[21 NJSuper Page 185] Walter G. Winne, Prosecutor of Bergen County, was indicted by a Special Grand Jury of that county in an indictment purporting to charge him with misconduct in office, in that he was criminally nonfeasant in the performance of the duties of his office. By an appropriate motion to dismiss, the defendant challenges the sufficiency and
validity of such indictment. Several grounds are advanced in support of the motion, some of which seem of such novel impression in our State, at least with regard to the office of prosecutor, and hence of such public import, as to invite some brief attention to the interesting, if not technically relevant, setting in which the indictment was returned.
The defendant has been in office since April 1944 as Prosecutor of the Pleas, as this constitutional office was designated in our 1844 Constitution, and, since the adoption of our present constitution, as County Prosecutor. These constitutions did not define the duties of such prosecuting attorneys, but the statutes have something to say about them, although no elaborate, all-inclusive statutory pattern of mandatory or ministerial duties is set out. The statute which prescribed duties in which the indictment here alleges defendant was derelict (R.S. 2:182-5, now N.J.S. 2 A:158-5) provided:
"Each prosecutor shall be vested with the same powers and be subject to the same penalties, within his county, as the attorney general shall by law be vested with or subject to, and he shall use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws." (Italics ours.)
During the incumbency of this defendant in office, great public interest was aroused by disclosures of the growth of unlawful gambling on the American scene in general, and its causal relationship with official corruption, particularly among enforcement officers charged by law with its suppression. From a tolerance reminiscent of the sterilizing and cynical double standard of the Prohibition era, the public belatedly realized that it had arrived at a crossroads of decision with the modern colossus of unlawful gambling, at least that ubiquitously referred to as "professional" gambling. Authoritative recognition was given the now obvious fact that the profits of such gambling were the sinews of hoodlum empires loosely constituting a very super-government of strangling influence, and that the "creeping paralysis of law enforcement which results from a failure to enforce the gambling
laws spreads to other types of crimes and leads to a general breakdown in law enforcement."*fn1 In company with certain other American communities, Bergen County attracted in the press and otherwise*fn1 an attention born of the apparently well-founded suspicion that gambling flourished there, and that its laggard suppression was due to official connivance and corruption. On October 14, 1950, the Attorney General of New Jersey formally commenced an investigation into such suspected gambling and official misconduct in such county and designated a Deputy Attorney General to function therein for that purpose. On December 1, 1950, the Bergen County Board of Freeholders, by resolution, requested the Attorney General to supersede defendant as Prosecutor, and that was done by virtue of the authority of the statute. L. 1944, c. 20; R.S. 52:17 A -4(f). A Grand Jury additional to the regular Grand Jury was empaneled on January 3, 1951 and by various extensions functioned until its discharge on May 7, 1952. During the official life of that Grand Jury, it returned some 201 indictments concerning a multitude of crimes of gambling and official misconduct, and the record indicates that more than half of these have thus far eventuated in pleas of guilty or convictions after trial. On November 28, 1951, that Grand Jury returned the instant indictment.
This indictment purports to charge derelictions of duty amounting to what would have been, at the common law, acts of criminal nonfeasance in public office, punishable as misdemeanors by the force of our statute absorbing offenses of an indictable nature at common law, which were not specifically delineated in the Crimes Act.*fn2
The first sixteen counts of the indictment are not unlike in basic respects, and will be described first. After sufficiently categorizing defendant as a Prosecutor and a public officer during the times relevant to the offenses charged, the indictment first charges the nature of his material public duties, in language somewhat more broad but, I think, of fair import, based upon the statute above mentioned.*fn3
Next, the indictment particularizes this public duty in relation to the preservation of the public peace and good order in Bergen County in general, and, in particular, to the suppression of disorderly houses functioning as the site of illegal gambling, and of such unlawful gambling itself, to the seizure and confiscation of the furniture and implements used therein, and for the enforcement of the laws of this State relating to gambling, the draftsman keying his description of the general gambling offenses, on which the public duty of suppression, arrest and the like would be operative, to the description of such offenses in the statutes. R.S. 2:135-1, et seq. , now N.J.S. 2 A:112-1, et seq.
The succeeding paragraph charges that defendant had under his direction in his public office the necessary assistant prosecutors, detectives and investigators to put within his means the power to carry out the public duties of enforcement so enjoined upon him.
Up to this point, while a world of dispute may exist as to the implications of the legal conclusions and factual observations expressed as to defendant's duties, his powers and his available means to fulfill the same, I think no purpose would be served by repeating the exact wordage of these allegations. This is particularly so since they are brought to bear again in integral reference to the succeeding more specific charging
parts of the indictment. I do not mean to discount the importance of these allegations, which are common to all sixteen counts referred to, and which in their nature are crucial in principle, as distinguished from their mere precise phraseology.
Going to the specific nonfeasance charged in this portion of the indictment (set forth in full because essentially common to such sixteen counts)*fn4, it is charged that at certain times
and at a designated address and place in Bergen County, there were kept and maintained gambling and betting houses wherein certain forms of unlawful gambling were carried on, and the furniture and implements used therein stored and possessed, all in violation of law. The significant charge is then made in unmistakable language that the defendant Prosecutor then and there well knew that these violations were going on. The culprit or culprits participating in or responsible for these violations are not identified.
Defendant's departure from duty is set out as follows: That despite such knowledge, and disregarding the duties so enjoined upon him by law, he continuously, unlawfully and willfully did neglect and omit to perform such duties and to use and exercise all lawful and diligent means within his power as Prosecutor for the detection, arrest, indictment and conviction of the person or persons maintaining such resorts for unlawful gambling and responsible for the gambling violations referred to. While defendant is charged with knowledge of these alleged gambling operations, it is again noticed that he is not claimed to have known the identity of the persons responsible therefor.
The succeeding fifteen counts charge the same fabric of alleged nonfeasance of duty with respect, however, to alleged gambling houses and violations maintained and committed at other times and places, all of course within his territorial jurisdiction as Prosecutor of Bergen County. In none of these counts is there any reference to the identity of the alleged offenders against the law.
The indictment words mentioned, i.e. , "continuously, unlawfully and wilfully," have been underlined because of the State's contention, as will be mentioned hereafter, that these words, fairly construed in the light of defendant's scienter , supplied the element of corrupt motive which the defendant maintains is a sine qua non of a valid charge of criminal nonfeasance of discretionary duty on the part of a quasi-judicial officer. Concededly, there is no expressed charge here, that defendant had any corrupt motive in the alleged
nonfeasant conduct, and the crucial nature of this assertedly unprecedented lack will be discussed later.
Now as to the remaining three counts of this indictment, while they contain charges of shocking moral implications, their legal insufficiency is so apparent that their mere analysis suffices to condemn them in law.
These counts contain the same substantial averments as to the defendant's duties and powers which are prefatory to the specific instances of alleged nonfeasance referred to in the earlier counts of the indictment. Count 17, however, goes on to allege the nonfeasance, on a specific date, as follows:
That defendant, as Prosecutor of Bergen County, "did receive a complaint charging that one Henry Wysock, who was then and there a member of the Rutherford Police Department in the said County of Bergen, was a corrupt public official, so called, in violation of the laws of this State."
The count further charges that defendant knew Wysock; but that disregarding his duties, he continuously, etc., failed to use all proper, etc., means for the detection, arrest, indictment and conviction of said Wysock, and suffered and permitted said Wysock to continue in public office.*fn5
This charge and similar ones contained in Counts 18 and 19, with respect to two other local police officials, are meaningless in law. Without discussing in detail the extent to which the underlying substantive offense must be particularized in order to validate a charge of prosecutive nonfeasance in relation thereto (State v. McFeeley , 136 N.J.L. 102 [ Sup. Ct. 1947]), it is self-evident that no basic crime is charged by the epithet "a corrupt public official, so called, in violation of the law of this State." There have been instances in which our laws sought to punish a person by reason of a status , such as the legislative characterization of a "gangster" as an enemy of the State, the defining thereof and the fixing of penalty therefor (R.S. 2:136-1, et seq.), but this statute was constitutionally abortive. Lanzetta v. State , 306 U.S. 451, 59 S. Ct. 618, 621, 83 L. Ed. 888, 59 S. Ct. 618 (U.S. Sup. Ct. 1939); In re Rose , 122 N.J.L. 507 (Sup. Ct. 1939); In re Connellan , 123 N.J.L. 229 (Sup. Ct. 1939). Of this statute the United States Supreme Court said "The challenged provision condemns no act or omission; the terms it employs to indicate what it purports to denounce are so vague, indefinite and uncertain that it must be condemned as repugnant to the due process clause of the Fourteenth Amendment." Lanzetta v. State, supra , [306 U.S. 451, 59 S. Ct. 621].
These three counts of the instant indictment plainly predicate the whole of the defendant's obligations upon his knowledge of the status of the particular policeman as being a "corrupt public official, so called" and do not recite things [21 NJSuper Page 193] done or omitted by such officer bringing about such status. I am not aware that the status of being a "corrupt public official, so called" is a crime which ought to have invoked the prosecutive duties of the defendant, although there are a multitude of crimes involving official corruption, the committing of which would be punishable and would certainly justify the use of that epithet. A police officer who accepted bribes or committed other offenses of official corruption could be apprehended, tried, convicted and sentenced for such crimes, and have completed his sentences, and he would still remain to the end of his days a "corrupt public official, so called." Such an officer could no longer be prosecuted for such offenses and yet these counts charge defendant with criminal nonfeasance in not taking steps to bring about such prosecution. Or the Grand Jury could have believed that a police officer who met socially with gamblers or other criminals was a "corrupt public official, so called," or might have predicated this charge on many other circumstances, none of which would have amounted to criminal activity of any kind. Or, especially in view of the charge that defendant "then and there unlawfully did suffer and permit the said Henry Wysock to continue in public office," the Grand Jury might merely be charging here that the defendant Prosecutor failed to use his community influence to accomplish the policeman's ouster from office, regardless of his provable or punishable implication in any specific crime of official corruption. Such an ouster, of course, would be no part of the duty of defendant as a Prosecutor. In other words, these counts, although charging the respective policemen with being "corrupt public official(s), so called" to the knowledge of defendant, nowhere charge such officers with the committing of specific crimes of official corruption. Even the most zealous of prosecutors could not prosecute a person for being a "robber" or a "prostitute," but for committing crimes of robbery or prostitution, as the case may be. The most that can be said of these counts in their basic parts is that they are denunciations of conditions which existed, comparable to the murmurs
of an oppressed householder that his grocer or his tax assessor is a "robber," and however sympathetically these protests may be viewed, they are equally meaningless in fact, in intent and in law.
Judged from every aspect, the charges in these three counts do not even approach the allegation of the committing of crimes which should have brought into action the statutory duties of defendant, the nonperformance of which would justify a charge of nonfeasance. Indeed, it is difficult to imagine charges of less certainty or legal sufficiency than these, and reasonable certainty is a prerequisite to the validity of an indictment. State v. DeVita , 6 N.J. Super. 344 (App. Div. 1950). Consequently, I determine preliminarily that these counts must be dismissed, even before proceeding to the more fundamental questions affecting the validity of the first sixteen counts of the indictment.
THE GROUNDS OF THE MOTION.
In broad outline, the many grounds advanced to challenge the indictment may be expressed in the following categories:
1. The crime of nonfeasance as it relates to a prosecutor. -- On this issue, which in my view is the most fundamental question presented here, the proposition is urged that a prosecutor is a quasi-judicial officer; that his duties and obligations with respect to the prosecution of specific offenses are discretionary in nature; that his nonperformance of the prosecutive function, even as outlined in the statute (R.S. 2:182-5, supra), however deliberate, may, in conception of law, be equally responsive to the honest use of such discretion as to any putative wrongness of purpose; that included in this area of the prosecutive function is the decision as to whether there is probable cause to believe that a crime has been committed, and as to when, where, how, or under what circumstances, if at all, the prosecutive steps to punish the same are to be pursued. Hence it is insisted that the nonperformance of duty with respect to these matters subject to a
quasi-judicial discretion, to amount to a criminally punishable nonfeasance, must be attributed to a corrupt or evil motive. On this issue, two points should be noticed here: -- first, it is insisted that the instant indictment is one of first impression in our State, in that it condemns the nonperformance of the quasi-judicial and discretionary duty of a prosecutor, without ascribing same to a corrupt or evil motive; secondly, there is distinguished from the instant question that type of nonfeasance which would justify impeachment, removal or being superseded in office.
2. Nonfeasance of a prosecutor as relates to police duties. -- In like vein, the defense seeks to rebut the suggestion of the indictment that the statutory enjoinder to use all reasonable and lawful diligence for the "detection" and "arrest" places upon the prosecutor, primarily vested, as was the Attorney General at common law with the lawyer's function of prosecution before grand jury and court, the added investigative and police duty of apprehension and arrest of offenders against the laws. The basis of this claim is the oft-repeated theme that initial enforcement of law rests on the local level with police and other peace officers, and that while the prosecutor shares such powers, his use of them in specific instances is discretionary; and that for a willful, even a wrong use of that discretion he is not responsible criminally, unless corrupt in motive.
3. The insufficiency and uncertainty in fact as to the nonfeasance charged. -- Passing from its criticism of these fundamental concepts of the indictment, to a discussion of the basic content thereof, the defense next takes issue with the breadth and generality of the allegations of the duty itself and the lapse of performance therein. It contends that the mere general conformance of the charging language to the statutory words phrasing the duty is uninformative as tested by the standards of information required of an indictment for crime.
4. Failure of particularity in alleging the crimes basic to the nonfeasance. -- By this point, the defense asserts that
before there can be invoked the public duties in which the defendant is claimed to have been derelict, there must have been the commission of crime and participation of offenders therein which would call for the performance of duties leading to their detection, arrest, indictment and conviction; that to validate the charge of nonfeasance in relation thereto, such crimes should be delineated with sufficient certainty as to enable a determination on the face of the indictment that the duty basic to the nonfeasance has in fact arisen. It urges that the indictment does not meet these standards, but the State rejoins that the basic crimes have been alleged with enough particularity to apprise persons indicted for those misdemeanors of the offenses they would be called upon to meet, and that such particularity is likewise sufficient in an indictment charging official misconduct in not prosecuting such offenses. State v. McFeeley, supra.
5. That the indictment is duplicitous and prejudicially misjoins nineteen unconnected offenses. -- The State contends again, in reliance on State v. McFeeley, supra , that "an indictment based upon the accusation of official misconduct in office is not invalidated by the allegation of divers acts, committed on different days, which differ in their nature and which constitute distinct offenses against the law, so long as they are cognate to the charge of official misconduct."
THE PROSECUTOR AS A QUASI-JUDICIAL OFFICER
The office of prosecuting attorney of the county by whatever name it is known, such as District Attorney, Prosecutor of the Pleas, State's Attorney, or the like, is a public office, solely the creature of the constitutions or laws of the various states. In this State it was and is a constitutional office. 1844 Const., Art. VII, Sec. II, par. 3; 1947 Const., Art. VII, Sec. II, par. 1. It is said generally that this office is "carved" out of that of the Attorney General of the State and made an independent office having control of the criminal business of the State arising within such county. 42 Am. Jur., "Prosecuting Attorneys," Sec. 2; 27 C.J.S., "District
and Prosecuting Attorneys," Sec. 1; 2 Lincoln's Constitutional History of New York , 529; Spielman Motor Sales Co. v. Dodge , 295 U.S. 89, 55 S. Ct. 678, 79 L. Ed. 1322, 55 S. Ct. 678 (U.S. Sup. Ct. 1934); Com. v. Ragone , 317 Pa. 113, 176 A. 454 (Sup. Ct. Pa. 1935). And such was the derivation ...