I concur in the majority opinion, which I have signed. I write briefly to express my view on a question that the majority opinion does not decide (see maj. opn., ante, at p. 232, fn. 11) but that, in my view, merits clarification: the extent to which a trial court retains nonstatutory power to order disclosure of grand jury proceedings.
In Ex Parte Sontag (1884) 64 Cal. 525 [2 P. 402] (Sontag), this court stated that "principles of public policy . . . are subserved by keeping inviolate the *Page 235 secrets of the grand jury room — except when their disclosure isabsolutely necessary." (Id. at p. 528, italics added.) Almost a century later, in Shepherd v. Superior Court (1976) 17 Cal.3d 107 [130 Cal.Rptr. 257, 550 P.2d 161], this court suggested that "there may be cases of urgent and particularized need . . ." in which the policies underlying grand jury secrecy "must be made to yield to some extent in order to accommodate the demands of truth and fairness in civil litigation." (Id. at p. 127.) Read together, these two decisions imply that courts may order disclosure of grand jury materials based on a showing of absolute necessity by the party requesting disclosure.
But thereafter, in Daily Journal Corp. v. Superior Court (1999)20 Cal.4th 1117 [86 Cal.Rptr.2d 623, 979 P.2d 982] (Daily Journal), this court held that "the superior court's powers to disclose grand jury testimony are only those which the Legislature has deemed appropriate." (Id. at p. 1128.) We explained: "By enacting the statutes governing the `exceptional cases' [(Sontag, supra, 64 Cal. at p. 527)] in which a court may order disclosure of grand jury materials, the Legislature has, in effect, occupied the field; absent express legislative authorization, a court may not require disclosure." (Id. at pp. 1124-1125.) And today this court, echoing its holding in Daily Journal, concludes that "the superior court as well as the grand jury itself has no general inherent power to disclose evidentiary materials . . ." that have been presented before the grand jury. (Maj. opn., ante, at p. 228.) In the wake of these two decisions, is the "absolute necessity" exception discussed earlier still a viable concept? I think it is.
It is true that the governing statutory scheme permits disclosure of grand jury proceedings only in certain circumstances specified by statute. (See Daily Journal, supra, 20 Cal.4th at pp. 1122-1124;McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 1178 [245 Cal.Rptr. 774, 751 P.2d 1329].) But the Legislature cannot preclude such disclosure when preclusion would deny the requesting party the right to due process guaranteed under the state and federal Constitutions. Only in that circumstance does a trial court retain the power to order disclosure of grand jury proceedings.1 *Page 236
Here, petitioner does not rely on the absolute necessity exception, nor does he contend that to deny him access to the grand jury materials at issue would violate his right to due process under the state and federal Constitutions. Rather, he asks this court to affirm the holding by the Court of Appeal in this case that the trial court possessed, and should have exercised, the broad power to disclose such materials in the interests of justice. But, as the majority opinion points out, "[t]he Legislature has authorized limited disclosure of grand jury materials to private parties, and the Court of Appeal's holding creates a broad exception that would swallow the statutory rules." (Maj. opn., ante, at pp. 221-222.)