Petition — Porro v. Woodcock

AK, JR., CLERK

IN THE

Supreme Court of the United States

OcroBerR TERM, 1977

ALFRED A. PORRO, Jr.,

Petitioner,

vs.

JOSEPH C. WOODCOCK, Jr., Bergen County Prosecutor;

JAMES MAYER, Bergen County Assistant Prosecutor; BERGEN

COUNTY PROSECUTOR'S OFFICE; GRAND JURY, THIRD

STATED SESSION, SEPTEMBER TERM 1973; GRAND JURY

SECOND STATED SESSION, SEPTEMBER TERM 1974;

GRAND JURY, THIRD STATED SESSION, SEPTEMBER

TERM 1974, and GRAND JURY, UNKNOWN STATED SESSION

OR TERM 1975,

Respondent.

On Peririon FOR Writ OF CERTIORARI TO THE

SuPREME Court OF NEW JERSEY

PETITION FOR WRIT OF CERTIORARI

ALFRED A. PORRO, JjR.,

Attorney Pro Se,

10 Stuyvesant Avenue

Lyndhurst, New Jersey 07071

(201) 438-1923

N.J. Appellate Printing Co., Inc., South Plainfield, New Jersey (201) 753-0200

TABLE OF CONTENTS

; I a ss cn'd cs Wan's ud y BENG SR on’

ne Say alltee ee ¥ enw

Questions Presented for Review ..................

Constitutional and Statutory Provisions Involved ....

ET Oo ee escleectens

ARGUMENT:

I. Clarfication of Imbler v. Pachtman to avoid exist-

ing conflicting Federal and State court opinions . .

II. The U.S. Supreme Court should decide whether

42 U.S.C. Section 1983 actions are available to

persons deprived of their civil rights during a

Grand Jury investigation ....................

Cases CITED:

Abramsen v. Mitchell,

450 F.2d O55 (8th Cir. 1972) ............5....

Beck v. Washington,

369 U.S. 541, 8 L.Ed. 2d 98, 82 S.Ct.

955, reh. den. 370 U.S. 965, 8 L.Ed. 2d 834,

| ee eee

Billings v. Atkinson,

489 S.W.2d 858 (Tex. 1973) .............--.

: Brower v. Horowitz,

SoS FBe GeO (Ged Cir. 1078) .... 2... ee ees.

Bursey v. Weatherford,

ee

Caldwell v. United States,

q 205 F.2d 879 (D.C. Cir. 1953) cert. den.

349 U.S. 930, reh. den. 349 U.S. 969 (1955) ...

TABLE OF CONTENTS

Cases CITED:

Coplan v United States,

191 F.2d 749 (D.C. Cir. Ct. 1950) .......... 9-10

Durbin v. United States,

221 F.2d 580 (D.C. Cir. 1064) ................ 10

Halperin v. Kissinger,

U.S. District Court for the District of Columbia,

Docket No. 1187-73, decided December 8, 1976 §, 9

Hedeleone v. Thomas,

423 F. Supp. 7 (D. Neb. 1976) .............. 8

Helstoski v. Goldstein,

U.S. Court of Appeals for the Third Circuit,

es Ga: EEE, «6043 ve 4 chs Oe nks Zur 3, 7, 8

Imbler v. Pachtman,

MUR NTN... oe liccexcc wees 3, 7, 8

National Land and Investment Co. v. Specter,

CE CO Oe OS: 9

Roach v. Harper,

105 S.E. 2d 564 (W. Va. 1956) .............. 9

State v. Cory,

62 Wash. 2d 371, 392 P.2d 1019, 5 A.L.R. 3d

a er cue k ot b peeemn ae ee see 10

State v. Porro,

N.J. Indictment S-1320-75 .................. 9

Tomko v. Lees,

416 F. Supp. 1137, 1138 (D. Pa. 1976) ........ 8

United States v. Doss,

U.S. Court of Appeals (6th Cir.) ............ 11

iii

TABLE OF CONTENTS

Cases CITED:

United States v. Miller,

ED so. ows wie biwatees en 10

United States v. Orman,

417 Fed. Supp. 1126 at 1136 (D.C. Colo. 1976) .. 10

United States v. Rispo,

460 F.2d 965 (3rd Cir. 1972) ................ 9

Wright v. State of Florida,

49 PSa 1066 (Sth Cir. 1974) ................ 9

Zweibson v. Mitchell,

516 F.2d 504 (D.C. Cir. 1975) ................ 9

AUTHORITY CITED:

Law Suits Against the Government Relating to a Bill

to Amend the Privacy Act of 1974, May 6,1977 .._ 8

STATUTES CITED:

I a a er 2

8” RL RI SSUES Sma eR 3, 5, 6, 8

APPENDIX

Appendix “A”

Order and Opinion, New Jersey Superior Court,

ND eae ira cay oh ee oA tK vc tein a ess la

Appendix “B”

Opinion, New Jersey Superior Court,

PR MVID ove cece cease weds deeewes 7a

Appendix “C”

New Jersey Supreme Court Order ............ 9a

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

ALFRED A. PORRO, Jr.,

Petitioner,

vs.

JOSEPH C. WOODCOCK, Jr., Bergen County

Prosecutor; JAMES MAYER, Bergen County

Assistant Prosecutor; BERGEN COUNTY

PROSECUTOR'S OFFICE; GRAND JURY,

THIRD STATED SESSION, SEPTEMBER

TERM 1973; GRAND JURY SECOND STATED

SESSION, SEPTEMBER TERM 1974; GRAND

JURY, THIRD STATED SESSION, SEPTEMBER

TERM 1974, and GRAND JURY, UNKNOWN

STATED SESSION OR TERM 1975,

Respondents.

The petitioner seeks reversal of a judgment of the Su-

preme Court of New Jersey dismissing an appeal of the

Lower Court's ruling dismissing the Complaint for failure

to state a cause of action.

THE OPINIONS BELOW

This case is a civil action for violation of Constitutional

rights of the plaintiff by the defendant prosecutional offi-

cials during the conducting of a grand jury investigation.

The Trial Court, The Superior Court of New Jersey, Law

1

2 Jurisdictional Statement

Division, Bergen County, rendered an oral Opinion on Oc-

tober 28, 1975 dismissing the Complaint on the defendants’

motion to dismiss for failure to state a cause of action.

This Opinion is not officially reported, but a transcript of

the same is appended to this Petition as Appendix “A.” On

February 25, 1977, the Superior Court of New Jersey, Ap-

pellate Division, Docket No. A-1024-75, held “that the

Court below did not err in granting the motion to dismiss.”

Likewise, this opinion is not officially reported but a copy

of the per curiam Opinion is attached hereto as Appendix

“B.” On May 3, 1977, the Supreme Court of New Jersey

Docket No. A-1024-75, dismissed the appeal. No reason

was expressed, nor is this decision officially reported. A

copy of the Order of dismissal is annexed hereto as Ap-

pendix “C.”

JURISDICTIONAL STATEMENT

(i) The judgment sought to be reviewed is the ruling

of the Supreme Court of New Jersey of May 3, 1977 which

affirmed the judgment of the Superior Court of New Jersey,

Appellate Division entered on February 25, 1977, which in

turn affirmed the judgment of the trial court entered on

November 19, 1975.

(ii) No Petition for Rehearing was filed, nor was any

request granting an extension of time within which to Peti-

tion for Certiorari.

(iii) Jurisdiction of this Petition for Certiorari is con-

ferred on this court by Title 28 of the United States Code,

section 1257 (3), 28 U.S.C. 1257 (3) and jurisdiction is

further conferred upon this court by Title 42 of the United

States Code, section 1983, 42 U.S.C. 1983.

8

QUESTIONS PRESENTED FOR REVIEW

1. Does Title 42 of the United States Code, Section

1983, 42 U.S.C. 1983 provide relief from the deprivation

of substantial rights, privileges, or immunities secured by

the Constitution committed by state prosecutors during

the course of a grand jury investigation.

2. Do the actions of the prosecutors, including the fail-

ure to inform the petitioner that he had been indicted and

concealing said indictment from him while compelling him

to testify before the indicting grand jury, constitute a viola-

tion of the United States Constitution, Amendments Five

and Six.

3. Does the New Jersey Supreme Court decision bar-

ring civil relief from investigative stage prosecutional ac-

tion decide a federal question of substance in a way prob-

ably not in accord with applicable decisions of this Court

as in Imbler v. Pachtman, 424 U.S. 40 (1976) and Helstoski

v. Goldstein, U.S. Court of Appeals for the Third Circuit,

Docket No. 76-956 presently before this court, October,

1976 term, Docket No. A1062.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the following provisions of the

United States Constitution:

1. Amendment V—No person shall be held to answer

for a capital, or otherwise 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 offence to be twice put in jeopardy of

4 Constitutional and Statutory Provisions Involved

life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of

law; nor shali private property be taken for public

use, without just compensation. U.S. Constitution,

Amendment 5.

2. 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 ascertained by

law, and to be informed of the nature and cause of

the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtain-

ing witnesses in his favor, and to have the Assistance

of Counsel for his deference. U.S. Constitution,

Amendment 6.

3. 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

priviliges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

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

deny to any person within its jurisdiction the equal

protection of the laws. U.S. Constitution, Amend-

ment 14.

The following Federal statutory provision is involved

in this case:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage of any State or

Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress. 42 U.S.C. Section 1983.

STATEMENT OF THE CASE

The defendants commenced an investigation approx-

imately three years ago of the plaintiff. This investigation

extended over the term of four Grand Juries.

A Verified Complaint was filed against the defendants

on September 30, 1975, setting forth numerous actions

which violated substantial Constitutional rights of the plain-

tiff, including the Fifth, Sixth and Fourteenth Amendments;

also alleged was the violation of 42 U.S.C. Section 1983.

These violations consisted of illegal electronic taping of de-

fense conversations in the law office of the plaintiff relative

to defense witnesses, documents and strategy on no less

than 15 occasions between June 1975 and October 1975,

utilization of unauthorized subpoenas to obtain numerous

records of plaintiff and invasion of plaintiff's personal and

professional records; numerous Grand Jury leaks to the

press; intimidation and harassment of witnesses and exten-

sive Grand Jury abuses.

These violations also encompass the concealment of

the indictment of the plaintiff while requiring him to testify

extensively regarding the subject matter thereof.

Immediately after the service of the aforementioned

Civil Complaint it was dismissed by the trial court by grant-

ing a motion to dismiss for failure to state a cause of action

(Appendix A). This dismissal was affirmed by the Appel-

late Division (Appendix B) and the Supreme Court of New

Jetrsey (Appendix C). The Federal questions of the viola-

tion of the constitutional rights in question and the avail-

ability of a civil remedy relative to the same were timely

and properly raised so as to give this Court jurisdiction to

review the State Court Judgments on Writ of Ceritorari.

6 Statement of the Case

All of these Constitutional violations and Federal is-

sues were raised by way of the aforementioned civil com-

plaint and subsequent briefs and oral arguments. In spite

of the common law and the statutory provision of 42

U.S.C. Section 1983, which were raised by the Complaint

and in written and oral argument before the Trial and

Appellate Court and in written argument presented to the

Supreme Court of New Jersey, this Complaint was dis-

missed for failure to allege a cause of action. None of

said Courts would address these Constitutional and Fed-

eral questions.

ARGUMENT

I. Clarification of /mbler v. Pachtman to avoid exist-

ing conflicting Federal and State court opinions.

Since the decision of this Court in Imbler v. Pacht-

man, supra, which held that Prosecutors were absolutely

immune from civil damage suits, including suits brought

under 42 U.S.C. 1983, while performing quasi judicial

functions in certain circumstances, a substantial degree

of conflict has occurred in both the Federal and State

Courts respecting the unresolved issue of lack of absolute

immunity in the Prosecutors role as an “investigative

officer rather than an advocate.” Id. 430-431. Ina similar

case, presently before this Court, Helstoski v. Goldstein,

the United States Court of Appeals for the Third Circuit

on March 28, 1977 held that prosecutorial activities, similar

to the ones in the case at Bar, consisting of Constitutional

violations in an investigative role “would lie outside the

rationale for absolute immunity set forth in Imbler. At

most, it would be subject to a qualified good faith im-

munity.” However, in this very same circuit the New

Jersey State Courts held, as in the case at Bar, that no

cause of action exists.

Thus, the case at Bar, together with the Helstoski case

presently before the Court, presents the issue which this

Court did not address in the Imbler case. In that case this

Court said:

“We have no occasion to consider whether like or

similar reasons requires immunity for those aspects

of the Prosecutor's responsibility that cast him in the

role of an administrator or investigative officer, rather

than that of advocate. We hold only that in initiating

a prosecution and in presenting the State’s case, the

Prosecutor is immune from a civil suit for damages

under Section 1983.” Id. at 430-431.

8 Argument

Also see the post Imbler cases of Halperin v. Kissinger,

U.S. District Court for the District of Columbia, Docket No.

1187-73, decided December 8, 1976, wherein the Court,

comparing the Imbler case, held that investigative electronic

techniques which violated Constitutional rights did not war-

rant prosecutional immunity. Also see Tomko v. Lees, 416

F. Supp. 1137, 1138 (D. Pa. 1976), holding that Imbler

does not bar civil action against a prosecuting attorney for

Constitutional violations in an investigative stage of the case.

Also see Brower v. Horowitz, 535 F.2d 830 (3rd Cir. 1976)

holding that Imbler granted prosecutor immunity where he

allegedly conspired with a witness to knowingly use false

and perjured testimony in that it was not investigative acti-

vity. Also Hedeleone v. Thomas, 423 F. Supp. 7 (D. Neb.

1976) where the Court after granting absolute immunity to

a sheriff, stated that although prosecutors enjoyed absolute

immunity when they exercise judicial or quasi-judicial dis-

cretion, other State officers did not unless they acted in good

faith. Also see report of Comptroller General of the United

States, Law Suits Against the Government Relating to a Bill

to Amend the Privacy Act of 1974, May 6, 1977.

Thus, it appears that the case at Bar, together with the

pending Helstoski case, should be decided to clarify the

unresolved issue in the Imbler, whether prosecutorial im-

munity extends to investigative activities as well as advoc-

acy or quasi judicial functions.

II. The U.S. Supreme Court should decide whether

42 U.S.C. Section 1983 actions are available to persons

deprived of their civil rights during a Grand Pury in-

vestigation.

The case at bar demonstrates the necessity to provide

an effective Civil remedy to prevent extensive and continu-

ing constitutional violations at the grand jury investigative

Argument 9

stage. Without such a remedy all of the substantial Consti-

tutional violations complained of are implicitly sanctioned.

It should be noted that although recognizing all of the

actions in question as being unconstitutional, the New Jer-

sey Courts have declared that said actions are not of the

nature to justify the dismissal of an indictment. State v.

Porro, N.J. State Indictment S-1320-75. The intervening

indictment did not render the case moot. National Land

and Investment Co. v. Specter, 428 F.2d 91 (1970). As

Chief Justice Richard Hughes of the New Jersey Supreme

Court made clear in condemning such grand jury leaks:

“Danger is being done every day to the reputation of

citizens presumed by every constitutional intendent

at that stage to be innocent and innocent until con-

victed, and this kind of damage, of course, is irre-

versible.” 97 NJ L.J. 110 (June 6, 1974) Also see

Fahringer, Herald Price, the Problem of Grand Jury

Leaks, Trial, A.T.L.A. 33 at 37 (May, 1976).

Similarly the prevention of the intrusion into the de-

fense camp by illegal electronic surveillance is only ef-

fectively enjoined by such civil actions, particularly where

the same is done intentionally. Bursey v. Weatherford, 45

L.W. 4154 (1977); Also see Halperin v. Kissinger, supra;

Wright v. State of Florida, 49 F.2d 1086 (5th Cir. 1974);

also see Roach v. Harper, 105 S.E. 2d 564 (W. Va. 1956);

Billings v. Atkinson, 489 S.W. 2d 858 (Tex. 1973) and

Zweibson v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975);

Abramsen v. Mitchell, 459 F.2d 955 (8th Cir. 1972); also

see Roach.

The intrusion into the defense camp, in this matter,

violates substantial constitutional rights. United States v.

Rispo, 460 F.2d 965 (8rd Cir. 1972); Caldwell v. United

States, 205 F.2d 879 (D.C. Cir. 1953), cert. den. 349 U.S.

930, reh. den. 349 U.S. 969 (1955); Coplan v. United

10 Argument

States, 191 F.2d 749 (D.C. Cir. Ct. 1950). It is particular-

ly noted that the prosecution, even through a third party,

cannot “with impunity place a secret agent in a lawyer's

office to inspect the confidential papers of the defendant

and his advisors, to listen to their conversations and to

participate in their counsels of defense,” State v. Cory, 62

Wash. 2d 371, 392 P.2d 1019, 5 A.L.R. 3d 1352 (1963).

“What was learned by the agents would be of help to them

in structuring an answer to the affirmative defense they an-

ticipated and knowledge on the part of the agents of de-

fense plans and strategy is all I think is necessary to require

dismissal.” United States v. Orman, 417 Fed. Supp. 1126

at 1136 (D.C. Colo. 1976). This is exactly what occurred

in the case at bar. A simple remedy is essential.

Likewise, the extensive practice of the abuse of the

grand jury subpoena power by prosecutors issuing unau-

thorized subpoenas, while the grand jury is not in session,

“for the purpose of conducting his own inquisition is clear-

ly unconstitutional but left without the availability of a

civil action.” Durbin v. United States, 221 F.2d 520 (D.C.

Cir. 1954), United States v. Miller, 500 F.2d 771 (1974).

Most shocking is the prosecutional investigative prac-

tice of indicting a defendant, bringing him before a grand

jury, concealing the indictment, and misrepresenting to

him that he is a “target” and not a defendant. Thereafter

proceeding to take extensive testimony relative to the sub-

ject matter of the indictment. The New Jersey court has

deemed such a practice as shocking but an insufficient

basis to discharge an indictment. The Sixth Circuit has

compared this practice to the “Star Chamber of the Eigh-

teenth Century, an institution which helped produce the

American Revolution.” It stated that “*° ° ° the proceed-

ing is an abuse of the process and violates both the Sixth

and the due process clause of the Fifth Amendment.”

Argument 1]

United States v. Doss, U.S. Court of Appeals 6th Cir., and

decided on December, 1976. The cumulative actions of

the prosecutors’ offices in abusing the grand jury process

constitutes a clear violation of the due process right to a

fair and impartial grand jury proceeding. Beck v. Wash-

ington, 369 U.S. 541, 8 L.Ed. 2d 98, 82 S. Ct. 955, reh. den.

370 U.S. 965, 8 L.Ed. 2d 834, 82 S. Ct. 1572 (1962). In

the case at Bar, a defendant is left without any effective

remedy, if complaints, primarily for injunctive relief can

be systematically dismissed on an alleged failure to state a

cause of action. The position of the New Jersey State

Courts in this case demonstrate the complete immunity of

State Prosecutor's from civil action. Thus, without clarifi-

cation of the status of civil remedies respecting unconstitu-

tional investigative actions of prosecutors a substantial

miscarriage of justice is occurring. Without such a remed-

ial avenue there is no effective sanction of these extensive

and growing investigative improper and unconstitutional

actions.

la

APPENDIX “A”

ORDER AND OPINION, NEW JERSEY

SUPREME COURT, LAW DIVISION

(Filed November 19, 1975)

This matter having been heard by the Court on the

return day of an order directing defendants Woodcock,

et al., to show cause why the relief sought by Plaintiff in

his complaint should not be granted, and the State having

moved to dismiss the complaint for failure to state a

claim upon which relief can be granted, and the Court

having considered the affidavits and briefs filed on behalf

of the respective parties, and the Court having heard and

considered the arguments of counsel, and it appearing to

the Court that the State of New Jersey is entitled to the

relief requested, and the Court having rendered an oral

opinion setting forth findings of fact and conclusions of

law which are hereby incorporated by reference, and

good cause appearing;

Now therefore, on this 19th day of November, 1975,

IT IS ORDERED that Count One of the Complaint

be dismissed for failure to state a claim upon which relief

can be granted, without prejudice to the right of the

Plaintiff to pursue his appropriate legal remedies at the

appropriate time; and

IT IS FURTHER ORDERED that Count Two of the

Complaint be dismissed for failure to state a claim upon

which relief can be granted, and for the fact that Count

Two alleges no interference with the legal rights of the

named Plaintiff, without prejudice to the right of the

Plaintiff or Ann Gibson to pursue the appropriate legal

remedies at the appropriate time.

/s’ Theodore W. Trautwein

THEODORE TRAUTWEIN, J.S.C.

A copy of this order to be served on

adversary's attorney within 5 days

2a “Appendix “A”

OPINION OF

THEODORE W. TRAUTWEIN, AJSC.

This Court having considered the briefs and affidavits

submitted by respective Counsel and having heard all

arguments relative to this matter on the 9th of October

1975, concludes as follows:

The first issue to be decided today is whether the first

count of the verified complaint must be dismissed for

failure to state a claim upon which relief may be granted.

The Court concludes that said count must be dismissed

without prejudice to the right of plaintiff to raise the

same issues at a later date in the event an indictment

should issue against him. Plaintiff requests this Court to

grant injunctive relief by issuance of a writ of prohibition.

The grant of a writ of prohibition lies within the sound

discretion of the Court to be exercised with great caution

and forebearance, according to the circumstances of the

particular case and only where the right to such relief

is clear. 73 Corpus Juris Secundum Section 5. A writ

of prohibition ordinarily will not be granted if there are

other remedies at law which would afford complete and

adequate relief.

The guidelines to be followed by the Court in deter-

mining whether or not interlocutory injunctive relief

should issue have been well documented in the Citizens

Coach Company vs. Camden Horse Railroad Company, 29

New Jersey Equity 299 (Court of Error and Appeals 1878).

Therein at page 303, et seq. the Chief Justice of the Court

of Errors and Appeals postulated the following three legal

rules to guide our Courts in weighing the propriety of

injunctive relief;

1. A preliminary injunction will never be ordered unless

from the pressure of an urgent necessity. The damage

Appendix “A” 3a

threatened to be done, and which it is legitimate to pre-

vent, must be, in an equitable point of view, of an ir-

reparable character.

2. A complainant is not in a position to ask for a pre-

liminary injunction when the right on which he founds

his claim is, as a matter of law, unsettled.

3. If the facts constituting the complaint of the com-

plainant for the immediate interposition of the Court are

controverted under oath by the defendant, the Court will

not interfere at the initial stage of the cause.

In the instant case plaintiff alleges that he has suffered

and will continue to suffer irreparable harm personally

and professionally if the investigation is not halted at this

juncture. Grand Juries have traditionally been afforded

great latitude in the scope of their investigations. In-

quiries directed at public bodies, such as the East Ruther-

ford Sewerage Authority, are clearly matters of public

import related to the public welfare and of ultimate bene-

fit to the community served by the Grand Jury. The

tangential public embarrassment and humiliation of an

individual doing business with a public body under in-

vestigation does not rise to that level of irreparability of

harm sufficient to invoke the injunctive power of this

Court. Moreover, the legal right on which plaintiff

unds his claim is, as a matter of law, unsettled. The

Court, after diligent inquiry, is unaware of any case in

which a Grand Jury investigation was halted at the pre-

indictment phase and any “planned” indictment enjoined.

The plaintiff herein has adequate remedies at law in the

event an indictment should issue against him. Plaintiff

may move to quash the indictment, sue for actual and

punitive damages for illegal wiretapping pursuant to

N.J.S.A. 2A:156A-24, or bring a suit sounding in tort

against the above named defendants. Moreover, if the

4a Apendix “A”

pre-trial publicity in the instant matter has so permeated

the community so as to prejudice plaintiff's right to a

fair trial, plaintiff may move for a change of venue or

alternatively, may request that individual jurors so preju-

diced be excused on voir dire. Therefore, this Court con-

cludes that the issuance of injunctive relief at this stage

of the proceedings would constitute an infringement of

the legal rules postulated by the Court of Errors and

Appeals in Citizens Coach Company vs. Camden Horse

Railroad Company and, moreover, would result in a seri-

ous invasion of the secrecy of Grand Jury proceedings.

The rationale of this Court is equally applicable to the

second count of the verified complaint insofar as the relief

requested in the first count of the complaint. However,

the Court will take this opportunity to comment on plain-

tiff's request that further harassment of Ann Gibson be

enjoined and that the Grand Jury be discharged relative

to the alleged invalid investigation of Ann Givson. It is

axiomatic that an injunction will not be granted to re-

strain acts that occasion no injury to the complainant.

The basis for injunctive relief must be interference with

a legal right of the plaintiff, not of a third party. The

complainant, Alfred Porro herein, cannot succeed because

Ann Gibson may be injured. 42 Am Jur Second, Section

29, page 765. Therefore, the second count of the verified

complaint is similarly dismissed without prejudice to the

right of plaintiff or Ann Gibson from pursuing their legal

and equitable remedies in the event an indictment should

issue against either or both of them.

At this time the Court refrains from addressing the

merits of the motions brought by Ann Gibson returnable

October 31, 1975, to wit: The challenge to the array of

Grand Jurors relative to all the defendants Grand Juries,

the motion to have all pleadings, documents, and proceed-

Appendix “A” 5a

ings impounded, sealed and heard in camera, the demand

for a bill of particulars, the request to interview Grand

Jurors, the motion to dismiss the indictment, the motion

to suppress illegally obtained evidence, and finally the

request for discovery, other than to make a few observa-

tions in a few minutes about State vs. Gibson.

The order to show cause is, therefore, discharged, dis-

missed, and the complaint dismissed without prejudice.

Submit order in accordance with this decision. You may

incorporate the Court's findings by reference as set forth

in its oral opinion either under the five day rule, or with

the consent attached.

Now, it should be noted that there have been no an-

swering affidavits filed in this matter by the Prosecutor's

Office for obvious reasons. This would destroy the

secrecy of the Grand Jury proceedings which at least

until today in this matter are still inviolate, but the Court

must make this observation that merely from oral argu-

ment, when it was heard in camera on October 9, there

were certain statements made by the Assistant Prosecutor,

who argued this cause, that demonstrated to the Court

that there could have been substantial fact conflicts devel-

oped in this case, which is simply another reason under

the Camden Coach case why preliminary or interlocutory

injunctive relief should not be granted.

Now, with respect to State vs. Gibzson, there are mo-

tions returnable on Friday October 31. I will set them

down for two o'clock. However, I would like to hear

from both the Prosecutor and Mr. Porro as to why this

matter as far as State vs. Gibson should continue in

camera. I believe it is in that posture now—maybe I

should hear Mr. Porro first.

MR. PORRO: Your Honor, I would like to request

that your Honor postpone those motions and I think that

6a Appendix “A”

will avoid the necessity of it being in camera, namely it

appears as if the Prosecutor's Office is going to move rela-

tive to myself before this week is out, or the early part of

next week, in which event—

THE COURT: What does that mean “move?”

MR. PORRO: Well, according to what they said in

open Court they said they . . .

7a

APPENDIX “B”

OPINION

NEW JERSEY SUPERIOR COURT,

APPELLATE DIVISION

Argued February 9, 1977; Decided February 25, 1977.

Before Judges Lora, Crane and Michels.

On appeal from Superior Court, Law Division, Bergen

County.

Mr. Alfred A. Porro, Jr., argued pro se.

Mr. Marcel R. Plaut, Deputy Attorney General, argued

on behalf of respondents (Mr. William F. Hyland, Attor-

ney General, attorney ).

PER CURIAM

The plaintiff Alfred A. Porro, Jr. brought an action in

the Law Division alleging that the defendant prosecutor

and assistant prosecutor were conducting a Grand Jury

investigation of his business and professional affairs in a

manner which infringed upon his constitutional rights.

The essential relief sought in the complaint was the in-

junction of the return of an indictment against him; the

delivery to him of all Grand Jury minutes, statements,

testimony and records; the injunction of further harass-

ment; the disqualification of the prosecutor and his staff

from any further investigation of the plaintiff; the ap-

pointment of an independent counsel to review the actions

of the prosecutor and the discharge of the Grand Jury.

On motion of the defendant prosecutor, the court below

dismissed plaintiff's complaint on the ground that irrep-

arable harm was not shown and that plaintiff could move

for relief in the criminal proceedings if an indictment

8a Appendix “B”

were to be returned. Subsequently the Grand Jury did

return an indictment against the plaintiff. He appeals.

The return of the indictment against the plaintiff has

rendered substantially all of the issues raised by plaintiff

moot. Alboum v. City of Newark, 22 N.J. 571 (1956).

Nevertheless, since it is theoretically possible to grant

some of the relief sought by plaintiff in this complaint,

we have considered the appeal on its merits. See Na-

tional Land & Investment Company v. Specter, 428 F. 2d

91, 94 (3 Cir. 1970).

Our careful review of the record persuades us that the

court below did not err in granting the motion to dis-

miss. The judgment is affirmed for the reasons expressed

in the oral opinion of Judge Trautwein delivered on Octo-

ber 28, 1975. See Eleuteri v. Richman, 47 N.J. Super. 1,

26 (App. Div. 1957), aff'd. 26 N.J. 506 (1958), cert. den.

358 U.S. 843 (1958); Moresh v. O'Regan, 122 N.J. Eq.

388 (E. & A. 1937); 4 Pomeroy, Equity Jurisprudence

(5th Ed. 1941) §1361(b) at 978.

A TRUE COPY

Elizabeth McLaughlin

Clerk

9a

APPENDIX “C”

NEW JERSEY SUPREME COURT ORDER

(Filed May 3, 1977)

This matter having been duly presented to the Court,

it is ORDERED that the motion to dismiss appeal is

granted.

WITNESS, the Honorable Richard J. Hughes, Chief Jus-

tice, at Trenton, this 3rd day of May, 1977.

/s/ Florence R. Peshoe

FLORENCE R. PESHOE

Clerk

A TRUE COPY

Florence R. Peshoe

Clerk