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“Indict or Remain Silent”: Presentments Challenged

By Dennis M. Galvin

Would you be shocked to learn that there is still a locale in America where any office holder, elected or appointed, can be the subject of a political investigation by law enforcement and then be denied a public forum in which to defend oneself against the allegations lodged in a secret government report. Like something ripped from the pages of history about the Star Chamber or the Inquisition, New Jersey’s constitution provides for the presentment of public officials, which are prepared in secret, and which denies the public official of their right to face their accusers. Shockingly, the New Jersey Courts have held this procedure to be constitutional, provided the safeguards outlined in R3:6-9(c) are followed, of course.

I. NEW JERSEY COURTS AND PRESENTMENT - PERFECT TOGETHER

New Jersey’s first constitution, prepared in haste in 1776, made no reference to indictment or presentment. However, New Jersey’s second constitution, established in 1844, did contain such a clause. That provision was carried over to New Jersey’s current constitution, ratified in 1947, and states:

8. Presentment or indictment of grand jury; necessity; exceptions No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury except in cases of impeachment, or in cases now prosecuted without indictment, or arising in the army or navy or in the militia, when in actual service in time of war or public danger.

Presentment as a prosecutorial tool is outmoded. "Technically, a presentment lacks the formality of an indictment. "In re: Presentment the Superior Court, Hudson County 14 N.J. Super 543,545 (Law Div 1951) citing O’Reagan v. Schermerhorn, 50 A. 2d 10 25 NJ Misc. 1, (Sup. Ct. Cir. 1946). The distinction between indictment and presentment was, very simply, the availability of an attorney. Due to an insufficient number of attorneys in early America, sometimes a grand jury had to return charges against a criminal without the benefit of an attorney, this process is known as a presentment. Since the later part of the nineteenth century, grand juries have seldom, if ever, had to return a presentment for a criminal prosecution, but the use of presentment has survived solely for the purpose of reporting on the supposed misconduct of elected and appointed officials.

According to Judge Proctor in In re: Presentment the Superior Court, Hudson County 14 N.J. Super 543,545 (Law Div. 1951):

"The custom has long existed in this state for grand juries to consider methods of administration of municipal governments and point out where there are defects or where improvements may be made. This is done in a report commonly known as a presentment. Much can be said of this custom."

However, Jude Proctor acknowledged the manifest unfairness of this custom and ordered part of the report redacted. The Judge explained: "In the public mind such a report or presentment is the equivalent of a judicial finding, yet it lacks a fundamental principal in our system of justice/the right to defend one’s self. Id. at 546.

In discussing presentments, Chief justice Gummere in his charge to the Grand Jury of Essex County in 1907 (30 N.J.L.J. 306), said:

In dealing with this matter, however, you might bear in mind that a Presentment is sometimes a cruel thing, When a man is indicted his character is attained because the general public believes that hee would not be indicated if he had nor violated the law. If he is innocent, however, he has the opportunity to demonstrate it. Where a presentment besmirches the reputation of a man he has not the opportunity to justify himself. He goes through life with a stigma and there are no charges which he may meet...a presentment accuses but furnishes the accused with no right to his day in court."

Chief Justice Vanderbilt, who presided over the constitutional convention of 1947, wrote the New Jersey’s Supreme Court opinion in the case In re Camden County Grand Jury 10 N.J. 23 (1952) {Camden II}, effectively ratifying the constitutionality of the Presentment provision of the New Jersey State Constitution. The Court in supporting this custom lists countless instances of use in East and West Jersey and under the Constitution of 1844. Judge Vanderbilt goes on to state:

"The retention of the words presentment or in the 1947 Constitution could only have meant that the Convention approved presentments of public affairs as they had been known in New Jersey from earliest colonial times." He added "presentments of public affairs serve a need that is not met by any other procedure."

Judge Oliphant dissented arguing that:

"as the result of a presentment a public official is condemned without an opportunity to be heard or being afforded any of the other safe guards which our democratic way of life afford those accused of criminal violations."

Judge Vanderbilt endorsed presentment notwithstanding it’s due process deficiencies. However, the court’s rule on presentment was amended in 1953, R.R. 3:3-9(c):

"Promptly and before the grand jury is discharged, the Assignment Judge shall examine the presentment. If it appears that a crime has been committed for which an indictment may be had, he shall refer the presentment back to the grand jury with appropriate instructions. If it appears that the presentment is false, or is based on partisan motives, or indulges in personalities without basis, or if other good cause appears, he shall strike the presentment either in full or in part. As an aid in examining the presentment the Assignment Judge may call for and examine the minutes and record of the grand jury." See Appeal of Messano 16 N.J. 142, (1954). In 1961 the New Jersey Supreme Court took up the issue of Presentment and this time, Judge Francis, writing for the majority, imposed some limits on the scope of presentment:

"In the existing state of the law and under R.R. 3:3-9 the first obligation of an assignment judge on receiving the report is to determine whether the matters contained therein are the proper subjects of a presentment. If not, it should be suppressed to the extent of the impropriety. If it reprobates a public official or officials, careful nation and study are required, first to determine if the general subject of the presentment is a condition of public official is intimately related in cause to the condition. Occasionally the line of demarcation between a legitimate report and one which unfairly reprimands a public official without returning an indictment may be difficult to draw.

But that is no reason for ignoring it or failing to observe any line. Judge Weintraub dissented from the Court’s holding on the basis: "I can think of no Fact-finding procedure more hostile to the basic tenets of the judicial process than the procedure of a grand jury. It meets in secret; it conducts its hearings unilaterally; there is no opportunity in the individual affected to cross-examine witnesses against him or to produce evidence in his favor." Judge Weintraub takes the position that if the court can not come up with an adequate procedure to provide a means of cross-examination without a full blown trial. "Then we should in such matters join the jurisdictions which hold that a grand jury should indict or be silent."

By the time the Supreme Court again examines a presentment matter, In re Presentment of the Essex County 46 N.J. 467 (1965), the rules of presentment as set forth in R. 3:3-9 (e) are beyond question and the judicial focus is on application. The Supreme Court affirmed the assignment Judge’s ruling in that case and the Appellate Division did the same in a 1973 matter known as In re Presentment of Camden County 124 N.J. Super 16 (App.Div. 1973).

Our courts are aware of the criticism and concerns about presentment but remain satisfied that the rule as crafted is some how adequate. In State v. Porro 152 N.J. Super. 179, 185, 397 A.2d 909 (1977), The Appellate Division stated, "In recent times presentments which censure a public official have come under attack because, falling short of indicting the official, they deny him the opportunity to face his accusers and to refute their accusations.

Because censure of a named public official may damage his reputation, without any reasonable opportunity to defend himself, our Supreme Court has developed rules requiring examination of the presentment and the evidence supporting it to determine whether or not public disclosure is warranted R.3:6-9(c)" (replaced 3:3-9). By 1986, the Law Division states in In re Presentment of Passaic County 220 N.J. Super 470, 476 (Law Div. 1986) that "Substantial safeguards were established to protect petitioners’ rights." The court went on to refer to the rules regarding presentments. The Assignment Judge stated:

"The assignment judge must determine whether any part of the presentment should be stricken as being (1) false, (2) based on partisan motives, (3) indulging in personalities without basis, or (4) for other good cause, R. 3:6-9(c); In re Union County Grand Jury 44 N.J. Super 443, 449, (Law Div. 1957) Careful and diligent examination of the presentment by the assignment judge should absolve it of such deficiencies. Id at 50"

As is obvious, the New Jersey Courts endorse presentments and believe that the rule 3:6-9 (c) provides sufficient constitutional safeguards of public official’s rights.

II. PRESENTMENT VIOLATES DUE PROCESS CLAUSE OF THE FEDERAL CONSTITUTION.

The Fourteenth Amendment of the United States Constitution extends the Bill of Rights to the States, thereby guaranteeing Due Process of Law to all Americans, even when actions are taken by the States or their agents. The right to due process of law can be traced back to the Magna Carta. As every law student knows Due Process requires notice and the right to be heard. But it is more than that, due process requires fundamental fairness, especially when anyone is brought before a tribunal and is subjected to the potential loss of life, liberty and property. As the United States Supreme Court stated in In re Murchinson, 349 U.S. 133,136 (1954): "A fair trial in a fair tribunal is a basic requirement of due process." In In re Murchinson the United States Supreme Court held that a judge acting as a grand jury could not find someone in contempt and then proceed to try them on that charge. The Supreme Court also opined on the requirements of the fair trial component of due process: "The right of a defendant to examine and cross examine witnesses is too essential to a fair trial to have that right jeopardized in such a way."

As explained by Justice Black in In re Oliver, 333 U.S. 257, (1948), Due Process as a part of America’s legal tradition comes from..This nation’s accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage....The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty. In the hands of despotic groups each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.

The Court continued:

"One need not wholly agree with a statement on the subject by Jeremy Bentham over 120 years ago to appreciate the fear of secret trials felt by him, his predecessors and contemporaries. Bentham said: "suppose the proceedings to be completely secret, and the court, on the occasion, to consist of no more than a single judge, - that judge will be at once indolent and arbitrary: how corrupt so ever his inclination may be, it will find no check, at any rate no tolerably efficient check, to oppose it. Without publicity, all other checks are sufficient: in comparison of publicity, all other checks are of small account.

Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance. Id at 271. Although a majority of Due Process cases turn on the protection due those facing loss of liberty, the High Court also requires Due Process even when a loss of reputation is at stake provided there is a potential loss of employment associated with the taint of one’s reputation. In Paul v. Davis 424 U.S. 693,707 (1976) the Court refused to extend the protections of 43 U.S.C. 1983 to a state’s defamatory conduct but said:

The Court has recognized the serious damage that could be inflicted by branding a government employee as ‘disloyal’, and thereby stigmatizing his good name. But the Court has never held that the mere defamation of an individual, whether by branding him disloyal or otherwise, was sufficient too invoke the guarantees of procedural due process absent an accompanying loss of government employment.

Since Paul v Davis the United States Supreme Court has made clear that when government employment is put at risk, due process is required. See Cleveland v Loudermill 470 U.S. 532 (1985) These decisions follow but narrow the holding of the Court in Wisconsin v. Constantineau, 400 U.S. 433,437 (1971), where the Court stated: "where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.

The New Jersey Supreme Court assumes in it’s support of presentment that because the grand jury does not indict, that the officials subject to presentment are not entitled to a public trial. Although such officials do not lose their liberty; anyone subject to a presentment experiences a stigma and disgrace, which generally leads to a lose of office (employment), reputation, and public honor. It is this potential loss of office which would assuredly trigger an attack in the Federal Courts. In Isserman v. Ethics Committee of Essex County Bar 345 U.S. 927 (1953), the United States Supreme Court found that the New Jersey Supreme Court had denied due process to a disbarred attorney. Justice Black, writing for the United States Supreme Court, explained:

"Although petitioner was allowed to appear before a local bar committee and to present a formal answer and make oral argument before the State Supreme Court, the full record persuades me that he was denied an inadequate opportunity to confront witnesses against him and to offer evidence in his behalf. Instead of hearing evidence and making its own findings the state court’s order was based on findings made by a federal district judge who had summarily convicted petitioner of contempt without a hearing. I believe that a lawyer is denied due process when he is expelled from his profession without ever having been afforded an opportunity to confront his accusers and present evidence to deny, explain or extenuate the charges against him. See Ex parte Robinson, 19 Wall. 505,512-513, and In re Oliver, 333 U.S. 257, 68 S. Ct 499.

The Isserman case is directly on point in illuminating the defects inherent in New Jersey’s presentment process. First, the entire presentment proceeding is conducted in private. Second, the presentment process does not allow the cross-examination of witnesses. Third, presentment only allows a single Assignment Judge, sitting in camera, to review the grand jury proceedings to assure that their findings were fair and unadulterated by politics or bias.

The presentment process does not offer an office holder a true opportunity present it’s own witnesses or defense. Procedures shrouded in secrecy, such as presentment, are completely contrary to our understanding of due process. The New Jersey’s presentment process violates important legal traditions and American notions of fair play.

The New Jersey Supreme Court’s interpretation of Paragraph 8 of New Jersey State Constitution violates Due Process as set forth in the Fourteenth Amendment of the United States Constitution. In aan appropriate challenge of this provision in Federal District Court, the Federal Court’s may well hold that New Jersey’s presentment procedure violates the United States Constitution.

III. PRESENTMENT IS NO LONGER NECESSARY AS A MATTER OF PUBLIC POLICY

When New Jersey’s constitution was revised 50 years ago, the New Jersey Supreme Court endorsed presentment as a legitimate means of assuring the public’s confidence in local government. This reasoning, however, was based upon the absence of sufficient means to monitor local government at that time. Since 1947 an active legislature has created all sorts of checks and balances in local government which are designed to insure public confidence in local government.

For instance, in addition to municipal government supervision of it’s employees, much of local government is also under the scrutiny of some branch of State government. Here are a few examples of overlapping scrutiny: The Department of Community Affairs supervises tax collectors tax assessors, building departments, finance officers, local government budgets, and even local governments themselves.

Local governments are subject to annual review by audit. Police Departments are scrutinized by the State Attorney General’s office. Finance officers are now certified and check every financial transaction of a municipality. Once tenured, a Finance officer can only be removed by the Director of the Division of Local Government Service. All local officials are subject to the local government ethics law administered by local public finance board. Even Moodys Bond Rating Service examines and then reports on government operations. The original reasons for carrying over presentment in our latest Constitution have been effectively eliminated by all these legislative actions. It should be noted that a non-elected public official who is subjected to the discipline or removal would be entitled to notice and a right to be heard. See Dolan v. City of East Orange, 287 N.J. Super. 136 (App.Div.(App.Div. 1996). Such an official has the right to ask for his hearing to be held in public. 1996). Such an official has the right to ask for his hearing to be held in public.

Our presentment process as endorsed by the New Jersey Supreme Court does not accord the due process protections a public official would be allowed under any other disciplinary method now in place. In addition, these newer oversight methodologies are effective and are being conducted by highly trained professionals unlike grand juries. It would seem critical that the grand jury should indict or remain silent. It is far more likely that the prosecutor will be brought in to investigate once one of these legislative and executive checks have indicated hat a crime may have been committed. Once the prosecutor’s office has been brought in and found insufficient evidence to indict, the prosecutors only political alternative is to issue a presentment in an effort to justify its expenditures in the investigation politics. This pressure on prosecutors and public officials is unnecessary and serves no legitimate purpose.

Once a prosecutor issues a presentment, which is probable whenever criminal wrongdoing is not present, the public official’s enemies will then utilize the presentment as a basis for the officials removal from office. Even though we believe our Assignment Judges are fair and unbiased guardians, the Judge will have no choice but to ratify presentments, because they merely state that conditions of an office are not up to public standards. A public official can appeal to the assignment judge when the actions of the grand jury are biased or political, but for our practical purposes, the political damage is already done at this point, unless the circumstances are outrageous.

It is the procedure itself once activated that harms the public official. When the procedure is complete both the county prosecutor and Assignment Judge have ratified a grand jury. These Court Officers are generally the most trusted and respect individuals in the County, which is why presentments are so damning. When you consider that a presentment is probably issued because the prosecutor could not find criminal conduct, it seems patently unfair to public official involved. The law is quite clear the prosecutor must indict if a crime has been committed.

At one point in time prosecutors may have been the first responder, investigating a public office then suggesting changes which should be made to insure confidence in government. Those days are gone forever. The prosecutor’s office is always bought in after the fact and is merely comparing office standards to State guidelines, something better left to the Department of Community Affairs. However should presentment continue to be used in the future; it needs to be revamped to allow public officials to face their accusers in open court and to present a defense.

It is indeed ironic that in a State such as New Jersey with its cherished Sunshine Law, know as the Open Public Meetings Act , and a well defined Right to Know Law, that any aspect of local government including reviewing the actions of its elected and appointed officials would be allowed to be conducted in secret. The possibility that ones political enemies would use presentment as a means of persecuting an adversary is obvious, what can be better than to get your opponent while hiding behind a grand jury. Let’s take this procedure into the sunshine where it belongs.

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