Morss v. Forbes

• Decision Date: 20 May 1957
• Docket Number: No. A--66,A--66
• Citation: 24 N.J. 341,132 A.2d 1
• Parties: H. Russell MORSS, Jr., Union County Prosecutor, Plaintiff-Appellant and Cross-Respondent, v. Malcolm S. FORBES, Donal C. Fox, Frank W. Shershin, Dominick A. Cundari, Paul M. Salsburg and Joseph W. Thuring, individually and as members of the Legislature of the State of New Jersey and as members of the 'Joint Legislative Committee to Study Wiretapping and the Unauthorized Recording of Speech,' Defendants-Respondents and Cross-Appellants.
• Court: New Jersey Supreme Court

Page 341

24 N.J. 341

132 A.2d 1

H. Russell MORSS, Jr., Union County Prosecutor, Plaintiff-Appellant and Cross-Respondent, v. Malcolm S. FORBES, Donal C. Fox, Frank W. Shershin, Dominick

A. Cundari, Paul M. Salsburg and Joseph W. Thuring,

individually and as members of the Legislature of the State

of New Jersey and as members of the 'Joint Legislative

Committee to Study Wiretapping and the Unauthorized

Recording of Speech,' Defendants-Respondents and Cross-Appellants.

No. A--66.

Supreme Court of New Jersey.

Argued March 16, 1957.

Decided May 20, 1957.

David M. Satz, Jr., Deputy Atty. Gen., and Grover C. Richman Jr., Atty. Gen., argued the cause for plaintiff-appellant and cross-respondent (David D. Furman, Deputy Atty. Gen., on the brief).

Walter H. Jones, Newark, argued the cause for defendants-respondents and cross-appellants, as members of the Senate and General Assembly (Russell T. Kerby, Jr., Summit, attorney for defendants-respondents and cross-appellants, as members of the Joint Legislative Committee, etc.).

The opinion of the court was delivered by

WACHENFELD, J.

The plaintiff, Prosecutor for Union County, appeals by leave of the Appellate Division, granted pursuant to R.R. 2:2--3, from part of an interlocutory judgment rendered in the Superior Court, Chancery Division, on October 9, 1956. We granted certification on our own motion.

The defendants are members of the Legislature of the State of New Jersey and by Senate Concurrent Resolution No. 4 (1956) are designated and function as the 'Joint Legislative Committee to Study Wiretapping and the Unauthorized Recording of Speech.' The defendants hereafter are referred to as the 'Committee.'

During its study and investigation the Committee requested certain information from the plaintiff concerning his knowledge of wiretapping activities. On July 18, 1956 he appeared voluntarily before the Committee at a closed session and there disclosed that on three occasions he had obtained information by way of wiretaps on telephone lines of suspected violators of the criminal law. He contended his actions were not in violation of N.J.S. 2A:146--1, N.J.S.A. which makes the willful and malicious interception of telephonic communications a misdemeanor.

While plaintiff voluntarily revealed the nature and scope of his own activities, he withheld all other information from the Committee regarding these transactions on the basis that as a matter of public policy he was obliged to guard against the disclosure of confidential communications and to protect the identity of informants. Plaintiff's interpretation of N.J.S. 2A:146--1, N.J.S.A. was not concurred in by the Committee, which took the view that the law applied as stringently to him as to anyone else.

Subsequent to his initial appearance, plaintiff was requested by the Committee's counsel to appear at a public hearing in Trenton on July 23, 1956 in order to give a formal statement defining his interpretation of N.J.S. 2A:146--1, N.J.S.A. When plaintiff complied with this request, he was served with a subpoena, returnable on the following day, requiring him to testify and to produce certain office records relating to the information he had withheld at the closed session on July 18, 1956. In general, the subpoena demanded all evidence and writings relevant to the premises of the Committee's investigation, including the names and addresses of all persons who had performed, recommended, procured or assisted in wiretapping during plaintiff's term as prosecutor, whether outside agencies or members of his personal staff. By mutual consent, the return date of the subpoena was postponed from July 24, 1956 to July 27, 1956.

In the interim before he was compelled to appear, plaintiff instituted an action by way of verified complaint and order to show cause seeking injunctive relief and a declaratory judgment. The determination of this cause in the court below constitutes the foundation for the present appeal.

Plaintiff invoked the jurisdiction of the courts upon the representation of an insolvable dilemma which would place him in criminal jeopardy for the assertion of legally protected rights. He deemed himself faced with two alternatives: he could either appear before the Committee and divulge the information which it sought, or he could refuse to disclose the so-called law enforcement secrets and run the risk of violating R.S. 52:13--3, N.J.S.A. which he conceived to be unconstitutional.

R.S. 52:13--3, N.J.S.A. is part of the comprehensive scheme set forth in chapter 13 of Title 52 for the summoning of witnesses before legislative investigating committees and their punishment for contempt. Among other things, it provides:

'Any witness who refuses to answer any questions decided by the committee to be proper and pertinent shall be guilty of a misdemeanor. * * *' Plaintiff maintained that the thread of criminal prosecution under a statute reasonably believed to be unconstitutional was sufficient cause to invoke the application of the Declaratory Judgments Act, N.J.S.A. 2A:16--50 et seq. and also to entitle him to the injunctive relief which he prayed. He asked for an adjudication respecting the constitutionality of R.S. 52:13--3, N.J.S.A. and his rights to withhold the information demanded.

After hearing and consideration of memoranda, the Superior Court, Chancery Division, ruled only: (1) that it had jurisdiction of the cause; (2) that R.S. 52:13--3, N.J.S.A. was constitutional; and (3) that the plaintiff would have to appear before the Committee and to yield certain information and records relating to his wiretapping activities, subject to the conditions enumerated in the court's opinion. These conditions generally permitted the plaintiff to withhold any information relating to the identity of those persons who had actually performed or supervised the wiretap operations with the exception of members of his staff.

Plaintiff appeals only from that portion of the trial judge's order holding R.S. 52:13--3, N.J.S.A. to be constitutional. His complaint raised a multitude of other questions which are not, however, presented by the record before us. Defendants, according to the terms of an order entered on October 24, 1956, were granted leave by the Appellate Division to cross-appeal from any part of the order of the Chancery Division which was adverse to them.

Before the Chancery Division, and in its brief on appeal, the Committee maintained the courts had no jurisdiction to adjudicate the constitutionality of R.S. 52:13--3, N.J.S.A. because the plaintiff had not yet appeared before the Committee nor been directed to respond to any specific questions. It also challenged the jurisdiction of the trial court to enjoin the Legislature. Defendants argued that although the lower court had expressly disclaimed any intention of passing upon its jurisdiction to interfere with a legislative proceeding, and while it admitted a court had no right to trespass against the legislative or executive departments of government, it nevertheless accomplished just that by continuing temporary restraints upon a lawfully constituted and functioning legislative committee.

The plaintiff, undaunted by this claim, in turn insists he should prevail because R.S. 52:13--3, N.J.S.A. is unconstitutional upon the same principle, to wit, it contravenes the doctrine of separation of powers by arrogating to a legislative committee the function of determining whether a witness has committed a crime.

Although much could be written on the jurisdictional aspects of this proceeding, we are not, by reason of the status of the record, required to pass upon these questions since the defendants on oral argument before us withdrew their previous objections to our jurisdiction and joined in the petition that the constitutionality of R.S. 52:13--3, N.J.S.A. be decided.

We shall therefore adjudicate the validity of the last-cited statute, but this is by no means to be considered a precedent establishing a procedure whereby anyone who feels he might be 'put upon' by the subpoena or questions of a legislative committee can turn to the courts for a declaratory judgment vindicating his surmise.

Plaintiff insists R.S. 52:13--3, N.J.S.A.: (1) affords no standards by which a reasonably intelligent man can determine whether his refusal to answer will subject him to criminal sanctions and is therefore void for violation of the requirements of due process of law; (2) contravenes, as already stated, the doctrine of separation of powers in arrogating to a legislative committee the sole power to determine whether a witness has committed a crime; and (3) constitutes an improper delegation to a committee of a power to be exercised only by the Legislature as a whole. Particular reference is made to those portions of the statute specifying:

'* * * all witnesses sworn before any such committee shall answer truly all questions put to them which the committee shall decide to be proper and pertinent to the investigation or inquiry * * *.

'Any witness who refuses to answer any questions decided by the committee to be proper and pertinent shall be guilty of a misdemeanor * * *.'

Each of plaintiff's arguments is founded upon an interpretation of R.S. 52:13--3, N.J.S.A. with which we cannot agree. He submits that by its terms the statute entrusts the Committee with the sole responsibility and authority for deciding what questions are proper and pertinent and that the witness has no recourse from the Committee's conclusion. He theorizes that the subjective determination of the Committee is the sole criterion of propriety and pertinency and that upon a refusal to answer he would automatically be guilty of a misdemeanor. All this would occur, says plaintiff, without the opportunity for judicial review as to the relevancy of the question and without regard to any privilege on the part of the witness not to answer. It is said: 'The only question for the court to determine, in a...