Opinion
DOCKET NO. A-0239-12T2
07-18-2014
IN THE MATTER OF THE PUBLIC DEFENDER DENIAL OF POOL ATTORNEY STATUS TO WILLIAM GRAVES.
Williams E. Graves, appellant pro se. Matthew Astore, Acting Deputy Public Defender, argued the cause for respondent New Jersey Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Susan Remis Silver, Assistant Deputy Public Defender, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Hayden and Rothstadt.
On appeal from the Office of the Public Defender.
Williams E. Graves, appellant pro se.
Matthew Astore, Acting Deputy Public Defender, argued the cause for respondent New Jersey Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Susan Remis Silver, Assistant Deputy Public Defender, on the brief). PER CURIAM
William E. Graves, a member of the bar of this State, filed a notice of appeal on August 30, 2012, challenging a decision by the Office of the Public Defender (OPD) not to include Graves on its list of approved pool attorneys. See N.J.S.A. 2A:158A-7(c) (providing that the Public Defender shall "[m]aintain one or more trial pools of lawyers who shall be available to serve as counsel on a case basis as needed"). The record on appeal reveals the following.
Responding to his request to do pool work, the Essex Adult Region of OPD forwarded an application to Graves on August 28, 2008. The cover letter advised that upon receipt of the completed application, the Regional Office would seek approval from "Trenton," and Graves "w[ould] be notified by letter" "[i]f Trenton approve[d] [his] application." Graves submitted the application forms in September 2008 but was never contacted thereafter.
In a letter dated July 25, 2012, Graves memorialized his version of phone conversations he had with First Assistant Public Defender Andrew C. Rojas. Essentially, Graves asserted he had been "advised" that his representation of Gerald P. Boswell in Boswell's suit against OPD presented a "conflict of interest" barring him from receiving any pool assignments. His phone request for a "face-to-face meeting" with Public Defender Joseph E. Krakora had been forwarded to Rojas, who agreed to "confer with the 'powers that be' and advise [Graves] of . . . OPD['s] position." According to Graves, Rojas called him back on July 24 and told him that he would not receive any pool assignments "for as long as [he] continue[d] to represent . . . Boswell." Graves asked that Rojas put this position in writing, but apparently Rojas declined to do so.
When Graves filed his notice of appeal, the Clerk's Office required that he seek leave to proceed without a formal written decision from OPD. OPD did not oppose that motion, and in its response "acknowledge[d] that . . . Rojas told . . . Graves that he was not going to be approved as a . . . pool attorney in part because he was representing . . . Boswell, a former OPD attorney in civil litigation against . . . OPD." OPD asserted its decision to deny Graves pool status was "well within the agency's statutory discretion under the New Jersey Public Defender Enabling Act, N.J.S.A. 2A:158A-8, -9, and -10."
Graves moved to remand the matter to OPD in order to supplement the record. We denied that motion by order dated June 27, 2013. The parties then submitted their briefs. OPD's brief included a certification from Krakora, in which he acknowledged advising Rojas that Graves's application would not be approved because of concern over his continuing representation of Boswell in the civil litigation. Krakora further certified that other reasons existed, including Graves's appearance as an expert witness on behalf of the State in a federal habeas corpus proceeding.
Graves filed another motion, in which he sought to strike OPD's brief or compel its production of a transcript of his testimony in that federal proceeding. We entered an order dated September 19, 2013, denying the motion to strike but compelling OPD to provide Graves with a copy of his testimony if it possessed the transcript. Graves independently obtained the transcript from the Department of Law and Public Safety, and on January 7, 2014, we granted his motion to supplement the record with the transcript.
In his initial brief, Graves argued that OPD's decision was "an improper attempt to retaliate against" his client, Boswell. He also argued that OPD's decisionmaking regarding pool attorneys must be based solely on the competency of the applicants and their ability to represent OPD's clients. Graves specifically requested we "direct that [he] be added to the pool attorney lists in the counties . . . requested in his application and that he be assigned cases commensurate with his skill and experience."
OPD countered by contending its decision "was not arbitrary or capricious and was well within the scope of [OPD's] discretion." In his reply brief, Graves argued that OPD's decision is not entitled to the deference routinely accorded agency decisions because it is contrary to law. He again reiterated his objection to OPD's attempts to expand the record by inclusion of Krakora's certification with its brief.
We have considered the arguments in light of the record and applicable legal principles. For the reasons explained below, we dismiss the appeal.
I.
The salient facts regarding Boswell's suit against OPD can be gleaned from our prior opinion in State v. Davis, 366 N.J. Super. 30 (App. Div. 2004).
Boswell was employed as an attorney by the OPD, first in Ocean County, and later in Mercer County. During his tenure in Ocean County, disputes arose between Boswell and Robert L. Tarver, Jr., the former Deputy Public Defender for the OPD's Ocean County office, that initially centered around Boswell's perception that Tarver was neglecting his duties as a public defender while he pursued outside activities . . . . Boswell reported his conclusions to [the] Acting Public Defender . . . who . . . appointed [an] Assistant Public Defender . . . and another individual to investigate Boswell's complaints, as well as cross-complaints by Tarver. The investigation resulted in a report, issued in January 2002, that recommended among other things that Tarver be given management training.While still employed by OPD, Boswell had been assigned to represent the defendant, James Davis, in a capital murder case, as well as two other defendants, one of whom was also charged with capital homicide. Id. at 35. Boswell remained their defense counsel as a pool attorney after he left OPD's employ. Ibid.
On May 1, 2003, Boswell filed a first amended complaint against the OPD, Tarver, [and others] alleging that their conduct following Boswell's report of Tarver's alleged misdeeds was retaliatory, created a hostile work environment, and acted to constructively discharge him from his position as an Assistant Deputy Public Defender, in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Additionally, Boswell contended that the retaliatory conduct of
[some of the OPD employees] and their creation of a hostile work environment following Boswell's complaints against Tarver, who was African-American, constituted reverse racial discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.
[Id. at 34-35.]
After Boswell filed suit, Krakora, then Assistant Public Defender and Director of Capital Litigation for OPD, wrote to the Law Division judges to whom Boswell's client's cases were assigned, raising concerns as to whether Boswell's continued representation presented a conflict of interest or appearance of impropriety, given the pending civil litigation. Id. at 35-36. Eventually, the State moved to disqualify Boswell, the trial court denied the motion, and we granted the State's motion for leave to appeal. Id. at 36.
Our opinion began by recognizing that, "'[i]n criminal matters, in which the trust between attorney and client has enhanced importance, special vigilance is required because an attorney's divided loyalty can undermine a defendant's Sixth Amendment right to effective assistance of counsel.'" Id. at 38 (quoting State ex rel. S.G., 175 N.J. 132, 139 (2003)). We also recognized "that, absent an un-waived conflict, a constitutional presumption exists in favor of counsel of one's choice." Id. at 39 (citations omitted). We concluded that Boswell's continued representation of the defendants did not violate RPC 1.7, id. at 42, and that the State's concerns were "speculative and thus insufficient to constitute grounds for Boswell's disqualification." Id. at 37.
We were advised at oral argument that Boswell's suit against OPD is still pending.
II.
A.
As a preliminary matter, Graves contends that our holding in Davis fully disposes of any claim that his continued representation of Boswell places him in a conflict of interest with respect to being a pool attorney hired by OPD. For reasons explained in subsection (B), infra, we need not address the merits of that assertion in detail, except to say that significant differences are obvious.
First, Boswell's continued representation of the defendants in Davis, two of whom were charged at the time with capital murder, involved significant constitutional issues that are not presented by Graves's representation of Boswell in a civil proceeding. See State v. Jiminez, 175 N.J. 475, 484 (2001) (recognizing the Sixth Amendment's right to assistance of counsel in a criminal proceeding and the "constitutional presumption in favor of counsel of one's choice").
Secondly, in Davis, Boswell's clients — the criminal defendants he was representing — had no claim against OPD. Indeed, OPD was their attorney of record. See Turner v. Dep't. of Human Servs., 337 N.J. Super. 474, 478 (App. Div.) ("It is the OPD, not the individual attorney (whether staff or pool), who represents the client and is the attorney of record."), certif. denied, 168 N.J. 294 (2001). Here, if employed as a pool attorney, Graves would have a contractual relationship with OPD, Davis, supra, 366 N.J. Super. at 40; Turner, supra, 337 N.J. Super. at 478, an agency his client was actively suing. Given the nature of Boswell's claims against OPD, Graves's successful prosecution of his client's civil suit likely would result in an award of counsel fees against OPD. See N.J.S.A. 10:5-27.1 (permitting counsel fee award to prevailing party in an LAD case); N.J.S.A. 34:19-5(e) (providing for payment of reasonable counsel fees to prevailing plaintiff in a CEPA case).
We acknowledge that if Graves were to be placed on the pool attorney list, his client would not be OPD, but rather the indigent defendant he would be assigned to represent. Davis, supra, 366 N.J. Super. at 40. As such, the situation is not easily pigeonholed into those RPCs that set the parameters defining conflicts of interest and duties to present and former clients. See RPC 1.7, 1.8, and 1.9.
Additionally, although not addressed in Davis, RPC 1.11(a)(3) provides that "a lawyer who formerly has served as a government lawyer . . . shall not represent a private client in connection with a matter . . . when the interests of the private party are materially adverse to the appropriate government agency . . . ." This prohibition is limited to a period of six months following termination of that attorney's service as a government lawyer. Ibid. "The structure of the rule suggests . . . that the term [materially adverse] encompasses all representations adverse to the former government employer in which disqualification is not required by prior contact with or responsibility for the matter." Kevin H. Michels, New Jersey Attorney Ethics § 22.2 (Gann 2013).
We decline to apply RPC 1.11(a)(3) to this case, or to decide definitively whether an actual conflict of interest exists under the RPCs generally. Nevertheless, we see no principled reason why the lack of any conflict under the RPCs necessarily compels OPD to enter into a contractual relationship with an attorney currently representing a former OPD employee actively suing the agency.
B.
In Turner, supra, the appellant argued that her service as a pool attorney for OPD, while employed full-time by the Department of Human Services, did not violate at the Conflicts of Interest Law, N.J.S.A. 52:13D-12 to -26. 337 N.J. Super. at 476. Her claim rested on the premise that OPD was not a state agency. Ibid. We rejected that claim, concluding that "OPD is a state agency, and an attorney who serves as a pool attorney contracts with that state agency. Where the attorney is a state employee, such a contract is prohibited by N.J.S.A. 52:13D-19a." Id. at 479. Prior precedent, therefore, dictates our conclusion that OPD is a state administrative agency for purposes of our review.
"N.J.S.A. 52:13D-19a prohibits any state employee from undertaking any contract or agreement of a value of $25 or more, which was made, entered into, awarded or granted by any state agency." Turner, supra, 337 N.J. Super. at 476.
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Rule 2:2-3(a)(2) provides that appeals may be taken to the Appellate Division "[a]s of right . . . to review final decisions or actions of any state administrative agency . . . ." That right of review also extends to agency inaction. See, e.g., N.J. Civil Service Assoc. v. State, 88 N.J. 605, 608, 612 (1982) (finding right to appeal Director of the Office of Administrative Law's decision not to appoint certain individuals as administrative law judges). "But, our review is circumscribed, lest we violate the Constitution's separation of powers." In re Veto by Governor Chris Christie of Minutes of the New Jersey Racing Comm'n, 42 9 N.J. Super. 277, 291 (App. Div. 2012) (citations omitted), certif. denied, 214 N.J. 116 (2013).
We have recently said that "our authority to compel agency action is exercised sparingly, as courts are ill-equipped to micromanage an agency's activities." Caporusso v. New Jersey Dep't of Health & Senior Servs., 434 N.J. Super. 88, 101 (App. Div. 2014) (citing Sod Farm Assocs. v. Twp. of Springfield, 366 N.J. Super. 116, 130 n.10 (App. Div. 2004)). "Rather, we accord wide discretion to administrative agencies which are to decide 'how best to approach legislatively assigned administrative tasks.'" Ibid. (quoting In re Failure by the Dep't of Bank. & Ins., 336 N.J. Super. 253, 262 (App. Div.), certif. denied, 168 N.J. 292 (2001)).
As noted, Graves asks us to "direct" OPD to add him to the pool attorney lists in the counties he selected on his application. That relief is in the nature of mandamus. "Such relief is only appropriate where the party seeks to compel a governmental agency to perform a 'duty [that] is ministerial and wholly free from doubt' or 'to compel the exercise of discretion, but not in a specific manner.'" Twp. of Neptune v. State, Dept. of Envtl. Prot., 425 N.J. Super. 422, 434 (App. Div. 2012) (alteration in original) (quoting Loigman v. Twp. Comm. of Middletown, 297 N.J. Super. 287, 299 (App. Div. 1997). "Mandamus issues 'to compel the performance, in a specified manner, of ministerial duties so plain in point of law and so clear in matter of fact that no element of discretion is left to the precise mode of their performance . . . .'" Id. at 435 (quoting Switz v. Twp. of Middletown, 23 N.J. 580, 588 (1957)). Thus, "[a]n individual's challenge to the inaction of a State agency can seek to compel only clearly 'mandated ministerial obligations,' which do not require an evaluative judgment in the exercise of discretion." Caporusso, supra, 434 N.J. Super. at 101 (quoting Equitable Life Mortg. & Realty Investors v. New Jersey Div. of Taxation, 151 N.J. Super. 232, 238 (App. Div.), certif. denied, 75 N.J. 535 (1977)).
In Turner, supra, we reviewed the OPD's enabling statute, noting that the Public Defender "designates the attorney (staff or pool) to handle each case without regard to client preference." 337 N.J. Super. at 478 (citing N.J.S.A. 2A:158A-9). We explained that "any attorney in good standing cannot be placed in the pool merely for the asking[,]" but rather the Public Defender "select[s] attorneys for inclusion in the pool[,]" and "is then empowered to 'engage' counsel from the pool as necessary for the proper performance of the office." Ibid. (citing N.J.S.A. 2A:158A-8, -7(d)).
Indeed, the Legislature has accorded the Public Defender broad discretion in selecting attorneys to represent indigent defendants "on a case basis," by providing that he "shall make his selections on a basis calculated to provide the respective defendants with competent counsel in the light of the nature, complexity and other characteristics of the cases, the services to be performed, the status of the matters, and other relevant factors." N.J.S.A. 2A:158-8; see N.J.S.A. 2A:158-9 (permitting the Public Defender to "divide the case workload . . . between the professional staff and the trial pool" "[t]o achieve a proper balance between the services to be provided . . . and the efficiency of the operation as a whole, as well as to stimulate the continual development of professional experience and interest in the administration of criminal justice").
As Judge Skillman wrote in his dissent in Walsh v. State, 290 N.J. Super. 1, 13 (App. Div.) (Skillman, J.A.D., dissenting), rev'd. on dissent 147 N.J. 595 (1997), "so long as his personnel actions are not invidiously discriminatory, the Public Defender has unfettered discretion in determining whether to hire, discharge, transfer, demote or withhold promotion from an Assistant Deputy Public Defender." Given the statutory scheme we have outlined, such unfettered discretion assuredly applies in equal measure to the creation of the pool attorney list.
We therefore conclude that Graves seeks relief he is not entitled to receive by the exercise of our power to review agency action or inaction pursuant to Rule 2:2-3(a)(2). To be sure, Graves is free to initiate an action in the Law Division if, as he asserted during argument before us, OPD's refusal to appoint him to the pool list violated the LAD's anti-retaliation provision. See N.J.S.A. 10:5-12(d) (prohibiting "reprisals against any person because that person has . . . assisted in any proceeding" under the Act). The "unfettered discretion" accorded OPD would not insulate it from responsibility if such an "invidiously discriminatory" motive were proven. Walsh, supra, 290 N.J. Super. at 13. But, that is not the case before us, and the distinction we draw for purposes of explanation should not be misconstrued as an opinion on the merits of such a claim.
The appeal is dismissed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION