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Morss v. Forbes

Decided: May 20, 1957.

H. RUSSELL MORSS, JR., UNION COUNTY PROSECUTOR, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
MALCOLM S. FORBES, DONAL C. FOX, FRANK W. SHERSHIN, DOMINICK A. CUNDARI, PAUL M. SALSBURG AND JOSEPH W. THURING, INDIVIDUALLY AND AS MEMBERS OF THE LEGISLATURE OF THE STATE OF NEW JERSEY AND AS MEMBERS OF THE "JOINT LEGISLATIVE COMMITTEE TO STUDY WIRETAPPING AND THE UNAUTHORIZED RECORDING OF SPEECH," DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS



On leave to appeal granted.

For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling and Jacobs. For modification (dissenting in part) -- Justice Weintraub. The opinion of the court was delivered by Wachenfeld, J. Jacobs, J. (concurring). Weintraub, J. (dissenting in part). Jacobs, J., concurring in result.

Wachenfeld

The plaintiff, Prosecutor for Union County, appeals by leave of the Appellate Division, granted pursuant to R.R. 2:2-3, from part of an interlocutory judgment rendered in the Superior Court, Chancery Division, on October 9, 1956. We granted certification on our own motion.

The defendants are members of the Legislature of the State of New Jersey and by Senate Concurrent Resolution No. 4 (1956) are designated and function as the "Joint Legislative Committee to Study Wiretapping and the Unauthorized Recording of Speech." The defendants hereafter are referred to as the "Committee."

During its study and investigation the Committee requested certain information from the plaintiff concerning his knowledge of wiretapping activities. On July 18, 1956 he appeared voluntarily before the Committee at a closed session and there disclosed that on three occasions he had obtained information by way of wiretaps on telephone lines of suspected violators of the criminal law. He contended his actions were not in violation of N.J.S. 2 A:146-1, which makes the willful and malicious interception of telephonic communications a misdemeanor.

While plaintiff voluntarily revealed the nature and scope of his own activities, he withheld all other information from the Committee regarding these transactions on the basis that as a matter of public policy he was obliged to guard against the disclosure of confidential communications and to protect the identity of informants. Plaintiff's interpretation of N.J.S. 2 A:146-1 was not concurred in by the Committee, which took the view that the law applied as stringently to him as to anyone else.

Subsequent to his initial appearance, plaintiff was requested by the Committee's counsel to appear at a public hearing in

Trenton on July 23, 1956 in order to give a formal statement defining his interpretation of N.J.S. 2 A:146-1. When plaintiff complied with this request, he was served with a subpoena, returnable on the following day, requiring him to testify and to produce certain office records relating to the information he had withheld at the closed session on July 18, 1956. In general, the subpoena demanded all evidence and writings relevant to the premises of the Committee's investigation, including the names and addresses of all persons who had performed, recommended, procured or assisted in wiretapping during plaintiff's term as prosecutor, whether outside agencies or members of his personal staff. By mutual consent, the return date of the subpoena was postponed from July 24, 1956 to July 27, 1956.

In the interim before he was compelled to appear, plaintiff instituted an action by way of verified complaint and order to show cause seeking injunctive relief and a declaratory judgment. The determination of this cause in the court below constitutes the foundation for the present appeal.

Plaintiff invoked the jurisdiction of the courts upon the representation of an insolvable dilemma which would place him in criminal jeopardy for the assertion of legally protected rights. He deemed himself faced with two alternatives: he could either appear before the Committee and divulge the information which it sought, or he could refuse to disclose the so-called law enforcement secrets and run the risk of violating R.S. 52:13-3, which he conceived to be unconstitutional.

R.S. 52:13-3 is part of the comprehensive scheme set forth in chapter 13 of Title 52 for the summoning of witnesses before legislative investigating committees and their punishment for contempt. Among other things, it provides:

"Any witness who refuses to answer any questions decided by the committee to be proper and pertinent shall be guilty of a misdemeanor. * * *"

Plaintiff maintained that the threat of criminal prosecution under a statute reasonably believed to be unconstitutional was sufficient cause to invoke the application of the Declaratory Judgments Act, N.J.S.A. 2 A:16-50 et seq. and also to entitle him to the injunctive relief which he prayed. He asked for an adjudication respecting the constitutionality of R.S. 52:13-3 and his rights to withhold the information demanded.

After hearing and consideration of memoranda, the Superior Court, Chancery Division, ruled only: (1) that it had jurisdiction of the cause; (2) that R.S. 52:13-3 was constitutional; and (3) that the plaintiff would have to appear before the Committee and to yield certain information and records relating to his wiretapping activities, subject to the conditions enumerated in the court's opinion. These conditions generally permitted the plaintiff to withhold any information relating to the identity of those persons who had actually performed or supervised the wiretap operations, with the exception of members of his staff.

Plaintiff appeals only from that portion of the trial judge's order holding R.S. 52:13-3 to be constitutional. His complaint raised a multitude of other questions which are not, however, presented by the record before us. Defendants, according to the terms of an order entered on October 24, 1956, were granted leave by the Appellate Division to cross-appeal from any part of the order of the Chancery Division which was adverse to them.

Before the Chancery Division, and in its brief on appeal, the Committee maintained the courts had no jurisdiction to adjudicate the constitutionality of R.S. 52:13-3 because the plaintiff had not yet appeared before the Committee nor been directed to respond to any specific questions. It also challenged the jurisdiction of the trial court to enjoin the Legislature. Defendants argued that although the lower court had expressly disclaimed any intention of passing upon its jurisdiction to interfere with a legislative proceeding, and while it admitted a court had no right to trespass against the legislative or executive departments of

government, it nevertheless accomplished just that by continuing temporary restraints upon a lawfully constituted and functioning legislative committee.

The plaintiff, undaunted by this claim, in turn insists he should prevail because R.S. 52:13-3 is unconstitutional upon the same principle, to wit, it contravenes the doctrine of separation of powers by arrogating to a legislative committee the function of determining whether a witness has committed a crime.

Although much could be written on the jurisdictional aspects of this proceeding, we are not, by reason of the status of the record, required to pass upon these questions since the defendants on oral argument before us withdrew their previous objections to our jurisdiction and joined in the petition that the constitutionality of R.S. 52:13-3 be decided.

We shall therefore adjudicate the validity of the last-cited statute, but this is by no means to be considered a precedent establishing a procedure whereby anyone who feels he might be "put upon" by the subpoena or questions of a legislative committee can turn to the courts for a declaratory judgment vindicating his surmise.

Plaintiff insists R.S. 52:13-3: (1) affords no standards by which a reasonably intelligent man can determine whether his refusal to answer will subject him to criminal sanctions and is therefore void for violation of the requirements of due process of law; (2) contravenes, as already stated, the doctrine of separation of powers in arrogating to a legislative committee the sole power to determine whether a witness has committed a crime; and (3) constitutes an improper delegation to a committee of a power to be exercised only by the Legislature as a whole. Particular reference is made to those portions of the statute specifying:

"* * * all witnesses sworn before any such committee shall answer truly all questions put to them which the committee shall decide to be proper and pertinent to the investigation or inquiry * * *.

Any witness who refuses to answer any questions decided by the committee to be proper and pertinent shall be guilty of a misdemeanor * * *."

Each of plaintiff's arguments is founded upon an interpretation of R.S. 52:13-3 with which we cannot agree. He submits that by its terms the statute entrusts the Committee with the sole responsibility and authority for deciding what questions are proper and pertinent and that the witness has no recourse from the Committee's conclusion. He theorizes that the subjective determination of the Committee is the sole criterion of propriety and pertinency and that upon a refusal to answer he would automatically be guilty of a misdemeanor. All this would occur, says plaintiff, without the opportunity for judicial review as to the relevancy of the question and without regard to any privilege on the part of the witness not to answer. It is said: "The only question for the court to determine, in a prosecution under R.S. 52:13-3 is the question of whether or not the witness answered the questions before the committee."

Plaintiff contrasts this situation with that prevailing under the federal statute, 2 U.S.C.A., § 192, where witnesses are afforded the protection of judicial review and have some criterion for determining in advance whether or not the question put to them is proper and pertinent. E.g., Sinclair v. United States, 279 U.S. 263, 49 S. Ct. 268, 73 L. Ed. 692 (1929).

The Committee, however, flatly asserts in its brief it has no intention of denying anyone the right to review. It says:

"There is nothing in the statute, either express or implied, denying anyone the right of judicial review of any committee's determinations. Nor should this court now place such an interpretation on this law."

Conceivably, the Committee could propound questions which are improper in substance or in form, but we cannot gratuitously assume this will occur. The procedure in this respect must ripen to the extent where specific issues are framed so that they can be intelligently presented and determined by an appropriate tribunal. No blanket adjudication in futuro of suppositious issues is warranted. McGrain v. Daugherty, 273 U.S. 135, 160, 175-176, 47 S. Ct. 319, 71 L. Ed. 580 (1927).

This proposition was aptly stated in Townsend v. United States, 68 App. D.C. 223, 95 F.2d 352, 361 (D.C. Cir.), certiorari denied 303 U.S. 664, 58 S. Ct. 830, 82 L. Ed. 1121 (1938), where the powers of a legislative committee in carrying out its function were discussed at length. The court said:

"A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress. McGrain v. Daugherty, 273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 50 A.L.R. 1. A judicial inquiry relates to a case, and the evidence to be admissible must be measured by the narrow limits of the pleadings. A legislative inquiry anticipates all possible cases which may arise thereunder and the evidence admissible must be responsive to the scope of the inquiry, which generally is very broad. Many a witness in a judicial inquiry has, no doubt, been embarrassed and irritated by questions which to him seemed incompetent, irrelevant, immaterial and impertinent. But that is not a matter for a witness finally to decide. Because a witness could not understand the purpose of cross-examination, he would not be justified in leaving a court room. The orderly processes of judicial determination do not permit the exercise of such discretion by a witness. The orderly processes of legislative inquiry require that the committee shall determine such questions for itself. Within the realm of legislative discretion, the exercise of good taste and good judgment in the examination of witnesses must be entrusted to those who have been vested with authority to conduct such investigations. Hearst v. Black, 66 App. D.C. 313, 87 F.2d 68. A witness may exercise his privilege of refusing to answer questions and submit to a court the correctness of his judgment in so doing, but in the event he is mistaken as to the law it is no defense, for he is bound rightly to construe the statute. Sinclair v. United States, supra, 279 U.S. 263, at page 299, 49 S. Ct. 268, 273, 73 L. Ed. 692. Beyond this, he must conform to the procedure of the committee and respond to its questions. McGrain v. Daugherty, supra, 273 U.S. 135, at pages 175, 176, 47 S. Ct. 319, 329, 71 L. Ed. 580, 50 A.L.R. 1. He cannot be heard to plead justification and, hence, lack of willfulness in defiantly leaving a hearing because he does not like the questions propounded to him -- remedy by objection and refusal to answer both being open to him."

We must assume the Committee's efforts are in good faith and that it will exercise, as said in the Townsend case, "good taste and good judgment" in the examination of the witnesses it interrogates during its inquiry.

The Legislature has the authority to investigate, and its powers in this respect are indeed broad. Normally, it has the power to obtain information on any subject relevant to the proper discharge of its legitimate functions. See Eggers v. Kenny, 15 N.J. 107 (1954); Quinn v. United States, 349 U.S. 155, 75 S. Ct. 668, 99 L. Ed. 964 (1955); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S. Ct. 452, 73 L. Ed. 867 (1929); Sinclair v. United States, supra; McGrain v. Daugherty, supra; 49 Am. Jur., States, Territories, and Dependencies, §§ 39 and 43. The necessity for the obtainment of such information is no longer open to debate and has been consistently and vigorously espoused.

Furthermore, it is elementary that a committee may be endowed with some portion of the investigatory power which the Legislature enjoys as a whole. See, e.g., In re Hague, 104 N.J. Eq. 31, 45 (Ch.), affirmed 104 N.J. Eq. 369 (E. & A. 1929); Tenney v. Brandhove, 341 U.S. 367, 377-378, 71 S. Ct. 783, 95 L. Ed. 1019 (1951); Barry v. United States ex rel. Cunningham, supra, 279 U.S., at page 613, 49 S. Ct., at page 455; Sinclair v. United States, supra, 279 U.S., at page 294, 49 S. Ct., at page 272; 49 Am. Jur., supra, at § 39. Cf. N.J. Constitution 1947, Art. IV, Sec. V, par. 2. Otherwise, the effective exercise of such power would be impossible and its benefits completely illusory. When a committee is authorized to conduct investigations, the creative resolution becomes the charter defining its authority. The committee must abide by the limitations thus placed upon its authority, and may not operate according to the mere whims and caprices of its members. 49 Am. Jur., supra, at § 42, states the principle as follows:

"The scope of the powers of a legislative committee and the matters which it may investigate are referable primarily to the act or resolution to which it owes its existence. Its powers are, generally speaking, as broad as the subject which it is directed to inquire into; when created and appointed for the purpose of securing information and data upon the need of legislation upon

a given subject, it may inquire into any subject and any matter relative to the needs of legislation on the subject matter, the kind of legislation required, and the scope of the legislation needed."

It is this resolution which supplies the referent enabling a court to determine whether an investigating committee has abused its powers by attempting to compel a witness to answer a question which is not proper or pertinent. United States v. Rumely, 345 U.S. 41, 73 S. Ct. 543, 97 L. Ed. 770 (1953); Sinclair v. United States, supra. The discretion of the committee is confined by the terms of the enactment which established it, and the witness can look to that act as a guide to making his personal decision as to whether or not he should refuse to answer a question.

It is true that such a committee enjoys very extensive authority to examine and investigate, since its "charter" is of necessity liberally construed. See, e.g., Townsend v. United States, supra; 49 Am. Jur., supra, at § 42. Moreover, as indicated by the Townsend quotation, it is essential to an efficient accomplishment of the legislative purpose that in the first instance the committee have the responsibility for determining whether a question is proper and pertinent and should be answered.

The procedure described in Townsend and sanctioned by other federal cases is identical with the rationale and purpose of R.S. 52:13-3. Our statute expressly states what the federal courts have decided is the import of 2 U.S.C.A., § 192; namely, that the committee has the initial obligation of making any determination of pertinency. Bart v. United States, 349 U.S. 219, 75 S. Ct. 712, 99 L. Ed. 1016 (1955). See Emspak v. United States, 349 U.S. 190, 75 S. Ct. 687, 99 L. Ed. 997 (1955); Quinn v. United States, supra. This is not to say that the failure or refusal of a witness to respond to a committee question automatically entails incarceration.

Aside from the presumption of constitutionality which attaches to every statute, 2 Sutherland, Statutory Construction, (3 d ed. 1943), § 4509, the judiciary has a duty, when confronted with alternative interpretations which

are equally plausible, to adopt the construction which avoids the constitutional issue and sustains the legislative enactment. Mr. Justice Frankfurter described this principle in United States v. Rumely, supra, 345 U.S., at page 45, 73 S. Ct., at page 545, where he said:

"Accordingly, the phrase 'lobbying activities' in the resolution must be given the meaning that may fairly be attributed to it, having special regard for the principle of constitutional adjudication which makes it decisive in the choice of fair alternatives that one construction may raise serious constitutional questions avoided by another. In a long series of decisions we have acted on this principle. In the words of Mr. Chief Justice Taft, '[i]t is our duty in the interpretation of federal statutes to reach a conclusion which will avoid serious doubt of their constitutionality.' Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 346, 48 S. Ct. 194, 198, 72 L. Ed. 303, [308]. Again, what Congress has written, we said through Mr. Chief Justice [then Mr. Justice] Stone, 'must be construed with an eye to possible constitutional limitations so as to avoid doubts as to its validity.' Lucas v. Alexander, 279 U.S. 573, 577, 49 S. Ct. 426, 428, 73 L. Ed. 851, [854], 61 A.L.R. 906. As phrased by Mr. Chief Justice Hughes, 'if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 296, 76 L. Ed. 598, [619], and cases cited."

There is nothing in R.S. 52:13-3 which expressly or impliedly precludes the right to full judicial review when a witness is charged with the commission of a misdemeanor for refusing to answer a question which a committee deemed proper and pertinent. It is common knowledge that an investigating committee usually, if not invariably, is represented by counsel who undertakes a good deal of the questioning. Quite conceivably, counsel, or one of the committee members, will ask questions which the witness believes exceed the scope of permissible inquiry or invade a privileged area, possibly resulting in a refusal to respond.

Under our interpretation of R.S. 52:13-3, the committee must then decide whether it considers the particular query to be proper and pertinent. This function cannot be left to the discretion of counsel or even one of the committee members, if more than one is sitting, because the others

may well disagree and think the question is improper. The statute states the committee itself is to make the determination as to propriety. If the committee decides the witness is right, that particular question or line of inquisition will of course present no issue. But if the committee decides the witness' refusal is unjustified, it may direct him to answer. If the witness remains adamant, then, and only then, the risk arises that he can be prosecuted for a misdemeanor. Bart v. United States, supra; Emspak v. United States, supra; Quinn v. United States, supra. Ultimately, the courts will have to decide whether the judgment of the witness or that of the committee was correct.

On many occasions the sense or spirit of a statute will prevail over the literal, logical, grammatical meaning of the words, if the latter is not in accordance with reason or the principal design of the statute. The most recent expression of the liberal judicial attitude which strives to avoid a narrow, pedantic construction in accordance with the empty principles of rhetoric alone may be found in Lane v. Holderman, 23 N.J. 304 (1957). See also DeFazio v. Haven Savings & Loan Ass'n, 22 N.J. 511, 518 (1956); In re Roche's Estate, 16 N.J. 579, 587 (1954).

R.S. 52:13-3 has remained substantially unchanged since 1895. L. 1895, c. 83, §§ 1 and 2, p. 162. It has been involved in litigation several times, and in no case did the reviewing court advert or refer to any unconstitutionality. In re Kelly, 123 N.J. Eq. 489 (Ch. 1938), affirmed McRell v. Kelly, 124 N.J. Eq. 350 (E. & A. 1938); In re Hague, 105 N.J. Eq. 134 (Ch. 1929), affirmed 9 N.J. Misc. 89 (E. & A. 1930); In re Hague, 104 N.J. Eq. 31 (Ch.), affirmed 104 N.J. Eq. 369 (E. & A. 1929); State v. Brewster, 89 N.J.L. 658 (E. & A. 1916). (Eggers v. Kenny, supra, overruled In re Kelly and the second Hague case, at 105 N.J. Eq. 134, with respect to the restrictions they had placed upon the scope of legislative investigations.) Research shows the common practice has been largely consistent with the interpretation we have given, and we are content to affirm the validity of the statute.

The prosecutor originally insisted that his authorization of wiretap activities did not constitute a violation of N.J.S. 2 A:146-1 since he was acting in the public interest to secure efficient enforcement of the law rather than in a willful and malicious manner.

N.J.S. 2 A:158-5 enjoins the county prosecutors to "use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws," and the plaintiff urges he was merely fulfilling the duties impressed upon him by the statute according to his honest judgment of his responsibilities for the protection of the public.

We do not consider his activities reflect adversely upon either his integrity or ability. Indeed, while we differ with him as to his interpretation of the law, we recognize his motivation was commendable. The practice of wiretapping by other law enforcement officials throughout the State was not uncommon, and a prosecutor might well be under public pressure to adopt methods which had been deemed successful elsewhere.

However, N.J.S. 2 A:146-1 is all-inclusive by its terms. It makes no exception for public prosecutors or any other official charged with law enforcement. Reliance upon N.J.S. 2 A:158-5, which directs the exercise of "lawful" diligence, is not justified.

Within reasonable limitations, the Legislature has the power and the right to designate the mere doing of an act as a crime, even in the absence of the mens rea which was a necessary prerequisite at common law. See State v. Labato, 7 N.J. 137 (1951); Halsted v. State, 41 N.J.L. 552 (E. & A. 1879); State v. Tracy, 29 N.J. Super. 145 (App. Div. 1953); 1 Wharton, Criminal Law (12 th ed. 1932), § 143. Where words clearly indicating the requirement of a criminal intent are omitted, the issue becomes one of statutory construction to ascertain the meaning of the legislative body. See State v. Kuehnle, 85 N.J.L. 220 (E. & A. 1913); Halsted v. State, supra; State v. Tracy, supra; 22 C.J.S., Criminal Law, § 30. Here, it would

seem that the element of general intent must be proved before a contravention of the wiretapping statute can be established. We should not, however, confuse intent with motive. Proof of motive is never essential to a conviction but may be evidential. 22 C.J.S., supra, at § 31(a); 1 Wharton, supra, at § 156. An accused can steal to prevent his family from starving or kill to rid the community of a menace, but the laudatory qualities of the design do not absolve him from the application of criminal sanctions. 1 Wharton, supra, at §§ 137, 155. If it were otherwise, the administration of criminal law would become chaotic, since the prosecution would be compelled to analyze the psyche of each defendant and to prove that, in fact, it was malignant.

The ordained inquiry is whether the act condemned was committed with full knowledge of the facts, in a conscious and purposeful manner, without legal justification or excuse. It must not be the product of inadvertence or negligence or any state of mind other than a free and untrammeled will. This is the definition of criminal intent embodied in the words "willfully and maliciously," as used in this statute. The accused must intend to act in the way proscribed by the statute, but it is immaterial that he does not know or believe his conduct violates the law.

Even positive belief that the act is lawful should not exempt the doer from criminal responsibility. Consciousness of unlawfulness is not essential. 1 Wharton, supra, at § 160. If ignorance were a good defense, the administration of the penal law would again depend upon the well-nigh impossible ascertainment of hazy and amorphous mental conditions and opaque logic. When, with a clear knowledge of all the facts, one deliberately and intentionally does an act in violation of a positive law, cognizant of its ...


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