*1 RING REGARDING THE MATTER OF INVESTIGATION IN OF RE VIOLATION FACT FINDING COMMITTEE WOOD N. J. S. A. 19:34-38.1. August 8, Argued March 1974 Decided *2 Prosecutor, D. Passaic Gourley, County J. Joseph Mr. Schlyen, Gary se for the appellant pro (Mr. cause argued Prosecutor, of County counsel). Assistant Passaic respon- F. for the Mr. Martin the cause Murphy argued Johnson, & Johnson citizens of Ringwood (Messrs. dents Murphy, attorneys). Luciani, General, J. argued Mr. Deputy Attorney Alfred (Mr. Amicus Curiae Jersey of New
the cause for Mr. David General, attorney; William Hyland, Attorney F. Baime, on General, of counsel and Deputy Attorney
S.
brief). was delivered the Court opinion Committee cir- Ringwood Finding J. Pact
Jacobs, the November before shortly culated pamphlet Ringwood mayoral election. The did pamphlet terms refer election or “any to any candidate or to the adop tion or rejection of any J. public question” S. A. (N. 19: 34-38.1), but it did criticize proposed solid waste disposal which program had the of a support candidate. The pam phlet did not bear the “name and address of the person persons the same causing to be printed” (N. 19: 34-38.1), although were persons publicly identified before the election. On December 1970, Mr. Martin E. Murphy, attorney law, notified the Passaic County Prosecutor by letter that he represented citizens Ringwood who were complaining that the pamphlet violated the pro of N. visions A. 19 :34-38.1. He also notified the pros ecutor that he was calling investigation complaint pursuant S. A. 19 :34-62 and that he had been em *3 to assist ployed the investigation accordance with A. 1 9:34-63. J. S. The prosecutor duly conducted an which investigation alia, inter included, representative interviews his with the members of the Ringwood Fact Finding Committee the presence of Mr. Murphy and his associates. On the basis of the completed investigation, the prosecutor found in effect violation, that the if any, was unintentional and that there no was “reasonable ground for instituting prosecution” J. S. A. (N. 19:34-62). In due course he on served notice Mr.. that he Murphy would move before the Assignment of Passaic “to Judge County dismiss the filed complaint herein a violation New alleging Statutes, of the Jersey to J.N. A. wit 19:34-38.1.” The notice also set-forth that it was sent to N. J. being pursuant 19:34-63 and that objections could be filed in with the for its writing Court consideration.
After taking testimony and hearing argument, the As denied Judge the motion to signment dismiss and directed “that the investigation the Find regarding Ringwood Fact Committee and their violation of N. J. ing S. A. 19 :34- 38.1 be to presented the Passaic Grand within County Jury He . . .” further directed that time. period reasonable of this matter at the present presentation Mr. “be Murphy . On the Jury. appeal, . .” County to the Passaic Grand the Law Division’s denial Division affirmed the Appellate be complaint to motion dismiss its direction however, provi submitted it struck grand jury; to to the grand sion that Mr. attend at the Murphy presentation In re Ring for such attendance. jury, no finding necessity Committee, Super. wood Fact 124 N. Finding for cer Div. Mr. did not (App. 1973). Murphy petition for his tification with to respect striking provision did peti the grand jury. attendance before with motion tion certification the denial respect dismiss matter be submitted and the direction that the granted. and his grand jury petition advanced following single In his he (1974). petition order Assignment Judge denying contention: “The law motion the election complaint the Prosecutor’s to dismiss the Prosecutor the matter to the present directing and violative of authority Grand was without Jury we do not subscribe this con While separation powers,” showing it, find that before particular we do on tention have Law Division should not directed that the matter have but should presented grand jury granted motion to dismiss. prosecutor’s Revision our election contained laws special duties when notified relating
provisions 1930, c. 909); these (L. p. of election law violations *4 62 forth 63 have been carried into sections and provisions 19 of the New 34, Jersey Title current Statutes Chapter ( 62 19:34-62, 63). J. Section that provides is notified of violation he shall prosecutor, if the inquire “if and there is reasonable for insti into the facts' ground he shall submit the matter to the prosecution” tuting grand any may 63 citizen jury. provides employ Section by attorney recognized prosecutor who shall and that counsel, no shall be proceeding court as associate 516
dismissed without counsel and “until notice to associate dismissal, reasons of for such pleas of the with coun- together objections thereto of such associate sel, shall have been filed in counsel writing, argued by considered the court. . . .”
No au one that section 63 questions gives explicit motion thority the court to or grant deny Di dismiss the law and the complaint; Appellate election vision found that from such “[b]y necessary implication to, intended grant authority, obviously Legislature fact, in and did vest the court with the correlative matter presentation jury.” require grand Committee, In re Fact 124 N. J. Ringwood Finding in Super, at 312. that such was the agree legislative We tent, and that there no intent whatever to place court in very unseemly highly injudicial position judgment called its as to whether the being upon express dictate submission to the but grand jury being .circumstances such to direct submission. powerless 510-511, Laws, in v. 51 N. J. 494, As recognized 89 21 L. Ed. denied, 971, 408, rt. 393 U. S. S. Ct. ce 2d has broad discretion in select (1968), 384 broad, While his discretion is prosecution. matters ing Winne, absolute” v. 12 N. J. (State unregulated it “is circumstances, it 152, (1953)) may, appropriate 172 LeVien, or abuse. v. for arbitrariness See State be reviewed 327 State v. 58 323, Conyers, 44 N. (1965); cf. 276 Ashby, 273, State v. 123, 146-147 (1971); review is State, readily In our such available (1964).* contrary view, suggested in *The cases suck as United States Cox, (5 Cir.), F. 2d cert. denied sub nom. Cox Hau g, (1965), ber U. 85 S. Ct. 14 L. Ed. 2d kas devastatingly Culp Discretionary been attacked Kenneth Davis Preliminary Justice, Inquiry (1969) seq. commenting A et 210) say: (at Davis on the Cox case Professor had this to holding main reason seems actuate One federal courts may prosecutors protect that discretion not be reviewed to
517 n within the extraordinarily comprehensive writ prerogative New jurisdiction Jersey’s system which judicial inherited from the Bench which 1947 King’s Constitu Board, tion See Monks v. N. J. State Parole preserves.
N. J. 248-249 In re Ex Senior (1971); Appeals aminers, 369-370 Mayflower Se (1972); cf. Securities, curities v. Bureau 93 (1973). hand, matter we consider that prose
cutor did act but within arbitrarily conscientiously acted violation, if discretionary any, was tech powers. nical and unintentional would not and the interest public have been served If it not for section by it. were pursuing matter undoubtedly would have closed the on there administratively the basis of determination that was no “reasonable for ground instituting prosecution” within section section Because of contemplation 63 he was Law Division obliged submit matter to the for review but Law have inter- its Division should not against opin abuse has been stated in a the Fifth Circuit department . ion : “. . it is an as officer executive Attorney [the
he U. exercises a discretion as whether or not prosecution particular follows, shall be a there incident of the It an case. separation powers, constitutional the courts discretionary pow are not interfere with the exercise of the free attorneys ers of the their United States in control over prosecutions.” clearly criminal This reason so unsound as to separation powers prevents be almost absurd. If review of dis officers, Supreme cretion of executive then more than a hundred spread three-quarters century Court decisions to over a will have contrary found If Constitution! courts could not in officers, terfere with abuse of discretion mental institutions would be executive our funda altogether they different from what just quoted If are. true, the statement Fifth Circuit were powerless the courts would be when interfere executive officers, acting illegally, person! are about to execute innocent Davis, (1972) also Administrative Law Text § 28.06 at 523: overwhelming The conclusion seems that courts should continue gradual judicial opening their view stronger movement toward doors to re- prosecutors’ discretion. The reasons for such review are than review other discretion that is administrative traditionally now reviewable. *6 a of arbitrari- determination, showing absent with the
fered Law and the no such showing ness or abuse. There was motion to dismiss. have the Division should therefore granted if the that to- any suggestion we However, reject hasten to wilfully as to indicate of were such circumstances tality court the calling prosecution, violation significant clearly barred, separation the doctrine by would have been otherwise, that directing powers regular in course. jury submit matter to the grand been The of the office have history prosecutor’s and nature be referred to extensively only described elsewhere and need Forbes, 24 N. J. briefly. (1957); Morss L. & 1947). A. It Longo, (E. State it is not mentioned admittedly is constitutional office but (Art. V). 1947 Constitution the Executive Article it under “Civil VII) In the Constitution is listed (Art. with attorney-gen Officers” along paragraph same of chan court, clerk of clerk of the court eral, supreme In cery, keeper prison. state and state secretary under “Public (Art. VII) the 1947 Constitution it appears with Employees,” separate paragraphs Officers along auditor, clerks, surrogates sheriffs. county the state of the define the duties Constitution does not necessarily to has from time time office and the Legislature v. Longo, subject. with the dealing enactments passed Forbes, 24 N. supra, Morss v. N. J. L. 592: has constitutionality of these enactments at 366-370. assuredly, and, provisions most limiting not been questioned such as those authority, with to the prosecutor’s respect within 19:34-62, are well in N. J. S. contained Article Legislature vested in the III powers law-making of the 1947 Constitution. Morss, committee investigating sought legislative with respect county prosecutor from a
obtain information refused to his office. He activities wiretapping it to when he deemed contending respond inquiries, under the right, had the consti- be in the intreest he public tutional doctrine and as separation part executive, to decline to furnish information sought branch legislative of government. His contention was rejected by this Court in an opinion by Wachenfeld, Justice himself a former prosecutor, which noted that there although is still some confusion with respect the exact status of the prosecutor, there “little doubt but executive chain of command is not sufficiently prominent enable to claim any which high prerogative might be enjoyed by the state respect executive with to withholding information from the 24 N. Legislature.” J. at 372-373.
Morss Bennett, also quoted Masset Bldg. Co. v. 4 N. J. 53 (1950), where Chief Justice Vanderbilt pointed out that the doctrine of of nowhere separation powers “has been construed as creating three water mutually exclusive tight compartments” and that are blendings so permitted long as is no there impairment of “the integrity essential of one of the of great branches 24 N. J. government.” at Davis, 372. See 1 Administrative Law Treatise 1.09 at § 68 (1958) : “The danger is not power. blended The danger Co., is unchecked power.” See David v. also Vesta 45 N.
301, 326 “The (1965) : doctrine of of separation powers must therefore be viewed as an end in itself, but as general principle intended to be so as to maintain applied balance between the three branches pre government, their respective serve independence and integrity, pre and vent the concentration of unchecked in the hands one branch.” any in Morss
Justice Wachenfeld found the wiretapping no legislative constituted investigation impairment N. J. (24 essential executive at integrity 372) such surely legislative impairment there no in the enact A. 19 :34-62, J. S. ,By ment providing explicit of judicial guard measure supervision against “attempts a ‘whitewash’ (Artaserse, at in Ruvoldt charges” N. J. Tumulty, v. 555 Super. (Law aff’d, Div.), N. J. Div. Super. (App. 1969)), the Legislature im in anywise without public interest advanced clearly branch government; of the executive integrity pairing and inde strength anywise in impair nor did it been historically which has office pendence of prosecutor’s example, Thus, for controls. subjected judicial supervisory dismissal 3 nolle prosequi : 25-l precludes R. motion without prior of an indictment N. J. at Ashby, supra, judicial See State approval. at :1-3; 276; R. Conyers, 3 cf. Justice, A Prelim Davis, Discretionary 146-147. also Davis, Law 213; Administrative at inary Inquiry, supra indeed 28.16 989-990. It would Treatise Supp.) (1970 § with if misconceptions processes disserve our democratic of the doctrine scope to the proper meaning respect restric retrogressive were result separation are so controls which judicial tions on this and comparable governmental improprieties towards well-designed curbing and excesses. Division, insofar Appellate entered judgment the Law Division’s denial of it sustained sub- and its direction that the matter be to dismiss
motion hereby: grand jury, mitted Reversed.
Pashmar, I dissenting part). *8 (concurring J. result. only but the majority opinion concur the with one as to question This the Court appeal presents A. :34-62 19 :34-63: the of N. S. and interpretation a to evi prosecutor court can compel present whether the as of laws. to violations election grand jury dence to the this issue should he factual occurrences rise to giving The as an aid in understanding my position. summarized briefly of prior Ringwood mayoral Three to the days Borough 3, 1970, of the Fact Ringwood Finding election November of proposed circulated critical the pamphlet Committee and the intention to con- Authority Solid Waste Ringwood The com- disposal facility. solid waste operate struct and of Borough of four citizens the was composed mittee ad- note the names and did pamphlet Ringwood. it was stated members, only hut of committee dresses Finding Pact Committee. by Ringwood sponsored or of the person absence of address[es] “name[s] vi- apparent is an the same to be causing printed” persons A. S. 19 :34-38.1.1 olation counsel residents retained borough
Fourteen of the County notified Passaic 9, 1970, of December letter by A. 19: to of the violations, Prosecutor pursuant had also informed that counsel 34-63.2 The prosecutor assist in by investigation been retained complainants in N. J. A. 19 :34-63.3 A detective county for provided 1N. J. S. A. 19:34-38.1 person print, publish, exhibit, pay copy, No shall distribute or for printing, copying, publishing, exhibiting or or cause distribution any any any circular, means, hand- to be distributed in bill, card, pamphlet, statement, manner or printed or mat- advertisement other any having any or ter reference election or to the candidate rejection adoption question any any public general, primary or general, special circular, handbill, card, or for the pamphlet, election unless such statement, printed or advertisement other matter shall upon person face a bear its statement of the name address of the persons printed, causing copied published or of same to be or or the name person persons by address of the or whom the cost of printing, copying, publishing or thereof has been or is be de- frayed person persons and of the name and address of the or printed, copied published. whom the same 2N. J. S. 19:34-62 A. any prosecutor pleas county If the of the shall be notified provisions title, any forthwith of this he shall violation inquire facts, ground diligently and if there is into the reasonable present instituting prosecution, pleas such shall charge, procure, grand can with all which the jury the evidence he county. justify any Nothing herein contained shall such exercising in counties con- of the first class upon superintendent of elections in ferred such counties. 3N. J. S. Any 19:34-63 may employ attorney prosecutor of the citizen to assist the perform title, attorney pleas shall duties under this and such
was assigned matter. investigate the His report prosecutor indicated that the committee members did not affiliation; have a party that the was for pamphlet by paid equal contributions from four members the who were iden- one tified day prior election, the and that pamphlet the was devoid of any political candidate’s name and was di- rected at the informing public advisabilty the of es- the tablishing Eingwood Solid Waste Fo Authority. intent was found to violate the law. Based on the investigation report, and the prosecutor a notice of
filed motion to the complaint, dismiss as pro A. vided for in A 19:34-63. hearing conducted the statute, before N. J. 19: assignment. judge. 34-38.1, reference to or requires candidate election. While no made, reference to any candidate was con-' respondents tended that the with an clearly dealt issue the pamphlet of which the campaign mayor challenger incumbent were on sides. This was not opposing by pros contested who, however, ecutor maintained that there was no “reason able for A. 19: ground instituting prosecution.” J. S. 34-63. trial court found disposal of solid waste (1)
was a primary issue the Eingwood mayoral campaign; (3) pamphlet referred to an issue in the campaign; intent (3) specific immaterial, violate the statute is 19 S. A. :34-63 19:34-63 (4) duty impose recognized prosecutor pleas and the court as associate proceedings. counsel in the prosecution, proceeding No action or shall be without dismissed to, against objection of, notice such associate until counsel dismissal, pleas the reasons such to- gether objections counsel, with the thereto of such associate shall writing, argued by have been filed in counsel considered court, filing with such limitation as to the time such reasons and objections may impose. as the court complaint “complaint” merely formal 4No was filed. The here is 9, 1970, informing letter December of the vio lation. *10 jury. matter to the grand the to the upon prosecutor present the and directed The denied the motion to dismiss judge as -well grand jury, to matter to the prosecutor the present counsel he present as that respondents’ private ordering counsel as associate grand jury capacity before the in his The claimed prosecutor to J. A. 19 pursuant N. :34-63. its and refused to consent to the order his usurped power entry. or Division, the trial court’s
On the Appellate to appeal to der insofar it the upheld compelled was as but modified to the to present jury, the matter the grand private allowed counsel extent that it the presence Finding Com In re Fact Ringwood grand jury proceedings. mittee, Div. 1973). J. Super. (App. Passaic for granted Prosecutor’s certification County petition 1973. 64 N. 11, (1974). on December I 19 :34-63 The Division noted that Appellate an the to order lacked authorization for court express the to his to investigation submit results of the an the election jury. The statute forbids dismissal grand and until complainant without notice to complaint court for dismissal to the prosecutor submits reasons mo The objections. with counsel’s associate writing, along considered is to counsel and “argued by tion dismissal be While express authority court.” this represents as find, deny motion, my colleagues I do do grant or constituted, by neces Division, Appellate this within the court sary power implication, vesting jury. require presentation grand vested in the Governor. power
The executive is V, Among Const. Art. 1. (1947), ¶ § laws “take care that of the Governor duties he 1, V, Art. N. J. Const. faithfully (1947), executed.” § also for the provides appointment by Article V 11. ¶ Senate, Governor, with the advice consent who is serve attorney the Governor’s term general, during V, of office. Art. county while prosecutor, ap- § ¶ to serve a pointed by Governor, is term as five-year pro- VII, vided Art. with officers dealing public § ¶ employees. have Legislature authority does not to grant nor
do the courts have inherent to claim the any authority prosecutor, the executive branch compel agent which, in our government, exercise function Con- *11 stitution, is to the executive. assigned exclusively
The election in their laws status occupy unique violation directly to the heart the democratic penetrates of an process. affront procedures Violation election serves very legitimacy An examination of government. what legislative history respect little is available with of N. J. 19 :34-62 :34-63 enactment S. A. and 19 revealed to aid the Court in intent. nothing ascertaining legislative election importance preserving sanctity pro cedures, however, was factor undoubtedly motivating one N. J. the rather unusual directive embodied in 19: affected; 34-63. The is not prosecutor’s discretion to act yet, violations, unlike other criminal cannot prosecutor dismiss alleged violations the election laws before pre court, the results of his senting investigation5 to along with his reasons for not an indictment. This seeking depar ture from the in other practice necessary is so as instances to preclude any successfully one branch from preventing disclosure violations. Ab attending alleged circumstances judicial branch, sent this disclosure to enforcement of laws election would be left to those election or whose ap have pointment may been facilitated contravention of laws which now very are to enforce. they entrusted prosecutor reqiiired investigate 5It has been held that is all complaints present any of election law violations and evidence to the grand jury. Borrone, Super. 188, (Law Theurer v. 81 N. J. Div. 1963). extensive most discussion to date the chal involving statutes can be found Ruvoldt v. lenged Tumulty, 107 N. J. Super. (Law Div.), aff’d, Super. Div. which involved (App. 1969), action to enjoin county election alleged irregu investigating larities. The critical issue one irrelevant to the discus sion What today.6 is is important, however, the intent the statute. As noted by the court therein at 555 of 107 “* ** N. J. Super.: intent of the . . statute . [T]he [is] guarantee vigorous prosecution and prevent any attempts aat ‘whitewash’ of the In order to charges.” such prevent a “whitewash,” the matter required bring to the court’s attention.
Ruvoldt Tumulty, supra,, referred to supersession the prosecutor pursuant to N. J. A.S. deleted 52:17A-4(f), amendment L. c. J. A. 19. See N. 52:17B- § 106. While expressing doubts as to a right to de litigant’s mand that the assignment exercise to affect judge such supersession, the court noted the function of litigation the matter bringing to the assignment attention. judge’s * * * hand, appropriate way by On the other it seems that one *12 assignment judge may advisability possible which the alerted requesting Attorney supersede county prose- of the General the * * * through litigation. Super. cutor is [107 the medium of N. J. at 5531. enacted
As the Legislature construed today by this N. J. A. 19 Court, S. :34-62 and 19 :34-63 provide fox mechanism enforcement to ensure of the this State’s integrity election laws. By requiring public disclosure of for reasons nonprosecution, has Legislature mechanism provided Tumulty, jurisdiction Super 6Ruvoldt v. involved the class, provided of in intendent Elections counties of first as for Borough Ringwood J. in N. S. A. 19:34-62. The of is Passaic — Comity county of the second class.
526 for in N. J. executive intervention as judicial provided for or 52 :17B-107.7 52:17B-106 and S. primacy always recognized
This State has branch. the executive representative prose as “[T]he of the executive branch representative cutor is the foremost law.” of the criminal the enforcement government Winne, 152, 12 J. 171 The (1953). prosecutor State v. N. jurisdiction over attorney have exclusive general Historically, A. 2A:158-4. crimes. J. S. prosecution has broad discretionary pow been vested with prosecutor Laws, cert. 393 510-511, v. N. J. denied 494, ers. State 51 It is 408, L. Ed. 971, (1968). U. S. Ct. 2d institute criminal whether to the decision of Vien, 326-327 323, 44 N. v. Le proceedings. ac of the alternative any He under may prosecute (1965). States, factual situation. State available within the tions The need 44 N. J. 291-292 (1965). facts. sustainable under charge the maximum pursue Buehrer, In re (1967). A. 19 :34-62 interpretation
Respondent’s on the judicial pros encroachment 19 :34-63 provides in issue the separation putting squarely ecutor’s discretion enunciated specifically doctrine. The doctrine powers III, 1: J.N. Const. Art. (1947), ¶ among government dis- shall be divided three judicial. person executive, legislative, branches, or' No tinct any constituting persons belonging shall one branch exercise except belonging others, powers properly ex- to either of the provided pressly in this Constitution. county prosecutor of the office of relationship examined this extensively branch was rather executive Forbes, N. J. 341 The Court (1957). Morss Court in justice Act of A discussion of Justice 7See Criminal infra. supersede prosecu Supreme had the the former Court *13 attorney general request to assume his functions. State tor 1947). Longo, (E. A. N. J. L. & therein ordered plaintiff prosecutor to disclose to defendant legislative committee the identities who persons performed wiretapping activities the prosecutor. After rejecting plaintiff’s argument as to the unconstitutionality of N. J. 52:13-3, dealing with witnesses before in- legislative committees, vestigating the Court addressed itself to the prosecutor’s allegation that to him to in- compel disclose the formation requested would violate the separation doctrine. While that, recognizing practically, the Governor exercised real over authority if prosecutors only through power supersede them in cases, certain Court con- cluded that * * * power supercession bring the existence of this does not prosecutors directly they under so the influence of Governor
automatically qualify full-fledged members of the state executive [24 371]. branch.
That the could claim any privilege to with hold information based on any immediate connection with Governor or attorney was conceded general by the attor ney general. herein, curiae, The attorney general as amicus vigorously defends prosecutor’s right to claim the pre rogative bringing Also, matters before grand jury. Forbes, unlike Morss v. supra, the prosecutor is com being — exercise a pelled to executive purely function to enforce —law rather than one to which Legislature has correlative Zicarelli v. right. Jersey New Commission Investigation, 55 N. J. 249, 263 (1970), U. aff’d 472, 92 S. Ct. L. Ed. 2d 234 (1972) (all three branches have the Eggers Kenny, investigate); 15 N. J. 114 — 115 The "essential (1954). integrity one of the branches great government” had not been im Forbes, Morss v. paired. at in Morss Court v. Forbes some con- acknowledged fusion with regard status It con- prosecutors. cluded, however, the prosecutor a local basically *14 a separation
official who could not claim to lay powers argument. equality primarily There no The is local official. is Legislature. dignity freedom He cannot claim with the stature properly legislative investigation ground that conducted on the by forefathers such will subvert the division of our envisioned upon growth despotism. The doctrine as an check effective applicability governmental
separation competing has little where the entirely government. [24 are on levels N. J. at different functions ; emphasis supplied]. 373 seeking usurp not seen committee The legislative branch, but was to another belonged which properly power of investigation own power Legislature’s exercising J. at 373. N. legislation.” “wise and effective pursuit in con Jacobs stated Justice Eg gers Kenny, supra. prose afforded to right no “independent currence of powers. of separation doctrine the constitutional cutor nor the Neither the Governor J. 377-378. . 24 N. at . .” had department, of a as head principal attorney general, the privilege.8 to exercise sought Forbes, supra, Morss v. relevancy evaluating only par us, we must consider before question rather case, also the but of that factual circumstances
ticular attorney between the relationship in the substantial change recent about brought county prosecutors general Act of Justice The Criminal legislation. deal statutes many previous et consolidated seq.,
52:17B-97 authority general’s attorney with the ing and coordina cooperation more to encourage in an attempt or in combating authorities law enforcement among tion and 52:17B-112. J. A. N. crime. ganized 52:17B-98 which Criminal Justice a Division of established enactment however, put controversy Weintraub, felt 8Then Justice govern question directly situs of a as to “the in issue the discharge respec in the of their coordinate branches as between ment [24 385]. . functions . . .” tive serves as an exclusive division for the conduct of crim inal business the attorney within the De general S. A. 52:17B- Law partment of and Public Safety. attorney general is assume the duties of the prose cutor county where is without one or where such assistance *15 A. 52 is and S. by the :17B-104 requested prosecutor. duty
52:17B-105. More is important attorney the general’s to with and prosecutors. consult advise Attorney General shall and consult with advise the several prosecutors county relating in matters to duties of the their officeand general supervision county prosecutors shall maintain a over said obtaining with a view effective and uniform enforcement the throughout may periodic criminal laws State. the He conduct evalua- county prosecutor’s including
tions of each office audits of funds re- county prosecutor. ceived and in disbursed the office of each [N. J. S. A. 52:17B-103]. of the Supersedure prosecutor county by attorney gen for in A. eral is 52:17B-106. provided The Gover nor can such while require supersession, grand jury, board freeholders, of chosen or assignment judge may request to conduct all attorney general or any prosecutor’s functions. The free to attorney general is supersede whenever he feels the of the will prosecutor interests his furthered so. doing opinion Attorney in a. Whenever of the General the interests Attorney may doing, of the State will be furthered so General supersede county (1) prosecutor any investigation, in criminal ac- proceeding, participate (2) any investigation, tion or in criminal proceeding, any (3) investigation, action or or initiate criminal action proceeding. instances, Attorney may appear In such General any purpose conducting in for the State court or tribunal for the investigations, proceedings such criminal actions or as shall be neces- promote sary safeguard public and interests the State secure the enforcement of the laws of the State. Attorney may county any in b. The General his discretion act for representing any the interests of the State in and all applications appeals post-conviction for [N. remedies. J. S. A. 52:17B-107]. an annual re Each to submit county prosecutor required may to file port attorney general, requested be. A. as matter office. N. J. S. any reports pertaining amended N. addition, the 52:17B-111(b). Legislature to vest of the prosecution 2A:158-4 responsibility well as attorney general criminal business in the State’s the county prosecutor. above is to county of the enactments bring effect closely more within the control and supervision attorney
the executive branch through general, authority originally whom were Forbes, 24 N. J. 364-368. The taken. Morss Forbes different Morss v. context raised question as well as the altered relationship county prosecutors the executive branch much of dis- renders inapplicable cussion therein. discretion the criminal enforcing
The prosecutor’s Cases, 74 U. S. recognized. laws has been long Confiscation L. Ed. Newman United 454, 19 Wall.) (1869); (7 States, *16 F. 2d 263, 479, D. 382 481 (1967); 127 C. App. U. S. Cox, 167, F. 171 cert. United States v. 342 2d (5 Cir.), Ct. 935, Cox v. 381 U. S. 85 S. Hauberg, sub nom. denied 700 A.B.A. on Stan 1767, Project 14 L. Ed. 2d See (1965). and The Prosecution Function Justice, dards Criminal Function, Commentary (Approved at 87 Defense Draft 1971). an charging county prosecutor indictment upholding occasion comment on nonfeasance,
with this Court had Winne, in State v. The nature supra. duties prosecutor’s from allowed quoted of the discretion Wallach, Mo. W. 312, v. 182 S. State ex rel. McKittrick Ct. Court (Sup. 1944). Continuing, 2d 318-319 exercised, is a fact, in “inaction” if, noted discretion is course of “action.” perfectly proper * * * good of in The distinction between the exercise discretion judged by to be conduct in faith failure to act willful county prosecutor light A of all the facts circumstances. inevitably within orbit of his has various' discretion choices applies even This action and discretion as much to the inaction. seeking grand prosecuting jury indictments as it does to recommending prosequi found, a nolle after the indictment has been good but at faith must all times in and exercise all act reasonable he diligence phase Winne, every [State lawful of his work. supplied]. 174; emphasis 12 N. J. at Discretion in enforcement differs from inaction and neglect. “Formulation of An Eerguson, Enforcement Policy: Anatomy The Prosecutor’s Prior Discretion to Accusa- tion,” Rutgers L. 507, 512, Rev. 514-516, No pros- ecutor be subject will action if he legal exercises in good faith the discretion him. granted State v. Winne this makes clear in its any reference absence of faith ex- good ercise case judgment before the Court therein.
Exercise discretion implies some conscious judgment and decision. The discretion not to is a prosecute valid mode of limited frequent action, it only the extreme when rises to abuse of public office sufficient mis constitute conduct. The prosecutor is not every mandated proceed instance.9 will possible There be instances where may guilt be clear, other but reveal, circumstances in the prosecutor’s judgment, will prosecution not serve the ends of jus tice. See generally, Abrams, “Internal Policy: Guiding Exercise Prosecutorial Discretion,” U. C. L. L. Rev. 1, 43-49 Cole, “The (1971); Prosecute,” Decision to 4 Law and Soc. Rev. 331 La Fave, “The (1969-1970); Prosecutor’s Discretion in States,” United Am. L.
Comp. 533-535 “Prosecutorial Discretion,” (1970); Quar. 1 Crim. Just. 154 (1973).
More factors enter the decision than whether of an are present. technical offense requirements Hampton, 61 (1972). Circumstances *17 act, expectations Legislature and considerations of fair are all relevant to the prosecutor’s decision. play A.
9See N. J. S. 2A :158-5.
532 States, 285, 44 292 Other considera- State (1965). v. na- offender, of the history tions include the character victim, well nature offense, ture of harm to the as as the Comment, of the locale. See “Prosecutorial Discretion L. 42 Of So. The Initiation Criminal Complaints,” Calif. Rev. 521-536 “The Prosecu- 519, Kaplan, (1968-1969); — 174 A 60 Nw. L. Rev. Comment,” torial Discretion Charge Prosecution: The Decision to Miller, (1965-1966); Crime, awith Chs. 8-19 Suspect (1969). generally, Discretion of District or Prosecut- Annotation, “Duty and ing Attorney Regards Offenses,” for Criminal as Prosecution R. 10. 155 L. to com bring compel
The court cannot
and, ul
branch
with
executive
remedy
The
lies
plaint.
Stone, 7 F.
397
Milliken v.
2d
with the
timately,
people.
denied,
F.
Cir.),
16
2d 981
cert.
1925), aff'd,
(2
N.Y.
(S.D.
Pu
764,
533 chief law officer of the State and assumes of a Prose cuting Assembly Attorney in cases where the Governor General (R. may upon 109.02) judiciary so direct. §C. not encroach usurp parte 123, Young, these Ex functions. 209 U. S. 28 S. Ct. 441, 714; Jumel, L. 52 ex Ed. State of Louisiana Elliott v. 107 rel. 711, 128, U. S. 2 S. Ct. 27 L. N. E. 2d [265 346]. Ed. 448. will Courts not compel the issue warrant for arrest. Hassan v. Court Magistrate’s New City York, 20 Misc. 191 N. Y. 509, 238, 2d S. 2d 241 Ct. (Sup. dismissed, 8 N. Y. appeal 750, 2d 201 N. Y. 1959), S. 2d 168 E. 102 765, denied, N. 2d cert. 364 (Ct. App.), U. S. 81 Ct. 5 844, 86, L. Ed. 68 2d The court does (1960). have to substitute its for that of judgment Florio, 46, See v. 301 Y. 92 N. E. prosecutor. People other 2d 881 overruled on 15 (Ct. App. 1950), grounds, N. Y. 159, 256 Y. 204 N. E. 793, 2d S. 2d 2d 842 (Ct. Boldman, Johnson v. 1965). 592, 24 Misc. 2d App. Compare 203 N. Y. 760 S. 2d Ct. with Parker v. Ken 1960) (Sup. 212 F. 594 nedy, Supp. N.Y. (S.D. 1963). See generally, District, State v. District Court Judicial 323 P. 2d 24th Bales, 993 Crim. Ct. Ascherman v. (Okl. App. 1958); 273 Cal. 78 445 App. 707, 2d Cal. Peo Rptr. (Ct. 1969); App. ex rel. Leonard ple 672, 386 Mich. 194 2d Papp, N.W. Ct. (Sup. 1972). If the prosecutor faithfully nonaction as upon decide^ for a case, treatment proper complaint particular so, the courts cannot him to act To compel differently. do him fact cause to act in violation of the may statutory mandate to only where “reasonable for in- proceed ground See ex rel. Kur- stituting prosecution” is present. Cannon,
kierewicz v. 42 Wis. 166 N.W. 368, 2d 2d (Sup. Ct. where the court 1969), recognized legislature out some limits of the district discre- may spell attorney’s tion, but when discretion to order an into death is inquest based on “reason to believe” crim- the death was caused inal conduct, the “reason” subjective is the judgment 261, 166 N.W. 2d at Powell Katzen- prosecutor.
bach,
Mulhearn
exist,
exceptions
While seeming
362-363
356,
(1949).
N. J.
* * jn
!l"
may
generai
constitu
from the
no deviation
it
said that
separation
incorporating
provisions
the doctrine
tional
integrity
impairs
of one
tolerated which
essential
will be
* * *
Building
government.
great
[Masset
Co.
branches
Bennett,
53,
(1960)].
4
J.N.
57
maintain a
power
The doctrine is to be utilized to
balance
rather
than
government,
the three branches
among
Vesta
David v.
exclusive domains. See
mutually
create three
Forbes,
Co.,
Morss v.
N. J.
323-326
301,
(1965);
45
cf.
is
power.
danger
is not blended
supra.
danger
“The
Law,
Davis,
1.09 at
1
Administrative
unchecked power.”
§
on
encroaching
68. The
branch must beware of
judicial
within the scope
that are peculiarly
those prerogatives
a branch of State
“occupies
executive
The Governor
power.
ju
legislative
coordinate
government
equal
not extend to
does
judicial power
dicial branches” and
Durand,
Allan v.
authority.
actions within the governor’s
30,
N. J. L.
32
Ct.
unsuccess
1948) (Prosecutor
137
(Sup.
him
office of
from
removing
Governor’s
fully challenged
Commissioner’ of Begistra
of Elections and
Superintendent
Executor v.
County).
Humphrey’s
tion in Hudson
Cf.
States,
55
Bespondent encroachment on the judicial authorization legislative An disere- upon executive. encroachment tion in will enforcement not be inferred ambiguous Clear and Ex language. is unequivocal language necessary. intent press legislative clearly here. When wanting given a choice between an unconstitutional or an interpretation' valid equally constitutional where the statute is meaning, ambiguous, constitutional will meaning prevail. Arbour,
v. Profaci, N. J. Loch re 346, (1970); Forbes, 25 N. J. 258, 264-265 Morss v. (1957); Adams Newark Theatre Co. v. City of 355-356; Newark, 22 N. J. 472, 478 aff'd, 354 U. 931, (1956), S. Ct. 1395, 1 L. Ed. 2d 1533, U. S. denied, reh.
78 8, Ct. 2 L. Ed. 2d 61 Commercial Trust Co. (1957); v. Hudson Tax County 87 N. Board, L. 183-184 Sutherland, & A. (E. Statutory Construction (3d 1914); ed), §
The former Court held it had no Supreme *20 duty the exercise of on the executive compel any imposed Governor, the constitution. N. J. L. 349- 350, 351 of (Sup. Ct. 1856) (power issuing commissions) noted: * * * powers government The constitution has divided the of into independent departments, cautiously provided
distinct and for their expressly any person belonging to, exercise. It has stituting forbidden or con- any departments, exercising powers one of these of the properly belonging others, except expressly pro- to cither of the as governor vided in the constitution It has in the all itself. vested the government. executive of the acknowledged justice duty While it is the of courts of to exert all appropriate powers private wrongs, their for the redress it no is duty sedulously guard against any upon less a right, to encroachment the usurpation powers, departments or of the of the co-ordinate government. complicated machinery In the delicate of our re- publican system, importance department it is of the utmost that each government strictly of the should confine itself within the limits prescribed by the constitution. State v. Governor at 349-354. The institution of pro- before the is a ceedings grand jury duty the prosecutor with which neither nor courts can con- the Legislature stitutionally interfere. of the court to of the authority supersedure request or, matter to before alternatively, bring accord, of its own fear jury majority’s renders the
grand restriction” unfounded. The is question of “retrogressive jury’s not whether matter will hidden from the grand be how will jury. but rather it reach the eyes, grand executive, ultimately as an is prosecutor, agent L. Rutgers responsible public. Ferguson, Rev. at 509. If no is taken pursuant action 52:17B-106 or 52:17B-107 presentation subsequent for of executive nonprosecution, usurpation reasons is many function not a Public reaction one of the remedy. is of the judgment pros which enters discretionary factors as to ecutor, opinion and it work to cause may change A new feel may differently prosecution. event, concern any a new court’s
open investigation. will of all of the “judicial powers” for the conduct aspects executive encroachment an upon inherently justify The line must be drawn somewhere. function. belonging agreed sides, powers properly It on all to one is that departments ought directly completely adminis- not to be equally evident, departments. by either of the other It is that tered ought possess, overruling directly indirectly, or an neither of them respective over the others in the administration of their influence denied, power encroaching powers. It will not be na- ture, ought effectually passing it restrained from be discriminating, theory, assigned therefore,
limits to it. After they may Legislative, in their several classes nature Executive, Judiciary, pro- and most task is the next difficult practical security each, against some the invasion of the vide others. What *21 security ought great problem be, this is the to be solved. drawing I ob The conclusion which am warranted from these is, parchment a servations that mere demarcation on the constitu departments guard tional against limits of the several is not sufficient tyrannical which to a concentration those encroachments lead powers [The all same hands. Federalist of Government (Univ. 1897), 343, 348]. Ed. No. 47 at Merely the theoretical recognizing existence of the tripartite form of government is no guarantee implementing checks upon governmental which power for it was adopted. When actions by one branch the bounds overstep necessary to preserve the integrity others, the line must be drawn. So it must be here.
II The Appellate Division modified the trial court’s order to the extent it permitted private counsel to appear before the grand jury absent by the request prosecutor. Although the Court, modification is not before I feel this this disposition further elaboration. requires Associate counsel appointed A. pursuant to N. J. S. 19:34-63 “should permitted to be in attendance during presentation case jury” and under no circumstances grand may he be present during its deliberations. In re Ringwood Committee, Fact Finding 124 N. J. at 312. Super, This does not affect the prosecutor’s to call associate ability counsel aas witness. Att’y. 1951-1952 Minn. Gen. Rep. No. 29 at Opin. 69. But see Ruvoldt v. Tumulty, supra, N. J. Super, 555-556, a cautionary note as to sounding appointment counsel interests may associate whose be in conflict with the intended prosecution.
Fo R. provision is for such made associate counsel While the 3:6-6(a). Legislature has for both tem provided and assistant porary prosecutors invested with authority appear before the N. J. A. 2A:158-9 grand jury, 2A:158-18, no similar grant authority present associate counsel A. 19: appointed pursuant 34-63.10 temporary 10N. J. S. A. 2A :158-9 vests with “the prosecutor.” of a See N. J. S. A. A. 2A:158-5 and J. S. 52:17B-101, grants 52:17B-102. J. S. 2A:158-18 assistant prosecutors right grand jury.” to “attend the sessions of the
S38 No. by complainant, Opin. cited authority only than other “any attorney presence that the
supra, noted similar jury proceeding at county attorney” grand to in work A. 19:34-62 would envisioned have us would Complainant validate indictments. subsequent jury proceed at to be present grand allow associate counsel for counsel A. 19:34-63 provides because ings . . .” As his duties. ... perform “assist General’s opinion, Attorney the Minnesota noted act . of that state’s similar . purpose * * * county displacing obviously purpose at- not for tlie performance torney, Mm in' to render assistance but opportunity to heard counsel duties and to afford to the associate * supra prosecution *-*.[Opin. 71]. No. before dismissal Annotation, Jury “Presence in Grand Room generally, Indict Affecting of Person Than Grand Jurors as Other 4 A. L. R. 402-403. ment,” 2d I concur herein, expressed with the views accordance in the- Ap- entered reversal, judgment in the part, Division. pellate Hughes Justice I am to state that Chief authorized concur in this opinion. Justice Mountain Pashman, JJ., con- Hughes, J.,C. Mountain result. cur in Hughes Jacobs,
For and Justices reversal —Chief Justice 7; Hall, Mountain, Sullivan, Pashman and Clifford — For affirmance —Fone.