Waterfront Commission of New York Harbor, Application of

• Decision Date: 04 March 1963
• Docket Number: No. A--53,A--53
• Parties: Application of the WATERFRONT COMMISSION OF NEW YORK HARBOR, to punish John Moody, Sr. for failure to obey a Subpoena. Application of the WATERFRONT COMMISSION OF NEW YORK HARBOR, to punish William Murphy for failure to obey a Subpoena.
• Court: New Jersey Supreme Court

Page 436

39 N.J. 436

189 A.2d 36

Application of the WATERFRONT COMMISSION OF NEW YORK HARBOR,

to punish John

Moody, Sr. for failure to obey a Subpoena. Application of

the WATERFRONT COMMISSION OF NEW YORK HARBOR, to

punish William Murphy for failure to

obey a Subpoena.

No. A--53.

Supreme Court of New Jersey.

Argued Jan. 7, 1963.

Decided March 4, 1963.

Harold Krieger, Jersey City, for defendants-appellants, John Moody, Sr. and William Murphy (Krieger & Chodash, Jersey City, attorneys, Robert Wall, Jersey City, of counsel, and Harold Krieger, Jersey City, on the brief).

Robert A. Pin, Park Ridge, and Irving Malchman, New York City, for the Waterfront Commission of New York Harbor (William P. Sirignano and Irving Malchman, New York City, (both of the New York Bar) on the brief).

The opinion of the court was delivered by

PROCTOR, J.

This is a consolidated appeal from two judgments of the Superior Court, Law Division, adjudging each of the defendants, John Moody, Sr., and William Murphy, guilty of civil and criminal contempt for failing to testify pursuant to subpoenas issued by the Waterfront Commission of New York Harbor (Commission). The judgments fined the defendants $50.00 each and sentenced them to 30 days in jail. The judgments further ordered that the subpoenas be obeyed by the giving of responsive answers before the Commission to the questions set forth therein, and that the defendants be incarcerated until they answer those questions. The judgments also provided for a stay of execution pending appeal, the defendants having previously posted bonds.

We certified the defendants' appeal before argument in the Appellate Division.

This is the second time that the defendants have been adjudged in civil contempt for their refusal to testify pursuant to the afore-mentioned subpoenas. Briefly, the history of this litigation is as follows: One James H. Markley was an investigator for the Commission, assigned principally to cover the piers of the American Export Lines in Hoboken, New Jersey. On or before May 16, 1960, Markley left the employ of the Commission in order to work for the American Export Lines as a security officer, and obtained a license from the Commission to operate as a port watchman. On Monday, May 16, 1960, the day Markley commenced work for the American Export Lines on its Hoboken piers, the longshoremen employed by American Export Lines on those piers did not report for work. This work stoppage, except for the morning of Tuesday, May 17, continued through Friday, May 20, 1960. The striking employees were members of Hoboken Local No. 2 of the International Longshoremen's Association (ILA). The defendant Moody is an organizer of the ILA in New Jersey, and the defendant Murphy is the business agent of Local No. 2.

Under our Waterfront Commission Act, N.J.S.A. 32:23--1 et seq. (the New York counterpart is New York Laws 1953, c. 882, c. 883, McK.Unconsol.Laws, § 9801 et seq.), the longshoremen who participated in this work stoppage are required to be and are registered with the Commission. N.J.S.A. 32:23--27. Also, under the act, Markley, as a security officer of American Export Lines, is required to be licensed as a port watchman. N.J.S.A. 32:23--39.

The Commission had information that the work stoppage was 'a concerted effort to keep James H. Markley off the piers of the American Export Lines.' Accordingly, the Commission instituted an investigation to determine whether any persons registered with or licensed by the Commission were violating the Waterfront Commission Act by coercing an employer to limit the functions of, or to discharge, a licensed port watchman. In connection with its investigation, the Commission duly served the defendants with subpoenas on May 18, 1960, ordering them to appear and testify at the Commission's offices in New York City. The defendants appeared at the offices of the Commission in response to the subpoenas on May 19, 1960. At the hearing, Moody, after giving his name and address and testifying that he was a union official, refused to answer any further questions. Murphy testified that he was business agent of Local No. 2 and represented members of the local working at the Hoboken piers of the American Export Lines. He said he knew that the longshoremen did not work on May 16, 1960, and that it was common knowledge that for some time before that day things were not normal at the American Export Lines. However, he refused to say whether those conditions were related to the employment of Markley as a port watchman, and he refused to answer any other questions. Both defendants expressly declined to assert their privilege against self-incrimination, although they were specifically asked if that was one of the grounds for their refusal to testify. The primary reason for their refusal to testify was their assertion that the Commission had no statutory authority to investigate the work stoppage because it involved a labor dispute over which the National Labor Relations Board had exclusive jurisdiction. ¹

Thereafter, the Commission instituted contempt proceedings against the defendants in the Superior Court, Law Division, which resulted in judgments dated June 20, 1960, holding the defendants guilty of civil contempt and ordering that they be fined $50.00 each and that they be incarcerated until they obeyed the Commission's subpoenas. These judgments were affirmed by this court, and the United States Supreme Court dismissed the defendants' further appeal and also denied Certiorari. In re Application of Waterfront Comm. of N.Y. Harbor, 35 N.J. 62, 171 A.2d 295 (1961), appeal dism'd and cert. den. sub nom. Murphy v. Waterfront Commission of New York Harbor, 368 U.S. 32, 82 S.Ct. 146, 7 L.Ed.2d 91 (1961).

Pursuant to the mandate of this court in the above contempt proceedings, the defendants appeared before the Superior Court, Law Division, on October 3, 1961. The Court directed the defendants to appear before the Commission pursuant to the May 1960 subpoenas. Later that day, the defendants appeared at the offices of the Commission as directed. However, except to give their names, addresses and occupations, the defendants again refused to answer any questions, this time upon a number of new objections including the privilege against self-incrimination. All of the objections were overruled by the Commission except the assertion of the privilege against self-incrimination. The hearing was then adjourned and the subpoenas were continued until October 10, 1961, so that the Commission could decide whether to grant the defendants immunity from prosecution pursuant to N.J.S.A. 32:23--86(5) of the Waterfront Commission Act, and if so, to afford the Commission an opportunity to give notice to the appropriate officials as required by that subdivision.

On the following day (October 4, 1961) the defendants and the Commission's representative appeared before the Law Division. The court found that the defendants had obeyed the subpoenas, and that their assertion of the privilege against self-incrimination had been recognized by the Commission as a valid basis for their refusal to answer the Commission's questions. The court held that, since the defendants had complied with the judgments of the court entered June 20 1960, they had purged themselves of contempt. However, the court also directed that the defendants should continue to be subject to the subpoenas, and that the defendants appear before the Commission on the adjourned return date (October 10, 1961).

The return date of the subpoenas was further adjourned with the consent of the parties until October 27, 1961, at which time the defendants appeared at the offices of the Commission. At the outset of this meeting, Myles J. Ambrose, Executive Director of the Commission, announced, 'The purpose of the meeting is to inquire into violations of the Compact in connection with a work stoppage in May, 1960, at the American Export Line piers in Hoboken, New Jersey.'

The following documents were made part of the record: (1) letters (pursuant to N.J.S.A. 32:23--9) from the Commissioners designating Ambrose and William P. Sirignano, the Commission's General Counsel, to act in the places of Commissioners Harold R. Tyler, Jr., and David C. Thompson in the investigation wherein Murphy and Moody were subpoenaed, and to confer immunity upon them pursuant to N.J.S.A. 32:23--86(5); (2) copies of letters sent pursuant to N.J.S.A. 32:23--86(5) to the Attorneys-General of New York and New Jersey, to the District Attorney of New York County and to the Prosecutor of Hudson County, together with certificates of mailing, notifying them of the Commission's intention to confer immunity upon Murphy and Moody; and (3) letters of reply received from all of the above-named officials except the Prosecutor of Hudson County, stating that each had no objection to the Commission's proposed grant of immunity to the defendants. No reply was received from the Prosecutor of Hudson County.

Counsel for the defendants objected to the legality of the proceedings on the ground that the Commissioners could not delegate the power to grant immunity to their designees, Ambrose and Sirignano. They also challenged the adequacy of the letters of notice sent to the officials of the two States. They further demanded a statement apprising them of the purpose and pertinency of the interrogation, contending that the Commission's failure to give them such a statement deprived them of due process of law. All these objections and demands were rejected.

Thereafter, the defendants each took the stand and, after stating his name and address, each refused to answer any further questions on the ground that his answers might tend to incriminate him. Thereupon the Commissioners' designees granted immunity to each of the defendants pursuant to N.J.S.A. 32:23--86(5) against prosecution in the States of New York and New Jersey concerning any transaction to which they would...