Cashen v. Spann

• Decision Date: 25 February 1975
• Citation: 66 N.J. 541,334 A.2d 8
• Parties: Paul CASHEN and Irene Cashen, his wife, Plaintiffs-Respondents and Cross- Appellants, v. Frank SPANN et al., Defendants-Appellants and Cross-Respondents, and Charles M. Egan, Jr., et al., Defendants-Respondents, and The State of New Jersey, Intervenor-Appellant.
• Court: New Jersey Supreme Court

Page 541

66 N.J. 541

334 A.2d 8

Paul CASHEN and Irene Cashen, his wife, Plaintiffs-Respondents and Cross- Appellants, v. Frank SPANN et al., Defendants-Appellants and Cross-Respondents, and Charles M. Egan, Jr., et al., Defendants-Respondents,

and

The State of New Jersey, Intervenor-Appellant.

Supreme Court of New Jersey.

Argued Oct. 22, 1974.

Decided Feb. 25, 1975.

Stephen S. Weinstein, Morristown, for defendants-appellants and cross-respondents, Frank Spann, Robert Bickley and John Dunne (Herbert M. Korn, Morristown, on the brief).

Joseph S. Accardi, Newark, for plaintiffs-respondents and cross-appellants, Paul Cashen and Irene Cashen (Accardi & Koch, Newark, attorneys; Joseph S. Accardi, on the brief).

Richard W. Berg, Deputy Atty. Gen., for intervenor-appellant, State of N.J. (William F. Hyland, Atty. Gen., attorney; Richard W. Berg, of counsel and on the brief).

William T. McElroy, Morristown, for defendants-respondents, Charles M. Egan, Jr., Anthony De Biasi and County of Morris (McElroy, Connell, Foley &amp Geiser, Morristown, attorneys; William T. McElroy, of counsel; Edward B. Deutsch, Morristown, on the brief).

Charles A. Sweeney, Morristown, for defendant-respondent, N.J. Bell Tel. Co.

The opinion of the Court was delivered by

PASHMAN, J.

This is a civil action for damages arising out of an allegedly illegal search of plaintiffs' home. On June 19, 1970 detectives of the Morris County Prosecutor's Office and police officers from the Borough of Wharton executed a search warrant at plaintiffs' residence seeking evidence of gambling activity. The detectives allegedly relied upon information provided by a 'reliable informer' in preparing the affidavit in support of the search warrant. The facts are set out in some detail below and need not be recited at length here. It suffices to note that it is now conceded that the affidavit was grossly erroneous in significant respects and that the search failed to reveal any evidence of gambling activity.

To recover for damages resulting from the preparation of the erroneous affidavit and the execution of the search warrant, plaintiffs instituted the present suit against the Prosecutor of Morris County, four detectives, New Jersey Bell Telephone Company, the County of Morris, the Borough of Wharton, and 'John Doe,' the 'reliable informer,' whose identity is unknown.

The trial court granted motions for summary judgment in favor of all defendants and denied plaintiffs' motion to compel answers to interrogatories which would have required the disclosure of the identity of the informer. In a well-reasoned and indepth opinion by Judge Lynch, the Appellate Division affirmed the summary judgment for all of the defendants except three of the detectives, Bickley, Spann, and Dunne, and reversed the denial of plaintiffs' motion to compel discovery as to the identity of the informer. Cashen v. Spann, 125 N.J.Super. 386, 311 A.2d 192 (App.Div.1973). We granted petitions for certification by the detectives, and the State, ¹ and the cross-petition submitted by plaintiffs. 65 N.J. 290, 321 A.2d 251 (1974).

With certain modifications discussed below, the judgment is affirmed substantially for the reasons expressed by the Appellate Division.

I

Relying on Hann v. Lloyd, 50 N.J.L. 1, 11 A. 346 (Sup.Ct.1887), the Appellate Division's analysis of the immunity of the defendant prosecutor proceeded on the theory that the 'prosecutor was cloaked with the same immunity as possessed by a judge.' Cashen, supra 125 N.J.Super. at 395, 311 A.2d at 197. We do not believe that this approach is supported by the law of this State, but in any event, we feel that there are compelling reasons for distinguishing the two forms of official immunity.

The unqualified immunity of judges is well established in New Jersey. As early as 1818, in Little v. Moore, 4 N.J.L. 82 (Sup.Ct.1818), the court observed that it is a 'universal position, which admits of no exception' that judges are immune from suit for mere errors of judgment in the discharge of their official duties. 4 N.J.L. at 83. Commenting on the need for recognizing this immunity, the court said:

It is a principle which lies at the very foundation of a free, vigorous and independent administration of justice. It may be traced from the earliest periods of our judicial history down to the present day. * * * Indeed, were we to subject the judges of the established courts of justice to private prosecutions whenever the passions or resentments of disappointed suitors might dictate that measure we should subdue their independence and destroy their authority. (4 N.J.L. at 84) ²

The principle which recognizes that judges must be free from the threat of civil suit in order to discharge their judicial functions with the independence required by the public interest has been consistently adhered to by the courts of this State in the years since Little, supra; Mangold v. Thorpe, 33 N.J.L. 134, 136--37 (Sup.Ct.1868); Loftus v. Fraz, 43 N.J.L. 667, 669 (E. & A. 1881); Grove v. Van Duyn, 44 N.J.L. 654, 656--57 (E. & A. 1882). More recently in O'Regan v. Schermerhorn, 25 N.J.Misc. 1, 50 A.2d 10 (Sup.Ct.1946), a suit by a former prosecutor and his assistants against the members of a grand jury alleging libel, the court observed that the grand jury operates as an arm of the court. 25 N.J.Misc. at 19, 50 A.2d 10. With reference to judicial officers, the court said:

It is settled by the great weight of authority, on considerations of public policy, that all officers exercising judicial functions are absolutely privileged in what they speak, write or do in the performance of their judicial acts, at least where such statements are relevant and pertinent to the matter before them. Such acts are judicial acts and cannot form the basis for money damages, if the officer had jurisdiction of the parties and jurisdiction or color of jurisdiction of the subject-matter, even though in exercising such jurisdiction he acts erroneously, illegally, irregularly or in excess of jurisdiction, and such acts are alleged to have been done maliciously and corruptly. (25 N.J.Misc. at 20, 50 A.2d at 21).

The United States Supreme Court has also had occasion to consider the concept of judicial immunity, and in the early case of Bradley v. Fisher, 80 U.S. (13 Wall) 335, 20 L.Ed. 646 (1872), the Court declared that it is a principle of 'the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself.' 82 U.S. (13 Wall) at 347. The Court also emphasized that the immunity afforded to judges was firmly established not only in the common law, but in other systems of jurisprudence as well:

The principle, therefore, which exempts judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions, obtains in all countries where there is any well-ordered system of jurisprudence. It has been the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country.

It has, as Chancellor Kent observes, 'a deep root in the common law.'

(80 U.S. (13 Wall.) at 347 (citation omitted)).

More recently, in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), the Court reiterated the historic nature of the privilege by observing that '(f)ew doctrines were more solidly established at common law.' 386 U.S. at 553--54, 87 S.Ct. at 1217. The Court, however, emphasized that the privilege is recognized not to protect the corrupt judge, but rather for the benefit of the public in whose interest it is that judges must be free to exercise the functions of their office without fear of the consequences. 386 U.S. at 554, 87 S.Ct. 1213. See also McCray v. Maryland, 456 F.2d 1 (4 Cir. 1972).

Although it is clear that the public has a comparable interest in the independence of the prosecutorial function which warrants the extension to them of a limited form of immunity, we decline to characterize prosecutorial immunity as absolute or to equate it with its judicial counterpart. In so doing we are mindful that the courts of other jurisdictions have often compared the official immunity of prosecutors to that enjoyed by judges. See e.g., Yaselli v. Goff, 12 F.2d 396, 404 (2 Cir. 1926), aff'd per curiam, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927); Bethea v. Reid, 445 F.2d 1163, 1166 (3 Cir. 1971), cert. den. 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (1972); Bauers v. Heisel, 361 F.2d 581, 589 (3 Cir. 1966), cert. den. 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967); Gabbard v. Rose, 359 F.2d 182, 185 (6 Cir. 1966); Kenney v. Fox, 232 F.2d 288, 290 (6 Cir. 1956), cert. den. 352 U.S. 856, 77 S.Ct. 84, 1 L.Ed.2d 66 (1956); Lundblade v. Doyle, 376 F.Supp. 57, 60 (N.D.Ill.1974). In our view, however, there are persuasive reasons for not equating the two forms of immunity.

We are also satisfied that the case law of this State is consistent with our conclusion that the two forms of immunity are not identical. Although the issue of prosecutorial immunity had occasionally been before the lower courts, ³ in State v. Winne, 12 N.J. 152, 96 A.2d 63 (1953), a criminal prosecution for nonfeasance in office, Chief Justice Vanderbilt indicated that the Supreme Court had not yet considered the problem:

It is to be noted that in some jurisdictions a county prosecutor is not subject to a civil suit for damages at the hands of an aggrieved citizen, though that point has not been passed on here. (12 N.J. at 170, 96 A.2d at 72 (citations omitted)).

Later that same year, this Court decided Earl v. Winne, 14 N.J. 119, 101 A.2d 535 (1953), an action against the Bergen County Prosecutor and two of his detectives. The complaint alleged false arrest and imprisonment, malicious prosecution,...