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 *1296and 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 implicitly argue that the invalidation of section 930 would leave them with a privilege or would otherwise immunize them from liability. This argument is unsound. The reports of a grand jury, performing its watchdog function over local government, have never been subject to a privilege in this state, nor have grand jurors issuing such a report been immunized from claims of defamation.
Defendants argue that immunity for such a report may be found in Irwin v. Murphy (1933) 129 Cal.App. 713 [19 P.2d 292]. However, that case did not involve the “watchdog” power of the grand jury; rather, there the report was issued as an incident of the grand jury’s power to indict. “[A]n important distinction must be made between a grand jury’s authority to indict and its authority to exercise a ‘watchdog’ function in matters of local government. The latter activity is a unique creature of the California Legislature, which has a long and well respected heritage. [Citation.] Since the grand jury’s power to investigate and report on matters pertaining to local government is a creature of statute, the Legislature is at liberty to impose reasonable limitations upon the exercise of this watchdog function. Section 930 imposes such a limitation.” (Gillett-Harris-Duranceau & Associates, Inc. v. Kemple (1978) 83 Cal.App.3d 214, 221 [147 Cal.Rptr. 616].)
Thus, defendants ask us to do more than simply invalidate section 930. In essence, they ask us to create a privilege or an immunity where none has ever existed in this state. In my view, there is no convenient doctrine of privilege or immunity that will support defendants’ request. The logical doctrinal candidate would be judicial immunity, upon the theory that the grand jury is a part of the judicial system and is therefore entitled to traditional judicial immunity. (See Turpen v. Booth (1880) 56 Cal. 65, 69.) However, “[T]he grand jury’s function of investigating and reporting on local government is not inherently a part of the judicial system.” (GillettHarris-Duranceau & Associates, Inc. v. Kemple, supra, 83 Cal.App.3d at p. 222.)
Thus, defendants ask us to create a new privilege or immunity out of whole cloth. In my view, this task is not an appropriate judicial function but is rather reserved to the Legislature, which, by enactment of section 930, has expressly rejected the relief defendants seek.
Even if this court were properly empowered to create a privilege or immunity for the grand jurors’ report, I would not do so. One who is *1297defamed by a grand jury report has no viable remedy other than a lawsuit: “[Tjhere is no forum in which an individual who has been unfavorably mentioned by the grand jury may present his version of the facts." (Gillett-Harris-Duranceau & Associates, Inc. v. Kemple, supra, 83 Cal.App.3d at p. 222.)
At the outset, I posited two ways to remedy the unfairness claimed by defendants: (1) permit disclosure of grand jury evidence, or (2) immunize the grand jurors. Defendants have made no claim as to the first remedy, which, in my view, would require a fact-specific request in the trial court. Consequently, that issue is not before us. However, I note that section 924.1 prohibits disclosure of grand jury evidence “except when required by a court.” I also note that constitutional due process may require the production of evidence ordinarily protected from disclosure by statute. (See, e.g., Pennsylvania v. Ritchie (1987) 480 U.S. 39 [94 L.Ed.2d 40, 107 S.Ct. 989]) Whether these concepts may be applied to authorize the defendants to reveal evidence adduced before the grand jury must await the day when such a claim has been properly tendered.
A petition for a rehearing was denied November 29, 1995, and respondents’ petitions for review by the Supreme Court were denied February 22, 1996. Mosk, J., and Kennard, J., were of the opinion that the petitions should be granted.
Further nondescript statutory references are to the Penal Code.