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United States v. Elias

August 8, 1972


McLaughlin, Van Dusen and Hunter, Circuit Judges.

Author: Van Dusen


VAN DUSEN, Circuit Judge.

This appeal is now before this court as a result of the May 30, 1972, judgment of the Supreme Court of the United States, 406 U.S. 952, 92 S. Ct. 2056, 32 L. Ed. 2d 341, that this court's judgment of September 2, 1971,*fn1 be reversed and that this case be remanded to this court, citing Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972).

Since the above judgment disposes of relator's contention that the New Jersey order finding him in contempt and remanding him to custody until such time as he answered the questions asked of him pursuant to N.J.Stat.Ann. ยง 52:9M-1 ff. (1970), violated the Fifth Amendment privilege against self-incrimination, there is only one remaining contention of relator which requires consideration, namely, that the statute creating the New Jersey State Commission of Investigation, both on its face and as applied to relator,*fn2 violates the due process clause of the Fourteenth Amendment for failure to provide minimal due process safeguards for witnesses appearing before the Commission. The following practices and procedures of the Commission form the basis of relator's challenge. The Commission is to refer evidence of crime and misconduct of public officials to the proper prosecutorial authorities,*fn3 and to cooperate with federal officials in the investigation of violations of federal laws within the state.*fn4 The Commission is to keep the public informed as to the operations of organized crime and problems of criminal law enforcement in the state, as well as to its "other activities," "by such means and to such extent as it shall deem appropriate."*fn5 Witnesses summoned to testify before the Commission have the right to be accompanied by counsel, who shall be permitted to advise the witness of his rights, but this advisorial right is "subject to reasonable limitations to prevent obstruction of or interference with the orderly conduct of the hearing."*fn6 At public hearings, counsel for a witness may submit proposed questions to be asked of the witness relevant to the matters upon which the witness has been questioned, but the Commission need ask the witness only "such of the questions as it may deem appropriate to its inquiry."*fn7 A witness has no right to cross-examine other witnesses; and he has no right to call witnesses, although he may at the conclusion of his examination file a sworn statement relative to his testimony for incorporation into the record.*fn8

In Hannah v. Larche, 363 U.S. 420, 80 S. Ct. 1502, 4 L. Ed. 2d 1307 (1960), the Supreme Court held that persons whose conduct is under investigation by the United States Commission on Civil Rights, a purely investigative and fact-finding governmental agency, which does not adjudicate, are not entitled, by virtue of the due process clause, to know the specific charges that are being investigated or the identity of the complainants, or to have the right to cross-examine those complainants and other witnesses. The Court reasoned that due process did not require rights such as apprisal, confrontation and cross-examination in the proceedings of the Civil Rights Commission because of the purely investigative nature of that Commission's proceedings, the burden that such rights would place on those proceedings, and the traditional procedure of investigating agencies in general. In Jenkins v. McKeithen, 395 U.S. 411, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969), which presented a challenge to the Louisiana Labor-Management Commission of Inquiry, the Court reaffirmed its decision in Hannah, and elaborated further on the distinction between investigative agencies and adjudicatory or accusatory agencies. The thrust of these decisions is that the requirements of due process vary with the type of proceeding involved. Fewer procedural safeguards are required by the due process clause in hearings before purely investigative agencies or agencies conducting purely investigative hearings. But when an agency is adjudicatory or accusatory in the sense that it is used to find named individuals guilty of crimes or to make similar determinations finally and directly affecting substantial personal interests, the due process clause requires the full panoply of procedural safeguards traditionally required in adjudicatory proceedings.*fn9 Hannah and Jenkins require us initially to determine the nature and function of the New Jersey State Commission of Investigation, and then to decide whether, in light of the nature and function of the Commission, the procedures complained of violate the due process clause of the Fourteenth Amendment.

The New Jersey statute confers on the Commission 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.*fn10

At the direction of the Governor or by concurrent resolution of the legislature, the Commission has the duty to conduct investigations or 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 ...

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