Brooks

Larry F. Brooks, Yuba County Planning and Building Services Director, and Frank D. Ellis II, the deputy director, sued individual members of the 1993-1994 Yuba County Grand Jury claiming they were defamed in two grand jury reports about the operation of their department.

*1290 Plaintiffs cited Penal Code section 930, 1 and alleged the reports were not privileged because the grand jury returned no indictment against them.

Defendants moved for judgment on the pleadings, offering a multifaceted constitutional challenge to section 930. The gist of defendants’ argument was that if the comments about plaintiffs were not privileged pursuant to section 930, and plaintiffs were free to sue them for defamation, other Penal Code sections requiring the secrecy of grand jury proceedings prevented them from mounting an effective defense. Defendants insisted that as public officials they would be unable to defend against allegations of actual malice because sections 924.1 and 924.2 prohibited disclosure of their state of mind during grand jury deliberations.

The trial court granted defendants’ motion on grounds the statute, as applied, denied them due process. We reverse for reasons…

I concur in Justice Brown’s scholarly opinion. I write separately to point out some other problems with defendants’ position in this case.

Having been sued for defamation, defendants suggest a basic unfairness in the way statutes governing a grand jury apply to them. On the one hand, the statutes prohibit them from disclosing evidence adduced before the grand jury. (E.g., Pen. Code, § 924.1.) 1 This prohibition limits their defense, particularly as it disenables them from showing a lack of malice. On the other hand, section 930 provides, in the circumstances present here, that comments made in their grand jury report shall not be privileged, so defendants may be held liable. In essence defendants complain it is unfair that they can be sued but cannot defend themselves.

Theoretically, there are two possible remedies to the unfairness claimed by defendants: (1) permit disclosure of evidence received by the grand jury *1296 and considered by it in preparing the subject report, or (2) immunize the grand jurors from liability. In this proceeding, defendants have focused exclusively on the second remedy. In my view, their argument is untenable, for reasons that follow.

Defendants…

Larry F. Brooks, Yuba County Planning and Building Services Director, and Frank D. Ellis II, the deputy director, sued individual members of the 1993-1994 Yuba County Grand Jury claiming they were defamed in two grand jury reports about the operation of their department. Plaintiffs cited Penal Code section 930, [1] and alleged the reports were not privileged because the grand jury returned no indictment against them.

Defendants moved for judgment on the pleadings, offering a multifaceted constitutional challenge to section 930. The gist of defendants' argument was that if the comments about plaintiffs were not privileged pursuant to section 930, and plaintiffs were free to sue them for defamation, other Penal Code sections requiring the secrecy of grand jury proceedings prevented them from mounting an effective defense. Defendants insisted that as public officials they would be unable to defend against allegations of actual malice because sections 924.1 and 924.2 prohibited disclosure of their state of mind during grand jury deliberations.

The trial court granted defendants' motion on grounds the statute, as applied, denied them due process. We reverse for…