For remand -- Chief Justice Hughes, Justices Sullivan, Pashman and Clifford and Judge Conford. Opposed -- Justices Mountain and Schreiber. Schreiber, J. (dissenting). Justice Mountain joins in this dissent.
Gerardo Catena, having been found to be in contempt of the State Commission of Investigation (hereinafter S.C.I.), has been confined continuously since March 4, 1970 except for short periods of temporary release for medical treatment and other personal reasons. His confinement has been based on his refusal to answer questions put to him by the S.C.I. concerning organized crime activities, even though he had been granted testimonial immunity pursuant to N.J.S.A. 52:9M-17. Following his refusal to testify, Catena was cited for contempt by the Superior Court which ordered that he be committed until such time as he purged himself of contempt by testifying. The legality of his confinement was ultimately upheld by the United States Supreme Court in Elias v. Catena, 406 U.S. 952, 92 S. Ct. 2056, 32 L. Ed. 2d 341 (1972).
In the meantime, Catena has remained steadfast in his refusal to testify. The present proceedings seeking to effect Catena's release were begun in December 1973. Inter alia it was alleged that despite the fact that Catena had not purged himself of contempt, his confinement should be terminated because it had failed as a coercive measure. The trial court, after a summary hearing and without receiving any testimony or other evidence except for a letter report as to the state of Catena's health, ordered that Catena be released on the grounds that the order holding him in contempt no longer had any coercive impact and had become punitive in nature.
We reversed the aforesaid ruling of the trial court in Catena v. Seidl, 65 N.J. 257 (1974) holding (1) that the test to be applied was whether or not there was a substantial likelihood that continued commitment of Catena would accomplish the purpose of the order upon which the commitment was based, (2) that the S.C.I. was not required to
demonstrate the continued efficacy of such order but that Catena had the burden of showing that the commitment, lawful when ordered, had lost its coercive impact and had become punitive and (3) that on the record then presented Catena had not sustained that burden. However, we remanded the matter to the trial court to allow Catena the opportunity to present evidence in support of additional contentions that questions he declined to answer may have been derived from unlawful electronic surveillance, and that the subpoena to testify issued by the S.C.I. stemmed from illegally obtained information. See Catena, supra, 65 N.J. at p. 265.
When the matter came before the trial court the hearing was expanded to include not only the issue covered by the remand, but also reconsideration of the question whether continued confinement of Catena would serve any coercive purpose. As to this latter question, affidavits were submitted by Catena and three of his attorneys; Catena's wife and one of his daughters also testified. Based on this supplemental proof, as well as Catena's silence since March 1970, his age and condition of health, the trial court again found that Catena's continued confinement had gone beyond the coercive stage and had become punitive and that he should be released.
This Court, in an opinion reported at 66 N.J. 32 (1974), found itself unable to review the correctness of the trial court's ruling because of the inadequacy of the record. We held that use of ex parte proofs in the form of affidavits and a letter report as to the state of Catena's health was improper since it prevented the S.C.I. from testing the veracity and credibility of content. We reiterated that it was Catena who had the burden of proof and that such burden was not sustainable by ex parte affidavits and reports. 66 N.J., supra, at p. 37. Accordingly, we remanded the matter to the trial court to afford Catena the opportunity to present live testimony.
Pursuant to the remand, Catena testified, as well as his physician and three of his attorneys. Following the hearing the trial court in an oral decision reviewed all of the evidence and once more found that there was no substantial likelihood that continued confinement of Catena would ever cause him to break his silence and answer the questions put to him by the S.C.I.
The trial court noted Catena's age (73 years old), state of health and confinement since March 1970. It reviewed the reason given by Catena for remaining silent (essentially Catena testified that he believed he had a right of privacy which could not be taken away from him), and while it did not believe him in that regard, concluded that no matter what Catena's real reason was, he had demonstrated such total obstinacy that the trial court was satisfied that he would never answer any questions.
Actually, whether Catena's refusal to testify is based on moral conviction or principle, or whether, as the S.C.I. contends, he is adhering to organized crime's oath of silence is not controlling.*fn1 Whatever his reason, good or bad, the question is whether there is a substantial likelihood that continued confinement will cause Catena to change his mind and testify.
The great strength of the rule of law in a democratic society is that it applies equally to all persons, the bad as well as the good. True, Catena has refused to cooperate with the S.C.I. in its investigation into organized crime and the statute permits the imposition of sanctions on ...