Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Kilkenny, P.J.A.D.
Petitioner mayor of Newark appeals from an order made by the assignment judge of Essex County, denying his application to expunge from a presentment returned by the Essex County grand jury all references therein to the mayor. He also appeals from the denial of his application to examine all the minutes of this grand jury, although he was given permission to examine fully all the minutes relating to him.
We have been advised by the mayor's attorney that he has received a copy of the mayor's testimony given on September 17, 1968 before the 15th Essex County grand jury of the 1967 term.
The mayor makes a fundamental challenge as to the propriety of a grand jury making any presentment of the kind herein. We find no merit in this contention. Our present 1947 State Constitution, Art. I, par. 8, expressly provides for the "presentment or indictment of a grand jury." The word "presentment" therein was construed by our Supreme Court to mean "presentments of public affairs as they had been known in New Jersey from earliest Colonial times." In re Camden County Grand Jury , 10 N.J. 23, 65 (1952).
Our Supreme Court has never doubted the power of a grand jury to make a presentment of matters of public concern unaccompanied by indictments. Its 1969 rules contain express provisions regarding presentments. R. 3:6-9. So did the prior rules. R.R. 3:3-9. The contents of presentments have been challenged on motions to expunge them or parts of them. But the Supreme Court decisions have never questioned the grand jury's function in this regard. For the history of presentments, see In re Camden County Grand Jury, supra. For some other cases recognizing the right of a grand jury to make presentments such as that involved herein, see In re Messano , 16 N.J. 142 (1954); In re Monmouth County Grand Jury , 24 N.J. 318 (1957); In re Presentment of Camden County Grand Jury , 34 N.J. 378 (1961); In re Presentment of Essex County Grand Jury , 46 N.J. 467 (1966).
Despite all this, we are asked by the mayor to declare it beyond the power of a grand jury to return a presentment of the kind involved herein and to declare unconstitutional the rule of our Supreme Court prescribing the procedure to be followed on the return of a presentment. Even were we free to do so -- which we are not -- we observe no valid meritorious basis for any such declaration of invalidity.
A grand jury, by means of a presentment, may call to the attention of the public conditions within the county which, in its view, ought to be remedied. All the
cases and the rule of court cited above attest thereto. It may not substitute a presentment for an indictment. If the condition complained of and the person or persons involved therein ought properly be the subject of an indictment, the grand jury's duty is to indict. In re Messano, supra , 16 N.J. , at 147; In re Monmouth County Grand Jury, supra , 24 N.J. , at 323. A grand jury, in a presentment, may censure a public official for some nonindictable conduct on his part. R.R. 3:3-9(c), now R. 3:6-9, expressly so provides.
R. 3:6-9 (1969) and its predecessor is simply an expression of the rule of law recognized by our Supreme Court in the several cases hereinbefore mentioned. It provides, among other things:
(a) Finding. A presentment may be made only upon the concurrence of 12 or more jurors. It may refer to public affairs or conditions, but it may censure a public official only where his association with the deprecated public affairs or conditions is intimately and inescapably a part of them.
The assignment judge shall examine the presentment. If it appears that a crime has been committed for which an indictment may be had, he must refer the presentment back to the grand jury with appropriate instructions. If a public official is censured, the proof must be conclusive that the condemned matter ...