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State v. Township of Lyndhurst

Decided: September 2, 1994.


Carchman, P.J.Ch.



This is a motion to quash deposition subpoenas served on selected members of the New Jersey Senate and Assembly. The issue presented is whether legislators who have previously cooperated and testified in various judicial and investigative proceedings regarding their legislative actions can be compelled in a civil case to give deposition testimony related to the subject matter of their prior testimony. For the reasons set forth below, this court holds that under the Speech or Debate Clause of the New Jersey Constitution, N.J. Const. art. IV, § 4, P 9, their testimony cannot be compelled.

The State of New Jersey appearing through Fred DeVesa, then Acting Attorney General, brought this action against the Township

of Lyndhurst (Lyndhurst) seeking a declaratory judgment voiding the award of a $1,500,000 legislative grant disbursed through the Department of Community Affairs (DCA) to Lyndhurst. Plaintiff seeks an order compelling the return of these funds to the State Treasury.

On January 13, 1994, the Legislature, acting through the Joint Budget Oversight Committee (JBOC), allegedly authorized the $1,500,000 transfer. On January 15, 1992, DCA issued a check in that amount to Lyndhurst. Plaintiff alleges that the members of the governing body of Lyndhurst knew at the time that monies were transferred that the transfer resulted from illegal acts committed by the Legislature -- through the JBOC and the Office of Legislative Services -- and by the executive -- through the DCA.

Public reports of this unusually swift transfer generated a number of investigations. Then Attorney General Robert Del Tufo conducted an independent investigation and issued a comprehensive report. The New Jersey Division of Criminal Justice and the New Jersey State Police Report to Attorney General Robert J. Del Tufo of the Results of the Investigation Into Governmental Processes Employed to Award State Funds to the Township of Lyndhurst Board of Commissioners by the New Jersey Department of Education and the New Jersey Department Of Community Affairs, (Aug. 16, 1993) (Report). Subsequently, the Legislature enacted legislation creating a special prosecutor and, thereafter, former Attorney General George Kugler was appointed as special prosecutor by the Governor. A grand jury heard testimony and returned indictments and a presentment. (Neither the indictments nor the presentment have been made public and are presently the subject of other proceedings.)

Members of the JBOC and their aides participated to varying degrees in these investigations. In fact, Senators Rand, Weiss and Ewing and Assemblymen Roberts, Frelinghuysen and Watson executed a document entitled "Limited Waiver of Legislative Privilege." This document provides:

I, [name], having been a member of the 204th and 205th sessions of the Legislature of the State of New Jersey, having served, and presently serving, as a [Senator/Assemblyman], do hereby waive any claim of legislative privilege on my behalf by any member of my Legislative staff, the [Senate/Assembly party] staff and/or the Office of Legislative Services, with respect to any and all conversations, directions, research, requests, and/or action pertaining to the organization, evaluation, approval and/or execution of the January 13, 1992, transfer of Inter-departmental State Employee Health Benefits funds to the Department of Community Affairs, whether prior to or subsequent to said approval.

Before executing the written waiver and giving a statement to the Attorney General's investigator, Senator Weiss gave an oral waiver on the record to the same effect. (The language of the oral waiver is somewhat different from that of the written waiver. The waiver speaks to the assertion of privilege "on behalf" of the Senator by others, including staff personnel. After reviewing the transcript of the oral waiver, this court concludes that there is no substantive difference between the two waivers.)

The State brought a motion for summary judgment. In support of the motion, several members of the JBOC submitted affidavits detailing their legislative involvement (or lack thereof) in the matter. This court denied the motion without prejudice pending limited discovery of specified individuals including the proposed depositions of each of the six members of the JBOC (Senators Rand, Weiss and Ewing and Assemblymen Roberts, Watson and Frelinghuysen). Asserting the immunity provided in the Speech or Debate Clause, all the subpoenaed members of the JBOC, with the exception of Senator Ewing and Assemblyman Frelinghuysen, now move to quash the deposition subpoenas ad testificandum issued by Lyndhurst. Lyndhurst, the special prosecutor and the Attorney General argue that any immunity which would ...

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