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State v. Smith

Decided: June 28, 1968.


Giuliano, A.j.s.c.


This is a consolidated motion to dismiss 98 indictments returned by the 15th and 16th Grand Juries of the September 1966 term sitting during the May 1967 session.

On September 29, 1967 defendant John William Smith filed with the court a motion to dismiss two indictments returned against him by the Essex County grand jury. Each indictment charged him with assault and battery upon a police officer, contrary to the provisions of N.J.S. 2 A:90-4. Thereafter, approximately 94 other defendants filed similar motions to dismiss the indictments returned against them by an Essex County grand jury. All the aforesaid indictments involved defendants arrested during the civil disturbance which occurred in Newark, New Jersey, during the month of July 1967. Since all the motions in question involve common questions of law and fact, this court ordered that this matter be consolidated for purposes of argument, presentation and findings. A stipulation to this effect was signed by all defense attorneys and filed with the court on October 10, 1967.

In order that there would be no delay in the disposition of these indictments, the court ordered at the first hearing that all indictments returned against defendants would proceed to trial. Since the filing of this motion, the indictments returned against defendant John William Smith have been disposed of by trial. A jury returned a verdict of guilty on indictment 2678-66 and were in disagreement on indictment 2679-66. Of the remaining indictments, 71 were dismissed on motion of the Essex County Prosecutor, and most of the defendants in this group were charged with a lesser offense under the Disorderly Persons Act. In addition, 16 defendants were tried, convicted and sentenced, 6 were tried and found not guilty, and 1 failed to appear in court and a bench warrant was issued for his arrest. The remaining indictments have not been disposed of at this time.

This motion presents basically four issues concerning (1) the loyalty oath of grand and petit jurors; (2) the lack of a

transcript of the grand jury proceedings; (3) the conduct of the grand jury in deliberating and voting on the indictments in question, and (4) the composition and selection of grand and petit juries. Each issue is discussed in detail under its appropriate heading.


The grand jurors who indicted defendants were required to take an oath pursuant to N.J.S. 2 A:73-3. This oath provided in pertinent part as follows:

"* * * you do not believe in, advocate or advise the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in the government established in the United States or in this State; and that you are not a member of or affiliated with any organization, association, party, group or combination of persons, which so approves, advocates, or advises the use of such means * * *."

Petit jurors are required to take a similar oath as provided in N.J.S. 2 A:69-1.1

Defendants contend that this oath is violative of the Fifth and Fourteenth Amendments to the United States Constitution because it requires neither specific intent to subvert or active membership in subversive groups. Furthermore, they contend that the requirement of this oath causes an unconstitutional exclusion from jury service of those persons who believe in the unlawful overthrow of our government or persons who are inactive members of a subversive organization. Defendants have submitted other arguments in support of this contention, but this court finds them without merit in law and fact. In particular, defendants contend that the oath denies them the right to be indicted by a grand jury which is constituted in accordance with the Fourteenth Amendment to the Constitution of the United States. The "due process" clause does not require the states to adopt the grand jury system. Lem Woon v. State of Oregon, 229 U.S. 586, 33 S. Ct. 783, 57 L. Ed. 1340 (1912). Furthermore, a state may abolish grand juries without violating the Fourteenth Amendment. Hurtado v. People of State of

California, 110 U.S. 516, 4 S. Ct. 111, 292, 28 L. Ed. 232 (1883). A fortiori, a state has considerable latitude in the type of grand jury system it may establish.

In addition, defendants contend in their moving papers that the oath created "an effect of instilling in the minds and consciences of the grand jurors * * * a disregard of the Constitution of the United States." How this "effect" resulted was not explained to the court. Finally, defendants argue that the oath, coupled with the court's charge to the grand jury and certain alleged inflammatory statements by public officials, prejudiced them. As to this argument defendants failed to show how they were prejudiced and did not support this position with accurate authority. Therefore, these contentions were not considered by the court.

On oral argument of this matter counsel stipulated that no defendant is a member of the class of persons allegedly excluded by the oath, i.e., persons who believe in the unlawful overthrow of our government or persons who are inactive members of a subversive organization. In addition, there was no evidence presented to this court that any member of the grand jury which indicted defendants refused to take the required oath and was thereby excluded from jury service. These facts present the question of whether defendants have standing to challenge the constitutionality of the oaths. Defendants' position is that they have standing to challenge the oath because of its chilling effect on the First Amendment rights of free speech, press, assembly and belief. Thus, they contend they do not have to show prejudice because the oath results in an illegal discrimination and exclusion.

Under the present state of the law as espoused by the United States Supreme Court, a federal court has "never entertained a defendant's objection to exclusions from the jury except when he was a member of the excluded class." Fay v. People of State of New York, 332 U.S. 261, 287, 67 S. Ct. 1613, 1627, 91 L. Ed. 2043 (1947); Rawlins v. State of Georgia, 201 U.S. 638, 26 S. Ct. 560, 50 L. Ed. 899 (1906). The apparent rationale for this rule is that if a

defendant is a member of the excluded class, the danger of prejudice is great enough for a court to hold that the exclusion is unconstitutional without a showing of actual prejudice. However, if a defendant is not a member of the excluded group, the danger of prejudice is not great. Therefore, before the court will hold the exclusion unconstitutional as to a defendant, it must find that he was actually prejudiced thereby.

This doctrine of standing has been followed in several states. See State v. Lea, 228 La. 724, 84 So. 2 d 169, 170 (Sup. Ct. 1955); People v. White, 43 Cal. 2 d 740, 278 P. 2 d 9, 17 (Sup. Ct. 1954), certiorari denied 350 U.S. 875, 76 S. Ct. 120, 100 L. Ed. 774 (1956); Griffin v. State, 183 Ga. 775, 190 S.E. 2 (Sup. Ct. 1937); Haraway v. State, 203 Ark. 912, 159 S.W. 2 d 733 (Sup. Ct. 1942), certiorari denied 317 U.S. 648, 63 S. Ct. 42, 87 L. Ed. 521 (1942); State v. Koritz, 227 N.C. 552, 43 S.E. 2 d 77 (Sup Ct. 1947), certiorari denied 332 U.S. 768, 68 S. Ct. 80, 92 L. Ed. 354 (1947); State v. Jones, 5 Terry 372, 44 Del. 372, 57 A. 2 d 109, 113 (Del. O. & T. 1947); Commonwealth v. Duca, 312 Pa. 101, 165 A. 825 (Sup. Ct. 1933); State v. Clifton, 247 La. 495, 172 So. 2 d 657 (Sup. Ct. 1965). Likewise, this doctrine is the procedural law of New Jersey. State v. James, 96 N.J.L. 132, 144 (E. & A. 1921). See also State v. Lee, 74 N.J.L. 852 (E. & A. 1905), affirmed 207 U.S. 67, 28 S. Ct. 22, 52 L. Ed. 106 (1907). The James case involved a situation in which women were allegedly excluded from the jury panel by the jury commissioners. The Court of Errors and Appeals held that defendant could not raise the question that the exclusion of women from jury duty violated the Fourteenth Amendment to the United States Constitution because he was not a member of the alleged excluded class. Likewise, in the case at bar defendants cannot raise the question of exclusion because none of them is a member of the excluded class.

On the other hand, defendants contend they need not show actual prejudice by the application of the law or

that they are members of the allegedly excluded class, and rely on Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (1946), and Ballard v. United States, 329 U.S. 187, 67 S. Ct. 261, 91 L. Ed. 181 (1946). In both these decisions the United States Supreme Court acted in the exercise of its power of supervision over the administration of justice in the federal courts. The question of standing in a state court is to be determined by state law. In addition, defendants rely heavily on the case of State v. Madison, 240 Md. 265, 213 A. 2 d 880 (1965), wherein the Maryland Supreme Court held that the selection of a grand jury from persons who were required to show their belief in the existence of God was violative of the Federal Constitution. Although the defendant in Madison was not a member of the excluded class, i.e., he was a believer in a Supreme Being, the Maryland court maintained that he still had standing to challenge the aforesaid requirement for jury duty. This court finds that Madison on this procedural point is not binding in the present case and concludes that defendants herein are required to show prejudice before the oaths in question are declared invalid and unconstitutional.

Since defendants have failed to show prejudice and in view of the above-cited cases this court concludes that defendants do not have standing to challenge the constitutionality of N.J.S. 2 A:73-3 and N.J.S. 2 A:69-1.1.

Assuming, arguendo, that defendants do have standing to challenge those statutes, this court is still constrained to find them constitutional for the following reasons:

Loyalty oaths have long been the subject of litigation. Within the past few years this interest was renewed by the United States Supreme Court regarding loyalty oaths required of teachers. See Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2 d 629 (1967); Whitehill v. Elkins, 389 U.S. 54, 88 S. Ct. 184, 19 L. Ed. 2 d 228 (1967); Elfbrandt v. Russell, 384 U.S. 11, 86 S. Ct. 1238, 16 L. Ed. 2 d 321 (1966); Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316,

12 L. Ed. 2 d 377 (1964). Keyishian dealt with an oath almost identical to the oath required of grand and petit jurors in the case at bar. The United States Supreme Court held that the oath as applied to teachers was unconstitutionally vague and violative of the First Amendment to the United States Constitution. It is apparent that the court gave special consideration to the "sensitivity" of a teacher's position in the academic community. The court, through Mr. Justice Brennan, said:

"Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." (385 U.S., at p. 603, 87 S. Ct., at p. 683)

See also Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S. Ct. 1203, 1 L. Ed. 2 d 1311 (1957).

Therefore, this Court must consider whether jurors are also to be given this special consideration. In doing so the court must weigh the State's interest in having loyal jurors against First Amendment rights.

Juries, in particular grand juries, have always been considered an arm of the court; they perform a quasi -judicial function in our present judicial structure. In re Jeck, 26 N.J. Super. 514 (App. Div. 1953). As provided in R.R. 3:3-1 et seq., it is the specific function of the grand jury to find and return an indictment or presentment in open court to the assignment judge. In so doing the grand jury must accept the law as it is written; otherwise the criminal laws would be virtually unenforceable. Likewise, the petit jury must accept the law as it is charged to them by the trial judge; otherwise their findings would be inconsistent and chaotic. Therefore, in order for the jury system to function, jurors themselves must be loyal to the government and the laws which it promulgates.

When considering the above it becomes apparent that the real interest of the State is in its right to self-preservation.

For if the jury fails to function properly and condones criminal acts, anarchy and lawlessness are sure to result and the jury system itself would be destroyed. This court therefore finds that the State's interest of self-preservation necessitates a limitation on First Amendment freedoms in this particular area of our governmental structure. Limitations on First Amendment Freedoms have been deemed lawful and necessary in similar situations where the State's interest was declared supreme. See, for example, American Communications Ass'n v. Dowds, 339 U.S. 382, 70 S. Ct. 674, 94 L. Ed. 925 (1950); Konigsberg v. State Bar of California, 366 U.S. 36, 81 S. Ct. 997, 6 L. Ed. 2 d 105 (1961); In re Application of Marvin, 97 N.J. Super. 62 (App. Div. 1967). Therefore, ...

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