In re the Second Report of the November, 1968 Grand Jury

26 N.Y.2d 200 | NY | 1970

Lead Opinion

Chief Judge Fuld.

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.¹ Section 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), 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) —went on to say that the Legislature could, by “ a clear grant of legislative authority ” (p. 156), 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. 208-211) — 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 need 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 aright 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 indentity 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. 207), “that grand jury proceedings, by their very nature, are intended to be confidential (see Code 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; see Matter of Schneider v. Aulisi, 307 N. Y. 376, 381; People ex rel. Hirschberg v. Supreme Ct., 269 N. Y. 392, 395; 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; Kauffman & Sons Saddlery Co., v. Miller, 298 N. Y. 38, 44; People ex rel. Simpson v. Wells, 181 N. Y. 252, 257; see, also, Winters v. New York, 333 U. S. 507, 514.) “No statute should be declared unconstitutional ’ ’, we said in the Simpson case (181 N. Y., at p. 257), “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.

1 . To protect themselves, the appellants filed notices of appeal pursuant to section 520 of the Code and section 5601 of the CPLR.

2 . Indeed, the court, after restudying the grand jury minutes and the report in the light of the answer interposed, may wish to reconsider its decision to accept the report for filing. As we had occasion to remark, though in a somewhat different context, “omissions, contrasts and even contradictions, vital perhaps, for discrediting a witness, are certainly not as apparent to the impartial presiding judge as to single-minded counsel for the accused ”. (People v. Rosario, 9 N Y 2d 286, 290; see, also, People v. Emmett, 25 N Y 2d 354.)

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Dissenting Opinion

Burke, J. (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 explicit 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 needs be kept confidential ”, the report must be rejected and sealed by the court. It should be noted first of all that grand jury proceedings, by their very nature, are intended tole confidential (see Code Grim. 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 report itself should remain secret, the Legislature included only the situation in which the report might prejudice pending criminal matters and, even in that case, provided only for its temporary suppression during the pendency of the criminal matter. It is, therefore, clear that a strained effort is unnecessarily being undertaken to rewrite legislation which is plain and unequivocal on its face in denying the right today found required by the demands of procedural due process so as to render it constitutional. It is a fundamental element of our system of separation of governmental powers that only the Legislature enacts, amends or repeals legislation and that it is no part of the constitutional function of the courts to undertake to perform that task for the Legislature, however well intentioned such judicial interference may be. In the present instance, the Legislature has decided that persons such as appellants, when subject to the process embodied in section 253-a of the Code of Criminal Procedure, shall not be afforded the opportunity to inspect the grand jury minutes. This court today holds that that decision denies the appellants due process of law, and properly so. The result of that holding should be a declaration that the statute is to that extent unconstitutional and not a legislative determination in the form of an opinion that the statute should be repealed pro tanto and re-enacted to provide what the Legislature had intentionally denied. Given such a declaration of unconstitutionality the legislative process could undertake a thorough and careful re-examination of the statute and make a determination whether such inspection should be allowed and, if so, upon what clearly specified conditions. On the other hand, the re-examination might well result in the conclusion that grand jury secrecy is of greater value than grand jury reports and that, as a result, the entire reporting process should be scrapped rather than have it subjected to the procedural rights required by due process. In any case, the judgment to be made as to such questions is unquestionably one for the Legislature and today’s decision usurps that function.

In addition, the statutory scheme must be deemed violative of the provisions of our own State Constitution, specifically section 6 of article I, and section 1 of article III.

Section 6 of article I, of our Constitution provides, in pertinent part, that “ [t]he power of grand juries to inquire into the wilful misconduct in office of public officers, and to find indictments or direct the filing of- informations in connection with such inquiries, shall never be suspended or impaired by law.” Section 1 of article III of the Constitution provides that “ [t]he legislative power of this state shall be vested in the senate and assembly.” The statute purporting to authorize grand juries to issue ‘ ‘ reports ” as to noncriminal misconduct violates both of these provisions. By its terms, section 6 of article I guarantees that the power of the grand jury to inquire into misconduct by public officers may not be suspended or impaired by law. It is clear that this provision cannot reasonably be read as conferring a power to report in instances where the grand jury’s investigation develops evidence which is insufficient to warrant finding an indictment. The provision’s very structure, however, indicates that its power to inquire is inseparably linked to its power to find indictments or to direct the filing of informations “ m connection with such inquiries ”. (See Matter of Wood v. Hughes, 9 N Y 2d 144, 150-151.) The provision was added to the Constitution at the 1938 Constitutional Convention and its introduction was accompanied by floor debate which uniformly referred to the inquiry power in relation to the power to find indictments. (See Revised Record of Constitutional Convention of 1938, vol. 3, pp. 2570-2573; 1938 Constitutional Convention Committee, Yol. IX, Problems Relating to Judicial Admininstration and Organization, pp. 850, 860-865.) In addition, it is significant that, at the same time that this provision was added, the term “presentment” was deleted from the section. As the opinion in Matter of Wood v. Hughes {supra) indicates, the term is properly applied to an accusation of crime made at the grand jury’s own instance, as opposed to the indictment which is also an accusation, but one which is made at the instance of the prosecuting authority (9 X Y 2d at 148, n. 1). However, old case law had used the term to describe the result of a grand jury investigation where the evidence was insufficient to support an indictment, i.e., a ‘ ‘ report ’ ’ making recommendations for remedial action. (Matter of Jones v. People, 101 App. Div. 55, and oases cited in Matter of Wood v. Hughes, supra, at 148, n. 2.) This use of the term was thus established at the time of the 1938 Convention and the deletion of the term from section 6 of article I thus tends to reinforce the conclusion that there is no constitutional sanction for this reporting function of the grand jury. It, therefore, seems reasonable to conclude that that constitutional provision was intended both to guarantee against legislative interference with the power of the grand jury to inquire into misconduct by public officers and to limit that power to the ordinary situation of finding indictments or refusing to do so. Therefore, such reports, aptly described as ‘ ‘ legally unauthorized and morally obnoxious ” (Matter of Wood v. Hughes, supra, at p. 155), are also constitutionally impermissible as in excess of the power of the grand jury.

Section 1 of article III of the Constitution prohibits the delegation of legislative powers to other bodies or persons. It is nevertheless clear, and our cases have so held, that certain legislative powers may be “ delegated ” by the Legislature to various administrative and other bodies as long as the delegation is subject to legislative “ standards ” for its implementation (Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Matter of City of Utica v. Water Pollution Control Bd., 5 N Y 2d 164). And, as the City of Utica case demonstrates, there are instances where, because of the nature and complexity of the administrative problem, the legislative standards may be broad and lacking in specifics, with the details of the legislative scheme left to be “ filled in ” by the delegate body (Matter of City of Utica v. Water Pollution Control Bd., supra, at p. 169). Appellants attack section 253-a of the Code of Criminal Procedure as an unconstitutional delegation of the legislative power to define and prescribe the conduct which will subject public officer and employees to disciplinary sanctions, including removal. They contend further that the delegation is totally standardless since the Grand Jury is given no guidance as to the meaning of the terms “ non-criminal misconduct, nonfeasance or neglect in office”. Respondent counters by arguing that the Grand Jury can be instructed as to the meaning of such terms so that its members will not be applying their subjective, unexpressed moral judgments as to a public officer’s conduct in office. An examination of the area sought to be affected by the ‘1 reporting ’ ’ provision discloses rather clearly that this is not an area where the Legislature could reasonably be said to have found it desirable to leave the task of defining the subject of its legislation to its supposed delegate, the grand jury. “ Grand jurors are not selected for their skill in appraising efficiency in public office or delving into matters more appropriately reserved for executive or legislative action.” (Matter of Wood v. Hughes, supra, at p. 155.) Furthermore, the Legislature has long demonstrated both its willingness and ability to legislate extensively with regard to misconduct by public officers (see Penal Law of 1909, art. 170, §§ 1820-1879). Indeed the new Penal Law precisely defines “ official misconduct ” and directs its punishment as a crime, a class A misdemeanor (Penal Law, § 195.00). That section includes both the affirmative action on the part of a pubic officer which would constitute ‘ ‘ misconduct ’ ’ and the failure to act which would constitute ‘ ‘ nonfeasance or neglect” (the operative terms in the reporting provision). However, it is clear that that section of the Penal Law cannot be the basis for the standards and instruction which respondent contends are available since section 253-a expressly limits the reporting power to ‘ ‘ non-criminal misconduct, nonfeasance or neglect in office ”. It is, therefore, necessary to look elsewhere for the required standards by which the Grand Jury’s reporting power is to be governed if section 253-a is to be read as something more than a superfluous repetition in different words of the Grand Jury’s ordinary power to inquire and indict for crimes. The only possible source of such “standards ” is the attitude of the Grand Jury itself, its feelings of right and wrong, its inexpert opinion of inefficiency or proficiency in the conduct of public office. These manifestly are no standards at all, dependent as they are upon the diverse personalities and experiences of the individual grand jurors who may be called upon to participate in the issuance of such a report. Accordingly, it must be concluded that the. statute violates section 3 of article I of the Constitution since it clearly constitutes an impermissible delegation of the legislative power vested exclusively in the Senate and the Assembly.

Accordingly, the order of the Appellate Division, Fourth Department, should be reversed and the matter remitted to the County Court, Erie County, with directions that the report of the Grand Jury be forever sealed.

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Dissenting Opinion

Breitel, J. (dissenting).

For convenience, the views of the majority and the dissenter who are agreed in entertaining the appeal and to reverse are treated as if comprised in a single statement of a majority position.

The appeal, taken as of right on constitutional grounds, should be dismissed as a criminal matter which by statute is explicitly made not appealable to this court.

There is no question that an appeal may be taken in criminal cases to the Court of Appeals only where the judgment is of death or the Legislature has made provision for such appeal (N. Y. Const., art. VI, § 3, subd. b). As for the review of court orders accepting or sealing grand jury reports, the Legislature has expressly provided in the plainest language that: “ The procedure provided for in this section shall be the exclusive manner of reviewing an order made pursuant to section two hundred fifty-three-a of this code and the appellate division of the supreme court shall be the sole court having jurisdiction of such an appeal. The order of the appellate division finally determining such an appeal shall not be subject to review in any other court or proceeding.” (Code Grim. Pro., § 517-a, subd. 7.)

In civil matters, the Constitution provides the extent of appealability, and, therefore, the Legislature by statute may not curtail rights of review except as may also be allowed by the Constitution (art. VI, § 3). Hence, if this matter were civil in nature, the Legislature had no power to preclude this court’s appellate jurisdiction.

The only question remaining, then, is whether the submission and examination of a grand jury report in the court for which the grand jury was impaneled is to be treated as civil or criminal.

The applicable constitutional provision contains no definitions of “ civil ” and “ criminal ”. In the past, without exception, the court, in determining whether an appeal is controlled hy the criminal or civil procedure for appeal has respected the Legislature’s characterization of the proceeding. Quite emphatically it has not made the test whether a crime was charged. The most striking and most illustrative, but not the only, example of this approach is that of filiation proceedings. Thus, although such proceedings did not involve “crimes” and were definitely not criminal prosecutions, they were nevertheless treated as criminal when initiated in a court of criminal jurisdiction, yet civil when initiated in a court of civil jurisdiction (compare Matter of Clausi, 296 N. Y. 354, with Commissioner of Public Welfare v. Simon, 270 N. Y. 188, 191; see, generally, Cohen and Karger, Powers of the New York Court of Appeals, pp. 710-711).

The Clausi case (supra) is of particular significance, for the court, in deciding whether the appeal was on the civil or criminal side of the judicial system, necessarily construed the Constitution as well as the procedural statutes. At the time of the Clausi case, as now, the Legislature had a closely restricted power to vary the civil appellate jurisdiction of the Court of Appeals. Under the Constitution, leave to appeal to the Court of Appeals may be obtained in a civil case only through application to the entire court, be it Court of Appeals or Appellate Division (N. Y. Const., art. VI, § 3, subd. b, pars. [4], [5], [6], [7]; N. Y. Const, of 1894, art. VI, § 7, subd. [5], as amd. Nov. 2, 1943). Since there is no similar constitutional restriction for appeals in criminal cases, the Legislature may, and has provided, that leave to appeal to the Court of Appeals may be obtained through application to a single Judge or Justice (Code Grim. Pro., § 520). Thus, the court in the Clausi case (supra) held that filiation proceedings should be deemed civil in the constitutional sense, while in the Simon case (supra) the court held that the filiation proceeding was criminal, and that application for leave to appeal should be made either to a court or a Judge, depending on the forum provided by the Legislature.

The legislative determination to treat the grand jury report proceeding as criminal in nature is not without ample basis. Under the Code of Criminal Procedure, the grand jury must, in most investigations including the instant one, confine its inquiry to the commission of crimes (§§ 245, 253, subd. 2; see Matter of Wood v. Hughes, 9 N Y 2d 144, 151-153). A grand jury report concerning noncriminal conduct is to be based, at least initially, upon facts obtained as a result of this investigation into crime by a criminal law enforcement agency (§ 253-a, subd. 2, par. [a]; subd. 5). The report may be submitted not only in the event that no criminal conduct has been found, but also when the grand jury, in the exercise of its broad discretion, chooses not to file an indictment or criminal information, yet feels obliged to report concerning noncriminal misconduct in public office or employment, or recommend legislative, executive, or administrative action.

Since the report is made to the court for which it was impaneled, the court is necessarily one of criminal jurisdiction, although it may also happen to have unrelated civil jurisdiction as well. The initial inquiry having been launched from the criminal side of the court and having been confined, generally, to criminal conduct, the presentation and examination of the report, concerning noncriminal misconduct, may nevertheless be rationally treated as a criminal proceeding for purposes of appeal, and, therefore, must be so treated by this court.

Equally significant is it that when the majority to reverse treat the merits they use and apply tests which arise in criminal matters. This is a manifest recognition that a grand jury report partakes more of a criminal nature than it does a civil matter. Of course, it will come as a surprise to most that a grand jury is indulging in a civil procedure when it makes a report just because it omits return of a criminal information or indictment.

Consequently, this court lacks jurisdiction of the appeal and it should be dismissed.

On the view taken of appealability it would not be necessary to consider the merits. But because complete silence might indicate agreement with the other views expressed on the. merits, some comment is required.

Initially, the view that the Constitution does not affirmatively authorize grand jury reports, a view first laid down by the court in Matter of Wood v. Hughes (9 N Y 2d 144, 150-151, supra), does not support the converse declaration that the Legislature may not by statute impose that power or duty on grand juries. This is especially true since the Constitution says very little of the powers and duties of a grand jury, except to emphasize that its power “ 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” (art. I, § 6). Indeed, the majority in the Wood case did not assert that the Constitution barred .reports, or that they were unprecedented at common law, but rather that the Legislature ‘ ‘ manifested its intention to supplant the common law on the subject” (9 N Y 2d, at p. 149, see, also, pp. 150, 151-154).

Thus, the Wood case struck down grand jury reports only for want of a positive grant either of constitutional or legislative authority (9 N Y 2d, at pp. 153-154). Section 253-a of the Code of Criminal Procedure, since enacted, provides that positive grant of legislative authority. Consequently, the Wood case supplies no argument against the validity of the statute, but indeed supports it, although, to be sure, it is evident that as a policy matter the majority of the Wood court would not, if they were proper legislators, have favored enactment of such a statute.

But the most seriously mistaken premise in this case is the equation of investigation, whether of crime or other grave misconduct, with a criminal action. It is only in the criminal action, which is adversary and judicial, that the defendant is entitled to the full panoply of rights, including the right to counsel, to disclosure of evidence and to confrontation of witnesses. And then this is only after arrest and arraignment or upon the trial, as the case may be.

Investigations are another matter. They are normally ex parte, secret, highly confidential, and may, but do not necessarily, result in prosecutions for crime or even reports. Nor are they peculiar to the judicial branch. On the contrary they are quite often conducted by agencies of the executive or legislative branches, and just as often independently of a grand jury. They may be conducted by commissions such as the Division of Human Rights (Executive Law, §§ 290-301, esp. § 295, subd. 8), or the State Investigation Commission (L. 1958, ch. 989, as last amd.), or by executive departments, such as the Attorney-General (Executive Law, § 63, esp. subds. 8, 11; General Business Law, §§ 343, 354). And, of course, the Governor’s power to direct so-called Moreland Act investigations, always resulting in reports, has now become classic (Executive Law, § 6; see, generally, Breuer, Moreland Act Investigations in New York; 1907 — 65, N. Y. State Library Bibliography Bull. 85). To apply to all these investigations, where they result in reports, the rules being applied to grand jury reports on constitutional due process grounds would be all but unthinkable and quite unsettling. Yet that would seem to be the necessary implication of the court’s present holding.

Indeed, the evils attributed to grand jury secrecy and confidentiality are present whether investigation culminates in an indictment or a report. In either event, the subject of the inquiry is incapable of heading off a publicized grand jury pronouncement, except to the limited extent he can state his own defense, independent of any knowledge of testimony supporting the indictment or the report. In either case, he cannot study the testimony, present or cross-examine witnesses, or otherwise effectively rebut the evidence. Although a defendant may ultimately succeed in vindicating himself at trial, later exoneration may be only of limited effect. A reputation may be permanently ruined in the interim between indictment and verdict, and a prosecution may be dropped before there is an opportunity for a rebuttal at trial.

The present case involves a serious matter and there is no suggestion from any source that it was improperly motivated, baseless in its institution, or biased toward the subjects of the investigation. Indeed, the report in this case is concerned with persistent and widespread larceny and corrupt misuse of the property and services of a public institution, including vast quantities of dangerous and narcotic drugs. None of this is denied. The Grand Jury, perhaps as a matter of mercy, decided to make the report, rather than institute criminal prosecutions against supervisors who knew or should have known of the conditions. It noted that the acts of misconduct had become so commonplace, and the operation of the hospital so lax and decayed, as to invite misconduct without a commensurate criminal intent by the employees and officials. It recommended, however, the removal or discipline of various heads and supervisors who must have been responsible for the present condition, either because of culpable willful ignorance or knowing condonation, apart from alleged instances of their own participation in the misappropriation of public property and services.³ To the extent that these persons held protected public positions, their discipline or removal would entail full-fledged hearings as does a criminal trial for one indicted. To the extent that they did not hold protected positions, the executive with power of removal could choose, if he wished, to give the public officer or employee a full hearing. The significant fact is that the grand jury does not and cannot remove officers or impose criminal penalties, any more than it can convict criminal defendants. It may only recommend such removal by those with the power of removal.

It must be emphasized that one is concerned here with public office and nonfeasance and neglect in such office. Current events hardly suggest that a public officer is in dire need of protection from criticism. Indeed, the United States Supreme Court in New York Times Co. v. Sullivan (376 U. S. 254), and the cases in its wake, made quite clear that, except for defamation made with “actual malice ”, a public officer will be denied a private tort remedy, however grievous the defamation. Surely, the risk of a private defamation with impunity is far greater than official defamation which has always, in the public interest, been granted at least qualified privilege (see Prosser, Torts [3d ed.], pp. 795-823).

If it be thought that a grand jury, because associated with the judicial system, may not have the same freedom of investigation and report as do the executive and legislative branches, it is only necessary to note that while the grand jury is an arm of the judicial system, it is not a truly judicial body and its proceedings are only qualifiedly judicial. It is within the court system but is of the courts only in a limited sense. It is an ancient institution developed in the misty past and has survived as a unique citizens’ body to enforce the criminal laws and, hopefully, to cleanse public offices.⁴

The grand jury report, viewed in its proper perspective and not inflated to the status of a judicial pronouncement of guilt, is readily sustainable. It is a report based on the preponderance of the evidence adduced on an ex parte investigation, and not a trial. To the same extent that those named within its pages cannot review the entire record, cannot present or cross-examine witnesses, or otherwise lack the rights and safeguards afforded defendants in crimnal actions, so, too, the report cannot and should not be afforded the legal status of a judgment of conviction. There is no claim that it is. If, as contended, the import of a report is misapprehended, despite its evident limitations, the remedy is not the application 'of due process standards as though a report were a judgment of conviction or a necessary predicate to one. If the nature of a report is misunderstood (as, indeed, indictments often are) and attempts at education are unavailing, the shortcomings of the report procedure are the proper subject of legislative study, and not of constitutional prohibitions.

The interpolation by the court of a right to inspect the grand jury minutes, a right given nowhere in the particular statute and given only limitedly in the statutes and cases governing proceedings after criminal indictment, has no warrant in law, the precedents, or policy. The report statute was not designed to set up a junior brother to criminal prosecution but to overcome this court’s holding in Matter of Wood v. Hughes (9 N Y 2d 144, sufra) that there was no constitutional .or legislative authority for reports, and at the same time require that reports have some surveillance, on notice, lest irresponsible reports be publicly disseminated.

The majority view introduces an expanded litigation procedure (perhaps conceivably the taking of proof) before a contested report may be publicized. No other investigative official, committee, or commission is subject to a similar requirement. The most shocking discrimination, however, is that criminal defendants, with so much more at stake, have no protection or ‘ ‘ due process ’ ’ similar to. that being accorded to public officers and employees who are being criticized with less than crime. Needless to say, the principles being expressed as limited to grand jury reports affecting public office will hardly remain so confined when criminal defendants contend for a similar right and protection. Assuming, as a matter of policy, that there should be such rights and protection, it is a matter for legislative action by the constituted Legislature and not by the courts, let alone the court which the subject legislation expressly precludes from appellate jurisdiction. Not only is the Legislature primarily concerned with policy, but it may experiment and change the procedures if the legislated procedures fail to serve public ends. To make of these difficult questions a matter of constitutional mandate which the Legislature may not vary is a disservice and an .arrogation.

Accordingly, I dissent and vote to dismiss the appeal.

Judges Scileppi, Bergan and Gibson concur with Chief Judge Ftjld; Judge Burke dissents in part in a separate opinion and votes to reverse and remit the matter of the County Court with directions that the report of the Grand Jury be forever sealed; Judge Breitel dissents and votes to dismiss the appeals in a separate opinion in which Judge Jasen concurs.

Orders reversed, etc.

3 . The Grand Jury was impaneled November 12, 1968, and was extended by successive orders of the court to May 29, 1969. It heard 63 witnesses, received some 159 exhibits, and the transcript of its proceedings numbers 2,509 pages. Co-operating agencies besides the District Attorney and Sheriff of Erie County were the State Department of Audit and Control and the Narcotic Control Bureau of the State Department of Health.

The Grand Jury found that $5,100 wholesale value of narcotics and other dangerous drugs were unaccounted for, and at least one witness testified to weekly losses of drugs and medication of $500 per week. The drug investigation uncovered extensive misuse, and diversion of other public supplies, equipment and services to private uses, sometimes in connection with the use or exchange of drugs.

4 . For a generally sympathetic view of the many functions of grand juries, including its investigating and reporting powers, see Peter Megargee Brown, Ten Reasons Why the Grand Jury in New York Should be Retained and Strengthened, 22 Record of Assn. of Bar of City of N. Y. 471. See, also, the several opinions in Matter of Wood v. Hughes (9 N Y 2d 144, supra) which detail the historical background of the grand jury in Anglo-American jurisprudence.