Fritz, Lynch and Trautwein. The opinion of the court was delivered by Lynch, J.A.D.
On June 19, 1970 detectives of the Morris County Prosecutor's Office and police of the Borough of Wharton, armed with a search warrant and seeking evidence of bookmaking and lottery, broke into the home of plaintiffs. As we now know, the raid was a bizarre mistake. Plaintiffs, a relatively elderly retired couple, were completely innocent of any wrongdoing, and utterly without connection with gambling or other illegal activity of any kind.
By an amended complaint plaintiffs sued Prosecutor Egan, detectives Bickley, Spann, Dunne and DeBiasi, one "John Doe," being a fictitious name of a "reliable informer" (who allegedly gave information that plaintiff Paul Cashen was involved in gambling activities), the New Jersey Bell Telephone Company (Telephone Company), the County of Morris (county) and the Borough of Wharton (borough). The amended complaint against the county, defendant officials and Telephone Company, charged false arrest and imprisonment, libel and slander, invasion of privacy and assault and battery. It also charged that the Telephone Company, through its employees, negligently and wantonly supplied false information to the prosecutor's detectives with respect to telephone calls made to plaintiff Paul Cashen.*fn1
The answers of defendant prosecutor, detectives and the county set up, among other things, the defenses of immunity and failure of plaintiffs to state a claim upon which relief may be granted. Those defendants moved for summary judgment in their favor under, as they stated, "the doctrine of judicial immunity and its application covering conduct in the realm of the public prosecutor." Defendant Telephone
Company also moved for summary judgment, claiming that it acted in the premises in compliance with subpoena and other lawful orders of the prosecutor and hence was cloaked with the same immunity as the prosecutor. The company also claimed that provisions of the Communications Act of 1934, § 605 as amended, 47 U.S.C. § 605 (1968), absolved it from liability. The trial court granted summary judgment in favor of all defendants. Plaintiffs appeal from said judgment except, as said above, no appeal has been taken from the summary judgment which had earlier been granted in favor of the borough.
Plaintiffs also claim that the error of the trial court in granting summary judgment to defendants subsumed the court's further error in refusing to compel defendants to disclose the identity of the so-called "reliable informer" referred to in the affidavit of defendant Bickley which was the basis upon which the search warrant was issued.
The basic reasoning of the trial judge in granting summary judgment in favor of defendant prosecutor and detectives was that since, in his view, there was no showing of malice on their part or that they acted for "personal reasons of their own or distinct from their required duty," they were immune from suit. Since the County of Morris was sued on the theory that such officials were its agents, the county was likewise absolved.
As to defendant Telephone Company, the court held there was no liability because it acted pursuant to subpoena and, under the decisions in United States v. Covello, 410 F. 2d 536 (2 Cir. 1969), and Nolan v. United States, 423 F. 2d 1031 (10 Cir. 1969), and 47 U.S.C.A. § 605, the company was not liable.
In ruling that plaintiffs were not entitled to disclosure of the identity of the "reliable informer," the trial court held that the policy considerations which dictate nondisclosure of such information in criminal cases, expounded in State
v. Burnett, 42 N.J. 377 (1963), and other cases, are likewise controlling in this civil case and preclude such disclosure.
The affidavit upon which the issuance of the search warrant was based was sworn to by defendant Bickley. It read, so far as here pertinent, as follows:
On Monday, June 15, 1970, Det. Spann checked with the N.J. Bell Telephone Company as to phone calls made from 335-6508 and 539-6548, and it was learned from the Telephone Company that numerous calls were made to the residence at 9 Crater Avenue in Wharton, N.J., telephone number 366-3115 and telephone number 328-5364, and also telephone number 743-1133 in Bloomfield, New Jersey. A further check with the N.J. Bell Telephone Company revealed that the telephone number 366-3115, is listed to one Paul Cashen, 9 Crater Avenue, Wharton, New Jersey; telephone number 328-5634 is listed to the U.S. Government, Picatinny Arsenal, Dover, N.J. Building 94 QAD and in control of Paul Cashen; and telephone number 743-1133 is listed to one, Lamont Curran, 29 Washingtion Road, Bloomfield, New Jersey. Inv. Bickley called a person at Picatinny Arsenal who has given reliable information relative to gambling activities there and was advised by this informant that one, Paul Cashen, employed at Picatinny Arsenal, was accepting horse bets and number bets from fellow employees at the Arsenal, and that at least twice a day would call from one or two pay phones in Building 94 to someone with these bets. He also stated that he would keep notations in a small black notebook which he kept constantly on his person to record said bets.
On Monday, June 15, 1970, a further inquiry was made with the Telephone Company, and it was learned from this that numerous phone calls were made from the Raymond Dragos residence to Paul Cashen, to Bloomfield and numerous phone calls from John Peragallo's residence to Paul Cashen, to Bloomfield.
Telephone number 335-6508 was listed to Mrs. Virginia Peragallo, wife of John Peragallo, otherwise identified in the affidavit as being engaged in taking horse and number bets. Telephone number 539-6548 was listed to Raymond Dragos, also identified in Bickley's affidavit as engaging in taking of such bets. Concededly the information contained in Bickley's affidavit was false in the following respects: (1) no phone calls were ever made to Cashen's home by Peragallo or Dragos; (2) telephone number 328-5634 at Building 94 QAD at Picatinny Arsenal was not in control
of Paul Cashen at the time involved. Cashen had worked at Picatinny Arsenal for 38 years but had retired on October 31, 1969 and had been at the Arsenal on only one day since then, in January 1970, as he drove through the Arsenal grounds to go fishing; (3) the information allegedly given to Bickley that (a) Cashen was accepting horse and number bets at Picatinny, and (b) a least twice a day called from one or two pay phones in Building 94 with the bets, was false; (4) the information allegedly given by a representative of the Telephone Company that numerous phone calls were made to Cashen from the residences of Dragos and Peragallo was also false.
Detective Spann testified on deposition that on June 15, 1970 he called the Morristown office of the Telephone Company and was told that calls were being made to Cashen's home from those of bookmakers Peragallo and Dragos. Spann further testified that he normally dealt with a Mrs. DiFiore at the Morristown office but that she was not working on June 15, 1970, and he did not know the identity of the telephone representative who gave him the information. On the other hand, Mrs. DiFiore testified on deposition that she worked at the Boonton office and not at Morristown, as Spann said. But she did testify that on June 15 and 16, 1970 she was called at the Boonton office and advised Spann that there was no information relative to the investigation for that day. She specifically said she never gave the prosecutor's office any information as to Cashen's telephone number. There was also testimony that calls from Dragos to Cashen would not be toll calls, and therefore there would be no record of them. And Peragallo's phone would not be serviced by either the Morristown or Boonton office but by the Dover office. In fact, Mrs. DiFiore testified she was never asked to give any information relative to the Peragallo phone.
Against this factual background we must determine the propriety of (a) the summary judgment in favor of defendants, and (b) the order denying plaintiff's request that the
identity of the "reliable informer" be disclosed by first resolving these issues: (I) Are defendant prosecutor and his detectives cloaked with immunity from suit? (a) If there is immunity, what is its nature, respectively as to each such defendants and what, if any, are its limitations as to each? (b) If there is immunity but it is not absolute, are there any genuine issues of material fact which preclude granting of summary judgment to defendants? R. 4:67-5. (II) Were the prosecutor and his detectives agents of the county in doing what they did? (III) What, if any, is the liability of the Telephone Company in the premises, and (IV) Should defendants, under the circumstances of this case, be compelled to disclose the identity of the so-called "reliable informer"?
IMMUNITY OF DEFENDANT OFFICIALS
It appears that the trial court applied the same standard of immunity as to all official defendants and the county, i.e., that they are not liable in the absence of any showing of "malice" or that they acted "for personal reasons of their own." In this uniformity of treatment the court erred.
Defendant prosecutor was cloaked with the same immunity as possessed by a judge. A judge is not civilly liable for acts done which are at least colorably within his jurisdiction. Grove v. Van Duyn, 44 N.J.L. 654 (E. & A. 1882). Such judicial immunity has been recognized for centuries. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646 (1872). That case explained the reason for the existence of such immunity as follows:
For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of
this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English judge, it would establish the weakness of judicial authority in a degrading responsibility. Taaffe v. Downes, 3 Moore, P.C., 41, n. [at 347].
So it has been held that a prosecutor was immune to suit for false imprisonment alleged to have resulted from an arrest of plaintiff pursuant to a writ which the prosecutor delivered to a constable for execution. Hann v. Lloyd, 50 N.J.L. 1 (Sup. Ct. 1887). There it was said the prosecutor "acted within his official province in instructing the officer as to his official duty with respect to it." Id. at 5. See also, Edelman v. Dunn, 8 N.J. Misc. 154 (Sup. Ct. 1930). The reasons why a prosecutor is clothed with "judicial immunity" were well stated in Bauers v. Heisel, 361 F. 2d 581 (3 Cir. 1966):
In deciding the question of whether a prosecuting attorney is liable for acts done in his official capacity, we must decide whether his duties are sufficiently judicial as to cloak him with the same immunity afforded judges or are so closely related to those duties of law enforcement officials as to amerce him with potential civil liability for his imprudent actions. See Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Comment, 18 Ark. L. Rev. 81, 84-92 (1964). Analogy could support either conclusion, but we believe that both reason and precedent require that a prosecuting attorney should be granted the same immunity as is afforded members of the judiciary. The reasons are clear: his primary responsibility is essentially judicial -- the prosecution of the guilty and the protection of the innocent, Griffin v. United States, 295 F. 437, 439-440 (C.A. 3, 1924); his office is vested with a vast quantum of discretion which is necessary for the vindication of the public interest. In this respect, it is imperative that he enjoy the same freedom and independence of action as that which is accorded members of the bench. This reasoning is nearly as well established in Anglo-American law as judicial immunity itself. Yaselli v. Goff, 12 F.2d 396 (C.A. 2, 1926), aff'd, per curiam "on the authority of Bradley v. Fisher * * * [and] Alzua v. Johnson, 231 U.S. 106, 111, 34 S. Ct. 27, 58 L. Ed. 142," 275 U.S. 503, 48 S. Ct. 155, 72 L. Ed. 395 (1927), and numerous cases and authorities cited therein. Prosecuting attorneys who have been sued under the Civil Rights Act, R.S. § 1979, have likewise been held immune. Laughlin v. Roseman, 82 U.S. App. D.C. 164, 163 F.2d 838 (1947); Kenney v. Fox, supra [232 F.2d 288 (C.A. 6)], and other cases cited in note 7, supra. [at 589]
And see extensive collection of cases in Bauers, n. 7 at 586, wherein prosecuting attorneys were held immune. See also Bethea v. Reid, 445 F.2d 1163 (3 Cir. 1971), cert. den. 404 U.S. 1061, 92 S. Ct. 747, 30 L. Ed. 2d 749 (1972).
In State v. Winne, 12 N.J. 152 (1953), Chief Justice Vanderbilt stated that in some jurisdictions a county prosecutor is not subject to a civil suit for damages at the hands of an aggrieved citizen, but he observed: "* * * though that point has not been passed on here * * *." Id. at 170. The Chief Justice apparently meant that the question had not been passed on by the Supreme Court created by the 1947 Constitution, for he made no mention of Hann v. Lloyd, supra, or Edelman v. Dunn, supra, opinions of the former Supreme Court. However, in the same ...