Carton, Mintz and Seidman. The opinion of the court was delivered by Carton, P.J.A.D.
Louis Anthony Manna appeals from orders denying his motion to suppress a subpoena directing him to appear before the State Commission of Investigation (S.C.I.), incarcerating him "until such time as he purges himself of contempt by proceeding as ordered," and denying his motion to terminate S.C.I. proceedings against him.
Manna was served with a subpoena on April 13, 1972 to appear before an executive hearing of the State Commission of Investigation on April 19, 1972. The subject of the investigation was:
Meanwhile, Manna moved to suppress the subpoena. Judge Larner denied the motion but ordered that a statement of the geographical area or areas which are the subject of investigation be served upon Manna prior to his appearance. The Commission apparently specified a certain county or counties.
On July 19, after Manna again refused to testify, the S.C.I. petition that a warrant issue for Manna's arrest, directing that he be brought before the court to answer charges of contempt. Judge Lenox ordered that Manna be committed until he purged himself as already indicated.
Manna's motion of July 18, 1972 for determination of all proceedings against him on federal and state constitutional grounds was heard and denied by Judge Larner on September 8, 1972. Bail was also refused. Judge Larner stated:
In this case, there is no issue of innocence or guilt. There is no accusation. I find a blatant refusal of the defendant to comply with the Court orders. Without any justification. And therefore, I feel that any appeal taken would merely give him what he's looking for, the freedom and refusal to testify. This, to my mind, thwarts and frustrates the entire purpose of this order, incarcerating him at this time.
Manna has also applied for leave to appeal from the refusal to grant bail. The three appeals have been consolidated. Admission to bail was also denied.
The crucial issue -- whether a witness can be incarcerated indefinitely for refusing to testify before the S.C.I. as an investigatory body when he has been granted testimonial immunity -- has been definitively resolved by our courts in In re Zicarelli , 55 N.J. 249 (1970), aff'd 406 U.S. 472, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972). Almost all of Manna's numerous arguments advanced on this appeal have all been
directly or implicitly decided adversely to his present contention.
There is no merit to his contention that he is entitled to bail pending appeal pursuant to R. 2:9-5. That rule and its companion, R. 2:9-4, provide that bail shall be granted "unless * * * it appears that the appeal is taken on insubstantial grounds or for [the] purposes of delay * * *." Manna's only new ground of appeal is that the indefinite incarceration is a cruel and unusual punishment. That argument is frivolous. The recalcitrant witness can end his incarceration at any time. Bail was, therefore, properly denied.
The contention that the statute establishing the S.C.I. (N.J.S.A. 52:9M-1 et seq.) offends Art. III, par. 1 of the New Jersey Constitution mandating a separation of governmental powers among three branches, is ...