On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Matthews, Antell and Francis. The opinion of the court was delivered by Matthews, P.J.A.D.
[188 NJSuper Page 62] Appellants appeal from an order prohibiting them from invoking the privilege granted to the spouse of an accused under
Evid.R. 23(2) in proceedings before the State Commission of Investigation. They argue that the court erred in determining that the privilege did not apply to proceedings before the Commission.
On October 20, 1981 appellants Ann Vitabile and Stephanie LaRasso were served with subpoenas ad testificandum and duces tecum directing them to appear before the State Commission of Investigation with certain records in connection with the Commission's investigation. The subpoena indicated the nature of the investigation as:
Whether the laws of the State of New Jersey are being faithfully executed and effectively enforced with particular reference to organized crime and racketeering; the effect of organized crime and racketeering as it relates to the State of New Jersey with specific reference to the County of Union, New Jersey, particularly relating to the organized crime family of Simone Rizzo DeCavalcante/John [illegible] and the apparent change in leadership of said family and the relationship that said family maintains with other known organized crime families from New Jersey and other states including states that border New Jersey which have an impact on the social, economic, political and business life of the State of New Jersey and particularly Union County.
According to the certification of Ann Vitabile, her husband had been under a subpoena from the Commission for the past three years and has not been released from that subpoena. Stephanie LaRasso asserted in her certification that her husband had been under a similar outstanding subpoena for the past ten years and that he had appeared before the Commission pursuant to that subpoena. Moreover, she asserted that her husband had received a document indicating that he was a target of an investigation concerning the offenses of promoting gambling, receiving stolen property, bringing stolen property into the State of New Jersey, and conspiracy to commit these offenses. She apparently refers to the notice that an order had been entered granting New Jersey State Police authority to intercept the wire communications of her husband as well as others engaged in committing the specified offenses.
Appellants appeared before the Commission on November 12, 1981 with most of the items specified in the subpoenas. However,
both witnesses refused to respond to a number of questions, invoking the privileges of Evid.R. 23(2) (spouse of an accused in a criminal action) and Evid.R. 28 (marital privilege -- confidential communications).
On November 19, 1981, on the basis of a petition by the Commission, Judge Lenox issued an order to show cause why appellants should not be ordered to answer responsively questions posed by the Commission. The matter was heard on December 7, 1981.
In his oral opinion rendered on that date the judge noted that the husbands of appellants had been under open-ended subpoenas and that Louis LaRasso had been notified of the interception of his telephone communications. The judge stated, however, that there had been no evidence that the electronic surveillance was related to the Commission's investigation.
The judge ruled that due process in the context of a Commission hearing did not require that appellants be entitled to invoke the privileges provided under the Rules of Evidence. His reasoning is found in the following portion of his quotation from Hannah v. Larche, 363 U.S. 420, 442-443, 80 S. Ct. 1502, 1514-1515, 4 L. Ed. 2d 1307 (1960):
It is probably sufficient merely to indicate that the rights claimed by respondents are normally associated only with adjudicatory proceedings, and that since the Commission does not adjudicate, it need not be bound by adjudicatory procedures. Yet, the respondents contend, and the court below implied, that such procedures are required since the Commission's proceedings might irreparably harm those being investigated by subjecting them to public opprobrium and scorn, the distinct likelihood of losing their jobs, and the possibility of criminal prosecutions. That any of these consequences will result is purely conjectural. There is nothing in the record to indicate that such will be the case or that past Commission hearings have had any harmful effect upon witnesses appearing before the Commission. However, even if such collateral consequences were to flow from the Commission's investigations, they would not be the result of any affirmative determinations made by the Commission, and they would not affect the legitimacy of the Commission's investigative function.
In response to the argument that the proceedings conducted by the Commission were criminal and accusatory in nature, particularly in view of the statutory requirement that the Commission forward ...