For vacation and remandment -- Chief Justice Hughes and Justices Jacobs, Hall, Mountain, Sullivan, Pashman and Clifford. Opposed -- None.
This appeal involves a review of the order of the trial court dated February 26, 1974 directing that plaintiff Gerardo Catena, who has been confined since March 4, 1970 for continuous contempt of the State Commission of Investigation (hereinafter S.C.I.), "be released from further confinement forthwith." The Appellate Division ordered a stay of the trial court's order pending the outcome of an appeal filed by the S.C.I. This Court granted direct certification of the matter, 65 N.J. 278 (1974), and continued the stay pending disposition on the merits of the controversy.
The S.C.I., created by L. 1968, c. 266, as its title indicates, is basically an investigatory body. Its purpose is to find facts
which may subsequently be used as the basis for legislative and executive action. In re Zicarelli, 55 N.J. 249, 258 (1970), aff'd 406 U.S. 472, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972). The duties and powers vested in the S.C.I. by statute include "[t]he faithful execution and effective enforcement of the laws of the State, with particular reference but not limited to organized crime and racketeering ;" (emphasis added). N.J.S.A. 52:9M-2(a). N.J.S.A. 52:9M-11 provides that "[b]y such means and to such extent as it shall deem appropriate, the commission shall keep the public informed as to the operations of organized crime * * *." (emphasis added). In the course of any investigation or hearing the S.C.I. may confer immunity from criminal prosecution on a person appearing before it for his or her responsive answers and evidence, and thereby require such person to give relevant testimony or evidence which otherwise would expose such person to criminal prosecution or penalty. If a person refuses to give testimony or evidence after having been granted immunity, such person may be prosecuted for contempt. N.J.S.A. 52:9M-17.
It is clear from the foregoing that one of the primary functions of the S.C.I. is to investigate organized crime and racketeering and learn the method of operation and identity of those involved, to the end that the laws of this State may be enforced and, where necessary, appropriate legislative and executive action taken.
The power to grant immunity from criminal prosecution or penalty is one of the tools given the S.C.I. to enable it to function effectively. Ancillary thereto is the right to maintain civil contempt proceedings against a person who refuses to testify or produce evidence before the S.C.I. despite having been granted immunity.
In In re Zicarelli, supra, this Court, in upholding the legality and constitutionality of the foregoing statutory provisions, pointed out that the provisions for prosecuting a recalcitrant witness for contempt are not penal in nature --
that the object is to compel the person to provide the S.C.I. with the needed testimony or evidence -- not to punish for silence. As we stated therein, 55 N.J. at 272, supra, "[t]he very provision for a grant of immunity repels the notion that a witness may choose to be silent for a price." Our decision in Zicarelli was affirmed by the United States Supreme Court which noted "[a]ppellant is of course free to purge himself of contempt by answering the Commission's questions." 406 U.S. at 481, 92 S. Ct. at 1676, 32 L. Ed. 2d 241, supra.
We turn to the case at hand. Gerardo Catena, a suspected member of the hierarchy of organized crime, appeared before the S.C.I. pursuant to subpoena, but refused to answer some 80 questions relating to organized crime activities propounded to him even though he was granted testimonial immunity pursuant to the statute. He was thereupon cited for contempt by the Superior Court which, on March 4, 1970 ordered that Catena be committed until such time as he purged himself of contempt by testifying as ordered.
Following his commitment, Catena has pursued numerous legal proceedings in the State and Federal courts seeking to effect his release, all of which ultimately proved unsuccessful. In the meantime, he has remained steadfast in his refusal to testify before the S.C.I.
The instant proceeding entitled Complaint (verified) in Lieu of Habeas Corpus, was filed on Catena's behalf in December 1973. When the matter came before the trial court in January 1974, oral argument was had on the legal issues involved and briefs were submitted. No testimony or other evidence was presented. However, subsequent to the ...