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Reiman v. Breslin

Decided: July 8, 1980.

DONALD REIMAN, CHAIRMAN OF THE BERGEN COUNTY CONFERENCE OF POLICE; EDWARD STEMPENSKI, AND ROBERT KEANE, INDIVIDUALLY AND ON BEHALF OF THE CLASS OF ALL OTHER POLICE OFFICERS SIMILARLY SITUATED WITHIN BERGEN COUNTY, PLAINTIFFS-APPELLANTS,
v.
ROGER W. BRESLIN, JR., PROSECUTOR OF BERGEN COUNTY, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Bergen County.

Matthews, Ard and Polow.

Per Curiam

Plaintiffs, police officers in Bergen County, instituted this class action challenging the validity of the Bergen County Prosecutor's practice of issuing "on call" subpoenas which are valid for three weeks or until the subpoenaed officer has testified and been discharged. The assignment judge granted summary judgment to the prosecutor and plaintiffs appeal.

The prosecutor's office has been encountering the problem of police officers failing to appear for trial when their testimony was required. The problem approached serious dimensions in early 1974, and in response thereto the then prosecutor met with the assignment judge and the Bergen County Police Chiefs Association in late 1974 and developed a system for notifying police witnesses of upcoming trials. The plan required the prosecutor's office to notify the police chief of the particular police department involved of its desire to use the testimony of one of the officers. Attached thereto was a subpoena which the chief was required to serve. In addition, the chief had to appoint a liaison officer, who was responsible for producing the subpoenaed officer at the time and place stated in the subpoena. Provisions were made for informing the prosecutor with respect to problems in honoring the subpoena, obtaining information concerning the status of the calendar and notifying all police witnesses of "first-out" and "back-up" cases which required a Monday court appearance.

After the procedure had been in effect for ten months it became apparent that this plan was not effective in dealing with the problem sought to be resolved since the police officers frequently insisted that the subpoena did not require them to be available beyond the date set forth in the subpoena. Thus,

whenever a case listed for trial on the return date was carried on a day-to-day basis or carried over to the next week, many officers believed they were under no obligation to appear when the case was finally assigned for trial.

To avoid any misunderstanding, the prosecutor supplemented this system with the issuance of three-week, on-call subpoenas. Under such a subpoena the subpoenaed officer was compelled to appear at the Bergen County Courthouse at 9 a.m. on a specified date. The subpoena was marked valid for three weeks or until discharged. Although the officer did not necessarily have to report to the court on the date stated on the subpoena, he was put on notice that he was obligated to appear if the trial were rescheduled within the next three weeks. After that period the prosecutor would issue a new subpoena when a new trial date was scheduled. Following the adoption of the on-call subpoena system, the problem of police witnesses failing to appear for trial when their testimony was required was in large part eliminated.

Plaintiffs challenge the authority of the prosecutor to require them to remain on-call beyond the date set forth in the subpoena. In addition they contend that if we determine that the prosecutor can properly issue on-call subpoenas, they should be reasonably compensated for the time in which they are on-call but not otherwise on duty. Although the assignment judge rejected plaintiffs' arguments, he instructed the prosecutor to reword the on-call portion of the subpoena to avoid any ambiguity as to the time period in which the subpoena remained in effect. In its present form, the on-call subpoena is valid for "three weeks commencing unless you are discharged."

To be valid, a subpoena must be issued pursuant to constitutional and legislative authority. Newark v. Benjamin , 144 N.J. Super. 58, 72 (Ch.Div.1976), aff'd o.b. 144 N.J. Super. 389 (App.Div.1976), aff'd o.b. 75 N.J. 311 (1978). The prosecutor relies on R. 1:9-1 and the contempt provisions of N.J.S.A. 2A:81-15 as authority for issuing three-week, on-call subpoenas on police witnesses.

Pursuant to the rule-making provisions of N.J.Const. (1947), Art. VI, § II, par. 3, the Supreme Court adopted R. 1:9-1, which provides:

[a] subpoena may be issued by the clerk of the court or by an attorney or party in the name of the clerk . . . It shall state the name of the court and the title of the action and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. [Emphasis supplied]

It is undisputed that the prosecutor can issue a subpoena in the name of the clerk to compel plaintiffs to appear in court or on a specified date. What the police challenge here is the authority of the prosecutor to use the court's contempt powers, N.J.S.A. 2A:81-15, to compel them to remain on-call beyond the date set forth in the subpoena. Plaintiffs argue that only the courts have the authority to extend the time in which a witness remains subject to a subpoena. They interpret the words "directed to attend and give testimony at the time and place specified therein" in R. 1:9-1 to support their argument.

There is no New Jersey decision defining the scope of the rule's requirement of attending and giving testimony at the time stated on this subpoena, nor have our courts addressed the issue of the legality of on-call subpoenas.

Is is the public duty of every person within the jurisdiction of the government to appear in court when commanded to testify. United States v. Bryan , 339 U.S. 323, 331, 70 S. Ct. 724, 730, 94 L. Ed. 884 (1950). This obligation is an incident to citizenship which cannot be ignored by one who believes that his time should be spent on better things, no matter what his profession may be. Di Palma v. Wiesen , 163 Conn. 293, 303 A.2d 709, 711 (Sup.Ct.Err. 1972). Once subpoenaed, a witness is compelled to remain in attendance until excused by the court or by the party who has summoned him. Blackmer v. United States , 284 U.S. 421, 443, 52 S. Ct. 252, 257, 76 L. Ed. 375 (1932); 97 C.J.S. Witnesses § 20 at 371.

In delineating the scope of one's obligation under a subpoena, the United States Supreme ...


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