This litigation was born in 1969 and the issues presented are still before the court for resolution. For a complete review of the history of this case and a recitation of the facts, I refer the reader to Judge Matthews' opinion in 106 N.J. Super. 545 (Ch. Div. 1969) and the Supreme Court opinion by former Chief Justice Weintraub reported in 56 N.J. 210 (1970).*fn1
The matter was returned to this court on a remand from our Supreme Court for an evidentiary hearing to determine the appropriateness of certain items on forms in use by the then Attorney General of the State of New Jersey.*fn2 The matter is not now before the court on the evidentiary hearing
as directed by the Supreme Court, but rather on cross-motions. Plaintiffs have moved to compel the Supervisor of the State Police Central Security Unit to submit to depositions. The Attorney General has renewed an earlier motion to dismiss the complaint.
I will address myself to the motion of the Attorney General first. The State moves for dismissal on the grounds that the issue is moot and the complaint fails to state a cause of action because the mere existence of governmental intelligence activity does not establish a judicially cognizable claim under the First Amendment to the United States Constitution.
The State argues that the complaint is now moot because the forms in question are no longer in use. It appears from the record that on February 10, 1976 new guidelines as to the scope and functions of the Central Security Unit were issued and circulated by the Superintendent of the State Police. This document, entitled "New Jersey State Police Central Security Unit Manual," effectively supersedes prior guidelines as to the operation of the unit. The memorandum and forms which were to be the subject matter of the remand hearing have thus been effectively rescinded.
Judge Matthews expressed the basic issue in this case as follows:
Plaintiffs here seek review of and relief from only a small segment of the 43-page memorandum. The matter at issue is contained in a portion of the memorandum, printed on page 19 thereof, which is entitled "Potential Problems" and which reads as follows:
"Our State Police have been working closely with local police in various communities throughout the State in a continuing effort to keep abreast of potential civil disorder problems. In that respect, therefore, we are already familiar generally with basic problems in these communities. However, these problems change and we should never become over confident to the end that we lose sight of the cause, as well as the effect of civil disturbances. The State Police Central Security Unit has distributed Security Summary Reports (Form 421) and Security Incident Reports (Form 420) (see Appendix G) to each police department. It is necessary that these reports
be used routinely to inform the State Police of the situation in your community. We urge you to see that this vital intelligence is communicated to this central bureau for evaluation and dissemination." [106 N.J. Super. at 548]
The Supreme Court in its opinion commented:
The complaint revolves about a memorandum, entitled "Civil Disorders -- The Role of Local, County and State Government" (herein Memorandum), prepared by the Attorney General of the State and sent to ...