State Justices Rule Citizens Can't Take Case to Grand Jury

By Robert Schwaneberg
Star-Ledger Staff
April 12, 2005

Only prosecutors, not private citizens, can take complaints of wrongdoing to a grand jury, the New Jersey Supreme Court unanimously ruled yesterday.

The justices overturned a lower court ruling giving ordinary citizens access to grand juries and reaffirmed prosecutors' long-held monopoly over the power to initiate criminal investigations.

In doing so, the high court turned back arguments by an activist attorney that citizens needed a direct path to grand juries to expose corruption in a scandal-plagued state.

Allowing any citizen with a grudge to complain to a grand jury would be "fraught with abuse," Justice Barry Albin wrote for the state high court.

"In some cases, a private person might be bent on pursuing an ill motive or vindictive agenda," Albin wrote. "For instance, political candidates, on the eve of an election, might charge their opponents with fraud or some other nefarious activity and request admission to the grand jury."

Assistant Attorney General Boris Moczula, who had argued against grand jury access for private citizens, called the ruling "very good news."

"The opinion shows that for legal, practical and ethical reasons, the criminal justice system is not well-served by creating the equivalent of open-mike night before the grand jury," Moczula said.

It had been decades since any citizen had gone directly to a grand jury when Monmouth County lawyer Larry Loigman demanded that right in 2002, claiming he had evidence of "financial irregularities" in Middletown Township.

Monmouth County Assignment Judge Lawrence Lawson ruled that Loigman could not contact the grand jurors but should instead take his suspicions to the county prosecutor or the attorney general.

Last June, however, a state appeals court concluded that ordinary citizens have always had a right to bring allegations of wrongdoing to a grand jury, even if it has been little used in recent years. It directed that a letter containing Loigman's allegations be read to the county grand jury, which could then, if it wished, invite him to testify. At the request of the Attorney General's Office, that ruling was promptly put on hold.

Yesterday, the high court ruled that Lawson, the trial judge, was right to refuse to "'open the floodgates' to countless requests to appear before a grand jury."

"I'm disappointed," Loigman said. "I have a lot more confidence in the citizens of this state than the Supreme Court does."

When he argued his case before the justices in February, Loigman contended that empowering ordinary citizens to bring evidence of corruption to grand juries would "help restore trust" in a government tarnished by recent scandals.

Albin, however, concluded that is not a job for citizens with no legal training.

"The prosecutors' offices in this state have hundreds of experienced and well-trained attorneys, many of whom have made law enforcement their career," Albin wrote. "We have no reason to believe they cannot be trusted to bring before the grand jury meritorious complaints of potential criminal conduct and to weed out frivolous allegations unworthy of presentation."

Loigman said, "I think the Supreme Court has exaggerated confidence in the abilities of the attorney general and the county prosecutor to deal with issues of misconduct in government." One need look only to "what has happened in Monmouth County in recent months," he said.

After FBI agents served seven subpoenas on the Monmouth County Prosecutor's Office last month, acting Gov. Richard Codey ordered Attorney General Peter Harvey to find out whether Prosecutor John Kaye had tried to impede a criminal investigation by U.S. Attorney Christopher Christie that resulted in the arrests of 11 public officials.

That "fact-finding review" is still pending, said John Hagerty, a spokesman for the state Division of Criminal Justice.

Loigman, a vocal critic of Kaye, said that to his knowledge, the inquiry is unrelated to the allegations he tried to bring to the grand jury.

Justices Stay Ruling on Use of Grand Juries by Citizens

By Robert Schwaneberg
Star-Ledger
Saturday, July 24, 2004

NEW JERSEY - A recent appeals court ruling allowing citizens with evidence of wrongdoing to bypass the prosecutor's office and ask a grand jury to investigate was put on hold yesterday by the state Supreme Court.

Without comment, the high court granted a request by the Attorney General's Office to stay the June 29 ruling until it decides whether to review it.

"The effect of the Supreme Court order is that citizens cannot appear before a grand jury at this point," John Hagerty, spokesman for the state Division of Criminal Justice, said.

Hagerty said allowing citizens "to arbitrarily appear before a grand jury, perhaps having already been rejected by a prosecutor" could create needless work and expense for grand juries and the assignment judges who supervise them.

Larry Loigman, an activist lawyer who had won the right to have a letter detailing his allegations of official wrongdoing read to a Monmouth County grand jury, said, "Obviously I'm disappointed, because it does thwart the public's right to have matters investigated without the interference of the Attorney General's Office or the county prosecutor."

Loigman said he has not heard what, if anything, the grand jury did in response to his allegations.

Although the appeals court said citizens have a well-established (though seldom used) right to bring their suspicions of wrongdoing directly to a grand jury, Loigman said he has heard from several persons who were turned down when they tried to invoke it. He said some assignment judges are waiting to see what the state Supreme Court has to say on the matter.

"It very clearly is an important issue the Supreme Court should address," Loigman said.

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Appellate Court: Let Citizens Seek Grand Jury Probe

By Robert Schwaneberg
Star-Ledger - New Jersey
June 30, 2004

Breathing new life into a long-forgotten right, a state appeals court ruled yesterday that ordinary citizens who have evidence of criminal wrongdoing can bring their suspicions to a county grand jury and request an investigation.

If it stands, the ruling would end the monopoly that county prosecutors hold on bringing allegations to a grand jury and create a new opportunity for concerned citizens to attack official corruption.

But the Attorney General's Office vowed to appeal, warning that the ruling invites unprecedented troublemaking by vindictive ex-spouses, political opponents and others with a grudge.

"It is a ludicrous decision," said John Hagerty, a spokesman for the state Division of Criminal Justice. "It allows for any citizen or gadfly to walk into a grand jury and try to indict a neighbor. It allows for public officials, during an election, to walk in and endeavor to indict an opponent."

Late yesterday, the Attorney General's Office asked the appeals court to stay its ruling until the New Jersey Supreme Court decides whether to hear the case.

The ruling was a victory for Larry Loigman, an activist lawyer who tried to present allegations of official wrongdoing to the Monmouth County grand jury. A judge told him to take his evidence to the county prosecutor and Loigman, a vocal critic of that office, appealed.

In a unanimous decision, three appeals court judges directed that a letter containing Loigman's allegations be read to the grand jury, which would then decide whether to launch an investigation and call Loigman as a witness.

"It is an excellent ruling for the citizens of the state," Loigman said. "Anyone who's dissatisfied with what's going on, they don't have to rely on the county prosecutor or the attorney general. They have their own representatives sitting there -- the grand jurors -- and now they have a way to approach those people."

"It certainly opens up the door to a whole new area for going after official misconduct," Loigman said.

Actually, the ruling reopens a door that has been so little used in recent years that even judges and prosecutors had forgotten it was there.

Taking a long view of legal history, Appellate Division Judge Donald Coburn concluded that a citizen's right to present allegations to a grand jury is well established. The most recent example he could find of its use in New Jersey was 47 years ago, and one case, from Louisiana, went back to 1893.

But some other states have embraced the right more recently.

Coburn quoted at length from a 1981 ruling of the West Virginia Supreme Court allowing any citizen to present a complaint to the grand jury by applying to the judge in charge of it.

"If the grand jury is available only to the prosecuting attorney and all complaints must pass through him, the grand jury can justifiably be described as a prosecutorial tool," the West Virginia high court wrote. "If the grand jury is to be a meaningful institution, its integrity must be maintained as an independent body, free from all outside interference and prosecutorial control or direction."

Quoting a 1977 decision by Minnesota's supreme court, Coburn wrote that allowing citizens to bring complaints directly to the grand jury "serves as a kind of 'safety valve' and has much to commend it."

In light of the grand jury's "extraordinary powers of investigation," he rejected claims by the Attorney General's Office that citizens had no right to bring complaints to the grand jury. Appellate Division Judges Stephen Skillman and Harold Wells joined Coburn's opinion.

Loigman said the case began when a client advised him of financial irregularities in the Middletown Township payroll related to a state grant from an agency within the Attorney General's Office. He said he alerted that agency to the improprieties but "they never conducted an investigation."

In February 2002, Loigman put his allegations into a letter addressed to the Monmouth County grand jury at the county courthouse. When he got no reply, Loigman said, he contacted Assignment Judge Lawrence Lawson, who told him to contact the county prosecutor or attorney general. Instead, he appealed.

The appeals court directed Lawson to have Loigman's letter read to the grand jurors along with any instructions the judge deems appropriate. Coburn said that every letter addressed to a grand jury should be delivered to the assignment judge, who will then "determine whether he or she should instruct the jury on the matter."

Loigman said the ruling applies only to county grand juries as a state law requires the Attorney General's Office to present all cases to the state grand jury. Coburn noted that a federal law allows citizens to ask federal grand juries for permission to appear and make complaints.

Robert Schwaneberg covers legal issues. He can be reached at rschwaneberg@starledger.com or (609) 989-0324.

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