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In re Zicarelli

Decided: January 20, 1970.


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.


Appellants refused to answer questions before the State Commission of Investigation (herein S.C.I.) and persisted in that refusal notwithstanding a grant of immunity. Upon the S.C.I.'s application to the Superior Court, each was ordered to be incarcerated until he answered. We certified their appeals before argument in the Appellate Division.


Appellants contend the statute creating the S.C.I. denies due process of law in violation of the Fourteenth Amendment because individuals summoned before the Commission are denied the protections accorded an accused by the Bill of Rights.*fn1 The argument rests upon the false premise that the role of the S.C.I. is to decide whether an individual has committed a crime and to publicize the verdict. That is not its mission.

For this reason, appellants' reliance upon Jenkins v. McKeithen, 395 U.S. 411, 89 S. Ct. 1843, 23 L. Ed. 2 d 404 (1969), is misplaced. That case involved a Louisiana statute which created a body called the Labor-Management Commission of Inquiry. The Commission consisted of nine members appointed by the Governor. The Commission could act only upon referral by the Governor when, in his opinion, there was substantial indication of "widespread or continuing violations of existing criminal laws" affecting labor-management relations. Upon such referral the Commission was to proceed by public hearing to ascertain the facts, and was required

to determine whether there was probable cause to believe such criminal violation had occurred. Such findings were to be sent to appropriate federal or state law enforcement officials, and although not evidential in any trial, the findings were to be made public and could include conclusions as to specific individuals.

In Jenkins the trial court dismissed the complaint on motion. Three members of the Court, in an opinion by Mr. Justice Marshall, thought there was enough to warrant a hearing upon the complaint and hence reversed the judgment; two members of the Court thought the statute was invalid on its face; and the remaining three voted to affirm the trial court's judgment upholding the statute.

Mr. Justice Marshall stressed that the Commission had no role whatever in the legislative process. He pointed to the Commission's power to make public findings with respect to individual guilt of crime and cited the allegations in the complaint that the power was so used "to brand them as criminals in public" (395 U.S. at 428, 89 S. Ct. at 1852, 23 L. Ed. 2 d at 420). He continued that "In the present context, where the Commission allegedly makes an actual finding that a specific individual is guilty of a crime, we think that due process requires the Commission to afford a person being investigated the right to confront and cross-examine the witnesses against him, subject only to traditional limitations on those rights," and as well the right to call witnesses, subject to reasonable restrictions. (395 U.S. at 429, 89 S. Ct. at 1852, 23 L. Ed. 2d at 421). Finally the opinion emphasized that it did not hold that appellant was entitled to declaratory or injunctive relief but only that he was entitled to a chance "to prove at trial that the Commission is designed to and does indeed act in the manner alleged in his complaint, and that its procedures fail to meet the requirements of due process." (395 U.S. at 431, 89 S. Ct. at 1854, 23 L. Ed. 2d at 422).

It should be stressed that both the plurality opinion and the dissenting opinion unreservedly reaffirmed Hannah v.

Larche, 363 U.S. 420, 80 S. Ct. 1502, 4 L. Ed. 2d 1307 (1960), which had rejected a similar attack upon the statute creating the Civil Rights Commission. Distinguishing Hannah, Mr. Justice Marshall in Jenkins said (395 U.S. at 426, 427, 89 S. Ct. 1851, 23 L. Ed. 2d at 419-420):

"The appellants in Hannah were persons subpoenaed to appear before the Civil Rights Commission in connection with complaints about deprivations of voting rights. They objected to the Civil Rights Commission's rules about nondisclosure of the complainants and about limitations on the right to confront and cross-examine witnesses. This Court ruled that the Commission's rules were consistent with the Due Process Clause of the Fifth Amendment. The Court noted that '"[d]ue process" is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. . . . Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.' 363 U.S., at 442, 80 S. Ct., at 1515, 4 L. Ed. 2d, at 1321.

In rejecting appellants' challenge to the Civil Rights Commission's procedures, the Court placed great emphasis on the investigatory function of the Commission:

'[I]ts function is purely investigative and fact-finding. It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual's legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative and executive action.' 363 U.S., at 441, 80 S. Ct., at 1514. [4 L. Ed. 2d, at 1320].

The Court noted that any adverse consequences to those being investigated, such as subjecting them to public opprobrium, were purely conjectural, and, in any case, were merely collateral and 'not * * * the result of any affirmative determinations made by the Commission * * *.' 363 U.S., at 443, 80 S. Ct., at 1515 [4 L. Ed. 2d, at 1322]."

The S.C.I. is in no sense an "accusatory" body within the meaning of Jenkins. Rather, in words which Jenkins repeated from Hannah, the purpose of the S.C.I. is "to find facts which may subsequently be used as the basis for legislative and executive action." This plainly appears from a review of the statute.

The S.C.I. consists of four members, two appointed by the Governor and one each by the President of the Senate and the Speaker of the General Assembly. N.J.S.A. 52:9M-1. Section 2 of the statute reads:

"The commission shall have the duty and power to conduct investigations in connection with:

a. The faithful execution and effective enforcement of the laws of the State, with particular reference but not limited to organized crime and racketeering;

b. The conduct of public officers and public employees, and of officers and employees of public corporations and authorities;

c. Any matter concerning the public peace, public safety and public justice."

Section 3 provides:

"At the direction of the Governor or by concurrent resolution of the Legislature the commission shall conduct investigations and otherwise assist in connection with:

a. The removal of public officers by the Governor;

b. The making of recommendations by the Governor to any other person or body, with respect to the removal of public officers;

c. The making of recommendations by the Governor to the Legislature with respect to changes in or additions to existing provisions of law required for the more effective enforcement of the law."

Section 4 requires the S.C.I. to investigate any department or State agency at the direction or request of the Legislature or the Governor or such department or agency. Upon the request of the Attorney General, a county prosecutor or any other law enforcement official, the S.C.I. shall cooperate with, advise and assist them in the performance of their official powers and duties. Section 5. The S.C.I. shall cooperate with federal officials in the investigation of violations of federal laws within the State, section 6, and may consult and exchange information with officers of other States, section 7, and whenever it shall appear to the Commission that there is cause for the prosecution for a crime, or for the removal of a public officer for misconduct, the Commission shall refer the evidence to the officials authorized

to conduct the prosecution or to remove the public officer. Section 8.

The legislative mission of the S.C.I., evident in section 3 quoted above, is emphasized by section 10 which reads:

"The commission shall make an annual report to the Governor and Legislature which shall include its recommendations. The commission shall make such further interim reports to the Governor and Legislature, or either thereof, as it shall deem advisable, or as shall be ...

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