In Re Investigation Regarding Ringwood Fact Finding Committee Re Violation of N. J. S. A. 19:34-38.1

324 A.2d 1, 65 N.J. 512, 1974 N.J. LEXIS 197

Opinions

The opinion of the Court was delivered by

Jacobs, J.

The Ringwood Pact Finding Committee circulated a pamphlet shortly before the November 3, 1970 Ringwood mayoral election. The pamphlet did not in terms refer to “any election or to any candidate or to the adoption or rejection of any public question” (N. J. S. A. 19: 34-38.1), but it did criticize a proposed solid waste disposal program which had the support of a candidate. The pamphlet did not bear the “name and address of the person or persons causing the same to be printed” (N. J. S. A. 19: 34-38.1), although the persons were publicly identified before the election. On December 9, 1970, Mr. Martin E. Murphy, an attorney at law, notified the Passaic County Prosecutor by letter that he represented Ringwood citizens who were complaining that the pamphlet violated the provisions of N. J. S. A. 19:34-38.1. He also notified the prosecutor that he was calling for investigation of the complaint pursuant to N. J. S. A. 19:34-62 and that he had been employed to assist in the investigation in accordance with N. J. S. A. 19:34-63.

The prosecutor duly conducted an investigation which included, inter alia, interviews by his representative with the members of the Ringwood Fact Finding Committee in the presence of Mr. Murphy and his associates. On the basis of the completed investigation, the prosecutor found in effect that the violation, if any, was unintentional and that there was no “reasonable ground for instituting a prosecution” (N. J. S. A. 19:34-62). In due course he served notice on Mr.. Murphy that he would move before the Assignment Judge of Passaic County “to dismiss the complaint filed herein alleging a violation of the New Jersey Statutes, to wit N. J. S. A. 19:34-38.1.” The notice also set- forth that it was being sent pursuant to N. J. S. A. 19:34-63 and that objections could be filed in writing with the Court for its consideration.

After taking testimony and hearing argument, the Assignment Judge denied the motion to dismiss and directed “that the investigation regarding the Ringwood Fact Finding Committee and their violation of N. J. S. A. 19:34-38.1 be presented to the Passaic County Grand Jury within a reasonable period of time. . . .” He further directed that Mr. Murphy “be present at the presentation of this matter to the Passaic County Grand Jury. . . .” On appeal, the Appellate Division affirmed the Law Division’s denial of the motion to dismiss and its direction that the complaint be submitted to the grand jury; however, it struck the provision that Mr. Murphy attend at the presentation to the grand jury, finding no necessity for such attendance. In re Ringwood Fact Finding Committee, 124 N. J. Super. 310, 312 (App. Div. 1973). Mr. Murphy did not petition for certification with respect to the striking of the provision for his attendance before the grand jury. The prosecutor did petition for certification with respect to the denial of his motion to dismiss and the direction that the matter be submitted to the grand jury and his petition was granted. 64 N. J. 316 (1974). In his petition he advanced the following single contention: “The order of the Assignment Judge denying the Prosecutor’s motion to dismiss the election law complaint and directing that the Prosecutor present the matter to the Grand Jury was without authority and violative of the separation of powers,” While we do not subscribe to this contention we do find that on the particular showing before it, the Law Division should not have directed that the matter be presented to the grand jury but should have granted the prosecutor’s motion to dismiss.

The 1930 Revision of our election laws contained special provisions relating to the prosecutor’s duties when notified of election law violations (L. 1930, c. 187, p. 909); these provisions have been carried forth into sections 62 and 63 of Chapter 34, Title 19 of the current New Jersey Statutes (N. J. S. A. 19:34-62, 63). Section 62 provides that if the prosecutor, is notified of a violation he shall inquire into the facts' and “if there is reasonable ground for instituting a prosecution” he shall submit the matter to the grand jury. Section 63 provides that any citizen may employ an attorney who shall be recognized by the prosecutor and the court as associate counsel, and that no proceeding shall be dismissed without notice to the associate counsel and “until the reasons of the prosecutor of the pleas for such dismissal, together with the objections thereto of such associate counsel, shall have been filed in writing, argued by counsel and considered by the court. . . .”

No one questions that section 63 gives explicit authority to the court to grant or deny the prosecutor’s motion to dismiss the election law complaint; and the Appellate Division found that “[b]y necessary implication from such grant of authority, the Legislature obviously intended to, and did in fact, vest the court with the correlative power to require the presentation of the matter to the grand jury.” In re Ringwood Fact Finding Committee, supra, 124 N. J. Super, at 312. We agree that such was the legislative intent, and that there was no intent whatever to place the court in the very unseemly and highly injudicial position of being called upon to express its judgment as to whether the .circumstances dictate submission to the grand jury but being powerless to direct such submission.

As recognized in State v. Laws, 51 N. J. 494, 510-511, cert. denied, 393 U. S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968), the prosecutor has broad discretion in selecting matters for prosecution. While his discretion is broad, it “is not unregulated or absolute” (State v. Winne, 12 N. J. 152, 172 (1953)) and it may, in appropriate circumstances, be reviewed for arbitrariness or abuse. See State v. LeVien, 44 N. J. 323, 327 (1965); cf. State v. Conyers, 58 N. J. 123, 146-147 (1971); State v. Ashby, 43 N. J. 273, 276 (1964).

Footnotes

•

* In our State, such review is readily available ■within the extraordinarily comprehensive prerogative writ jurisdiction which New Jersey’s judicial system inherited from the King’s Bench and which the 1947 State Constitution preserves. See Monks v. N. J. State Parole Board, 58 N. J. 238, 248-249 (1971); In re Senior Appeals Examiners, 60 N. J. 356, 369-370 (1972); cf. Mayflower Securities v. Bureau of Securities, 64 N. J. 85, 93 (1973).

In the matter at hand, we consider that the prosecutor did not act arbitrarily but acted conscientiously within his discretionary powers. The violation, if any, was technical and unintentional and the public interest would not have been served by pursuing it. If it were not for section 63 the prosecutor undoubtedly would have closed the matter administratively on the basis of the determination that there was no “reasonable ground for instituting a prosecution” within the contemplation of section 62. Because of section 63 he was obliged to submit the matter to the Law Division for its review but the Law Division should not have inter fered with the determination, absent a showing of arbitrariness or abuse. There was no such showing and the Law Division should therefore have granted the motion to dismiss. However, we hasten to reject any suggestion that if the totality of circumstances were such as to indicate a wilfully significant violation clearly calling for prosecution, the court would have been barred, by the doctrine of separation of powers or otherwise, from directing that the prosecutor submit the matter to the grand jury in regular course.

The history and nature of the prosecutor’s office have been extensively described elsewhere and need only be referred to briefly. See Morss v. Forbes, 24 N. J. 341, 364 (1957); State v. Longo, 136 N. J. L. 589, 592 (E. & A. 1947). It is admittedly a constitutional office but it is not mentioned in the Executive Article of the 1947 Constitution (Art. V). In the 1844 Constitution (Art. VII) it is listed under “Civil Officers” along in the same paragraph with the attorney-general, clerk of the supreme court, clerk of the court of chancery, secretary of state and keeper of the state prison. In the 1947 Constitution (Art. VII) it appears under “Public Officers and Employees,” along in separate paragraphs with the state auditor, county clerks, surrogates and sheriffs. The Constitution does not define the duties of the prosecutor’s office and the Legislature has from time to time necessarily passed enactments dealing with the subject. State v. Longo, supra, 136 N. J. L. at 592: Morss v. Forbes, supra, 24 N. J. at 366-370. The constitutionality of these enactments has not been questioned and, most assuredly, limiting provisions with respect to the prosecutor’s authority, such as those contained in N. J. S. A. 19:34-62, 63, are well within the law-making powers vested in the Legislature by Article III of the 1947 Constitution.

In Morss, a legislative investigating committee sought to obtain information from a county prosecutor with respect to the wiretapping activities of his office. He refused to respond to inquiries, contending that when he deemed it to be in the public intreest he had the right, under the consti tutional doctrine of separation of powers and as part of the executive, to decline to furnish information sought by the legislative branch of government. His contention was rejected by this Court in an opinion by Justice Wachenfeld, himself a former prosecutor, which noted that although there is still some confusion with respect to the exact status of the prosecutor, there is “little doubt but that the executive chain of command is not sufficiently prominent to enable the prosecutor to claim any high prerogative which might be enjoyed by the state executive with respect to withholding information from the Legislature.” 24 N. J. at 372-373.

Morss also quoted from Masset Bldg. Co. v. Bennett, 4 N. J. 53 (1950), where Chief Justice Vanderbilt pointed out that the doctrine of separation of powers “has nowhere been construed as creating three mutually exclusive watertight compartments” and that blendings are permitted so long as there is no impairment of “the essential integrity of one of the great branches of government.” 24 N. J. at 372. See 1 Davis, Administrative Law Treatise § 1.09 at 68 (1958): “The danger is not blended power. The danger is unchecked power.” See also David v. Vesta Co., 45 N. J. 301, 326 (1965): “The doctrine of separation of powers must therefore be viewed not as an end in itself, but as a general principle intended to be applied so as to maintain the balance between the three branches of government, preserve their respective independence and integrity, and prevent the concentration of unchecked power in the hands of any one branch.”

Justice Wachenfeld found in Morss that the wiretapping investigation constituted no legislative impairment of the essential integrity of the executive (24 N. J. at 372) and surely there was no such legislative impairment in the enactment of N. J. S. A. 19 :34-62, 63. ,By providing an explicit measure of judicial supervision to guard against “attempts at a ‘whitewash’ of the charges” (Artaserse, J. in Ruvoldt v. Tumulty, 107 N. J. Super. 545, 555 (Law Div.), aff’d, 107 N. J. Super. 494 (App. Div. 1969)), the Legislature clearly advanced the public interest without in anywise impairing the integrity of the executive branch of government; nor did it in anywise impair the strength and independence of the prosecutor’s office which has historically been subjected to supervisory judicial controls. Thus, for example, R. 3:25-l precludes the nolle prosequi or dismissal of an indictment by a prosecutor without prior motion and judicial approval. See State v. Ashby, supra, 43 N. J. at 276; cf. R. 3:1-3; State v. Conyers, supra, 58 N. J. at 146-147. See also Davis, Discretionary Justice, A Preliminary Inquiry, supra at 213; Davis, Administrative Law Treatise (1970 Supp.) § 28.16 at 989-990. It would indeed disserve our democratic processes if misconceptions with respect to the proper meaning and scope of the doctrine of separation of powers were to result in retrogressive restrictions on this and comparable judicial controls which are so well-designed towards curbing governmental improprieties and excesses.

The judgment entered in the Appellate Division, insofar as it sustained the Law Division’s denial of the prosecutor’s motion to dismiss and its direction that the matter be submitted to the grand jury, is hereby:

Reversed.

The contrary view, suggested in cases suck as United States v. Cox, 342 F. 2d 167, 171 (5 Cir.), cert. denied sub nom. Cox v. Hauberg, 381 U. S. 935, 85 S. Ct. 1767, 14 L. Ed. 2d 700 (1965), kas been devastatingly attacked by Kenneth Culp Davis in Discretionary Justice, A Preliminary Inquiry (1969) 188 et seq. In commenting (at 210) on the Cox case Professor Davis had this to say:

One main reason that seems to actuate federal courts in holding that discretion of prosecutors may not be reviewed to protect against abuse has been stated by the Fifth Circuit in a 1965 opinion : “. . . it is as an officer of the executive department that he [the U. S. Attorney exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.” This reason is so clearly unsound as to be almost absurd. If separation of powers prevents review of discretion of executive officers, then more than a hundred Supreme Court decisions spread over a century and three-quarters will have to be found contrary to the Constitution! If courts could not interfere with abuse of discretion by executive officers, our fundamental institutions would be altogether different from what they are. If the statement just quoted from the Fifth Circuit were true, the courts would be powerless to interfere when executive officers, acting illegally, are about to execute an innocent person! See also Davis, Administrative Law Text (1972) § 28.06 at 523:

The conclusion seems overwhelming that courts should continue their gradual movement toward opening the judicial doors to review of prosecutors’ discretion. The reasons for such review are stronger than for review of other administrative discretion that is now traditionally reviewable.