On appeal from the Division of State Police, Department of Law and Public Safety.
Ard, King and McElroy. The opinion of the court was delivered by King, J.A.D.
This case concerns the collateral civil consequences of a criminal conviction where a federal court has granted habeas corpus and the State has declined to retry defendant or to appeal the grant of the writ.
This is the background. On November 10, 1976 appellant Hackett was found guilty, after jury trial, of kidnapping, N.J.S.A. 2A:118-1, then a high misdemeanor, and simple assault and battery, N.J.S.A. 2A:170-26, a disorderly persons offense. Hackett was sentenced to the then-mandatory term of 30 to 31 years for kidnapping, N.J.S.A. 2A:118-1, and a concurrent six-month term for the simple assault.
Hackett appealed to this court which remanded to the trial division in June 1977 so that he could move for a new trial on the grounds of newly discovered evidence. He contended that two of the three identification witnesses for the State had recanted. The new trial motion failed; the judge found that the recantations lacked "the ring of truth." Thereafter, in June 1978 this court affirmed the convictions in an unpublished opinion and in September of that year our Supreme Court denied certification. 78 N.J. 332 (1978).
Hackett began serving his sentence and on October 19, 1978, while in custody, he filed a petition for a writ of habeas corpus in the United States District Court pursuant to 28 U.S.C.A. § 2254. On February 22, 1979 Governor Byrne signed an order for commutation of Hackett's sentence, reducing it from 30 to 31 years to two to three years. He was released on parole on July 17, 1979.
On July 31, 1980 the District Court ordered that a writ of habeas corpus issue unless the State began retrial within 90 days. Hackett v. Mulcahy, 493 F. Supp. 1329, 1340 (D.N.J.1980). The District Court judge found that Hackett had been deprived of his fundamental rights and due process of law because the trial judge had refused to allow him to call alibi witnesses. The trial judge had precluded the alibi witnesses because of noncompliance
with the State's notice requirement, R. 3:11-1. The District Court judge stated that he "must address an issue which the Supreme Court has twice declined to decide -- whether a notice of alibi statute may be enforced by the exclusion of potentially exculpatory evidence." Id. at 1330-1331 (footnote omitted). The District Court judge considered the defect in the notice of alibi witnesses furnished to the State before Hackett's trial as highly technical in nature, saying
The trial court's refusal to permit the introduction of evidence crucial to petitioner's case visited a terrible punishment on a party innocent of even the minor transgression of the rules revealed by this record. He was deprived of the right to defend himself. The prosecutor's conduct in using the defense which the jury was not permitted to hear to undermine the credibility of the defense which they did hear was grossly unfair. In view of the highly technical nature of his counsel's error, the absence of any evidence of complicity by petitioner in that error, the lack of any prejudice to the State caused by the error, the severe prejudice to petitioner caused by the preclusion sanction, and the use of that sanction by the prosecution before the jury, we find that this defendant was deprived of fundamental rights and of due process of law. [ Id. at 1340.]
The State filed a notice of appeal to the Third Circuit Court of Appeals from the grant of habeas corpus. The notice of appeal was later withdrawn and the appeal was dismissed on September 22, 1980. The Essex County prosecutor's office then informed Hackett that they did not intend to retry him.
In late 1981 Hackett applied for a private detective's license, a profession regulated by the Private Detective Act of 1939. N.J.S.A. 45:19-8 et seq. The license application was denied by the Division of State Police because his conviction for kidnapping created a regulatory disqualification for licensure, N.J.S.A. 45:19-12 (good character, competency and integrity required for license); N.J.A.C. 13:55-1.11(a)(1) (conviction of a high misdemeanor automatic regulatory ban). The regulation compels mandatory disqualification for high misdemeanants if they have "not subsequent to such conviction received executive pardon therefor removing any civil disabilities incurred thereby." N.J.A.C. 13:55-1.11(a)(1). The Private Detective Act itself contains no specific mandatory disqualification for high misdemeanants.
Hackett then requested an administrative hearing which was held by the Office of Administrative Law. The administrative law judge concluded that Hackett's license denial, solely on the ground that his disqualifying conviction for a high misdemeanor was still of record, was appropriate. He gave five reasons for agreeing with the Division of State Police: (1) Hackett's conviction had been affirmed by this court and certification had been denied, (2) the constitutional deprivation was based on an issue never squarely decided by the United States Supreme Court, (3) the refusal of the prosecutor to appeal the grant of the writ or retry the petitioner was not a "concession that the writ was properly issued," (4) no pardon had been granted, and (5) the public interest in strict regulation of private detectives. The Superintendent of State Police adopted the decision of the administrative law judge as his final decision and denied the license. N.J.S.A. 52:14B-10(d).
The traditional power of the federal courts in issuing a writ of habeas corpus has been limited to release of the prisoner. For an interesting recent analysis of the operation of the Federal habeas system see Allen, Schachtman and Wilson, Federal Habeas Corpus and its Reform: An Empirical Analysis, 13 Rutgers L.J. 675 (1982). In Fay v. Noia, 372 U.S. 391, 430-431, 83 S. Ct. 822, 844-845, 9 L. Ed. 2d 837 (1963), the Supreme Court said that "[h]abeas lies to enforce the right of personal liberty; when that right is denied and a person is confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner."
However, in Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968), the Supreme Court ruled that a person bringing a habeas corpus petition under 28 U.S.C.A. §§ 2241-2254 did not have to be in actual custody at the time the writ was decided. Prior to Carafas if a petitioner was released from custody before the decision on the merits, his petition was mooted. Parker v. Ellis, 362 U.S. 574, 80 S. Ct. 909, ...