hospital. This special report reiterated many of the recommendations contained in the earlier interim report but omitted the specific allegations of misconduct by Dr. McAlpine which the earlier report detailed. The superior court accepted and filed the final report.
Thereafter, in advising the 1973 grand juiy of its powers and duties (see Pen. Code, § 914), Judge Dodson instructed: “In accordance with established policy of many courts, I instruct you to deliver to me all grand jury reports prior to filing them, and I instruct the clerk of this court not to accept for filing any grand jury report until I have accepted it for filing.”
The District Attorney of Santa Barbara County then filed the instant petition for writ of mandate and prohibition in the Court of Appeal, seeking (1) to restrain the superior court from requiring the 1973 grand jury to submit all reports to the presiding judge for his approval prior to filing, and (2) to compel the superior court to set aside its order sealing the interim report of the 1972 grand jury.1
Relying upon the absence of any specific statutory provision authorizing a court’s review of grand jury reports, the Court of Appeal granted petitioner’s initial request, and determined that a writ should issue “prohibiting the respondent Superior Court of Santa Barbara County from . . . altering, amending or in any way interfering with the filing of future reports of the Grand Jury. . . .” The Court of Appeal declined, however, to order the superior court to unseal the interim report, reasoning that the filing of the grand jury’s final report—containing many of the same items covered by the interim report—had rendered the district attorney’s second request moot.2 Respondent court thereafter [436]sought review of the Court of Appeal’s determination that superior courts have no authority under any circumstances to review a proposed grand jury report prior to filing. Because of the novelty and statewide significance of this issue,3 we granted the petition for hearing.
In California, unlike some other American jurisdictions,4 the grand jury’s role as a vigilant “watchdog” over the operations of a variety of local governmental activities has a long and well respected heritage. As long ago as 1880, the Legislature assigned to the grand jury the responsibility of making “a careful and complete examination of the books, records and accounts of all officers of the county . .. and to report thereon.” (Italics added.) (Pen. Code Ann. 1880, ch. 109, p. 43; see Pen. Code, § 925.)5 Over the ensuing years, the Legislature has continually expanded the boundaries of the grand jury’s investigatory and reportorial domain, authorizing the grand jury to make inquiry into and report on the “needs of all county officers” including the desirability of abolishing or creating county offices and the adequacy of the existing “method or system of performing” county duties (Stats. 1911, ch. 200, § 1, p. 373; Pen. Code, § 928), the propriety of the salaries paid to various public officials (Stats. 1943, ch. 93, § 1, p. 798; Pen. Code, § 927), the operation of special-purpose assessing or taxing districts located wholly or in part within the county (Stats. 1961, ch. 1461, § 2,. p. 3313; Stats. 1969, ch. 931, § 1, p. 1870; Pen. Code, § 933.5), and, most recently, the state of the fiscal affairs of any incorporated city within the county (Stats. 1973, ch. 1036, § 3, p. 2055; Pen. Code, § 925a.)
Past cases have recognized the valuable and unique role a grand juiy [437]fulfills in carrying out its authorized investigations and reporting on its findings and recommendations. As the court in Monroe v. Garrett (1971) 17 Cal.App.3d 280, 284 [94 Cal.Rptr. 531] recently observed: “In our system of government, a grand jury is the only agency free from possible political or official bias that has an opportunity to see ... the operation of government ... on any broad basis. It performs a valuable public purpose in presenting its conclusions drawn from that overview. The public may, of course, ultimately conclude that the jury’s fears were exaggerated or that its proposed solutions are unwise. But the debate which reports . . . provoke [can] lead only to a better understanding of public governmental problems.” (See generally Olson, Ombudsman on the West Coast: An Analysis and Evaluation of the Watchdog Function of the California Grand Jury (1968) Cont. Ed. Ser., Mich. St. U., Institute for Community Devel. Series.)
Although the propriety of grand jury reports on local governmental affairs finds support in a long history, a grand jury’s investigatory and reporting power has been bounded. Penal Code section 939.9 constitutes perhaps the most obvious limitation on the grand jury’s reportorial authority, providing explicitly that “[a] grand jury shall make no report, declaration or recommendation on any matter except on the basis of its own investigation of the matter... .”6
The numerous statutory provisions noted above, which grant the grand jury authority to investigate and report on numerous facets of local government, also limit the grand jury’s investigation and reporting authority to the specifically enumerated fields. As the Court of Appeal noted in Board of Trustees v. Leach (1968) 258 Cal.App.2d 281, 285 [65 Cal.Rptr. 588]: “Although [the grand jury’s] powers are broad, they are carefully defined and limited by statute, and the grand jury has no inherent investigatory powers beyond those granted by the Legislature.”7 (Cf. Allen v. Payne (1934) 1 Cal.2d 607 [36 P.2d 614].) Thus, although a grand jury has extensive authority to investigate and recommend improvements within its own county, it is not authorized to [438]roam at will throughout the state or country reporting on what it might view as shortcomings in distant locales.
Despite these recognized legal limitations on the grand jury’s reporting authority, petitioner contends that even if a proposed grand juiy report contravenes such legal bounds, a superior court must accept the report for filing; petitioner maintains that because no statute explicitly gives the superior court authority to enforce the legal restrictions on the grand jury’s reporting power by refusing to accept an unauthorized report, the superior court lacks any such authority. In this regard plaintiff" urges that the grand jury is completely independent of the superior court and thus that, in the absence of statute, the court lacks any legitimate basis on which to “censor” even a legally unauthorized grand jury report.
Petitioner’s argument misconceives the nature of the grand jury institution in California and its relationship to the courts. Although petitioner suggests that the grand juiy is a completely freewheeling entity, separate and distinct from the judicial branch of government, the governing provisions uniformly refute such a characterization. Penal Code section 888 defines a grand jury as “a body of the required number of persons returned from the citizens of the county before a court of competent jurisdiction . . . .” (Italics added.) As this section indicates, and as the California precedents have long recognized, the grand juiy is a “judicial body” (Ex parte Sternes (1889) 82 Cal. 245, 247 [23 P. 38]), “an instrumentality of the courts of this state . . . .” (In re Shuler (1930) 210 Cal. 377, 405 [292 P. 481]; see, e.g., Turpen v. Booth (1880) 56 Cal. 65, 69; McFarland v. Superior Court (1948) 88 Cal.App.2d 153, 160 [198 P.2d 318]; Irwin v. Murphy (1933) 129 Cal.App. 713, 716 [19 P.2d 292].)
As this court stated emphatically almost 90 years ago: “There is no doubt that a grand jury is part of the court by which it is convened, and that it is under the control of the court....” (In re Gannon (1886) 69 Cal. 541, 543 [11 P. 240], See generally Kennedy & Briggs, Historical and Legal Aspects of the California Grand Jury System (1955) 43 CaLL.Rev. 251, 260-262; accord Levine v. United States (1960) 362 U.S. 610, 617 [4 L.Ed.2d 989, 995, 80 S.Ct. 1038]; Brown v. United States (1959) 359 U.S. 41, 49 [3 L.Ed.2d 609, 616, 79 S.Ct. 539].)8 In this regard, it is well [439]established that the convening court “may at any time, in the exercise of its jurisdiction, order [the grand juiy] to be discharged.” (In re Gannon, supra, 69 Cal. 541, 547; see Pen. Code, § 915.)
In recognizing that the grand jury serves as an integral part of the court system, subject to the court’s general supervision, we do not at all diminish the full independence of action which the grand jury must, and does, enjoy in performing its vital investigatory and reporting function. The superior court must respect the grand jury’s independence of judgment; the court has no authority either to impose its own views on the grand jury or to suppress a report simply because it considers it ill-advised, insufficiently documented or even libelous. (See Kuh, The Grand Jury “Presentment”: Foul Blow or Fair Play? (1955) 55 Colum.L.Rev. 1103, 1133.)
Petitioner, however, seeks to extend the grand jury’s independence to indefensible extremes, arguing that even when a grand jury violates its statutory mandate, a superior court has no choice but to file an unlawful report. Petitioner contends that nothing in the codes authorizes the courts to do otherwise and that without statutory authorization the court may not refuse to accept any proposed report. For several reasons, we cannot agree with this contention.
First, although there is no statute which explicitly authorizes the superior court to refuse to accept an unauthorized report,9 such authority is implicit in the statutory provisions establishing definite, albeit broad, limits for the grand jury’s reporting power. In the absence of judicial authority to refuse to file an unauthorized report, the established statutory limits would be largely meaningless. Thus, for example, if a superior court were obligated to file any proposed report, a grand jury could—despite the clear proscription of section 939.9 (see fn. 6, ante)—simply adopt the recommendations of some other, perhaps partisan, organization without conducting its own investigation of the [440]matter. The Legislature could not have intended the limits on the grand jury reporting power to be so easily evaded.10
Moreover, not only do the existing statutes suggest the propriety of a limited court review of proposed grand jury reports, but such judicial authority is confirmed by the established common law doctrine in this area.11 Although the question has not before arisen in California, the numerous cases throughout the United States which have addressed the question uniformly recognize that under the common law the court which convenes a grand jury has the authority to refuse to file a report that violates governing legal standards. For example, in Burke v. Oklahoma (1894) 2 Okla. 499 [37 P. 829, 836], the Supreme Court of Oklahoma held: “The court is not bound to receive and accept from the grand jury everything which it may present. One of the legal and judicial steps to be taken before any return of the grand jury becomes ... [a] report is that it must be presented to and received by the court; and the court has a right, before accepting it and receiving it, to return it to the [441]grand jury, or to receive it, as the court thinks proper. This required judicial action. . . . [I]t was not only the power, but it was the duty, of the court to take the matter, and give it fair and candid consideration, before passing judgment upon its propriety and validity.”
The decisions of eveiy other jurisdiction which has passed on this question are just as emphatic in confirming the common law authority of a court to review the legality of a proposed grand juiy report. (See In re Presentment of Camden County Grand Jury (1952) 10 N.J. 23 [89 A.2d 416, 444]; Ex parte Cook (1940) 199 Ark. 1187 [137 S.W.2d 248, 249]; State v. Bramlett (1932) 166 S.C. 323 [164 S.E. 873, 876-877]; State v. Wurdeman (Mo. 1916) 187 S.W. 257, 259; Bennett v. Kalamazoo Circuit Judge (1914) 183 Mich. 200, 212 [150 N.W. 141, 144], See generally Kuh, The Grand Jury “PresentmentFoul Blow or Fair Play? (1955) 55 Colum.L.Rev. 1103, 1132; Note, The Grand Jury: Power, Procedures and Problems (1973) 9 Colum.J. L. & Soc. Prob. 681, 704.) Petitioner has cited no authority to the contrary.
In light of the uniformity of these common law decisions, and the implicit authority which we find in the various statutory limitations on the grand jury’s reporting power, we conclude that superior courts in this state do possess a limited authority to refuse to file proposed grand jury reports which exceed the grand jury’s authority.12 As we have stressed above, however, the superior court’s reviewing authority in this area is narrowly circumscribed, for the court may only refuse to file a proposed report if it exceeds the grand juiy’s lawful reporting powers.13 Given the limited scope of the superior court’s reviewing authority, we believe petitioner’s fears of judicial “censorship” of grand jury investigations are unfounded.14
[442]We adjudicate only the district attorney’s contention that the superior courts have no authority under any circumstances to review a proposed grand jury report before filing; we reject that absolute denial of authority. We have pointed out two situations which inexorably call for such exercise of the superior court’s power; they are enough to refute the district attorney’s extreme position. Although other situations may support a superior court’s refusal to file a grand jury report, we do not consider, or pass upon them at this time.
As in so many other instances, we face here competing values; the value of the protection of the public through the unrestricted power of the grand juiy to probe and expose the operations of government, as opposed to the value of the protection of the individual from unlawful and unauthorized conduct of that tribunal. Although we recognize the advantage of a wide range in the grand jury’s investigatory authority, we do not accept the extreme position that such authority is absolute or that its sweep is so extensive that under any and all circumstances its proposed reports may be publicized. Since the grand jury is an arm of the court and part of the judicial system, the court, subject to appellate review, may in some instances, limited though they may be, refuse to file a proposed report. It would be anomalous for a court of law to participate in the law’s violation by filing a report that was itself the statute’s violation.
In light of the above conclusion, petitioner’s request for a writ of prohibition restraining the superior court from reviewing any grand jury report prior to filing is denied.
Wright, C. J., Sullivan, J., and Clark, J., concurred.
Upon stipulation of the parties, the Court of Appeal considered the petition on the merits without issuing an alternative writ or any other interim relief.
The Court of Appeal reasoned in this regard: “Both the report and the grand jury have been overtaken by the passage of time. The regular impanelment of the 1973 grand jury ended the life of the old jury [citation] and the content of the interim report appears to have been substantially covered in the final report of the grand jury. It is now a practical impossibility at this date to determine if the 1972 jury intended the final report to subsume its interim report. In any event, since a comparison of interim and final reports indicates substantially similar content, the problem of the interim report appears to be moot.” We concur in this assessment of the issue, and consequently we confine our [436]discussion to the propriety of the Court of Appeal’s initial order restraining the superior court from conducting any review of a proposed grand jury report prior to accepting it for filing.
Amicus curiae briefs filed on behalf of the superior courts of several of California’s largest counties (Los Angeles, San Bernardino) point out that the charge to the grand jury given by the Santa Barbara Superior Court, and invalidated by the decision below, is essentially the same charge regularly given to grand jurors in their respective counties.
Federal courts have generally held that federal grand juries lack authority to issue “reports” on public affairs. (See, e.g., Application of United Electrical, Radio v. M. Workers (S.D.N.Y. 1953) 111 F.Supp. 858; United States v. Cox (5th Cir. 1965) 342 F.2d 167, 186 fn. 2 (Wisdom, J., concurring).) The New York Court of Appeals reached a similar conclusion in the absence of explicit statutory authority for grand jury reports (see, e.g. Wood v. Hughes (1961) 9 N.Y.2d 144 [212 N.Y.S2d 33, 173 N.E.2d 21]); thereafter New York enacted specific legislation authorizing such reports. (See In re Second Report of Nov.,. 1968 Grand Jury (1970) 26 N.Y.2d 200 [309 N.Y.S.2d 297, 257 N.E.2d 859] (upholding constitutionality of statute).)
Indeed, the origin of the California grand jury’s reporting authority can probably be traced to an 1851 statute, which directed the grand jury to investigate inter alia “the condition and management of public prisons.”" (Stats 1851, ch. 29, § 214, p. 235; see Pen. Code, § 919.)
Section 939.9 provides in full: “A grand jury shall make no report, declaration, or recommendation on any matter except on the basis of its own investigation of the matter made by such grand jury. A grand jury shall not adopt as its own the recommendation of another grand jury unless the grand juiy adopting such recommendation does so after its own investigation of the matter as to which the recommendation is made, as required by this section.”
In Leach, the Court of Appeal concluded that the applicable statute (Pen. Code, § 933.5) conferred no authority upon the grand jury to investigate the personnel records of the defendant school district; the court accordingly granted a writ of mandate quashing a subpoena of such records.
A host of statutory provisions reflect this relationship between the grand jury and its convening court. Thus, the court determines when a grand jury should be empaneled (Pen. Code, §§ 904, 904.5, 904.6, 904.7), appoints the foreman of the grand jury (Pen. Code, § 912), instructs the grand jury as to its powers and responsibilities (Pen. Code, §§ 914, 914.1), approves expenditures for investigatory personnel (Pen. Code, §§ 914.5, 926, 931), and determines whether to permit public grand jury sessions. (Pen. Code, § 939.1.)
Penal Code section 933, the most recent statutory enactment pertaining to grand jury reports, does provide that the grand jury “shall submit to the presiding judge of the superior court a final report of its findings and recommendations that pertain to county government.” (Italics added.) Although this language could conceivably be construed as a legislative grant of authority to the superior court to review the report, the context of the entire provision makes such a reading questionable. In a later portion of the same provision, the section declares that comments of the board of supervisors on the grand jury report “shall ... be submitted to the presiding judge of the superior court . . . .” Since the judge could not, of course, properly review any of these latter comments, it appears that the legislative use of the “submission” language was not intended as a grant of reviewing power.
Petitioner contends that under all circumstances the only available remedy is for an individual harmed by an unauthorized report to bring a libel action against the grand jurors. In this regard, petitioner points to Penal Code section 930 which provides that a comment in a grand jury report upon an individual who is not indicted is not privileged. A libel action, however, will generally not be an appropriate means to challenge a report which is illegal because the grand jury conducted no personal investigation or exceeded its proper sphere of inquiry. Nothing in the language of section 930 indicates that the provision was intended to preclude a superior court from refusing to file an illegal grand jury report.
Fitts v. Superior Court (1936) 6 Cal.2d 230 [57 P.2d 510] establishes the propriety of considering common law principles as supplementary to the applicable California statutes relating to grand juries. The question at issue in Fitts was the number of grand jurors necessary to return an accusation against a public official. No statute specifically spoke to this point, but the district attorney claimed that a general provision in the Penal Code, declaring that a majority generally had authority to act for any group of individuals, governed and authorized an accusation approved by 11 of the 19 grand jurors. The Fitts court rejected this contention, and concluded that the general common law rule requiring the concurrence of 12 grand jurors to support any action of the grand jury should be applied.
In reaching this conclusion the court rejected the contention that the California grand jury was a “purely” statutory body, wholly distinct from its common law predecessor. The court declared: “The [California] grand jury system is a product of the common law. . . . The members of the [1849] constitutional convention in providing for a grand jury must have had in mind the grand jury as known to the common law. . . . The Constitution of 1879 did not attempt to change the historic character of the grand jury, and the system its members had in mind was evidently the same system that had come down to them from the common law. It is in no sense a statutory grand jury as distinguished from the common-law grand jury .... We must conclude . . . that the Constitution of 1879 when it refers to the grand jury refers to it as it had always been known and understood prior thereto.” (6 Cal.2d at pp. 240-241.) (See generally Kennedy & Briggs, Historical and Legal Aspects of the California Grand Jury System (1955) 43 Cal.L.Rev. 251,262.)
Cf. Craemer v. Superior Court (1968) 265 Cal.App.2d 216,225-226 [71 Cal.Rptr. 193], See also Note, The Grand Jury Report as an Infringement of Private Rights (1972) 23 Hastings L.J. 561, 582-584.
A superior court’s refusal to file a proposed grand jury report is, of course, subject to appellate review. (See In re Presentment of Camden County Grand Jury (1952) 10 N.J. 23 [89 A.2d 416, 444].) Appellate courts have not hesitated to reverse a lower court decision when it is demonstrated that the court suppressed a legally valid report. (See Clemmons v. State (Fla.App. 1962) 141 So.2d 749, 756-757.)
The dissent’s suggestion that the present opinion condones censorship of First Amendment expression ignores several critical points. In the first place, the grand jury is not a private body and its report is not an expression of private citizens’ views; rather the grand jury is a governmental body and its official report, carrying the aura of a judicial pronouncement, is authorized only within established legal limits. Second, although the dissent (without authority) suggests otherwise, as discussed above the grand jury has from its inception in Anglo-American jurisprudence always been considered an integral part of the judicial branch—“an instrumentality of the courts.” (In re Shuler, supra, 210 [442]Cal. 377, 405.) In applying the established common law rule that a court may prevent one of its instrumentalities from taking action explicitly prohibited by statute, we certainly give no sanction to governmental suppression of protected expression.