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In re Grand Jury Apearance Request by Loigman

April 11, 2005

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


On certification to the Superior Court, Appellate Division, whose opinion is reported at 370 N.J. Super. 406 (2004).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court decides whether a person has a right to present directly to the grand jury an allegation or evidence of a crime, an issue of first impression in New Jersey.

Larry S. Loigman, a Monmouth County lawyer, professes to have information bearing on the legality of a staterun program intended to deter underage drinking, called "Cops in Shops." In a February 18, 2002 letter he forwarded to the Monmouth County Grand Jury, a copy of which he sent to Monmouth County Assignment Judge Lawrence M. Lawson, Loigman claimed to have information from a client concerning financial irregularities in the administration of the "Cops in Shops" program in Middletown Township. (the program is a federally-funded project that attempts to reduce the problem of underage alcohol consumption by stationing plainclothes police officers outside of licensed establishments.) In his letter, Loigman alleged that he had attempted to communicate his concerns to the Director of the Division of Alcoholic Beverage Control and requested that an investigation be conducted, but that the Director refused to do so. Therefore, Loigman offered to appear directly before the grand jury to "provide detailed information."

Loigman received no response to his letter, so six weeks later, he again wrote to the members of the grand jury, inquiring whether they intended to address the situation. Judge Lawson replied to the letter, stating that it was inappropriate for Loigman to be communicating directly with the grand jury. He suggested instead that Loigman direct his concerns to the Monmouth County Prosecutor or to the Attorney General, who would then determine whether to present the matter to a county or state grand jury. Instead, one year later, Loigman wrote to Judge Lawson requesting permission to appear before the grand jury with regard to the same matter. Judge Lawson informed Loigman that his position had not changed and again advised him to communicate with the Prosecutor or the Attorney General, noting specifically that he did not possess law enforcement powers and could not undertake the role of "sifting through countless claims by citizens who believe that illegal conduct is taking place." Instead, Loigman, filed a verified petition requesting that Judge Lawson affirm that Loigman had a "right, duty and obligation to inform the Grand Jury about the occurrence of wrongdoing within its jurisdiction...." Loigman also sought an order requiring the clerk of the grand jury to place before the grand jury his earlier letters and to issue a subpoena for Loigman's appearance before that body. Judge Lawson denied that application, finding no case or law giving Loigman "the authority to send information to the Grand Jury." He further declined to promulgate a rule that would "open the floodgates" to countless requests to appear before the grand jury.

In a reported opinion, the Appellate Division reversed and declared that citizens have a right of direct access to the grand jury, subject to judicial screening. The panel noted that no New Jersey court had squarely dealt with this issue before and relied in large part on the rulings of other jurisdictions that allowed citizen access to the grand jury. Emphasizing the important role the grand jury has played as an independent investigative body, the panel found as "untenable" the State's contention that the grand jury should be prevented from receiving communications from private individuals seeking to bring wrongful activity to its attention. Thus, the panel concluded that any direct citizen submission should be made available to the assignment judge by the grand jury clerk when it is received for the judge's determination as to whether he or she should instruct the grand jury on the matter as he or she deems appropriate.

The Supreme Court granted the State's petition for certification.

HELD: A private person does not have the right to present an allegation or evidence of a crime to a grand jury.

1. The grand jury (charging) process is a fundamental protection that has been embedded in our law for more than two centuries. It remains a bulwark against hasty and ill-conceived prosecutions and continues to lend legitimacy to our system of justice by infusing it with a democratic ethos. The indictment requirement of the Constitution does not confer an unbridled right of access, allowing any person to make an accusation or present evidence to the grand jury. (pp. 6-7)

2. In New Jersey, public prosecutors superseded private prosecutors long before the Revolution and in the modern era, it has been the responsibility of the public prosecutor to investigate and prosecute serious crimes, and it has been the role of the victim or concerned citizen to report knowledge of criminal activities to the proper law enforcement authorities. (pp. 7-8)

3. New Jersey Courts have not treated a citizen's right to directly ask a grand jury to investigate a matter as unremarkable. But even if there were support for direct grand jury access by private citizens in our distant common law, such a practice would have to serve a legitimate purpose in our contemporary criminal justice system. (pp. 9-10)

4. To say that the grand jury has far-reaching powers does not imply that any person with a grievance, allegation, or even knowledge of criminal conduct can bypass the appropriate channels for reporting criminal activity and go before that body. Rather, by statute, the state's twenty-one county prosecutors and the Attorney General are exclusively charged with prosecuting the criminal business of the State. Those statutes make no provision for citizen presentations to the grand jury. (pp. 10-13)

5. Our court rules do not contemplate private citizens prosecuting or presenting matters directly to the grand jury. (p. 13)

6. There is no reason to believe that the hundreds of well-trained (some career) and experienced prosecutors throughout the state cannot be trusted to bring before the grand jury meritorious complaints of potential criminal conduct and to weed out frivolous allegations unworthy of prosecution. Moreover, the law enforcement and investigative agencies involved have overlapping jurisdiction, which increases the likelihood that one or more of them will have an interest in pursuing a legitimate claim of wrongdoing. (pp. 14-15)

7. The current procedure, which requires complaint to a prosecutor, not only provides for judicial oversight, but also guards against prosecutions not supported by probable cause and against improper prosecutorial conduct. (pp. 15-17)

8. The procedure suggested by the Appellate Division would require an intolerable level of intrusion by the judiciary into an executive function - the exercise of prosecutorial discretion in deciding not to pursue an investigation or press a charge. Such an erosion of the prosecutor's screening authority would be disruptive of the orderly and fair disposition of cases and increase the likelihood that wrongful indictments will be returned. (pp. 17-19)

9. On this record, and in light of the applicable statutes, court rules, case law, and policy rationale, the Court is unwilling to recognize a common law right of access to the grand jury by private citizens. (pp. 19-20)

Judgment of the Appellate Division is REVERSED.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, WALLACE, and RIVERASOTO join in ...


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