In re Loigman

• Decision Date: 11 April 2005
• Citation: 183 N.J. 133,870 A.2d 249
• Parties: In the MATTER OF THE GRAND JURY APPEARANCE REQUEST BY Larry S. LOIGMAN, Esq.
• Court: New Jersey Supreme Court

870 A.2d 249

183 N.J. 133

In the MATTER OF THE GRAND JURY APPEARANCE REQUEST BY Larry S. LOIGMAN, Esq.

Supreme Court of New Jersey.

Argued February 15, 2005.

Decided April 11, 2005.

Boris Moczula, Assistant Attorney General, argued the cause for appellant, Attorney General of New Jersey (Peter C. Harvey, Attorney General, attorney; H. John Witman III, Deputy Attorney General, of counsel and on the brief).

Larry S. Loigman argued the cause respondent, pro se.

Robert D. Bernardi, Assistant Burlington County Prosecutor, argued the cause for amicus curiae, County Prosecutors Association of New Jersey (Thomas F. Kelaher, Ocean County Prosecutor, President, attorney; Mary R. Juliano, Assistant Monmouth County Prosecutor, on the brief).

ALBIN, Justice.

In this case, Larry S. Loigman, a Monmouth County lawyer, professes to have information bearing on the legality of a state-run program intended to deter underage drinking. He has not reported any allegation of criminal wrongdoing to a state or federal law enforcement agency in New Jersey. Instead, he argues that he has a common law right to present his claims directly to a grand jury for investigation. The Monmouth County Assignment Judge denied Loigman's application for direct access to the grand jury. The Appellate Division ruled in Loigman's favor, holding that a citizen has a right to present his claims to the grand jury, provided that the Assignment Judge determines that the allegation and supporting information merit grand jury consideration. We granted certification and now reverse.

I.

On February 18, 2002, Larry S. Loigman, Esq., forwarded a letter to the Monmouth County Grand Jury stating that he had "detailed information" regarding "financial irregularities" in a federally funded program and offered to appear along with an unnamed client to address the issue before the Grand Jury. Loigman wrote:

Last year, I was advised by a client of certain financial irregularities in the administration of the "Cops in Shops" program in Middletown Township. My review of available records confirmed the existence of such irregularities. ("Cops in Shops" is a federally-funded project which attempts to reduce the problem of underage alcohol consumption, by stationing plainclothes police officers outside licensed establishments.)

Since the "Cops in Shops" money is funneled through the Division of Alcoholic Beverage Control, I contacted the Director of the ABC and requested that an investigation be conducted. However, the ABC has refused to investigate. . . .

If the Grand Jury is interested in addressing this situation, both my client and I would be available at your convenience to provide detailed information.

Six weeks later, having received no response to his letter, Loigman wrote again to the members of the grand jury, inquiring whether they "intend[ed] to address this situation or, as with so much of the public official corruption in this State, it will remain uninvestigated." Monmouth County Assignment Judge Lawrence M. Lawson, who was copied on those letters, replied to Loigman. Judge Lawson stated that it was "inappropriate for [Loigman] to be communicating with the Grand Jury" and suggested that he "direct [his] concerns" to the Monmouth County Prosecutor or the Attorney General, who would then determine whether to present the matter to a county or State grand jury.

A year later, Loigman still had not filed a report with a state or federal law enforcement agency concerning "Cops in Shops." Nevertheless, in March 2003, Loigman wrote to Judge Lawson requesting permission to appear before the grand jury with regard to that matter. Judge Lawson responded that his position had not changed and again advised Loigman to contact the Monmouth County Prosecutor's Office or Attorney General's Office. Judge Lawson noted that although he had supervisory control over the grand jury, 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." Judge Lawson deferred to the prosecutor whose statutory authority, experience, and investigative resources placed him in the best position to determine whether any evidence of criminality warranted a presentation to a grand jury.

Loigman then 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 grand jury clerk to place before the grand jury his earlier letters and to issue a subpoena for Loigman's appearance before that body. Judge Lawson denied the application because there was "simply no case or law" giving Loigman "the authority to send information to the Grand Jury." Judge Lawson declined to promulgate a rule that would "open the floodgates" to countless requests to appear before a grand jury. The Appellate Division reversed and declared that citizens have a right of direct access to the grand jury, subject to judicial screening. In re Grand Jury Appearance Request by Larry S. Loigman, Esq., 370 N.J.Super. 406, 407-08, 413, 851 A.2d 671 (App.Div.2004). 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. See id. at 409-12, 851 A.2d 671. With reference to this state's case law, the panel emphasized the important role the grand jury has played as an independent investigative body possessed of "`extraordinary powers'" and responsibility to "`direct[ ] its own efforts.'" Id. at 411, 851 A.2d 671 (quoting State v. Doliner, 96 N.J. 236, 249, 475 A.2d 552 (1984)). In that light, the panel found "untenable [the State's] contention that the grand jury should be prevented from receiving communications from private individuals who seek to bring to its attention wrongful activity within its jurisdiction." Id. at 411-12, 851 A.2d 671. The panel concluded that

any citizen submission directly to the grand jury should be made available to the [assignment] judge by the grand jury clerk when it is received. The judge may then determine whether he or she should instruct the jury on the matter. In this case, since the communication has already been intercepted, the Assignment Judge shall submit it to the grand jury with such instructions as he deems appropriate.

[Id. at 413, 851 A.2d 671.]

We granted the State's petition for certification, In re Grand Jury Appearance Request by Larry S. Loigman, Esq., 182 N.J. 140, 861 A.2d 845 (2004), and now reverse.

II.

We must decide an issue of first impression in New Jersey: whether a person has a right to present directly to the grand jury an allegation or evidence of a crime. No statute, court rule, or court opinion in this state — other than the decision below — has recognized such a right. If a citizen's right of grand jury access exists, it must be found in this state's common law; if it has a place in our modern — day criminal justice system, it should advance an important public interest. We, therefore, begin our discussion with an analysis of the grand jury's role in our system of justice.

The New Jersey Constitution provides that "[n]o person shall be held to answer for a criminal offense, unless on the . . . indictment of a grand jury. . . ." N.J. Const. art. I, ¶ 8. That fundamental protection in the charging process has been embedded in our law for more than two centuries and has its roots in English history. See State v. Rockafellow, 6 N.J.L. 332, 339 (Sup.Ct.1796) ("Without a legal presentment, no man can, under our administration of the laws, be tried for any heinous offence. . . ."), overruled on other grounds, In re Public Highway, 22 N.J.L. 293, 299 (Sup.Ct.1849); see also State v. Hogan, 144 N.J. 216, 228, 676 A.2d 533 (1996)

(noting that grand jury's responsibility "to protect[] the innocent from unfounded prosecution" has "roots in English history" (internal quotations omitted)). The grand jury's duty is not only to bring to trial those who are probably guilty, but also to clear the innocent of baseless charges. Hogan, supra, 144 N.J. at 228,

676 A.2d 533. The grand jury has fulfilled its "historic purpose [by] standing between the defendant and the power of the State, protecting the defendant from unfounded prosecutions." State v. Fortin, 178 N.J. 540, 638, 843 A.2d 974 (2004). 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." Ibid. The indictment requirement of Article 1, Paragraph 8, is a constitutional protection that enhances the integrity of the charging process. It does not confer an unbridled right of access, allowing any person to make an accusation or present evidence to the grand jury.

Before the advent of the professional prosecutor and our present-day Constitution, private prosecutions before a grand jury may have been acceptable, but for more than a hundred years no such practice has existed. See State v. Winne, 12 N.J. 152, 164-66, 96 A.2d 63 (1953)

; McBlain v. Edgar, 65 N.J.L. 634, 636, 48 A. 600 (E. & A.1901). In early English common law,

it was the duty of everyone against whose person or property a crime had been committed to prosecute the guilty one to conviction. He was, in the discharge of this duty, often compelled to employ counsel, procure the indictment to be drawn and laid before the grand jury, with the evidence in its support, and if found, to see that it was properly prosecuted before the jury of trials.

Such a practice is not observed here. We have public prosecutors in every county.

[McBlain, supra, 65 N.J.L. at 636, 48 A. 600 (citations omitted).]

In New Jersey, "public prosecutors superseded private prosecutors long before the Revolution," and by 1822 the name of a prosecutor was listed in...