Opinion
DOCKET NO. A-4113-13T4
03-12-2015
MARTY SMALL, Plaintiff-Respondent, v. STATE OF NEW JERSEY, DEPUTY ATTORNEY GENERAL ANTHONY A. PICIONE, DEPUTY ATTORNEY GENERAL ROBERT CZEPIEL, DEPUTY ATTORNEY GENERAL DAVID H. FRITCH, DETECTIVE SERGEANT DAVID A. SMITH, AND DETECTIVE SCOTT ORMAN, individually and in their official capacities, Defendants-Appellants. THOMAS QUIRK, Plaintiff-Respondent, v. STATE OF NEW JERSEY, DEPUTY ATTORNEY GENERAL ANTHONY A. PICIONE, DEPUTY ATTORNEY GENERAL ROBERT CZEPIEL, DEPUTY ATTORNEY GENERAL DAVID H. FRITCH, DETECTIVE SERGEANT DAVID A. SMITH, AND DETECTIVE SCOTT ORMAN, individually and in their official capacities, Defendants-Appellants.
Lisa A. Puglisi, Assistant Attorney General, argued the cause for appellants (John J. Hoffman, Acting Attorney General, attorney; Ms. Puglisi and Luanh L. D'Mello, Deputy Attorney General, on the brief. Arthur J. Murray argued the cause for respondent Marty Small (Jacobs & Barbone, P.A., attorneys; Mr. Murray, on the brief). David R. Castellani argued the cause for respondent Thomas Quirk.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Guadagno, and Leone. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket Nos. L-10064-11 and L-1118-13. Lisa A. Puglisi, Assistant Attorney General, argued the cause for appellants (John J. Hoffman, Acting Attorney General, attorney; Ms. Puglisi and Luanh L. D'Mello, Deputy Attorney General, on the brief. Arthur J. Murray argued the cause for respondent Marty Small (Jacobs & Barbone, P.A., attorneys; Mr. Murray, on the brief). David R. Castellani argued the cause for respondent Thomas Quirk. PER CURIAM
In 2009, a grand jury returned a ten-count indictment charging plaintiffs Marty Small and Thomas Quirk, along with twelve other co-defendants, with conspiracy to commit election fraud, absentee ballot fraud, and other charges relating to the 2009 Atlantic City Democratic mayoral primary election. Small was a candidate in the election and Quirk served as a political consultant on Small's campaign. After a jury trial, Small and Quirk were acquitted of all charges.
Small and Quirk filed separate complaints against three deputy attorneys general (DAGs), two detectives, and the State of New Jersey, asserting claims of malicious prosecution and violations of the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, including official misconduct, witness tampering, and subornation of perjury. In addition, separate counts alleged failure to train and executing a policy indifferent to plaintiffs' constitutional rights.
After the complaints were consolidated, defendants moved for dismissal for "failure to state a claim upon which relief can be granted" under Rule 4:6-2(e). Defendants argued that they were entitled to immunity as a matter of law under the CRA and a provision of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:3-8. The trial judge denied defendants' motion and allowed discovery to proceed.
The State sought leave to appeal and requested summary reversal. On May 15, 2014, we denied leave to appeal except that we reversed the trial court's denial of the State's motion to dismiss plaintiffs' "federal claims." On June 5, 2014, we clarified the May 15, 2014 order by noting that the order was intended to "make clear that plaintiffs are precluded from pursuing federal claims under Section 1983 against defendant State of New Jersey, to the extent that such federal claims might have been implied by the wording of the complaints and the federal case law cited in plaintiffs' briefs."
The Supreme Court granted the State's motion for leave to appeal and vacated our May 15, 2014 order, denied the State's motion for summary disposition, granted a stay pending appeal, and summarily remanded the matter to us.
We now determine that the individual defendants are entitled to either absolute or qualified immunity and the State is not a "person" amenable to suit under the CRA. We therefore reverse the trial court's denial of defendants' motion to dismiss.
I.
We derive the facts from plaintiffs' complaints and view them in the light most favorable to plaintiffs. Printing-Mart Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989).
Small claimed that his indictment was the result of a political vendetta by the State. His allegation has its genesis in a 2005 indictment charging him with tampering with absentee ballots and hindering voting in connection with the Democratic mayoral primary campaign of Robert Levy. Small was serving as an Atlantic City councilman at the time and was actively involved in the Levy campaign. In July 2006, Small was acquitted of all charges and now claims that everything that occurred in the criminal case underlying this civil suit was prompted by the State's desire to "get back at Small" for those acquittals.
In 2008, Eddie Colon was arrested and charged with the sale of cocaine in Atlantic City. As a result of a prior drug conviction, Colon faced a lengthy prison term if convicted and began to cooperate with the New Jersey Department of Gaming Enforcement (DGE). He began by making controlled drug buys for DGE, but in January or February 2009, Colon was introduced to Detective Sergeant David Smith, who was then assigned to the Official Corruption Unit of the New Jersey State Police.
The DGE was established in 1977 as part of the Casino Control Act, N.J.S.A. 5:12-55.
According to Colon, Smith told him that he was looking for "anything political" to investigate in Atlantic City. Initially, Colon told Smith that he had never been involved in anything political in Atlantic City, and could not help him. In February 2009, however, Colon told Smith and Detective Scott Orman, who also worked for the Official Corruption Unit, that Hank Green had told him that all of the candidates in the 2009 Atlantic City Democratic mayoral primary intended to collect fraudulent absentee ballots, and that Colon could earn $10,000 for collecting 100 unvoted but signed absentee ballots.
Green testified that Colon initiated contact with him, and that they never talked about absentee ballots or other illegal activity in the mayoral primary. Green worked with another candidate in the 2009 primary, incumbent mayor Lorenzo Langford, and told Colon that he could arrange a job with the Langford campaign. According to Green, Colon declined the offer, and asked Green to help get him a job with Small's campaign. Green put Colon in contact with Small, who gave him a job on the campaign to engage Latino voters.
In March 2009, Colon began recording conversations with Small and others over the telephone and through a concealed body recorder. In June 2009, Langford defeated Small in the primary. Shortly thereafter, the State subpoenaed Small to appear before a grand jury as the custodian of records for his campaign. Small claims that he appeared at a grand jury on August 6, 2009, and was told by a DAG that he was not a target of the investigation.
The record before us does not identify the DAG by name.
On September 3, 2009, a State grand jury returned a ten-count indictment charging Small and thirteen other alleged co-conspirators, including Thomas Quirk, with election fraud relating to the primary.
Small moved to suppress his testimony before the grand jury based on representations made to him by a DAG that he was not a target of the grand jury's investigation. In response to Small's motion, the State replied:
At the time of [Small's] testimony, the grand jury was conducting an inquiry into allegations that members of his mayoral campaign had committed crimes with respect to the gathering and submission of absentee ballots. Defense counsel was told as much. The inquiry at this point was trying to determine who was involved in an apparent conspiracy to obtain and submit fraudulent absentee ballots. The State obtained sufficient evidence after [Small's] August 2009 testimony to the grand jury, including the testimony of a co-conspirator who elected to cooperate in the State's investigation, to definitively link [Small] to the criminal conspiracy and merit his inclusion in the resulting criminal indictment. At the time of his testimony, however, [Small] was not yet a target of the investigation as that term has been defined by our courts and, therefore, was not entitled to target warnings.
The co-conspirator referred to in this submission is Ronald Harris, who provided a sworn written statement to defendant DAG Anthony Picione on August 20, 2009, the day Harris was to testify before the grand jury pursuant to a subpoena. Small claimed that Picione "threatened" and "scared" Harris, a convicted sex offender, by telling him that he was going to jail in order to obtain a false statement from Harris that defendant DAG Robert Czepiel presented to the grand jury. Small further claimed that the version of Harris's statement presented to the grand jury was "paraphrased" by Detective Orman. The statement Orman presented indicated that Small and Quirk had forged and destroyed ballots, burned official documents, and paid for votes.
When Harris testified at trial, he exhibited such bizarre behavior that he was eventually excused and the jury was told to disregard his testimony. Small alleged that defendants did nothing to learn about Harris's mental health background before making him their "star witness."
Small also claimed that the State called Ernest Storr as a witness even though he could provide no evidence that Small committed any criminal act. On April 5, 2009, while Colon was wearing a concealed recording device, Storr told Colon how he helped to complete fraudulent absentee ballots during the 2008 mayoral campaign. Storr then advised Colon to do the same thing in connection with Small's campaign. Storr admitted that he had no contact with voters or ballots in connection with the Small campaign.
Quirk alleged that on August 21, 2009, DAG Czepiel marked a recording (S-18) before the grand jury and represented to the jurors that it was a recording made on April 29, 2009, between Colon and members of the Small campaign including Quirk. Czepiel did not play S-18 for the jurors and instead called Orman to summarize the conversation between Colon and Quirk contained on the recording. Orman testified that he had previously listened to the recording, and then described the conversations on it as occurring between Colon and Quirk. On August 28, 2009, after realizing that the tape did not contain a conversation between Colon and Quirk, Czepiel recalled Orman to the grand jury to testify to that fact.
Quirk also claimed that the DAG defendants deliberately failed to present exculpatory evidence contained on the Colon tapes, in which Colon indicated that Quirk did not request or direct them to solicit absentee ballots in an illegal manner.
At trial, Orman testified that he had debriefed Colon after the conversations and prepared an investigative report on September 29, 2009. He also testified that he destroyed the debriefing notes after he wrote the report.
On appeal, defendants raise two points:
POINT I
THIS COURT SHOULD REVERSE THE TRIAL COURT'S DENIAL OF DEFENDANTS' MOTION TO DISMISS BECAUSE DEFENDANTS ARE ENTITLED TO IMMUNITY AS A MATTER OF LAW.
A. THE INDIVIDUALLY-NAMED DEFENDANTS ARE ENTITLED TO ABSOLUTE IMMUNITY.
B. THE INDIVIDUALLY-NAMED DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY.
POINT II
THE STATE OF NEW JERSEY IS NOT A "PERSON" AMENABLE TO SUIT UNDER THE NEW JERSEY CIVIL RIGHTS ACT.
II.
The individual defendants claim that the motion judge erred in refusing to dismiss plaintiffs' complaints because they were entitled to absolute immunity as a matter of law, and alternatively, to qualified immunity. The State maintains that it is not a proper party to a CRA suit.
In considering a motion to dismiss under Rule 4:6-2(e), we must search the allegations of the pleadings in depth and with liberality to determine whether a cause of action is "suggested" by the facts. Printing Mart, supra, 116 N.J. at 746. We "ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Ibid. A pleading should be dismissed if it states no basis for relief and discovery would not provide one. Camden Cnty. Energy Recovery Assoc., L.P. v. N.J. Dep't of Envtl. Prot., 320 N.J. Super. 59, 64-65 (App. Div. 1999), aff'd, 170 N.J. 246 (2001).
We employ a plenary standard of review to the motion judge's decision to grant or deny a motion to dismiss pursuant to Rule 4:6-2(e) and owe no deference to the judge's conclusions. Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied, 208 N.J. 366 (2011). We begin with a discussion of absolute and qualified immunity and their application to the two groups of individual defendants, prosecutors and police officers. Before undertaking that discussion, we note that plaintiffs' claims fall into two categories. The malicious prosecution claims, pleaded as a common law tort, fall under the purview of the TCA. Thigpen v. City of E. Orange, 408 N.J. Super. 331, 343 (App. Div. 2009); Van Engelen v. O'Leary, 323 N.J. Super. 141, 150 (App. Div.), certif. denied, 162 N.J. 486 (1999). Plaintiffs' other claims against the individual defendants were brought under the CRA.
TCA Claim
The TCA, N.J.S.A. 59:1-1 to 59:12-3, is the statutory mechanism through which our Legislature effected a waiver of sovereign immunity. D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 133 (2013). The "guiding principle" of the TCA is that immunity from tort liability is the general rule and liability is the exception. Id. at 134.
Relevant to our inquiry, the TCA provides for prosecutorial immunity by statute. N.J.S.A. 59:3-8 states: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment." N.J.S.A. 59:3-14(a), however, further qualifies that immunity: "Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside of the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct."
In their respective counts alleging malicious prosecution, Small and Quirk claim, often using identical phrases, that the individual defendants were "actuated by malice"; that they "knew that there was no probable cause to initiate the criminal proceedings"; but "they chose to manufacture evidence for the purpose of prosecuting [Small and Quirk] anyway." Plaintiffs' allegations of malicious prosecution are based on Small's 2006 acquittal. Small alleges defendants' malice "arises because . . . their motive for prosecuting . . . Small was retaliation for his previous acquittal in 2006 on similar charges brought by the Attorney General's office." Quirk, who was not part of the 2006 prosecution, claims defendants' malice "arises because their motive for prosecuting [him] was . . . an attempt to strong arm [him] into pleading guilty in exchange for giving false testimony against Marty Small in retaliation for [Small's] previous acquittal in 2006 . . . ."
"Malicious prosecution requires a plaintiff to prove four elements: (1) a criminal action was instituted by this defendant against this plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to the plaintiff." LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009). "[E]ach element must be proven, and the absence of any one of these elements is fatal to the successful prosecution of the claim." Ibid.
We find plaintiffs' counts alleging malicious prosecution based entirely on the claim of retaliation for Small's 2006 acquittal to be speculative and conclusory. "[B]are allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery." Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982); see also Connor v. Powell, 162 N.J. 397, 409 (holding bare allegation of malice insufficient to defeat immunity), cert. denied, 530 U.S. 1216, 120 S. Ct. 2220, 147 L. Ed. 2d 251 (2000). We have adopted the principles of Harlow under the TCA, Hayes v. Cnty. of Mercer, 217 N.J. Super. 614, 622 (App. Div.), certif. denied, 108 N.J. 643 (1987), including its holding that "bare allegations of malice are not sufficient." Delbridge v. Schaeffer, 238 N.J. Super. 323, 346 (Law Div. 1989), aff'd o.b. sub nom. A.D. v. Franco, 297 N.J. Super. 1, 5 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994). Applying that principle here, plaintiffs' bare allegations of malice must fail.
Nor do the allegations contained in the complaints support the claim that any of the defendants manufactured evidence. Offering consideration to a suspect facing charges in return for cooperation is a common and accepted law enforcement practice. We find nothing objectionable to questioning a suspect facing drug charges to determine if he had knowledge of political corruption. If there was poor decision making or carelessness by the detectives, that does not constitute "actual fraud, actual malice or willful misconduct." Van Engelen, supra, 323 N.J. Super. at 151.
In Van Engelen, the plaintiffs were police officers who claimed that a prosecutor and his chief of detectives maliciously prosecuted them in retaliation for their previous efforts to prosecute a former private client of the prosecutor. Id. at 144. The plaintiffs alleged that immunity under N.J.S.A. 59:3-8 was trumped by the "actual malice and willful misconduct" exception of N.J.S.A. 59:3-14. Ibid. We directed entry of summary judgment in defendants' favor, noting that "carelessness, unreasonable conduct or even noncompliance with substantive law" was not enough to establish malice or willful misconduct. Id. at 154. The plaintiffs' allegations of willful misconduct and actual malice lacked sufficient evidential support, and were grounded in speculation. Id. at 151-53.
Even viewing the allegations in their complaints in a light most favorable to plaintiffs, we are satisfied that plaintiffs' bare allegations are insufficient to properly aver that the actions of defendants constituted actual fraud, actual malice or willful misconduct such as to abrogate defendants' statutorily-granted immunity.
CRA Claims
N.J.S.A. 10:6-2(c) provides that a person may bring a civil action under the CRA when a person, under color of state law, (1) deprives the person of any due process or equal protection rights, privileges or immunities secured by the federal or state constitution or laws, or (2) interferes with the person's exercise or enjoyment of those substantive rights, privileges or immunities by threats, intimidation, or coercion. The CRA was adopted in 2004 "for the broad purpose of assuring a state law cause of action for violations of state and federal constitutional rights and to fill any gaps in state statutory anti-discriminatory protection." Owens v. Feigin, 194 N.J. 607, 611 (2008). New Jersey's CRA was modeled after 42 U.S.C. § 1983, and has been repeatedly interpreted to be analogous to § 1983. See Perez v. Zagami, LLC, 218 N.J. 202, 213 (2014). Given their similarity, our courts apply § 1983 immunity doctrines to claims arising under the CRA. See Gormley v. Wood-El, 218 N.J. 72, 113 (2014).
DAGs Picione, Czepiel, and Fritch
The Supreme Court has recognized two kinds of immunity under § 1983, absolute immunity and qualified immunity. Harlow supra, 457 U.S. at 807, 102 S. Ct. at 2732, 73 L. Ed. 2d at 403. The defense of absolute immunity is reserved for "officials whose special functions or constitutional status requires complete protection from suit[.]" Ibid.
Absolute immunity is conferred on prosecutors in civil rights lawsuits filed under § 1983, "out of concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." Loigman v. Twp. Comm., 185 N.J. 566, 581 (2004). We take a "functional approach" to determining whether absolute immunity applies to a prosecutor's actions, which "looks to the nature of the function performed, not [merely] the identity of the actor who performed it." Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S. Ct. 2606, 2613, 125 L. Ed. 2d 209, 223 (1993).
Absolute immunity applies to prosecutorial activities intimately associated with the judicial process, including evaluating evidence, deciding to prosecute, and preparing for and presenting evidence in the grand jury and trial, even if it is alleged they were conducted with malice. Id. at 273, 113 S. Ct. at 2615, 125 L. Ed. 2d at 226. On the other hand, absolute immunity does not extend to "a prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings." Ibid.
Plaintiffs claim that the prosecutors here acted as investigators when they solicited the testimony of Harris. However, "[t]he mere invocation of the catch-word 'investigatory'. . . cannot suffice . . . to forestall dismissal on immunity grounds." Rose v. Bartle, 871 F.2d 331, 345 (3d Cir. 1989). Here, the alleged wrongdoing occurred on the day Harris appeared under subpoena to testify before the grand jury. He was interviewed and gave a statement that was ultimately presented to the grand jury. Such "direct solicitations of testimony for use in the grand jury proceedings" are absolutely immunized. Id. at 344.
In Rose, the plaintiffs claimed that a district attorney and an assistant district attorney "solicited and prepared perjured testimony by witnesses," attempted to get a plaintiff to perjure himself in the grand jury proceedings, and "subjected other grand jury witnesses to similar efforts to solicit perjury in investigatory interviews and before the grand jury, and some of these witnesses actually did perjure themselves." Id. at 343-44. In finding that the prosecutors were entitled to absolute immunity, the court held:
Although there may well be situations in which the allegations establish that the solicitation or coercion of false statements from a witness occurred while the prosecutor was acting in an investigative capacity, this does not appear to be one of them. The plaintiffs' allegations involve direct solicitations of testimony for use in the grand jury proceedings. Such solicitations are encompassed within "the preparation necessary to present a case" and therefore are immunized as involving the prosecutors' advocacy functions.
[Id. at 344.]
The Rose court noted that even though the defendants engaged in soliciting perjury in "investigatory interviews" as well as before the grand jury, "the distinction between actions taken in a quasi-judicial role and those taken in an investigative role often will involve a 'gray area,' . . . [and] the alleged solicitations of perjury occurred in preparation for the grand jury proceedings, not in an investigatory capacity." Id. at 345.
We find no meaningful distinction between the facts in Rose and those presented here. Plaintiffs allege that DAG Picione "threatened" and coached Harris to testify to the "story that Picione needed." Picione interviewed Harris while the grand jury was in session and on the very day that Harris was subpoenaed to testify before the grand jury. DAG Czepiel elicited Harris's testimony, through Detective Orman, at the grand jury proceedings. Plaintiffs made no specific allegations as to DAG Fritch.
It is well settled that prosecutors are entitled to absolute immunity from claims based on their failure to disclose exculpatory evidence, so long as they did so while functioning in their prosecutorial capacity. Yarris v. Cnty. of Del., 465 F.3d 129, 137 (3d Cir. 2006). This immunity extends to interviews conducted by prosecutors if done "for use in the grand jury proceedings" even if there are allegations that the prosecutors attempted to coerce the witnesses into committing perjury before the grand jury. Rose, supra, 871 F.2d at 344.
As a prosecutor presenting a case to the grand jury, Czepiel is entitled to absolute immunity. Because DAGs Czepiel, Picione, and Fritch were acting as the State's "advocates" while engaging in the alleged conduct that gives rise to the allegations in plaintiffs' complaints, they are entitled to the defense of absolute immunity as to plaintiffs' CRA claims. Buckley, supra, 509 U.S. at 274, 113 S. Ct. at 2606, 125 L. Ed. 2d at 209.
Detectives Smith and Orman
We first consider the allegations pertaining to the actions of Smith and Orman before the grand jury. Plaintiffs allege that in the grand jury, Detective Orman testified falsely about the S-18 recording. As a witness testifying before a grand jury, however, Orman is entitled to absolute immunity. Rehberg v. Paulk, ___ U.S. ___, ___, 132 S. Ct. 1497, 1506, 182 L. Ed. 2d 593, 604 (2012). In Rehberg, the Supreme Court explained:
The factors that justify absolute immunity for trial witnesses apply with equal force to grand jury witnesses. In both contexts, a witness' fear of retaliatory litigation may deprive the tribunal of critical evidence. And in neither context is the deterrent of potential civil liability needed to prevent perjurious testimony. . . . Since perjury before a grand jury, like perjury at trial, is a serious criminal offense, . . . there is no reason to think that this deterrent is any less effective in preventing false grand jury testimony.
Neither is there any reason to distinguish law enforcement witnesses from lay witnesses.
[Ibid.]
We next consider the allegations concerning Smith and Orman's conduct during the investigatory phase, which must be reviewed to determine whether they are shielded from liability by qualified immunity. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, supra, 457 U.S. at 818, 102 S. Ct. at 2738, 73 L. Ed. 2d at 410.
The Supreme Court has announced a two-pronged approach to determining whether qualified immunity applies. First, we must assess whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right[.]" Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272, 281 (2001). Second, we ask "whether the right was 'clearly established' at the time of defendant's alleged misconduct." Ibid.; accord Schneider v. Simonini, 163 N.J. 336, 355-56 (2000) (delineating same "two-part inquiry").
Plaintiffs allege that, as a result of Detective Smith's instruction to Colon to "keep an eye out" for "anything political in Atlantic City," Colon told Orman that Green had knowledge of fraudulent absentee ballots and Green's information formed the "cornerstone" of the investigation. There are no allegations that during this investigatory phase, Smith or Orman violated any "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, supra, 457 U.S. at 818, 102 S. Ct. at 2738, 73 L. Ed. 2d at 410.
Smith and Orman were both assigned to the State's Official Corruption Unit. We conclude that when Smith and Orman learned of Green's allegation of ballot fraud, their decision to pursue that investigation was objectively reasonable. Indeed, given the nature of their assignment, they had an obligation to investigate the allegations. None of the claims contained in the Small or Quirk complaints establish that the conduct of Smith and Orman during the pre-grand-jury investigation violated clearly established constitutional or statutory rights of plaintiffs of which a reasonable police officer would have known. The facts alleged simply do not support abrogation of qualified immunity for Smith and Orman.
We address Quirk's complaint that Orman destroyed notes of a debriefing of Colon after Colon met with and attempted to record conversations with members of the Small campaign including Quirk on April 29, 2009. The notes were used by Orman to prepare a report of his interview but he destroyed them before testifying at trial.
After a defendant's indictment, the State is obligated as part of its discovery obligations to provide any statements made by the defendant that are memorialized in a police officer's notes. R. 3:13-3; State v. Dabas, 215 N.J. 114, 118 (2013). Law enforcement officers are required to preserve their handwritten interview notes even before the State is required to tender discovery to the defense under Rule 3:13-3. Dabas, supra, 215 N.J. at 119.
While Orman's destruction of his handwritten notes may have violated Rule 3:13-3, standing alone, it does not rise to the level of a per se violation of plaintiffs' constitutional rights. The requirement imposed on law enforcement to maintain rough interview notes has evolved over the last ten years. In 2004, the Court expressed its disapproval of the "common" practice of law enforcement officers destroying their interrogation notes. State v. Cook, 179 N.J. 533, 542 n.3 (2004). One year later, the Court registered its "displeasure that police officers engage in the seemingly routine practice of destroying their contemporaneous notes of witness interviews after the preparation of formal reports." State v. Branch, 182 N.J. 338, 367 n.10 (2005). It was not until 2011 that the Court mandated that law enforcement officers retain their contemporaneous notes of witness interviews:
Our criminal discovery rules do not currently require the recordation of all statements of witnesses obtained by law enforcement officers. But they do provide for discovery of all statements whether signed or unsigned, of witnesses as well as police reports which are "in the possession, custody and control of the prosecutor." See R. 3:13-3(c)(6),(7) and (8). Therefore, we hold today that the Rule encompasses the writings of any police officer under the prosecutor's supervision as the chief law enforcement officer of the county. . . . Logically, because an officer's notes may be of aid to the defense, the time has come to join other states that require the imposition of "an appropriate sanction" whenever an officer's written notes are not preserved.The Court deferred the implementation of this retention and disclosure requirement for thirty days "in order to allow prosecutors sufficient time to educate police officers accordingly." Ibid. After that time, if notes were lost or destroyed prior to trial, a defendant could request an adverse inference charge. Ibid.
[State v. W.B., 205 N.J. 588, 608 (2011).]
The Court has held that violations of other rules did not constitute per se violations of a defendant's constitutional rights. See, e.g., Connor, supra, 162 N.J. at 410 (police violation of Rule 3:4-1 was not per se constitutional violation); O'Brien v. Borough of Woodbury Heights, 679 F. Supp. 429, 437 (D.N.J. 1988) (violation of Rule 3:4-1 was not per se violation of plaintiff's constitutional rights).
We are satisfied that the bare allegation that Orman destroyed the rough notes of his interview with Colon, later memorialized in a report, is insufficient to defeat qualified immunity.
The State of New Jersey
Small and Quirk allege that the State failed to train its employees properly and that the State's "custom and policy" violated their constitutional rights. The motion judge initially denied defendants' motion to dismiss these claims, reasoning that dismissal "would be to say that there is adequate training that took place to avoid these types of alleged abuses and I can't give that inference at this point." When defendants made a second motion for dismissal, the judge held that the Monell doctrine "keeps the State in" as a defendant. We disagree.
In Monell v. New York City Department of Social Services, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611, 635 (1978), the Supreme Court held that:
Local governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels.
The Monell decision did not address whether a state, as opposed to a municipality, was a "person" that could be sued under § 1983. However, the Supreme Court addressed that issue in Will v. Michigan Department of State Police, 491 U.S. 58, 64, 109 S. Ct. 2304, 2308, 105 L. Ed. 2d 45, 53 (1989), when it held that "a State is not a person within the meaning of § 1983."
Small and Quirk argue that Will is inapplicable because they are suing New Jersey under a state statute in state court, as opposed to suing under § 1983 in a federal court. Although New Jersey courts have not addressed this issue, a recent federal case squarely rejects this argument.
In Endl v. State, 5 F. Supp. 3d 689, 693 (D.N.J. 2014), the survivors of a deceased prison inmate brought suit against the State, the New Jersey Department of Corrections, and the University of Medicine and Dentistry of New Jersey (among others), claiming constitutional violations and seeking redress under § 1983 and the CRA. Citing Will, the court held:
A state is not considered a "person" for purposes of Section 1983 because it is protected by sovereign immunity. . . . The same sovereign immunity reasoning has been applied to claims for damages against the state and its entities pursuant to the NJCRA. NJCRA is construed nearly identically to Section 1983. In particular, the definitions of "person" under the two statutes have been interpreted in parallel.Thus, it is clear that the State is not amenable to suit under the CRA.
[Id. at 697 (citations omitted).]
Although Quirk argues that the State can be held liable for the constitutional violations of its individual employees under a theory of respondeat superior, the Supreme Court rejected this argument, finding that "a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell, supra, 436 U.S. at 691, 98 S. Ct. at 2036, 56 L. Ed. 2d at 636. If a municipality cannot be held liable under respondeat superior, it stands to reason that a State cannot either. Quirk provides no authority to the contrary.
Quirk argues that the State is "liable under respondeat superior for the pled common law claims of malicious prosecution and thus should not be dismissed regardless of the constitutional claims." Although Quirk's complaint demands judgment against the defendants jointly, severally, and in the alternative, his argument is no more than conclusory. Where an issue is not briefed beyond the conclusory statement of the brief writer, it will not be considered. Miller v. Reis, 189 N.J. Super. 437, 441 (App. Div. 1983).
Small's malicious prosecution claim does not seek damages against the State.
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Finally, we must determine whether the dismissal of plaintiffs' complaints should be with or without prejudice. As a general rule, a litigant should have the opportunity to develop its case and a court should not dismiss with prejudice when discovery on material issues is incomplete. See Mohamed v. Iglesia Evangelica Oasis De Salvacion, 424 N.J. Super. 489, 498 (App. Div. 2012). However, "because the entitlement is an immunity from suit rather than a mere defense to liability . . . we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534, 537, 116 L. Ed. 2d 589, 596 (1991); accord Wildoner v. Borough of Ramsey, 162 N.J. 375, 387 (2000) (holding that a defendant's entitlement to qualified immunity is a question of law to be decided as early in the proceedings as possible).
"[D]iscovery need not be undertaken or completed if it will patently not change the outcome." Minoia v. Kushner, 365 N.J. Super. 304, 307 (App. Div.), certif. denied, 180 N.J. 354 (2004). Specifically, the "right to obtain discovery . . . in cases involving . . . immunity statutes is not absolute. Instead, the court may curtail discovery in its discretion if there are no reasonable indicia that a factual basis to surmount the immunities will be uncovered." Hurwitz v. AHS Hosp. Corp., 438 N.J. Super. 269, 277-78 (App. Div. 2014). "A pleading should be dismissed if it states no basis for relief and discovery would not provide one." Rezem, supra, 423 N.J. Super. at 113.
The Supreme Court has additionally noted "concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." Imbler v. Pachtman, 424 U.S. 409, 423, 96 S. Ct. 984, 991, 47 L. Ed. 2d 128, 139 (1976). There is no indication here that additional discovery will have any effect on the entitlement of the prosecutors and detectives to absolute and qualified immunity.
Reversed and remanded for entry of an order dismissing plaintiffs' complaints with prejudice. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION