Mcgovern v. Riper

• Decision Date: 18 July 1945
• Docket Number: 148/399.
• Citation: 43 A.2d 514
• Parties: McGOVERN v. VAN RIPER et al.
• Court: New Jersey Court of Chancery

43 A.2d 514

McGOVERN

v.VAN RIPER et al.

148/399.

Court of Chancery of New Jersey.

July 18, 1945.

Action by William McGovern against Walter D. Van Riper and others to enjoin the taking of plaintiff's fingerprints and photograph and sending copies to others. On return of an order to show cause why temporary restraint should not be continued pending final hearing.

Restraint lifted against the taking of complainant's fingerprints and photograph or other criminal identification data, but continued against forwarding, disseminating, or publishing them in advance of conviction unless the complainant shall become a fugitive from justice.

William George, of Jersey City, for complainant.

Mark Townsend, Jr., Deputy Atty. Gen., for defendants.

KAYS, Vice Chancellor.

This matter came before me on the return of an order to show cause why a temporary restraint should not be continued pending final hearing.

The bill of complaint and affidavits annexed thereto allege that William McGovern is the Sheriff of Hudson County and that he has, for many years, held high elective and appointive offices in Jersey City and Hudson County; that he has always borne a good reputation both as a public officer and a private citizen; that he is officially known to most of the law enforcement officials of this and other states; that he resides in Jersey City with his family and intends to continue to reside there and has no intention of leaving the jurisdiction; that he has been indicted by the Hudson County Grand, Jury, charged with having failed to cause certain persons to be fingerprinted and photographed after they pleaded to an indictment against them; and that he is about to be arrested and taken into custody for the purpose of arraignment and pleading to said indictment; that he intends to enter a plea of not guilty, being conscious of his innocence and confident that he will be acquitted of the offenses of which he stands accused.

The bill of complaint further alleged that complainant will be required, pursuant to the statutes of this state, to submit to the taking of his fingerprints and photograph, and that the same will then be forwarded to the superintendent of state police; to the rogues' galleries in other states; to the office of the Federal Bureau of Investigation; to Scotland Yard, England, and to the police departments of other countries; that such fingerprinting and photographing, and the distribution of copies thereof in advance of conviction, as required by our statute, will, among other things, violate his right of privacy, which right is said to be protected by the provisions of the constitution of this state and the constitution of the United States.

Complainant charges that he is without an adequate remedy at law and prays for an injunction against the Attorney General, who is also the Acting Prosecutor of the Pleas of Hudson County, and against the Superintendent of State Police, their agents, etc., enjoining the taking of his fingerprints and photographs, and the forwarding of copies thereof, unless and until he be convicted.

The bill also asks for an ad interim restraint to the same effect. I advised an order to show cause with an ad interim restraint.

The bill of complaint also alleges that the sheriff is not guilty of the offense for which he was indicted. This allegation is immaterial to the issue here presented. It is not the province of this court to pass upon the sufficiency of the indictment.

One of the affidavits filed on behalf of the defendant is that of the solicitor of Frank J. Bartletta, the complainant in the Bartletta cases which are hereinafter referred to. This affidavit establishes nothing which is not already a matter of record in the said cases.

Another affidavit, made by the Acting Supervisor of the State Bureau of Identification, sets forth that ‘the Hudson County Jail’ has furnished the state bureau with several thousand sets of criminal identification records consisting of fingerprints, photographs, etc., since July 1, 1930, and that among these are the fingerprints and photographs of persons not charged with crime and held merely as material witnesses; that certain local police departments in Hudson County have likewise transmitted many thousands of such records. The affidavit further sets forth that more than 640,000 criminal identification records appear in the files of the state bureau and that they are secret and not exposed to public view, etc. So much of this affidavit as relates to law enforcement agencies, over which the sheriff has no control, is not material to the issue. It is neither averred in the affidavit that the state files contain only the records of persons who have been convicted nor is it denied that the records which reach the state bureau are distributed to law enforcement officers and agencies all over the globe.

Another affidavit filed on behalf of the defendant is made by an investigator on the staff of the Acting Prosecutor of Hudson County which sets forth his official duties, principally relating to violations of the statutes concerning gambling, and that when an arrest is made the person is then arraigned before a judge after which all future responsibilities are those of the sheriff. This affidavit is not responsive to the allegations of the bill of complaint and accompanying affidavit and serves no useful purpose in the determination of this matter.

Three other affidavits are filed by persons who were employed in the maritime service who were held in the county jail as material witnesses, and were there fingerprinted and photographed. Whether the sheriff may fingerprint such a witness is immaterial to the issue.

From the proofs before me the allegations of the bill of complaint and the supporting affidavit are uncontroverted by the answering affidavits as to the issues to be decided here. In other words, there is no dispute concerning the facts.

The defendants argue that this court has no jurisdiction to grant the relief sought for several reasons: First, it is urged that equity will not enjoin a threatened criminal prosecution and Moresh v. O'Regan, 122 N.J.Eq. 388, 192 A. 831, 832, 194 A. 156, is cited in support of such contention. In the O'Regan case this court issued an injunction restraining the Prosecutor of Hudson County from proceeding with the prosecution of a criminal complaint. If the relief sought here should be granted it would not prevent the Acting Prosecutor of Hudson County from bringing the complainant to trial upon the indictment. The court, in the O'Regan case, merely said ‘that the Court of Chancery, in the situation herein, was without jurisdiction to enjoin prosecution of indictments.’

The case before me is not to enjoin a criminal proceeding. There are certain circumstances under which this court may restrain prosecutions although that situation does not exist in the pending case. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764. Another exception is suggested by Mr. Justice Donges in the O'Regan case, 122 N.J.Eq. at page 395, 192 A. 831, 194 A. 156.

It is also argued that equity will not restrain a libel or slander, citing the cases of Mayer v. Journeymen Stonecutters' Ass'n, 47 N.J.Eq. 519, 20 A. 492; A. Hollander & Son, Inc. v. Jos. Hollander, Inc., 117 N.J.Eq. 578, 177 A. 80; John R. Thompson Co., Inc. v. Delicatessen, &c., Union, 126 N.J.Eq. 119, 8 A.2d 130. The solicitor of the defendants might also have cited the case of Weiss v. Levine, 133 N.J.Eq. 441, 32 A.2d 574. The reasons assigned for the reluctance of equity to restrain a libel or slander are, that this court will not set itself up as a censor and thereby violate the constitutional guaranties of free press and of free speech, and, that the remedy at law for damages is usually adequate. The circulation of identification records of an accused is not necessarily a libel. He may be found guilty in which case he would not be libeled. However, if the premature dissemination of such data amounts to a libel, the rule would not prevent a court of equity from acting. See 32 C.J., Injunctions, Sec. 432.

Dean Pound, in 29 Harvard Law Rev. 640, said:

‘So long as denial of relief * * * rests on no stronger basis than authority our courts are sure to find a way out.’

‘A way out’ has been indicated by the Supreme Court of Missouri in State ex rel. Reed v. Harris, 1941, 348 Mo. 426, 153 S.W.2d 834, 837. In that case the relators were the chief of police and superintendent of the bureau of criminal identification of Kansas City. The sought a writ of prohibition against the judge to prevent him from entertaining jurisdiction of a pending injunction suit filed by one Root, as plaintiff, against the relators, as defendants. The object of the suit was to enjoin the sending of police photographs and fingerprints of Root to various law enforcement agencies throught the country. Root was charged with a violation of a municipal traffic ordinance. In that case the court took occasion to say:

‘We are satisfied that an action at law for damages would not be an adequate remedy. The damage, if any, flowing from the display of an innocent person's photograph in Rogue's galleries throughout the country, is or might be a continuing one, and not capable of any fair estimation or measurement by a money judgment. The remedy at law would be incomplete, less prompt and less efficient than resort to equitable relief, and, hence, would not constitute a bar to the latter.’

In the case of Itzkovitz v. Whitaker, 115 La. 479, 39 So. 499, 1 L.R.A., N.S., 1147, 112 Am.St.Rep. 272, and in the case of Schulman v. Whitaker, 115 La. 628, 39 So. 737, injunctions were granted against premature circulation of such data in advance of conviction.

I, therefore, conclude that this court has jurisdiction under the circumstances in this case. Such jurisdiction is consistent with the general principle that where the legal remedy by way of a suit for damages is...