Morss v. Forbes

Jacobs, J.

(concurring). The Senate and General Assembly have the very high responsibility of legislating for the welfare of our people. To discharge that responsibility they need adequate information and suitable avenues for obtaining it. One of the customary avenues is the legislative committee and here it is the “Joint Legislative Committee to Study Wiretapping and the Unauthorized Recording of Speech.” That this Committee possesses broad power to compel testimony from public officials as well as others is beyond question. See Eggers v. Kenny, 15 N. J. 107 (1954); Const., 1947, Art. IV, Sec. V, par. 2; R. S. *375 53:13-3; N. J. S. 3A :81-17.1. Indeed, the policy throughout our law has generally been to compel relevant testimony from all persons before duly empowered governmental bodies, with the burden on the decliner of showing the applicable privilege or immunity. See United States v. Bryan, 339 U. S. 333 , 331, 70 S. Ct. 724 , 94 L. Ed. 884 , 890 (1950). Cf. 8 Wigmore, Evidence (3d ed. 1940), § 3193:

“For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.”

In the instant matter, the Union County prosecutor contends that he has the right to refuse to answer any inquiries by the Committee with respect to the wire tapping activities of his office. He relies on the view that under the constitutional doctrine of separation of powers the executive may, whenever he deems that the public interest so requires, decline to furnish information sought by the legislative or judicial branches of government. Cf. Thompson v. German Valley R. Co., 33 N. J. Eq. 111 (Ch. 1871). In the federal sphere, many Presidents have strongly asserted their unlimited right to determine what information they may withhold from Congress, but the judicial authorities supporting them are still far from dispositive. See Bishop, “The Executive’s Eight of Privacy: An Unresolved Constitutional Question,” 66 Yale L. J. 477 (1957). In any event, when the right is asserted it is generally considered to be that of the President himself and the executive department heads acting for him. See Wolldnson, “Demands of Congressional Committees for Executive Papers,” 10 Fed. B. J. 103, 223 (1949) supplemented and reprinted, Department of Justice memorandum, “Is a Congressional Committee Entitled to *376 Demand and Receive Information and Papers from the President and the Heads of Departments Which They Deem Confidential, in the Public Interest.” In our own State, the Constitution expressly vests the executive power in the Governor. Art. Y, Sec. I, par. 1. It provides that all executive and administrative departments, including the offices of Secretary of State and Attorney-General, shall be allocated within not more than 20 principal departments and that each principal department shall be under the supervision of the Governor. Art. V, Sec. IV, par. 1. The Executive Article (Art. Y) makes no mention whatever of. the county prosecutor. His office is created in Article VII which provides for public officers and employees and simply states that:

“County prosecutors shall be nominated and appointed by the Governor with the advice and consent of the Senate. Their term of office shall be five years, and they shall serve until the appointment and the qualification of their respective successors.” Art. VII, Sec. II, par. 1.

In 1944 the Legislature adopted “An Act to establish a Department of Law in the State Government.” L. 1944, c. 20; R. S. 52:17A-1 et seq. Its purpose as set forth in section 1 was to centralize in one Department the facilities afforded by the State for the rendering of legal services to the Governor and state instrumentalities and “to provide for the enforcement of the criminal law of the state by such department where the ends of justice so require.” Section 3 of the act set forth that the Department shall be headed by the Attorney-General and section 4 set forth that the Department shall have the powers and duties vested in the Attorney-General by the Constitution, the statutes and the common law, including the power and duty of enforcing “the provisions of the Constitution and all other laws of the State.” See People ex rel. Castle v. Daniels, 8 Ill. 2d 43 , 132 N. E. 2d 507 (Sup. Ct. 1956); Commonwealth ex rel. Minerd v. Margioiti, 325 Pa. 17 , 188 A. 524 (Sup. Ct. 1936). Following the adoption of the 1947 Constitution *377 the Legislature established a principal department in the executive branch to be known as the Department of Law and Public Safety and to be headed by the Attorney-General. The functions of the former Department of Law were duly transferred to the newly created Department of Law and .Public Safety. R. S. 52:175-1 et seq. In his discussion of the “Organization and Functions of the Departments in New Jersey State Government ” Professor Seelbach expressed the view that by virtue of the foregoing enactments the Department now “has general supervision over the twenty-one county prosecutors.” 49 N. J. S. A. XLIX. And in his recent article on the “Formulation of Enforcement Policy” 11 Rutgers L. Rev. 507 (1957), Professor Eerguson had this to say on the relationship between the Attorney-General and the prosecutors:

“The interest of the Attorney-General in the proper enforcement of the criminal law is clear. He has express power to perform the functions of county prosecutor by invitation. But he does so qua Attorney-General. His general interest in the administration of criminal law, apart from that pendant to his supersession powers, is revealed by enactments of the legislature. In addition, except where restricted by the Constitution or statute, he is lodged with the common-law powers of his office. Thus, although there is no express statutory grant of a general supervisory power over the county prosecutors, there is no question of the existence of his particular interest qua Attorney-General in the enforcement of the criminal law.”

The present case furnishes no proper occasion for delimiting the executive’s power to withhold information from the legislative, or defining the precise relationship between the Attorney-General and the county prosecutors. The Governor himself has not sought here to exercise any executive right, nor has the Attorney-General as the head of a principal department. On the contrary, the right to withhold information from the legislative is being asserted solely on the prosecutor’s behalf without any suggestion that he is acting in fulfillment of any directive from the Governor or the Attorney-General. It seems entirely clear to me that no such independent right is afforded to the prosecutor *378 by the constitutional doctrine of separation of powers or any other legal principle; whatever be his proper classification he admittedly is neither the executive nor the head of a principal department within the 1947 Constitution. Assuming, for present purposes, that the Governor has the far-reaching right to withhold information from the legislative committee, the public interest strongly requires that the exercise be by him directly or by a principal department head acting for him. The exercise of the power would involve highly delicate governmental considerations and important expressions of executive policy. It would hardly be consonant with principles of sound governmental administration to leave it to the various and perhaps conflicting attitudes of county prosecutors acting wholly without executive direction.

I concur in the affirmance of the Chancery Division’s judgment as modified.