A v. Curran
| Decision Date | 14 July 1969 |
| Parties | A, B, C, D, E, F, H, I, J, K, L, such names being fictitious and intending to designate actual persons constituting the petitioners, Plaintiffs, v. Paul J. CURRAN, John W. Ryan, Jr., Edward S. Silver and Goodman A. Sarachan, individually, and together constituting the Temporary State Commission of Investigation, Defendants. Application of A, B, C, D, E, F, H, I, J, K, L, such names being fictitious and intending to designate actual persons constituting the petitioners, Petitioners, v. Paul J. CURRAN, John W. Ryan, Jr., Edward S. Silver and Goodman A. Sarachan, individually, and together constituting the Temporary State Commission of Investigation, Respondents. . Supreme Court, Special Term, Albany County |
| Court | New York Supreme Court |
F. Richard Decatur, Jr., Troy, for plaintiffs-petitioners.
Joseph Fisch, New York City, Chief Counsel New York State Commission of Investigation, Nathan Skolnik, Louis N. Smigel, New York City, defendants-respondents.
Before considering the merits of this proceeding the determination of a threshold question is required. Neither the moving papers nor the petition contains the names of the petitioners; they are simply designated by letters of the alphabet. Prior to the hearing of the motion, however, their identity was revealed to the court. The respondents claim that such concealment renders the proceeding jurisdictionally defective. Rule 2101(c) of the CPLR requires that '(i)n a summons, a complaint or a judgment the title shall include the Names of all parties.' Rule 2101(f) states, however:
(Emphasis supplied.)
Whether the petitioners can adopt assumed names does not have to be determined here, in view of the finding that such defect, if it be a defect at all, can be and was waived by the failure of the respondents to return the paper in conformity with the statute. CPLR § 2101(f); c.f. Lucenti v. City of Buffalo, 29 App.Div. 833, 287 N.Y.S.2d 612.
The procedural obstacles having been waived, the merits of the controversy which concern the delicate balance between the public interest and private constitutional rights must, therefore, be considered.
The plaintiffs-petitioners seek to enjoin the Commissioners of the State Investigation Commission from conducting public hearings scheduled to commence July 15, 1969; from enforcing the subpoenas heretofore served upon them, requiring their attendance as witnesses at said hearings; from releasing any report, testimony or other information concerning the identity of the petitioners and the subject matter of the inquiry.
The thrust of the petitioners' argument is that injunctive relief is required to protect their constitutional rights to privacy in that their reputations will be irreparably damaged by the divulgence of their identities and the requirement of their attendance, and the attendant publicity will so infect the local public atmosphere as to deprive them of a fair hearing and of due process of law in the event of subsequent charges or trial. Additionally, the petitioners contend that their right to produce witnesses on their own behalf will be impinged upon and that their right against self-incrimination will be violated by requiring them to testify under subpoenal compulsion.
The petitioners maintain that the required safeguards mandated for criminal prosecutions by recent decisions of the United States Supreme Court are totally absent from the proposed public hearings in that such hearings are Lopsided (hearing only the persons whom the Commission desire to call with no corresponding opportunity available for the petitioners); Repetitive (since they have testified privately); Unnecessary (since any existing evidence of criminality could and should be presented to an appropriate Grand Jury); and Unconstitutional (since the Commissioner cannot inquire generally and publicly into the petitioners' personal and private affairs).
The Commissioners, on the other hand, contend that they have a legislative mandate to conduct private and public hearings and the power and duty to conduct investigations into the faithful execution and effective enforcement of the law, into the conduct of public officers and public employees and into any matter concerning the public peace, public safety and public justice. (L.1958, ch. 989, § 2, subd. 1, pars. a, b, c, and subd. 11, par. b). Unconsolidated Laws, § 7502(11)(b), (1)(a), (b), (c). The Commission further maintains that after examining the testimony procured at the private hearings, they in the exercise of their sound discretion, agreed that public hearings should be conducted. Finally, they maintain that the State Investigation Commission is an investigative and fact-finding agency rather than a prosecutive one and that the Commission operates independently of the Grand Jury and other prosecutive offices.
Section 1 of chapter 989 of the Laws of 1958, section 7501 of the Unconsolidated Laws of New York created the Commission of Investigation effective May 1, 1968. The constitutionality of the Act itself has already been sustained. Commr. of Investigation v. Lombardozzi, 7 A.D.2d 48, 180 N.Y.S.2d 496, aff'd, 5 N.Y.2d 1026, 185 N.Y.S.2d 550, 158 N.E.2d 250, reargument denied 6 N.Y.2d 878, 188 N.Y.S.2d 996, 160 N.E.2d 125, cert. denied sub nom. Castellano v. Commission of Investigation, 360 U.S. 930, 79 S.Ct. 1447, 3 L.Ed.2d 1543. Moreover, the validity of the subpoenas issued by the Commission, valid on their face, has been upheld despite the claim of harassment. Ryan v. Temporary Comm. of Investigation, 16 App.Div.2d 1022, 230 N.Y.S.2d 97, aff'd, 12 N.Y.2d 708, 233 N.Y.S.2d 762, 186 N.E.2d 121. Similarly, subpoenas have not been quashed as against the claim, in advance of the hearing itself, of no personal knowledge of the facts about which the testimony was sought. (Pennock v. Lane, 18 App.Div.2d 1043, 238 N.Y.S.2d 588). Finally, where a petitioner claimed his privilege against self-incrimination the court held that such claim of privilege may be made only at the time the questions are propounded and that even in the face of such claim of privilege the Commmissioner would be empowered to grant immunity from prosecution (L.1958, ch. 989, § 7; Unconsol.Laws, § 7507) and thus compel the petitioner to testify. Bonanno v....
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