Morss v. Forbes

Weintraub, J.

(dissenting in part). Plaintiff’s appeal challenges the validity of B. S. 52 :13-3. I agree with the majority that the statute should be construed to mean that in a prosecution thereunder it must be established (1) that the committee itself ruled the question to be proper and pertinent and (2) that the question in fact was proper and pertinent, the latter issue being a justiciable one. Thus construed, the statute is constitutional.

The cross-appeal raises an issue of far-reaching significance. It involves the fundamental separation of powers. The reasoning of the majority leads to the proposition that a legislative committee may examine a prosecutor and the records of his office without any restraints other than those to be found in the rules of evidence applicable to a judicial trial, among which is included the so-called informer privilege. Thus a vital arm of the executive branch of government is subjected to the overriding will and decision of the Legislature in a matter of executive responsibility. I cannot subscribe to that view.

*379 I.

The majority deal with the question whether plaintiff violated the wiretapping statute. N. J. S. 2A :146-1 et seq. It seems to me that the discussion is gratuitous. The legislative power to inquire in no way depends upon whether plaintiff did or did not violate the act. It is not the province of the Legislature to investigate crime as such. Rather the Legislature may inform itself with respect to any matter pertinent to its functions, and the power to inquire is not augmented or reduced one iota by the criminal or noncriminal quality of the conduct the Legislature washes to examine.

But the majority having construed the statute, I feel constrained to express my views. N. J. S. 2A :146-1 punishes one “who willfully and maliciously” does the forbidden act. The word “maliciously” may denote a wicked and mischievous purpose, or “without just cause or excuse,” or both. 26 Words and Phrases, Maliciously, p. 287. If “maliciously” be construed to mean “without just cause or excuse,” we have little or no guidance as to what the Legislature intended to be a “just cause or excuse”; and the crime being statutory, there is no common-law experience to draw upon. Plaintiff conceived that the enforcement of law constitutes “a just cause or excuse” and refers to his duty under N. J. S. 2A :158-5 to “use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws.” The majority conclude the Legislature did not intend this public duty to constitute “just cause or excuse.” It is my belief (or best guess) that this is so, and hence I agree with the majority holding to that effect. But I cannot agree that if plaintiff’s criminal liability were in issue, his adherence to a different interpretation can be dismissed as a mere matter of good motive and hence unavailing. The statute requires in any event proof of a mens rea as a constituent element of the crime, and on that issue of fact a public official, prior to an authoritative interpretation of a statute which is at least somewhat obscure, *380 may well assert that his purpose was to discharge his duty as he saw it and hence lacked the consciousness of wrongdoing implicit in “willfully,” or a wicked and depraved purpose if such is the meaning of “maliciously.” I assume the majority opinion is not to be read to include a finding against plaintiff on that factual issue.

II.

It cannot be denied that the work of the prosecutor must be protected against disclosures which would jeopardize the interests of government. If a current investigation by his office were exposed to public view, its purpose might be defeated. Persons under investigation would thereby be warned, the state of the case against them would be exposed, and access to additional evidence might be impeded. Investigations which appear to be closed may well be reopened at a later date. A prosecutor’s files contain raw, unsubstantiated and unevaluated rumors as well as speculations of the staff. It would be irresponsibility itself to reveal such matters and smear the individuals whom they concern. The prosecutor must depend upon information received under a pledge of confidence, and if his promise is annulled, this indispensable source of information may disappear. Protection must be afforded “against disclosures of the identity of informants, and the method, manner and circumstances of the Government’s acquisition of the materials.” Bowman Dairy Co. v. United States, 341 U. S. 214, 221 , 71 S. Ct. 675, 679 , 95 L. Ed. 879 (1951). It would seriously impair the efficiency and effectiveness of law enforcement if the prosecutor and his staff must operate with a consciousness that everything they do and say may be laid bare in a public forum.

It is therefore inescapable that the public welfare demands that there repose somewhere a discretion as to what may and may not be disclosed in the public interest. Where does that discretion lie?

*381 I do not question the power of the Legislature to investigate the operations of a prosecutor’s office in connection with the legislative function. McGrain v. Daugherty, 273 U. S. 135 , 47 S. Ct. 319 , 71 L. Ed. 580 (1927). But as pointed out in United States v. Rumely, 345 U. S. 41 , 73 S. Ct. 543 , 97 L. Ed. 770 (1953), the informing function of the legislative branch is subject to constitutional limitations. Quoting from an earlier opinion of Mr. Justice Holmes, the court said ( 345 U. S., at page 43 , 73 S. Ct., at page 545 ) :

“All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.”

Here the power claimed by the committee must be measured against the constitutional provisions allocating the powers of government. Article III, Section I, of the State Constitution provides:

“The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.”

Article V, Section I, paragraph 1 provides that “The executive power shall be vested in a Governor,” and paragraph 11 reads:

“The Governor shall take care that the laws be faithfully executed. To this end he shall have power, by appropriate action or proceeding in the courts brought in the name of the State, to enforce compliance with any constitutional or legislative mandate, or to restrain violation of any constitutional or legislative power or duty, by any officer, department or agency of the State; but this power shall not be construed to authorize any action or proceeding against the Legislature.”

Ho principle is more distinctive of our form of government than the separation of powers among the three co *382 ordinate brandies. The total power to govern is thus distributed with cheeks and balances to prevent the despotism which anciently was and today still is characteristic oí a system in which all power is concentrated in a single authority. It was the purpose of the Constitution of 1947 to give full expression to this principle and to eliminate the “diffusion of considerable executive power among the legislative and judicial branches of the government” under the Constitution of 1844. N. J. S. A., Constitution, p. xvi (1954). Except insofar as the prescribed checks and balances themselves authorize, no branch may directly or indirectly impose its will upon another. It may be claimed and conceded that a given branch could more effectively perform its assigned role if it could exercise or control the discretion vested in the other departments. But we prefer a scheme in which no branch has the duty, power or responsibility to protect the total public interest and in which each branch is accountable only for its own performance within its allotted area.

Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 165 , 2 L. Ed. 60 (1803):

“By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. * * *”

In Humphrey’s Ex’r v. United States, 295 U. S. 602, 629 , 55 S. Ct. 869, 874 , 79 L. Ed. 1611 (1935), the principle of separation of powers was expounded in these words:

“The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality. The sound application of a principle that makes one master in his own house precludes him from imposing *383 his control in the house of another who is master there. James Wilson, one of the framers of the Constitution and a former justice of this court, said that the independence of each department required that its proceedings ‘should be free from the remotest influence, direct or indirect, of either of the other two powers.’ Andrews, The Works of James Wilson (1896) vol. 1, p. 367. And Mr. Justice Story, in the first volume of his work on the Constitution, 4th ed. § 530, citing No. 48 of The Federalist, said that neither of the departments in reference to each other ‘ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.’ ”

The issue now before us has appeared and reappeared on the federal scene since President Washington asserted the exclusive executive right to determine what information within his department should be withheld from the Congress in the public interest. In his Earewell Address, he cautioned:

“It is important, likewise, that the habits of thinking in a free country should inspire caution in those intrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. * * * The necessity of reciprocal cheeks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under own own eyes. To preserve them must be as necessary as to institute them.” 1 Richardson, Messages and Papers of the Presidents, p. 219 (1896).

Since then the Chief Executives of the United States have repeatedly adhered to the precedent thus established, and although the right thus claimed has been challenged on the floor of the Congress, it has also been stoutly defended even there. In recent years, the President has asserted this power and responsibility with respect to the subject which here concerns us, to wit, the work of law enforcement officials. Authoritative writers support the executive position. Taft, Our Chief Magistrate and His Powers, p. 129 (1925); 3 Willoughby, Constitution of the United States (2d ed. 1929), pp. 1488-90; Corwin, The President, Office and *384 Powers (3d ed. 1948), pp. 136-145. The history of the subject has been recounted in Wolkinson, “Demands of Congressional Committees for Executive Papers” 10 Fed. B. J. 103, 223, 319 (1949). See also the opinion of Attorney-General (later Mr. Justice) Jackson, 40 O. A. G. 45 (1941), and Bishop, “The Executive’s Right of Privacy: An Unresolved, Constitutional Question,” 66 Yale L. J. 477 (1957).

Enforcement of the law is a vital executive function and responsibility. To repeat from Humphrey, the executive must be “entirely free from the control or coercive influence, direct or indirect, of either of the other [s]” branches in the performance of that function. “The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there,” and the executive “should be free from the remotest influence, direct or indirect, of either of the other two powers.” I cannot square the majority opinion with these fundamentals.

It must be remembered that the range of legislative inquiry is virtually boundless, for it is difficult to conceive of any inquiry which could be judicially condemned as unrelated to a legislative function. Nor can we inquire into the motives of the individual legislators in their exercise of a power which is constitutionally theirs. If the Legislature has an unrestricted power to investigate the operation of a co-equal branch, co-equality would disappear, for the Legislature could sit in virtual superintendence of the other branch. If the Legislature could thus investigate the executive’s enforcement of law, the executive would cease to “be free from the remotest influence, direct or indirect,” of the Legislature; he would, in fact, be subject to direct interference in the discharge of his constitutional function, for, as pointed out above, the public disclosure of the files, techniques, and channels of communication must surely impede and impair effective enforcement of law. It must therefore be the sole and exclusive duty and responsibility of the executive to determine what information *385 within the executive department must be withheld to safeguard the public weal. Eor an improper exercise of that discretion, the executive is accountable to neither the Legislature nor the judiciary, but rather, in the words of Marbury , he “is accountable only to his country in his political character and to his own conscience.”

One may fretfully conceive of a total prostration of government for want of cooperation in the discharge of divided authority. But our system has worked for more than 150 years. There are built-in pressure points to which resort may be had to encourage mutual assistance. The legislative branch is amply equipped to hold its own. It has the power of life and death over non-constitutional offices and controls the appropriation of money. The Senate has the power of confirmation. Moreover, it is the public obligation of the coordinate branches to coordinate, and the required statesmanship has rarely been lacking. And perhaps above all, there is accountability and responsiveness to public opinion. I have no doubt that all of the forces combine to assure the transmission to legislative committees of whatever intelligence they really need. The approach of one branch to another cannot be compulsive without resulting in the very concentration of power which our Constitution is designed to prevent.

There is a tendency to pass all controversies to the judiciary, and so it is suggested here that the court decide what confidential material may be divulged with public safety. But the same principle of separation of powers forbids the judiciary to exercise a discretion vested in the legislative or executive branch, or to review an exercise of that discretion in an area which is purely political and does not involve the rights or liabilities of a litigant.

We must distinguish what is before us, namely, a controversy as to the situs of a power of government as between two coordinate branches in the discharge of their respective functions, from a judicial proceeding in which a litigant seeks the confidential material in order to defend or prosecute a case. The difference is fundamental, and was noted *386 by Chief Justice Marshall in Marbury v. Madison, supra ( 1 Cranch, at page 166 ) when he said of the exercise of power by officers acting for the President:

“In such cases, their acts are Ms acts; and whatever opinion maj' be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being intrusted to the executive, the decision of the executive is conclusive. * * ®”

It is only when the exercise of executive discretion affects “individual rights” that the judiciary in discharge of its allotted role may consider whether to review it. Hence, where a litigant needs information which the executive believes to be confidential, the judiciary may be obliged to weigh the respective rights and interests of the litigant and the State in determining whether to accept the executive decision. Such was the situation in Roviaro v. United States, 353 U. S. 53 , 77 S. Ct. 623 , 1 L. Ed. 2d 639 (1957); United States v. Reynolds, 345 U. S. 1 , 73 S. Ct. 528 , 97 L. Ed. 727 (1953); United States ex rel. Touhy v. Ragen, 340 U. S. 462 , 71 S. Ct. 416 , 95 L. Ed. 417 (1951); Scher v. United States, 305 U. S. 251 , 59 S. Ct. 174 , 83 L. Ed. 151 (1938); Boske v. Comingore, 177 U. S. 459 , 20 S. Ct. 701 , 44 L. Ed. 846 (1900); see generally, Annotations, 95 L. Ed. 425 (1951) and 97 L. Ed. 735 (1953).

But where, as here, the right of a litigant to information is not involved, and the question is which of the other branches of government, as between themselves in the performance of their respective political duties, has the final say as to disclosure of executive secrets, the judiciary cannot go beyond deciding the situs of that governmental discretion. It cannot lie with the judiciary itself to make the policy determination or to review a determination by the branch which has the power, for otherwise the judiciary would place itself in a position of supremacy in an equally inadmissible breach of the doctrine of separation of powers. This, I believe, is what the majority undertake to do. They make *387 a policy decision for the other branches that security be maintained solely as to informers. The identity of informers is but one phase of the total executive privilege. I can find no constitutional basis for a judicial delineation as to what security should or should not be maintained as between the other branches of government.

Thus I must quarrel with the majority's statement:

“With sole reference to the public policy element of the prosecutor’s argument, we do not believe revelation to the Committee of the names which it seeks will harm the public interest in successful law enforcement.”

It is not within the power of the court to consider that question. And I add, not by way of joining in that inquiry, that revelation of the names of the wiretappers may have the effect the majority cannot find, for if the wiretappers are revealed and interrogated, the identity of individuals under investigation and information obtained against them may be revealed, and such disclosure may even serve to enable the suspects to identify the informers against them. I have no way of knowing the ultimate impact, nor have I the right to inquire.

Each branch of government has phases of operations which are confidential. The required security is part and parcel of its basic function and indispensable for the successful discharge of its assigned constitutional role. The principle of separation of powers forbids one branch to invade the other and exercise or review the exercise of the discretion, reposed in it. The sole area for any exception is a judicial controversy in which a litigant needs the information, and that is not the case before us.

III.

The majority conclude that a prosecutor may exercise the executive power of non-disclosure as to informers, but otherwise finds the discretion resides in a legislative committee. I cannot find a logical basis for this dichotomy. The ma *388 jority seem to isolate the prosecutor from the full executive privilege because (a) his office is not placed within the immediate control of the Governor or attorney-general and (b) “The prosecutor is primarily a local official.”

The second basis is dissipated elsewhere in the majority opinion itself. The prosecutor’s office was in effect carved out of the attorney-general’s office. The prosecutor represents the State in the prosecution of the criminal business of the State and in the enforcement of law; and in the exercise of his duties he possesses the authority theretofore in the attorney-general and still in the attorney-general when the latter undertakes to handle law enforcement within a county. The prosecutor thus performs an executive function of the State and is the State’s chief representative in such matters within the county. That he is a state officer, and not a county official, is perfectly evident to me. There can be no doubt that he is subject to impeachment as a state officer under Article VII, Section III, paragraph 1 of the Constitution. State v. Winne, 12 N. J. 152 (1953).

The record of the proceedings of the Oonstitutional Convention does not disclose why the prosecutor’s office does not appear in the Executive Article. Whatever the reason, he surely is not in the legislative or judicial departments. Since he exercises executive power, he must fall within the executive branch. The most one can gather from the Constitution or its history is that the Convention decided to assure a degree of independence even from the head of the executive department and to that end gave the prosecutor a term of office which does not coincide with the Governor’s tenure. I fail to understand how this constitutional treatment can be said to evince a purpose to vest in the Legislature the power to exercise an executive discretion as to disclosures of confidential matters and with it the capacity to interfere with the performance of an executive function. If the exercise of that power by the Legislature would constitute an invasion of the executive branch when law enforcement is in fact handled by the attorney-general, the invasion *389 can be no less offensive to the doctrine of separation of powers because the State’s representative is the prosecutor.

It seems to me that a proper interpretation of the Constitution places in the executive department the ultimate discretion as to disclosure of executive confidences. This follows from the very principle of separation. And since the relations between branches of government are involved, the Governor, as head of the executive department, must have the ultimate power within his department to decide whether a disclosure should be made to a coordinate branch, which power he may himself exercise or delegate to his cabinet officer, the attorney-general. Until the Governor acts, the prosecutor, as the chief representative of the State in this executive function, must himself have the necessary discretion, and where a prosecutor conceives that the public interest forbids disclosure, the proper course is for the Legislature or its committee to address a request for the information to the Chief Executive of the State.

I would modify the judgment accordingly.

Jacobs, J., concurring in result.

For modification — Chief Justice Vandekbilt, and Justices Hehek, Oliphant, Wacheneeld, Bukling and Jacobs — -6.

For modification (dissenting in part)' — Justice Weintkaub — 1.