State v. Leonardis

Conford, P. J. A. D.,

Temporarily Assigned, concurring in result. At the outset I stress, with emphasis, my agreement with the Court’s conclusion that the Court has rule-making authority to provide, in certain narrowly defined circumstances, for diversion of a criminal proceeding without the consent of the prosecutor. I believe I am also in concurrence, as a matter of broad principle, with the Court’s determination as to the nature of those circumstances. I file this opinion only because I am not in agreement with the rationale by ivhich the Court reaches its conclusion as to its rule-making power and because I would refine the articulation of the criteria stated by the Court for overruling a prosecutor’s decision not to consent to diversion.

Of the three questions upon which we requested argument at the rehearing, 1 the first listed in the footnote need not *385 be discussed since the Court has exercised its authority in the matter basically only in its rule-making, not its adjudicative function, 2 and we axe unanimous that rule-making authority exists in the premises.

The issues on which we allowed reargument of Leonardis I did not exist prior to the decision of that case since, our PTI rule (R. 3:28) theretofore made diversion of a defendant by the court absolutely conditional upon consent by the prosecutor. But shortly after the filing of Leonardis I, and to implement its rationale, the Court approved Guidelines for all PTI programs in the State, effective September 8, 1976, of which Guideline 8 provides, in part, that

* * * [i]f a defendant desires to challenge the. decision of a * * * prosecutor refusing to consent to enrollment into a PTI program, a motion must be filed before the designated judge * * *. The challenge is to be based upon alleged arbitrary or capricious action, and tire defendant has the burden of showing that the * * * prosecutor abused his discretion in processing the application.

Thus, as matters then stood, this Court had by rule created the machinery for judicial overruling of a prosecutorial decision to prosecute a defendant, even one who had been in- *386 dieted. It was the separation-of-powers implications of this action which moved the Court, after the filing by the Attorney General of a petition for clarification of Leonardis I, to grant that petition but limited to the separation-of-powers issues specified in note 1, supra.

I — Basis for Separation-of-Powers Problem

The Court’s opinion does not squarely confront the separation-of-powers issue we carefully formulated in our order granting reargument. What concerned us at that time was the elemental consideration that basically a decision of a county prosecutor- (and, latterly, of the Attorney General) as to whether to prosecute a suspect for crime is a function of the Executive Branch of Government, not the Judicial Branch. N. J. Const. (1947), Art. III, par. 1; Art. V, Sec. 1, par. 11; N. J. S. A. 2A:158-5; State v. Winne, 12 N. J. 152, 171 (1953); Morss v. Forbes, 24 N. J. 341, 388 (1957) (Weintraub, C. J., dissenting in part); Inmates of Attica Correctional Facility v. Rockefeller, 477 F. 2d 375, 379-380 (2 Cir. 1973); United States v. Cox, 342 F. 2d 167 (5 Cir.), cert. den. 381 U. S. 935 , 85 S. Ct. 1767 , 14 L. Ed. 2d 700 (1965). The discharge of the discretionary charging function by prosecutors entails two kinds of decisions which will be seen to have differing relationships to a judicial power of oversight. One is the affirmative decision to prosecute a suspect; the other is the decision to forego prosecution of the suspect, whether absolutely or conditionally. That aspect of the PTI rule and guidelines which would authorize the Judiciary to veto a decision of the former kind is what creates the substantial separation-of-powers issue which engaged our interest in allowing reargument in this case.

To present the issue starkly, the question is whether, had the Court not adopted R. 3:28 in its original form, it would have had the power, without legislation, to adopt a rule of court simply providing that any defendant indicted for crime could bring on a motion before the court for deferral *387 of trial on a showing of the probability of his rehabilitation, with authority in the Court, over objection of the prosecutor, not only to defer trial but thereafter to dismiss the indictment upon a showing of defendant’s rehabilitation after a specified period of time. I do not believe it can be seriously contended that such action by the Court would not be invalid as a raw usurpation of Executive authority by the Judiciary. 3

How, then, does R. 3:28, supplemented by Guideline 8, encompassing as it does the prospect of judicial veto in specified circumstances of a prosecutorial decision to prosecute a suspect, rise above the separation-of-powers bar hypothesized above? The answer is not in generalizations as to “procedural alternatives” to trial (p. 368) or the inherent authority “to fashion remedies” (p. 369). Projection of those ideas begs the question as to whether the underlying authority or jurisdiction as to the prosecution function is not in the executive rather than the judicial sphere. Analysis is not aided by dealing with PTI as an undifferentiated lump-concept. I submit, rather, that the key to the question of judicial power in the matter lies in the crucial difference, adverted to above, between a prosecutor’s affirmative decision to prosecute a suspect (or indicted person) and his decision to desist from prosecution. The latter type of decision lies at the heart of the PTI process, and, as will be seen, is within the inherent oversight of the Judicial Branch.

II — Judicial Authority Over Dropping Prosecutions as the Source of Bule-Making Power.

There is an unbroken line of authority that when the matter of a prosecutor’s determination to discontinue or nolle pros a prosecution or indictment is involved, such action is subject to the approval of the court, at least where the matter *388 has passed the formal complaint or indictment stage. R. 3:2B-1; State v. Ashby, 43 N. J. 273, 276 (1964); In re Investigation Regarding Ringwood Fact Finding Comm., 65 N. J. 512, 515-516 (1974); State v. Conyers, 58 N. J. 123, 146-147 (1971) ; State v. Le Vien, 44 N. J. 323, 327 (1965). Compare Federal Rules of Criminal Procedure 48(a).

The rationale for distinguishing the latter situation from one in which the prosecutor intends to go forward with a prosecution is fairly obvious. A prosecutor who is affirmatively prosecuting a criminal suspect when probable cause has been found is patently performing his duty to enforce the criminal law. State v. Winne, supra. It would be an arrogation of authority for a court to tell him to exercise his discretion differently (i. e., not to prosecute). But where a prosecutor proposes to drop such a prosecution the possibility oí connivance or culpable non-feasance, contrary to the public interest, activates a strong public policy for judicial superintendence of such a decision.

The consequent, accepted authority of the court to oversee the prosecutor’s performance of his role in ceasing a prosecution affords the theoretical basis for this Court to undertake promulgation of rules and regulations in the area. The supervisory function which the Court always had the authority to assume on an ad hoc basis it may obviously discharge on a controlled and regulated basis. It is thus clearly appropriate for the Court to regulate the practice of judicial oversight of prosecutorial decisions to divert defendants from the criminal process by adopting rules controlling the procedure and setting the standards and criteria which the courts will apply in passing upon the grant of a particular application for pretrial diversion.

I am of course aware that R. 3:28 does not undertake to deal with the whole area of prosecutorial discretion to cease or drop prosecutions. For example, a prosecutor may conclude that a criminal complaint involves a violation which is “technical or unintentional” so that the public interest would not be served by pursuing it, as in the Ringwood case, *389 supra (65 N. J. at 517). In such ease there will not be a proposal for “intervention”, but rather for freeing the suspect from further prosecution unconditionally. The Court has not adopted any rule creating standards for exercise of the discretionary role of the prosecutor in such instances. 4 This, however, is no reason why the Court should not have adopted R. 3:28, dealing with one kind of attempt at intervention of the criminal process by the prosecutor. Obviously the Court is not required to cover by rule-making all aspects of the procedure attendant upon judicial oversight of prosecutorial discretion in terminating prosecutions in order to validate rule-making as to one aspect.

Ill — Relationship Between Judicial Authority Over Dropping Prosecutions and Such Authority over Pursuing Prosecutions.

The more difficult question then arises as to the extent to which the Court can by rule-making regulate the prosecutor’s conduct when he determines, in the course of the intervention process fixed by R. 3:28, that he will not consent to the 3-month postponement specified by R. 3:28 (b) or to either a dismissal of the charges or a further 3-month postponement, as provided for by R. 3:28 (c) (1) and (2). This question encompasses the Court’s power to permit judicial review of such a refusal for “abuse of discretion”, Guideline 8, or on any other standard of review. At first blush, it would seem that if the prosecutor’s affirmative decision to prosecute is unreviewable for discretion when there is no court rule on pre-trial intervention such a decision cannot automatically be rendered reviewable by the mere adoption of a practice rule founded on the court’s acknowledged authority to oversee a *390 prosecutor’s decision not to prosecute. However, further reflection casts a different light on the matter.

What would seem ordinarily to constitute absolute judicial unreviewability as a matter of principle may perhaps be more plausibly explained by the impracticability of establishing such motivations as bad faith or unconstitutional discrimination when prosecutorial decision-making as to whether or not to prosecute is carried on ad hoc without visible controlling standards or regulations. 5 And since there are 21 prosecutors, some of whom have numerous assistants who exercise the actual decision-making function in this area, it would be questionable to attempt to justify an analogy of total unreviewability with the absolute immunity from judicial oversight of a governor’s exercise, for example, of his power of veto over legislation. Cf. Allan v. Durand, 137 N. J. L. 30 (Sup. Ct. 1948); Passaic County Bar Ass’n v. Hughes, 108 N. J. Super. 161 (Ch. Div. 1969). Thus, when a prosecutor, on separation-of-power grounds, questioned the power of a legislative committee to compel him to disclose names of wiretappers working for .him, the Court held that "the executive chain of command is not sufficiently prominent to enable the prosecutor to claim any high prerogative which might be enjoyed by the state executive with respect to withholding information from the Legislature”. Morss v. Forbes, supra, 24 N. J. at 372-373. See also the concurring opinion of Justice Jacobs in the same case (at 377-378).

The actual existence of court rules and guidelines with respect to pretrial intervention becomes material to the question of legitimacy of judicial review of prosecutorial insistence on prosecution in two respects. Firstly, the enunciation of standards and criteria to govern a prosecutor’s assent to intervention also provides at least a partial basis upon which to determine whether a refusal to assent is arbitrary, not an honest exercise of discretion in good faith, or dis *391 criminatorily motivated contrary to principles of equal protection, whichever of these may be determined to be appropriate criteria for judicial review of the exercise of discretion. Secondly, the formal existence of such rules per se creates a species of new right on the part of the defendant — a right he did not have before — to make application for and have formal consideration of an application for pretrial intervention. The existence of such a procedure should engender, in a system of criminal justice committed to the notion of fundamental fairness, an assurance to applicants for relief of at least a degree of relative fairness and impartiality in the treatment of applications. Cf. Monks v. N. J. State Parole Board, 58 N. J. 238, 246-248 (1971); State v. Kunz, 55 N. J. 128, 144-145 (1969); Avant v. Clifford, 67 N. J. 496, 520-521 (1975). 6

I thus conclude that the constitutional authority for judicial review of prosecutorial refusal to consent to pretrial intervention can survive the principle of separation of powers against the background of formal PTI rules, but that the criteria for overruling such a decision of the prosecutor must be extremely narrow. I proceed to the consideration of those criteria.

IV — Scope of Judicial Review of Prosecutorial Decision not to Consent to Intervention.

As noted above, Guideline 8 fixes the criterion in this regard as being whether the prosecutor’s action is “arbitrary and capricious”. Reversal of the veto is only on a showing ©f “an abuse of discretion”. The Court’s present opinion *392 tightens those standards considerably. The prosecutor’s refusal to consent must be shown to amount to “patent and gross abuse”, pp. 376, 381. The guidelines are designed “to establish a heavy burden which the defendant must sustain in order to overcome a prosecutorial veto * * p. 381. “These guidelines should be interpreted to require that the defendant clearly and convincingly establish that the prosecutor’s refusal * * * was based on a patent and gross abuse [of the exercise] of his discretion.” P. 382. “By their very nature, the guidelines place primary responsibility for even-handed administration of the programs in the hands of the prosecutors and the program directors. Judicial review should be available to check only the most egregious examples of injustice and unfairness”. P. 384.

The opinion also clarifies, constructively, an ambiguity in Leonardis I as to whether the prosecutor’s decision to refuse consent can ultimately rest alone on the nature of the offense involved. It can; p. 382. Compare 71 N. J. at 113. 7

Nevertheless, and despite the salutary emphasis in the Court’s opinion on the breadth of the prosecutor’s discretion in refusing consent, my concurrence in the Court’s disposition of this reargument is premised on my reading of the Court’s present opinion to imply a gloss on the guideline criterion, “arbitrary or capricious action,” restricting judicial interference with the exercise of prosecutorial discretion considerably more tightly than under the conventional concept of judicial review of administrative action for arbitrariness. In my judgment, the range of considerations which can legitimately motivate a prosecutor to opt for prosecution of a particular offender is almost too broad for articulation in a set of guidelines and certainly transcends in breadth the standards commonly controlling exercises of discretion by the typical executive administrative agency.

*393 As accurately argued to us by the Attorney General in this case:

A broad spectrum of facts must of necessity be evaluated by the prosecuting attorney in discharging his duty [in deciding on prosecution]. The evidentiary strength of the State’s case, the culpability and background of the accused, the urgency of deterrence in a particular class of offenses, the most efficacious allocation of law enforcement resources, and the attitudes of the victim and the community, are but a few of the most obvious considerations. The number of variables defies precise classification. 8

Justice Pashman covered the same ground in his concurring and dissenting opinion in In re Investigation Regarding Ringwood Fact Finding Comm., supra (65 N. J. 531 at 531-532) when he said: "more factors enter the prosecutor’s decision [whether to drop or proceed with a prosecution] than whether the technical requirements of an offense are present”. He then enumerated the following: circumstances of the act, expectations of the Legislature, considerations of fair play, character and history of the offender, nature of the offense, harm to the victim and nature of the locale. To these must be added, as pointed out by the Attorney General, the expectations of the victim and of the community. It is obvious that a prosecutor’s decision to decline consent to a particular application for pretrial intervention can legitimately *394 be based upon a discretionary weighing of an amalgam of some or all of the factors thus mentioned by Justice Pashman and by the Attorney General as well as those set forth in the pretrial intervention guidelines. 9

It is essential to note that in consequence of the foregoing considerations the factors to be taken into account by the Court on a motion by a defendant addressed to the alleged arbitrariness of a refusal by a prosecutor to consent to intervention cannot be confined to the guidelines for intervention adopted by the Court. See Guideline 3. They necessarily include the other discretionary considerations alluded to above. In contrast, those guidelines “along with other relevant circumstances” do set forth all the criteria to be given consideration by the program director, the prosecutor and the court before affirmative action on an application for intervention.

In my judgment, a trial court called upon to consider whether a prosecutor’s refusal to consent to intervention is “clearly and convincingly” shown to be a “gross abuse of the exercise of his discretion”, as specified by the Court’s present opinion, should properly employ the measuring yardstick of whether the applicant has demonstrated that the prosecutor has failed to make an honest appraisal of the relevant circumstances and conditions in good faith. Stated alternatively, the movant should be required to establish bad faith on the part of the prosecutor. 10 This Court has quoted with approval an expression by the Supreme Court of Missouri that the earmark of the correct exercise of discretion by a prosecutor in making a decision as to prosecution in a particular case is whether there has been “a good *395 faith exercise of * * * sound discretion”, or, otherwise stated, whether the prosecutor has chosen his course "willfully or in bad faith * * State v. Le Vien, supra, 44 N. J. at 327. Cf. State v. Winne, supra, 12 N. J. at 174; State v. Begyn, 34 N. J. 35, 50 (1961); State v. Williamson, 54 N. J. Super. 170, 185 (App. Div.) aff’d o. b. 31 N. J. 16 (1959), and see id. at 22 (Weintraub, C. J., concurring); cf. State v. Savoie, 67 N. J. 439, 461-462, n. 7 (1975).

In concurring in this case I am assuming that the foregoing views as to the criteria for judicial review of a prosecutor’s refusal to consent to intervention are consistent with the Court’s opinion herein.

Confoed, P. J. A. D., concurring in the result.

For affirmance — Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Cliffoed and Sohrbiber and Judge Confoed — 7.

For reversal — Hone.

(1) The power of the Supreme Court, in the exercise of its adjudicative function, to declare the authority of the courts of this *385 state to divert a criminal proceeding, after a hearing, without the consent of the prosecutor, in the light of the doctrine of separation of powers;

(2) The power of the Supreme Court, in the exercise of its rule-making power, to declare the authority of the courts of this State to divert a criminal proceeding without the consent of the prosecutor;

(3) In respect of both of the foregoing, whether there is any distinction between proceedings post-indictment and pre-indictment.

In a sense, the Court may be thought to have acted in the matter in its adjudicative capacity since the opinion in State v. Leonardis, 71 N. J. 85 (1976) (“Leonardis I”), construed preexisting R. 3:28, which contained no express provisions for judicial review of a prosecutor’s refusal to consent to diversion, to contemplate judicial review of any “ad hoe or arbitrary determinations” of a prosecutor under the rule. 71 N. J. at 121; and see 71 N. J. at 108. In any event, as indicated in the text, Guideline 8, adopted by the Court September 8, 1976, expressly provides for review, on motion, of a prosecutor’s refusal to consent.

A different question would be presented if the Legislature had enacted a statute giving an indicted defendant a right to apply for such relief.

There, is also the commonly used device of administrative closing of the file on a complaint notwithstanding judicial determination of probable cause or waiver thereof. See Attorney General’s Formal Opinion No. 11-1976 ( 3-31-76).

See Cox, “Prosecutorial Discretion: An Overview”, 13 Am. Cr. L. Rev. 383, 407-408, 433 (1976).

There may possibly also come into play in this connection the principle that although the State is not obliged to confer a right (e. g., on prisoners), nevertheless if it undertakes to do so, due process demands that the right not be taken away except on procedures carrying protection against arbitrary abrogation of the right. Wolff v. McDonnell, 418 U. S 539, 557, 94 S. Ct. 2963 , 41 L. Ed. 2d 935 (1974) ; and see Griffin v. Illinois, 351 U. S. 12, 18 , 76 S. Ct. 585 , 100 L. Ed. 891 (1956).

“In no case, however, should the trial court deny a hearing or refuse intervention solely by reason of the nature of the crime of which defendant is accused.”

Compare the observations of a respected federal court in dealing with the converse problem of judicial review of a prosecutorial decision not to prosecute a particular offense. After outlining some of the imponderables which go into such a determination by a prosecutor, the court in Inmates of Attica Correctional Facility v. Rockefeller, supra, said ( 477 F. 2d at 380-381 ) :

These difficult questions engender serious doubts as to the judiciary’s capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution. On balance, we believe that substitution of a court’s decision to compel prosecution for the U. S. Attorney’s decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to directing that a prosecution be. undertaken in good faith, see Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 Yale L. J. 1297, 1310-12 (1965), would be unwise.

See A.B.A. Standards Relating to the Prosecution Function and the Defense Function, § 3.9. Discretion in the Charging Function, p. 33 (Appr. Dr. 1971).

It goes without saying that a refusal to consent can also be rejected if motivated by considerations impinging unconstitutionally upon a defendant’s due process or equal protection rights.