Tobin v. Broadfoot

MORRISON, Judge

(dissenting).

As I see it, there is but one, and only one, issue before us in this proceedings. It may be simply stated in the form of a question: Can a district judge hear evidence and enter an order, such as Judge Broadfoot has entered in this particular case, in secret and in the absence of the interested parties? By the majority opinion my brethren say “Yes.” I cannot agree. Section 13 of Article I of our Constitution, in part, says: “All courts shall be open ....” The term of court in which he enters the order can have no bearing on the basic issue just stated. Only incidentally are my brethren upholding the conduct of Judge Broad-foot in Duval County. Far more important to the people of this state is the precedent which they here write and which may be followed by district judges in every county in the state for years to come. Such a precedent should not be established to fit a particular case.

Article 358, C.C.P., prescribes the method to be pursued when any person is selected as a grand juror and how such grand juror may be challenged. The pertinent part of that article reads as follows:

“Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard . . . .”

*197It is obvious to me that it was the intent of the legislature to require that such challenges be made in open court. To require that they be so made would certainly be consistent with the basic tenets of our Constitution. To allow such challenges to be made in secret would afford the person whose fitness has been questioned no opportunity to vknow or deny the basis upon which he is challenged, and, still more dangerous, it would allow the district judge to continue to dismiss grand juries until one was chosen which suited his fancy.

In the case at bar the members of the grand jury had been notified of their appointment and did actually report in open court for service, as they had been directed to do by the sheriff, and filed a motion with the court requesting that he test their qualifications to serve. The court refused to hear such motion or to test their qualifications and gave no indication as to when he would do so. The least that can be said about such action is that it unquestionably leaves a stain or stigma upon the reputation of the persons involved.

As I view it, the proper disposition of the problem before us would be for this court to direct the judge to call the grand jury theretofore lawfully selected and, when they assemble, let any and all who challenge their fitness to serve state their reasons in open court; then at that time let the court pass upon their fitness.

The majority opinion cites the case of Pena v. State, 114 Texas Cr. Rep. 15, 24 S.W. 2d 396, to sustain the action of Judge Broadfoot and to sustain their decision in this case. It should be noted that in the Pena case the grand jury list had never been opened by the clerk, and therefore the grand jury selected had never been notified that they were to serve.

I do not agree with the holding in the Pena case, and I certainly feel that it is not controlling here. Judge Morrow, one of the greatest judges who ever sat upon this court, dissented in the Pena case. His logical and scholarly dissent in that case impresses me as the proper solution of that case, and a wise and judicial approach to this case. In the Pena case Judge Morrow said:

“The procedure adopted is an innovation without precedent so far as the writer is aware, and one which, if given sanction by this court in this particular case, would furnish a precedent *198which might be used to seriously impair the right of trial by jury.”

He alone seems to have detected the danger of authorizing a judge to dismiss grand and petit juries without a public hearing on the question of their fitness.

In Davis v. State, 105 Texas Cr. Rep. 359, 288 S.W. 2d 456, this court held that a district judge was clearly in error when he required the jury commissioners to show him the names of the grand jurors whom they had selected, and when he found thereon four names objectionable to him he then struck them and instructed the jury commission to draw others. In this case Judge Broadfoot has stricken all the members of the grand jury.

A grand juror is selected to perform an official and public service. Judge Morrow says a grand juror is a public official, and to me it is unthinkable that a public official should be removed from office as the result of a secret hearing. I can conceive the clamor that would arise if this court went into executive session and, without notice of our intention to do so, declared that a certain state official was not qualified to hold his office and entered an order removing him from such office without having given him his day in court. I think all would agree that such an order would be void. That is exactly what Judge Broad-foot did in this case.

The opinion of my brethren will empower a district judge, who has selected an impartial jury commission who, in turn, have selected an impartial grand jury, to summarily dismiss them if some friend or foe gets in trouble, and then select a new slate more appropriate to him personally for the occasion. The Supreme Court of this state has recently removed Judge Laughlin for discharging a grand jury. I cannot see how we may consistently uphold Judge Broadfoot when he does the same thing.

It is clear from the record before us that Judge Broadfoot, almost immediately after assuming his office, met in secret with the attorney general behind closed doors guarded by Texas Rangers, there heard certain “evidence,” and then entered his order discharging relators, who had lawfully been selected as grand jurors for the county. If he can do this, then he, and every other district judge in Texas, can completely control the members of our grand juries, and a valuable check and balance in our government has been destroyed. In my opinion, such an act smacks of the police state and is not in keeping with the policy *199of the law. I know of no stronger language with which to condemn such conduct.

I respectfully enter my dissent.