State v. Ivonne Saavedra (073793) ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Ivonne Saavedra (A-68-13) (073793)
Argued November 10, 2014 -- Decided June 23, 2015
PATTERSON, J., writing for a majority of the Court.
In this appeal, the Court considers defendant’s constitutional and public policy challenges to the official
misconduct and theft statutes as they apply to her indictment. Among other challenges, defendant argues that this
Court’s decision in Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010), immunized her conduct and prohibited
her prosecution because the public documents at issue were taken for use in employment discrimination litigation.
Defendant, an employee of the North Bergen Board of Education (Board), filed an action asserting
statutory and common law employment discrimination claims against the Board. In discovery, defendant’s counsel
produced several hundred documents that allegedly had been removed or copied from Board files. According to the
Board, the documents included highly confidential student educational and medical records that were protected by
federal and state privacy laws. The Board reported the alleged theft of its documents to the county prosecutor.
The State presented the matter to a grand jury, where a Board attorney testified about defendant’s position
with the Board, the Board’s discovery through the civil litigation that defendant possessed documents from its files,
and the privacy implications of the alleged appropriation of the documents. The grand jury indicted defendant for
official misconduct and theft by unlawful taking of public documents. Defendant moved to dismiss the indictment,
arguing that the State failed to present evidence sufficient to support the indictment and withheld exculpatory
evidence about her motive. She also contended that her removal of documents for use in her employment
discrimination claim was sanctioned by this Court’s decision in Quinlan. The trial court denied the motion.
The Appellate Division granted defendant’s motion for leave to appeal, and, in a published decision, the
panel affirmed the trial court’s denial of defendant’s motion to dismiss the indictment. 433 N.J. Super. 501, 507
(App. Div. 2013). One member of the panel dissented, reasoning that defendant’s taking of the documents was
protected activity under the Law Against Discrimination, the Conscientious Employee Protection Act, and Quinlan.
The Court granted defendant’s motion for leave to appeal. 217 N.J. 289 (2014).
HELD: The trial court properly denied defendant’s motion to dismiss her indictment. The State presented to the grand
jury a prima facie showing with respect to the elements of each offense charged in the indictment and the State did not
withhold from the grand jury exculpatory information or a charge regarding a defense that it was compelled by law to
present. Defendant’s indictment does not violate due process standards or New Jersey public policy by conflicting with
this Court’s decision in Quinlan, which does not govern the application of the criminal laws at issue in this appeal.
1. The Court first considers whether the trial court properly exercised its discretion in holding that the State
presented a prima facie showing on the elements of the charged offenses and that the State did not withhold
exculpatory evidence that it had a duty to present. A trial court deciding a motion to dismiss an indictment
determines whether, viewing the evidence and the rational inferences drawn therefrom in the light most favorable to
the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it. A court
should not disturb an indictment if there is some evidence establishing each element of the crime. (pp. 16-18)
2. The first offense for which defendant was indicted is official misconduct. To establish a prima facie case of that
offense, the State was required to present evidence that: (1) defendant was a “public servant” (2) who, with the
purpose to obtain a benefit or deprive another of a benefit, (3) committed an act relating to but constituting an
unauthorized exercise of her office, (4) knowing that such act was unauthorized or that she was committing such act
in an unauthorized manner. N.J.S.A. 2C:30-2(a). Before the grand jury, the State presented evidence (1) of
defendant’s employment by the Board as a clerk; (2) that defendant removed documents from the Board’s files in
order to use them in her discrimination litigation against the Board; (3) that defendant obtained the documents from
the Board’s files through her employment, and that Board policy did not permit her to have them in her possession;
and (4) that through the Board’s internal confidentiality policies, employees are trained and informed that the
documents at issue are highly confidential and must not be tampered with. Thus, the State met its burden to present
prima facie evidence on all four elements of official misconduct in violation of N.J.S.A. 2C:30-2(a). (pp. 18-25)
3. The second offense for which defendant was indicted is theft by unlawful taking of movable property. “A person
is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with
purpose to deprive him thereof.” N.J.S.A. 2C:20-3(a). The offense of theft constitutes a crime of the third degree if
“[i]t is of a public record, writing or instrument kept, filed or deposited according to law with or in the keeping of
any public office or public servant.” N.J.S.A. 2C:20-2(b)(2)(g). Before the grand jury, the State presented evidence
that (1) defendant collected several hundred confidential records from her employer, in contravention of the
employer’s policy; (2) a significant portion of those documents were the Board’s “original” copies, the removal of
which left the Board without the document in its files; and (3) the documents constituted public records, writings or
instruments kept according to law with or in the keeping of any public office or public servant. Accordingly, the
State met its burden of presenting a prima facie case with respect to each element of both offenses. (pp. 25-27)
4. The Court next considers whether the trial court abused its discretion in deciding that the State did not withhold
clearly exculpatory evidence that would negate defendant’s guilt as to one or both offenses, and whether the State
properly did not charge the grand jury as to a defense. Defendant contends that the State withheld evidence that she
collected her employer’s documents for purposes of her employment discrimination case. However, the State
presented testimony that defendant had an “outstanding” lawsuit against the Board, and the prosecutor had no
obligation to suggest that defendant thought that because she maintained an employment discrimination claim, her
conduct was sanctioned by law. Moreover, the State was not obligated to charge the grand jury regarding a potential
defense based on justification. It is only when the facts known to the prosecutor clearly indicate or clearly establish
the appropriateness of an instruction that the duty of the prosecution arises. (pp. 27-32)
5. The Court next considers defendant’s constitutional and public policy arguments, which are founded upon her
interpretation of this Court’s decision in Quinlan. To defendant, Quinlan stands for the proposition that an employee
has a legally recognized right to take confidential employer documents for use in employment discrimination
litigation, and, accordingly, criminal prosecution for that act is barred by due process principles and public policy.
However, the Court’s decision in Quinlan did not endorse self-help as an alternative to the legal process in
employment discrimination litigation. Nor did Quinlan address any issue of criminal law. Indeed, nothing in
Quinlan states or implies that the anti-discrimination policy of the LAD immunizes from prosecution an employee
who takes his or her employer’s documents for use in a discrimination case. Accordingly, no constitutional
argument or consideration of public policy compels the dismissal of defendant’s indictment. (pp. 33-45)
6. Notwithstanding the inapplicability of Quinlan to criminal proceedings, defendant may assert that her intent to
use the documents at issue in support of her employment discrimination claim gives rise to a “claim of right”
defense or other justification, if the evidence at trial supports such an assertion. The trial court will be in a position
to evaluate any such assertion in the setting of a full record regarding defendant’s conduct, the content of the
documents, the Board’s policies regarding the records, and the impact of federal and state privacy laws. (pp. 45-49)
The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court
for proceedings consistent with this opinion.
ALBIN, J., DISSENTING, expresses the view that defendant’s motive for removing the documents was
not disclosed to the grand jury, and that the prosecutor suppressed relevant information sought by the grand jury,
thereby denying defendant her right to a fair grand jury presentation. Justice Albin also would require the grand jury
to be charged on a claim-of-right defense provided evidence suggests that defendant took the documents under a
lawful claim of right for the purpose of pursuing a LAD and CEPA action.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE ALBIN filed a
separate, dissenting opinion.
2
SUPREME COURT OF NEW JERSEY
A-68 September Term 2013
073793
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IVONNE SAAVEDRA,
Defendant-Appellant.
Argued November 10, 2014 – Decided June 23, 2015
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 433
N.J. Super. 501 (App. Div. 2013).
Mario M. Blanch argued the cause for
appellant (Mr. Blanch, attorney; Mr. Blanch
and Valerie Steiner, on the brief).
Stephanie Davis Elson, Assistant Prosecutor,
argued the cause for respondent (Gaetano T.
Gregory, Acting Hudson County Prosecutor,
attorney).
Neil M. Mullin argued the cause for amicus
curiae National Employment Lawyers
Association/New Jersey (Smith Mullin,
attorneys; Mr. Mullin and Nancy Erika Smith,
on the brief).
Brian J. Uzdavinis, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General).
Cynthia J. Jahn, General Counsel, argued the
cause for amicus curiae New Jersey School
Boards Association (Ms. Jahn and Donna M.
Kaye, on the brief).
1
Mitchell L. Pascual argued the cause for
amicus curiae North Bergen Board of
Education (Chasan Leyner & Lamparello,
attorneys; Mr. Pascual, Michael D. Witt, and
Reka Bala, on the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
In this appeal, we review the trial court’s denial of
defendant Ivonne Saavedra’s motion to dismiss her indictment for
official misconduct and theft by unlawful taking of public
documents. We also consider defendant’s constitutional and
public policy challenges to the official misconduct and theft
statutes as they apply to her case.
Defendant, an employee of the North Bergen Board of
Education (Board), filed an action asserting statutory and
common law employment discrimination claims against the Board.
In the course of discovery in that action, defendant’s counsel
produced several hundred documents that allegedly had been
removed or copied from the Board’s files, and were in
defendant’s possession. According to the Board, the documents
taken from its files included original and photocopied versions
of highly confidential student educational and medical records
that were protected by federal and state privacy laws. The
Board reported the alleged theft of its documents to the county
prosecutor.
The State presented the matter to a grand jury. A Board
attorney testified before the grand jury about defendant’s
2
position with the Board, the Board’s discovery through the civil
litigation that defendant had possession of original and copied
documents from its files, and the privacy implications of
defendant’s alleged appropriation of the documents. The grand
jury indicted defendant for official misconduct and theft by
unlawful taking.
Defendant moved to dismiss the indictment. She argued that
the State failed to present evidence sufficient to support the
indictment and withheld from the grand jury exculpatory evidence
about defendant’s motive in taking the documents. She also
contended that because the documents were taken for use in her
employment discrimination litigation, this Court’s decision in
Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010), immunized
her conduct as a matter of public policy and prohibited the
State from prosecuting her. The trial court denied the motion,
and the Appellate Division affirmed the trial court’s
determination.
We affirm the judgment of the Appellate Division. We hold
that the trial court properly denied defendant’s motion to
dismiss her indictment. We conclude that the State presented to
the grand jury a prima facie showing with respect to the
elements of each offense charged in the indictment and that the
State did not withhold from the grand jury exculpatory
information or a charge regarding a defense that it was
3
compelled by law to present. We further hold that defendant’s
indictment does not violate due process standards or New Jersey
public policy by conflicting with this Court’s decision in
Quinlan. The Quinlan case, arising from a plaintiff employee’s
claim that her employment was terminated after she took
documents belonging to her employer and used them in her
employment discrimination litigation, concerned the legal
standard that governs certain retaliation claims under the New
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42.
Quinlan does not govern the application of the criminal laws at
issue in this appeal.
Our decision does not preclude defendant from asserting, as
an affirmative defense before the petit jury at trial, that she
has a claim of right or other justification based on New
Jersey’s policy against employment discrimination, because she
removed the documents from her employer’s premises in order to
use them to prosecute her civil claim. The trial court will be
in a position to evaluate any such assertion in the setting of a
full record regarding defendant’s conduct, the content of the
documents, the Board’s policies regarding the records, and the
impact of federal and state privacy laws.
I.
In 1998, defendant was employed by the Board as a clerk.
For the first ten years of her employment, she was assigned to
4
the Board’s payroll department. In 2008, defendant was
transferred to Lincoln School, where she was assigned to support
the child study team, a group composed of professionals
evaluating the individual needs of children with learning
disabilities. At some point during defendant’s employment, her
son, Jeffrey Saavedra, became a part-time employee of the Board.
The Board represents that its handling of student records
to which defendant had access is governed by the federal Family
Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C.A.
§ 1232g, as well as the state pupil records statute, N.J.S.A.
18A:36-19, and implementing regulations codified at N.J.A.C.
6A:32-7.1 to -7.8. The Board states that FERPA and its New
Jersey counterpart impose strict confidentiality requirements
barring disclosure of a broad range of student records,
including records of services provided to students with
disabilities. Tracking the language of N.J.A.C. 6A:32-
7.5(e)(7), the Board promulgated a privacy policy governing
defendant and other support staff:
Secretarial and clerical personnel under the
direct supervision of certified school
personnel shall be permitted access to those
portions of [a pupil’s record] to the extent
that is necessary for the entry and recording
of data and the conducting of routine clerical
tasks. Access shall be limited only to those
pupil files which such staff are directed to
enter or record information and shall cease
when the specific assigned task is completed.
5
Further, the Board’s Code of Ethics requires staff to “[k]eep
the trust under which confidential information may be given,”
and to “[p]rotect and care for district property.” The State
maintains that by virtue of the Board’s internal policies,
guidelines and regulations, Board employees including defendant
were made aware that student records were highly confidential
and that the disclosure of such records was strictly prohibited.
On November 25, 2009, defendant and her son filed an action
in the Law Division against the Board and three individual
defendants. In their complaint, defendant and her son alleged
that during the course of her employment, she had complained
about the Board’s alleged “violations of the law and public
policy,” including “[p]ay irregularities,” improper
administration of employee vacation and family leave, violations
of unspecified “child study regulations” and “unsafe conditions”
at a Board facility.1 The complaint included allegations that in
1 In particular, defendant alleged that the Board and the
individual defendants denied her overtime; forced her to
“repeatedly go into [] dusty and musty rooms which caused asthma
attacks”; “[o]verload[ed]” her with work; denied her “paid time
off to attend a volunteer DARE session”; “[v]erbally abus[ed]
and harass[ed]” her; “[f]alsif[ied] work assignments”; refused
to allow her to eat lunch with her son, Jeffrey; harassed her
“regarding parking spaces”; “[f]alsif[ied] the dates on [her]
weekly assignments”; “[f]orc[ed] [her] to clean the kitchen”;
made her commence work early without overtime; denied her
“vacation or change of vacation days”; gave her “adverse work
assignments”; denied her the “flexibility afforded to other
employees”; “[b]lam[ed] [her] for any mistakes in the office”;
denied her the opportunity to take breaks; “[b]erated [her] for
6
retaliation for her complaints, and because of her race,
ethnicity, national origin and gender, the Board and its
employees denied benefits to defendant and her son, compelled
them to work in an unsafe and hostile environment, and
terminated the employment of defendant’s son and his girlfriend.
They premised their claims on the LAD, the Conscientious
Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, the
federal Civil Rights Act, 42 U.S.C.A. § 1983, the New Jersey
Civil Rights Act, N.J.S.A. 10:6-1 to -2, the federal Fair Labor
Standards Act of 1938, 29 U.S.C.A. §§ 201-19, the New Jersey
State Wage and Hour Law, N.J.S.A. 34:11-56a to -56a38, the
federal Family and Medical Leave Act, 29 U.S.C.A. §§ 2612-54,
and the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 to -16.
They also asserted common law theories based on violations of
public policy, conspiracy to violate civil rights, and
intentional infliction of emotional distress. Defendant and her
son sought compensatory and punitive damages, injunctive relief
and attorneys’ fees against the Board and the individuals.
taking vacation time to visit her ailing [mother] in the
hospital”; did not allow Jeffrey to eat lunch in the kitchen;
did not allow Jeffrey “to do night summer hours”; and “advised
Jeffrey, when he attempted to explain his case, that they were
calling the police to remove him.” Defendant further alleges
that one of the individual defendants “menac[ed] Jeffrey with
her car.”
7
It is undisputed that, without the Board’s permission,
defendant removed documents from the Board’s office. The State
contends that the documents consisted of three hundred and
sixty-seven confidential student records. It alleges that in
the case of sixty-nine of the documents, defendant did not
photocopy documents and leave the files intact, but instead
removed the original file copies from the premises. The record
does not disclose the time period during which defendant
collected the records.
By letter dated June 22, 2011, approximately a year and a
half after defendant’s employment discrimination complaint was
filed, defendant’s counsel in that matter provided copies of the
confidential documents to the Board’s counsel “in response to
[the Board’s] requests for all documents in [defendant’s]
possession which may include confidential and/or privileged
information.”2 Counsel for the Board in the employment
discrimination matter contacted Jack Gillman (Gillman), the
attorney for the Special Services Division of the Board, and
alerted him to defendant’s production of the Board’s documents
in her civil case. Gillman then contacted the county
prosecutor’s office and notified it of the Board’s allegation
that defendant had taken confidential documents belonging to the
2 The record does not reveal what prompted counsel for the Board
to request that defendant’s counsel produce the documents.
8
Board for use in her civil case. The county prosecutor
determined to pursue charges against defendant.
On April 24, 2012, the State presented evidence in
defendant’s case to a grand jury. Gillman, the State’s sole
witness, testified about defendant’s employment with the Board.
He explained that the Board learned that defendant had
confidential Board documents when the Board’s attorney in
defendant’s civil lawsuit received certain documents in
discovery and questioned Gillman about them. Gillman stated
that he told the Board’s attorney that “the information in those
documents was highly confidential, very sensitive, and we needed
to act on that immediately.”
Before the grand jury, Gillman specifically discussed five
of the documents taken by defendant. He identified one as a
bank statement that revealed an account number and balance,
which had been submitted by the parent of a student in order to
prove the child’s residency in North Bergen. Gillman described
a second document as an appointment schedule for the school
psychiatrist that revealed the names of students being treated
by the psychiatrist, and a reference to one student’s
medication. He identified a third document taken by defendant
as a consent form, signed by a student’s parent, by which the
parent agreed to the release of information to secure Medicaid
reimbursement for special education services. Gillman
9
identified two other documents as letters from parents of
students receiving services and testified about the private
information in the letters concerning the students, their
families and the services that they received. With respect to
each example, Gillman stated that defendant was not permitted to
have the document outside the scope of her employment. Gillman
generally described the Board policies barring employees from
disclosing confidential documents, but the State did not present
those policies in written form to the grand jury.
At the close of his examination of Gillman, the prosecutor
asked the grand jurors whether they had questions for the
witness. A grand juror asked, “[w]hen did she take out these
documents? What’s she going to do with them? The documents,
what she do with them?” The prosecutor replied that he did not
believe that Gillman could “speculate as to what [defendant] was
going to do with the actual documents.” Later in the
proceeding, as the prosecutor discussed the elements of the
offenses of official misconduct and theft, a grand juror
interposed a question: “[w]hat -- I’m just curious. I thought
I heard someone either say that she was going to sue the Board.”
The prosecutor replied, “[y]es, ma’am.” The grand juror stated,
“[b]ut how is that relevant -- or was she -- I was just wanting
to see how it was --.” Following an off-the-record discussion
10
among the grand jurors, the prosecutor stated, “I believe you
answered your own question.”
The grand jury returned a two-count indictment, charging
defendant with second-degree official misconduct, N.J.S.A.
2C:30-2(a), and third-degree theft by unlawful taking of public
documents, N.J.S.A. 2C:20-3(a) and N.J.S.A. 2C:20-2(b)(2)(g).
On an unspecified date following her indictment, defendant
voluntarily dismissed her employment discrimination action. On
appeal, defendant’s counsel represented that defendant dismissed
the discrimination action because the attorney representing her
in that action did not want to proceed with it.
Defendant moved to dismiss the indictment. She contended
that her removal of documents from the Board’s files for use in
her employment discrimination claim was sanctioned by this
Court’s decision in Quinlan, and that a decision upholding the
indictment would chill the pursuit of discrimination claims.
The State argued that Quinlan was irrelevant to a criminal
prosecution, that the indictment was not manifestly deficient or
palpably defective, and that the State had not failed to present
exculpatory evidence that squarely refuted an element of either
of the charged offenses.
The trial court denied the motion to dismiss the
indictment. It reasoned that defendant had served as a
fiduciary for the public in her handling of student documents,
11
and that the State had presented a prima facie showing as to the
elements of each offense. Although the trial court stated that
it considered defendant’s reliance on Quinlan to be misplaced,
it nonetheless analyzed the indictment in accordance with the
standard set forth in that decision and found that defendant’s
collection of the documents was not excused by that standard.
An Appellate Division panel granted defendant’s motion for
leave to appeal. The panel affirmed the trial court’s denial of
defendant’s motion to dismiss the indictment. State v.
Saavedra, 433 N.J. Super. 501, 507 (App. Div. 2013). It agreed
with the trial court that the State presented sufficient
evidence to the grand jury to establish a prima facie case with
respect to the elements of official misconduct and theft. Id.
at 507-08. The panel rejected plaintiff’s argument that the
State had an obligation to present exculpatory evidence
regarding defendant’s intent to use the documents in her civil
suit, reasoning that evidence about that lawsuit would not be
clearly exculpatory in the criminal case. Id. at 522-24.
Noting that the disputed student records contained no “smoking
gun” evidence against the Board, the Appellate Division panel
stated that Board documents could have been obtained through
normal discovery procedures. Id. at 526-27. The panel rejected
defendant’s argument that was premised on Quinlan, reasoning
that the standard of Quinlan is limited to civil cases. Id. at
12
507-08, 516. It noted that defendant may assert, before the
petit jury at trial, her claim that she had made an “honest
error” and that she had a claim of right to the documents. Id.
at 520-21.
One member of the Appellate Division panel dissented,
reasoning that defendant’s taking of the documents was protected
activity under the LAD, CEPA, and Quinlan. Id. at 531(Simonelli, J.A.D., dissenting). The dissenting judge opined
that, as applied to this case, the official misconduct and theft
statutes failed to put a reasonable person on notice that an
employee’s collection of documents from her employer for use in
discrimination litigation could subject the employee to criminal
prosecution, and that in light of Quinlan, defendant’s
indictment violated standards of fundamental fairness. Id. at
535-36.
We granted defendant’s motion for leave to appeal. 217
N.J. 289 (2014). We also entered a stay of defendant’s trial
pending resolution of her appeal.
II.
Defendant urges the Court to reverse the Appellate Division
panel’s judgment and dismiss the indictment. Defendant argues
that the State failed to present a prima facie case to the grand
jury. She contends that the panel’s decision contravenes the
anti-discrimination policies of the LAD, CEPA, and the Court’s
13
decision in Quinlan, and that it authorizes employers to
circumvent the Quinlan balancing test by reporting an employee’s
collection of documents as a theft to a prosecutor. Finally,
defendant asserts that the official misconduct and theft
statutes are constitutionally infirm as applied to her case
because they violate due process and fundamental fairness
standards, and because they are too vague to give a reasonable
person notice as to the conduct that the laws prohibit.
The State argues that the Appellate Division panel properly
resolved the issues before it. Noting that defendant does not
challenge the adequacy of the evidence presented to the grand
jury on the charge of theft, the State contends that it
presented sufficient evidence to support the grand jury’s return
of an indictment on both charges. It asserts that the balancing
test of Quinlan is inapplicable to criminal cases and that even
under that test, defendant has failed to demonstrate that the
documents taken were relevant to her civil case. The State
disputes defendant’s contention that the official misconduct and
theft statutes violate fundamental fairness and vagueness
standards as applied to this case, arguing that it is not
inherently unfair to prosecute a public employee for the
wholesale removal of confidential documents from her employer’s
files, and that a person of ordinary intelligence is on notice
that such conduct is unlawful.
14
Amicus curiae National Employment Lawyers Association/New
Jersey (NELA) argues that the Appellate Division’s decision has
a chilling effect on whistleblowers, as well as their attorneys,
who could be exposed to charges of receiving stolen property.
NELA contends that the panel’s decision undermines the policies
of the LAD and CEPA. It argues that the official misconduct and
theft by unlawful taking statutes violate due process norms and
are unconstitutionally vague.
Appearing as amicus curiae, the Board supports the State’s
argument that Quinlan is irrelevant to this case. It
characterizes the records at issue in this case as uniquely
entitled to protection from theft, by virtue of the strict
confidentiality provisions of FERPA and its New Jersey
counterpart. The Board argues that defendant violated its
internal confidentiality policies, which restrict employees’
access to and use of student records.
Amicus curiae New Jersey School Boards Association (NJSBA)
similarly relies on the special status of student records under
FERPA and analogous state laws. NJSBA submits that federal and
state laws protect the privacy of students provided with
services under the Individuals with Disabilities Education Act.
See 20 U.S.C.A. § 1417(c). NJSBA identifies sensitive
information that is included in student records, particularly
the records of students receiving special services, and argues
15
that the removal of such records from the Board’s files
imperiled federal funding on which the North Bergen schools
rely.
Amicus curiae Attorney General of New Jersey addresses
defendant’s constitutional arguments. The Attorney General
contends that New Jersey’s official misconduct and theft
statutes are not unconstitutionally vague and that the LAD,
CEPA, and this Court’s decision in Quinlan do not justify or
condone the appropriation of employer documents for use in anti-
discrimination litigation. The Attorney General argues that, at
most, Quinlan may provide to defendant a claim of right or other
justification defense at trial.
III.
The trial court’s decision denying defendant’s motion to
dismiss her indictment is reviewed for abuse of discretion.
State v. Hogan, 144 N.J. 216, 229 (1996) (citing State v.
Weleck, 10 N.J. 355, 364 (1952)). “A trial court’s exercise of
this discretionary power will not be disturbed on appeal ‘unless
it has been clearly abused.’” State v. Warmbrun, 277 N.J.
Super. 51, 60 (App. Div. 1994) (quoting Weleck, supra, 10 N.J.
at 364), certif. denied, 140 N.J. 277 (1995). Accordingly, we
first consider whether the trial court properly exercised its
discretion when it held that the State presented a prima facie
showing on the elements of the official misconduct and theft
16
offenses charged and that the State did not withhold from the
grand jury exculpatory evidence that it had a duty to present.
A.
The grand jury determination under review serves a crucial
function in our criminal justice system. The New Jersey
Constitution guarantees that a defendant will not be compelled
to stand trial unless the State has presented the matter to a
grand jury and the grand jury has returned an indictment. State
v. Morrison, 188 N.J. 2, 12 (2006) (citing N.J. Const. art. I, ¶
8)). The grand jury “is an accusative rather than an
adjudicative body,” whose task is to “‘assess whether there is
adequate basis for bringing a criminal charge.’” Hogan, supra,144 N.J. at 229-30 (quoting United States v. Williams, 504 U.S.
36, 51, 112 S. Ct. 1735, 1744, 118 L. Ed 2d 352, 368 (1992)).
“To fulfill its ‘constitutional role of standing between
citizens and the State,’ the grand jury is asked to determine
whether ‘a basis exists for subjecting the accused to a trial.’”
Id. at 227 (quoting State v. Del Fino, 100 N.J. 154, 164 (1985);
Trap Rock Indus., Inc. v. Kohl, 59 N.J. 471, 487 (1971), cert.
denied, 405 U.S. 1065, 92 S. Ct. 1500, 31 L. Ed. 2d 796 (1972)).
“The absence of any evidence to support the charges would render
the indictment ‘palpably defective’ and subject to dismissal.”
Morrison, supra, 188 N.J. at 12 (citing Hogan, supra, 144 N.J.
at 228-29).
17
A trial court deciding a motion to dismiss an indictment
determines “whether, viewing the evidence and the rational
inferences drawn from that evidence in the light most favorable
to the State, a grand jury could reasonably believe that a crime
occurred and that the defendant committed it.” Id. at 13
(citing State v. Reyes, 50 N.J. 454, 459 (1967)). A court
“should not disturb an indictment if there is some evidence
establishing each element of the crime to make out a prima facie
case.” Id. at 12 (citing Hogan, supra, 144 N.J. at 236; State
v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987)).
Our inquiry in this appeal is thus a narrow one. With the
evidence and the rational inferences from that evidence viewed
in the light most favorable to the State, we determine whether
the trial court abused its discretion when it found that the
State presented evidence sufficient to establish a prima facie
case on the elements of the relevant offenses, and that it did
not withhold exculpatory evidence from the grand jury or fail to
present to the grand jury a defense of justification that should
have been presented.
B.
The first offense for which defendant was indicted is
official misconduct. N.J.S.A. 2C:30-2. The statute provides:
A public servant is guilty of official
misconduct when, with purpose to obtain a
18
benefit for himself or another or to injure or
to deprive another of a benefit:
a. He commits an act relating to his
office but constituting an unauthorized
exercise of his official functions,
knowing that such act is unauthorized or
he is committing such act in an
unauthorized manner; or
b. He knowingly refrains from performing
a duty which is imposed upon him by law
or is clearly inherent in the nature of
his office.
[N.J.S.A. 2C:30-2.]
New Jersey’s official misconduct statute, enacted as part of the
Code of Criminal Justice (Code) in 1979, is based on a New York
statute, and was intended “‘to consolidate the law as to
malfeasance [subsection (a)] and non-feasance [subsection (b)]
by public servants.’” State v. Hinds, 143 N.J. 540, 545 (1996)
(quoting Cannel, New Jersey Criminal Code Annotated, comment 1
on N.J.S.A. 2C:30-2 (1996-1997)).
The State alleged before the grand jury that defendant
violated subsection (a) of the official misconduct statute.
N.J.S.A. 2C:30-2(a).3 To establish a prima facie case with
respect to that offense, the State was required to present
3 Official misconduct is a second-degree crime unless the value
of the benefit obtained or deprived is “$200 or less,” in which
case it is a third-degree crime. N.J.S.A. 2C:30-2; State v.
Phelps, 187 N.J. Super. 364, 373 (App. Div. 1983), aff’d, 96
N.J. 500 (1984). Defendant was indicted for official misconduct
in the second degree.
19
evidence that: (1) defendant was a “public servant” within the
meaning of the statute (2) who, with the purpose to obtain a
benefit or deprive another of a benefit, (3) committed an act
relating to but constituting an unauthorized exercise of her
office, (4) knowing that such act was unauthorized or that she
was committing such act in an unauthorized manner. State v.
Thompson, 402 N.J. Super. 177, 191-92 (App. Div. 2008) (citing
State v. Bullock, 136 N.J. 149, 153 (1994); State v.
Schenkolewski, 301 N.J. Super. 115, 143 (App. Div.), certif.
denied, 151 N.J. 77 (1997)); see also Hinds, supra, 143 N.J. at
545 (observing commentary of New Jersey Criminal Law Revision
Commission as to elements of subsection (a) (quoting Cannel,
supra, comment 2 to N.J.S.A. 2C:30-2)).
The Legislature broadly defined a “public servant” as “any
officer or employee of government, including legislators and
judges, and any person participating as juror, advisor,
consultant or otherwise, in performing a governmental function,
but the term does not include witnesses.” N.J.S.A. 2C:27-1(g).
Construing that expansive statutory language, our courts have
applied N.J.S.A. 2C:30-2 to defendants serving in a range of
official roles, including administrative positions. See, e.g.,
State v. Perez, 185 N.J. 204, 205-07 (2005) (holding head clerk
at motor vehicle agency is “public servant” notwithstanding her
employer’s status as private company managing agency under
20
contract with State); Bullock, supra, 136 N.J. at 156 (holding
police officer who was suspended from duty is “public servant”);
State v. Parker, 124 N.J. 628, 641 (1991) (holding teacher is
“public servant”); State v. Quezada, 402 N.J. Super. 277, 283-84
(App. Div. 2008) (finding that volunteer firefighter is “public
servant” in setting of case).
With respect to that first element of the offense of
official misconduct under N.J.S.A. 2C:30-2(a), the State
presented evidence of defendant’s employment by the Board as a
clerk, first in the payroll department and then supporting the
Special Services Division of the Board. Defendant does not
dispute that she is an “officer or employee of government” as
defined in N.J.S.A. 2C:27-1(g). She argues, instead, that only
employees who exercise public authority should be subject to
prosecution for official misconduct. However, neither the
statutory text nor our case law supports this narrow view of the
“public servant” element of the offense. See N.J.S.A. 2C:30-
2(a); N.J.S.A. 2C:27-1(g); Perez, supra, 185 N.J. at 206 (noting
broad definition of “public servant” in official misconduct
statute); see also Quezada, supra, 402 N.J. Super. at 283-84
(finding element proven when defendant served governmental
function). In this case, the State presented to the grand jury
a prima facie showing with respect to the first element of the
offense of official misconduct.
21
Next, the State had the burden to present to the grand jury
a prima facie showing that defendant acted “with purpose to
obtain a benefit for himself or another or to injure or deprive
another of a benefit” as an element of an official misconduct
offense under N.J.S.A. 2C:30-2. The Legislature defined a
“benefit” as “gain or advantage, or anything regarded by the
beneficiary as gain or advantage.” N.J.S.A. 2C:27-1(a). That
definition includes pecuniary benefit, defined as a “benefit in
the form of money, property, commercial interests or anything
else the primary significance of which is economic gain.”
N.J.S.A. 2C:27-1(f). It has also been held to encompass a
variety of non-pecuniary benefits. See, e.g., Parker, supra,124 N.J. at 641 (holding defendant’s personal gratification
derived from exposing students to sexually explicit material and
discussion is benefit); State v. Stevens, 115 N.J. 289, 306-07
(1989) (holding illegal strip search to satisfy sexual desire is
benefit); Quezada, supra, 402 N.J. Super. at 285 (holding “joy
of responding to fires as a volunteer firefighter” is benefit).
Before the grand jury, the State presented evidence that
defendant removed documents from the Board’s files in order to
use them in her discrimination litigation against the Board.
Gillman testified that some of the documents removed from the
Board’s files were its originals and that the Board was
potentially exposed to sanctions under federal and state privacy
22
laws by virtue of her conduct. Defendant contends that the
purpose of her conduct was nothing more than to proceed with her
lawsuit and that the State presented no evidence that she
actually derived a financial benefit or personal gratification
from her conduct.
The official misconduct statute does not require that the
defendant actually gain a benefit. It merely requires that he
or she act “with purpose to obtain a benefit for himself” or
herself, whether or not that purpose was ultimately achieved.
See N.J.S.A. 2C:30-2; see also ibid. (referring in grading
provision to “benefit obtained or sought to be obtained”). If,
as the State and defendant agree, defendant took her employer’s
documents for use in her employment discrimination claims, the
trial court properly concluded that she acted with a “purpose”
to “obtain a benefit” for herself. Ibid. Thus, considering the
evidence and the rational inferences from that evidence in the
light most favorable to the State, the State has presented a
prima facie showing with respect to the second element of
official misconduct.
Third, the State was required to present prima facie
evidence that the defendant has committed “an act relating to
[her] office but constituting an unauthorized exercise of [her]
official functions.” N.J.S.A. 2C:30-2(a). That standard
distinguishes between conduct that relates to the public
23
servant’s office and a public servant’s purely private
misconduct. See Hinds, supra, 143 N.J. at 549 (observing “not
every offense committed by a public official involves official
misconduct”). For example, this Court has noted that an act
“sufficiently relates” to law enforcement officers’ public
office when they “commit an act of malfeasance because of the
office they hold or because of the opportunity afforded by that
office . . . .” Bullock, supra, 136 N.J. at 157; see also State
v. Kueny, 411 N.J. Super. 392, 407-08 (App. Div. 2010) (holding
“misconduct must somehow relate to the wrongdoer’s public
office” and off-duty officer’s illegal use of another’s ATM card
“does not constitute misconduct in office”).
Addressing that element, Gillman testified that the
documents taken originated in the Board’s files and were
obtained by defendant through her employment. He also told the
grand jury that the documents contained highly confidential and
private information about students, that defendant was not given
permission to have them in her personal possession, and that
defendant’s conduct violated the Board’s confidentiality
policies. That testimony gave rise to a prima facie showing
that defendant’s conduct directly related to her public
employment, and that the manner in which she allegedly handled
the Board’s documents was unauthorized by her employer.
24
Finally, the State was required to present a prima facie
showing that defendant knew “that such act [was] unauthorized or
[she was] committing such act in an unauthorized way.” N.J.S.A.
2C:30-2(a). As this Court noted, the New Jersey Criminal Law
Revision Commission envisioned that “‘the public servant must
know that such act is unauthorized . . . because it is declared
to be such by statute, ordinance, rule, regulation or
otherwise.’” Hinds, supra, 143 N.J. at 545 (quoting Cannel,
supra, comment 2 on N.J.S.A. 2C:30-2). In that regard, Gillman
testified that by virtue of the Board’s internal confidentiality
policies, employees are trained and informed that the documents
at issue are highly confidential and must not be tampered with.
His testimony and the rational inferences from that testimony,
viewed in the light most favorable to the State, serves as a
prima facie showing on this final element of the offense of
official misconduct. Thus, the State met its burden to present
prima facie evidence on all four of the elements of official
misconduct in violation of N.J.S.A. 2C:30-2(a).
N.J.S.A. 2C:20-3(a) defines the second offense in the
indictment returned by the grand jury, theft by unlawful taking
of movable property: “A person is guilty of theft if he
unlawfully takes, or exercises unlawful control over, movable
property of another with purpose to deprive him thereof.”
25
The offense of theft “constitutes a crime of the third degree if
. . . [i]t is of a public record, writing or instrument kept,
filed or deposited according to law with or in the keeping of
any public office or public servant.” N.J.S.A. 2C:20-
2(b)(2)(g). Pursuant to that provision, defendant was indicted
for theft in the third degree.
Gillman testified that defendant collected several hundred
confidential records from her employer, in contravention of the
employer’s policy. The State, therefore, presented a prima
facie case regarding the element of the offense that defendant
“unlawfully takes, or exercises unlawful control over, movable
property of another.” N.J.S.A. 2C:20-3(a). Moreover, Gillman
told the grand jury that a significant portion of those
documents were the Board’s “original” copies. Gillman explained
that some of the documents that he characterized as “originals”
bore “an ink signature,” and others were photocopies that served
as the Board’s sole file copy, the removal of which left the
Board without the document in its files. Thus, the State
presented prima facie evidence that defendant took the documents
“with purpose to deprive” the Board of them. Finally, the State
presented evidence that the documents constituted “public
record[s], writing[s] or instrument[s] kept . . . according to
law with or in the keeping of any public office or public
26
servant,” thus satisfying the “public record” element of
N.J.S.A. 2C:20-3 for the third-degree offense.
Accordingly, we concur with the trial court and the
Appellate Division that the State met its burden of presenting a
prima facie case with respect to each element of both offenses
for which the grand jury indicted defendant.
C.
We also consider whether the trial court abused its
discretion when it decided that the State did not withhold from
the grand jury clearly exculpatory evidence that would negate
defendant’s guilt as to one or both offenses, see Hogan, supra,144 N.J. at 237, and whether the State properly did not charge
the grand jury as to a defense, see State v. John Hogan, 336
N.J. Super. 319, 341-42 (App. Div.), certif. denied, 167 N.J.
635 (2001).
The prosecutor’s duty to present exculpatory evidence to a
grand jury is very closely circumscribed. The State is required
to present such evidence “in the rare case in which . . .
evidence . . . both directly negates the guilt of the accused
and is clearly exculpatory;” the evidence must “squarely
refute[] an element of the crime.” Hogan, supra, 144 N.J. at
237 (emphasis in original). “[T]he prosecutor need not
construct a case for the accused or search for evidence that
would exculpate the accused.” Id. at 238. It is “[o]nly when
27
the prosecuting attorney has actual knowledge of clearly
exculpatory evidence that directly negates guilt must such
evidence be presented to the grand jury.” Ibid. As the Court
observed:
Ascertaining the exculpatory value of evidence
at such an early stage of the proceedings can
be difficult, see, e.g., Wayne R. L[a]Fave and
Jerold H. Israel, Criminal Procedure §
15.4(d), at 318 (1984), and courts should act
with substantial caution before concluding
that a prosecutor’s decision in that regard
was erroneous. We emphasize that only in the
exceptional case will a prosecutor’s failure
to present exculpatory evidence to a grand
jury constitute grounds for challenging an
indictment.
[Id. at 238-39.]
In this case, defendant contends that the State improperly
withheld from the grand jury evidence that she collected her
employer’s documents for purposes of her employment
discrimination case. Although defendant’s civil litigation was
not emphasized in the presentation to the grand jury, Gillman
testified that defendant had an “outstanding” lawsuit against
the Board, and that he learned about the disputed documents
after they were provided by defendant’s attorney to the Board’s
counsel in that lawsuit. The prosecutor had no obligation to
suggest to the grand jury that defendant thought that because
she maintained an employment discrimination claim, her conduct
28
was sanctioned by law.4 Neither official misconduct nor theft by
unlawful taking includes an element that would be “squarely
refuted” by proof that defendant intended to use the documents
to support her employment discrimination claim. This is not the
“exceptional” case in which clearly exculpatory evidence was
known to the prosecutor and improperly withheld. See Hogan, 144
N.J. at 238-39.
Our dissenting colleague concurs with our conclusion that
the prosecutor did not withhold exculpatory evidence in
violation of Hogan, supra, 144 N.J. at 238-39, but contends
instead that “[b]y suppressing a grand juror’s legitimate
questions and rationing the evidence, the prosecutor allowed a
distorted picture of Saavedra’s motives.” Post at ___ (slip op.
at 6). We agree with the Appellate Division that the grand jury
was not misled by the prosecutor’s response to one juror’s
inquiry about defendant’s employment discrimination case. The
prosecutor did not block the grand juror’s questions, but
cautioned his witness, who had already provided the grand jury
with the limited information available to him about the nexus
4 Although defendant cited Quinlan in her motion to dismiss her
indictment before the trial court and on appeal, the record
contains no assertion on her behalf that when she took the
documents from her employer, she understood Quinlan to authorize
her conduct. Indeed, it is unclear whether defendant collected
the documents from the Board before or after this Court decided
Quinlan.
29
between the documents and defendant’s lawsuit, from speculating
about defendant’s motive.
The grand juror’s initial questions -- when defendant took
the documents, and what she was going to do with them -- were
posed to the State’s sole witness, Board attorney Gillman.
There is no indication that Gillman had information about the
timing of defendant’s removal of the documents, the subject of
the first question. As to the grand juror’s second question --
what defendant intended to do with the documents -- the grand
jury was directly informed about the relationship between
defendant’s litigation and the documents at issue. When the
grand juror asked his or her question, Gillman had already
testified that defendant had sued the Board, and that “there is
a lawsuit outstanding.” Gilman added that he learned about the
documents after they were produced to the Board’s counsel in the
discovery phase of defendant’s lawsuit. Indeed, a subsequent
question by a grand juror, who noted the testimony that
defendant had sued the Board and asked how that testimony was
relevant, confirms that juror’s awareness that defendant had a
civil claim. In short, contrary to the dissent’s contention,
the nexus between defendant’s civil litigation and the documents
was disclosed to the grand jury.
It would have been the better practice for the prosecutor
to direct Gillman to reiterate his testimony that the documents
30
had been produced in defendant’s employment discrimination
action in order to emphasize the connection between the
documents and defendant’s lawsuit. However, the prosecutor was
correct to caution Gillman not to speculate on defendant’s
intent. We cannot conclude on this record that the State’s
handling of the grand juror’s inquiry was misleading or
otherwise improper.
Moreover, contrary to the contention of our dissenting
colleague, the State was not obligated to charge the grand jury
regarding the legal standard that governed a potential defense
based on justification. The Appellate Division, in John Hogan,
supra, correctly observed that “a prosecutor’s obligation to
instruct the grand jury on possible defenses is a corollary to
his responsibility to present exculpatory evidence.” 336 N.J.
Super. at 341. However, the panel further opined:
By its very nature, the grand jury does not
consider a full and complete adversarial
presentation, “and the instructions are not
made after consideration [and with the
benefit] of the views of the defense.” State
v. Schmidt, 213 N.J. Super. 576, 584 (App.
Div. 1986), rev’d on other grounds, 110 N.J.
258 (1988). We do not believe that the
prosecutor has the obligation on his own
meticulously to sift through the entire record
of investigative files to see if some
combination of facts and inferences might
rationally sustain a defense of justification.
Cf. State v. Choice, 98 N.J. 295, 299 (1985).
[Id. at 343 (alterations in original).]
31
Consequently, “it is only when the facts known to the
prosecutor clearly indicate or clearly establish the
appropriateness of an instruction that the duty of the
prosecution arises.” Id. at 343-44 (citing Choice, supra, 98
N.J. at 299; State v. Bell, 589 P.2d 517, 518 (Haw. 1978), rev’d
on other grounds, State v. Chong, 949 P.2d 122 (Haw. 1997)); see
also Pressler & Verniero, Current N.J. Court Rules, comment
3.4.2. to R. 3:10-2 (2015).
The principle stated by the Appellate Division in John
Hogan applies here. In her motion to dismiss the indictment,
defendant presented no facts that clearly warranted an
instruction on the issue of justification. She argued only that
she removed the documents for a lawful use sanctioned by Quinlan
-- the prosecution of her civil lawsuit. There is nothing in
the record of the grand jury proceeding, or in the record before
this Court, that suggests that defendant was motivated by
Quinlan when she took the Board’s documents from its premises.
Indeed, it is unclear that Quinlan had even been decided when
defendant’s alleged misconduct took place. Moreover,
notwithstanding the fact that defendant’s lawsuit was focused on
her compensation and working conditions, she allegedly removed
confidential student records from the Board’s files. The
prosecutor had no duty to present to the grand jury a charge of
justification based on Quinlan.
32
In sum, we agree with the Appellate Division that the trial
court did not abuse its discretion when it concluded that the
State met its burden in the presentation of evidence to the
grand jury, that the State did not withhold clearly exculpatory
evidence from the grand jury, and that the State did not fail to
charge the grand jury as to a justification defense.
IV.
We next consider defendant’s constitutional and public
policy arguments. Defendant contends that the trial court’s
denial of her motion to dismiss her indictment violates
principles of due process in two respects: her prosecution
contravenes the doctrine of fundamental fairness, and as applied
to her case, the official misconduct and theft by unlawful
taking statutes are unconstitutionally vague. Defendant also
contends that her indictment should be dismissed as inconsistent
with New Jersey’s public policy against employment
discrimination.
A.
The doctrine of fundamental fairness “‘serves to protect
citizens generally against unjust and arbitrary governmental
action, and specifically against governmental procedures that
tend to operate arbitrarily.’” Doe v. Poritz, 142 N.J. 1, 108
(1995) (emphasis in original) (quoting State v. Ramseur, 106
N.J. 123, 377 (1987) (Handler, J., dissenting)). This Court has
33
described this doctrine as “‘an integral part of due process’”
that “‘is often extrapolated from or implied in other
constitutional guarantees.’” State v. Miller, 216 N.J. 40, 71
(2013) (quoting Oberhand v. Dir., Div. of Taxation, 193 N.J.
558, 578 (2008)); see also State v. Abbati, 99 N.J. 418, 429
(1985) (explaining underpinnings of doctrine).
The doctrine is applied “‘sparingly’” and only where the
“interests involved are especially compelling”; if a defendant
would be subject “‘to oppression, harassment, or egregious
deprivation,’” it is be applied. Doe, supra, 142 N.J. at 108(quoting State v. Yoskowitz, 116 N.J. 679, 712 (1989)
(Garibaldi, J., concurring and dissenting)). It can be applied
“at various stages of the criminal justice process even when
such procedures were not constitutionally compelled.” Ibid.(citations omitted).5 The doctrine’s “primary considerations
should be fairness and fulfillment of reasonable expectations in
the light of the constitutional and common law goals.”
5 Our courts have occasionally applied the doctrine of
fundamental fairness to dismiss an indictment, typically in
settings in which the indictment follows multiple mistrials or
the State attempts to prosecute a defendant several times for
the same conduct. See, e.g., Abbati, supra, 99 N.J. at 435;
State v. Simmons, 331 N.J. Super. 512, 522-24 (App. Div. 2000);
State v. Dunns, 266 N.J. Super. 349, 378-79 (App. Div.), certif.
denied, 134 N.J. 567 (1993).
34
Yoskowitz, supra, 116 N.J. at 706 (emphasis omitted) (quoting
State v. Currie, 41 N.J. 531, 539 (1964)).
Defendant’s as-applied vagueness challenge to the official
misconduct and theft by unlawful taking statutes requires the
Court to determine whether either statute fails “to give
[defendant] ‘fair warning’ that his or her conduct is
prohibited.” Jenkins v. N.J. Dep’t of Corr., 412 N.J. Super.
243, 257 (App. Div. 2010); see also State v. Lisa, 391 N.J.
Super. 556, 578 (App. Div. 2007), aff’d, 194 N.J. 409, 412
(2008). “Vagueness ‘is essentially a procedural due process
concept grounded in notions of fair play.” State v. Lee, 96
N.J. 156, 165 (1984) (quoting State v. Lashinsky, 81 N.J. 1, 17
(1979)). Here, relying on the opinion of the dissenting
Appellate Division judge, defendant argues that, although the
official misconduct and theft by unlawful taking statutes are
constitutionally precise in other settings, those statutes are
impermissibly vague in her case because they conflict with the
anti-discrimination policies promoted by Quinlan. See Saavedra,
supra, 433 N.J. Super. at 536-37 (Simonelli, J., dissenting).
Defendant’s public policy argument substantially restates
her constitutional contentions. She contends that her
indictment should be dismissed as a matter of public policy
because in Quinlan, this Court “legalized the right of employees
to take confidential documents as a protective measure under the
35
Law Against Discrimination.” She and NELA argue that her
prosecution chills the assertion of LAD and CEPA claims.
Defendant’s constitutional and policy arguments are thus
founded upon her interpretation of this Court’s decision in
Quinlan. To defendant, Quinlan stands for the proposition that
an employee has a legally recognized right to take confidential
employer documents for use in employment discrimination
litigation, and, accordingly, criminal prosecution for that act
is barred by due process principles and public policy.
B.
Given her invocation of her employment discrimination
lawsuit and this Court’s opinion in Quinlan in support of her
constitutional and public policy arguments, defendant’s civil
lawsuit is a pivotal issue in her criminal appeal.
Had she chosen to invoke it, the discovery process
prescribed by our court rules would have afforded to defendant a
fair opportunity to seek documents in support of her case. In
her employment discrimination litigation, defendant was
permitted “discovery regarding any matter, not privileged, which
is relevant to the subject matter involved in [her] pending
action, whether it relates to the claim or defense of the party
seeking discovery or to the claim or defense of any other
party.” R. 4:10-2(a). That rule exists to “advance ‘the public
policies of expeditious handling of cases, avoid[] stale
36
evidence, and provid[e] uniformity, predictability and security
in the conduct of litigation.’” Pressler & Verniero, supra,
comment 1 on R. 4:10-2 (quoting Zaccardi v. Becker, 88 N.J. 245,
252 (1982)).
Even before filing her complaint, defendant had the right
to file a verified petition seeking to “preserve any evidence or
to inspect documents or property or copy documents pursuant to
[Rule] 4:18-1”; upon an appropriate showing, a court order could
have been entered compelling the Board to preserve evidence. R.
4:11-1(a), (c); see Gilleski v. Cmty. Med. Ctr., 336 N.J. Super.
646, 655 (App. Div. 2001) (holding “any person desiring to
preserve evidence prior to institution of an action may seek
such relief by verified petition pursuant to [Rule] 4:11-1(a)”).
The rule is “intended for cases in which there exist[s] a
genuine risk that testimony w[ill] be lost or evidence destroyed
before suit c[an] be filed and in which an obstacle beyond the
litigant’s control prevents suit from being filed immediately.”
In re Hall ex rel. Hall, 147 N.J. 379, 385 (1997). Accordingly,
had defendant been able to substantiate her contention that the
Board might discard or destroy evidence before she filed suit,
she could have obtained relief on an emergent basis.
After her complaint was filed, defendant had access to such
discovery methods as demands for the production of documents, R.
4:18-1, interrogatories, R. 4:17-1 to -8, and deposition notices
37
served upon organizations, R. 4:14-2, among many others. Had
defendant’s requests for discovery been unreasonably opposed,
she could have filed motions to compel discovery, obtain court-
ordered production of documents and impose sanctions. See R.
4:23-1, -2, -5. In the event that a party is found to have
committed spoliation of evidence, a range of sanctions is
available under both our common law and Court Rules. See
Jerista v. Murray, 185 N.J. 175, 201-02 (2005); see also
Pressler & Verniero, supra, comment 3 on R. 4:23-2 (explaining
range of consequences for spoliation including discovery
sanctions under Rule 4:23-2(b)).
Had defendant sought the documents at issue pursuant to our
court rules, the Law Division judge handling her application
would have been in a position to make two important
determinations. First, the judge could have reviewed the
discovery sought against the backdrop of the statutory and
common law claims that defendant asserted and ascertained the
relevance of that discovery to defendant’s case. With a full
record, which is unavailable on this appeal, the judge could
have assessed the relevance of documents from the Board’s
student files to defendant’s claims.
Second, student privacy concerns raised by the disclosure
of the documents could have been addressed by a trial judge
equipped to impose a range of available remedies. If, as the
38
Board and NJSBA contend, the disclosure of the records at issue
implicated the individual privacy rights of students and
parents, violating federal and state privacy laws and imperiling
the North Bergen schools’ federal funding, the Law Division
judge could have addressed those issues. The judge could have
denied the proposed discovery, limited that discovery by
redaction of private information, or imposed a protective order
restricting access to the documents. See R. 4:10-2, -3.
Thus, our court rules provided defendant the opportunity to
obtain from the Board relevant documents in support of her civil
claim, subject to procedural safeguards and judicial oversight.
C.
This Court’s decision in Quinlan did not endorse self-help
as an alternative to the legal process in employment
discrimination litigation. Nor did Quinlan bar prosecutions
arising from an employee’s removal of documents from an
employer’s files for use in a discrimination case, or otherwise
address any issue of criminal law. Instead, the Court analyzed
one aspect of the substantive legal standard governing LAD
retaliation claims under N.J.S.A. 10:5-12(d): whether an
employee’s conduct in taking documents from his or her employer
for use in a discrimination claim -- and in using those
documents in pursuit of that claim -- is protected activity for
purposes of the employee’s claim when the employer takes adverse
39
employment action against the employee. See Quinlan, supra, 204
N.J. at 267-69.
Quinlan arose from a discrimination claim asserted by a
human resources executive, who contended that her employer
discriminated against her on the basis of her gender. Id. at
246-49. Without advising her attorney and in an alleged
violation of the employer’s confidentiality policy, the
plaintiff-employee reviewed and copied files, some containing
other employees’ personal and financial information. Id. at
246-48.6 Most of the documents were eventually produced in
discovery to the defendant employer. Id. at 248. Thereafter,
the plaintiff-employee copied and supplied to her attorneys her
supervisor’s performance evaluation, and her counsel used that
evaluation at the deposition of the supervisor. Ibid.Quinlan’s employer terminated her employment, and she
amended her complaint to assert a retaliation claim under the
LAD. Id. at 248-49. The trial court held that Quinlan could
recover on her LAD retaliation claims if her employment was
terminated because her counsel used the performance evaluation
to prosecute her lawsuit, and a jury returned a verdict in her
6 The Court’s opinion in Quinlan cites no evidence that the
plaintiff in that case removed her employer’s original file
documents. The documents taken by the plaintiff in that case
were apparently photocopied, and the originals remained on the
employer’s premises. Id. at 248-49.
40
favor. Id. at 250-51. The Appellate Division reversed and
remanded for a new trial. Id. at 255.
This Court reversed the judgment of the Appellate Division.
The majority premised its holding on a portion of the LAD’s
anti-retaliation provision, which prohibits retaliation against
a plaintiff because he or she “has . . . assisted in any
proceeding” under the LAD. Id. at 258-60 (citing N.J.S.A. 10:5-
12(d)). It acknowledged an employee’s duty to safeguard
confidential information that he or she gains through the
employment relationship and to refrain from sharing that
information with third parties. Id. at 260-61. It held,
however, that the employer’s interest must be balanced against
the employee’s right to be free from unlawful discrimination.
Id. at 261.
In so holding, the Court expanded upon the standard set
forth by a federal Court of Appeals applying Title VII, 42
U.S.C.A. § 2000e-3(a), in Niswander v. Cincinnati Ins. Co., 529
F.3d 714, 719-20 (6th Cir. 2008). Quinlan, supra, 204 N.J. at
267-71. It adopted “a flexible, totality of the circumstances
approach” for courts to consider in assessing an employee’s
conduct for purposes of his or her LAD retaliation claim. Id.
at 269. Under that standard, a court evaluates a number of
factors: how the employee gained “possession of, or access to,
the document”; “what the employee did with the document”; “the
41
nature and content of the particular document”; whether the
employee violated “a clearly identified company policy on
privacy or confidentiality”; “the circumstances relating to the
disclosure of the document”; “the strength of the employee’s
expressed reason for copying the document”; the broad remedial
purposes of our laws against discrimination; and “the effect, if
any, that either protecting the document or permitting it to be
used will have upon the balance of employers’ and employees’
legitimate rights.” Id. at 269-71.
The Court acknowledged employers’ concerns that by virtue
of its holding, “employers will be powerless to discipline
employees who take documents when they are not privileged to do
so.” Id. at 272. Dismissing those concerns, the Court
cautioned:
On the contrary, employees may still be
disciplined for that behavior and even under
the best of circumstances, run the
significant risk that the conduct in which
they engage will not be found by a court to
fall within the protection our test creates.
The risk of self-help is high and the risk
that a jury will reject a plaintiff’s
argument that he or she was fired for using
the document, rather than for finding it and
taking it in the first place, will serve as
an important limitation upon any realization
of the fears that the employers have
expressed to the Court.
[Ibid.]
42
The Court reinstated Quinlan’s LAD retaliation verdict, and
further held that the jury’s award of punitive damages was
supported by the evidence. Id. at 273-75.
Thus, the balancing test of Quinlan may be an important
measure in cases involving the retaliation provision of the LAD,
N.J.S.A. 10:5-12(d), when the employee’s conduct in taking or
using confidential documents allegedly provoked the employer to
take retaliatory action. Id. at 269. The Court never
suggested, however, that its ruling in Quinlan extends to any
question of criminal law. It expressly recognized that
“employers legitimately expect[] that they will not be required
to tolerate acts amounting to self-help or thievery.” Id. at
245-46. In short, nothing in Quinlan states or implies that the
anti-discrimination policy of the LAD immunizes from prosecution
an employee who takes his or her employer’s documents for use in
a discrimination case.
Accordingly, the fundamental fairness doctrine, premised
upon the reasonable expectations of those who are subject to the
law with respect to the legality of their conduct, cannot render
the official misconduct and theft by unlawful taking statutes
unconstitutional as applied to defendant. Nor are those laws
unconstitutionally vague as they pertain to defendant. Each
statute defines the conduct that it proscribes and provides
ample notice of its terms. We concur with the Appellate
43
Division majority that, as applied in this case, the official
misconduct and theft by unlawful taking statutes meet due
process standards.
Finally, defendant’s indictment is not defective on the
ground that it violates public policy. New Jersey has long-
expressed a strong public policy against discrimination.
Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 600 (1993) (citing
Fuchilla v. Layman, 109 N.J. 319, 335, cert. denied, 488 U.S.
826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988)). That policy is
reflected in the Legislature’s recognition of the causes of
action codified in the LAD and CEPA. N.J.S.A. 10:5-12; N.J.S.A.
34:19-3; see also Battaglia v. United Parcel Serv., Inc., 214
N.J. 518, 549, 555 (2013) (noting both LAD and CEPA promote
strong state public policies).
In the setting of civil litigation, New Jersey’s anti-
discrimination policy is promoted by the assertion of statutory
and common law anti-discrimination claims, by the vigorous
pursuit of relevant information in discovery, and by the
presentation of evidence at trial. To date, the Legislature has
not determined that in order to effect the State’s anti-
discrimination policy, employment discrimination litigants
should be immunized from prosecution for surreptitiously taking
employer documents to support their claims. Such litigants
remain subject to our criminal laws.
44
Accordingly, no constitutional argument or consideration of
public policy compels the dismissal of defendant’s indictment.
The trial court did not abuse its discretion when it declined to
dismiss the indictment on those grounds.
IV.
Notwithstanding the inapplicability of Quinlan to criminal
proceedings, defendant may assert that her intent to use the
documents at issue in support of her employment discrimination
claim gives rise to a “claim of right” defense or other
justification, if the evidence at trial supports such an
assertion.
Our Code recognizes justification as an affirmative defense
“[i]n any prosecution based on conduct which is justifiable
under this chapter.” N.J.S.A. 2C:3-1(a). N.J.S.A. 2C:3-2(b)
generally addresses the defenses based on justification:
Conduct which would otherwise be an offense is
justifiable by reason of any defense of
justification provided by law for which
neither the code nor other statutory law
defining the offense provides exceptions or
defenses dealing with the specific situation
involved and a legislative purpose to exclude
the justification claimed does not otherwise
plainly appear.
[N.J.S.A. 2C:3-2(b).]
Distinct from the general justification provision, as a
form of justification in prosecutions for theft, “New Jersey has
long recognized a claim[]of[]right defense.” State v. Mejia,
45
141 N.J. 475, 497 (1995) (citing State v. Mayberry, 52 N.J. 413,
431 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L.
Ed. 2d 593 (1969)), overruled on other grounds, State v. Cooper,
151 N.J. 326, 378 (1997). The Legislature codified the defense
in N.J.S.A. 2C:20-2(c), which mirrors the language of the Model
Penal Code § 223.1. See Model Penal Code and Commentaries, §
223.1(3) & comment 4, at 126, 151 & n.79 (1980).7 Our Code
provides:
(c) Claim of right. It is an affirmative
defense to prosecution for theft that the
actor:
(1) Was unaware that the property or
service was that of another;
(2) Acted under an honest claim of right
to the property or service involved or
that he had a right to acquire or dispose
of it as he did; or
(3) Took property exposed for sale,
intending to purchase and pay for it
promptly, or reasonably believing that
the owner, if present, would have
consented.
[N.J.S.A. 2C:20-2(c)(1)-(3); see also Mejia,
supra, 141 N.J. at 497-98.]
“‘[T]he Code adopts the position that a genuine belief in
one’s legal right shall in all cases be a defense to theft’ when
7 “When a provision of the Code is modeled after the [Model Penal
Code], it is appropriate to consider the [Model Penal Code] and
any commentary to interpret the intent of the statutory
language.” State v. Robinson, 217 N.J. 594, 606 (2014)
(citation omitted).
46
credible evidence supports the defense.” Mejia, supra, 141 N.J.
at 497 (quoting II New Jersey Code: The Final Report of the New
Jersey Law Commission § 2C:20-2, commentary at 221-22 (1971));
accord Model Penal Code, supra, comment 4(b) to § 223.1, at 157
(“[A] genuine belief in one’s legal right should in all cases be
a defense to theft.”). The defense is not restricted to cases
in which the defendant asserts a belief that the property at
issue is his or her own. State v. Ippolito, 287 N.J. Super.
375, 381 (App. Div.) (citing Mejia, supra, 141 N.J. at 496),
certif. denied, 144 N.J. 585 (1996); see also Mejia, supra, 141
N.J. at 497 (“[D]efendant entitled to defense because he
honestly but incorrectly believed he was assisting rightful
owner in removing television set.” (citing State v. Taplin, 230
N.J. Super. 95, 100 (1988)). Subsection (c)(2) applies where
“the defendant may know that the property belongs to another but
where he believes that he is nevertheless entitled to behave the
way he does.” Model Penal Code, supra, comment 1 to § 223.1, at
155. The “claim of right defense is not premised on a failure
of proof, but on justification.” Mejia, supra, 141 N.J. at 496(citation omitted). Thus, as a justification, it “goes beyond
merely negating an element of a theft . . . charge.” Ippolito,
47
supra, 287 N.J. Super. at 381 (citing Mejia, supra, 141 N.J. at
496).8
We concur with the Appellate Division majority in this case
that, if warranted by the evidence at trial, a jury charge with
respect to a justification based on a claim of right would be
appropriate in this case. Saavedra, supra, 433 N.J. Super. at
520-21 (quoting Model Jury Charge (Criminal), “Claim of Right
Defense to Theft Offenses” (Nov. 4, 1996)). Subject to the
trial court’s ruling on a full record, the evidence may also
warrant a jury charge with respect to justification as a defense
to a charge of official misconduct under N.J.S.A. 2C:30-2.
Although the Quinlan balancing test for LAD retaliation
cases does not govern the availability of a claim of right or
other justification in a criminal prosecution, evidence that
would be relevant to that test in a civil case may be considered
if a jury evaluates defendant’s claim of right defense or other
defense of justification. See Quinlan, 204 N.J. at 268-71.
8 Although the defense of justification under N.J.S.A. 2C:3-1(a)
may be asserted as to both charges against defendant if the
record supports it, the specific claim of right affirmative
defense authorized by N.J.S.A. 2C:20-2 expressly relates to a
“prosecution for theft.” N.J.S.A. 2C:20-2. Given the limited
record before the Court, we make no determination as to whether
a jury’s finding that defendant acted with a “claim of right”
under N.J.S.A. 2C:20-2 would affect not only the charge of theft
by unlawful taking of public documents under N.J.S.A. 2C:20-3
and N.J.S.A. 2C:20-2(b)(2)(g), but the charge of official
misconduct under N.J.S.A. 2C:30-2(a) as well by virtue of the
nexus between the official misconduct and theft charges.
48
Should this matter proceed to trial, the jury may consider such
issues as the contents of the documents, the presence or absence
of confidentiality policies, the privacy interests at stake, the
circumstances under which defendant gained access to the
documents, the extent to which she disclosed them, and her
reasons for taking an original or copying a document rather than
simply seeking it in discovery. Ibid. With a complete factual
record, the trial court will be in a position to instruct the
jury regarding a claim of right or other justification as a
defense to the State’s allegations.
Contrary to the suggestion of the dissent, our discussion
of factors that may be considered if a claim of right defense is
submitted to a petit jury in this case does not constitute an
effort to “clarify[]” the test set forth in Quinlan. Post at __
(slip op. at 7-9). In this appeal, we review a motion to
dismiss a criminal indictment, not a cause of action premised
upon the LAD or CEPA. The import of Quinlan in employment
discrimination litigation is not before the Court. Accordingly,
we do not respond to our dissenting colleague’s comments about
the holding of Quinlan, and confine our analysis to the issues
of this case.
V.
The judgment of the Appellate Division is affirmed, and the
matter is remanded to the trial court.
49
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, FERNANDEZ-VINA,
and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE PATTERSON’s opinion. JUSTICE ALBIN filed a separate,
dissenting opinion.
50
SUPREME COURT OF NEW JERSEY
A-68 September Term 2013
073793
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IVONNE SAAVEDRA,
Defendant-Appellant.
JUSTICE ALBIN, dissenting.
A grand jury was impanelled to determine whether to return
criminal charges against Ivonne Saavedra for the unlawful taking
of documents from her employer, the North Bergen Board of
Education. That Saavedra removed confidential documents from
the Board’s office was made clear to the grand jury. Saavedra’s
motive for removing those documents, however, was not disclosed
to the grand jury because the prosecutor blocked a grand juror’s
highly relevant questions posed to a witness. As a result, the
grand jury was not told that Saavedra gave those documents to
her attorney for the purpose of pursuing against the Board an
employment discrimination lawsuit based on our Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1
to -8. Nor was the grand jury told that Saavedra’s attorney --
after he filed the lawsuit -- provided the documents to the
1
Board’s attorney in response to a discovery request. The
prosecutor led the grand jury to believe that Saavedra had
spirited away the documents for some nefarious reason, and that
the Board learned of the “theft” through its own investigation.
I cannot agree with the majority that Saavedra suffered no
harm as a result of the prosecutor’s suppression of relevant
information sought by the grand jury. The grand jury was
entitled to answers to critical questions posed to a witness.
The prosecutor subverted the grand jury’s independence and, in
doing so, denied Saavedra her right to a fair grand jury
presentation. Unlike the majority, I would dismiss the
indictment and require the prosecutor to re-present the matter
to a new grand jury.
In addition, the majority concedes that a claim-of-right
defense is available to Saavedra. A jury must decide whether
Saavedra’s taking of confidential documents for the purpose of
pursuing a LAD or CEPA action falls within the realm of that
defense. The grand jury, however, was never charged on that
defense. Of equal concern is that the state of our law
concerning the claim-of-right defense at the time of Saavedra’s
alleged offense was hopelessly confusing as a result of this
Court’s decision in Quinlan v. Curtiss-Wright Corp., 204 N.J.
239, 269-71 (2010). The majority’s decision makes an attempt
but does not succeed in clarifying Quinlan’s amorphous test. In
2
the end, a reasonable person will not know in advance the line
separating lawful from unlawful conduct.
I therefore respectfully dissent.
I.
A.
In November 2009, Saavedra filed a civil action against her
employer, the North Bergen Board of Education, alleging
violations of LAD and CEPA. In connection with the filing of
this employment-discrimination lawsuit, Saavedra removed
confidential documents from the Board’s office without
permission. Approximately a year and a half after the filing of
Saavedra’s lawsuit, her counsel provided the confidential
documents to the Board’s litigation attorney “in response to
[the Board’s] requests for all documents in [defendant’s]
possession which may include confidential and/or privileged
information.” The Board’s litigation attorney alerted the
Board’s general counsel, Jack Gillman, about the documents
received in discovery. Gillman then contacted the Hudson County
Prosecutor’s Office concerning the documents received during
civil discovery.
Gillman was the only witness called by the prosecutor to
testify before the grand jury. In response to questioning by
the prosecutor, Gillman testified that Saavedra had 367 Board
documents in her possession, of which at least 69 were
3
originals. He explained the highly confidential nature of some
of the documents. He also testified that she was not permitted
to take any of those documents from the Board’s office.
After the prosecutor completed his questioning, a grand
juror asked: “When did she take out these documents? What’s
she going to do with them? The documents, what she do with
them?” The prosecutor responded: “I don’t believe Mr. Gillman
can speculate as to what she was going to do with the actual
documents.”
However, Gillman did not have to speculate about what
Saavedra had done with the documents. He knew, and so did the
prosecutor. Gillman told the grand jury earlier that Saavedra
had a lawsuit against the Board, and cryptically stated that
“[a]nother attorney . . . had received [highly confidential,
very sensitive] documents in discovery.” But Gillman did not
tell the grand jury that Saavedra gave the documents to the
Board in discovery. The grand juror’s perceptive question would
have disclosed that Saavedra’s motive was not that of a burglar
but that of a plaintiff pursuing an employment discrimination
lawsuit. Saavedra was not hiding the documents or concealing
the truth. The prosecutor had no authority to censor
information flowing to the grand jury -- no authority to sustain
his own objection to a legitimate and relevant question posed by
a grand juror. Even if the information possessed by Gillman
4
could be classified as hearsay, it was admissible before the
grand jury. See State v. Thrunk, 157 N.J. Super. 265, 278 (App.
Div. 1978) (noting that hearsay evidence is admissible before
grand jury).
B.
“The grand jury is a judicial, investigative body, serving
a judicial function; it is an arm of the court, not a law
enforcement agency or an alter ego of the prosecutor’s office.”
In re Grand Jury Appearance Request by Loigman, 183 N.J. 133,
141 (2005). It is “a bulwark against hasty and ill-
conceived ‘prosecutions and continues to lend legitimacy to our
system of justice by infusing it with a democratic ethos.’” Id.
at 139 (quoting State v. Fortin, 178 N.J. 540, 638 (2004)).
The grand jury has “extraordinary powers,” including “the
power to investigate upon its own suggestion.” Id. at 141-42
(internal citations and quotation marks omitted). For example,
the grand jury “can direct the prosecutor to subpoena witnesses
and evidence.” Id. at 142. Grand jurors, moreover, “have the
right” to ask questions of witnesses. State v. White, 326 N.J.
Super. 304, 314 (App. Div. 1999), certif. denied, 163 N.J. 397(2000). Indeed, the assignment judge instructs grand jurors
that they have that right. Ibid. “[L]egitimate inquiries of a
grand juror should not be frustrated under the guise of
screening” by a prosecutor. Ibid.; see also 31 New Jersey
5
Practice, Criminal Practice and Procedure § 10:20, at 469
(Leonard N. Arnold) (2011-12) (stating that prosecutor may
“screen questions that grand jurors wish to propound to
witnesses so long as this does not infringe on the grand jury’s
independence”).
The bottom line is that a prosecutor cannot thwart a grand
jury’s effort to secure relevant evidence that will bear on its
charging decision. The prosecutor’s role is to assist the grand
jury, and “‘to see that justice is done.’” In re Loigman,
supra, 183 N.J. at 144 (quoting State v. Frost, 158 N.J. 76, 83
(1999)). A prosecutor must scrupulously honor the grand jury’s
independence, particularly because the prosecutor operates in
that forum without the oversight of a judge or the check of a
defense attorney. Id. at 144-45.
This case does not implicate our jurisprudence on the
prosecutor’s affirmative duty to present exculpatory evidence --
a duty that attaches regardless of a grand juror’s inquiries.
State v. Hogan, 144 N.J. 216, 236 (1996). This case simply
involves the fundamental right of a grand juror to ask questions
intended to elicit relevant information. By suppressing a grand
juror’s legitimate questions and rationing the evidence, the
prosecutor allowed a distorted picture of Saavedra’s motives.
The grand jury had a right to the information it requested, and
6
Saavedra had the “right to a fair grand jury presentation.” See
In re Loigman, supra, 183 N.J. at 145.
I would dismiss the indictment and allow the prosecutor to
present the matter again to a grand jury.
II.
I agree with the majority that Saavedra is entitled to
assert a claim-of-right defense -- a justification defense -- at
trial. I also would require that the grand jury be charged on
such a defense, provided evidence suggests that Saavedra took
the documents under a lawful claim of right for the purpose of
pursuing a LAD and CEPA action. See 31 Criminal Practice and
Procedure, supra, § 10:20, at 469 (noting prosecutor’s
obligation to charge on “the gist of [an] exonerating defense or
justification”). Any reliance on a justification defense must
relate to the time Saavedra is alleged to have committed the
offense of theft. See State v. Perez, 220 N.J. 423, 438 (2015)
(stating that Ex Post Facto Clause of the U.S. Constitution
prohibits law that “deprives one charged with crime of any
defense available . . . at the time when the act was committed”
(internal quotation marks omitted)). We cannot apply
retroactively a newly minted justification defense that was not
on the books during the relevant time period if it disadvantages
Saavedra. See State v. Natale, 184 N.J. 458, 491 (2005)
(stating that retrospective application of law that
7
disadvantages defendant violates Ex Post Facto Clause). A court
must identify the prevailing law governing Saavedra’s conduct at
the time she took the documents from the Board’s office.
In Quinlan, supra, 204 N.J. at 269-71, the Court
articulated a seven-factor totality-of-the-circumstances test in
deciding whether the taking of an employer’s documents is
protected activity under LAD. That test hardly places a
reasonable person on notice of the line demarcating lawful from
unlawful conduct. The test asks the trier of fact to determine:
(1) how the employee came to possess the document; (2) “what the
employee did with the document”; (3) “the nature and content of
the particular document in order to weigh the strength of the
employer’s interest in keeping the document confidential”; (4)
whether the employee violated a “clearly identified company
policy” on confidentiality; (5) “the circumstances relating to
the disclosure of the document to balance its relevance against
considerations about whether its use or disclosure was unduly
disruptive to the employer’s ordinary business”; (6) “the
strength of the employee’s expressed reason for copying the
document”; and (7) how the court’s decision in the particular
case “bears upon” the “broad remedial purposes” of LAD and “the
effect, if any, that either protecting the documents by
precluding its use or permitting it to be used will have upon
8
the balance of legitimate rights of both employers and
employees.” Id. at 269-71.
The Quinlan factors do not define a clear and
understandable claim-of-right defense in civil or criminal cases
because the standard is too amorphous, too wide open -- too
susceptible to various inconsistent outcomes. Employees need
standards they can grasp at the time they make decisions rather
than later, when a court is passing judgment on their conduct.
The majority holds that “the Quinlan balancing test for LAD
retaliation cases does not govern the availability of a claim of
right or other justification in a criminal prosecution.” Ante
at ___ (slip op. at 48). However, the majority’s valiant effort
to make the claim-of-right defense sufficiently clear -- to give
fair notice of the limits placed on an employee’s conduct --
also falls short. The majority states that, in considering a
claim-of-right defense, “the jury may consider such issues as[:]
[1] the contents of the documents,
[2] the presence or absence of confidentiality
policies,
[3] the privacy interests at stake,
[4] the circumstances under which defendant
gained access to the documents,
[5] the extent to which she disclosed them,
and
9
[6] her reasons for taking an original or
copying a document rather than simply seeking
it in discovery.
[Ante at ___ (slip op. at 48).]
The majority’s approach suffers from the same shortcomings
as the Quinlan approach in a LAD case -- it does not give
reasonable and clear notice of what the law proscribes before an
employee acts. The law should not place whistleblowers in a
position where they are playing Russian roulette with their
careers or their liberty. Like the Quinlan standard, the
majority’s new approach is overly complicated and too open to
differing interpretations.
Furthermore, the majority has not identified whether
reasonable persons in 2009 would have anticipated the standard
it now enunciates.
To the extent there is any distance between the standards
set forth in Quinlan and here, it may be possible that an
employee taking confidential documents from an employer’s files
to pursue a LAD claim will win a multi-million dollar
discrimination lawsuit but serve time in prison for committing a
crime. The potential for such discordant results will not bring
credit to our justice system.
III.
At least going forward, I favor a much simpler approach to
claim-of-right defenses in both civil and criminal cases, the
10
one I articulated in my dissent in Quinlan. Under my template,
an employee would be permitted to take a confidential document
to an appropriate authority only if the document “clearly
indicates that the employer was engaged in illegal conduct.”
See Quinlan, supra, 204 N.J. at 282 (Albin, J., dissenting).
Moreover, an employee with a potential LAD or CEPA claim may
“have the right to preserve a document that he or she reasonably
believes an employer is about to destroy or alter.” Ibid. On
the other hand, when an employee has an ongoing lawsuit and no
reasonable fear that the employer will destroy relevant
evidence, the taking of confidential documents by an employee
cannot be justified. Ibid.IV.
In summary, I would dismiss the indictment because the
prosecutor undermined the independence of the grand jury by
interfering with its ability to elicit relevant information
bearing on the decision whether to return an indictment. If the
Quinlan standard was the reigning law for claim-of-right
defenses, then, like Judge Simonelli, the dissenting judge in
the Appellate Division, State v. Saavedra, 433 N.J. Super. 501,
536 (2013) (Simonelli, J.A.D., dissenting), I have doubts that
the law gave clear notice of the line demarcating criminal from
non-criminal conduct. Last, if the documents taken by Saavedra
11
were irrelevant to her LAD action, then the claim-of-right
defense should not be available.
Accordingly, I respectfully dissent.
12
SUPREME COURT OF NEW JERSEY
NO. A-68 SEPTEMBER TERM 2013
ON APPEAL FROM Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IVONNE SAAVEDRA,
Defendant-Appellant.
DECIDED June 23, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Albin
AFFIRM AND
CHECKLIST DISSENT
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6 1