For reversal and remandment -- Chief Justice Hughes, and Justices Jacobs, Hall, Mountain, Sullivan, Pashman and Clifford. For affirmance -- None. The opinion of the Court was delivered by Jacobs, J.
[66 NJ Page 54] The plaintiff Joseph L. Mahne filed a divorce complaint charging that his wife defendant Grange R. Mahne had committed adultery with the defendant Rolf Habermann. In her answer the defendant Grange denied the adultery and in her counterclaim she sought a divorce grounded on extreme cruelty. The defendant Rolf intervened
and in his answer denied the adultery. Thereafter the plaintiff served interrogatories in which he inquired, inter alia, whether the defendant Grange ever had sexual relations with the defendant Rolf. The defendants refused to answer, claiming the privilege against self-incrimination. Thereupon the plaintiff moved to strike the pleadings filed by the defendants and the motion was granted. 124 N.J. Super. 23 (1973). The defendants appealed to the Appellate Division and, passing the failure to obtain leave under R. 2:2-4, we granted certification before argument there. 64 N.J. 326 (1973). Apparently there were fruitless reconciliation efforts which are discussed in the briefs but are not pertinent to the single issue before us for determination, namely, whether the striking of their pleadings was a constitutionally permissible and legally proper sanction for the defendants' refusal to answer the submitted interrogatories in the circumstances at hand.
New Jersey's statutes declare that adultery and fornication are misdemeanors. N.J.S.A. 2A:88-1; N.J.S.A. 2A:110-1; see State v. Lutz, 57 N.J. 314 (1971); State v. Clark, 58 N.J. 72 (1971). Accordingly the defendants could properly claim the privilege against self-incrimination when asked in effect by the pretrial interrogatories whether they had committed adultery or fornication. Cf. Marsh v. Marsh, 16 N.J. Eq. 391, 397 (Ch. 1863); Bednarik v. Bednarik, 18 N.J. Misc. 633, 643 (Ch. 1940). Our rules provide only for pretrial discovery of matters "not privileged" (R. 4:10-2) and though the privilege may be waived we believe that the mere filing of their pleadings by the defendants is not fairly to be viewed as having effectuated a waiver. See Schermerhorn v. Contardi, 10 Wash. App. 736, 520 P. 2 d 188 (1974); Southbridge Finishing Co. v. Golding, 208 Misc. 846, 143 N.Y.S. 2 d 911 (Sup. Ct. 1955), aff'd, 2 App. Div. 2d 882, 157 N.Y.S. 2 d 898 (1956); see also Magowan v. Magowan, 39 Misc. 2d 983, 242 N.Y.S. 2 d 336 (Sup. Ct. 1963); David Webb, Inc. v. Rosenstiel, 66 Misc. 2 d 29, 319 N.Y.S. 2d 877, 880 (Sup. Ct. 1970), aff'd,
36 App. Div. 2 d 691, 318 N.Y.S. 2 d 441 (1971); cf. Evid. R. 25(d); N.J.S.A. 2A:84A-19. It must be borne in mind that the pleadings did not in anywise acknowledge the alleged criminal conduct but on the contrary specifically denied it. See Arndstein v. McCarthy, 254 U.S. 71, 41 S. Ct. 26, 65 L. Ed. 138 (1920); cf. Brown v. United States, 356 U.S. 148, 78 S. Ct. 622, 2 L. Ed. 2 d 589 (1958); Steinbrecher v. Wapnick, 24 N.Y. 2 d 354, 359-365, 300 N.Y.S. 2 d 555, 561-566, 248 N.E. 2 d 419, 424-427 (1969).
In the light of the foregoing it is evident that the defendants could not have been directed to answer the interrogatories nor could they have been fined or imprisoned for their refusal to do so. The trial judge recognized all this and took no such prohibited action. His position was that although the defendants could not be compelled to answer they could, without infringing on their privilege against self-incrimination, justly and lawfully be subjected to noncriminal sanctions; he chose the sanction of striking their pleadings as the necessary and appropriate one in the circumstances. While we agree that noncriminal sanctions were permissible we reject his choice of sanction. See Kaminsky, "Preventing Unfair Use of the Privilege Against Self-Incrimination in Private Civil Litigation: A Critical Analysis," 39 Brooklyn L. Rev. 121 (1972); Madsen, "Penalizing the Civil Litigant Who Invokes the Privilege Against Self-Incrimination," 24 U. Fla. L. Rev. 541 (1972); Note, "Use of the Privilege Against Self-Incrimination in Civil Litigation," 52 Va. L. Rev. 322 (1966); cf. Levin v. Levin, 129 N.J. Super. 142 (App. Div. 1974); Duratron Corp. v. Republic Stuyvesant Corp., 95 N.J. Super. 527 (App. Div.), certif. den. 50 N.J. 404 (1967).
The defendants contend that since they were merely exercising their constitutional privilege in declining to answer the interrogatories any sanction imposed on them would amount to an impermissible burden, citing Supreme Court cases such as Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2 d 562 (1967) and Spevack v. Klein, 385 U.S. 511,
87 S. Ct. 625, 17 L. Ed. 2 d 574 (1967). Garrity and Spevack did suggest expansively that no sanctions which make exercise of the privilege costly may be imposed, but neither case arose in the present context of private litigation between private parties in which noncriminal sanctions are imposed in aid of orderly pretrial discovery. See Duratron Corp. v. Republic Stuyvesant Corp., supra, 95 N.J. Super. at 532-533; Kaye v. Newhall, 356 Mass. 300, 249 N.E. 2 d 583, 586 (1969); cf. Minor v. Minor, 232 So. 2 d 746 (Fla. Dist. Ct. App.), aff'd, 240 So. 2 d 301 (Fla. Sup. Ct. 1970). Furthermore, Supreme Court cases since Garrity and Spevack have not embraced their expansive approach but have sought to strike suitable balances designed to protect the pertinent public and private interests without impairing the historic designs of the privilege. See Gardner v. Broderick, 392 U.S. 273, 88 S. Ct. 1913, 20 L. Ed. 2 d 1082 (1968); Uniformed Sanitation Men Ass'n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S. Ct. 1917, 20 L. Ed. 2 d 1089 (1968); Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2 d 446 (1970); McGautha v. California, 402 U.S. 183, 91 S. Ct. 1454, 28 L. Ed. 2 d 711 (1971); California v. Byers, 402 U.S. 424, 91 S. Ct. 1535, 29 L. Ed. 2 d 9 (1971).
All of the aforecited cases were dealt with by this Court in State v. Falco, 60 N.J. 570, 578-584 (1972), and no purpose would be served by repeating what was said there, although Williams v. Florida, supra, may be worthy of brief comment here. In Williams the Supreme Court held that a criminal defendant's privilege against self-incrimination was not violated by a pretrial discovery requirement that he "give notice of an alibi defense and disclose his alibi witnesses." 399 U.S. at 83, 90 S. Ct. at 1897, 26 L. Ed. 2 d at 451. Earlier we had sustained our own comparable alibi rule (R. 3:11). See State v. Angeleri, 51 N.J. 382, cert. denied, 393 U.S. 951, 89 S. Ct. 372, 21 L. Ed. 2 d 362 (1968); State v. Baldwin, 47 N.J. 379, cert. denied, 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2 d 442 (1966). In Williams the Supreme Court flatly rejected the defendant's contention that
the alibi discovery provision unconstitutionally interfered with "his right to wait until after the State had presented its case to decide how to defend against it." 399 U.S. at 83, 90 S. Ct. at 1896, 26 L. Ed. 2 d at ...