On certification to the Superior Court, Appellate Division. (75 N.J. 587 (1977)).
For affirmance -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford and Handler and Judge Conford. For reversal -- Justice Schreiber. Schreiber, J., dissenting.
We adhere to our decision in Catena v. Seidl, 68 N.J. 224 (1975) being satisfied that the principles and standards set forth therein for dealing with a recalcitrant civil contemnor, such as is here involved, are correct and adequate. Applying these principles and standards, and making our own evaluation of the evidence, we agree fully with the trial judge's findings and conclusions which he summarized thusly:
This man has spent six years in jail. He demonstrates to the Court a resignation to spend whatever time is necessary, whether it be the end of the term of the Commission or the end of his life, to spend that time in that same debilitating, do-nothing routine. I can only conclude that he is never going to change his mind. Enough is enough. I am satisfied that he has borne the necessary burden of proof even though it is only his own testimony. I think the inferences that the Court has drawn from previous conduct and his present resignation to his incarcerated status clearly demonstrates that there is no substantial likelihood that he will ever change his mind. The contempt citation is discharged.
We note that there is pending in the New Jersey Legislature a proposed amendment to the State Commission of Investigation Act which, inter alia, provides that in the case of a witness cited for contempt for refusal to answer, subsequent to a grant of immunity, no incarceration for civil contempt shall exceed a period of five years of actual incarceration.
SCHREIBER, J., dissenting. I continue to adhere to the view expressed in my dissenting opinion in Catena v. Seidl, 68 N.J. 224, 230 (1975), that this Court should not lend its aid to frustrate the State Commission of Investigation (SCI) in its factual investigation of organized crime. See N.J.S.A. 52:9M-2a.
Chief Justice Weintraub, Justice Jacobs and Judge Broderick, who were designated by Governor Byrne as a committee to evaluate the SCI pursuant to Executive Order
No. 20, April 11, 1975, issued a unanimous report in which the following comments, with which I heartily agree, were made:
A number of individuals have refused to testify in inquiries involving organized crime. They have been incarcerated in civil proceedings, but have refused to yield to that coercion despite several years of coercive imprisonment. Recently the Supreme Court of New Jersey held that the imprisonment must be ended when there no longer is a substantial likelihood that continued imprisonment will succeed. Catena v. Seidl, 65 N.J. 257 (1974), 66 N.J. 32 (1974) and 68 N.J. 224 (1975).
Thus the civil process may be defeated by obstinacy, or may be seriously debilitated if vital witnesses choose to litigate the durability of their recalcitrance. The question whether coercion will succeed seems to be a matter of prophecy rather than of fact, and it being held that this matter of prophecy is a triable issue, the coercive effect of imprisonment may be diluted by a hope that some judge will "find" that coercion will not overcome the reluctant witness, if not today, then tomorrow, or the next.
The Catena decision brings to the fore the question whether the criminal process should be invoked to deal with the public injury which ensues when a witness thus refuses to obey an order to testify. The very mission of the S.C.I. depends upon an ability to obtain the facts. It is intolerable that any man may choose to frustrate an inquiry by government upon a matter of concern to all the citizens of the State. The ensuing wrong exceeds the affront to the State when in litigation of limited moment a witness defies the State's authority. Here the public injury which inheres in every ...