For reversal -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall, Mountain and Sullivan. For affirmance -- None.
[63 NJ Page 311] The Chancery Division entered a summary judgment which restrained the defendants New Jersey State Commission of Investigation (S.C.I.) and its members from "conducting any public hearing relating to the content
or subject matter of any private hearing in which the Plaintiffs, or any of them, heretofore participated." The defendants duly appealed to the Appellate Division and we certified before argument there.
The S.C.I. was created by statute in 1968 and was empowered to conduct investigations in connection with the enforcement of the laws of the State, the conduct of public officers and employees, and any matters concerning the public peace, public safety and public justice. L. 1968, c. 266; N.J.S.A. 52:9M-1 et seq. As pointed out in Zicarelli (55 N.J. 249, 261 (1970)), it was created "to discover and to publicize the state of affairs in a criminal area, to the end that helpful legislation may be proposed and receive needed public support." The statute has withstood constitutional attack (Zicarelli, supra, aff'd, 406 U.S. 472, 92 S. Ct. 1670, 32 L. Ed. 2 d 234 (1972); United States ex rel. Catena v. Elias, 465 F.2d 765 (3 Cir. 1972)) and the Commission has conducted many private hearings as well as some public hearings in accordance with its announced practices and the terms of the statutory code of fair procedure. L. 1968, c. 376; N.J.S.A. 52:13E-1 et seq.
In 1972 the S.C.I. initiated an investigation of municipal corruption in the area of "land use, zoning, planning, etc." Its purpose was to determine whether patterns of municipal corruption were extant in the stated area and, if so, what corrective or safeguarding legislation should be recommended. In April, 1972, S.C.I.'s counsel, Charles D. Sapienza, learned that the plaintiff Edward Leshowitz might be helpful in connection with alleged "payoffs and corruption" in a particular town. Mr. Leshowitz was asked to come in and he did so, first without counsel and later with his attorney Sanford Halberstadter. Mr. Halberstadter testified that he requested "that we be afforded a writing indicating that whatever we discussed would be confidential and would not be disclosed"; he testified further that a writing was received but examination of it establishes that it was much
narrower in terms. It simply set forth that Mr. Halberstadter and Mr. Sapienza had agreed to the following:
It is understood by all present in this room that Mr. Leshowitz has consented to be interviewed today, based on the understanding that Mr. Charles D. Sapienza will seek from the State Commission of Investigation a grant of immunity, and will also notify all federal, state and other local prosecutorial authorities that he is seeking a consent to this grant of immunity.
It is understood that if a grant of immunity is not forth-coming, all statements made by Mr. Leshowitz in this particular interview will be held in confidence by the parties in this room and not released to anyone, and will not be utilized against him.
Mr. Leshowitz was later granted immunity by the Commission (N.J.S.A. 52:9M-17) and as a result any suggestion of confidentiality grounded on the writing clearly has no substance. Mr. Halberstadter testified in effect that he and Mr. Leshowitz understood from oral statements made by Mr. Sapienza that the testimony given in private by Mr. Leshowitz would remain private except if needed by the prosecutor in connection with criminal prosecutions against others. But Mr. Sapienza denied making any statements which could fairly be interpreted as embodying a promise that Mr. Leshowitz would not later be called upon to give his testimony at a public hearing if the Commission considered that course appropriate in the exercise of its stattory functions. He testified that "the premise on which Mr. Leshowitz received his immunity was that, number one, he would have to testify truthfully and openly and aid the Commission in whatever way he could, but there was no promises nor discussion about Mr. Leshowitz testifying at a public hearing. That didn't enter into the picture." Indeed, though Mr. Halberstadter stressed his understanding of general confidentiality, he acknowledged that he was aware that the Commission had in the past conducted public hearings and that here "the question of public hearings never came up."
After Mr. Leshowitz had privately testified, Mr. Halberstadter arranged for the taking of testimony in private of Mr. Leshowitz's associates, Mr. John J. Cali and Mr. Angelo R. Cali. A written statement in the same terms as the one executed by Mr. Sapienza and Mr. Leshowitz was executed by Mr. Sapienza and the Messrs. Cali and immunity was later granted to Messrs. Cali by the Commission. Mr. John Cali testified that "Mr. Sapienza said that he would do everything in his power to keep our names from public notice, and that even if it came to prosecution, he would make every effort also in that instance to keep us from coming to light." He acknowledged that "the question of public hearings was just never brought up." Mr. Angelo Cali testified that he was told there "would not be a public disclosure" but he also acknowledged that Mr. Sapienza did not tell him that he would not have to testify at a public hearing.
Mr. Sapienza testified that only the Commission could grant immunity or determine that no public hearing would be held and that he had no such authority. He denied that he had promised there would be no public hearing and two agents of the Commission who were present during his interviews with the plaintiffs gave corroborative testimony in support of his denial. In response to an inquiry by plaintiffs' counsel as to whether he had made any representations that he would use his best efforts to see that their names "did not surface" Mr. Sapienza replied: "I told them that I would do my best to see that in that ...