This matter was decided on August 10, 1979 with the reasons for the decision being placed orally on the record. The issue is rather novel. Because of that, counsel were advised that this formal opinion would be filed subsequently.
The State moves for an order to compel Mark Schweitzer to participate in a line-up. He has not been arrested; no formal charge has been brought against him. On July 8, 1978 one Peter Leone was the subject of a vicious attack. William Lancaster has been indicted and charged with atrocious assault and battery on Leone. The investigation of that crime indicated the presence of a second participant, as yet unidentified. The State believes that the victim or a separate witness to the incident might be able to identify Schweitzer as the other assailant if given an opportunity to view him in a line-up.*fn2 For that reason this application is made.
The fact that the Prosecutor's Office saw fit to make the application at all is troublesome. It indicates a lack of appreciation of the proper role of the judiciary in the broad picture of law enforcement. Except for acting as the "neutral and detached" magistrate in connection with the issuance of search warrants, a court has no place in the investigation of criminal activity. That aspect of law enforcement lies solely with the executive branch. Despite current notions to the contrary, a court may act only when it has jurisdiction to do so.
Reduced to basic terms, jurisdiction of a court is the legal basis upon which judges exercise authority. Judges decide cases and issue orders and judgments which affect human beings in a fundamental way. They may do so only if they have "jurisdiction" over the subject matter to be decided and people to be affected. Jurisdiction is a power of government which, as each power of government, must have its genesis in the people governed. Jurisdiction of a court is essential to the concept of ordered liberty, for insofar as the people grant or withhold jurisdiction to or from their courts, to that extent are they more or less free. The judgment as to whether jurisdiction will or will not be conferred rests with the people; it cannot be arrogated to itself by a court, or even conferred upon a court by consent of the litigants. Therefore, unless a court is able to point to a grant of power by the people of the United States in their Constitution or the people of New Jersey in their Constitution, or to legislation enacted pursuant to Constitution by the representatives of the several states in Congress or by the representations of the people of this State in their Legislature, or to a recognized principle of the common law as it existed at the time of the American Revolution and still subsists -- the court is powerless to decide, or order, or adjudge. See generally, Peterson v. Falzarano , 6 N.J. 447, 454 (1951); Abbott v. Beth Israel Cemetery Ass'n of Woodbridge , 13 N.J. 528, 537 (1953); State v. Osborn , 32 N.J. 117, 122 (1960); Peper v. Princeton
Univ. Bd. of Trustees , 77 N.J. 55, 65 (1978). 22 C.J.S. Criminal Law § 122 at 316.
For purposes of analysis, the concept of jurisdiction is divided into subject-matter jurisdiction and personal jurisdiction. Those cases set forth above were concerned with subject-matter jurisdiction, i.e. , does the court have the power to hear and decide that type of case? As related to the facts of this application, it is obvious that the Superior Court of New Jersey does have subject-matter jurisdiction over an indictment charging the crime of atrocious assault and battery -- should such indictment be returned against a particular individual. But just as obviously it has no jurisdiction over anything until an indictment is returned. In criminal law the jurisdiction of the Superior Court commences with the filing of an indictment and continues until the imposition of sentence upon one judged guilty through the judicial process. After sentencing the defendant is turned over to the custody of the Executive Branch to serve his sentence. State v. Ashby , 43 N.J. 273, 276 (1964); 21 Am.Jur. 2d, Criminal Law § 376 at 398.
Jurisdiction over the subject matter which is obtained by the filing of the indictment does not give a court jurisdiction over the person so that an order may issue directing him to do some required act. In order to obtain jurisdiction over the person of the accused, "process" must be served on him. Gondas v. Gondas , 99 N.J. Eq. 473, 478 (Ch. 1926); Stevens v. Associated Mtg. Co. of New Jersey , 107 N.J. Eq. 297, 299 (Ch. 1930). When an indictment has been returned, unless the accused voluntarily submits to the jurisdiction of the court, a warrant for arrest -- issued by a court having subject-matter jurisdiction -- is the process. 72 C.J.S. Process § 1 at 982; 62 Am.Jur. 2d, Process , §§ 1, 2 and 3 at 784, 785. Process without subject-matter jurisdiction is meaningless. In other words, the process must be "due" in a
14th Amendment sense.*fn3 What the Constitution prohibits is the deprivation of liberty without due process. That is precisely what the order sought here would do. There is no matter pending before the court. What the State seeks is judicially impossible. The motion is denied and the matter dismissed.
The State candidly concedes that it cannot show probable cause for a complaint against Schweitzer and the issuance of a warrant for his arrest. Were that done there would be a real risk of an abuse of process or false imprisonment action. To avoid that risk it ...