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Matter of Doe

June 20, 1997

IN THE MATTER OF JOHN DOE AND ROE CORPORATION.


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

Approved for Publication June 20, 1997.

Before Judges Brochin, Kestin and Eichen. The opinion of the court was delivered by Brochin, J.A.D.

The opinion of the court was delivered by: Brochin

The opinion of the court was delivered by

BROCHIN, J.A.D.

The New Jersey Attorney General served investigative interrogatories on John Doe and Roe Corporation *fn1 pursuant to N.J.S.A. 2C:41-5. That statute reads in part as follows:

a. Whenever the Attorney General determines that there exists a reasonable suspicion that any person or enterprise may have information or be in possession, custody, or control of any documentary materials relevant to an investigation under this chapter [Chapter 41, Racketeering], or whenever the Attorney General believes it to be in the public interest that an investigation be made pursuant to this chapter, he may, prior to the institution of a civil or criminal proceeding thereon, issue in writing, and cause to be served upon the person, an investigative interrogatory requiring him to answer and produce material for examination.

The attorney general served two sets of interrogatories, one on John Doe and one on Roe Corporation. Both sets were substantially identical. Each set consisted of 291 questions. Many of the questions had multiple subparts. The interrogatories also required the parties to whom they were addressed to produce all of the corporate records of Roe Corporation. A face sheet attached to each set of interrogatories recited that the information asked for was necessary in connection with the enforcement of the New Jersey Racketeering Law, N.J.S.A. 2C:41-1 et seq. and, although the language of the face sheet is ambiguous, it apparently was intended to allege that the suspected conduct which constituted racketeering was "the control and financing of [Roe Corporation] and its owner, [John Doe], by Organized Crime."

N.J.S.A. 2C:41-5j reads in part as follows:

At any time before the return date specified in the interrogatory, such person [i.e., any person upon whom an investigative interrogatory has been served] may file in the Superior Court a petition for an order modifying or setting aside the interrogatory. . . . The petition shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon any failure of the interrogatory to comply with the provisions of this section or upon any constitutional or other legal right or privilege of the petitioner. In such proceeding the Attorney General shall establish the existence of an investigation pursuant to this chapter and the nature and subject matter of the investigation.

Pursuant to this section, Doe and Roe petitioned the Law Division of the Superior Court "to set aside the Investigative Interrogatories and accompanying request for documents pursuant to N.J.S.A. 2C:41-5(j)."

Doe and Roe's petition alleged the following grounds for relief:

(1) . . . The investigative powers delegated to the attorney general under N.J.S.A. 2C:41-5 are unconstitutional [because] they impermissibly give the attorney general the power to act as prosecutor and grand jury. . . .

The attorney general has failed to satisfy N.J.S.A. 2C:41-5b(1) by failing to adequately "state the nature of the conduct constituting the alleged ...


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