*1 (1960); 2d Gutterman, 102 N. W. 258 Minn. Knopp however, re- opinion, Dig. offer no Dunnell, 8938. 17B § illness, or con- vacancy, problems of garding special absence^ in- they the record not raised since of interest flict stant case. rezoning holding ordi- correct court was

The district required vote. garner two-thirds for nance invalid failure Affirmed. COUNTY OF WABASHA

IN RE GRAND JURY 19, 1976. JANUARY THE COURT BY CHARGED N. W. 2d 253. 18, 1976 46587. June No. Keith, Collins, Towey

Dtmlap, Finseth and T. & Lawrence Col- petitioner. lins, for Attorney General, Spannaus, Sipkins, Peter

Warren W. Solici- General, Allyn, B. Attorney tor Richard General, Assistant Kent Harbison, Special Attorney General, G. Assistant and Jerome Schreiber, County Attorney, respondent. Falvey, E. Defenders Associa- for Minnesota Public

William curiae, issuing tion, writ. amicus favor of curiae, Randall, Ramsey Attorney, B. William amicus issuing in favor writ.

Kelly, Justice. duly Petitioner, County, elected official in Wabasha requiring County a writ of mandamus Dis- seeks Wabasha prohibit expunge trict Court to of release and to from records its report by grand jury written filed or in the name of the a return of no indictment. order that the writ issue accord- opinion. with ance July 1,1975, grand

On a Wabasha was for drawn provided an annual term Rule Rules of Criminal Procedure. The convened, sworn, charged and by January 19, the court on days hearings 1976. After 4 of and deliberations, it January 28, returned on finding no However, indictment. it also filed with the court at that time a report, written governor, containing addressed to the certain findings opinions concerning subject and grand matter jury’s investigation.

Petitioner moved the prohibit district court to release of this governor to the or the expunge and to the material contained therein from the Upon court records. denial of these motions, governor, was mailed to petitioner sought relief in this court. Rules Procedure, comprehensively deals grand

with the jury proceedings. specific It contains safeguards designed confidentiality to ensure pro- of those ceedings protect to citizens from disclosure of the contents proceedings of those when no indictment returned. Rule 18.08 provides: grand

“Every juror any keep shall secret whatever other he or during juror said has any its deliberations how he or other occurring before the of matters Disclosure juror has voted. may any juror, the vote deliberations and jury, than other performance attorney use prosecuting to the made be attorneys pursuant or defendant his duties, and to the his governing the record of the 18.05 of this rule stenog- interpreter, Otherwise, juror, attorney, proceedings. no recording operator device, typist reporter, who rapher, aof court, testimony, law clerk transcribes recorded enforcement occurring may or court attache disclose matters before officer, preliminarily Me jury except the court when directed proceeding. with a Unless the court in connection otherwise, finding person shall disclose the of an in- directs custody appears the defendant is in dictment until before the necessary except when for the issuance and execution warrant, provided, however, may a summons disclosure attorney by prosecuting made notice to the defendant or attorney ap- his of the indictment the time of defendant’s court, prosecut- pearánce in the district if in the discretion of the *3 ing attorney is such notice sufficient to insure defendant’s (Italics supplied.) appearance.” contemplated, proceeding pending or there

When is occurring prohibits of matters Rule 18.08 disclosure before addition, 18.06, 3, provides: gi;and jury. In Rule subd. may grand presentment.” jury not find or return a “The 628.01, superseded by Rules of now Minn. St. presentments distinguished Procedure, indictments and between following in manner: writing, presented by a in an accusation

“An indictment charging court, person with a competent grand jury ató writing, by statement, in informal presentment an A offense. has that a offense grand jury, representing to the court ground for believ- committed, is reasonable there and that been described, has com- individual, named ing, particular it.” mitted 628.04, superseded, specified

Minn. St. 628.02 and also might whereby procedures presentment In be returned. abolish- ing presentments, haphazard the aim was to avoid informal and charges findings grand juries jury’s by focus the at- by applying tention on an whether indictment should be found 18.06, provides in part: standard subd. which grand jury may upon “The an find indictment when all of the probable evidence there is cause to an believe that offense has been committed and that the defendant committed it.” If found, an indictment jury reports is not that fact any charges investigated on based the matters dismissed: may “An indictment only upon be found the concurrence of jurors. 12 or more found, signed When so it shall the fore- man, whether he concurring be one of the 12 not, and delivered judge open jurors court. shall not finding concur in If an indictment, shall writing so to the.court foreman forthwith, any charges against filed defendant for considered and which no indictment was returned offenses shall he dismissed. The failure to find an indictment the dis- charge prevent missal of the again being shall not the case from grand jury submitted to a as often as the court shall direct.” Rule (Italics Rules of Criminal supplied.) Procedure. analysis Our leads us to the conclusion that re port case, in the instant issued without an in dictment, unnecessary is an and unwarranted extension of the authority in contravention of that rule. To permit release such a would in effect reinstate the great likely damage ain form to inflict on a named *4 reputation despite individual’s the fact that insufficient evidence support charges. was People available to formal As stated in was McCabe, 330, 333, 363, (1933): 148 Misc. N. Y. 266 S. 367 presentment importance “A is a foul It the of a blow. wins 152 right principal attributes —the document, yet it lacks no forum furnishes appeal. It but to accuses and

to answer findings are the evidence what No one knows a denial. challenged The defeated. may be An indictment based. —even Be- motorist. and run’ ‘hit immune. It like the is it, suppress it is the to made application can be fore may unjustly injury it damage gossip. done. public may never be healed.” inflict Electrical, Machine Radio & United

See, also, Application of 1953). cir- (S. Under the Supp. D. N. Y. Workers, F. confidentiality requirements of case, cumstances judicial proceedings man- possible pending or in the absence suppressed any supplementary and kind date expunged from court records. above, 18, as state contends that

In the face procedure, intended restrict not to of criminal a rule corrupt inquire duty into willful civil public Therefore, 628.61.1 misconduct officials. Minn. St. gained concludes, can information state gover- drawn in the course of these duties to the and conclusions pursuant Minn. St. 351.03 and 351.04. nor for his action Those give governor authority to remove certain sections performance for malfeasance nonfeasance officials support contention, official In of its the state duties. cites State Strong Court, 216 Minn. 2d ex rel. v. District N. W. Darby Sons, (1944), v. B. E. & Inc. Standke 291 Minn. (1971). 193 N. W. 2d 139 specifically superseded which was not the Rules Minn. St. Procedure, provides “The shall in follows:

quire: “(1) imprisoned person every on criminal Into condition indicated;

charge county, and triable in the management “(2) public prisons Into condition county; and “(3) corrupt misconduct in all Into the office of wilful (Italics supplied.) county.”

officers

153 distinguishable or do cited the state are either The cases argument. Strong present- support concerned a not its The case ment, indicated, presentments and, previously as have we have context, Eule 3. Even within that been abolished subd. however, parts the court held that those of allega- exposed reputation which odium an individual’s making charge wrongdoing formally tions of without correct expunged must be from the court records. The in- Standke case brought by grand jurors against group volved a libel action of jurors newspaper. that that While case states as fact previously regarding county govern- had reports made certain ment, nature, propriety, any reports or release of was such opinion expressed not before the court and no thereon. Furthermore, prior adop- Standke was likewise decided governs tion of 18 Eule which our decision the instant case. importance general are not unmindful of the of the investi- gative grand jury of duties under Minn. St. 628.61.2 At least suggested grand jury may properly one Federal case has that a general report coming return a on conditions to its attention returning long report without an indictment as does not as that 2We governor’s importance likewise not unmindful of the of powers function and of removal under Minn. St. 351.03 and 351.04 and importance gathering function, information in aid that but we proper think the function of the under 18 is to serve part judicial process, of the investigative criminal not aas civil Brown, arm executive. As the court v. stated Hammond (N. Supp. 326, Ohio), F. affirmed, (6 1971): D. 450 F. 2d 480 Cir. “* ** inquest part of crimes and offenses is judicial government. branch government Hike other branches of judicial separation powers. branch is to the doctrine of State Judge Finley, Pfeiffer, ex Commissioners, rel. Bd. of Ohio (Ohio Sup. 1955). St. part N. E. 2d Ct. government separate branch of and is and distinct from legislative government; grand jury, and executive branches of and the therefore,.may ‘impinge upon rights authority others,’ Finley, supra, 149, 126 at N. E. 58.” 2d at now be- is not However, the issue since

single individuals.3 out propriety of such opinion on the express us, we fore statutes. 18 and our under Rule mandamus shall above, a writ forth reasons set

For the directing court that County District Court the Wabasha issue to report discussed the written disclosure from further to refrain expunge it from suppress and to and to herein *6 records. shall issue.

Writ specially). (concurring Scott, Justice issue, agree that the writ should would I with logical agree opinion if entire conclusion that with the changed Procedure, in Minne- the law 18, has Rules of Criminal clearly spelled more out. sota were present- 3, abolishes opinion that Rule subd. states 345, Strong Court, Minn. ex v. District In rel. ments. State presentments when (1944), at time 2d 776 decided N. W. parts statutory law, allowed certain we part of the were expunged from stand, suppressed and jury report to but 345, Brown, Supp. district court In v. Hammond 323 F. investigative strength great grand jury is its broad stated: “The right power possible au or into the commission of crime. It has reviewing body public thority advisory of to other as an board or as grand jury’s However, ficers, boards, or authorities. commissioners only statutory authority report to bill or a no bill and to return true jail. writing concerning county report in Nevertheless to Cuyahoga County in courts, grand Court, in Pleas other .Common report juries preparing mat a written on have followed the custom during generally coming to When ters their attention term. these relating reports apparent describe some condition to cause or recom private long crime, citizens cure as no officials or mended for as comment, are, though singled they ex derogatory without out are for good. press law, may implied some harmless and serve or foundation indict, report it to officials “But when a does not when refers defamatory identity private citizens name or in a critical man- suppressed ner, may be is unlawful and harmful. It then the expunged." to statu not conform files the court which did have

tory the rules “presentment.” Now that definition of presentments completely, the obvious reasons for abolished changing law the opinion, we stated are court’s allowing Strong iota written case one we are still for jury. completely contrary purpose This seems to the abolishing presentments contrary rule and also to all opinion. quote, example, the cases cited in the court’s For we follows, People McCabe, 330, 333, Misc. 266 N. Y. S. (1933): presentment

“A ju- is a foul importance blow. It wins of a document, yet principal right dicial it lacks its attributes —the appeal. answer and to It accuses but furnishes no forum a denial. findings No one knows what evidence the may challenged An based. indictment defeated. The —even is immune. It is like the ‘hit and run’ motorist. application Before can suppress be made it, it is the public gossip. damage injury done. The may unjust- it ly may inflict never be healed.” *7 purpose

The of the abolition of the was to avoid any report these effects. To allow at this time pur- defeats the pose. When is criticism made of an or a function, office it must be remembered that some individual holds the performs office or published the function and reports that will not limit story the merely grand what is said jury but will public name the person responsible official or for the function. grand cannot be certain jury advising that a or those that body always will be sensible.

Again, 2 majority footnote of the opinion, Hammond v. Brown, Supp. 326, (N. F. Ohio), affirmed, D. 2dF. (6 1971), correctly appropriately quoted: Cir. and .

“* * * grand, proper think jury function of [W]e part judicial 18 is to under serve as a the criminal of theAs executive. investigative of the arm civil process, not a * ‘* * grand [supra] : v. Brown in Hammond stated judicial part is of offenses and inquest crimes jury of in its government of branches government. Like other branch powers. separation of to the doctrine judicial branch is Pfeiffer, Commis- Judge Bd. of Finley, ex rel. State 1955). (Ohio Sup. Ct. E. 2d 57 126 N. sioners, 163 Ohio St. government and jury part branch grand of the is legislative executive from separate and distinct is therefore, may grand jury, government; branches Finley, rights others,” authority "impinge ”58.’ supra, 149, 126 N. E. 2d at at say: goes in Hammond on to The court authority “Hence, issue a without commends, advises, or makes recommendations that condemns concerning operation boards, public policies officers, the ‘doctrine of the authorities. Protection of carefully separation powers’ developed and relied on in quoted decision, Application widely of United and authoritative Workers, Electrical, Supp. Radio Machine 111 F. & Judge 1953), (S. D. Y. in which Edward Weinfeld ordered N. expunged ‘presentment’ actually that was Supp. report.” 345. 323 F. clearly presentments

I should hold believe we have been doing Rules of Procedure. In so abolished limiting way grand jury’s investigatory be in no we would hearings implementation powers and its duties enumer- investigation necessary A can effec- ated in St. 628.61. be Minn. findings by potential other without the disclosure of its than tive Proper questions an indictment or a no bill. the return of suggestions contemplated by Minn. measures St. for corrective effectively put can forth in confidence 628.61 *8 specific when witnesses members of the room suggestions fulfilling statutory duty. are called during called as witness can be monitored that official grand jury’s power reporting To to allow a tenure. extend this express authority is with instrument without inconsistent intent of Rule 18.1

Todd, (concurring specially). Justice join concurring opinion I Mr. Justice Scott. (concurring specially). Yetka, Justice join concurring opinion I Mr. Justice Scott. SCHAEFER, MINOR, SCHAEFER, PAMELA A BY FRED GUARDIAN, HER FATHER AND NATURAL AND ANOTHER v. CITY OF BLOOMINGTON AND ANOTHER.

244 N. W. 2d 45. 18, 1976

June 46129. No. 1Both amici curiae Minnesota Public Defenders Association and the Ramsey County agree Attorney with this conclusion.