Petition — Cashen v. Spann

IN THE

Supreme Court of the United States

DockET No.4 = 1 A » l

PAUL CASHEN and IRENE CASHEN,

Petitioners,

vs.

FRANK SPANN, ROBERT BICKLEY, CHARLES M. EGAN,

JR., JOHN DUNNE, individually and as servant, agent or

employee of CHARLES EGAN, JR., “JOHN DOE,” being a

fictitious name of the “Reliable Informer,” NEW JERSEY BELL

TELEPHONE COMPANY, ANTHONY DEBIASI, THE

COUNTY OF MORRIS and the BOROUGH OF WHARTON,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF NEW JERSEY

PETITION FOR WRIT OF CERTIORARI

ACCARDI & KOCH,

Attorneys for Petitioners,

Nine Clinton Street,

Newark, New Jersey 07102

JosepH S. ACCARDI

On the Petition

N.J. Appellate Printing Co., inc., Woodbridge, N.J. (20!) 636-2030

|

TABLE OF CONTENTS

Petition for Writ of Certiorari to the Supreme

Court of New Jersey ......................... 1

Citations to Opinion Below ...................... 1

DO see Foc iks ond dc oy ic uds dou cakevecin ]

Questions Presented ............................ 2

Constitutional Provisions and Statutes Involved ..____ 2

Statement of Facts .............................. 3

How Federal Questions are Presented ........___. 7

Reasons for Granting the Writ ................._.. )

MIE ce du ncivuawhucusesetenscee 13

Cases CITED:

Black v. Sheraton Corporation of America,

47 F.R.D. 263 (D.D.C. SR AM earn eons 12

Brocchicchio vy. Curtis Publishing Company,

203 F. Supp. 403 (E.D. Pa. 1962) .............. 12

Drowin vy. State,

160 A.2d 85 RIA hae Roe AE ee PWN 12

Nolan vy. United States,

423 F.2d 1031 (10th Cir. EE Sr ee ey 4

Quarles & Butler, In re,

158 U.S. 532 ES ca eee sR ee 10

Roviaro y. U.S.,

353 U.S. 53 = Tape RR ree hes te ON 8, 9, 10

Scher v. USS.,

305 U.S. 251 RR rete OR Ae Mahe. 10

State v. Burnett,

ee We ee er ae 5, 10

it

TABLE OF CONTENTS

Cases CITED:

State v. Oliver,

kh OR 2) 4 ear nas 10

United States v. Covello,

410 F.2d 536 (2d Cir. 1969) ................. 4

Westinghouse Electric Corporation v. City of

Burlington,

122 U.S. App. D.C. 65, 351 F.2d 762

(C.A.D.C. 1965) on remand 246 F. Supp. 839

RE a ae rae) wee eae 12

U.S. CoNSTITUTION CITED:

ERLE SOS LEE HT RES 12 8

NN SE ESI SDE ie REO PO Re 1, 2,8

A Eh Na 1, 2, 8

Fourteenth Amendment ...................... 1,2, 8

U.S. Copes CIirep:

4k ee | cee Sn Cerne 1

Oe Wes i ee CD i ey 4

N.J. CONSTITUTION CITED:

Article I. a ee ee 2,8

STATUTE CITED:

Ra i ee on 2,9, 11

RULE CITED:

I I hi et el ek, 2,9, ll

itt

TABLE OF CONTENTS

APPENDIX

Appendix A

Constitutional Provisions and

Statutes Involved .......................... la

Appendix B

ee 4a

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

To the Honorable, the Chief Justice and Associate Justices

of the Supreme Court of the United States:

Your petitioners, Paul Cashe: and Irene Cashen., re-

spectiuily pray that a writ of certiorari issue to review the

decision of the Supreme Court of New Jersey which modi-

filed and affirmed the decision of the Appellate Division

of the Superior Court of New Jersey which latter court

ordered the disclosure of the identify of an informer in this

civil case.

CITATIONS TO OPINION BELOW

The opinion of the Superior Court, Appellate Division

delivered by Lynch, J.A.D. is reported in 125 N.J. Super.

356 (App. Div. 1973).

The opinion of the Supreme Court of New Jersey is

reported in 66 N.[. 541 (1975) and is attached hereto as

Appendix B, infra.

JURISDICTION

The judgment of the Superior Court, Appellate Divi-

sion was entered on November 2, 1973, The Judgment of

the Supreme Court of New Jersey which modified and

affirmed the judgment of the Appellate Division was en-

tered on February 25, 1975. The jurisdiction of this Court

is invoked under Title 25 U.S.C. Section 1257 (3) since

the petitioner's rights under the Fourth, Fifth, Sixth and

Fourteenth Amendments to the Constitution of the United

States are drawn in question.

|

QUESTIONS PRESENTED

The following questions are presented by this appeal:

1. Whether an informer is entitled to immunity from

suit, based upon the privilege of nondisclosure granted to

the Government, when the information given by the in-

former is demonstrably false, malicious, libelous and de-

famatory?

2. Whether nondisclosure of an informer in a civil

case deprives the petitioners of their rights to due process

of law under the Fourteenth Amendment of the United

States Constitution?

3. Whether the privilege of nondisclosure of the

identify of an informer is applicable in civil cases and if

so, what standard is to be applied?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Statutory and constitutional provisions involved

are New Jersey Statutes Annotated 2A:84A-28 and Evi-

dence Rule 36 and the Fourth, Fifth, Sixth and Fourteenth

Amendments to the United States Constitution, and New

Jersey Constitution Article 1. Paragraph 1, all of which are

printed in Appendix A. infra.

STATEMENT OF FACTS

On June 19, 1970, detectives of the Morris County

Prosecutor s Office and police of the Borough of Wharton,

armed with a search warrant and seeking evidence of

bookmaking and lottery, broke into the home of the plain-

tiffs. As we now know the raid was a bizarre mistake.

Plaintiffs, a relatively elderly retired couple, were com-

pletely innocent of any wrongdoing, and utterly without

connection with gambling or other illegal activity of any

kind.

By an amended complaint, plaintiffs sued Prosecutor

Egan, detectives Bickley, Spann, Dunne and DeBiasi, one

“John Doe,” being a fictitious name of a “reliable informer”

(who allegedly gave information that plaintiff Paul Cashen

was involved in gambling activities), the New Jersey Bell

Telephone Company (Telephone Company ), the County

of Morris (County) and the Borough of Wharton (Bor-

ough). The amended complaint against the County, de-

fendant officials and Telephone Company, charged false

arrest and imprisonment, libel and slander, invasion of

privacy and assault and battery. It also charged that the

Telephone Company, through its employees, negligently

and wantonly supplied false information to the Prosecu-

tors detectives with respect to telephone calls made to

plaintiff, Paul Cashen.

The answers of defendant Prosecutor, detectives, and

the County, among other things, set up the defenses of

immunity and failure of plaintiffs to state a claim upon

which relief may be granted. Those defendants moved

for suunmary judgment in their favor under, as they stated,

“the doctrine of judicial immunity and its application

covering conduct in the realm of the public prosecutor.”

Defendant Telephone Company also moved for summary

EE rr are

4 Statement of Facts

judgment, claiming that it acted in the premises in com-

pliance with subpoena and other lawful orders of the

Prosecutor and hence was cloaked with the same immun-

ity as the Prosecutor. The Company also claimed that

provisions of the Communications Act of 1934, Sec. 605,

amended, 47 U.S.C. Sec. 605 (1968), absolved it from

liability. The trial court granted summary judgment in

favor of all defendants. Plaintiffs appeal from said judg-

ment except, no appeal has been taken from the summary

judgment which had earlier been granted in favor of the

Borough.

Plaintiffs also claim that the error of the trial court

in granting summary judgment to defendants subsumed

the court’s further error in refusing to compel the defend-

ants to disclose the ideytity of the co-called “reliable

informer” referred to in the affidavit of defendant Bickley

which was the basis upon which the search warrant was

issued.

The basic reasoning of the trial judge in granting

summary judgment in favor of defendant Prosecutor and

detectives was that since, in his view, there was no show-

ing of malice on their part or that they acted for “per-

sonal reasons of their own or distinct from their required

duty.” they were immune from suit. Since the County of

Morris was sued on the theory that such officials were its

agents, the County was likewise absolved.

As to defendant, Telephone Company, the court held

there was no liability because it acted pursuant to sub-

poena and, under the decisions in United States v. Covello,

410 F.2d 536 (2d Cir. 1969) and Nolan v. United States,

423 F.2d 1031 (10th Cir. 1969). and 47 USC.A., Sec

605, the Company was not liable.

Statement of Facts 5

In ruling that plaintiffs were not entitled to disclosure

of the identify of the “reliable informer,” the trial court

held that the policy considerations which dictate nondis-

closure of such information in criminal cases, expounded

in State v. Burnett, 42 N.J. 377 (1963), and other cases,

are likewise controlling in this civil case and preclude such

disclosure.

The affidavit upon which the issuance of the search

warrant was based was sworn to by defendant Bickley.

It read, so far as here pertinent, as follows:

On Monday, June 15, 1970, Det. Spann checked with

the N.J. Bell Telephone Company as to phone calls

made from 335-6508 and 539-6548, and it was learned

from the Telephone Company that numerous calls

were made to the residence at Nine Crater Avenue in

Wharton, N.]., telephone number 366-3115 and tele-

phone number 328-5364, and alse telephone number

743-1133 in Bloomfield, New Jersey. A further check

with the N.J. Bell Telephone Company revealed that

the telephone number 366-3115, is listed to one Paul

Cashen, Nine Crater Avenue, Wharton, N.J.;_ tele-

phone number 328-5634 is listed to the U.S. Govern-

ment, Picatinny Arsenal, Dover, N.J. Building 94 QAD

and in control of Paul Cashen; and telephone number

743-1133 is listed to one, Lamont Curran, 29 Wash-

ington Road, Bloomfield, N.J. Inv. Bickley called a

person at Picatinny Arsenal who has given reliable

information relative to gambling activities there and

was advised by this informant that one, Paul Cashen,

employed at Picatinny Arsenal, was accepting horse

bets and number bets from fellow employees at the

Arsenal, and that at least twice a day would call

from one or two pay phones in Building 94 to some-

one with these bets. He also stated that he would

keep notations in a small black notebook which he

kept constantly on his person to record said bets.

6 Statement of Facts

On Monday, June 15, 1970, further inquiry was made

with the Telephone Company, and it was learned from

this that rumerous phone calls were made from the

Raymond Dragos residence to Paul Cashen, to Bloom-

field and numerous phone calls from John Peragallo’s

residence to Paul Cashen. to Bloomfield.

Telephone number 335-6508 was listed to Mrs. Vir-

ginia Peragallo, wife of John Peragallo, otherwise identi-

fied in the affidavit as being engaged in taking horse and

number bets. Telephone number 539-6548 was listed to

Raymond Dragos, also identified in Bickley’s affidavit as

engaging in taking of such bets. Concededly the infor-

mation contained in Bickley’s affidavit was false in the fol-

lowing respects: (1) no phone calls were ever made to

Cashen’s home by Peragallo or Dragos; (2) telephone

number 328-5634 at Building 94 QAD at Picatinny Arsenal

was not in control of Paul Cashen at the time involved.

Cashen had worked at Picatinny Arsenal for 38 years but

had retired on October 31, 1969 and had been at the

Arsenal on only one day since then, in January 1970, as

he drove through the Arsenal grounds to go fishing; (3)

the information allegedly given to Bickley that (a) Cashen

was accepting horse and number bets at Picatinny, and

(b) at least twice a day called from one or two pay phones

in Building 94 with bets. was false; (4) the information

allegedly given by a representative of the Telephone Com-

pany that numerous phone calls were made to Cashen

trom the residences of Dragos and Peragallo was also

false. ,

Detective Spann testified on deposition that on June

15, 1970 he called the Morristown office of the Telephone

Company and was told that calls were being made to

Cashen’s home from those of bookmakers Peragallo and

Dragos. Spann further testified tivat he normally dealt

How Federal Questions are Presented 7

with a Mrs. Di Fiore at the Morristown Office, but that

she was not working on June 15, 1970, and he did not

know the identity of the telephone representative who

gave him the information. On the other hand, Mrs.

Di Fiore testified on deposition that she worked at the

Boonton Office and not at Morristown, as Spann said. But

she did testify that on June 15 and 16, 1970, she was called

at the Boonton Office and advised Spann that there was no

information relative to the investigation for that day. She

specifically said she never gave the Prosecutor's office any

information as to Cashen’s telephone number. There was

also testimony that calls from Dragos to Cashen would not

be toll calls, and therefore would be no record of them.

And Peragallo’s phone would not be serviced by either the

Morristown or Boonton office but by the Dover office. In

fact, Mrs. De Fiore testified she was never asked to give

any information relative to the Peragallo home.

HOW FEDERAL QUESTIONS

ARE PRESENTED

Prior to trial, petitioners moved for the name of the

reliable informer who supplied false information to Pros-

ecutors detectives from Morris County.

The Affidavit upon which the search warrant was

issued contained false, malicious and defamatory state-

ments about the petitioners which is the basis for this civil

suit for both compensatory and punitive damages.

The trial court denied petitioner's request. On appeal

to the Superior Court, Appellate Division, petitioner again

urged the above contention. The Appellate Division in

its decision held disclosure was necessary for a fair deter-

mination of the cause.

8 How Federal Questions are Presented

Petitioner for Certification to the Supreme Court of

New Jersey was granted. The New Jersey Supreme Court

held that informers, whether reliable or not, have immun-

ity from civil suits based upon the privilege of nondis-

closure granted to the Government. This is an extension

ef Roviaro v. U. S., 353 U.S. 53 (1957) and has never been

decided by the United States Supreme Court.

The petitioners contends that disclosure is necessary

for a fair determination of a cause pursuant to Roviaro.

And further, failure to supply the name of the informer

violates the petitioner's right to a fair trial, confrontation

of witnesses and right to cross examine under the Fourth,

Fifth, Sixth and Fourteenth Amendments of the United

States Constitution and New Jersey Constitution, Article

I Paragraph I.

The Supreme Court of New Jersey passed upon all

of these questions in its opinion (Appendix B), infra, ex-

cept the test in Roviaro, i.e. disclosure is necessary when

it is essential to a fair determination of a cause. On this

issue it remanded the matter to the trial court for further

facts and set as its standard for disclosure the amount of

damages suffered by the petitioners.

Federal questions are therefore, properly presented

by virtue of petitioners’ claim of contravention of their

rights under the Fourth, Fifth, and Sixth Amendments as

made applicable to the States by the Fourteenth Amend-

ment to the United States Constitution specifically as set

torth hereinabove.

REASONS FOR GRANTING THE WRIT

1. The rationale for refusing to disclose the name of

the reliable informer is based upon N.J.S.A. 2A:84A-28

and Evidence Rule 36.

A witness has a privilege to refuse to disclose the

identity of a person who has furnished information

purporting to dis _e a violation of a provision of

the laws of this ‘te or of the United States or a

governmental div...on thereof, charged with the duty

of enforcing that provision, and evidence thereof is

inadmissible, unless the judge finds that (a)

the identity of the person furnishing the information

has already been otherwise disclosed or (b) dis-

closure of his identity is essential to assure a fair

determination of the issues. L.1960, c52, p.459. Sec.

28.

The New Jersey Supreme Court recognizes that the

privilege is not unlimited and adopted the approach in

Roviaro v. U.S., 353 U.S. 53 (1957).

The question for this Court to decide is whether an

informer is entitled to immunity from suit, based upon the

privilege of nondisclosure granted to the Government,

when the information given by the informer is demon-

strably false, malicious, libelous and defamatory.

The policy behind the privilege is to preserve the

citizen's anonymity so that it will encourage them to re-

veal information concerning criminal activity to the police

and protect the flow of “vital” information.

Applying this policy to the present case it is apparent

that no valid public purpose can be served by withholding

the identity of the informer. The information, if given at

all, was totally false. By continuing this informer’s ser-

vices the public interest would be defeated. Disclosure

10 Reasons for Granting the Writ

would not stop the flow of vital information, the only in-

formation it would stop is malicious, untrue and slanderous

gossip.

The decision of the New Jersey Supreme Court gives

immunity not only to reliable informers, but also to in-

formers who furnish false and libelous statements to the

police under the guise of vital information to combat

criminal activities.

In re Quarles & Butler, 158 U.S. 532 (1895) which

touched upon. this problem was decided long before

Roviaro which rejects the theory that the privilege is abso-

lute and adopts the fairness concept. New Jersey has also

adopted the same concept in State v. Oliver, 50 N.J. 39

( 1967 ).

This decision has extended the rationale in both

Roviaro and Oliver by granting to informers (unreliable )

immunity from civil suits based upon the privilege of non-

disclosure to the Government.

2. The privilege relied upon is not the privilege of

the informer but the privilege of the Government. The

scope of the privilege is limited by its underlying purpose

which is the furtherance and protection of the public in-

terest in effective law enforcement. Scher v. [ 1S., 305

U.S. 251 (1958); State v. Burnett, 42 N.J. 377 (1964).

Limitations or the privilege were set forth in Roviaro

v. U.S. supra, at 59:

“A further limitation on the applicability of the privilege

arises from the fundamental requirements of fair-

ness. Where the disclosure of an informer’s identity

or the contents of his communication is relevant and

helpful to the defense of an accused. or is essential

to @ fair determination of a cause, the privilege must

give way.” (Emphasis added ),

Reasons for Granting the Writ 11

The same limitations as to “fairness” on the privilege

is incorporated in Rule of Evidence 36, N.J.S.A. 2A:84A-

28.

The New Jersey Supreme Court remanded the mat-

ter to the trial court with instructions that “it is proper for

the court to give less weight to the interests of the plaintiff

if it appears that he suffered only insubstantial damages.”

Certainly a fair determination of a cause is not dependent

on the amount of damages suffered by a plaintiff.

The Court never decided or even took into considera-

tion that failure to disclose the identity of the informer

would deny the plaintiffs their right to sue, cross-examine

or test the defense of the police officers who have raised

the defense of probable cause to make the search and that

they acted in good faith.

The test to be applied is as stated in Roviaro “is dis-

closure essential to a fair determination of a cause.”

Failure to supply the name of the informer in the case

at bar prevents the plaintiffs from:

(a) Bringing suit against one who gave false, mal-

icious, defamatory and libelous statements against them;

(b) Cross-examining the police officers on matters

directly in issue which is a matter of right.

(c) Testing the defenses of probable cause and good

iaith.

The information supplied by the informer in this case

is not only relevant but is the crux of the whole matter,

because if he in fact gave false information the detectives

may be able to show that their acts were reasonable. How-

ever, if he did not give this information to the detectives

then it would appear that the detectives filed a false affida-

vit.

12 Reasons for Granting the Writ

3. The United States Supreme Court has never de-

cided the issue of whether the privilege of nondisclosure

of the identity of informers is applicable in civil cases, and

if so, what standard is to be applied in civil actions.

There is a split of authority in the jurisdictions.

Some impose a stricter standard in civil actions. Black v.

Sheraton Corporation of America, 47, F.R.D. 263 (D.D.C.

1969); Brocchicchio v. Curtis Publishing Company, 203

F. Supp. 403, 407 (E.D. Pa. 1962).

Another line of cases recognizes no difference be-

tween civil and criminal actions and applies the rationale

of Roviaro, sce e.g. Westinghouse Electric Corporation v.

City of Burlington, 122 U.S. App. D.C. 65, 351 F.2d 762

(C.A.D.C. 1965) on remand 246 F. Supp. 839 (D.D.C.

1965) Drowin v. State, 160 A.2d 85 (1960).

It is important to the administration of justice in both

the State and Federal Courts that this Court resolve the

conflict noted above and determine if the privilege is ap-

plicable to civil cases, and if so, what standard should

apply.

13

CONCLUSION

For the foregoing reasons, the petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

ACCARDI & KOCH

Attorneys for Petitioners

By: /s/ Joseph S. Accardi

JOSEPH S. ACCARDI

Dated:

la

APPENDIX

Appendix A

Appendix A—Constitutional Provisions and

Statutes Involved

New Jersey Constitution

ARTICLE I, PARAGRAPH I:

All persons are by nature free and independent, and

have certain natural and unalienable rights, among which

are those of enjoying and defending life and liberty, of

acquiring, possessing, and protecting property, and of

pursuing and obtaining safety and happiness.

United States Constitution

Amendment IV.

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched and the persons or things to be seized.

Amendment V.

No person shall be held to answer for a capital, or other-

wise infamous crime unless on a presentment or indictment

of a Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual service in time of

War or public danger; nor shall any person be subject for

the same offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness

2a Appendix A

against himself, nor be deprived of life, liberty, or prop-

erty, without due process of law, nor shall private property

be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously as-

certained by law, and to be informed of the nature and

cause of the accusations; to be confronted with the

Witnesses in his favor, and to have the Assistance of Coun-

sel for defense.

Amendment XIV

Section 1. All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

lite, liberty or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

NEW JERSEY STATUTE

2A:84A-28 Identity of Informer

Rule 36

A witness has a privilege to refuse to disclose the iden-

tity of a person who has furnished information purporting

to disclose a violation of a provision of the laws of this

State or of the United States to a representative of the

Appendix A 3a

State or the United States or a governmental division

thereof, charged with the duty of enforcing that provision,

and evidence thereof is inadmissible unless the judge finds

that (a) the identity of the person furnishing the infor-

mation has already been otherwise disclosed or (b) dis-

closure of his identity is essential to assure a fair deter-

mination of the issues.

NEW JERSEY RULES OF EVIDENCE

Rule 36. Identity of Informer

A witness has a privilege to refuse to disclose the iden-

tity of a person who has furnished information purporting

to disclose a violation of a provision of the laws of this

State or of the United States to a representative of the

State or the United States or a governmental division

thereof, charged with the duty of enforcing that provision,

and evidence thereof is inadmissible, unless the judge finds

that (a) the identity of the person furnishing the informa-

tion has already been otherwise disclosed or (b) disclosure

of his identity is essential to assure a fair determination

of the issues.

4a

Appendix B

Opinion of the Court

Argued October 22, 1974—Decided Feb. 25, 1975.

On appeal from the Superior Court of New Jersey, Ap-

pellate Division, whose opinion is reported at 125 N.J.

Super. 386 | App. Div. 1973).

Mr. Stephen S. Weinstein argued the cause for defend-

ants-appellants and cross-respondents, Frank Spann,

Robert Bickley and John Dunne (Mr. Herbert M. Korn,

on the brief ).

Mr. Joseph §. Accardi argued the cause for plaintiffs-

respondents and cross-appellants, Paul Cashen and

Irene Cashen (Messrs. Accardi ¢ Koch, attorneys; Mr.

Accardi, on the brief ).

Mr. Ricard W. Berg, Deputy Attorney General of New

Jersey, argued the cause for intervenor-appellant, The

State of New Jersey (Mr. William F. Hyland, Attorney

General of New Jersey, attorney; Mr. Berg, of counsel

and on the brief).

Mr. William T. McElroy argued the cause for defend-

ants-respondents, Charles M. Egan, Jr., Anthony De

Biasi, and County of Morris ( Messrs. McElroy, Connell,

Foley & Geiser, attorneys; (Mr. McElroy, of counsel;

Mr. Edward B. Deutsch, on the brief ).

Mr. Charles A. Sweeney argued the cause for defendant-

respondent, New Jersev Bell Telephone Company.

Appendix B 5a

The opinion of the Court was delivered by PASH-

MAN, J.

This is a civil action for damages arising out of an

allegedly illegal search of plaintiffs home. On June 19,

1970 detectives of the Morris County Prosecutor's Office

and police officers from the Borough of Wharton executed

a search warrant at plaintiffs’ residence seeking evidence

of gambling activity. The detectives allegedly relied upon

information provided by a “reliable informer” in preparing

the affidavit in support of the search warrant. The facts

are set out in some detail below and need not be recited

at length here. It suffices to note that it is now conceded

that the affidavit was grossly erroneous in significant re-

spects and that the search failed to reveal any evidence of

gambling activity.

To recover for damages resulting from the preparation

of the erroneous affidavit and the execution of the search

warrant, plaintiffs instituted the present suit against the

Prosecutor of Morris County, four detectives, New Jersey

Bell Telephone Company, the County of Morris, the Bor-

ough of Wharton, and “John Doe,” the “reliable informer,”

whose identity is unknown.

The trial court granted motions for summary judgment

in favor of all defendants and denied plaintiffs’ motion to

compel answers to interrogatories which would have re-

quired the disclosure of the identity of the informer. In

a well-reasoned and in-depth opinion by Judge Lynch, the

Appellate Division affirmed the summary judgment for all

of the defendants except three of the detectives, Bickley,

Spann, and Dunne, and reversed the denial of plaintiffs

motion to compel discovery as to the identity of the infor-

mer. Cashen v. Spann, 125 N.J. Super. 386 (App. Div.

1973). We granted petitions for certification by the

6a Appendix B

detectives, and the State,' and the cross-petition submitted

by plaintiffs. 65 N.J. 290 (1974).

With certain modifications discussed below, the judg-

ment is affirmed substantially for the reasons expressed by

the Appellate Division.

Relying on Hann v. Lloyd, 50 N.J.L. 1 (Sup. Ct. 1887),

the Appellate Division's analysis of the immunity of the

defendant prosecutor proceeded on the theory that the

“prosecutor was cloaked with the same immunity as pos-

sessed by a judge.” Cashen, supra at 395. We do not

believe that this approach is supported by the law of this

State, but in any event, we feel that there are compelling

reasons for distinguishing the two forms of official im-

munity.

The unqualified immunity of judges is well established

in New Jersey. As early as 1818, in Little v. Moore, 4

N.J.L. 84 (Sup. Ct. 1818), the court observed that it is a

“universal position, which admits of no exception” that

judges are immune from suit for mere errors of judgment

in the discharge of their official duties. 4 N.J.L. at 85.

Commenting on the need for recognizing this immunity,

the court said:

it is a principle which lies at the very foundation of a

tree, vigorous and independent administration of jus-

tice. It may be traced from the earliest periods of our

judicial history down to the present day. ° * * In-

deed, were we to subject the judges of the established

courts of justice to private prosecutions whenever the

passions or resentments of disappointed suitors

might dictate that measure, we should subdue their

1. On February 26, 1974 the Court granted the motion of the Attorney

General on behalf of the State for leave to intervene.

Appendix B 7a

independence and destroy their authority. [4 N.J.L.

at 85-86]*

The principle which recognizes that judges must be

free from the threat of civil suit in order to discharge their

judicial functions with the independence required by the

public interest has been consistently adhered to by the

courts of this State in the years since Little, supra; Man-

gold v. Thorpe, 33 N.J.L. 134, 136-37 (Sup. Ct. 1868);

Loftus v. Fraz, 43 N.J.L. 667, 669 (E. & A. 1881): Grove

v. Van Duyn, 44 N.J.L. 654, 656-57 (E. & A. 1882). Mo»

recently, in O'Regan v. Schermerhorn, 25 N.J. Misc. 1, 50

A.2d 10 (Sup. Ct. 1946), a suit by a former prosecutor and

his assistants against the members of a grand jury alleging

libel, the court observed that the grand jury operates as

an arm of the court. 25 N.J. Misc. at 19. With reference

to judicial officers, the court said:

It is settled by the great weight of authority, on con-

siderations of public policy, that all officers exercising

judicial functions are absolutely privileged in what

they speak, write, or do in the performance of their

judicial acts, at least where such statements are rele-

vant and pertinent to the matter before them. Such

acts are judicial acts and cannot form the basis for

2. See also, Taylor v. Doremus, 16 N.J.L. 473 (Sup. Ct. 1838), in which

Hornblower, C.]., declared:

That an action will not lie against a judge for an error in judgment, how-

ever prejudicial to the rights of the party such error may be, is a proposition

so plain, so consonant to reason, and so essential to the very existence of

courts of justice, that it needs neither authority nor argument to »apport it.

But suppose the judgment to have been given mala fides, and under the

influence of bribery and corruption, may not the injured party be permitted to

aver such abuse of power, and to recover damages, if he can prove his iver

ment! I answer no. Every argument that forbids an action for a mistake in

judgment, applies with equal, nay, with increased force against such a proposi-

tion. No man would accept the office of a judge, if every disappointed and ill

tempered litigant, might compel him to join issue, and submit himself to trial

upon the question of his integrity. [16 N.J.L. at 475-76 (emphasis in original )).

8a Appendix B

money damages, if the officer had jurisdiction of the

partics and jurisdiction or color of jurisdiction of

the subject-matter, even though in exercising such

jurisdiction he acts erroneously, illegally, irregularly

or in excess of jurisdiction, and such acts are alleged

to have been done maliciously and corruptly. [25

N.J. Mise. at 20].

The United States Supreme Court has also had occasion

to consider the concept of judicial immunity, and in the

early case of Bradley v. Fisher, 80 U.S. (13 Wall) 335

(1872), the Court declared that it is a principle of “the

highest importance to the proper administration of justice

that a judicial officer, in exercising the authority vested in

him, shall be free to act upon his own convictions, without

apprehension of personal consequence to himself.” 80

U.S. (13 Wall) at 347. The Court also emphasized that

the immunity afforded to judges was firmly established

not only in the common law, but in other systems of

jurisprudence as well:

The principle, therefore, which exempts judges of

courts of superior or general authority from liability

in the exercise of their judicial functions, obtains in

all countries where there is any well-ordered system

of jurisprudence. It has been the settled doctrine of

the English courts for many centuries, and has never

been denied, that we are aware of. in the courts of

this country.

It has, as Chancellor Kent observes. “a deep root in

the common law.” [80 U.S. (13 Wall) at 347 (cita-

tion omitted ) |.

More recently, in Pierson v. Ray, 386 U.S. 547

(1967), the Court reiterated the historic nature of

the privilege by observing that “[fjew doctrines were

Appendix B 9a

more solidly established at common law.” 386 U.S. at

553-54. The Court, however. emphasized that the privi-

lege is recognized not to protect the corrupt judge, but

rather for the benefit of the public in whose interest it is

that judges must be free to exercise the functions of their

office without fear of the consequences. 386 U.S. at 554.

See also McCray v. Maryland, 456 F.2d 1 (4 Cir. 1972).

Although it is clear that the public has a comparable

interest in the independence of the prosecutorial function

which warrants the extension to them of a limited form

of immunity, we decline to characterize prosecutorial im-

munity as absolute or to equate it with its judicial coun-

terpart. In so doing we are mindful that the courts of

other jurisdictions have often compared the official im-

munity of prosecutors to that enjoved by judges. See, e.g.,

Yasselli v. Goff, 12 F.2d 396, 404 (2 Cir. 1926), aff'd per

curiam, 275 U.S. 503 (1927); Bethea v. Reid, 445 F.2d

1163, 1166 (3 Cir. 1971), cert. den. 404 U.S. 1061 (1972):

Bauers v. Heisely, 361 F.2d 581, 589 (3 Cir. 1966). cert.

den. 368 U.S. 1021 (1967); Gabbard v. Rose, 359 F.2d

182, 185 (6 Cir. 1966); Kenney v. Fox, 232 F.2d 288, 290

(6 Cir. 1956), cert. den. 356 U.S. 856 (1956); Lundblade

v. Doyle, 379 F. Supp. 57, 60 (N.D. Ill. 1974). In our

view, however, there are persuasive reasons for not equat-

ing the two forms of immunity.

We are also satisfied that the case law of this State is

consistent with our conclusion that the two forms of im-

munity are not identical. Although the issue of prosecu-

torial ‘immunity had occasionally been before the lower

courts,” in State v. Winne, 12 N.J. 152 (1953), a criminal

3. In Hann v. Lleyd, 50 N.J.L. 1 (Sup. Ct. 1887), the plaintiff alleged as-

sault, battery and false imprisonment on the part of a sheriff, a constable and

a prosecutor of the pleas as a result of the execution of a writ of “compulsory

process” to procure plaintiff's presence as a witness in a pending criminal

10a Appendix B

prosecution for nonfeasance in office, Chief Justice Van-

derbilt indicated that the Supreme Court had not yet con-

sidered the problem :

It is to be noted that in some jurisdictions a county

prosecutor is not subject to a civil suit for damages at

the hands of an aggrieved citizen, though that point

has not been passed on here. [12 N.J. at 170 (cita-

tions omitted ) }.

Later that same year, this Court decided Earl v. Winne,

14 N.J. 119 (1935), an action against the Bergen County

Prosecutor and two of his detectives. The complaint al-

leged false arrest and imprisonment, malicious prosecution,

malicious abuse of process, and conspiracy arising out of

plaintiff's arrest and indictment for criminal libel. The

prosecutor defended on the grounds of, among other

trial. In concluding that a jury instruction to find in favor of defendants was

proper, the court said:

Mr. Addison in his work on Torts, section 922, thus states the doctrine

of the law on this head: “Generally speaking, however, so long as the

process has not been set aside it is a protection to the attorney who has

issued it, and to the client by whose commands it has issued. And though

when it has been set aside it is no longer a justification to them, yet it

always remains a justification to the sheriff and his officers, who had no

option but to obey it.” Under the circumstances stated, the prosecutor

of the pleas, with respect to what he did, was invested with an immuni

similar to that which was possessed by the constable and the sheriff.

[50 N.J.L. at 5).

Sev also Edelman v. Dunn, 107 N.J.L. 353 (k. & A. 1931) in which the court

held that an action for unlawful detention and imprisonment could not be

maintained even in the face of allegations that the assistant prosecutor acted

maliciously in refusing to accept bail. The court did not base its conclusion

on prosecutorial immunity but rather on the fact that a statute precluded

prosecutors from exercising control over bail:

We therefore conclude that the refusal by a public official to perform an

official act for which there is no statutory authority, does not constitute a

cause of action, even though his grounds for refusal were improper and

he was actuated by a malicious motive, as the legality of an act cannot be

changed or affected by the motive for which it is done. [107 N.J.L. at

354].

Appendix B lla

things, the lack of civil liability on the part of defendants

as public officers. 14 N.J. at 123-24. In concluding that

the prosecutor and his assistants do not enjoy unqualified

immunity from civil suit, the Court said:

The prosecutor of the pleas and his assistants are

charged with the obligation to act in due accordance

with the law in the discharge of their public duties,

particularly by initiating such a proceeding by filing

a complaint in a proper manner as established by the

prevailing practice. The mere fact that their private

rights have been invaded permits no deviation based

upon personal predilection or gain. They have the

benefit of the presumption that they act legally in the

discharge of their public duty, but if the presumption

is overcome by convincing proof that they acted in

excess of and distinct from their required official duty

for personal reasons of their own, then for such acts

they are civilly liable. It is only such acts which are

redressable in actions for malicious prosecution and

malicious abuse of process. [14 N.J. at 134].

More recently, in DeGroot v. Muccio, 115 N.J. Super. 15

(Law Div. 1971), an action alleging wrongful participa-

tion in the murder prosecution of plaintiff on the part of,

among others, the Passaic County Prosecutor, his assistants

and a confidential aide. the trial court refused to dismiss

all of the allegations against defendants based on the

gravity of the charges. The gist of the complaint accused

defendants of knowingly using perjured testimony on the

part of two witnesses to implicate plaintiff and to “cover

up mistakes in their investigation. 115 N.J. Super. at 18.

Defendants moved for a dismissal of the complaint

based on “the rule of judicial immunity and its applica-

tion covering conduct in the realm of the public prosecu-

tion. 115 NJ. Super. at 20. After acknowledging that

12a Appendix B

no case from this Court had explored the problem of ex-

tending a judicial-type immunity to defendants, the trial

court reviewed the authorities from other jurisdictions and

found that “the persistence and durability of the defense

is remarkable.” 115 N.J. Super. at 23. The court, how-

ever, found the charges of subornation of perjury in the

case before it to be not only “‘serious, ” “horrendous.”

115 NJ. Super. at 29 [emphasis in original]. In the

court's view the enormity of the allegations made it un-

necessary to hold that a prosecutor in New Jersey has a

defense to civil suits, or to define the limits of prosecutorial

immunity:

(C Jitation of authority is unnecessary for the proposi-

tion that conduct such as is alleged in transaction (1)

is actionable in tort. No rationalization could pos-

sibly shield evil acts of such magnitude. [115 N.]J.

Super. at 29-30.

Thus it is clear that New Jersey case law to date has

not equated prosecutorial immunity with its judicial coun-

terpart and reflects the philosophy that there are indeed

circumstances in which a prosecutor will incur civil liabil-

ity for his official conduct. We wish to make it clear that

we believe that this is the preferable approach to future

problems involving the civil immunity of prosecutors in

this State. The public interest is best served by recogniz-

ing that prosecutors enjoy only a limited form of im-

munity.’

4. Although this case involves a cause of action which accrued prior to

July 1, 1972, it should be noted that the New Jersey Tort Claims Act, N.J.S.A.

59:1-1 et seq. (Supp. 1974-75) also establishes limits on the immunity which it

extends to public employees for injuries caused by the institution or prosecu-

tion of judicial or administrative proceedings. N.J.S.A. 59:3-8 (Supp. 1974-75)

provides that:

A public employee is not liable for injury caused by his instituting or

prosecuting any judicial or administrative proceeding within the scope

of his employment. (Continued on Page 14a)

Appendix B 13a

lor purposes of this case we need not consider the outer

limits of prosecutorial immunity since we wholly agree

with the conclusions of the Appellate Division that plain-

tiffs allegations do not support any inference that the

prosecutor in this case acted out of personal motive, with

malicious intent, or in excess of his jurisdiction.

II

We also agree with the Appellate Division that in the

context of this case, the prosecutor and the detectives are

to be considered as agents of the State and not the county.

Cashen, supra at 404-05. We wish to make it clear, how-

ever, that our resolution of this issue is limited to the

factual circumstances here presented. We find it appro-

priate to regard the defendant officials as State agents

where the alleged tortious conduct arose out of the investi-

gation of criminal activity, but we express no opinion on

the question of whether t’:e prosecutor or his detectives

(Continued From Page 13a)

The 1972 comment to the above provision makes it clear, however, that there

are limits to the immunity granted by the section:

This provision recognizes an immunity generally followed at common law.

See DeGroot v. Muccio, 115 N.J. Super. 15, 277 A.2d 899 (Law Div.

1971}; Grove v. Van Duyn, 44 N.J.L. 654, 43 A.R. 412 (FE. & A.); Bed-

rock Foundations, Inc. v. Geo. H. Brewster & Son, Inc., 31 N.J. 124 A.2d

536 (1959). It should be noted that the immunity does not extend to

conduct amounting to a crime or constituting actual malice, actual fraud

or willful misconduct.

Other sections also emphasize that the immunity granted by the act is not

boundless. Section 59:3-14 provides:

59:3-14. Public employee immunity—exception

a. Nothing in this act shall exonerate a public employee from liability if it

is established that his conduct was outside the scope of his employment

or constituted a crime, actual fraud, actual malice or willful misconduct.

b. Nothing in this act shall exonerate a public employee from the full

measure of recovery applicable to a person in the private sector if it is

established that his conduct was outside the scope of his employment or

constituted a crime, actual fraud, actual malice or willful misconduct.

l4a Appendix B

can be considered State or county employees for other

purposes. See Cooper v. Imbriani, 63 N.J. 535 (1973).

We also leave for another day the question of whether a

county may be held vicariously liable for the conduct of

a prosecutor or his detectives in other circumstances.

Il

Our primary area of disagreement with the Appellate

Division, however, concerns the disclosure of the identity

of the “John Doe” informer. The Appellate Division con-

cluded that no valid public purpose was served by with-

holding the identity of the informer upon which the affida-

vit was based. Cashen, supra at 408.

The Appellate Division recognized that what is often

termed the “informer’s privilege” is in reality a privilege

afforded the government in recognition of the compelling

need of the State to protect its sources of information con-

cerning criminal activity. The United States Supreme

Court in Roviaro v. United States, 353 U.S. 53 (1957),

observed that the privilege reflects the interest of society

in effective law enforcement:

The purpose of the privilege is the furtherance and

protection of the public interest in effective law en-

forcement. The privilege recognizes the obligation

of citizens to communicate their knowledge of the

commission of crimes to law-enforcement officials and,

by preserving their anonymity, encourages them to

pertorm that obligation. [353 U.S. at 59].

The privilege, however, is not unlimited, and in ex-

ploring its boundaries in Roviaro, supra, the Court ob-

served that the scope of the privilege must be limited by

the purposes it serves. One of the limits identified by the

Appendix B 15a

Court is founded upon the “fundamental requirements of

fairness. 353 U.S. at 60. The Court, however, declined

to establish a fixed rule governing disclosure, recognizing

that the problem required a balancing of the competing

interests involved on a case by case basis:

We believe that no fixed rule with respect to dis-

closure is justifiable. The problem is one that calls for

balancing the public interest in protecting the flow of

information against the individual's right to prepare

his defense. Whether a proper balance renders non-

disclosure erroneous must depend on the particular

circumstances of each case, taking into consideration

the crime charged, the possible defenses, the possible

significance of the informers testimony, and other

relevant factors. [353 U.S. at 62).

We adopted the Roviaro approach in State v. Burnett,

42 N.J. 377 (1964), and our rules of evidence reflect the

limitations of fairness upon the privilege.” While we are

sensitive to the fairness limitation on the scope of the

privilege, it is important to emphasize that unwarranted

disclosure of government informers poses a very real

threat to the continued vitality of the principle. We

recognized this danger in State v. Oliver, 50 N.J. 39

( 1967 ):

In dealing with the informer privilege, we must be

mindful of the ease with which the privilege would

5. Evid. R. 36, N.J.S.A. 2A:84A-28 provides:

A witness has a privilege to refuse to disclose the identity of a person who

has furnished information purporting to disclose a violation of a provision of

the laws of this State or of the United States to a representative of the State

or the United States or a governmental division thereof, charged with the

duty of enforcing that provision, and evidence thereof is ina:'missible, unless

tne judge finds that (a) the identity of the person furnishing the information

has already been otherwise disclosed or (b) disclosure of his identity is essen-

tial to assure a fair determination of the issucs

l6a Appendix B

be destroyed if disclosure were required without a

substantial showing of a need for it. [50 N.J. at 47).

Although the question is one of first impression in this

State, it is now clear that the balancing process set forth

in Roviaro is applicable to civil as well as criminal cases.

Westinghouse Electric Corp. v. Burlington, 351 F.2d 762

D.C. Cir. 1965):

Appellee argues that the Roviaro standard would

never justify disclosure in civil cases in which the

Government is not a party. But the fact that the

case is civil rather than criminal is not dispositive.

es The policies behind the privilege and its

exceptions extended to civil as well as criminal cases.

Presumably most informers do not want their names

to be revealed in either a civil or criminal proceeding.

The fact that there would be a somewhat greater

chance, statistically, of having their identity revealed

if disclosure is required in civil cases would be un-

likely to deter citizens from informing. There is no

logical reason to set up two different privileges, one

tor civil and one for criminal cases. The defendant

in a criminal case may have a greater stake than a

party in a civil case, but that would not alwavs be so:

even admitting the probability of a greater risk of

retaliation in a criminal case. The Roviaro balance

should be struck in each case, civil and criminal. in

deciding whether disclosure “is essential to a fair de-

termination of a cause.” [351 F.2d at 769 (quoting

Roviaro, supra) }. :

See also Mitchell v. Roma, 265 F.2d 633 (3 Cir. 1959).

See generally Annotation, “Application in Federal Civil

Action, of Governmental Privilege of Nondisclosure of

Identity of Informer,” 8 A.L.R. Fed. 6 (1971) and cases

cited therein.

Appendix B 17a

In the present case, the Appellate Division struck the

balance in favor of disclosure because in its view the in-

formation supplied by the informer was false; thus he

could not be considered reliable. As a result, the court

found that “[njo public benefit would be served by con-

tinuing his ‘informer services.” Cashen, supra at 408-09.

While we are satisfied that the Appellate Division cor-

rectly identified the balancing test to be applied in cases

such as this one, we doubt that either the trial court or the

Appellate Division had before it an adequate record to

actually perform the delicate and difficult balancing of

interests called for. Hence we vacate the order of the

Appellate Division directing disclosure of the identity of

the informant.

If, on remand, plaintiffs choose to press their motion to

compel discovery and either the State or defendants,” by

a suitable motion for a protective order pursuant to R.

4:10-3, resist discovery, tie trial court will be required to

consider all the facts bearing both on the possible un-

fairness to plaintiffs of denying disclosure of the identity

of the informer and the possible harm which may be in-

flicted on State interests by disclosure. In evaluating the

former, the court should consider, inter alia, the nature of

the claims asserted by plaintiffs, the actual loss alleged,

plaintiffs’ reasons for seeking disclosure, and the likelihood

that the evidence about or testimony by the informant

will be necessary to plaintiffs case. In evaluating the

latter, the court should consider the risk of possible prej-

6. Evid. RK. 36 gives the “witness,” in this case defendants, the rizht to

assert the privilege. Since, however, the privilege exists for the benefit of th

State, the State may also assert the privilege on its own behalf. When th

State has not been joined as a party defendant, it is appropriate to permit it

to intervene for the limited purpose of seeking a protectiv: order against

closure of the identity of an informer. Cf. OU Keefe v. Boemg Co., 3 F.RD

329 (S.D. N.Y. 1965)

18a Appendix B

udice to pending or future prosecutions as well as the

danger that the informant may be exposed to physical

harm, harassment, or other untoward consequences. It is

proper for the court to give less weight to the interests of

plaintiff if it appears that he has suffered only insubstan-

tial damages. The risk of loss to plaintiffs resulting from

the nondisclosure of the informant may be pure conjecture.

See Black v. Sheraton Corp. of America, 47 F.D.R. 263

(D. D.C. 1969). We wish to emphasize that in civil cases

in which disclosure is sought not to aid in the defense of

criminal charges, but for the purpose of asserting claims

for money damages, the interests of the State in main-

taining the confidentiality of the informer’s identity are

entitled to a greater degree of respect.

The reliability of the informant or lack thereof, upon

which the Appellate Division placed principal emphasis,

may be relevant to the prejudice which the State will suf-

fer by the disclosure of his identity and, thus, is a factor to

be considered. Nevertheless, the mere fact that the in-

formant has given erroneous information on one occasion

is, of course, not necessarily dispositive of his over-all

reliability as an informant (although it may have some

bearing on the seriousness of the claim advanced by

plaintiffs). As the Appellate Division properly observed,

“not every misstatement or inaccuracy by an informer will

necessarily result in the scales balancing towards a divulg-

ing of his identity.” 125 NJ. Super. at 410. It should be

~oted that in this case, while it is agreed that the affidavit

was erroneous, it has not yet been established that the in-

formation provided by the informant was erroneous.

While our discussion thus far recognizes the often vital

law enforcement services which are performed by infor-

mers, it would be naive to suppose that the privilege of

nondisclosure of confidential sources of information may

Appendix B 19a

not be the source of potential abuse. In the context of

the present case, one such possibility is the naked asser-

tion by the State that no facts bearing on the interests of

the government in maintaining the confidentiality of he

informer can be disclosed because the facts themselves are

confidential in nature. The motive for such an assertion

in response to claims for damages for a mistaken search

and seizure is obvious. Equally apparent is the difficult

nature of plaintiff's task in proving his case if no facts

bearing on the informer’s activities, or existence, are dis-

closed.

In our view, basic considerations of fairness which

ultimately circumscribe the informer’s privilege, require

that in civil cases, when disclosure of a confidential infor-

mers identity is vital to a partys case, the respective in-

terests must be balanced as contemplated by Roviavo,

supra, Burnett, supra, and Oliver, supra, and a decision

reached as to anonymity or disclosure. Such considera-

tions may require that the identity of the informant be

disclosed to a party in a civil suit under some circum-

stances. Nevertheless, this is a step to be taken with cau-

tion and only with full appreciation of all the conse-

quences.

The judgment of the Appellate Division is affirmed as

modified.