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State v. Gregorio

Decided: August 18, 1982.


Baime, J.s.c. (temporarily assigned).


This case presents difficult questions of great public concern. At issue is whether the separation of powers doctrine*fn1 or the speech or debate clause*fn2 of the New Jersey Constitution precludes the prosecution of a State Senator for wilfully providing false information in a financial disclosure statement filed pursuant to the Conflicts of Interest Law.*fn3 Other questions pertain to whether a criminal prosecution in this factual context contravenes constitutional provisions which invest the Legislature with the power to "judge [the] qualifications of its own members"*fn4 and confer upon it the authority to "punish [them] for disorderly behavior."*fn5 Because of the transcendent importance of the issues raised, the State Senate requested and was granted leave to appear in the role of amicus curiae.

These questions are presented within the context of a motion to dismiss several charges contained in a multicount indictment returned by the state grand jury. In essence, the indictment alleges that defendant, a State Senator, failed to report income received from the gross receipts of two licensed liquor establishments in financial disclosure statements filed with the Joint Legislative Committee on Ethical Standards. These reports were submitted pursuant to the code of ethics adopted by both houses of the Legislature in a joint resolution under the Conflicts of Interest Law. The State contends that defendant's failure to disclose such income constitutes a violation of N.J.S.A. 2C:28-7. That statute proscribes the making of a false entry in any record or document "received or kept by the government for information."

Defendant's motion is grounded upon the claim that the filing of a fraudulent financial disclosure statement does not constitute a criminal offense within the purview of N.J.S.A. 2C:28-7. The principal thrust of defendant's argument is that the judiciary lacks jurisdiction to adjudicate a criminal prosecution where the conduct comprising the offense also constitutes a violation of the legislative code of ethics. This contention is predicated upon the argument that review of a code of ethics violation rests solely with the Joint Legislative Committee on Ethical Standards. Defendant thus asserts that the present prosecution constitutes an unconstitutional intrusion by the Executive Branch into an essentially legislative domain. As such, defendant argues that the indictment is violative of the separation of powers doctrine. Defendant also contends that the privileges and immunities accorded legislators by the speech or debate clause preclude prosecution. It is argued that the submission of a financial report pursuant to the code of ethics constitutes a legislative act immune from review by the Executive and Judicial Branches.

The argument advanced by the Senate is somewhat related. More specifically, the Senate contends that the code of ethics was adopted pursuant to the rule-making power accorded each house to "determine the rules of its proceedings, and punish its members for disorderly behavior." N.J. Const. (1947), Art. IV, § 4, par. 3. It is the Senate's contention that the requirement of filing financial disclosure statements constitutes an internal rule promulgated by the Legislature to police its own members, in furtherance of its constitutional duty to judge their qualifications and insure proper discipline. Succinctly stated, the Senate argues that the present prosecution constitutes an unlawful arrogation of power by the Executive Branch.


These novel questions must be considered within the context of New Jersey's efforts to combat official corruption and advance

public confidence in its governmental institutions. Perhaps it bears repeating that our government is founded upon trust. We entrust those who govern with broad powers to formulate and implement public policy and "we have faith that they will properly perform their obligation." Hyland, "Combatting Official Corruption in New Jersey, "3 Crim. J.Q. 164 (1975). It has long been recognized that public officials "stand in a fiduciary relationship to the people whom they have been elected or appointed to serve." Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 474 (1952). In performing their responsibilities, members of government act as trustees of the public weal and, thus, are "under an inescapable obligation to serve the [people] with the highest fidelity." Ibid. These principles are not mere platitudes. They represent the first rule of good government.

History has sadly revealed that public trust in government and its officers has often been misplaced and that "a lack of accountability breeds public ineptitude, waste and criminal misconduct." Hyland, op. cit., at 164. It has been observed that although our government is one of law, it is managed by men and women "who are not immune from human frailties." Id. at 165. Lawlessness is an evil in itself. When a public official strays, the harm is particularly acute, because his activities are inimical to the public interest.

The Conflicts of Interest Law was one of many measures enacted by the Legislature to protect the public against official corruption. Its articulated objective was to insure that the "conduct of public officials and employees shall hold the respect and confidence of the people." N.J.S.A. 52:13D-12(a). To implement the legislative aim that "officials avoid conduct which is in violation of the public trust," ibid., the statutory scheme established broad standards and guidelines. N.J.S.A. 52:13D-12. Additionally, the law mandated that each governmental agency formulate a code of ethics adapted to its particular needs and conditions. N.J.S.A. 52:13D-12(b) and 23(a). Within this unique statutory scheme, the Legislature is designated a state "agency" N.J.S.A. 52:13D-13(a). The chief presiding

officer of each legislative house is to serve as head of the state agency. N.J.S.A. 52:13D-13(d)(2). Jurisdiction to administer and enforce the legislative code of ethics is vested in the Joint Legislative Committee on Ethical Standards.*fn6 Among the powers conferred upon the joint committee is the authority to "initiate, receive, hear and review complaints regarding violations of the statutory provisions of the Act and the code of ethics." N.J.S.A. 52:13D-22(h). A violation by a member of the Legislature subjects the offender to a fine of between $100 and $500. Ibid. A member who is found guilty by the joint committee is subject to "such further action as may be determined by the house of which he is a member." N.J.S.A. 52:13D-22(j). Under the act, the joint committee is to report its findings and recommendations to the appropriate house. Ibid. However, it is the sole responsibility of the house to determine what further action, if any, shall be taken against such member." Ibid.

Pursuant to its mandate, the Legislature adopted a code of ethics every two years following enactment of the Conflicts of Interest Law in 1971.*fn7 Nevertheless, the requirement that members submit financial disclosure statements was first promulgated in 1980. The applicable provision states that each member is required to file such a statement within 60 days of the adoption of the code. Legislative Code of Ethics, Fitzgerald's Legislative Manual, § 2.14a (1981). The disclosure statement, which is prescribed by the joint committee, is ...

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