defendant or his designee to conduct the Rosko disciplinary hearing, or for defendant to sit in final administrative judgment.
Pagano has admitted that he feels that a partial, if not the major factor influencing plaintiff's decision to circulate the Report was the possibility of personal gain. However, a central element of plaintiff's defense to the disciplinary proceeding will be his good faith belief that he was acting in the public interest. I cannot permit defendant, or a subordinate subject to his influence, to have the initial fact-finding responsibility in the matter of Rosko's discipline. The risk of unfairness because of defendant's admitted predisposition is just too great. This risk does not appreciably lessen even if his designee, and not Pagano, sits as Hearing Officer, because of the reality of command influence in a paramilitary organization like the Division. An impartial arbiter from outside the Division must sit as Hearing Officer in this case. In order to expedite the installation of an unbiased decision-maker, and pursuant to N.J.S.A. 52:14F-8 (1978 N.J. Session Law Service, No. 3), defendant is directed to request the Director of the Office of Administrative Law to assign a judge to preside over the Rosko hearing. Nor may Pagano issue the final decision upon the Administrative Law Judge's (ALJ) report and recommendation, since merely interposing an ALJ does not sufficiently insulate Rosko's right to due process of law. Although the ALJ will be able to fully and fairly develop the factual record free from adverse influence, and probably will be better suited than a Division member to form conclusions of law, see N.J.S.A. 52:14F-5(L ), these procedural protections may very well be rendered nugatory if Pagano is left to exercise the ultimate decisional authority. To avoid any inherent problem here discussed Pagano will be replaced in the decision-making role in the disciplinary process. Since the Division is part of the Department of Law and Public Safety, the Attorney General appears to be the person best suited to fill Pagano's role in the context of this case. In the final analysis, this solution accommodates plaintiff's constitutional rights without ignoring the need for centralization of Division disciplinary functions.
Apart from the above facial bias on the part of defendant, another reason impels me to require the appointment of a Hearing Officer from without the Division. Defendant has been the target of personal abuse or criticism because of the conduct of the party whose guilt he (or his designee) must decide. See Withrow v. Larkin, 421 U.S. at 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712 . The sharp rebukes levelled at Pagano by Senator Parker were addressed to what Parker perceived as Pagano's failure to be candid under questioning about the contents of the Report. Rosko gave the Report to Bateman, and from there it made its way to the news media; Parker's reaction was provoked by the media attention. Although the disparagement did not flow directly from Rosko, defendant knows that it was causally related to Rosko's conduct in disseminating the Report. It is that conduct which forms the basis of the charges against plaintiff. That defendant has been personally stung as a result of the very action upon which he now sits in judgment creates too great a risk that he, or his subordinate, will lack that "calm detachment necessary for fair adjudication." Mayberry v. Pennsylvania, 400 U.S. 455, 465, 91 S. Ct. 499, 505, 27 L. Ed. 2d 532 (1971). In this regard, one cannot overlook the possibility that apart from the "command influence" exerted by Pagano, the judgment of a Division member sitting as Hearing Officer could be improperly affected by his resentment at the unfavorable publicity received by the State Police in connection with this case. Assignment of an ALJ avoids those problems.
In sum, my reaction to plaintiff's claim that he will be denied due process by continuation of the disciplinary proceedings is limited to insuring that deprivation does not occur. If defendant refuses to install an ALJ, I will permanently enjoin the hearing, order plaintiff restored to active status, and require payment of benefits and salary from the date of his original suspension.
Once the threat to Rosko's constitutional right to due process is removed, I must decide whether to proceed to judgment on the merits. Plaintiff challenges the constitutionality of a state rule
and seeks to have state officers enjoined from enforcing it. However, a proceeding has already been instituted in the state system to enforce the challenged rule against the federal plaintiff. If plaintiff could tender and have his federal claim decided in the state proceeding then abstention is proper, absent a showing of bad faith or harassment in bringing the state action, flagrant unconstitutionality of the state rule or statute, or other extraordinary circumstances. Trainor v. Hernandez, 431 U.S. 434, 441-42, 97 S. Ct. 1911, 52 L. Ed. 2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 334, 97 S. Ct. 1211, 51 L. Ed. 2d 376 (1977); Younger v. Harris, supra.
Application of the principles underlying abstention has been expanded beyond state criminal prosecutions, to reach a civil suit against "those in charge of an executive branch of an agency of state or local governments." Rizzo v. Goode, 423 U.S. 362, 380, 96 S. Ct. 598, 608, 46 L. Ed. 2d 561 (1976). Classification of the state action as civil or criminal is no longer of controlling significance, Johnson v. Kelly, 583 F.2d 1242, 1248 (3d Cir. 1978). Rather, the strength of the State's interest in unrestrained performance of a legitimate governmental function as a means of effectuating its policy has been identified as the central consideration in an analysis of the propriety of abstention. Trainor, 431 U.S. at 434, 97 S. Ct. 1911, 52 L. Ed. 2d 486 ; Id., at 448, 97 S. Ct. 1911 (Blackmun, J., concurring); New Jersey Education Association v. Burke, 579 F.2d 764, 768 (3d Cir.), Cert. denied, 439 U.S. 894, 99 S. Ct. 252, 58 L. Ed. 2d 239 (1978); See Gipson v. New Jersey Supreme Court, 558 F.2d 701, 703-04 (3d Cir. 1977). As a natural corollary to the requirement that the State's interest be substantial, abstention is improper unless the state proceeding has been initiated by the state itself, Johnson v. Kelly, 583 F.2d at 1249.
The State's interest in the conduct of Rosko's administrative disciplinary hearing is sufficiently weighty to require abstention. The charges flow from the executive branch of the State, through the Division, and are for all intents and purposes brought by the State. Furthermore, the State had the option of proceeding criminally as well as civilly, and in fact plaintiff admits that the investigation of the leak was conducted with a view toward securing a criminal indictment against the persons responsible.
To promote the autonomy of the Division, the Legislature has delegated to the Superintendent the power to make rules to govern the State Police, N.J.S.A. 53:1-10. For the Division to function smoothly, the Superintendent must have the ability, without untoward interference, to punish those who violate those rules. A disciplinary hearing brought pursuant to Regulations, with adequate procedural protections, fosters departmental morale and discipline and reinforces the objective legitimacy of the Division's role in State government. The State's concern in the effective operation of its premiere law enforcement agency is on the same level as the interests respected in Trainor, Juidice and Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975), Reh. denied 421 U.S. 971, 95 S. Ct. 1969, 44 L. Ed. 2d 463 (1975).
Other reasons justifying further intervention are not present here. Plaintiff has not shown that the disciplinary proceeding was instituted in bad faith, or without a reasonable chance to obtain conviction, See Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971). Although the investigation and disciplinary process may have inconvenienced plaintiff, there is no showing of harassment. N.J.S.A. 53:1-10 and the Rules and Regulations promulgated pursuant thereto are not flagrantly unconstitutional; indeed, they are attacked in their application to plaintiff. No other extraordinary circumstances exist to support a further exercise of this Court's injunctive power.
Plaintiff conceded at trial that he will be able to raise his First Amendment claims in a state forum during the course of adjudication of the charges.
That plaintiff will have an Opportunity to raise federal constitutional claims in the state proceeding is sufficient in determining whether to abstain. Juidice v. Vail, 430 U.S. at 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376 ; Gibson v. Berryhill, 411 U.S. at 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488 . Since my limited intrusion into the state system ensures the credibility of the initial forum, I must refrain from further interference.
An alternative reason for my reluctance to reach the merits of plaintiff's First Amendment claim is the principle of restraint which takes its name from Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). There are three prerequisites to application of this doctrine: (1) uncertain issues of state law underlying the federal constitutional claim; (2) a state court decision on those issues would "obviate the need for or substantially narrow the scope of the adjudication of the constitutional claims;" and (3) "an erroneous decision of state law by the federal court would be disruptive of important state policies." D'Iorio v. County of Delaware, 592 F.2d 681 at 686, (3d Cir. 1978). Once the three prerequisites are found to exist, abstention is generally proper. D'Iorio, at 692.
The first element of the formula is present, since the key question underlying plaintiff's First Amendment claim here is that of the Report's confidential status. Plaintiff admits in his brief that the classification of the Report as confidential Vel non is The issue pending on appeal from Judge Schoch's protective order. That these issues are uncertain is clear from analysis of the relevant state statutory and case law.
The Casino Control Act mandates an "inquiry" into a prospective nominee's background. N.J.S.A. 5:12-52(d). Whether the Lordi Report is included within the meaning of "inquiry" has not been decided by any state court. The Report's status as an "inquiry" is in turn crucial to whether it is a "public record" under the Right to Know Law, N.J.S.A. 47:1A-2 (1978 Supp.) so as to take this case beyond the authority of Nero v. Hyland, 76 N.J. 213, 220, 386 A.2d 846 (1978).
If the Report is not a public record, plaintiff's First Amendment theory may be fatally undercut, See United States v. Marchetti, 466 F.2d 1309, 1317 (4th Cir.), Cert. denied, 409 U.S. 1063, 93 S. Ct. 553, 34 L. Ed. 2d 516 (1972); Knopf v. Colby, 509 F.2d 1362, 1370 (4th Cir.), Cert. denied, 421 U.S. 992, 95 S. Ct. 1999, 44 L. Ed. 2d 482 (1975), Reh. denied, 422 U.S. 1049, 95 S. Ct. 2669, 45 L. Ed. 2d 702 (1975),
thus satisfying the second prong of the test.
Were I to proceed to decide the status of the Report, it would impact on the important areas of the scope of state government executive privilege, and the role of the Attorney General and of the State Police in policy-making and intelligence gathering. Construction of the Casino Control Act and the Right to Know Law are matters for the state courts.
The parties shall submit an order of judgment, consented to as to form, and consistent with this opinion, within ten days.