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Date: 01-28-2019
Case Style:
Lieutenant John Kaminskas and Chief Daniel Vaniska of the Union County Police Department v. State of New Jersey, Department of Law and Public Safety, Office of the Attorney General
Case Number: A-31-17
Judge: Faustino J. Fernandez-Vina
Court: SUPREME COURT OF NEW JERSEY
Plaintiff's Attorney: GluckWalrath, attorneys; Michael D. Fitzgerald, Monmouth County Counsel, and Andrew Bayer, of counsel and on the brief; and Victoria A. Flynn, on the brief
Michael D. Fitzgerald
Monmouth County Counsel
Defendant's Attorney: Steven H. Merman, Assistant County Counsel
Description:
Practice Panther
Law Practice Management Software
This civil action arises out of a criminal matter. In 2006, Emmanuel
Mervilus was arrested and charged with first-degree robbery, contrary to
N.J.S.A. 2C:15-1; aggravated assault, contrary to N.J.S.A. 2C:12-1(b); and
third-degree possession of a weapon for an unlawful purpose, contrary to
N.J.S.A. 2C:39-4(d). Mervilus, who maintained his innocence, agreed to take
a polygraph examination and stipulated to its admissibility at trial.
Lieutenant Kaminskas administered Mervilus’s polygraph examination.
At trial, Lieutenant Kaminskas testified that he frequently administered
polygraph examinations on behalf of the Union County Prosecutor’s Office
(UCPO) because it did not employ a polygraphist. At the time Lieutenant
Kaminskas administered Mervilus’s polygraph examination, Daniel Vaniska
was Chief of the Union County Police Department.
Lieutenant Kaminskas testified at Mervilus’s trial as the State’s
polygraph expert. He testified that polygraph tests differentiate reactions of
persons who are “telling the truth” and those who are “lying” and thus
innocent or guilty. He testified that polygraph examinations are “not just a lie
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detector [but] also a truth indicator.” He further testified that in his opinion
Mervilus “wasn’t telling the truth.” A jury convicted Mervilus of first-degree
robbery and aggravated assault.
The Appellate Division reversed his convictions and remanded the
matter for a new trial. State v. Mervilus, 418 N.J. Super. 138, 148 (App. Div.
2011). The Appellate Division found that Lieutenant Kaminskas’s testimony
was improper because it may have led the jury to “perceive polygraph
evidence as infallible” and to “give it disproportionate weight in deciding to
convict or acquit.” Id. at 147. The error in admitting that improper testimony
was prejudicial, the panel found, because “the State’s evidence against
defendant [could not be described] as overwhelming” and “[t]he improper
polygraph testimony could have made a difference to the outcome.” Ibid. On
remand, Mervilus was retried and acquitted of all charges.
B.
In November 2014, Mervilus filed a complaint against Lieutenant
Kaminskas, Chief Vaniska, and two Union County prosecutors involved in his
criminal proceedings, among others, in the United States District Court for the
District of New Jersey. As is relevant here, Mervilus’s complaint asserted
claims for wrongful prosecution and conviction under federal and state statutes
and the common law. The complaint alleged that the State’s use of a
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polygraph examination and Lieutenant Kaminskas’s testimony were
contributing causes to his wrongful conviction and prosecution.
Lieutenant Kaminskas, Chief Vaniska, and the Union County
prosecutors requested that the Attorney General defend and indemnify them
pursuant to Wright. The Attorney General agreed to defend and indemnify the
county prosecutors but not Lieutenant Kaminskas or Chief Vaniska. The
Attorney General noted that Wright requires it to defend and indemnify county
prosecutors in appropriate circumstances but does not extend to county police
officers. In addition, the Attorney General asserted that N.J.S.A. 40A:14-117
requires each county to defend its police officers. Lieutenant Kaminskas and
Chief Vaniska appealed the Attorney General’s decision.
The Appellate Division agreed with the Attorney General’s reasoning
and affirmed. The panel determined first that N.J.S.A. 40A:14-117 requires
counties to defend their police officers. The appellate panel then considered
N.J.S.A. 59:10A-1 to -6 and concluded that the Attorney General’s duty to
defend, as established in those statutes, applies only to “active and former
‘state employees.’” Finally, the panel reasoned that the “narrow exception
established in Wright . . . applies only to county prosecutors and their
employees.” The Appellate Division found it inappropriate to extend Wright
to cover county police officers because that extension would, in the Appellate
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Division’s view, “create an unnecessary conflict between N.J.S.A. 40A:14-117
and N.J.S.A. 59:10A-1 to -6.”
We granted the officers’ petition for certification, 231 N.J. 557 (2017),
and granted amicus curiae status to the County of Hudson, the New Jersey
Association of Counties, and the Monmouth County Prosecutor’s Office
(MCPO).
II.
A.
Lieutenant Kaminskas and Chief Vaniska contend they are entitled to
defense and indemnification by the Attorney General based on “the same
theory of Wright” because they, like the members of the Somerset County
Prosecutor’s Office (SCPO) in Wright, were “non-state employees who were
acting as an ‘arm of the State.’” The officers argue that Lieutenant
Kaminskas’s actions in this case “did not arise of and were not incidental to
his employment” with the county police department, but were instead
undertaken for the UCPO. Stressing that they acted “for the sole benefit and at
the exclusive direction of the UCPO” in all matters connected to this case, the
officers assert that fairness and justice require that they “be given the same
protection granted to the UCPO’s employees.”
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The officers add that the Appellate Division’s approach is unduly rigid
given that the Attorney General would be required to defend and indemnify
employees of the prosecutor’s office if those employees had performed the
same functions that Lieutenant Kaminskas and Chief Vaniska performed
during Mervilus’s criminal trial. According to the officers, the mere fact that
the UCPO called upon Lieutenant Kaminskas to “fill a void within the
[UCPO]” by performing those duties rather than have someone on the UCPO
payroll administer and testify about the polygraph test should not make a
difference as to defense and indemnification. The officers point to the
inclusion of “servants” of the State in the Tort Claims Act’s definition of
“employee” in support of their argument that the Act’s defense and
indemnification provisions can extend to them under the circumstances of this
case. And the officers contend that Wright requires a context-specific analysis
that extends beyond the employer-employee relationship to look at the
function performed by the individuals involved.
B.
The Attorney General urges us to affirm the Appellate Division’s
judgment and stresses that Wright does not apply to county police officers
because Wright specifically addressed the defense and indemnification of
county prosecutors and the employees of the county prosecutor’s office.
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According to the Attorney General, the Wright Court reached its holding “that
county prosecutors and their employees should be defended and indemnified
by the State to the extent they engage in investigation and enforcement of the
criminal laws” based on two considerations: first, the Attorney General
maintains supervisory control over the county prosecutors; and second, county
“prosecutor’s office employees [are] not guaranteed defense and
indemnification from the county.” Unlike employees of the county
prosecutor’s office, the Attorney General contends, county police officers, by
statute, remain under their employing county’s control at all times, and
N.J.S.A. 40A:14-117 provides that the county that employs a particular officer
must defend that officer from certain legal actions. Interpreting N.J.S.A.
59:10A-1 and N.J.S.A. 59:1-3 to cover county police officers would, in the
Attorney General’s view, conflict with N.J.S.A. 40A:14-117.
C.
Amici curiae the County of Hudson and the New Jersey Association of
Counties (together, the Counties) argue that the Attorney General is required to
defend and indemnify Lieutenant Kaminskas and Chief Vaniska pursuant to
Wright because they worked for the State during Mervilus’s criminal trial.
The Counties contend that when county police officers work under the
prosecutor’s supervision, they are not supervised by the county and should
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thus receive defense and indemnification from the Attorney General, not the
county. According to the Counties, requiring the county to defend and
indemnify a police officer who works under the control of the prosecutor’s
office is unjust and may discourage counties from allowing their officers to
work under the control of the prosecutor’s office.
The Monmouth County Prosecutor’s Office (MCPO), as amicus curiae,
agrees that, pursuant to Wright, the Attorney General should be required to
defend and indemnify county police officers who work for the prosecutor’s
office. The MCPO expresses concern that the Appellate Division’s decision
will prevent prosecutors from presenting the testimony of county police
officers during criminal trials.
III.
We review de novo an agency’s interpretation of a statute and legal
conclusions. Lavezzi v. State, 219 N.J. 163, 172 (2014). “The starting point
of all statutory interpretation [is] the language used in the enactment.” DCPP
v. Y.N., 220 N.J. 165, 178 (2014) (citing Farmers Mut. Fire Ins. Co. of Salem
v. N.J. Prop.-Liab. Ins. Guar. Assoc., 215 N.J. 522, 536 (2013)). “If the
Legislature’s intent is clear from the statutory language and its context with
related provisions, we apply the law as written.” Shelton v. Restaurant.com,
Inc., 214 N.J. 419, 429 (2013) (citing Lozano v. Frank DeLuca Constr., 178
10
N.J. 513, 522 (2004)). “We turn to extrinsic tools to discern legislative intent
. . . only when the statute is ambiguous, the plain language leads to a result
inconsistent with any legitimate public policy objective, or it is at odds with a
general statutory scheme.” Ibid. (first citing Wilson ex rel. Manzano v. City
of Jersey City, 209 N.J. 558, 572 (2012), and then citing DiProspero v. Penn,
183 N.J. 447, 492-93 (2005)).
IV.
A.
As part of the Tort Claims Act, the Legislature has set forth a detailed
statutory scheme to govern the defense and indemnification of government
employees sued for actions taken in the course of their employment. Pursuant
to N.J.S.A. 59:10A-1, “the Attorney General shall, upon a request of an
employee or former employee of the State, provide for the defense of any
action brought against such State employee or former State employee on
account of an act or omission in the scope of his employment.” The Attorney
General may refuse to defend an action that falls within section 59:10A-1 only
if the Attorney General “determines that” (a) “the act or omission was not
within the scope of employment,” (b) “the act or the failure to act was because
of actual fraud, willful misconduct or actual malice,” or (c) “the defense of the
action or proceedings by the Attorney General would create a conflict of
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interest between the State and the employee or former employee.” N.J.S.A.
59:10A-2. When the Attorney General is required to defend a State employee
under that statute, then “the State shall provide indemnification for the State
employee.” N.J.S.A. 59:10-1. The Tort Claims Act defines an employee as
“an officer, employee, or servant, whether or not compensated or part-time,
who is authorized to perform any act or service,” but “the term [employee]
does not include an independent contractor.” N.J.S.A. 59:1-3.
In addition to those provisions pertinent to State employees, the Tort
Claims Act addresses the indemnification of other public servants. N.J.S.A.
59:10-4 empowers “[l]ocal public entities . . . to indemnify local public
employees consistent with the provisions of this act,” and specifies that
[a] local public entity may indemnify an employee of the local public entity for exemplary or punitive damages resulting from the employee’s civil violation of State or federal law if, in the opinion of the governing body of the local public entity, the acts committed by the employee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong.
Although the Tort Claims Act uses permissive language as to the
indemnification of employees of local public entities, the Act elsewhere
creates an affirmative duty to defend county police officers under certain
circumstances. As relevant here, N.J.S.A. 40A:14-117 provides that
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[w]henever a member or officer of a county police, or county park police, department or force is a defendant in any action or legal proceeding arising out of or incidental to the performance of his duties, the governing body of the county, or county park commission, as the case may be, shall provide said member or officer with necessary means for the defense of such action or proceeding.
The parties and amici disagree about whether N.J.S.A. 40A:14-117’s
imposition of a duty of defense upon the county of employment should govern
here, or whether the State should defend and indemnify the officers to the
extent that they acted to further a State prosecution. The disagreement stems
from conflicting interpretations of Wright.
B.
Wright came before this Court as an interlocutory appeal filed during a
civil suit brought “against several defendants including thirteen employees of
the SCPO.” 169 N.J. at 429. Plaintiff Isaac Wright was arrested and convicted
of several drug-related offenses. Id. at 430. One of his convictions was
reversed on direct appeal; two years later, his remaining convictions were
reversed by way of post-conviction relief after “[t]he court found that high
ranking Somerset County law-enforcement officials concealed evidence of the
illegal search for and seizure of cocaine used at Wright’s trial” and that the
former Somerset County Prosecutor “knew about, but concealed, the terms of a
favorable plea agreement with one of the co-defendants who was a State’s
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witness at Wright’s trial.” Id. at 431. While Wright challenged his
convictions, he and his wife also filed a civil complaint alleging, in part, that
“former Somerset County Prosecutor Nicholas L. Bissell, Jr., and several
employees of the SCPO . . . , among others, acted to effect his false arrest and
to invade his privacy.” Id. at 430-31. Wright later joined the State as a
defendant. Id. at 432.
Before the State was joined, “Somerset County sent the Attorney
General a letter requesting representation and indemnification on behalf of the
SCPO’s employees whom Somerset County was then representing.” Ibid.
When the Attorney General denied the request, the SCPO employees and other
defendants filed “cross-claims against the State for vicarious liability,
indemnification and defense costs.” Ibid. The trial court granted the State’s
motion for summary judgment on the vicarious liability claim and dismissed
the claims for defense and indemnification. Id. at 434. On a motion for leave
to appeal, we reversed as to all three of those claims. Id. at 452-53, 456.
We determined the dispositive issue to be “whether the SCPO employees
can be considered ‘State employees’” for purposes of the Tort Claims Act,
N.J.S.A. 59:1-3. Id. at 444. The Court first noted that N.J.S.A. 2A:158-7,
which provides for the payment by the county treasurer, subject to certain
limitations, of “[a]ll necessary expenses incurred by the prosecutor for each
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county in the detection, arrest, indictment and conviction of offenders against
the laws,” did not resolve the issue of defense and indemnification. Id. at 443
44. Then, the Wright Court noted the “dual or hybrid status” of county
prosecutors:
It is well established that when county prosecutors execute their sworn duties to enforce the law by making use of all the tools lawfully available to them to combat crime, they act as agents of the State. On the other hand, when county prosecutors are called upon to perform administrative tasks unrelated to their strictly prosecutorial functions, such as a decision whether to promote an investigator, the county prosecutor in effect acts on behalf of the county that is the situs of his or her office.
[Id. at 454 (quoting Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996)).]
In light of that hybrid status and having determined that the TCA should be
predominant in its analysis, the Court reasoned that its inquiry should “focus
on whether the function that the county prosecutors and their subordinates
were performing during the alleged wrongdoing is a function that traditionally
has been understood to be a State function and subject to State supervision in
its execution.” Ibid. We determined “that when county prosecutors and their
subordinates are involved in the investigation and enforcement of the State’s
criminal laws, they perform a function that has traditionally been the
15
responsibility of the State and for which the Attorney General is ultimately
answerable.” Id. at 455.
Because county prosecutors and their subordinates essentially function
as State employees under those circumstances, we concluded that “the State
should be obligated to pay the county prosecutors and their subordinates’
defense costs and to indemnify them if their alleged misconduct involved the
State function of investigation and enforcement of the criminal laws.” Ibid.
Applying that test to the facts of the case, the Wright Court held “that
the State of New Jersey may be required to indemnify and defend SCPO’s
prosecutors and their subordinates for tortious conduct committed during the
investigation, arrest, and prosecution of Isaac Wright, under the relevant
provisions of the [Tort Claims Act].” Id. at 456. The Court remanded to the
trial court to determine whether defense and indemnification was appropriate
or whether one of the exceptions in N.J.S.A. 59:10A-2 applied. Ibid.
Significantly, we underscored “that the Legislature intended a sharp
distinction between State employees and employees of other public entities
that may be indemnified by such entities,” but we determined that “that
distinction did not contemplate public employees, such as county prosecutors,
who have a hybrid status.” Id. at 455. Instead, we were “persuaded that the
statutory language used in N.J.S.A. 59:1-3 did not take into account the unique
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role of county prosecutorial employees, paid by the county, but performing a
State law enforcement function under State supervisory authority.” Id. at 455
56. Thus, “[t]o vindicate the legislative purpose of providing defense and
indemnification to public employees performing an essential State function,
we interpret[ed] the defense and indemnification provisions of the [Tort
Claims Act] to apply to county prosecutorial employees sued on the basis of
actions taken in the discharge of their law enforcement duties.” Id. at 456.
V.
The officers and their amici urge that the logic set forth in Wright
applies with equal force to them, inasmuch as all the actions by Lieutenant
Kaminskas that Mervilus has challenged pertain to Mervilus’s prosecution by
the State. But that argument ignores a statute that explicitly governs the
defense of county police officers in actions such as this one. N.J.S.A. 40A:14
117’s language is clear and unambiguous -- and it applies here: Lieutenant
Kaminskas and Chief Vaniska are “defendant[s]” in the underlying civil
action, and that action “aris[es] out of . . . the performance of [their] duties.”
Accordingly, N.J.S.A. 40A:14-117 mandates that the “governing body of”
Union County defend Lieutenant Kaminskas and Chief Vaniska in the
underlying civil action. Union County is therefore responsible for
indemnifying Lieutenant Kaminskas and Chief Vaniska pursuant to N.J.S.A.
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59:10-4. Because the Legislature has clearly identified the county of
employment as the entity responsible for defending and indemnifying county
police officers, our inquiry ends. See Shelton, 214 N.J. at 429.
In Wright, this Court analyzed the “hybrid status” of county prosecutors
because the “statutory language used in N.J.S.A. 59:1-3 did not take into
account the unique role of” county prosecutors. 169 N.J. at 455-56. Stated
simply, in Wright this Court considered the “unique role” of county
prosecutors in the face of uncertainty in the relationship between the statute
governing county reimbursement of expenses of the county prosecutor,
N.J.S.A. 2A:158-7, and the TCA’s clear grant of indemnification and defense
costs for state employees, Wright, 169 N.J. at 443-44. Here, however, faced
with the clarity of N.J.S.A. 40A:14-117, which did not exist for N.J.S.A.
2A:158-7, we have no reason to look beyond the Legislature’s clear mandate.
To extend Wright’s function-based analysis to the officers here,
moreover, would frustrate the detailed liability structure the Legislature has
enacted, which delineates and allocates the responsibilities to defend and
indemnify different categories of employees to specific governmental entities.
The “Legislature intended a sharp distinction between State employees and
employees of other public entities that may be indemnified by such entities,”
Wright, 169 N.J. at 455 -- and Lieutenant Kaminskas and Chief Vaniska
18
clearly fall within the latter category, regardless of the type of work they were
performing in this case. As the Appellate Division noted, interpreting N.J.S.A.
59:10A-1 to cover Lieutenant Kaminskas and Chief Vaniska would result in an
unnecessary conflict between N.J.S.A. 59:10A-1 and N.J.S.A. 40A:14-117.
See State ex rel. J.S., 202 N.J. 465, 480 (2010) (“[W]hen [statutory]
construction involves the interplay of two or more statutes, we seek to
harmonize the [statutes], under the assumption that the Legislature was aware
of its actions and intended for cognate provisions to work together.”);
DiProspero, 183 N.J. at 496-98 (declining to create a conflict between a
statute’s preamble and text). We decline to extend Wright in a manner that
would create such conflict.
In short, the Legislature has provided that each county -- not the
Attorney General -- is responsible for defending and potentially indemnifying
its police officers. Accordingly, the Attorney General is not required to defend
and indemnify Lieutenant Kaminskas or Chief Vaniska.
Outcome: For the reasons detailed above, we affirm the judgment of the Appellate
Division.
Plaintiff's Experts:
Defendant's Experts:
Comments: