For reversal on majority opinion -- Justices Francis, Proctor, Schettino and Haneman. For reversal on separate opinion -- Chief Justice Weintraub. Concurring in the result -- Justices Jacobs and Hall. The opinion of the court was delivered by Francis, J. Weintraub, C.J. (concurring). Jacobs and Hall, JJ., vote to reverse and remand but do not join in the court's opinion which they believe may adversely affect the public interest by unduly restricting presentments.
This appeal (which we certified on our own motion prior to argument in the Appellate Division) challenges the legal propriety of the action of the Superior Court Assignment Judge of Camden County, in refusing to expunge certain parts of a Grand Jury presentment.
In November 1959 the New Jersey State Police, at the direction of the Attorney General, conducted raids at 17 locations in the City of Camden and arrested a number of persons engaged in gambling activities. The information which stimulated the intervention of the State authorities was furnished to the Attorney General by petitioner, Alfred R. Pierce, the Mayor of the City, who at that time was also serving in the capacity of Director of Public Safety. He had been designated Director of Public Safety by his City Commission colleagues on May 19, 1959, under the Commission form of government existing in Camden. Immediately after the raids, Pierce requested a Grand Jury investigation into gambling activities in the city and their connection with the Police Department. The investigation was undertaken and out of it grew the document under attack.
On June 7, 1960 the Grand Jury handed up the presentment to the Assignment Judge. After examination, he ordered it filed as a public record and authorized its distribution to the Governor, Attorney General, Administrative Director of the Courts, members of the Legislature, municipal and County Judges of Camden County, and petitioner, as Mayor and Director of Public Safety of the City of Camden. The County Clerk recorded it as filed on June 7, 1960, at
11:03 A.M. On June 9, 1960 Pierce was relieved of his post as Director of Public Safety by his colleagues on the City Commission. According to the verified petition in this proceeding, he received a copy of the presentment in the mail on June 15, 1960.
The presentment, we were advised at the oral argument, was drawn by the Prosecutor after conferences with the Grand Jury. It criticized Pierce (by inescapable imputation) for failing to consult the County Prosecutor before enlisting the aid of the Attorney General in connection with the November 1959 raids. It pointed out that these raids produced "evidence * * * tending to show that a substantial number of City police might have been receiving various amounts from the gambling interests for the ostensible purpose of protecting these gambling activities." But it suggested also that if this evidence "had been fully investigated and developed before the demand was made [by Pierce] that this Grand Jury undertake its investigation," a "great deal more could have been learned and dealt with in a more positive fashion." This section of the document, which was entitled "Premature Investigation," expressed the view that the gambling activities could not have been carried on without the knowledge of the local police, but that the Grand Jury lacked legal proof to indict "those who might have given, as well as those who might have received, graft, bribes or favors to permit or tolerate the carrying-on of these gambling activities * * *."
In other sections of the presentment various recommendations were made with respect to (a) adoption of statutes granting immunity from prosecution in such cases to persons who hinder investigations by pleading the Fifth Amendment, (b) establishment of a requirement for the completion periodically of financial questionnaires by members of the police department, (c) administration of the police department, and (d) the proper use of search warrants. Included also were the statements that "We have returned all the indictments that, in our opinion, were fit and proper," and
"with this presentment we consider our investigation completed."
In the course of the report the Grand Jury censured Pierce by implication for certain conduct engaged in or allegedly engaged in by him before and during the investigation. On June 20, 1960 he served on the Prosecutor a notice, supported by verified petition, that he would apply to the Assignment Judge for the expurgation of three such censorious statements. The petition asserted that the censure was unwarranted, untrue and defamatory, and as to the assertion of untruthfulness specific facts were set forth. No answering affidavit or record was filed by the Prosecutor. The petition requested the court to examine the presentment, the minutes and record of the Grand Jury; to inquire into the truth of the statements in the presentment and "ascertain the true facts" as well as the justice of the presentment, and to expunge the parts thereof recited in the petition.
On the return day of the motion, counsel for Pierce moved to expunge the following three portions of the presentment:
"Information leading up to the raids was furnished to the Attorney General by the Director of Public Safety of the City [meaning Pierce]. Some of the raided premises, as well as the persons involved, and the illicit activities they had carried on had previously been reported to the Attorney General who informed the County Prosecutor thereof. The County Prosecutor, in turn, passed on this information to the Director of Public Safety and city police, with the request that action be taken.
In face of these facts this Grand Jury is at a complete loss to understand why the Director of Public Safety did not consult with the County Prosecutor concerning the proposed action prior to laying the matter before the Attorney General, but rather consulted with persons who were strangers to any agency connected with law enforcement." (Insertion supplied.)
"Suppression of Evidence.
Subsequent to the presentment of the indictment against the former Chief of Police, Gustav Koerner, the Director of Public Safety, for the first time, brought to the attention of this Grand Jury and
the County Prosecutor, certain evidence favoring the said Gustav Koerner. This evidence, had for a long time, been in the possession of the Director of Public Safety. No satisfactory explanation has been advanced why this evidence was suppressed from this Grand Jury and the County Prosecutor, notwithstanding the Director of Public Safety was aware that this Grand Jury was investigating the official conduct of the said Gustav Koerner as Chief of Police of the City of Camden."
"It further appears that prior to the State Police raids, the patrol division was comprised of uniformed and non-uniformed officers. These non-uniformed officers, or plain clothesmen, were detectives assigned to the patrol division and known as district detectives. These district detectives handled practically all investigations and complaints concerning gambling and vice. For practical purposes, they constituted a vice squad without such title. These men were soon well known to the gambling fraternity and proved an ineffectual means of combatting the gambling element. Although their record was shameful, they were allowed to continue in the same capacity."
The general basis for the motion was that the presentment, and particularly the parts specified, were improper, unwarranted, untruthful and defamatory. At the outset of the argument an effort was made on behalf of Pierce to introduce evidence in support of those grounds. The court refused to permit that course to be taken and required his counsel to proceed as if the problem presented were one of law alone. The result was that the lengthy attack on the presentment was a mixture of law and statements and counter-statements of fact by both parties without the slightest effort on the part of the court to follow the normal judicial pattern for resolving the controversy. The court did not call for and examine the Grand Jury minutes or permit Pierce and his counsel to examine those minutes as an aid in determining the truth of the various factual allegations made in the oral argument of the parties, or the truthfulness of the charges in the presentment. Nor was any consideration given to the basic problem of whether the three critical statements sought to be excised were proper matters for inclusion in a presentment.
At the conclusion of the argument the court quite obviously accepted the Prosecutor's contention that his sole duty was to examine the face of the presentment for "palpably untrue" statements of fact, or obvious partisan motive, and if such falsity or motive was not manifest within its four corners, the motion should be denied. The oral opinion summarily refusing the relief sought reveals that the judicial function was considered discharged by a study of the presentment to ascertain if it related to public affairs and to alleged non-indictable official misconduct associated therewith. In his judgment, such facts appearing, no study of the Grand Jury minutes was necessary or proper to determine whether the statements and censure were partisan emanations, or whether the testimony contained therein established the truth of the facts asserted; nor did he recognize any obligation to receive proof from petitioner as to falsity of the alleged assertions, no matter how incontrovertibly false the proffered proof would show them to be. That view almost reduces the judicial function to a ministerial act. Falsity obvious enough to be manifest on the face of a presentment would be an infrequent occurrence; partisan motivation might be somewhat more susceptible of demonstration because of the language used, the conclusions asserted and the nature of the censure imposed. The instances would be rare indeed, however, where the duty of the court in such a sensitive area could be properly discharged simply by looking at the paper and the words it contained.
In re Camden County Grand Jury, 10 N.J. 23 (1952), does not support such a narrow view of the trial court's function. No pronouncements were made in that case as to the procedure to be followed by an aggrieved person seeking the suppression in whole or in part of a presentment; nor did it appear that any testimony was offered before the Assignment Judge for the purpose of establishing falsity of statements contained therein. The opinion did point out, ...