On appeal from the Superior Court, Law Division, Monmouth County.
For reversal and remandment -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.
On May 2, 1956, the final day of its January 1956 term, the Grand Jury of Monmouth County returned two presentments which the assignment judge refused to file and subsequently ordered stricken. R.R. 3:3-9(c).
The 23 members of the grand jury appealed from this order, and the Appellate Division, on application, directed that the two presentments in issue be incorporated into the record on appeal. At the same time, it provided safeguards against unauthorized disclosure of the contents of the presentments pending final disposition of the litigation. We certified the cause on our own motion.
Although the moving parties are represented by counsel, no one appeared for the respondent and the court accordingly requested the Attorney-General to act and to file a brief.
One presentment concerned the sale and publication of obscene and indecent literature and the other suggested that municipal courts be invested by the Legislature with jurisdiction to hear and determine cases involving desertion and nonsupport.
Research, it is said, fails to disclose a single case of record in this jurisdiction or elsewhere in which the members of a grand jury have appealed from the action of a presiding judge in striking a presentment, and it is asserted that the sense of public duty which impels these movants to exercise their legal remedies parallels the significance of the important
public issues presented relative to the administration of law and preservation of order.
While the appellants admit it is wise to endow the assignment judge with supervisory powers in the interests of securing orderly processes of law and for the protection of innocent persons against the circulation of charges and presentments which cannot be answered through the due process of a trial, they nevertheless insist their communities do not desire "to live a hairbreadth above the criminal level" and that the grand jury, as an organ of public protest, should be encouraged to draw presentments as one of the most effective ways to express the "conscience of the community" and to create a wholesome public reaction.
They urge that the true function of the grand jury will be best served if the courts follow a policy of receiving, filing and publicizing presentments, especially where, as here, they concern solely general conditions in the community which presumably require remedial treatment.
Although the assignment judge at the formation of the grand jury had not charged them upon the subject of salacious publications, complaints were received from a citizens' group engaged in an effort to reduce or eliminate the distribution of obscene literature. Reference was made to the widespread retailing of pornographic magazines and other such publications within Monmouth County. Magazines which had been purchased at newsstands and retail stores within the county were submitted to the grand jury by the prosecutor, and representatives of three distributing companies in Monmouth County and a number of dealers testified before the panel. Witnesses from the citizens' group, who were militant in their objections to the distribution and sale of this kind of literature, were heard. The grand jury found the publications were "questionable in nature and of a character a majority of the jury would not wish to have in their homes."
The second presentment recommended legislation to vest jurisdiction in the municipal courts over desertion and nonsupport actions. It ...