Goldmann, Halpern and Fritz. The opinion of the court was delivered by Goldmann, P.J.A.D.
Sister Margaret Murtha appeals from a Law Division order holding her in contempt for violation of an order directing that she testify before a special Hudson County grand jury, and confining her to the county jail until she had purged herself by answering the questions posed. The trial judge having denied bail, we released Sister Margaret in the custody of her attorneys and scheduled the appeal for early argument.
On March 4, 1971 Sister Margaret appeared pursuant to subpoena before the special grand jury investigating an alleged homicide that had taken place about midnight of February 26/27, 1970. After giving her name, and her address as St. Boniface Convent, Jersey City, she affirmatively answered a question as to whether she was at the convent on February 27, 1970 when Sister Francesca awakened her at 1 A.M. to speak to a Louis Cevetello. Having stated that she had a conversation with him at that time, she was shown a statement signed but not sworn to by her at police headquarters at 3:05 of the morning in question. She admitted she had read the statement before signing it, but
when asked if it reflected, in substance, what she had told the police prior to signing, she refused to answer, claiming the priest-penitent privilege.
Sister Margaret was then asked a series of questions which she refused to answer on the basis of the same privilege: whether, after meeting with Cevetello, she had occasion to leave the convent with him and Sister Francesca; whether they drove to the area of Cole Street and 7th and 8th Streets, Jersey City; whether she had occasion to see a man lying there with his stomach moving up and down; whether the three of them then drove to the Second Precinct police station; whether, when Cevetello met her at the convent, he told her he wanted to go to the police station and tell what had happened; whether he at that time told her he had been drinking with a man known as "Happy" and had subsequently hit him, and that he appeared to be badly hurt and was lying in Cole Street between 7th and 8th Streets; whether she had gone to the Second Precinct at 1:30 A.M. and told Desk Lieutenant Byrne that Cevetello had been in a fight with a man and had come to her at the convent, that the man was still lying in the street and she did not know if he was alive, but that his stomach was moving up and down.
Upon her refusal to answer before the grand jury, Sister Margaret was brought before Assignment Judge Larner for a hearing on her claim of privilege. The grand jury proceedings, outlined above, were read into the record. Sister Margaret was permitted to testify in order to establish the facts upon which she based her claim of the priest-penitent privilege. She said she was a member of the Dominican Sisters of Caldwell, primarily a teaching order. Her four-year training period to become a nun included instruction in the religious life as well as in secular courses to prepare her for teaching. Cevetello, a Catholic youth of 12 or 13 when she first met him in 1966, attended her social studies classes. From the beginning he would see her at the convent and at school to discuss family, social and moral problems, school problems and, on occasion, religious problems. Over
a period of five years he talked with her at least once a month, and sometimes as frequently as once a week.
On cross-examination Sister Margaret, in answer to the trial judge's inquiry, admitted that she did not conduct any type of religious services in the school, nor did she "carry on any of the priest[ly] religious functions, such as confession or anything else which is normally done by a priest." Nonetheless, she insisted that her role as teacher was secondary to her religious life: she viewed herself as "primarily a religious person."
After considering the testimony, the arguments of counsel and the briefs submitted, Judge Larner found that Sister Margaret could not assert the priest-penitent privilege under N.J.S.A. 2A:84A-23 (Evidence Rule 29). Privileges, he said, must be strictly construed, citing State v. Briley , 53 N.J. 498 (1969). He found that Sister Margaret was basically a teacher; her contacts wtih Cevetello involved not only the classroom teaching, but "the extension of the true functions of a good teacher, namely, acting by way of an advisor to the pupil, not only in connection with the formal subjects being taught but in connection with all problems that the boy may have had * * *." The fact that Sister Margaret had a religious training and background, and that she taught in a religious school, did not in the judge's opinion change her status with respect to her relationship with young Cevetello. Further, she did not perform the normal functions of a priest, did not conduct religious services, and had no powers or functions insofar as the Catholic Church was concerned. Judge Larner also found that what Cevetello told Sister Margaret on the night in question was not communicated to her in her professional character.
An order directing Sister Margaret to answer the questions put to her before the special grand jury was signed on March 9, 1971. This court, as well as the Supreme Court, denied her applications for leave to appeal. It appears that ...