NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0779-13T4
BENNETT A. BARLYN,
Plaintiff-Respondent, APPROVED FOR PUBLICATION v. May 7, 2014
PAULA T. DOW, Individually APPELLATE DIVISION and in her official capacity as Attorney General of New Jersey; STEPHEN J. TAYLOR, Individually and in his official capacity as Director of the New Jersey Division of Criminal Justice; DERMOT O' GRADY, Individually and in his official capacity as Acting Hunterdon County Prosecutor; THE STATE OF NEW JERSEY; THE OFFICE OF THE ATTORNEY GENERAL; THE NEW JERSEY DIVISION OF CRIMINAL JUSTICE; THE COUNTY OF HUNTERDON,
Defendants-Appellants. _____________________________________________________
Argued January 28, 2014 – Decided May 7, 2014
Before Judges Messano, Hayden and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0296-12.
Jane A. Greenfogel, Deputy Attorney General, argued the cause for appellants (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Greenfogel and Kathryn J.H. Boardman, Deputy Attorney General, on the brief). Robert E. Lytle argued the cause for respondent (Szaferman, Lakind, Blumstein & Blader, P.C., attorneys; Mr. Lytle, on the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
Plaintiff Bennett A. Barlyn filed a two-count complaint in
the Law Division, Mercer County, naming as defendants
individually and in their official capacities, Paula T. Dow, who
at all relevant times alleged in the complaint was Attorney
General of the State of New Jersey, Stephen J. Taylor, then
Director of the New Jersey Division of Criminal Justice (DCJ),
and Dermot O'Grady, an Assistant Attorney General who served
briefly as acting Hunterdon County Prosecutor. Also named as
defendants were the State of New Jersey, the Office of the
Attorney General (OAG), DCJ and the County of Hunterdon (the
County).1 The complaint alleged that plaintiff was wrongfully
terminated from his position as an assistant prosecutor in the
Hunterdon County Prosecutor's Office (HCPO) in violation of
"clear mandates of public policy." See Pierce v. Ortho Pharm.
Corp., 84 N.J. 58, 72 (1980) ("An action in tort may be based on
the duty of an employer not to discharge an employee who refused
1 Other than the County, we refer to the remaining defendants collectively as "defendants" throughout the balance of this opinion.
2 A-0779-13T4 to perform an act that is a violation of a clear mandate of
public policy."). A second count alleged that the individual
defendants had violated the New Jersey Civil Rights Act,
N.J.S.A. 10:6-1 to -2 (the CRA).
Plaintiff filed a motion to compel the disclosure of
"[g]rand [j]ury materials" from an investigation conducted by
the HCPO resulting in the indictment of then-Hunterdon County
Sheriff Deborah Trout, Undersheriff Michael Russo, and Sheriff's
Office investigator John Falat, Jr. Defendants filed
opposition, and, after considering oral arguments, the judge
granted plaintiff's motion. She entered an order requiring
defendants to provide "a copy of all materials generated by the
Hunterdon County [g]rand [j]ury in connection with its
investigation . . . , including but not limited to transcripts,
exhibits, subpoenaed documents and/or other evidence[.]"
We granted defendants' motion for leave to appeal. The Law
Division judge entered a consent order staying production of the
materials pending our resolution of the appeal. Having now
considered the arguments made in light of the record and
applicable legal standards, we reverse.
I.
We set forth in greater detail the assertions made in
plaintiff's complaint, recognizing that many critical
3 A-0779-13T4 allegations are contested by defendants. From 1994 until 2007,
plaintiff served as a Deputy Attorney General in DCJ's Appellate
Bureau. He was employed by the HCPO as an assistant prosecutor
between 2007 and August 2010, when he was suspended from his
duties and subsequently terminated.
In 2008, under the direction of then-Hunterdon County
Prosecutor J. Patrick Barnes, the HCPO began an investigation
into the operations of the Hunterdon County Sheriff's Office
(HCSO). In his complaint, plaintiff sets forth a number of
allegations regarding Trout's political connections with the
administration of Governor Chris Christie, as well as her
connections to Robert J. Hariri, a local business man "active in
Republican politics."
Plaintiff asserts that after the gubernatorial election in
2009, HCPO staff involved in the HCSO investigation personally
briefed newly-appointed Attorney General Dow about the
investigation. The Hunterdon County grand jury began to hear
evidence shortly thereafter. In May 2010, the grand jury
returned indictments against Trout, Russo, and Falat, charging
each with multiple counts of official misconduct, N.J.S.A.
2C:30-2, and other crimes. Additionally, the grand jury
returned a presentment that "discussed non-criminal malfeasance
4 A-0779-13T4 by other employees of the [HCSO] during the tenure of Trout,
Russo and Falat."2
Plaintiff alleges that Dow directed Barnes, who was in
"holdover" status, to submit his resignation effective May 7,
2010, the same date the vicinage assignment judge had previously
set for the release of the indictments. Plaintiff claims Barnes
told others that he was removed specifically because of the
investigation into the HCSO. Dow immediately appointed O'Grady
as acting Hunterdon County Prosecutor pursuant to the Criminal
Justice Act, N.J.S.A. 52:17B-97 to -117. Plaintiff alleges that
holdover prosecutors in other counties were permitted to remain
in their positions, and supersession occurred only in Hunterdon
County.
Plaintiff also claims that shortly after the indictments
were unsealed, Russo, who was running for sheriff in neighboring
Warren County, boasted that the governor would intercede and
"'have this whole thing thrown out.'" The OAG and DCJ also took
direct control of the prosecution of the indictments, as well as
physical possession of all evidence from the investigation.
On August 23, 2010, Deputy Attorney General Christine A.
Hoffman appeared before the Law Division judge to whom the
2 The indictments are in the appellate record; the presentment is not.
5 A-0779-13T4 indictments had been assigned. In a letter to the judge dated
the same date, Hoffman wrote that the State was seeking
dismissal "based upon legal and factual deficiencies in the
indictments against all three defendants." She further stated
that the grand jurors were given "incorrect instructions . . .
which . . . tainted the entire deliberative process." As a
result, "the charges contained in these indictments cannot be
sustained at trial." Based upon the State's motion, the Law
Division judge dismissed the indictments.
Plaintiff alleges that on the same day, he told O'Grady
"dismissal of the indictments was improper, unlawful and
motivated by a corrupt political purpose." Later that day, the
Governor nominated Barnes' successor. The following morning,
O'Grady suspended plaintiff from his duties without explanation.
Plaintiff claims that O'Grady thereafter organized a "pretextual
'investigation'" of plaintiff's performance as an assistant
prosecutor; on September 15, Taylor faxed a letter to
plaintiff's counsel, terminating plaintiff's employment at the
HCPO without explanation.
Plaintiff filed his complaint in the Mercer vicinage on
February 1, 2012, and defendants filed their answer on December
6 A-0779-13T4 28.3 On August 5, 2013, plaintiff moved to compel, without
specification, the production of all "grand jury materials." In
a supplemental certification, plaintiff's counsel included a
copy of an amended federal district court complaint filed by
Trout, Russo and Falat against various HCPO personnel and County
officials (the federal suit), alleging malicious prosecution and
violations of the Law Against Discrimination, N.J.S.A. 10:5-1 to
49.
Before the motion judge, the parties essentially agreed
that plaintiff's request implicated two issues: 1) whether the
judge had the authority to consider the motion to compel, or
whether such a motion needed to be directed to the assignment
judge for the Somerset/Hunterdon/Warren vicinage (Vicinage 13);
and 2) whether plaintiff demonstrated release of the grand jury
materials was proper under the seminal case of State v. Doliner,
96 N.J. 236 (1984).
The motion judge carefully and thoroughly considered both
arguments. She concluded that she had authority to decide the
motion, reasoning that once venue for plaintiff's complaint was
properly laid in the Mercer vicinage, "exclusive control by the
assignment judge [of Vicinage 13] [was] relinquished . . . ."
3 This delay is unexplained in the record.
7 A-0779-13T4 After considering the factors enunciated in Doliner, the judge
granted plaintiff's motion and entered the order under review.
II.
Consideration of the issues presented on appeal is guided
by some abiding principles. "Decisions of trial courts on
discovery matters are upheld unless they constitute an abuse of
discretion." In re Custodian of Records, Criminal Div. Manager,
214 N.J. 147, 162-163 (2013) (citing Pomerantz Paper Corp. v.
New Cmty. Corp., 207 N.J. 344, 371 (2011)). Therefore, "[w]e
generally defer to a trial court's disposition of discovery
matters unless the court has abused its discretion or its
determination is based on a mistaken understanding of the
applicable law." Rivers v. LSC Partnership, 378 N.J. Super. 68,
80 (App. Div.) (emphasis added) (citing Payton v. New Jersey
Tpk. Auth., 148 N.J. 524, 559 (1997)), certif. denied, 185 N.J.
296 (2005). We accord no deference to the judge's
interpretation of applicable law, which we review de novo. In
re Custodian of Records, supra, 214 N.J. at 163 (citing
Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).
It is well-settled that grand jury proceedings are
generally secret. State v. Clement, 40 N.J. 139, 142 (1963);
Doe v. Klein, 143 N.J. Super. 134, 140 (App. Div. 1976); and see
R. 3:6-7 (providing for "secrecy of proceedings of the grand
8 A-0779-13T4 jury" except for discovery in criminal cases). The Legislature
requires every grand juror to swear under oath to "keep secret
the proceedings of the grand jury." N.J.S.A. 2B:21-3. Any
person who, "with the intent to injure another, purposely
discloses any information concerning the proceedings of a grand
jury, other than as authorized or required by law, commits a
crime of the fourth degree[,]" and is subject to a civil action
brought by the injured party. N.J.S.A. 2B:21-10(a) and (b).
"The grand jury's duty to uncover criminal wrongdoing and
screen out charges not warranting prosecution underlies the
long-standing rule safeguarding the confidentiality of its
proceedings." In re Application for Disclosure of Grand Jury
Testimony, 124 N.J. 443, 449 (1991) (ELEC)4 (citation omitted);
see also In re Allegations of Official Misconduct, 233 N.J.
Super. 426, 430 (App. Div. 1989) ("To carry out its dual
function, [the grand jury] enjoys extraordinary inquisitorial
and investigative powers, and its proper functioning depends
significantly upon the concept of secrecy in its proceedings.").
In Doliner, supra, 96 N.J. at 247, the Court identified five
public policy reasons favoring secrecy, which we discuss at
greater length below.
4 The applicant in that case was the Election Law Enforcement Commission (ELEC). For ease, we use this acronym hereafter when referring to the Court's opinion.
9 A-0779-13T4 Yet, "notwithstanding the long-established policy of grand-
jury secrecy, disclosure is permitted in certain circumstances."
ELEC, supra, 124 N.J. at 451; see also Doe, supra, 143 N.J.
Super. at 140-41 (the "secrecy of grand jury proceedings is not
absolute"). The Legislature, for example, has provided that a
person investigated by a grand jury returning a no bill of
indictment "may request the grand jury . . . issue a statement
indicating that a charge against the person was investigated and
that the grand jury did not return an indictment from the
evidence presented." N.J.S.A. 2B:21-9(a). A person called
before a grand jury "may request the grand jury to issue a
statement indicating that the person was called only as a
witness in an investigation, and that the investigation did not
involve a charge against the person." N.J.S.A. 2B:21-9(b).
Additionally, as noted, our Rules provide for the release of a
transcript of grand jury proceedings upon the request of an
indicted defendant, or the prosecutor. See R. 3:6-6(b).
However, as we noted in Doe, supra, 143 N.J. Super. at 141,
"[t]he rules of civil procedure do not contain a comparable
provision granting litigants in civil cases access to grand jury
testimony." "[T]he primary procedural distinction between
discovery of grand jury proceedings under [the Rules governing
post-indictment discovery in criminal cases] and under general
10 A-0779-13T4 legal principles lies in the showing the applicant for discovery
must make." State v. CPS Chemical Co., 198 N.J. Super. 236, 243
(App. Div.), motion for leave to appeal denied without
prejudice, 105 N.J. 502 (1985). In Doe, we said the applicant
must "demonstrate compelling circumstances or need warranting
disclosure of grand jury testimony." Doe, supra, 143 N.J.
Super. at 141.
"[C]onclud[ing] . . . the principles that underlie federal
and state grand jury secrecy are identical," the Court in
Doliner specifically adopted the test enunciated by the United
States Supreme Court. Doliner, supra, 96 N.J. at 246. The
applicant seeking disclosure must make "a strong showing of
particularized need that outweighs the interest in grand jury
secrecy." Ibid.; see also CPS Chem., supra, 198 N.J. Super. at
243 ("Doliner makes clear that in the context of related civil
litigation[,] a party may be afforded access to prior and
concluded grand jury proceedings where he is able to demonstrate
that his need outweighs the public interest in grand jury
secrecy."). In Doliner, the Court cited with approval Douglas
Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667,
60 L.Ed. 2d 156 (1979). Ibid. There, the United States Supreme
Court described
the standard for determining when the traditional secrecy of the grand jury may be
11 A-0779-13T4 broken: [p]arties seeking grand jury transcripts . . . must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed. Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations . . . . For in considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries.
[Douglas Oil Co., supra, 441 U.S. at 222, 99 S. Ct. at 1674, 60 L. Ed. 2d at 167 (emphasis added).]
"[T]he standard for determining whether a movant has
established need sufficient to outweigh the public interest in
grand-jury secrecy is 'a highly flexible one, adaptable to
different circumstances and sensitive to the fact that the
requirements of secrecy are greater in some situations than
others.'" ELEC, supra, 124 N.J. at 451 (quoting United States
v. Sells Eng'g, Inc., 463 U.S. 418, 423, 103 S. Ct. 3133, 3149,
77 L. Ed. 2d 743, 766 (1983)). In balancing a litigant's
particularized need versus the public interest in grand jury
secrecy, a court must "take into account the five basic reasons
for secrecy," CPS Chem., supra, 198 N.J. Super. at 243, which
are:
12 A-0779-13T4 (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.
[Doliner, supra, 96 N.J. at 247 (quoting United States v. Procter & Gamble, 356 U.S. 677, 681 n. 6, 78 S. Ct. 983, 986 n. 6, 2 L. Ed. 2d 1077, 1081 n. 6 (1958)).]
Because "the reasons for secrecy are primarily related to
the work of an ongoing grand jury investigation, not the work of
a grand jury that has concluded its deliberations and returned
either an indictment or a no bill," the first three factors
"almost invariably disappear" upon the occurrence of either of
those events. Ibid. "The fourth factor also will ordinarily
not constitute a bar to discovery since 'in New Jersey every
witness is on notice that his or her testimony will be disclosed
to a defendant on request.'" CPS Chem., supra, 198 N.J. Super.
at 244 (quoting Doliner, supra, 96 N.J. at 247). Doliner's
fifth factor, however, "is . . . a matter whose applicability
and effect require evaluation in each instance . . . ." Ibid.
13 A-0779-13T4 "'[A]s the considerations justifying secrecy become less
relevant, a party asserting a need for grand jury transcripts
will have a lesser burden in showing justification.'" Doliner,
supra, 96 N.J. at 251 (quoting Douglas Oil, supra, 441 U.S. at
223, 99 S. Ct. at 1675, 60 L. Ed. 2d at 167).
Defendants concede that the first, second and third Doliner
factors are inapplicable to this case. However, they argue the
judge failed to fully consider the remaining two factors. The
judge concluded that factor four did not preclude disclosure,
essentially adopting plaintiff's argument that, because Trout,
Russo and Falat no longer worked at the HCSO, anyone who
provided information to the grand jury was not subject to
reprisal. The judge determined that factor five was also of
minimal importance because the indictment had received
significant notoriety.
We recognize the Court has said that the "importance of the
fourth factor, encouraging witness cooperation, is minimal at
best." ELEC, supra, 124 N.J. at 456 (citing Doliner, supra, 96
N.J. at 247). That assessment is premised on the fact that "in
New Jersey every witness is on notice that his or her testimony
will be disclosed to a defendant upon request." Doliner, supra,
14 A-0779-13T4 96 N.J. at 247.5 Here, plaintiff states that the indictments
were dismissed before the grand jury materials were furnished to
Trout, Russo and Falat. While a grand jury witness in New
Jersey may know that his testimony might be disclosed if an
indictment is returned, we are not sure that grand jury
witnesses are armed with an understanding that, in some
circumstances, their testimony may also be disclosed even if a
no bill is returned or an indictment dismissed before trial.
Defendants properly note that because of the unusual
circumstances presented in this case, witnesses who provided
information to the grand jury may have their identities exposed,
even though they will never be called upon to testify in a
criminal proceeding. We cannot say whether they will be subject
to the opprobrium of others they know or with whom they work,
even though the three indicted individuals are no longer
employed by the HCSO. A court must consider the possible
chilling effect this might have upon witness cooperation in
future grand jury proceedings. Douglas Oil Co., supra, 441 U.S.
at 222-23, 99 S. Ct. at 1674-75, 60 L. Ed. 2d at 166-67.
5 While we respect the Court's analysis, we are uncertain that witnesses appearing before grand juries in New Jersey either know or are told that their testimony will be provided upon request to the defendant if an indictment is returned, even if they are aware in a general sense that they may be called as witnesses if there is a trial.
15 A-0779-13T4 As to factor five, defendants argue that although the
indictment may have received significant media attention, it was
subsequently dismissed. They contend disclosure of the grand
jury materials essentially exposes Trout, Russo, and Falat to
further public accusations without furnishing any forum in which
to vindicate their reputations, and publicly identifies
witnesses and others who testified or provided information.
Plaintiff counters by arguing that the specific allegations
were repeatedly discussed in open court, and that the three
individuals have filed the federal suit that challenges the
motives behind the investigation that led to their indictments.
In other words, Trout, Russo and Falat themselves seek to shine
light upon the grand jury's investigation.6
In Doliner, the Court concluded that under the specific
facts presented, the fifth factor "ha[d] little application
. . . since the indictment of all the defendants . . . moot[ed]
that issue . . . ." 96 N.J. at 253. Of course in Doliner, it
6 Well after this appeal was argued and immediately prior to the filing of our opinion, plaintiff forwarded correspondence demonstrating that all parties to the federal suit have sought release of the grand jury materials. Trout, Russo and Falat served a document production request upon an HCPO detective who is a named defendant in the federal complaint. Likewise, the defendants in the federal complaint have served a subpoena duces tecum upon the OAG. Apparently, the defendants and OAG have "postpone[d] the return date of the" subpoena pending the issuance of our opinion.
16 A-0779-13T4 was the defendants, most of whom had pled guilty, who opposed
release. Factually, this case falls somewhere between Doliner
and ELEC, where the grand jury did not return any indictment
against the defendants. ELEC, supra, 124 N.J. at 447. In those
circumstances, the Court "conclude[d] that the protection of
those exonerated of criminal liability from the consequences of
disclosure constitutes a significant basis for preserving the
secrecy of the grand-jury proceedings." Id. at 456 (emphasis
added).
When the motion was argued in this case, it was unclear
whether factor five militated for or against disclosure. In our
minds, the mere fact that the indictments produced much
publicity would be insufficient to compel disclosure. However,
we agree that it would be significant to consideration of factor
five if, as plaintiff now claims, Trout, Russo and Falat have
sought release of the material, or if the grand jury materials
are released to them in conjunction with the federal suit.
In any event, our decision rests upon reasons other than
consideration of Doliner factors four and five. Should
plaintiff make a future application for disclosure, the judge
will carefully consider those factors based upon the record that
then exists.
17 A-0779-13T4 In our opinion, plaintiff has failed to demonstrate "a
strong showing of particularized need that outweighs the
interest in grand jury secrecy." Doliner, supra, 96 N.J. at 246
(emphasis added). At oral argument before the motion judge,
plaintiff contended that to properly prosecute his suit, he
needed to demonstrate that the legal and factual deficiencies
cited by Hoffman when she sought dismissal of the indictments
"did not exist." He further argued that these alleged
deficiencies could only be rebutted if he had "access to the
same materials that were considered when the State decided to
dismiss the three indictments." Plaintiff contended that the
"non-existent [Doliner] secrecy factors are clearly outweighed
by the relevance of the materials . . . from the grand jury."
In addressing the issue of "particularized need," the judge
considered the elements of plaintiff's cause of action under
Pierce. She found that the grand jury materials would be
"relevant" to support plaintiff's claim that his termination was
based upon "well-founded" complaints of corruption, and to
challenge Hoffman's statement that the indictments were
deficient. She further noted that evidence supporting such a
claim typically was circumstantial.
"[P]articularized need is best evaluated by examining the
character of the materials sought to be disclosed." Doliner,
18 A-0779-13T4 supra, 96 N.J. at 248. "The critical factor in any disclosure
of grand-jury information is the material sought[,]" since
"[t]here are obviously differing degrees of confidentiality that
attach to different portions of a grand-jury record." ELEC,
supra, 124 N.J. at 459. Here, plaintiff made no request for
particular aspects of the grand jury's investigation or
proceedings. He demanded, and the judge ordered, the release of
"all materials generated by the . . . Grand Jury in connection
with its investigation . . . , including but not limited to
transcripts, exhibits, subpoenaed documents and/or other
evidence[.]"
Particularized need also requires that one seeking release
of grand jury material demonstrate more than the probable
relevance of the material to the litigation. See, e.g., Sells
Eng'g, supra, 463 U.S. at 445, 103 S. Ct. at 3149, 77 L. Ed. 2d
at 766 (reversing the lower court's finding of particularized
need for disclosure because "its explanation . . . amounted to
little more than its statement that the grand jury materials
sought [were] rationally related" to the government's civil
fraud suit). In Doe, we recognized that a "'compelling
necessity'" must be shown with "'particularity'"; a showing of
the material's "'relevancy and usefulness'" would "fall short of
proof that" the plaintiffs would suffer prejudice or "'an
19 A-0779-13T4 injustice would be done'" without it. Doe, supra, 143 N.J. at
142 (quoting Procter & Gamble Co., supra, 356 U.S. at 681, 78
S. Ct. at 986, 2 L. Ed. 2d at 1081-1082).
We have also said that "[w]hile application of the test of
need presents a more difficult and individualized problem, it is
at least clear that the availability of other routes to the
discovery of relevant information is a significant
consideration." CPS, supra, 198 N.J. Super. at 244. We further
explained
A party to a civil proceeding ordinarily has available to him the whole panorama of discovery techniques provided for by the rules of court. He may find it more time- consuming or expensive or difficult to obtain information by pursuing those routes than by reviewing relevant grand jury proceedings, but in any event maintenance of grand jury secrecy in those circumstances will not ordinarily result in an adverse impact upon him for which he cannot compensate.
[Ibid.]
In Doe, we echoed similar concerns, noting that "the furnishing
of the transcripts of the grand jury testimony might save
substantial time and expense, nevertheless, this alone does not
warrant the lifting of the veil of secrecy accorded grand jury
proceedings." Doe, supra, 143 N.J. Super. at 143.
The Court has expressed similar concerns in very different
circumstances. In ELEC, the Commission sought release of State
20 A-0779-13T4 grand jury materials that led to a presentment but no indictment
of the defendants. ELEC, supra, 124 N.J. at 447. "[A]lthough
[the Court] agree[d] that ELEC has an obvious public purpose in
securing the grand-jury materials," it "was not persuaded . . .
that ELEC . . . made a showing of particularized need sufficient
to outweigh respondents' interest in secrecy." Id. at 457. The
Court noted that ELEC had made "no attempt to secure any
evidence through its own discovery authority . . . , nor ha[d]
it stated with particularity which materials it s[ought] to
obtain." Ibid. The Court held that "an indispensable
prerequisite to a governmental agency's ability to show a
particularized need for grand-jury records is that agency's
good-faith effort to obtain the desired evidence through its own
resources and authority." Ibid.
On the other hand, we found the requisite showing of
particularized need in Caiazza v. Bally Mfg., 210 N.J. Super. 7
(App. Div. 1985). There, we considered the issue in the context
of the plaintiffs' wrongful death claims occasioned by a fatal
fire at Great Adventure Amusement Park in Jackson Township. Id.
at 10. Noting that the "building itself ha[d] been destroyed,
and the nearly contemporaneous records and testimony gathered by
the grand jury constitute[d] the best and perhaps only way to
reconstruct the critical events," we concluded that the
21 A-0779-13T4 plaintiffs had established a particularized need for the
materials. Ibid. (emphasis added).
In this case, we acknowledge without serious debate the
potential relevancy of the grand jury material, or the
likelihood that it may lead "to the discovery of admissible
evidence[.]" See R. 4:10-2. The issue was amply discussed
before the motion judge and during oral argument before us. To
the extent defendants argue otherwise, we reject their
contentions. As noted, however, mere relevancy is insufficient
to compel disclosure, even if the Doliner factors weigh heavily
against secrecy concerns.
We were advised at oral argument that at the time the order
was entered, there had been little discovery exchanged.
Plaintiff's complaint includes the names of several individuals,
other than defendants and Hoffman, who he claims have knowledge
of the investigation of the HCSO and the factual and legal
sufficiency of the indictments returned. These named
individuals allegedly have information that directly and
circumstantially supports plaintiff's allegation that dismissal
of the indictments was politically-motivated. Such information
would permit an inference that plaintiff had a reasonable basis
for making his complaint to O'Grady in the first instance, and
that his termination was unrelated to his job performance. Yet,
22 A-0779-13T4 the record is devoid of any indication that plaintiff attempted
to obtain from these persons, or that these individuals refused
to supply, relevant information.
There is also nothing in the record that demonstrates
plaintiff attempted to obtain the contents of the HCPO file of
the investigation through discovery. We express no opinion
whether plaintiff would be entitled to compel the release of
some or all of the file. See, e.g., River Edge Sav. & Loan
Assoc. v. Hyland, 165 N.J. Super. 540, 543-44 (App. Div.)
(noting that criminal investigative materials held by the State
are generally privileged from disclosure, but that the
"privilege is not absolute"), certif. denied, 81 N.J. 58 (1979).
We raise the issue only in the context of plaintiff's failure to
demonstrate a "particularized need" specifically for the grand 7 jury materials.
In sum, we reverse the order under review. We do so
without prejudice to plaintiff's ability to make application to
the Law Division if, on the record then-existing, he can
demonstrate a particularized need for some or all of the grand
jury materials. See ELEC, supra, 124 N.J. at 458 (permitting
7 We hasten to add that our conclusion in this regard is strictly limited to plaintiff's request and the order under review. Our opinion should not be construed as expressing any particular position on the requests pending in the federal suit noted in footnote six, supra.
23 A-0779-13T4 possible re-application "if, after making the requisite good-
faith effort to obtain the desired evidence, [applicant] remains
unable to gain access to the information"). In the event
plaintiff again seeks to compel production of grand jury
material, the "trial judge shall review in camera each item that
[plaintiff] seek[s] to have released for discovery purposes to
make certain that [plaintiff's] needs outweigh the public
interest in grand jury secrecy." State v. CPS Chem., 105 N.J.
502, 502 (1985).
III.
Defendants argued in the Law Division and before us that
the motion judge lacked "jurisdiction" to consider plaintiff's
motion because only the assignment judge for Vicinage 13, or her
designee, may order release of the grand jury materials at
issue. Plaintiff contends that no statute, Court Rule or case
law supports this proposition. With certain exceptions
discussed below, we agree with plaintiff.
No statute or Court Rule directly addresses the issue,
although those authorities clearly demonstrate the assignment
judge's pervasive control of county grand juries in New Jersey.
"The [a]ssignment [j]udge for each county shall impanel one or
more grand juries for that county, as the public interest
requires." N.J.S.A. 2B:21-1; see also R. 3:6-1 (same). The
24 A-0779-13T4 assignment judge, or her designee, conducts the voir dire of
prospective panel members, hears and decides requests for
excusal or deferral, rules on objections by the prosecutor to
prospective jurors based upon partiality or lack of
qualifications to serve and fills vacancies among the jury as
they occur. N.J.S.A. 2B:21-2(b), (c) and (d); N.J.S.A. 2B:21-4;
see also R. 3:6-3(a) (requiring the assignment judge to
determine whether bias or interest exists and justifies
excusal), but see R. 3:6-2 (challenges to the array of grand
jurors or objections to individual grand jurors' qualifications
shall be heard by a judge designated by the assignment judge).
The assignment judge selects the foreperson and deputy
foreperson of the grand jury. R. 3:6-4.
Indictments are "returned in open court to the [a]ssignment
[j]udge or, in the [a]ssignment [j]udge's absence, to any
Superior Court judge assigned to the Law Division in the
county." R. 3:6-8(a). The assignment judge must receive grand
jury presentments and is responsible for examining any
presentment, conducting a hearing and ruling on any objections,
and releasing the presentment to the public. R. 3:6-9 (b), (c)
and (d). The assignment judge discharges the grand jury, or may
order its continuance. R. 3:6-10.
25 A-0779-13T4 Only one of our Court Rules explicitly addresses the
assignment judge's role in the release of confidential grand
jury records. Pursuant to Rule 3:6-5, "[t]he record of the vote
on every count of every indictment and on every presentment
shall be filed with the clerk of the grand jury[,]" and "shall
not be made public except on order of the [a]ssignment [j]udge."
Typically, when a plaintiff in a civil suit seeks
disclosure, venue for the litigation has been laid in the same
vicinage where the grand jury was empaneled. We agree with
defendants that motions seeking disclosure in those
circumstances should be addressed, in the first instance, to the
vicinage assignment judge. See, e.g., Grill v. City of Newark,
311 N.J. Super. 149 (Law Div. 1997); Stewart v. Dexter, 218 N.J.
Super. 417 (Law Div. 1987). However, in this case, Vicinage 13,
which includes Hunterdon County where the grand jury was
empaneled, is not where plaintiff's suit is venued.
Defendants seemingly contend this distinction does not
matter. They rely upon case law involving indictments returned
by the State grand jury, which is subject to an entirely
distinct statutory scheme. See N.J.S.A. 2B:22-1 to -9; R. 3:6-
11. The assignment judge who oversees the State grand jury has
broad powers, including the ability to designate the county of
venue for any indictment returned by the panel, and to
26 A-0779-13T4 consolidate indictments returned by the State grand jury with
those returned by a county grand jury, and fix the venue for
trial of both. R. 3:14-1(k); N.J.S.A. 2B:22-7.
In such circumstances, it matters little where venue is
laid for the civil action because the State grand jury
assignment judge, having exercised his or her ability to set
venue for the criminal case anywhere in the State, should
logically address issues of disclosure. In other words, seeking
disclosure of State grand jury materials is more akin to
situations where the indictment and the civil action are venued
in the same county than it would be to the circumstances
presented here. The pervasive statutory and procedural scheme
that applies to the State grand jury simply does not apply to
this case, where the indictments were returned by a county grand
jury in one vicinage, and venue for plaintiff's suit happens to
be in a different vicinage.
Putting those distinctions aside, we do not find the cases
cited by defendants to be persuasive. In CPS Chem., supra, 198
N.J. Super. at 245, for example, which involved State grand jury
proceedings, we held that after the Mercer vicinage assignment
judge who oversaw the State grand jury designated venue for an
indictment in the Middlesex County vicinage, "all further
proceedings in the cause, including discovery, [were] within the
27 A-0779-13T4 control of the trial judge." In denying without prejudice the
State's motion for leave to appeal, the Court permitted the
State to apply before the assignment judge in the Mercer
vicinage for further relief. CPS Chem., supra, 105 N.J. at
502. However, the Court explicitly provided that such further
relief "includ[ed] reference of the matter back to the trial
judge who originally heard the underlying application . . . [and
who] shall review in camera each item that defendants seek to
have released for discovery purposes to make certain that
defendants' needs outweigh the public interest in grand jury
secrecy." Ibid. In our view, CPS Chem. does not support
defendants' position that the judge in this case could not
consider plaintiff's motion to compel disclosure.
Caiazza involved disclosure of materials produced before
the Ocean County grand jury and transcripts of those
proceedings. Caiazza, supra, 210 N.J. Super. at 11. A number
of wrongful death civil suits were consolidated before a single
judge and venued in Passaic County. Ibid. That judge
considered the plaintiffs' motion to compel disclosure and
ordered the civil defendants, who already had the material
through discovery in the criminal case, to produce it for
plaintiffs. Ibid. However, he referred that part of the
28 A-0779-13T4 motion seeking access to the grand jury testimony to the Ocean
County assignment judge. Ibid.
"[A]t the same time [the civil] defendants commenced a
declaratory judgment action, whose venue was laid in Ocean
County, by which they sought to prevent disclosure. They were
joined by [nineteen] witnesses who had testified before the
grand jury and who also sought to maintain secrecy." Ibid. The
Ocean County assignment judge consolidated all the pending
matters, dismissed the defendant's declaratory judgment action
and compelled disclosure of the transcripts. Id. at 12.
Defendants contend that Caiazza supports their position
that only the assignment judge who oversaw the county grand jury
can entertain a motion to compel production of grand jury
material. We must disagree. Although it is unclear whether the
precise issue was raised by the civil defendants and the grand
jury witnesses who appealed, we specifically "affirm[ed] both
orders substantially for the reasons stated by the respective
trial judges, both of whom properly exercised their respective
discretion in applying the test for disclosure prescribed by
[Doliner.]" Ibid. (emphasis added). We also remanded the
matter for entry of a protective order, not to the Ocean County
assignment judge, but rather to the Passaic County trial judge.
Id. at 13.
29 A-0779-13T4 In short, we find no authority that necessarily prohibits
the judge to whom the civil litigation is assigned from
considering a motion seeking to compel disclosure of county
grand jury material, irrespective of whether the county grand
jury was empaneled in the same or a different vicinage. This is
not to say, however, that in certain exceptional situations, a
party opposing disclosure may seek to transfer consideration of
the motion to the vicinage where the grand jury was empaneled,
and the motion judge may decide that transfer is appropriate.
For example, there may be circumstances that arose during
the term of the particular grand jury that are known only to the
prosecutor and the assignment judge of the vicinage where the
grand jury was empaneled. The assignment judge, for example,
may have considered and ruled upon a particular witness's
assertion of a privilege. See, e.g., In re Essex Cnty. Grand
Jury Inv., 368 N.J. Super. 269, 277-78 (Law Div. 2003). If an
indictment were returned, the defendant might be privy to these
events through criminal discovery. But, if no indictment were
returned or, as here, where the indictments were dismissed
before discovery was produced, such an event might heighten
secrecy concerns.
One way to properly address those issues if they exist is
for the party seeking disclosure to serve notice of the motion
30 A-0779-13T4 on the county prosecutor's office that actually presented
evidence before the grand jury at issue, something that is
routinely done when venue for the civil suit and the county of
grand jury empanelment are the same. That was not done in this
case. Plaintiff only served his motion on defendants, not the
HCPO.8
If a party can present specific reasons before the motion
judge establishing good cause why the vicinage assignment judge
in another county should hear the motion, then the motion should
be transferred. Using this case as an example, if, upon notice,
the HCPO demonstrates good cause why the motion should only be
considered by the assignment judge in Vicinage 13 or her
designee, then the Mercer Law Division judge should seek to
transfer consideration of the motion to her.9
In this particular case, we understand that defendants'
supersession of the prosecution of the indictments may have
effectively neutered any meaningful participation by the HCPO,
8 It would appear that plaintiff did not even serve his notice of motion upon the County, which was a defendant in the civil litigation and clearly had the right to participate before the Law Division judge. 9 Rule 4:3-3(a) provides that only the assignment judge of the vicinage or her designee can order a change of venue. While consideration of the motion to compel need not require a complete change of venue for the litigation, it would be better practice for the assignment judge of the transferring vicinage or her designee to order transfer of the motion to another vicinage.
31 A-0779-13T4 but we cannot be certain. We do not believe that alone should
alter the procedure we set out above in the event plaintiff
again seeks to compel disclosure of the grand jury material and
transcripts. Defendants are also free, since they have knowledge
of all the grand jury material and transcripts, to raise such
particularized concerns in camera with the motion judge.
If plaintiff makes another motion to compel, it is
incumbent upon the motion judge, whoever it may be, to conduct
an in camera review of the grand jury material sought by
plaintiff before ordering its production. CPS Chem., supra, 105
N.J. at 502. If the grand jury material has in fact never been
released, as is alleged here, the judge's in camera review may
trigger the need to provide notice to witnesses who appeared
before the grand jury, but whose identities have never been made
public.
In Caiazza, several of the nineteen grand jury witnesses
who opposed disclosure had already testified at the defendant's
criminal trial, and their grand jury testimony was referenced
during that trial. Caiazza, supra, 210 N.J. Super. at 11.
Although we ordered disclosure because the plaintiffs'
particularized need outweighed secrecy concerns, we nevertheless
found "some merit in [the] claim respecting the need to protect
from public opprobrium those witnesses who testified before the
32 A-0779-13T4 grand jury whose identity has not yet been publicly disclosed."
Id. at 13. "[T]hese witnesses [were] entitled to privacy to
the maximum extent consistent with plaintiffs' discovery and
trial needs." Ibid. We remanded the matter to the trial court
"for . . . entry of an appropriate protective order respecting
disclosure of the grand jury transcripts which shall be equally
applicable to all of the parties in the civil litigation."
Ibid.
Such a protective order might be appropriate in this case,
but we cannot say at this juncture. Obviously, plaintiff may
not know the identity of those witnesses, and therefore cannot
be charged with the obligation to provide notice. However, the
county prosecutor would know and be in a position to supply the
motion judge with the identity of the witnesses so they may be
notified.10 The judge could conduct a hearing, in camera, to
consider any particular witnesses' objection and fashion an
appropriate protective order as necessary.
Reversed.
10 Because of the unusual circumstances as explained, supra, defendants might be appropriately charged with the obligation to provide notice in this case.
33 A-0779-13T4