JEFFREY C. GILBERT VS. WARREN COUNTY PROSECUTOR (L-0128-19, WARREN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1198-19
JEFFREY C. GILBERT,
Plaintiff-Appellant,
v.
WARREN COUNTY
PROSECUTOR
RICHARD T. BURKE,
WARREN COUNTY
PROSECUTOR'S OFFICE,
TOWNSHIP OF MANSFIELD,
and CHIEF OF POLICE
MICHAEL REILLY,
Defendants-Respondents.
_________________________
Argued March 22, 2021 – Decided April 30, 2021
Before Judges Sabatino, Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Docket No. L-0128-19.
Stuart J. Alterman argued the cause for appellant
(Alterman & Associates, LLC, attorneys; Stuart J.
Alterman, of counsel; Arthur J. Murray, on the brief).
Michael R. Sarno, Deputy Attorney General, argued the
cause for respondents Richard T. Burke and Warren
County Prosecutor's Office (Gurbir S. Grewal,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Michael R.
Sarno, on the brief).
Susan A. Lawless argued the cause for respondents
Township of Mansfield and Michael Reilly (Florio
Perrucci Steinhardt Cappelli Tipton & Taylor LLC,
attorneys; Susan A. Lawless, of counsel and on the
briefs).
PER CURIAM
After settling disciplinary charges lodged against him, plaintiff Jeffrey C.
Gilbert, a police officer employed by the Township of Mansfield, brought this
lawsuit in the Law Division against the Township, the Township's Chief of
Police Michael Reilly, the Warren County Prosecutor's Office ("WCPO"), and
Warren County Prosecutor Richard T. Burke.1 The lawsuit alleges that
defendants violated plaintiff's due process rights and his rights under the New
Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 ("NJCRA"), because of
restrictions the Prosecutor placed on plaintiff's work assignments in the
aftermath of his disciplinary matter.
1
To the extent plaintiff seeks prospective injunctive relief against the County
Prosecutor, we deem that request to pertain to Burke's successor in office. See
R. 4:34-4 (regarding substitution of public officers sued in their official
capacity).
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The restrictions were imposed by the Prosecutor in order to minimize the
need for disclosure of plaintiff's disciplinary record to criminal defense counsel
under Brady v. Maryland, 373 U.S. 83 (1963), and the likely resultant use of
those materials to impeach his testimony as a witness for the State in criminal
cases. Plaintiff theorizes that the restrictions amount to de facto discipline, and
that he should have been provided with a hearing before they were imposed.
Defendants moved to dismiss the lawsuit under Rule 4:6-2(e) for failure
to present a viable claim upon which relief may be granted. After considering
the parties' contentions, the trial court determined that plaintiff's allegations are
not actionable as a matter of law, and therefore dismissed the lawsuit. This
appeal ensued.
Even viewing plaintiff's contentions with appropriate indulgence, we
agree with the trial court that he has not presented actionable claims against
these defendants. We affirm, substantially for the reasons set forth in the trial
court's oral opinion.
In particular, we are satisfied that the "Brady restrictions" placed on
plaintiff's future participation in criminal investigations are justified, that they
do not comprise discipline by his employer, and that plaintiff was already
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afforded a fair opportunity to have a non-departmental hearing or judicial review
and elected instead to settle his case.
I.
The relevant chronology of events is largely undisputed, and we need not
recite it extensively here. This brief summary will suffice for our purposes.
In November 2017, plaintiff entered into a settlement agreement with the
Township to resolve disciplinary charges against him arising from his alleged
improper conduct during a driving-while-intoxicated ("DWI") investigation
earlier that year. After an Internal Affairs investigation and service upon
plaintiff of notice of the charges, plaintiff accepted as part of the settlement a
six-day suspension from his duties without pay.2 Plaintiff was represented by
experienced counsel in negotiating the settlement.
Among other things, the settlement agreement specified that the parties
waived "all investigations, disputes, appeals, grievances, claims or causes of
action that have been raised or could have been raised . . . related to [plaintiff]'s
[c]onduct[,]" with the caveat that "the disciplinary action will remain in his
2
The trial court’s opinion recites that departmental hearings concerning the
disciplinary charges were conducted before the settlement was achieved, but the
redacted version of the record supplied on appeal does not confirm this with
documentation.
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employment file and may be used as evidence of progressive discipline in the
event of future disciplinary charges." The agreement further provided that it is
enforceable in Superior Court and that "[n]one of the obligations, covenants or
releases set forth herein may be released, discharged or abandoned,
supplemented, modified or changed in any manner," except by written
agreement.
On or about June 13, 2018, Burke, in his capacity as the then-Prosecutor
of Warren County, issued a letter to Police Chief Reilly (the "Brady letter")
about plaintiff's disciplinary record. The letter refers to the 2017 incident of
alleged misconduct in the DWI matter, the settlement agreement, and plaintiff's
suspension. Two other internal affairs investigations concerning plaintiff are
listed in the letter, but redacted.
The Brady letter provides that plaintiff "will be permitted to participate
in" criminal investigations for the Mansfield Township Police Department only
under certain conditions, including that: (1) he "may not participate in any
accident or DWI investigations"; (2) he "may not be the primary investigator on
a case"; (3) any interview he conducts must be witnessed by another officer; (4)
he may not collect evidence; (5) he must have a co-affiant on any search or arrest
warrant; (6) if he is to be a witness in a prosecution, he must advise the
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prosecuting attorney of his disciplinary record prior to testifying ; and (7) he
"may not participate in any other countywide taskforce without the approval of
the Prosecutor."
The letter also states that plaintiff will be notified when related disclosures
are made to a court in the course of a prosecution, and that if "the judge deems
the information admissible, [plaintiff] will be required to answer questions from
defense attorneys regarding those incidents."
Finally, the letter states that "the terms and conditions of [plaintiff's]
participation in investigations may be changed" and that the Prosecutor's Office
"must be notified in advance [of any change to plaintiff's assignment] so that [it]
can review the terms and conditions in light of the new assignment ."
The Prosecutor's issuance of the Brady letter caused plaintiff to bring this
lawsuit in April 2019. In essence, he contends the restrictions the letter imposes
upon his work assignments substantially curtail his professional opportunities
for promotions within the police force. He maintains the letter imposes de facto,
after-the-fact discipline upon him beyond what was negotiated through the
disciplinary settlement.
Count One of plaintiff's complaint, asserted against defendants Burke and
Reilly, alleged that they denied plaintiff due process guaranteed by N.J.S.A.
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40A:14-147 and Attorney General guidelines, in violation of the NJCRA and the
State Constitution. In that count, plaintiff sought an order compelling
compliance with the hearing procedures set forth in N.J.S.A. 40A:14-147 and
"nullifying . . . the discipline enunciated in the [Brady] letter[,]" as well as
compensatory damages, punitive damages, and attorney's fees and costs.
Count Two of the complaint sought damages against defendants WCPO
and the Township for "failing to adequate[ly] screen or train" Burke and Reilly.
In lieu of filing answers, defendants moved to dismiss the complaint under
Rule 4:6-2(e) for failure to state a viable claim upon which relief may be granted.
As part of their arguments for dismissal, defendants argued that the restrictions
upon plaintiff's investigatory functions as a police officer set forth in the Brady
letter are justified measures to minimize the State's need to use him as a witness
in criminal prosecutions. Defendants further argued that the restrictions are not
a form of "discipline." They emphasize that plaintiff had a fair opportunity to
obtain a hearing or judicial review of his disciplinary matters under N.J.S.A.
40A:14-147, and instead he waived such processes and chose to settle the
charges on terms that enabled him to keep his job with only a short suspension.
Defendants further contend they are insulated from liability under principles of
absolute or qualified immunity.
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After briefing and oral argument, the trial court issued an oral decision on
October 2, 2019, ruling that plaintiff failed to advance claims upon which relief
may be granted as a matter of law. Specifically, with respect to defendants
Reilly and the Township, the court determined they "did nothing in this case
except receive the [P]rosecutor's letter." The court noted they "took no
disciplinary action against" plaintiff, and "did not dock his pay . . . [or] modify
his duty schedule."
As the court described them, the Brady letter restrictions were "not
disciplinary matters but simply tools to see that the [P]rosecutor is not . . .
harmed by . . . [plaintiff] being the only witness" in a criminal matter. The
restrictions are justified as "the result of the [P]rosecutor's direction by the
United States Supreme Court [in Brady and its progeny] to issue such a letter in
the interest of justice in the criminal justice system."
The court additionally found that plaintiff failed to point to "any body of
law allowing or granting a hearing to a police officer" in his situation . Given
the circumstances, the court found that defendants were immune from liability.
The court discerned no basis to grant plaintiff leave to amend his allegations
with additional legal theories or factual contentions. The court accordingly
dismissed the complaint with prejudice, finding it "clear" that no further
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discovery would alter the legal analysis.
II.
On appeal, plaintiff's counsel has clarified and essentially focused his
arguments on two facets of the trial court's decision.
First, plaintiff contends that, regardless of whether the dismissal of his
claims for monetary damages was proper and the immunities from such damages
apply, the court should have preserved and granted his demand for injunctive
relief. Specifically, plaintiff maintains he is entitled to a hearing or judicial
review under N.J.S.A. 40A:14-147, a statute that provides an avenue for police
officers to contest disciplinary actions against them in non-Civil Service
municipalities. See In re DiGuglielmo, 465 N.J. Super. 42 (App. Div. 2020)
(detailing and interpreting the terms of the statute).
Second, plaintiff argues that, at the very least, the court should have only
dismissed his lawsuit "without prejudice," enabling him to add a count for
breach of contract and possibly other claims.3
In reviewing these and the rest of plaintiff's arguments, we bear in mind—
as did the trial court—the well-established standards for dismissal of a complaint
3
In his brief on appeal plaintiff withdrew his appeal as it relates to the dismissal
of all economic and money damages related to Count One of his complaint and
the dismissal of Count Two.
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under Rule 4:6-2(e). A defendant's motion to dismiss under that Rule must be
granted if the complaint "fails 'to articulate a legal basis entitling plaintiff to
relief.'" Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 112 (App. Div.
2009) (quoting Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.
2005)). For such motions, the trial court must search "the complaint in depth
and with liberality to ascertain whether the fundament of a cause of action may
be gleaned from even an obscure statement of claim, opportunity being given to
amend if necessary." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J.
739, 746 (1989) (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J.
Super. 244, 252 (App. Div. 1957)).
Ordinarily when such dismissal motions are granted, the court's order
should be "without prejudice to a plaintiff's filing of an amended complaint."
Id. at 772. However, the court may still grant dismissal with prejudice if it
appears that a future amendment of the complaint would be futile and serve no
purpose. See, e.g., Johnson v. Glassman, 401 N.J. Super. 222, 246-47 (App.
Div. 2008) (affirming a dismissal with prejudice under the Rule).
An appellate court reviews the dismissal of a complaint for failure to state
a claim de novo, employing the same standard used by the trial court. Scheidt
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v. DRS Techs., Inc., 424 N.J. Super. 188, 193 (App. Div. 2012).
Viewing the circumstances here with appropriate indulgence, we concur
with the trial court's sound decision to dismiss plaintiff's complaint with
prejudice. A few comments by way of amplification are in order.
The nub of this case concerns the Prosecutor's issuance of the Brady letter
to Chief of Police Reilly. We wholeheartedly agree with the trial court that the
letter's limitations on plaintiff's investigatory functions are reasonably designed
to protect the State from an undue litigation disadvantage by reducing the
situations when plaintiff needs to be used as a witness in a criminal proceeding.
There is a strong likelihood that if the State had to call plaintiff as a
witness, his prior disciplinary record would need to be disclosed in full or in
part to opposing defense counsel as exculpatory material under Brady. The
defense, in turn, would be able to use that information to impeach plaintiff's
credibility as a witness. See Giglio v. United States, 405 U.S. 150, 154-55
(1972). The Prosecutor's letter sensibly attempts to minimize the situations in
which the State might need to rely on plaintiff as a witness, while still honoring
its constitutional obligations to the defense under Brady.
Plaintiff does not quarrel on appeal with these principles, but instead
asserts he is now entitled, in retrospect, to a hearing or judicial review of his
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disciplinary case under N.J.S.A. 40A:14-147. We disagree. The statute covers
suspensions, removals, fines, and reductions in an officer's rank—none of which
occurred here as a result of the Prosecutor's letter. The letter does not amount
to a "de facto" reduction in rank. Plaintiff has not been fired or demoted and his
salary has not been reduced.
Moreover, even if we were to adopt plaintiff's expansive interpretation of
the statute, he clearly waived in the settlement agreement his opportunity for a
further hearing or judicial review. The plain language of the agreement
unambiguously expresses such a relinquishment of further review. Plaintiff,
with the assistance of counsel, voluntarily entered into the agreement.
Defendants did not take away his rights of due process.
Plaintiff cannot reasonably contend he was unfairly surprised by the Brady
letter restrictions after he chose not to litigate the disciplinary charges. The
Brady doctrine has been in existence for decades, and the State's constitutional
obligation to disclose impeachment material reposed in a police officer's
personnel file when that officer will serve as a trial witness is hardly a novelty. 4
4
The June 18, 2019 memorandum of the Attorney General concerning
Brady/Giglio disclosures provides no support for plaintiff's legal arguments.
The memorandum is limited to law enforcement personnel of the Department of
Law and Public Safety and does not cover local police officers. Moreover, it
(continued)
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Plaintiff's request for a chance to amend his complaint is likewise
unavailing. Defendants did not breach any contractual promises. The settlement
agreement plainly allows the disciplinary action to "remain in [plaintiff's]
employment file." The agreement does not promise that the State will withhold
the disciplinary information from a Brady disclosure. Nor does it assure
plaintiff that his job assignments will be unaffected by any future witness -
related measures of the Prosecutor's Office derived from its constitutional
obligations under Brady. No other proffered revisions of the complaint will
make it viable.
We have considered the remainder of plaintiff's arguments on appeal—
including his inconsequential claim that the trial court should have treated
defendants' application as a summary judgment motion under Rule 4:46-2
details procedures to be followed before Brady/Giglio disclosures are made by
prosecutors to defense counsel or a court. It does not confer upon individual
officers a right to a hearing concerning prophylactic Brady-related limitations
that might be imposed upon their work assignments. No other Attorney General
guidelines or policy memoranda appear to be on point, either. In particular,
Attorney General Directive No. 2019-6 (issued December 4, 2019), cited in
plaintiff's appendix, does not affect our analysis. Although that Directive
advises prosecutors to refrain from promulgating "do not call lists" of officers
"who can never be called as witnesses," id. at 8-9 (emphasis added), the Brady
letter in this case contains no such absolute prohibition on using plaintiff as a
witness.
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because of references to a few items outside of the pleadings—and conclude
they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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