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State v. Doliner

Decided: May 31, 1984.


On certification to the Superior Court, Appellate Division.

For affirmance in part, reversal in part & remandment -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.


[96 NJ Page 241] This case concerns the standard that shall govern the disclosure of grand jury materials to government departments for use in civil prosecution. We hold that the standard is a strong showing of particularized need that outweighs the public interest in secrecy of the grand jury proceedings. We find that the record made before the trial court sustains its decision to release the records of the defendant medical providers, which were subpoenaed in connection with a Medicaid fraud investigation. However, the record requires a remand to evaluate the character of the other materials sought in order to apply the standard we adopt.

In August 1978, the Attorney General's office instituted a criminal investigation into the business and affairs of New Jersey Center for Counseling and Psychotherapy (NJCCP), a private mental health institution, and its nonprofit subsidiary Central Jersey Mental Health Center, Inc. (CJMHC). NJCCP was owned and operated by defendant Anthony Todaro, Ph.D., a psychologist, who also served as executive director of CJMHC. Paul Doliner, M.D., a psychiatrist, was CJMHC's medical director, and Marlene Todaro served as financial director in both corporations. The investigation continued for approximately two years. Pursuant to subpoena, CJMHC, NJCCP, Doliner, and the Todaros furnished a voluminous number of original documents to the statewide grand jury investigating the matter. The documents were primarily the billing and patient records of the two corporations and their professional members. The defendants state that they cooperated fully with the Attorney General's office despite the great inconvenience to their business and personal affairs.

On June 3, 1980, in connection with the investigations, the grand jury indicted defendants CJMHC, Doliner, and the Todaros. NJCCP was not indicted. The case was assigned to Union County for trial pursuant to Rule 3:14-1(k).

Defendant CJMHC pleaded guilty to six counts of Medicaid fraud. The remaining counts against CJMHC as well as all counts against defendants Doliner, and the Todaros were dismissed.

On April 2, 1982, CJMHC was sentenced in Union County. At that time, defendants orally requested that the State return all defendants' documents since criminal proceedings were now terminated. This request was denied.

On April 26, 1982, defendants moved before the sentencing judge for return of all original records of NJCCP, CJMHC, Doliner, and the Todaros in the possession of the Attorney General.

The State moved before the Mercer County judge assigned to the statewide grand jury under Rule 3:6-11(b) to retain the subpoenaed records and disclose them and the grand jury transcripts and exhibits to two divisions of the Attorney General's office (the Division of Law and the Division of Consumer Affairs), and to the Division of Medical Assistance and Health Services in the Department of Human Services.*fn1

On May 21, 1982, the sentencing judge declined to hear the merits of defendants' motion and ordered that both motions be heard by the judge in charge of statewide grand jury matters.

On June 11, 1982, that court granted the State's motion for disclosure of the records and the grand jury testimony and the defendants' motion for return of its records. It gave the State ninety-five days to examine and copy defendants' records and directed that at the end of that time they be returned. The order was stayed to permit appeal. The Appellate Division affirmed the trial court on the basis of its oral opinion. We granted defendants' petition for certification. 94 N.J. 566 (1983).


Most discussions of grand jury issues begin with an attempt to penetrate the "long shadows of history [that] enshroud the

precise moment when the first grand jury was established." In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 27 (2d Cir.1981), cert. den. sub nom. Connecticut v. Cuisinarts, Inc., U.S. , 103 S. Ct. 1520, 75 L. Ed. 2d 945 (1983); see Note, The Grand Jury: Powers, Procedures, and Problems, 9 Colum. J.L. & Soc. Probs. 681, 681-85 (1973); Helmholz, The Early History of the Grand Jury and the Canon Law, 50 U.Chi.L.Rev. 613 (1983). Commentators differ about the purpose and functions of a grand jury in a modern system of criminal justice: whether it is more appropriately viewed as a sword or shield. See Orfield, The Federal Grand Jury, 22 F.R.D. 343 (1959); Kaufman, The Grand Jury -- Its Role and Its Powers, 17 F.R.D. 331 (1955); Note, 9 Colum.J.L. & Soc.Probs., supra.

We deal here with a state grand jury. For purposes of this appeal, then, we view the grand jury as it actually functioned -- as a criminal investigative agency. The State Grand Jury Act, N.J.S.A. 2A:73A-1 to -9, contemplates a grand jury quite unlike traditional county grand juries: "It is a new weapon, or agency, created by the Legislature to enforce the criminal law * * *." State v. Zicarelli, 122 N.J. Super. 225, 235 (App.Div.), certif. den., 63 N.J. 252, cert. den., 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973).

The act authorizes the Supreme Court to promulgate rules and regulations necessary to govern the procedures of state grand juries. N.J.S.A. 2A:73A-3. We made our rules governing grand juries generally applicable to the state grand jury. R. 3:6-11(a). Those rules provide that except for disclosure to defendants under Rule 3:13-3 and Rule 3:17, "the ...

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