(dissenting) — I dissent for two reasons: (1) It is beyond my comprehension how an illegally constituted grand jury, without jurisdiction over these petitioners, can be the vehicle by which evidence against them can be gathered and released and (2) even if the void grand jury can be so used, there was no affirmative showing that the release of the evidence was in furtherance of justice or for good cause as required by the statute.
The trial court dismissed the grand jury indictments against petitioners on the grounds that (1) the jury was illegally constituted and its acts therefore void; (2) the grand jury was without jurisdiction over petitioners; (3) the petitioners had a statutory transactional immunity and (4) the indictments were unconstitutionally vague. No appeal was taken so it is the law of the case that this grand jury was illegally constituted, its acts were void and it had no jurisdiction over these petitioners.
The majority deals with the jurisdiction of the superior court over its own records, but overlooks the more fundamental issue that the evidence sought to be released had its source in an illegally constituted grand jury which had no jurisdiction over these petitioners.
Thus the essential inquiry is what was the authority and power of such a body? It seems to me that there is and can be only one answer: the body is a nullity, and its acts are void. All of its proceedings and the evidence stemming therefrom must be quashed.
If a court is without jurisdiction, any order it may make, *215except an order of dismissal, is a nullity. In re Estate of Elvigen, 191 Wash. 614, 622, 71 P.2d 672 (1937). A nullity is “an act or proceeding . . . which the opposite party may treat as though it had not taken place, or which has absolutely no legal force or effect.” Black’s Law Dictionary (4th ed.).
Certainly by analogy the same principle is applicable to the proceedings of a grand jury which was not only without jurisdiction but also illegally constituted. Such a body cannot issue indictments, reports or evidence in consonance with a legal system purportedly designed to secure justice for the accused.
Other jurisdictions have not hesitated to expunge improper matters from grand jury reports. State v. Interim Report of Grand Jury, 93 So. 2d 99 (Fla. 1957); Clay v. Wickins, 7 Misc. 2d 84, 166 N.Y.S.2d 534 (Sup. Ct. 1957). If such is the rule for legally existing grand juries, for an illegal jury it should be even more so.
While our statute authorizes the issuance of grand jury evidence and reports under certain circumstances, RCW 10.27.090 and .160, we should be mindful of the gravity of such action and its potential injustice. Justice Hunter said it well in his dissent in DeLaney v. Superior Court, 69 Wn.2d 519, 529, 418 P.2d 747 (1966):
They [the legislature] could have been concerned about the great injustice that could result to an individual examined in secret under sanction of a court, without counsel, without the opportunity to introduce evidence in his own behalf, denied the right of confrontation of witnesses and cross-examination, with the resulting publication of a disparaging report, and left with no forum in which to clear his name.
Justice Rosellini made an equally valid point in dissenting in the same case at page 531: *216Certainly the same thing can be said about the evidence before the grand jury as well as the report of a grand jury.
*215A report of a grand jury reflecting upon a person may do irreparable harm to that person’s reputation. There is no forum in which such a person can have an opportunity to clear himself or to establish the falsity of the findings.
*216The court in People v. McCabe, 148 Misc. 330, 333, 266 N.Y.S. 363 (Sup. Ct. 1933), aptly summarized the vice of releasing a grand jury report, sometimes called a presentment, and again the same rationale applies to the evidence herein:
A presentment is a foul blow. It wins the importance of a judicial document, yet it lacks its principal attributes —the right to answer and to appeal. It accuses but furnishes. no forum for a denial. No one knows upon what evidence the findings are based. An indictment may be challenged — even defeated. The presentment 'is immune. It is like the “hit and run” motorist. Before application can be made to suppress it, it is the subject of public gossip. The damage is done. The injury it may unjustly inflict may never be healed.
Recognizing the legislative authority to authorize issuance, but bearing in mind the above principles which reflect fundamental fairness, we turn to the statute. To reach that point we must assume that a grand jury which is not legally constituted and without jurisdiction can still produce evidence subject to release by the court. Even making that assumption, I would still prohibit its publication because the statute governing its release was not complied with. RCW 10.27.090(3) and (5) authorize disclosure in furtherance of justice or upon a good showing of good cause. In an affidavit attached to the motion to release the evidence, a deputy prosecuting attorney alleged only that he believed that the evidence should be made available. No witnesses were presented to support that allegation. The court entered no findings indicating the release to be in furtherance of justice or for good cause. The order releasing the evidence, prepared by the prosecutor, does not even recite a conclusion that there was good cause or that it was in furtherance of justice. Consequently, there is absolutely nothing in the record to support a conclusion that the statutory conditions precedent to release have been met.
I cannot believe that the legislature intended the release *217of evidence absent a clear showing sufficient to meet the statutory requirements. Certainly when there is no showing, release should be denied.
I would reverse the trial court’s order authorizing release of the evidence and would order that it remain sealed forever.
Utter, J., concurs with Brachtenbach, J.