# McClatchy Newspapers v. Superior Court > California Supreme Court · April 18, 1988 · 44 Cal. 3d 1162 URL: https://www.frixlaw.com/law-library/cases/9609264 ## Case - **Full name:** McCLATCHY NEWSPAPERS Et Al., Petitioners, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; 1983-1984 GRAND JURY FOR FRESNO COUNTY Et Al., Real Parties in Interest; CAPITAL CITIES COMMUNICATIONS, INC., Et Al., Petitioners, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; 1983-1984 GRAND JURY FOR FRESNO COUNTY Et Al., Real Parties in Interest; 1983-1984 GRAND JURY FOR FRESNO COUNTY Et Al., Petitioners, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; JOHN W. RUST Et Al., Real Parties in Interest - **Court:** California Supreme Court - **Decided:** April 18, 1988 - **Citations:** 44 Cal. 3d 1162; 245 Cal. Rptr. 774; 751 P.2d 1329; 15 Media L. Rep. (BNA) 1529; 1988 Cal. LEXIS 85 - **Precedential status:** Published - **Opinion:** Dissent by Mosk - **Judges:** Kaufman, Mosk - **Cited by:** 39 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9609264 ## Opinion text MOSK, J. I dissent. One would hope that courts, like individuals, would learn from prior misdirection. Yet here, in an unmistakable exercise of déjá vu, a majority of this court approve of censorship precisely as a four-to-three majority erred more than a decade ago in People v. Superior Court (1973 Grand Jury) (1975) 13 Cal.3d 430 [ 119 Cal.Rptr. 193 , 531 P.2d 761 ]. My dissent in that case, joined by two colleagues, could be repeated almost verbatim in the instant matter. The very underpinning of the majority is faulty, as it relies on “the fundamentally judicial nature of the grand jury” (ante p. 1172). The fact is, however, that we are here concerned with the grand jury’s investigative activity and its report of the result. Strange indeed is the notion that investigation is a judicial function. However well intentioned the superior court judge may have been, the inescapable conclusion is that in excising part of the grand jury report he was committing censorship. As we should have learned from the lessons of history, the road to censorship is often paved with good intentions. Penal Code section 933 provides that the grand jury “shall submit to the presiding judge of the superior court a final report,” but nowhere in that section, or any other provision, is authority given to the judge to reject the report in whole or in part. Here the grand jury fulfilled its statutory duty by filing a report. The judge was required to accept the report. In purporting to excise part of the material submitted, he was in effect improperly expanding judicial jurisdiction by diminishing the jurisdiction of the grand jury. I find it ironic that the majority, as in the 1973 grand jury case, cite Monroe v. Garrett (1971) 17 Cal.App.3d 280 [ 94 Cal.Rptr. 531 ]. They obviously overlook the impact of that opinion, which, at page 284, declares: “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.” (Italics added.) The public, not a judge, is to draw conclusions from the grand jury report. The public is to be provoked into *1186 debate; the judge is not to prevent debate by suppressing all or part of the report. The majority emphasize the secrecy of grand jury proceedings. I have no quarrel with that concept. However, my colleagues confuse the internal proceedings of the grand jury, which are properly secret, with the grand jury report to the court, which by statute is intended to be made public. As the Court of Appeal properly noted, the grand jury’s reporting power is coextensive with its investigative power “in order that the people’s right to know about the affairs of their government not be thwarted.” This principle has prevailed for more than a half century: in Irwin v. Murphy (1933) 129 Cal.App. 713, 717 [ 19 P.2d 292 ], the court held “As a matter of routine, if nothing further, the power to investigate includes as an integral part thereof the right and duty to report the result of such investigation.” It is true that on occasion a grand jury may delve into matters that are inappropriate to its functions. But as I pointed out in my dissent in People v. Superior Court (1973 Grand Jury), supra, 13 Cal.3d at pages 445-446, “if we assume arguendo that the body proposed to report on subjects outside its ken, such a report might reflect upon its source, yet the irrelevance or impropriety of the official document does not justify its suppression. There are traditional and statutory boundaries to grand jury activities. Penal Code section 939.9 is cited as an example. But if an irresponsible grand jury elects to violate that or any other statutory inhibition, it may suffer penalties the law provides, if any, but it cannot be restrained from so acting. “A legislature may not enact an unconstitutional statute; such an act is wholly beyond its authority and jurisdiction. Yet no court would attempt to prevent the legislative body, by injunction or other order, from proceeding as it sees fit. As an independent public body it has the right to proceed, even in error. A court cannot enjoin the publication of a libel, prevent the erroneous exercise of discretion by a public official, or prohibit the commission of a crime. By parity of reasoning, a court cannot prevent a grand jury from expressing views on subjects the court believes improper, whether by direct order or by suppression of a report. When the court here attempted to do so, it acted on a misguided notion that its general advisory function embraced the role of censor. Yet pertinent code sections refer only to the court’s duty to instruct the grand jurors (Pen. Code, § 914.1), to charge them as to their duties (ibid.), and to advise them when such advice is asked (Pen. Code, § 934). No authorization to tamper with the grand jury report is given to the court. Indeed, under Penal Code section 928, the grand jury is to submit a copy of its report on needs of county officers directly to each member of the board of supervisors. Since such copy does not go to the supervisors *1187 through the court, it seems clear that the Legislature anticipated no judicial revision.” I conclude this opinion as I concluded my dissent in the 1973 grand jury case: “the censors of the world hold their posts as self-appointed guardians of their own particular narrow concept of orthodoxy—in literature, art, and government. The judge in this instance believed he was serving the public interest. But it was his interpretation of the public interest. Obviously the grand jury marched to a different drummer. The jury conclusions may have been wrong. But they had a right to be wrong. It is axiomatic that in a democratic society an evil is never corrected by suppression or censorship; it is made right by exposure to the marketplace of thought, discussion and controversy.” For all these reasons the Court of Appeal properly ordered issuance of a writ of mandate. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9609264. Public record. Not legal advice.