Appendix — Cashen v. Spann

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IN THE

Supreme Court of the United States

Docxet No. 74-1421

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.

Perion ror Writ or Cernorarni TO THE SUPREME CovuRT

OF THE STATE OF NEW JERSEY

ADDITIONAL APPENDIX TO

WRIT OF CERTIORARI

ACCARDI & KOCH,

Attorneys for Petitioners,

Nine Clinton Street,

Newark, New Jersey 07102

Josepu S. Accarp1

On the Petition

N. J. Appellote Printing Co., Inc., Woodbridge, N.J. (201) 636-2030

TABLE OF CONTENTS

Appendix >

Opinion of Superior Court of New Jersey, Ap-

pellate Division, Docket No. A-2976-71 ” la

ee

la

Appendix C

Opinion of Superior Court of New Jersey

Appellate Division

Docket No. A-2970-71

Argued: April 9,1973—Decided: November 2, 1973.

Before Judges Fritz, Lynch and Trautwein.

On appeal from the Superior Court, Law Division, Essex

County.

Mr. Joseph S. Accardi argued the cause for appellants

(Messrs. Accardi & Koch, attorneys; Mr. Conrad N. Koch

on the brief; Mr. Joseph S. Accardi on the supplemental

brief ).

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

dents Spann, Bickley, Egan, Dunne, DiBiasi and the

County of Morris (Messrs. Hughes, McElroy, Connell,

Foley & Geiser, attorneys; Mr. Edward B. Deutsch on the

briefs ).

Mr. Joseph A. Hoffman argued the cause for respondent

New Jersey Bell Telephone Company.

No one appeared in behalf of respondent “John Doe.”

The opinion of the court was delivered by LYNCH,

J.A.D.

On June 19, 1970, detectives of the Morris County Pro-

secutor’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 plaintiffs.

As we now know the raid was a bizarre mistake. Plain-

tiffs, a relatively elderly retired couple, were completely

innocent of any wrongdoing, and utterly without connec-

tion with gambling or other illegal activity of any kind.

2a Appendix C

By an amended complaint plaintiffs sued Prosecutor

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

“John Doe,” being a fictitious name of a “reliable infor-

mer’ (who allegedly gave information that plaintiff Ralph

Cashen was involved in gambling activities), the New

Jersey Bell Telephone Company (Telephone Company),

the County of Morris (County) and the Borough of

Wharton (Borough). The amended complaint against

the County. defendant 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 em-

ployees, negligently and wantonly supplied false informa-

tion to the Prosecutor's 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

summary 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

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 immuni-

ty as the Prosecutor. The Company also claimed that

provisions of the Communications Act of 1934. §605 as

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

The trial court granted summary judgment in favor of all

defendants. Plaintiffs appeal from said judgment except,

as said above, no appeal has been taken from the summary

1. Since no appeal has been taken against the Borough, we need not

recount the charges against it

Appendix C 3a

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 defendants to

disclose the identity of the so-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 sum-

mary judgment in favor of defendant Prosecutor and de-

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

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

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 U.S.C.A. $605,

the Company was not liable.

In ruling that plaintiffs were not entitled to disclosure

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

held that the policy considerations which dictate non-

disclosure 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:

4a Appendix C

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 9 Crater Avenue in

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

phone number 328-5364, and also telephone number

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

with the N.]. Bell Telephone Company revealed that

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

Cashen, 9 Crater Avenue. Wharton, New Jersey;

telephone number 328-5634 is listed to the U.S. Gov-

ernment, Picatinny Arsenal, Dover. N.]., Building 94

QAD and in control of Paul Cashen: and telephone

number 743-1133 is listed to one. Lamont Curran, 29

Washington Road, Bloomfield, New Jersey. Inv. Bick-

ley 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. emploved at Picatinny Arsenal, was ac-

cepting horse bets and number bets from fellow em-

plovees at the Arsenal, and that at least twice a day

would call from one or two pay phones in Building

94 to someone with these bets. He also stated that

he would keep notations in a small black notebook

my he kept constantly on her person to record said

ets.

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

made with the Telephone Company, and it was learned

from this that numerous phone calls were made from

the Raymond Dragos residence to Paul Cashen, to

Bloomfield 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-

Appendix C 5a

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 informa-

tion contained in Bickley’s affidavit was false in the follow-

ing 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 33 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 the bets, was false; (4) the information

allegedly given by a representative of the Telephone Com-

pany that numerous phone calls were made to Cashen from

the residence 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 that he normally dealt

with a Mrs. DiFiore 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. DiFiore

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

6a Appendix C

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 there 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. DeFiore testified she was

never asked to give any information relative to the Pera-

gallo phone.

Against this factual background we must determine the

propriety of (a) the summary judgment in favor of de-

fendants, and (b) the order denying plaintiff's request

that the identity of the “reliable informer” be disclosed

by first resolving these issues: (I) Are defendant Prose-

cutor and his detectives cloaked with immunity from suit?

(a) If there is immunity, what is its nature, respectively

as to each such defendants and what, if any, are its limita-

tions as to each? (b) If there is immunity but it is not

absolute, are there any genuine issues of material fact

which preclude granting of summary judgment to defend-

ants? R.4:67-5. (IL) Were the Prosecutor and his detec-

tives agents of the County in doing what they did? (III)

What, if any, is the liability of the Telephone Company

in the premises, and (IV) Should defendants, under the

circumstances of this case, be compelled to disclose the

identity of the so-called “reliable informer”?

I

IMMUNITY OF DEFENDANT OFFICIALS

It appears that the trial court applied the same standard

of immunity as to all official defendants and the County,

i.e., that they are not liable in the absence of any showing

of “malice” or that they acted “for personal reasons of

their own.” In this uniformity of treatment the court

erred.

Appendix C 7a

Defendant Prosecutor was cloaked with the same im-

munity as possessed by a judge. A judge is not civilly

liable for acts done which are at least colorably within

his jurisdiction. Grove v. Van Duyn, 44 N.J.L. 654 (E. & A.

1882). Such judicial immunity has been recognized for

centuries. Bradley v. Fisher, 80 U.S (13 Wall.) 335

(1882). That case explained the reason for the existence

of such immunity as follows:

For it is a general principle of the highest importance

to the proper administration of justice that a judicial

officer, in exercising the authority vested in him, shal!

be free to act upon his own convictions, without ap-

prehension of personal consequence to himself. Liabil-

ity to answer to everyone who might feel himself

aggrieved by the action of the judge, would be in-

consistent with the possession of this freedom, and

would destrcy that independence without which no

judiciary can be either respectable or useful. As ob-

served by a distinguished English judge, it would

establish the weakness of judicial authority in a de-

grading responsibility. Taaffe v. Downes, 3 Moore,

P.C., 41 n. [Id. at 347}.

So it has been held that a prosecutor was immune to

suit for false imprisonment alleged to have resulted from

an arrest of plaintiff pursuant to a writ which the prosecu-

tor delivered to a constable for execution. Hann v. Lloyd,

50 N.J.L. 1 (Sup. Ct. 1887). There it was said the prose-

cutor “acted within his official province in instructing the

officer as to his official duty with respect to it.” Id. at 5.

See also Edelman v. Dunn, 8 Misc. 154 (Sup. Ct. 1930).

The reasons why a prosecutor is clothed with “judicial

immunity” were well stated in Bauers v. Heisel, 361 F.2d

581, 589 (3d Cir. 1966):

8a Appendix C

In deciding the question of whether a prosecuting

attorney is liable for acts done in his official capacity,

we must decide whether his duties are sufficiently

judicial as to cloak him with the same immunity af-

forded judges or are so closely related to those duties

of law enforcement officials as to amerce him with

potential civil liability for his imprudent actions. See

Monroe v. Pape, 365 U.S. 167, 81 St. Ct. 473, 5 L.Ed.

492 (1961); Comment, 18 Ark. L. Rev. 81, 84-92

(1964). Analogy could support either conclusion,

but we believe that both reason and precedent re-

quire that a prosecuting attorney should be granted

the same immunity as is afforded members of the judi-

ciary. The reasons are clear: his primary responsibility

is essentially judicial—the prosecution of the guilty and

the protection of the innocent, Griffin v. United States,

295 F. 437, 439-440 (C.A. 3, 1924): his office is vested

with a vast quantum of discretion which is necessary

for the vindication of the public interest. In this

respect, it is imperative that he enjoy the same free-

dom and independence of action as that which is

accorded members of the bench." This reasoning is

nearly as well established in Anglo-American law as

judicial immunity itself. Yaselli v. Goff, 12 F.2d 396

(C.A. 2, 1926), affd, per curiam “on the authority of

Bradley v. Fisher °°* [and] Alzua v. Johnson, 231

U.S. 106, 111 [34 S. Ct. 27, 58 L. Ed. 142],” 275 U.S.

503, 48 S. Ct. 155, 72 L.Ed. 395 (1927), and numer-

ous cases and authorities cited therein. Prosecuting

attorneys who have been sued under the Civil Rights

Act, R.S. $1979, have likewise been held immune.

Laughlin v. Rosenman, 82 U.S. App. D.C. 164, 163

F.2d 838 (1947); Kenney v. Fox, supra, and other

cases cited in note 7, supra.

—~ - - —--

ee ee eee

Appendix C 9a

And see extensive collection of cases in Bauers’ n. 7 at

586, wherein prosecuting attorneys were held immune.

See also Belthea v. Reid, 445 F.2d 1163 (3d Cir. 1971),

cert. den. 404 U.S. 1061 (1972).

In State v. Winne, 12 N.J. 152 (1953), Chief Justice

Vanderbilt stated that in some jurisdictions a county prose-

cutor is not subject to a civil suit for damages at the hands

of an aggrieved citizen, but he observed: “°°* though

that point has not been passed on here *°*.” Id. at 170.

The Chief Justice apparently meant that the question had

not been passed on by the Supreme Court created by the

1947 Constitution, for he made no mention of Hann v.

Lloyd, supra, or Edelman v. Dunn, supra, opinions of the

former Supreme Court. However, in the same opinion

he stated that the “°°* kind of discretion required of the

county prosecutor is not different from that required of a

judge °°*.” Id. at 174.

In the later case of Earl v. Winne, 14 N.J. 119 (1953),

both Hann v. Lloyd and Edelman v. Dunn were mentioned

in the following context:

The general rule is that an action will not lie against

a judicial officer for an error in judgment, however

prejudicial to the rights of a party such error may be.

Taylor v. Doremus, 16 N.J.L. 473 (Sup. Ct. 1838 ) ;

O'Regan v. Schermerhorn, supra. So it has been held

in Nann [sic] v. Lloyd, 50 N.J.L. 1 (Sup. Ct. 1887),

that a prosecutor of the pleas had the same immunity

as a sheriff and his officers in executing process that on

its face appeared to have been regularly issued by a

court having jurisdiction of the subject matter. Again

in Edelman v. Dunn, supra, it was held that an as-

sistant prosecutor could net be liable for an error in

judgment made in the course of his duty in relation

to an arraignment and fixing of bail. [Id. at 132].

10a Appendix C Appendix C lla

Earl v. Winne, supra, laid down the following outline

~ fore his “judicial” immunity is preserved. See Restate-

of a prosecutor s immunity:

ment of Torts, §656 (1938), 1 Harper and James, The Law

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. [Id. at 134.]

of Torts, §4.3 (1956).

So far as appears, defendant DiBiasi merely executed

the warrant of the court. Appellants point to no evidence

that he acted with personal motives of his own, that he

did not act in necessary compliance with a warrant issued

by a court of competent jurisdiction and in good faith

reliance thereon, or that he was in fact guilty of any

charges in the complaint. A governmental agent cannot

be made responsible in a judicial tribunal for obeying the

lawful command of the government and a public agent

who acts pursuant to the command of a legal precept can

justify his act by the production of that precept. Den ex

dem. Murray v. Hoboken Land and Imp. Co., 59 U.S. (18

How.) 272 (1956). The language in Hann v. Lloyd,

supra, is appropriate:

The result, therefore, is that we have a writ, duly

The trial court herein applied that rule to defendant

prosecutor and, finding that there was no evidence that

he acted for “personal reasons” of his own, entered sum-

mary judgment in his favor. We agree and affirm as to

that defendant. In doing so we are not unmindful of the

decision in DeGroot v. Muccio, 115 N.J. Super. 15 (Law

Div. 1971). We are not here called upon to approve, or

disapprove, the result, or the opinion, in that case. The

acts charged against defendant prosecutor here in no sense

approach the “ultimate peak of wickedness” or the “hor-

rendous” charges there made. We do note that in De-

Groot, Hann v. Lloyd, supra, was not cited. Suffice it

to say that the actions of the prosecutor here—insofar as

he “acted” at all, since there was no proof of his personal

participation or motivation here-in—were clearly within

his jurisdiction and no excess thereof is suggested. There-

authenticated, coming from a court of general jurisdic-

tion, that was vested with cognizance over the class of

cases to which it appertained, placed in the hands

of the proper officials for execution. It is the legal

rule that under such conditions the judicial precept

must be implicitly obeyed by those to whom it is thus

directed. This is a principle essential to the orderly

administration of the law. And the consequence is

that the officers to whom the writ is addressed will not

be responsible for anything necessarily or properly

done in its execution. Such ministers of the law need

not show the grounds on which the tribunal in issuing

the process proceeded, for they can rely on the writ

alone without the production of the judgment record

on which it is presumed to rest. It is not necessary to

refer to books in support of a doctrine that no one

12a Appendix C

will controvert. Plainly, the judge was right in hold-

ing that the writ was a complete vindication of the

conduct of these ministerial officers for their arrest

and detention of the plaintiff. [Id. at 4].

Additionally, there is no evidence that DiBiasi acted

in excess of his authority under the warrant. There thus

being no demonstration of a genuine issue of material

fact, we affirm the summary judgment in his favor.

However, unlike DiBiasi, defendants Bickley. Spann

and Dunne did not act merely in obedience to the warrant

issued by the court. The alleged actions of those defend-

ants which are brought into question occurred before the

warrant issued. Bickley made the affidavit which con-

tained the false information. Allegedly, Spann gave false

information which was contained in the affidavit and which

he said he obtained from the Telephone Company. And,

according to Bickley, Dunne participated in the drafting

of the affidavit.

Bickley, Spann and Dunne acted essentially as police

officers. The common law never granted police officers

an absolute or unqualified immunity. Pierson v. Rey, 386

U.S. 547 (1967). See also Bivens v. Six Unknown Named

Agents of Fed. Bur. of Narc., 456 F.2d 1339, 1346 (2d

Cir. 1972) (on remand from United States Supreme Court

403 U.S. 388 (1971)). In Bivens, Judge Medina stated

the reasons why immunity should not be extended to fed-

eral officers:

Thus, the real question to be asked is whether or not

federal officers performing police duties warrant the

protection of the immunity defense. We hold that

they do not.

This policy decision has been expressed by courts

in terms of “discretion”—making an arrest is not

Appendix C 13a

deemed to be a discretionary function. See e.g.,

Carter v. Carlson, 144 U.S. App. D.C. 388, 447 F.2d

358 (1971), cert. granted sub nom. District of Co-

lumbia v. Carter, 404 U.S. 1014, 92 S. Ct. 683, 30 L.Ed

2d 661 (Jan. 10, 1972); Sherbutte v. Marine City, 374

Mich. 48, 130 N.W.2d 920 (1964); Jaffe, Suits against

Governments and Officers: Damage Actions, 77 Harv.

L. Rev. 209, 218-19 (1963). “The tendency to hold

a public official accountable appears to increase as the

discretionary scope of his duties decrease. Hence,

police officials, whose job is to enforce the law, are

not given immunity.” Note, Immunity of Prosecuting

Officials from Suit for Alleged Deprivation of Civil

Rights, 40 Temp. L.Q. 244, 250 (1967). Mr. Justice

Harlan used similar reasoning in Barr, where he said

that “the broader the range of responsibilities and

duties, °°° the wider the scope of discretion

360 U.S. at 573, 79 S. Ct. at 1340. Whereas it is true

that a police officer must exercise some discretion in

making an arrest, the fiction that this act is not discre-

tionary is maintained because of the belief that the

benefit to society derived from the protection of per-

sonal liberties outweighs the detriment of perhaps de-

terring vigorous police action. See Developments in

the Law—Remedies Against the United States and its

Officials, 70 Harv. L. Rev. 827, 835 (1957). Con-

sequently, “[t]he common law has never granted po-

lice officers an absolute and unqualified immuni-

ty °°°.” Pierson v. Ray, 386 U.S. 547, 555, 87 S. Ct.

1213. 1218, 18 L.Ed.2d 288 (1967). See also K.

Davis, Administrative Law Seaatas $26.03 at 874-5

(Supp. 1970).

eeco ”

In Jones v. Perrigan, 459 F.2d 81 (6th Cir. 1972), plain-

tiff was arrested by Perrigan, an F.B.I. agent, pursuant

I4a Appendix C

to arrest warrants allegedly procured by Perrigan by execu-

tion of perjured affidavits in support thereof. Jones sued

Perrigan for false imprisonment and malicious prosecu-

tion. The District Court dismissed the complaint, hold-

ing that Perrigan, as a public officer, was immune from

liability. The Court of Appeals, by a divided court, re-

versed, citing Bivens and said on its own behalf:

We disagree with the basis of the decision of the

District Court. As a matter of public policy, certain

officials are absolutely immune from liability for acts

committed within the scope of their office, even if the

acts were corrupt or malicious. [Citing cases]. The

immunity of law enforcement officers from false arrest

liability is a qualified one, in the nature of an affirma-

tive defense. Immunity is available only if the officer

acted in good faith with proLable cause. [Citing

cases]. “This immunity of officers cannot fairly be

enlarged without jeopardizing the privacy or security

of the citizen.” [Citing cases]. The mere fact that

Perrigan was an FBI agent does not per se establish

his immunity from the claim of Jones. Fine v. Par-

amount Pictures, Inc., 171 F.2d 571, 574 (7th Cir.

1948). [Id. at 83}.

New Jersey has adopted the ministerial-discretionary

dichotomy as a means of limiting the potential liability of

governmental officials acting within the scope of their

authority. Where the officials act in a ministerial fashion,

immunity will not be available. Kisiclewski v. State of

New Jersey, 68 N. J. Super. 258 (App. Div.), cert. den.

36 NJ. 144 (1961); Czyzewski v. Schwartz, 110 NL.

Super. 255 (App. Div. 1970). See also Bedrock Founda-

tions, Inc. v. Geo. H. Brewster & Sons, Inc., 31 N.J. 124

(1959). Where, however, the official acts in a discretion-

ary fashion, immunity will be present unless ill will or bad

Appendix C 15a

faith be shown. In Bivens, Judge Medina, in examining

the case before him in light of the “discretionary” stand-

ard, said:

It would be a sorry state of affairs if an officer had the

“discretion” to enter a dwelling at 6:30 a..1. without

a warrant or probable cause, and make an arrest by

employing unreasonable force [at 1346].

While in the case before us the officers did obtain a war-

rant, it would be an equally “sorry state of affairs” to hold

that officers had the “discretion” to obtain that warrant,

as plaintiffs allege, upon a false affidavit or by supplying

false information which was used in it. In any event, even

if Bickley’s, Spann’s, or Dunne’s actions are deemed “dis-

cretionary, there is still left the issue as to whether they

acted from ill will, bad faith or malice.

Clearly, if plaintiffs’ allegations are true, they have a

cause of action for violation of their rights guaranteed to

them under the Fourth Amendment of the United States

Constitution. Bivens v. Six Unknown Named Agents of

the Fed. Bur. of Narcotics, 403 U.S. 388 (1971). We

agree with the philosophy expressed in Cohen v. Norris,

300 F.2d 24 (9th Cir., en banc, 1962), that it would be

ludicrous for plaintiffs to have an actionable claim for an

unconstitutional violation of their rights and for police

officers to be immune from suit for having committed the

violation.

As has been seen, Bickley’s affidavit was concededly

false. In Earl v. Winne, supra, it was said at 133:

But where the affiant falsely and maliciously states

facts untruly and procures a warrant to be issued he

becomes responsible for the prosecution and arrest,

16a Appendix C

because if he had not made the false affidavit and

asked for the issuing of the warrant, the court could

not and would not have decided that criminal process

should issue. Malice and want of probable cause are

thus inferred from the falsity of the affidavit upon

which the arrest was procured. Navarino v. Dudrap,

66 N.J.L. 620 (E. & A. 1901). [Emphasis added].

So too, the false information which Spann allegedly

gave to Bickley and which he said had been obtained from

the Telephone Company raises genuine issues of material

fact as to whether he acted in good faith or maliciously.

However, by posing these issues we are not to be under-

stood as suggesting that either Bickley, Spann or Dunne

in fact acted other than in good faith. We hold only that

there are genuine issues of material fact which preclude

entrv of summary judgment in their favor. R.4:67-5.

And this is especially so where the issues remaining relate

to “subjective” elements such as good faith and malice.

Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.].

67, 76 (1954). As also said there as to granting summary

judgment: “Indeed, subjective elements aside, a note of

caution has been sounded as to any case where the op-

posing party must prove his claim °°° from what he can

draw from the other party.” That is plaintiffs’ task here.

Summary judgment in favor of defendants Bickley, Spann

and Dunne is reversed and a plenary trial is ordered as to

them. We repeat for the sake of emphasis, however, that

we are not passing on the question as to whether, at such

trial, the proofs will establish the traditional elements of

the several causes of action alleged by plaintiffs or whether

valid defenses will be established on defendants’ part.

2. The “malice” here spoken of is implied malice as distinguished from

the express malice which a plaintiff in a libel or slander suit must establish

to overcome a qualified privilege. See Point Ill, infra.

Appendix C 17a

Il.

AS TO THE COUNTY OF MORRIS

The theory upon which plaintiffs assert liability on the

part of the County of Morris is that the Prosecutor and his

aides were acting in this instance as agents of the County

which was therefore vicariously liable on principles of

respondeat superior. The short answer—though the ques-

tion was not discussed in any of the briefs—is that the

Prosecutor and his aides were not agents of the County,

but rather of the State in their actions with respect to the

plaintiffs. See Atty. Gen. P.M. 1955, No. 27. The County

Prosecutor is a constitutional officer appointed by the Gov-

ernor, with the advice and consent of the Senate. N.J.

Const. Art. VII, §2, § 1. The relevant statute provides

that: “The criminal business of the State shall be pros-

ecuted by the Attorney General and the County Pros-

ecutors.. N.J.S.A. 2A:158-4 (emphasis added). The

County Prosecutor represents the State. State v. Longo,

136 N.J.L. 589 (E. & A. 1947). And ultimately when an

indictment is found, the prosecution thereof is undertaken

by the State of New Jersey in its own name. Therefore,

in performing the actions with which they are charged,

the Prosecutor and his aides were the agents of the State

and not of the County of Morris, and there is no liability

as to the County for those actions under the doctrine of

respondeat superior. Thus we do not reach the question

of any immunity which the County may have had at the

time of the action sued upon. We also leave for an ap-

propriate case the question of whether the County may be

vicariously liable for the actions of detectives in other

circumstances.

The siimmary judgment in favor of the County of Morris

is affirmed.

1Sa Appendix C

ITI.

AS TO THE TELEPHONE COMPANY

The amended complaint alleges that the Telephone

Company “wrongfully, negligently and unlawfully told the

defendant Frank Spann that calls were being made from

the telephone which were [sic] allegedly being used for

the commission of crime to the telephone of the plaintiffs.

The New Jersey Bell Telephone Company know [sic] or

should have known that this information was false. The

complaint further alleged that the said false information

was “negligently, recklessly, maliciously and wantonly sup-

plied by the defendant New Jersey Bell Telephone Com-

pany to the defendant Frank Spann®*°*.” In essence, it is

a charge of a malicious slander on the part of the Company

through its “representative.”

It is the Telephone Company’s contention that, since

any information supplied to detective Spann was given

subject to subpoena, it is cloaked with the same immunity

as possessed by the Prosecutor. It further argues that it

is immune to suit by reason of Section 605 of the Federal

Communication Act of 1934, 47 U.S.C.A. §605. We con-

sider these contentions in inverse order.

The latter argument is stated in the Company's brief

as follows: “It has been established that the making of toll

records by telephone equipment used in the ordinary

course of company business does not constitute an unlaw-

ful interception and their divulgence to appropriate law

enforcement authorities upon subpoena is both legal and

proper. In support thereof, the Company cites United

States v. Covello, supra, 410 F.2d 536 (2d Cir. 1969),

and Nolan v. United States, supra, 423 F.2d 1031 (10th

Cir. 1969). Covello and Nolan, so far as relevant at all.

stand only for the proposition that toll records are ad-

Appendix C 19a

missible in a criminal trial and their divulgence therein to

law enforcement authorities is not an impermissible inter-

ception under Section 605 of the Federal Communications

Act. It does not follow from the correct argument of the

Company that it was “proper” to make toll records and

not impermissible to divulge the information to the Pros-

ecutor's detectives, that the Company is absolved by statute

from all liability.

There is no authority for the proposition that the Tele-

phone Company is cloaked with the same immunity as

the Prosecutor merely because it acted pursuant to sub-

poena. Parenthetically, we note Spann testified that his

information that the Cashens’ telephone was being used

for gambling activity came from a telephone conversation

with a representative of the Company. It is not claimed

that the information came from any records produced

pursuant to subpoena. However, we do hold that the

Telephone Company was cloaked with a qualified priv-

ilege with respect to whatever communications its “rep-

resentative’ may have given a law enforcement officer

such as Spann. A communication, made bona fide, on any

subject-matter in which the party communicating has an

interest, or in reference to which he has a duty, is privilege,

if made to a person having a corresponding interest or

duty, though the communication would be actionable if

_it were not for the privilege. Coleman v. Newark Morn-

ing Ledger Co., 29 N.J. 357, 375 (1959); Jorgensen v.

Pennsylvania R.R. Co., 25 N.J. 541, 543 (1958); King v.

Paterson, 49 N.J.L. 419, 430 (E. & A. 1887). The pur-

pose of establishing such privilege is for the welfare of

society and °°* it is ‘in the public interest that persons

should be allowed to speak freely on occasions when it is

their duty to speak, and to tell all they know or believe,

or on occasions when it is necessary to speak in protection

of some {self or} common interest’; °°*.” Coleman v.

20a Appendix C

Newark Morning Ledger Co., supra at 377. It is indeed

in the public interest that a telephone company supplying

information to prosecuting authorities in the aid and de-

tection of crime should have such a privilege.

A qualified privilege may be overcome only if there is

a showing of express or, as it is sometimes called, actual

malice. Coleman, supra at 374-375. Such malice is to

be distinguished from that implied malice which may be

inferred from the falsity of Bicklev’s affidavit (if it was

false). as pointed out in Earl v. Winne, supra, 14 N_J. at

133 (See Point I above). No such inference of express

or actual malice can be drawn from the mere fact that

the libelous or slanderous words were false. Odgers, The

Digest of the Law of Libel and Slander, 293 (6th ed.

1929). As said in Gately on Libel and Slander, 567 (5th

ed. 1960):

Privileged occasion. Where the words were published

on a privileged occasion, the mere proof that they are

false is not evidence of malice. “Even though the

statement should be untrue in fact, the defendant will

be held justified by the occasion unless it can be shown

to have proceeded from a malicious mind.” “Mere

falsehood is certainly no disproof of bona fides.”

Express malice, with which we are now concerned,

means something more than the “fictitious legal malice”

(Coleman, supra, at 375), which is implied from an un-

privileged defamation. It must encompass a purpose to

make the publication, not primarily for the purpose for

which the privilege is bestowed, but for some wrongful

motive such as ill will or to accomplish an objective not

within the purpose of the privilege. Id. And, when the

occasion is privileged, as we hold here, the onus lies on

plaintiffs to prove defendant's malice, for the bona fides

Appendix C 2la

of the defendant is always presumed. Odgers, op. cit., p.

284, and Coleman at 373. On such privileged occasion,

in what may be termed obeisance to the privilege, it will

be assumed that defendant published the defamatory mat-

ter honestly believing it to be true, unless there is some

evidence from which a contrary inference may be drawn.

Gately, op. cit., §§480, 481, pp. 271-272. It is plaintiffs’

burden to produce such evidence. If indeed the evidence

is merely equivocal, i.e., equally consistent with malice

or bona fides, or if the evidence is a mere scintilla, the

judge should stop the case. Odgers, op. cit. pp. 284-285.

As the latter authority puts it:

“If once the privilege be established, unless there be

extrinsic evidence of malice, there must be something

so extreme in the words used as to rebut the presump-

tion of innocence, and to afford evidence that there

was a wrong and an indirect motive prompting the

publication” (per Buckmaster, L.C., in Lyal v. Hen-

derson, {1916} S.C. (H.L.), at p. 175). [at 293}.

Assuming that the “representative” of the Telephone

Company gave Spann the information which he ascribes

to her, we conclude that there is no evidence of express

or actual malice on the part of the Company or its “rep-

resentative. For these reasons the summary judgment

in favor of the Telephone Company is affirmed.

IV

DISCLOSURE OF THE IDENTITY

OF THE INFORMER

Plaintiffs appeal from the action of the trial court in

refusing to compel defendant officials to disclose the iden-

tity of the so-called reliable informer referred to in Bick-

ley’s affidavit. Defendant officials rely on the “informer’s

22a Appendix C

privilege” (Rules of Evidence, rule 36; N.J.S. 2A:84A-28),

and the philosophy denying disclosure of the informer’s

identity as expressed in numerous criminal cases. In

doing so they cite, among others, State v. Burnett, 42 N.].

377 (1964), and State v. Petillo, 61 N.J. 165 (1972), cert.

den. — U.S. —, 93 S. Ct. 1393, 35 L.Ed 611 (1973).

The privilege relied upon is not the privilege of the in-

former but the privilege of the Government. The scope

of the privilege is limited by its underlying purpose. That

purpose is the furtherance and protection of the public

interest in effective law enforcement. Roviaro v. United

States, 353 U.S. 53 (1957). As said in the latter case:

“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 perform that obligation.”

Id. at 59. And: “A further limitation on the applicability

of the privilege arises from the fundamental requirements

of faimmess. Where the disclosure of an informer’s identity,

or of the contents of his communication, is relevant and

helpful to the defense of an accused, or is essential to a

fair determination of a cause, the privilege must give way.

(emphasis added). The same limitation to “fairness” on

the privilege is incorporated in Rule of Evidence 36

N.J.S.A. 2A:84A-28.

>

No absolute rule can be laid down as to when disclosure

of the informer’s identity is essential to a fair determination

of the issues. What is called for is a balancing of the

public interest in protecting the flow of information and

the legitimate interests of the informer against the rights

of others to a fair determination. Roviaro, as adopted in

State v. Burnett, supra.

Weighing the issue of disclosure here by the foregoing

tests, we conclude that no valid public purpose can be

Appendix C 23a

served by withholding disclosure of the identity of the

informer upon which Bickley relied in his affidavit. The

information, if given at all, was totally false. Therefore

the so-called informer cannot be said to be reliable. No

public benefit would be served by continuing his “in-

former’ services. If he were to follow the pattern es-

tablished in this case, he would only mislead the author-

ities and defeat the public interest. Assuming that he

exists and that he did in fact relate to Spann the informa-

tion charged to him, his disservice to law enforcement,

whether it be by carelessness, by incompetence, or by

intention, is abundantly apparent.

As we have said above, since the affidavit of Bickley

contains false information, malice may be inferred there-

from. Such inference may be rebutted on Bickley’s part

by revelation of the reasons why he relied upon the in-

former. If indeed the informer cannot be identified then

malice on the part of Bickley could readily be found by

the jury.

In Brogan v. The Passaic Daily News, 22 N.J. 139

(1956), a libel suit wherein defendants pleaded the news-

paperman's statutory privilege (then N.J.S. 2A:81-10)

and refused to disclose the “reliable source” it had relied

on, the Supreme Court said:

The position of the respondents in this case is that they

insist on asserting these defenses based upon the re-

liability of the source of information upon which they

relied, yet refuse to disclose what those sources were,

so that the jury could ascertain whether they were

in fact reliable. [at 152].

And, at 153:

When the trial court upheld the claim of privilege by

the witness Smith with respect to questions as to the

24a Appendix C

identity of the “reliable source” of his information, he

foreclosed the plaintiff of obtaining information favor-

able to its position to combat the defenses of good

faith and fair comment and lack of malice raised by

the defendants. The cross-examination of a party wit-

ness on matters directly in issue and directly relevant

to the issue is a matter of right.

It was held that the privilege had been waived. See

also Beecroft v. Point Pleasant Print. & Pub. Co., 82 N.].

Super. 269 (Law Div. 1964).

So here, defendant Bickley asserts that he had a “reliable

informer’ and he will undoubtedly defend on the ground

that he had probable cause to make the affidavit and acted

in good faith. But by refusing to disclose the identity

of the informer he would unfairly deny plaintiffs the right

to test those defenses and would preclude them from

cross-examining him “on matters directly in issue” which

is a “matter of right.” To do so is violative of the object

of R. Ev. 36 which would compel disclosure “to assure a

fair determination of the issues.”

It is important that we note emphatically that not every

misstatement or inaccuracy by an informer will necessarily

result in the scales balancing toward a divulging of his

identity. As with many situations where important public

considerations are involved, in the sensitive and delicate

area of a balancing of public and individual rights, deter-

mination should be made on the basis of the facts in the

particular area. In each case, “We must assay the fair-

ness of nondisclosure in the context in which it arises ***”

(Burnett, supra 42 N.J. at 386), both legally and factually.

Defendant officials further support their contentions on

this subject by arguing that the attempt of plaintiffs to dis-

Appendix C 25a

cover the identity of the informer is essentially an attack

upon the truthfulness of Bickley’s affidavit and such an

attack is precluded by the opinion in State v. Petillo, supra.

True, where the issue is whether an affidavit submitted

in support of an application for a search warrant supplies

sufficient probable cause for the issuance of that warrant,

an attack upon the truthfulness asserted in the affidavit

is precluded by Petillo. As Justice Francis said in that

case:

The standard provided in the Constitutions as the basis

for intrusion into the home of a citizen because of

alleged gambling activities is not proof of his guilt

of the criminal offense. The requirement is sworn

statements of fact of sufficient legal quality to per-

suade an impartial judge that probable cause exists

to believe that the crime described is being com-

mitted at the place. Once that test is met to the

satisfaction of the judge, relitigation of the truth of

the factual basis for issuance of the warrant should

not be permitted. [61 N.J. at 174].

But most pertinent to the issue in this civil case where

defendant Bickley is charged with making a false affidavit,

Justice Francis expressly excluded application of his deci-

sion to a case such as this when he said: “Further, so far

as the untruthful officers are concerned, they expose them-

selves to the sanctions of indictment for perjury or false

swearing, a charge of criminal contempt, and assessment

of monetary damages in a civil action.” Id. 174; emphasis

added. And again he expressly said, after laying down

the rule as to testing the veracity of an affidavit if it be

sufficient on its face for the issuance of a warrant: “We

think such a rule adequately serves the purpose of the

Fourth Amendment, and that sufficient deterrence to the

26a Appendix C

ire false affidavit that may slip by the issuing judge is

provided by the sanctions of perjury, contempt and civil

damages.” Id. 178-179; emphasis added.

There is no issue as to the validity of the search warrant

here. Attack on the falsity of the affidavit of Bickley is

therefore not precluded and plaintiffs are entitled to a

trial on the remedy they seek here, i.e. recovery of civil

damages.

We therefore reverse the order of the trial court in

denying disclosure of the identity of the informer referred

to in Bickley’s affidavit to the end that plaintiffs may be

assured a fair determination of the issues, including that

as to the falsity of the affidavit, the motivation therefor,

and the good faith or malice of the maker.

CONCLUSION

In summary, the summary judgment granted in favor

of defendants Prosecutor Egan, DeBiasi, County of Mor-

ris, and the Telephone Company, is affirmed. The sum-

mary judgment granted in favor of defendants Bickley,

Spann, and Dunne, is reversed. The order denying plain-

tiffs information as to the identity of the informer referred

to in Bickley’s affidavit is reversed and such disclosure is

to be made.

No costs to any party.

A true copy

/s/ Mortimer G. Newman, Jr.

MORTIMER G. NEWMAN, JR.

Clerk