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In re Grand Jury Appearance Request by Loigman

June 29, 2004

IN THE MATTER OF THE GRAND JURY APPEARANCE REQUEST BY LARRY S. LOIGMAN, ESQ.


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. M-2003-441.

Before Judges Skillman, Coburn and Wells.

The opinion of the court was delivered by: Coburn, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 4, 2004

Re-argued June 2, 2004

The questions presented by this appeal are whether a citizen of New Jersey is entitled to directly communicate to a county grand jury a request to testify about a matter within its jurisdiction and whether the grand jury has a right to receive such communications. Our answer to both questions is yes.

I.

The case began informally with a February 18, 2002, letter from appellant, a resident of Monmouth County, to the Monmouth County Grand Jury. He advised the grand jury that he and a client had information about"financial irregularities" in the administration of a public program in one of the local townships, and he asked for permission to appear before the grand jury and present the evidence. He sent a copy of the letter to the Assignment Judge. On April 1, 2002, he wrote to the grand jury again, with a copy to the Assignment Judge, noting that there had been no reply to his previous letter, and asking to be informed whether the grand jury planned to address the issue. On April 5, 2002, the Assignment Judge wrote to appellant that"it is inappropriate for you to be communicating with the [g]rand [j]ury...." He added that appellant should direct his concerns to the County Prosecutor or the Attorney General.

By a letter dated March 24, 2003, appellant asked the Assignment Judge for permission to appear before the grand jury. The judge wrote back promptly, advising appellant to take his information to one of the prosecuting authorities, and adding that

[i]t is not the function of the Assignment Judge, who oversees the [g]rand jury, to be burdened with the task of sifting through countless claims by citizens who believe that illegal conduct is taking place. This is within the province of the Attorney General or the County Prosecutor to resolve. On May 14, 2003, appellant filed a verified petition in the Law Division asking the Assignment Judge for permission to ask the grand jury to investigate the previously noted matter. The judge denied the petition, adding that to allow direct communication with the grand jury would unduly burden its ability to function. A confirming order was entered, and this appeal ensued.

The notice of appeal was served on the Assignment Judge and the Attorney General, who had not yet appeared in the case. The Attorney General filed a brief with the clerk of the Appellate Division, not on behalf of the Assignment Judge, but for himself. During the first argument, we asked that the Attorney General inform the twenty-one county prosecutors of the case so that their positions could be determined. In a subsequent letter, the Attorney General advised us that he and all the county prosecutors agreed that the Assignment Judge's ruling was correct.

II.

Heretofore, the courts of New Jersey have treated a citizen's right to directly ask a grand jury to investigate a matter as unremarkable. Thus, in In re Monmouth County Grand Jury, 24 N.J. 318 (1957), the Court noted without negative comment that the grand jury's investigation arose when"complaints were received from a citizens' group...." Id. at 321. And in O'Regan v. Schermerhorn, 25 N.J. Misc. 1 (Sup. Ct. 1946), where the complaint appears to have come from a citizen, Justice (then judge) Ackerson described the grand jury's vast powers as including the power to"investigate... into all alleged offenses against the criminal law regardless of how the information on which it acts is brought to its attention." Id. at 23.

Although our courts have not been previously asked to rule on the issue at hand, the majority and better reasoned view elsewhere expressed is that such direct contact is permissible. Wayne R. LaFave & Jerold H. Israel, Criminal Procedure: Criminal Practice Series § 8.4 at 623-24 (West 1984); 1 Wharton's Criminal Procedure § 195 at 934-35 (Torcia ed., 13th ed. 1989). See also Wanda Ellen Wakefield, Annotation, ...


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