O'regan v. Schermerhorn

• Decision Date: 07 November 1946
• Parties: O'REGAN et al. v. SCHERMERHORN et al.
• Court: New Jersey Supreme Court

50 A.2d 10

O'REGAN et al.

v.SCHERMERHORN et al.

Supreme Court of New Jersey, Hudson County.

Nov. 7, 1946.

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Actions by Daniel O'Regan and another against Julian H. Schermerhorn and others for libel, wherein motions and cross-motions were made by plaintiffs and defendants.

Judgment in accordance with opinion.

Frank G. Schlosser, of Hoboken, for plaintiffs.

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

ACKERSON, Supreme Court Commissioner.

The plaintiffs in the above entitled actions are the former Prosecutor of the Pleas of the County of Hudson, and the former Assistant Prosecutor, both having served in their respective capacities from February 4, 1934, to February 4, 1944. They are suing the twenty-three members of the December Term, 1944, Grand Jury of that county for libel, specifically alleging in their respective complaints that said defendants ‘* * * did compose and publish a certain false, scandalous, malicious and defamatory libel of and concerning the plaintiff (in conducting criminal proceedings against one John R. Longo), containing among other things the following:

“The Prosecutor, Mr. O'Regan, and his assistant, Mr. George, were derelict in their duty in suppressing the Hartkorn report and not calling Hartkorn as a witness, and thus depriving the defendant (Longo) of the opportunity of any benefit of this testimony. In this they were violating Canon 5 of the Canon of Ethics of the American Bar Association, which states that, ‘The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that Justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.’

“This Canon has been upheld by the United States Supreme Court.”

The defendants have appeared by attorney who endorses their joint answer to each complaint as follows: ‘Mark Townsend, Deputy Attorney General, Attorney for defendants.’

The subject matter of these answers is contained in fourteen separate defenses, the first of which attempts to answer specifically each paragraph of the complaint to which the answer is addressed, whereas the others raise separate and distinct defenses.

This matter came before the court originally on motions by the respective plaintiffs to strike these answers, or parts thereof. At the oral argument the defendants were permitted, by order of the court, to supplement their answers by pleading objections that the suits had been brought prematurely and plaintiffs were given leave to reply thereto or move to strike the same as though within the scope of their original motions. At the same time the filing of such supplements to the answers was to be considered as cross motions by the defendants to strike the respective complaints without further notice. The plaintiffs have now elected to press their original motions as though including an attack upon the aforesaid supplemental matter, and the defendants are pursuing their cross motions to strike the complaints.

Since the pleadings in each of these cases are practically the same, these motions have been argued and will be considered in this memorandum as though involving but a single case brought by the plaintiffs jointly.

We will start by considering the defendants' cross motion to strike the complaint. The first point is that the complaint is legally insufficient because the ad damnum clause specifically demands ‘$100,000 from each of the defendants,’ whereas the complaint consists of but one count in which the defendants are charged as joint tort feasors and not severally. It is, therefore, argued that in order to seek $100,000 from each defendant, it is necessary, either to have separate suits against each defendant, or separate counts in the complaint against each one. This objection, although technical, seems to be well taken. Cf. Consolidated Traction Co. v. Whelan, 60 N.J.L. 154, 37 A. 1106; Ross v. Pennsylvania R. R. Co., 138 A. 383, 5 N.J.Misc. 811. The plaintiffs in their brief, anticipating such a conclusion ask leave to amend the clause in question so that it will demand one amount from the defendants jointly. Such permission is granted and we will proceed as though the amendment had already been made. However, if it is not filed within the time hereinafter specified, the complaint will be stricken.

The defendants further insist that the complaint does not state a cause of action because it discloses that the publication therein complained of consisted of a presentment or report delivered by the defendants, as members of the grand jury to the Court of Oyer and Terminer which accepted and filed it, and since it is not alleged that the defendants in so doing were acting in ‘clear absence of all jurisdiction,’ or ‘without colorable jurisdiction,’ the publication is absolutely privileged and the defendants protected from liability under the judicial immunity rule pronounced in Grove v. Van Duyn, 44 N.J.L. 654, 43 Am.Rep. 412, and Valentine v. City of Englewood, 76 N.J.L. 509, 517, 71 A. 344, 19 L.R.A.,N.S., 262, 16 Ann.Cas. 731.

Suffice it to say that the foregoing phrases concerning jurisdiction are mere conclusions of law and would be valueless if inserted in the complaint, the legal sufficiency of which must be appraised by the pleaded facts. Furthermore, and most important on this phase of the matter, the complaint does not disclose, as defendants claim, that the so-called presentment or report was presented to the Court of Oyer and Terminer nor that said court accepted and filed it. The allegation concerning publication is merely that the defendants, ‘members of the said December Term, 1944, Grand Inquest * * * did compose and publish’ the defamatory matter which is the subject of complaint. So it does not appear on the face of the complaint that the publication was made by presenting the subject matter thereof to the court, nor in the course of judicial proceedings, nor as the result of official action by the defendants. It remains for the defendants to allege these matters in a defense of privilege.

This also disposes of the defendants' further contention that the complaint should be stricken because a cause of action cannot accrue until after the document in question, which is an official record, has been expunged from the records or files of the court to which it was returned. The complaint on its face does not disclose a factual basis for such an objection.

Turning now to the plaintiffs' motion addressed to the answer we find that their first contention is that the entire answer should be stricken on the ground that it is beyond the power and authority of the attorney general and his deputy to defend this suit on behalf of the former grand jurors because it is conceived that R.S. 52:17A-4, N.J.S.A., limits him to the defense of officers and instrumentalities of the state government and that the defendants do not fall within such classification. Therefore it is insisted that the answer is improperly filed.

It is settled in our state that the attorney general has all the power invested in his office at common law except as modified by constitutional or statutory regulation. Public Utilities Com'rs of New Jersey v. Lehigh Valley R. R. Co., 106 N.J.L. 411, 149 A. 263.

At common law, as the chief accredited legal adviser of the state, he may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interests may from time to time require. State ex rel. Young v. Robinson, 101 Minn. 277, 112 N.W. 269, 272, 20 L.R.A.,N.S., 1127, 1132. He is invested with a broad discretion in determining what matters may be of interest to the public generally Mundy v. McDonald, 216 Mich. 444, 185 N.W. 877, 880, 20 A.L.R. 398, 401, Annotation.

Our statute respecting the office of attorney general is R.S. 52:17A-1 et seq., P.L. 1944, c. 20, p. 50, N.J.S.A. 52:17A-1 et seq., which created a new Department of Law to be administered by the attorney general. Section 4 thereof, N.J.S.A. 52:17A-4, provides that ‘The powers and duties of the Department of Law shall be the powers and duties now or hereafter conferred upon or required of the Attorney-General, either by the Constitution or by the common and statutory law of the State, and as specifically but not exclusively as detailed herein, to wit: * * *. c. * * * and shall exclusively attend to and control all litigation and controversies to which the State is a party or in which its rights and interests are involved. * * *. g. Attend generally to all legal matters in which the State * * * is a party or in which its rights or interests are involved.’

So we see that the statute does not restrict but rather reaffirms the common law authority of this official to attend to all legal matters in which the people of the state are interested. It is too narrow a view of the case sub judice to say that the people of the state at large are not interested, as citizens, in the defense of a case of this nature which involves the legal rights and liabilities of members of grand juries generally, who represent the people of the entire state, and serve by compulsion of law and not voluntarily. Certainly if the people of the state can be said to be interested in their grand jury system and the unfettered operation of it within lawful limits, they are, we think, equally interested in this action growing out of it, depending, as it does, on whether the acts of the defendants, as grand jurors, and therein complained of, were judicial acts, and, therefore, within the rule of immunity from civil liability which public policy has provided for their protection. Mundy v. McDonald, supra. Parenthetically it may be judicially noticed that at the time of the institution of the present action the attorney general was conducting the office of Prosecutor of the Pleas of Hudson County by virtue of section 4(f)...