Because this fall marks the 50th anniversary of the New Jersey State Commission of Investigation (SCI), a retrospective is appropriate. As a commissioner and then chair of the SCI from 1984 to 1994, I believe that the Commission has done invaluable work over the years, although there have been unfortunate detours. That said, the SCI has learned from its experiences and is the stronger for it. This article avoids a straightforward chronology in favor of a discussion that identifies the SCI’s successful efforts, its wins and its warts, and the reaction of the three branches of government to the SCI’s journey over half a century.
New Jersey in the late 1960s mirrored a nation preoccupied by war abroad and social unrest at home. Amid that upheaval came a series of revelations that shocked the Garden State. In 1967, Life magazine published the first installment of an exposé that revealed the scope of organized crime across American society, with New Jersey at its epicenter. Among the highlights: the backyard “incinerator” on the Livingston estate of Ruggiero “Richie the Boot” Boiardo; the mob burial ground on an old chicken farm in Lakewood; and the efforts by Simone “Sam the Plumber” DeCavalcante “to develop a garbage disposal unit,” Life reported, “that would reduce a human body to a meatball.” Meanwhile, as this was being digested by a concerned public, New Jersey Assistant Attorney General William J. Brennan III, son of Justice Brennan, gave a controversial speech to newspaper reporters in which he labelled certain Trenton lawmakers and others as too cozy with the mob.
In response, the Legislature appointed a committee to study the problem. That committee recommended establishing a state-level criminal justice division in the Attorney General’s Office to pursue organized crime figures and corrupt public officials for purposes of prosecution. Although that was a standard approach, the panel then became creative in response to the question concerning what could be done in cases where no actual crime is implicated or prosecution sustainable. Where the public trust is betrayed by misconduct, malfeasance, fraud, and other unscrupulous activity outside the realm and reach of traditional law enforcement and the criminal statutes, what is the response?
The answer, partly informed by similar action taken in New York State some years earlier, was a special commission to serve as an independent, publicly accountable fact-finding body, equipped with subpoena power and structured to shield it from manipulation and misuse. In 1968, legislation created this fledgling watchdog agency—the SCI—which opened for business the following January with a broad mandate to conduct investigations regarding organized crime and racketeering, the conduct of public employees and officers (public corruption), and any “matter concerning the public peace, public safety and public justice.”
At its beginning, in 1969, the SCI faced an existential legal confrontation at the hands of Joseph “Bayonne Joe” Zicarelli, a boss of Hudson County’s gambling rackets, who argued that the Commission violated due process by ordering him to respond under a grant of immunity after he invoked the Fifth Amendment right against self-incrimination. On appeal, New Jersey’s Supreme Court—in a decision later affirmed by its federal counterpart—upheld the SCI’s operating statute, ruling that the Commission properly exercised its powers as a non-accusatory, legislative investigative body and that its grant of limited “use” immunity satisfied constitutional protections against self-incrimination.
Once out of the gate, the SCI proceeded to take on corruption in the garbage industry, rooting out mob control, price-fixing, extortion and collusion and setting the stage for regulatory reforms, licensing and legacy investigations that continue to this day. It went on to identify criminal intrusion across a host of legitimate commercial enterprises, from health care to public housing, check-cashing, the garment industry, trucking, professional boxing and bars. It referred many instances of criminal activity for successful prosecution; provided a roadmap of local government corruption; showed how organized crime in New Jersey joined Russian mobsters to rip off motor fuel taxes; and put the law enforcement community on notice about the organized crime’s persistent attempts to subvert businesses tied to casino gambling in Atlantic City.
All the while, its investigators carefully tracked the changing face of traditional organized crime, by then on the wane, as well as the rise of diverse ethnic groups and violent street gangs in their efforts to exert control in the prisons, corrupt the bail system and spur the opioid and heroin epidemic. Pursuant to its larger assignment to attack waste, fraud and abuse in government, the SCI recommended practical ways to fix flaws that bled millions of tax dollars from various systems, including public employee pensions and benefits, hospital charity care and school construction. And it repeatedly served as a responder of last resort for consumers victimized by corruption in new home construction and inspections, abuses in nursing and boarding homes and costly gaps in workers’ compensation. The Commission brightened the spotlight on its public welfare mission, conducting major inquiries into impaired physicians, the garment industry, nursing homes and video gambling. Its report on boxing established safety protections for boxers, but it then concluded that boxing should be banned in New Jersey. That drew a predicable outcry from the stands with boxing aficionados, particularly the celebrated novelist, Joyce Carol Oates, condemning the agency.
All of this pioneering investigative work captured headlines and won plaudits from good-government advocates. But there were distinct risks associated with the SCI’s aggressive brand of latter-day muckraking—risks that, particularly in the early years, led to criticisms of the Commission as a sort of “star chamber” of over-reaching grandstanders so that the SCI from the beginning accumulated more adversaries than friends. Nowhere was this more apparent than among the ranks of New Jersey’s vigorous defense bar which, understandably, struggled with both the constitutionality and the procedures of this unique, quasi-law-enforcement creature and the Commission’s approach.
Illustratively, in its initial operations, the SCI focused almost exclusively on organized crime, issuing waves of subpoenas. To compel sworn testimony, as noted, the Commission was authorized by law to offer limited immunity. In response, some targeted witnesses fled the state. Those who stayed but refused the immunity arrangement were jailed for contempt. Perhaps the most infamous, and ill-fated, of these was Angelo Bruno, the Philadelphia/South Jersey crime boss who had spent no time behind bars before running afoul of the SCI. Perhaps he was prescient. Having given up on his reluctance to appear, Bruno, the so-called “Docile Don,” would be assassinated on March 21, 1980—one day after testifying before the Commission.
In 1969, the SCI walked itself into its first public relations debacle. Thinking that it would be helpful to gain an understanding of the mob’s relationship with reputed associates among the rich and famous, the Commission subpoenaed Frank Sinatra when he was on board a yacht anchored at Atlantic Highlands. When the singer failed to appear, the SCI doubled down and obtained a warrant for his arrest. Sinatra’s attorney then won a restraining order, and his client declared that he would “not become part of any three-ring circus.” The legal wrangling went on for nearly nine months and, again, the United States Supreme Court ruled in the SCI’s favor by a narrow margin. But it was a Pyrrhic victory. For all the noise, Sinatra’s sworn testimony, when he finally did raise his hand under oath in Trenton on Feb. 17, 1970, yielded little more than trivia. As The New York Times reported the following day, the “hastily summoned, extraordinary closed session” was held after hours in the evening.
Such episodes fueled a sense of vindication among those who, urging more accountability, had insisted on inserting a leash into this watchdog’s enabling statute. Taking the initiative, after the era of confrontational SCI subpoenas, lawmakers in 1996 sought to resolve the due process issue by amending the statute to require that any individual criticized in a draft report be given an opportunity and 15 days to review and submit a response prior to final publication and release of the report—a unique requirement well beyond the standard Code of Fair Procedure. Six years later, legislation was signed making the Commission permanent. But most government entities, except those memorialized in the Constitution such as the Office of the Attorney General, are only as “permanent” as the next budget cycle. On one occasion, the administration essentially zeroed out the SCI’s appropriation in its initial fiscal plan. The idea was to transfer its funding to the Executive Branch based on the claim that the Commission duplicates the work of other government agencies. But the Legislature successfully resisted, framing it as an unwarranted assault on separation-of-powers, an Executive trespass onto the turf of the Legislative branch.
I pause to note that, given the Commission’s early exuberance, later commissioners urged increased care in the conduct of investigations and the writing of reports. Although they recognized that the Commission has to be aggressive in many circumstances, given the subject matter, they underscored the need for awareness that their actions affect the reputations, careers and, indeed, the lives of human beings.
If efforts over the years to eviscerate or even eradicate the agency had succeeded, and the SCI had been abolished, or its work limited, New Jerseyans would never have received the benefit of multiple public hearings and investigative reports, which include more recent new revelations about the impact and extent of the opioid epidemic, corruption in the bail/bond system, ongoing malfeasance by the NJSPCA, and a stark warning of persistent criminal intrusion into the solid-waste and recycling industries.
How have the governors reacted to the SCI over the years? Although no elected official relishes the prospect of an institutional watchdog at the back door, our governors generally have been supportive of the continuation of the Commission and its funding. Governor Byrne, typically, took it a step further and at times referred matters involving his administration to the SCI, knowing full well that it could later bite. Importantly, governors have taken a hands-off approach concerning investigations. Appointed commissioner by Governor Kean and chair by Governor Florio, neither ever asked me questions about, much less interfered with, an investigation. I believe the same is true of other governors.
All of the above begs the question: Quis custodiet ipsos custodes? Who guards the guards? Who is the sentry for the SCI? The three branches of government, the press and the bar perform well as sentinels. But even that will not be necessary if the Commission continues to self-regulate, as it continues to protect both the public and the constitutional right and civil liberties of those investigated.
The SCI has well-served the commonweal for 50 years. We are confident that it can continue to do the job and do it well. Whether it lasts another half-century is a separate question. If so, I may write a similar article then, if available, but I may be out of ink.
James R. Zazzali is of counsel to Gibbons, P.C., and to Zazzali Fagella of Newark. He has served as State Attorney General and as an Associate Justice and Chief Justice of the New Jersey Supreme Court.