State of New Jersey v. Ivonne Saavedra , 433 N.J. Super. 501 ( 2013 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1449-12T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
December 24, 2013
v. APPELLATE DIVISION
IVONNE SAAVEDRA,
Defendant-Appellant.
__________________________
Argued September 11, 2013 – Decided December 24, 2013
Before Judges Fuentes, Simonelli and
Fasciale.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 12-05-0849.
Mario M. Blanch argued the cause for
appellant.
Leo Hernandez, Special Deputy Attorney
General/Acting Assistant Prosecutor,
argued the cause for respondent (Gaetano
T. Gregory, Acting Hudson County
Prosecutor, attorney; Mr. Hernandez, on
the brief).
The opinion of the court was delivered by
FASCIALE, J.A.D.
By leave granted, defendant Ivonne Saavedra appeals from an
order denying her motion to dismiss an indictment returned by a
Hudson County grand jury charging her with second-degree
official misconduct, N.J.S.A. 2C:30-2a, and third-degree theft
of movable property (public documents), N.J.S.A. 2C:20-3 and
N.J.S.A. 2C:20-2b(2)(g). Because defendant attacks the facial
validity of the charges against her, we will review the evidence
presented by the State to determine whether there was probable
cause for the grand jury to find that these crimes were
committed and that defendant committed them. In re State ex
rel. A.D., 212 N.J. 200, 218 (2012). We affirm.
I.
Defendant took highly confidential original documents owned
by her employer, contending that she did so to support her
employment discrimination lawsuit. Relying on Quinlan v.
Curtiss-Wright Corp., 204 N.J. 239 (2010), defendant argues that
her acts are not criminally sanctionable. She contends that
because Quinlan purportedly establishes an absolute right for
employees with employment discrimination lawsuits to take
potentially incriminating documents from their employers, the
judge erred by denying her motion. We disagree. Quinlan did
not establish such a bright-line rule as defendant suggests.
Quinlan, a civil employment discrimination case, enunciated a
seven-part totality-of-the-circumstances test (the "Quinlan
analysis") to determine whether a private employer can terminate
its employee for the unauthorized taking of its documents.
2 A-1449-12T4
We hold, under the facts of this case, that a criminal
court judge is not required to perform a Quinlan analysis to
decide a motion to dismiss an indictment charging a defendant
with official misconduct predicated on an employment-related
theft of public documents. Instead, the judge should apply
well-settled standards regarding whether to grant such motions.
That is, to survive a motion to dismiss an indictment, the State
need not produce evidence adequate to sustain a conviction; but
rather, the State must introduce sufficient evidence before the
grand jury to establish a prima facie case that defendant has
committed a crime. State v. Hogan, 144 N.J. 216, 236 (1996).
Because the State produced such evidence here, the judge
properly concluded that the indictment was not manifestly
deficient or palpably defective. Id. at 228-29, 236.
Whether a petit jury ultimately finds defendant guilty of
official misconduct and theft will depend on the State's ability
to prove beyond a reasonable doubt each and every element of
these crimes. If there is sufficient evidence to support
defendant's contention that she honestly believed she had a
right to the documents in question, she can raise such a claim
as an affirmative defense at trial. The State then would have
the burden of proving, beyond a reasonable doubt, that defendant
did not act pursuant to a claim of right.
3 A-1449-12T4
II.
The North Bergen Board of Education (the "Board") employed
defendant for several years as a clerk.1 She started working in
the Board's payroll department and remained there for ten years.
She was thereafter assigned to the Board's Special Services
Department and became a clerk for a child study team.2
Defendant's son also worked as a part-time employee for the
Board.
In November 2009, one year before the Court decided
Quinlan, defendant and her son filed a complaint against the
Board, her supervisor, an office manager, and a North Bergen
1
Although not entirely clear from the record, we infer that
defendant's position of "clerk" appears to fall within the scope
of clerical or secretarial tenured positions, described in
N.J.S.A. 18A:17-2b as "[a]ny person holding any secretarial or
clerical position or employment under a board of education of
any school district or under any officer thereof." N.J.S.A.
18A:17-2c protects individuals who have acquired tenure in such
a position "during good behavior and efficiency" from
dismissal, suspension, or reduction in compensation, "except for
neglect, misbehavior or other offense . . . ."
2
The child study team in a school is comprised of specified
professionals who can evaluate the particular needs of children
with learning disabilities. "Each board of education [is
required to] provide for basic child study team services. The
basic child study team shall consist of a school psychologist, a
learning disability teacher consultant and a school social
worker, and for the purposes of evaluation and classification
shall include pertinent information from certified school
personnel making the referral." N.J.S.A. 18A:46-5.1.
4 A-1449-12T4
Township Commissioner.3 Defendant alleged that she was a victim
of gender, ethnic, and sex discrimination. The complaint also
alleged that the Board terminated defendant's son because
defendant voiced what she understood to be problems in her
workplace regarding alleged pay irregularities, reimbursing
employees improperly for "unused" vacation time that they had
actually used, wrongful denial of employee unpaid family leave,
violations of child study team regulations, and "unsafe
conditions."4 They alleged, among other causes of action,
employment discrimination, hostile work environment, and
retaliatory discharge, in violation of the New Jersey Law
Against Discrimination (the "LAD"), N.J.S.A. 10:5-1 to -49, and
they sought punitive damages.5
3
Defendant improperly identified in her civil complaint the
North Bergen Township Commissioner as a "councilman."
4
Defendant alleged in her civil complaint against the Board that
the Board did not terminate her from employment because she is
tenured.
5
The complaint contains the following counts: a violation of the
Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14
(Count One); a violation of public policy (Count Two); a
violation of Section 1983 of the Civil Rights Act, 42 U.S.C.A. §
1983 (Count Three); a violation of the New Jersey Civil Rights
Act, N.J.S.A. 10:6-1 to -2 (Count Four); civil rights conspiracy
(Count Five); violations of the Fair Labor Standards Act, 29
U.S.C.A. §§ 201-209 (Count Six); a violation of the New Jersey
Wage and Hour Law, N.J.S.A. 34:11-56a to -56a38 (Count Seven);
hostile work environment, in violation of the LAD (Count Eight);
adverse employment action, in violation of the LAD (Count Nine);
(continued)
5 A-1449-12T4
Defendant's counsel in the civil case learned eventually
from defendant that defendant possessed hundreds of documents
owned by the Board. Criminal defense counsel on this appeal
indicated in his merits brief that defendant's civil lawyer
"chose to use the documents during the discovery phase of
[defendant's] pending lawsuit against [the Board]." (Emphasis
added). Defendant's civil attorney turned over those documents
to counsel defending the Board in the employment discrimination
suit. The Board's attorney notified the Board's general
counsel. The general counsel brought the matter to the
attention of the Hudson County Prosecutor, who determined that
the matter should be presented to a grand jury.
The grand jury convened to hear evidence in this case in
April 2012, more than two and one-half years after defendant had
filed her civil complaint. The State called the Board's general
counsel to testify as its only witness before the grand jury.
He testified that defendant had sued the Board and that "there
[was] a [civil] lawsuit outstanding." The general counsel
testified that defendant had taken from the Board 367 documents,
(continued)
a violation of the New Jersey Family Leave Act, N.J.S.A. 34:11B-
1 to -16, and the Family Medical Leave Act, 29 U.S.C.A. § 2601
to -2654 (Count Ten); intentional infliction of emotional
distress (Count Eleven); respondeat superior (Count Twelve); and
punitive damages (Count Thirteen).
6 A-1449-12T4
including at least sixty-nine original documents. He informed
the Board's defense counsel that "the information [contained] in
those documents was highly confidential, very sensitive, and
[that the Board] needed to act on [defendant's decision to
resort to self-help] immediately." He then described five of
the documents, focusing on the confidential nature of each one.
The first document is a bank statement that a parent
provided to the Board. The Board used this bank statement to
verify whether that parent and the parent's child met the school
district's residency requirements. This document reveals the
parent's name and address, a bank account number, an account
balance, a description of the type of account (either a checking
or savings account), and a statement date.
The second document is an appointment schedule of a
psychiatrist who treated students with special needs in the
district. This document identifies the names of various
students whom the psychiatrist planned to treat, and it contains
a note that one named student "is on medication and needs [more]
medication." Releasing this document to the public would
jeopardize the Board's ability to ensure that its students with
mental health issues receive psychiatric treatment and would
violate the students' privacy rights.
7 A-1449-12T4
The third document, which general counsel believed to be an
original, is entitled "Consent for Release of Information to
Access Medicaid Reimbursement for Health-Related Support
Services." This document discloses the name and private contact
information of a parent who agreed to participate in a Medicaid-
reimbursement program, and it identifies the student's name,
date of birth, enrollment date, school, and grade level. The
Board uses this type of document to seek reimbursement from
Medicaid for medical and other services that students with
special needs receive. The Board faces liability exposure if
the State or Federal Government performs an audit and this
document is missing.
The fourth document, also believed to be an original, is a
signed letter from a parent whose child is receiving
confidential services for the child's special needs. It
contains the family's private information, such as names of the
parents and student, the name of the student's school, and
contact telephone numbers.
The fifth document is an original letter from a different
parent to the Director of Special Services regarding an
emotional problem involving that parent's child. In the letter,
the parent indicated that her son "came off the bus soaked in
8 A-1449-12T4
urine, very nervous, and his eyes were twitching." The document
reveals the identity of the student.
General counsel testified that the documents in defendant's
possession belonged to the Board. He explained that Board
"employees are trained and informed[,] via internal policies[,]
guidelines[,] and regulations[,] that these documents are highly
confidential and are not to be disclosed or tampered with in any
way." He stated that these documents are not to be "disclosed
[or] taken" by Board employees.
In May 2012, the grand jury indicted defendant and charged
her with committing the crimes of official misconduct and theft.
Defendant then moved to dismiss the indictment. During oral
argument on that motion, the judge focused on whether the State
presented sufficient evidence to establish a prima facie case
that defendant committed these offenses.
Defense counsel contended that defendant took the documents
for a lawful use, that the State failed to present exculpatory
evidence to the grand jury, and that the State was punishing
defendant for exercising improper judgment on the job. Defense
counsel argued that "Quinlan says it's legal to take
confidential documents," and that preventing defendant from
9 A-1449-12T4
taking the confidential documents would have a chilling effect
on future LAD cases.6
The State maintained that it presented to the grand jury
sufficient evidence to show that defendant committed these
crimes. The assistant prosecutor argued that defendant's
reliance on Quinlan was misplaced. He stated that Quinlan,
which he emphasized was decided in the context of a civil case
rather than on a motion to dismiss an indictment, did not create
a bright-line rule permitting a public servant such as defendant
to take highly confidential documents that did not belong to
her. The State asserted that the indictment was not manifestly
deficient or palpably defective and there existed no exculpatory
evidence that squarely refuted an element of the offenses.
In October 2012, the judge issued a thorough written
decision agreeing with the State's arguments, and denied the
motion. The judge recognized that on a motion to dismiss the
indictment, the State need not produce evidence adequate to
sustain a conviction, but rather, the State's evidence must be
sufficient to establish a prima facie showing that a crime has
6
Defense counsel stated in his merits brief that defendant
dismissed her lawsuit against the Board. The parties did not
produce a stipulation of dismissal, and the record is unclear
regarding when or why she dismissed her claims. It is also
unclear whether the son continued with his claims against the
defendants in the civil case.
10 A-1449-12T4
been committed. She acknowledged that defendant bears a "'heavy
burden' of demonstrating that the 'evidence is clearly lacking
to support the charge[s].'" The judge then concluded that
defendant did not meet her burden.
Although the judge rejected the applicability of Quinlan,
she performed the Quinlan analysis out of an abundance of
caution. The judge concluded that the Quinlan factors weighed
heavily in favor of the Board.7 The judge then held that "an
employee's removal of documents from his or her employer for use
in a []LAD suit, is not per se lawful." This appeal followed.
On appeal, defendant raises the following points:
POINT I
THE INDICTMENT FOR "OFFICIAL MISCONDUCT"
SHOULD BE DISMISSED AS THE STATE HAS FAILED
TO PRESENT SUFFICIENT EVIDENCE TO THE GRAND
JURY TO SUSTAIN A PRIMA FACIE CASE.
A. [Defendant] is not a Public
Servant for Purposes of Official
Misconduct.
B. The State has Failed to Show
any "Purpose" to "Obtain a
Benefit."
C. The State has Failed to Show
Proof that [defendant] acted with
Purpose to Injure or Deprive.
D. The Indictment Must Be
Dismissed As There is No Evidence
7
It appears that a Quinlan analysis was not performed by a judge
in the civil case because defendant dismissed her complaint.
11 A-1449-12T4
to Show that [defendant] Knew that
Her Actions Were Unauthorized.
POINT II
THE INDICTMENT SHOULD BE DISMISSED BECAUSE
THE LEGISLATIVE INTENT IS NOT TO PUNISH
EMPLOYEES FOR ALLEGEDLY IMPROPER JUDGMENT ON
THE JOB.
POINT III
[DEFENDANT] CANNOT BE FOUND GUILTY OF THEFT
AS SHE TOOK THE DOCUMENTS FOR A LAWFUL USE.
POINT IV
THE INDICTMENT MUST BE DISMISSED AS THE
PROSECUTOR FAILED TO PRESENT EXCULPATORY
EVIDENCE RELATING TO THE UNDERLYING SUIT
[THAT DEFENDANT] HAD PENDING WITH THE BOARD
OF EDUCATION OF NORTH BERGEN.
POINT V
ALLOWING THE PROSECUTION OF [DEFENDANT] TO
CONTINUE WILL CREATE A CHILLING EFFECT TO
POTENTIAL PLAINTIFFS IN LAD CLAIMS.
POINT VI
THE CRIMINAL PROSECUTION OF [DEFENDANT] IS
UNJUST BECAUSE IT HAS ALLOWED THE ATTORNEYS
FOR THE . . . BOARD OF EDUCATION TO VIOLATE
THE CANONS OF ATTORNEY ETHICS.
III.
We begin by addressing whether the judge abused her
discretion by denying defendant's motion to dismiss the
indictment. We will not disturb the denial of such a motion
"unless [the judge's discretionary authority] has been clearly
abused." State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div.
1994) (quoting State v. Weleck, 10 N.J. 355, 364 (1952)),
12 A-1449-12T4
certif. denied, 140 N.J. 277 (1995). Against this standard, we
conclude that there was no abuse of discretion.
A judge should not dismiss an indictment except on the
clearest and plainest ground, where it is "manifestly deficient
or palpably defective." Hogan, supra, 144 N.J. at 228-29. When
reviewing such motions, the court must construe the facts in the
light most favorable to the State. State v. Fleischman, 383
N.J. Super. 396, 398 (App. Div. 2006), aff'd, 189 N.J. 539
(2007). "As long as an indictment alleges all of the essential
facts of the crime, the charge is deemed sufficiently stated."
State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.),
certif. denied, 151 N.J. 77 (1997). We have stated that "the
quantum of this evidence . . . need not be great." Ibid.
A.
The State produced sufficient evidence to establish a prima
facie case of theft of movable property. N.J.S.A. 2C:20-3a
provides that "[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." Here, theft is a
third-degree offense pursuant to N.J.S.A. 2C:20-2b(2)(g). At
this stage in the case, we must look at the facts presented to
the grand jury in the light most favorable to the State. From
this perspective, the State introduced evidence that defendant
13 A-1449-12T4
violated the Board's "internal policies[,] guidelines[,] and
regulations[,]" by taking its highly confidential original
documents, which suggests that defendant did so with the purpose
to deprive the Board. The State also introduced evidence
suggesting that by taking these documents, defendant intended to
disrupt the psychiatric treatment of students with special
needs, and also exposed the Board to liability in the event of a
state or federal Medicaid audit.
Defendant's counsel contends, like he did before the
criminal judge, that the State is unable to show that defendant
"unlawfully" took the documents because "Quinlan says it's legal
to take confidential documents." We disagree with defendant's
reading of Quinlan. We also emphasize that the grand jury is an
accusatorial rather than an adjudicative body; grand jurors do
not determine guilt or innocence. Hogan, supra, 144 N.J. at
227. A grand jury is simply "asked to determine whether 'a
basis exists for subjecting the accused to a trial.'" Ibid.
(quoting 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)). Here, the record demonstrates that the grand
jury correctly performed its limited role.
We agree with the trial judge that Quinlan is factually
distinguishable. The plaintiff in Quinlan, a private individual
14 A-1449-12T4
rather than a public employee like defendant, contended that her
employer discriminated against her when it promoted a less
qualified man to the position of supervisor. Quinlan, supra,
204 N.J. at 244. During discovery in her LAD case, her
employer, a private company, learned that Quinlan had taken
confidential documents. Ibid. Thereafter, her employer
terminated her. Ibid.
The Supreme Court framed the issue in Quinlan as
"creat[ing] the appropriate framework against which [civil]
courts may weigh and consider whether, and to what extent, an
employee who finds, copies, and discloses an employer's
otherwise confidential documents in the context of prosecuting a
discrimination case was engaged in conduct protected by the
LAD." Id. at 245. In undertaking that challenge, the Court
balanced the rights of "individual plaintiffs seeking to
vindicate their rights and employers legitimately expecting that
they will not be required to tolerate acts amounting to self-
help or thievery." Id. at 245-46. The Court created a seven-
part analysis for use in a civil case, "a flexible, totality of
the circumstances approach."
Civil judges apply this seven-part analysis by considering,
in part, such things as whether: "discovery of the document was
due to the employee's intentional acts outside . . . her
15 A-1449-12T4
ordinary duties"; the document "includes personal or
confidential information such as Social Security numbers or
medical information about other people"; there is a "company
policy on privacy or confidentiality that the employee's
disclosure has violated"; use of the document "is unduly
disruptive to the employer's ordinary business"; the employee
can obtain the document by "describing it or identifying its
existence to counsel so that it might be requested in
discovery"; and whether there is "a likelihood that the employer
would not maintain it, or would have discarded it in the
ordinary course of business, that it would have been destroyed,
or that its authenticity would be called into doubt." Id. at
269-71. The Court applied this balancing test and stated that
[a]pplying [the Quinlan analysis] to the
documents before the court, we find
ourselves in agreement with the distinction
that the trial court drew. The trial court
correctly told the jury that plaintiff's act
of taking the documents, . . . was not
protected [activity] and that the employer
was free to terminate her for doing so.
[Id. at 273.]
We reject defendant's argument that the holding in Quinlan
essentially prevents the State from introducing evidence before
the grand jury that demonstrates a prima facie showing that
defendant "unlawfully t[ook], or exercise[d] unlawful control
over" the documents. Quinlan did not establish a bright-line
16 A-1449-12T4
rule that automatically entitled defendant to take the Board's
highly confidential original documents. In fact, the Court in
Quinlan made clear that even with the availability of its
multifaceted analysis, employees
run the significant risk that the conduct in
which they engage will not be found by a
court to fall within the protection [the
Quinlan analysis] creates. The risk of
self-help is high and the risk that a [petit
civil] 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.8
[Id. at 272 (emphasis added).]
B.
The State produced sufficient evidence to establish a prima
facie case of official misconduct. Here, the official
misconduct charge is a second-degree offense pursuant to
N.J.S.A. 2C:30-2, because the State presented evidence to the
grand jury that defendant derived a non-pecuniary benefit. See
State v. Phelps, 187 N.J. Super. 364, 375 (App. Div. 1983)
8
We emphasize that the Quinlan majority gave this warning when
it balanced the interests of plaintiffs seeking to vindicate
their rights against employers' legitimate expectation "that
they will not be required to tolerate acts amounting to self-
help or thievery." Id. at 245-46. Thus, the Court gave
sufficient notice to employees that by resorting to self-help,
their conduct may also be illegal.
17 A-1449-12T4
(stating that "a person may be convicted of the second[-]degree
offense of official misconduct even though no pecuniary benefit
is involved"), aff’d, 96 N.J. 500 (1984). Pursuant to N.J.S.A.
2C:30-2b, official misconduct is a third-degree offense "[i]f
the benefit obtained or sought to be obtained . . . is of a
value of [$200] or less." The Court stated that
the Legislature . . . intended to treat more
moderately offenses which, by an objective
standard, could be measured to be relatively
less consequential in nature than would
otherwise be the case. It carved out a type
of official misconduct for lenient
treatment. But the Legislature did not in
the downgrading provision deal with a
benefit not subject to pecuniary
measurement.
[Phelps, supra, 187 N.J. Super. at 375.]
Pursuant to N.J.S.A. 2C:30-2a,
[a] public servant is guilty of official
misconduct when, with purpose to obtain a
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.
Thus, pursuant to this section of the statute, official
misconduct has three elements: (1) a defendant must be a "public
servant," (2) "who committed 'an act relating to his office,'
which constituted 'an unauthorized exercise of his official
18 A-1449-12T4
functions,' knowing that it was unauthorized or committed in an
unauthorized manner," and (3) had a purpose "to obtain a benefit
for himself or another" or "to injure or deprive another of a
benefit." State v. Quezada, 402 N.J. Super. 277, 283 (App. Div.
2008).
The State made a prima facie showing that defendant is a
"public servant," defined by N.J.S.A. 2C:27-1g as any "employee
of government, . . . [who performs] a governmental function[.]"
"The term 'public servant' is 'defined broadly for purposes of
[official] misconduct . . . for . . . offenses against public
administration.'" State v. Perez, 185 N.J. 204, 206 (2005). As
long as defendant performed a "governmental function," she is
considered to be a public servant under this section of the
statute. See Quezada, supra, 402 N.J. Super. at 283 (focusing
on the actor's performance of a governmental function); see also
Perez, supra, 185 N.J. at 207 (stating that a clerk of the North
Bergen Department of Motor Vehicle's office is a "public
servant" because she performed governmental functions). The
Board, which is itself a public entity under N.J.S.A. 59:1-3, is
unquestionably a "governmental vehicle through which [the
constitutional obligation to provide a] mandatory education
takes place." Tonelli v. Bd. of Educ., 185 N.J. 438, 450
(2005). Here, defendant performed a governmental function by
19 A-1449-12T4
serving public school students with special needs and their
families as a clerk for a child study team in the Board's
Special Services Department.
The State also made a prima facie showing that defendant
committed "an act relating to [her] office" which constituted
"an unauthorized exercise of [her] official functions," knowing
that it was unauthorized or committed in an unauthorized manner.
General counsel testified that the Board trained and informed
its employees, "via internal policies[,] guidelines[,] and
regulations[,] that the documents defendant took are highly
confidential and are not to be tampered with in any way." He
asserted that these documents are not to be "disclosed [or]
taken" by Board employees. Giving the State the benefit of all
reasonable inferences, as we must on a motion to dismiss an
indictment, the State showed that it notified defendant in
writing that she was unauthorized to remove the five documents
presented to the grand jury.
Finally, the State produced sufficient evidence to
establish a prima facie showing that defendant had a purpose "to
obtain a benefit for [herself] or another" or "to injure or
deprive another of a benefit." A "benefit" is a "gain or
advantage or anything so regarded by the beneficiary." Phelps,
supra, 187 N.J. Super. at 375; see also N.J.S.A. 2C:27-1a. The
20 A-1449-12T4
statute does not require a malicious intent, but rather an
"affirmative act." State v. Kueny, 411 N.J. Super. 392, 404
(App. Div. 2010). General counsel informed the grand jury that
defendant sued the Board and that defendant's civil case was
pending. Looking at the facts in the light most favorable to
the State, Fleischman, supra, 383 N.J. Super. at 398, defendant
acted with the purpose to derive a benefit by taking the
documents to support her civil lawsuit, or to "injure or
deprive" the Board of its ability to defend the allegations in
the civil suit. Moreover, the removal of copies and original
Board documents exposed the Board to potential liability by
making the Board unprepared for an audit related to Medicaid
reimbursement, and by possibly disrupting psychiatric treatment
for students with special needs.
IV.
Defendant argues that "if she committed any wrongdoing,"
she made an "honest error." Defendant asserts that because she
may have exercised "improper judgment on the job," by taking
documents that may constitute an "unauthorized" act, the judge
erred by denying her motion to dismiss the indictment.
Defendant equated her decision to remove the Board's highly
confidential financial and medical records with that of a
janitor erring by taking home a mop. The premise of her
21 A-1449-12T4
argument is that the Legislature did not intend to include her
conduct as activity that constitutes official misconduct.
"The crime of official misconduct serves to insure that
those who stand in a fiduciary relationship to the public [such
as defendant] will serve with the highest fidelity, will
exercise their discretion reasonably, and will display good
faith, honesty, and integrity." Schenkolewski, supra, 301 N.J.
Super. at 145-46. As we have previously stated, "[a]s long as
an indictment alleges all of the essential facts of the crime,
the charge is deemed sufficiently stated." Id. at 137.
Defendant stood in "a fiduciary relationship" to the public and
therefore was expected to serve with the "highest fidelity."
Thus, we reject defendant's contention that the Legislature did
not intend to include within the official misconduct statute the
activity of taking highly confidential documents while
performing a governmental function as a public servant.
Defendant's "honest error" argument is not insignificant,
however, because it amounts essentially to a claim of right
defense. The time to assert such a defense, though, is at
trial, rather than as a basis to dismiss the indictment.
Pursuant to N.J.S.A. 2C:20-2c, a defendant may assert the
affirmative defense that she "(1) [w]as unaware that the
property . . . was that of another; [or] (2) [a]cted under an
22 A-1449-12T4
honest claim of right to the property . . . that [s]he had a
right to acquire or dispose of it as [s]he did." The jury
charge for this defense states in part that
[i]n addition to . . . her general denial of
guilt, the defendant contends that . . . she
is not guilty of [theft and official
misconduct] because . . . she was acting
pursuant to a claim of right to the
property.
Our law provides that it is a
defense to prosecution[9] for [theft] that
the defendant acted under an honest claim of
right to the property . . . or that . . .
she had a right to acquire or dispose of the
property as . . . she did. An honest claim
is one that is genuinely, though not
necessarily correctly, believed by the
defendant.
This defense, you should note, is
not limited to situations in which a
defendant believed . . . she owned the
property.[] Rather, it includes those
situations in which the defendant honestly,
although not necessarily correctly, believed
that . . . she had either the right or the
authorization to receive, take, acquire, or
dispose of the property.
As I have mentioned to you, since
this is a criminal case the burden of proof
is on the State. The defendant is,
9
Judges are reminded to omit the phrase "affirmative defense,"
to avoid any suggestion that the defendant bears the burden of
proof on a claim of right defense. Nevertheless, the defense is
an affirmative one, and the charge should only be given when
there is some evidence that would support it. N.J.S.A. 2C:1-
13b(1); see State v. Ippolito, 287 N.J. Super. 375 (App. Div.)
(finding an evidential basis for giving this charge), certif.
denied, 144 N.J. 585 (1996).
23 A-1449-12T4
therefore, not required to prove that . . .
she acted pursuant to a claim of right;
rather the burden is on the State to prove
that the defendant did not act pursuant to a
claim of right. . . .
. . . .
[I]f the State has failed to prove beyond a
reasonable doubt . . . that the defendant
did not honestly believe . . . she had a
right to the property or was authorized to
receive, take, acquire, or dispose of the
property, then you must find the defendant
not guilty.
At oral argument before us, counsel addressed questions
regarding whether the judge should have conducted what was
described as a "Quinlan hearing" to resolve whether to grant
defendant's motion to dismiss the indictment.10 Here, the judge
performed the Quinlan analysis out of an abundance of caution.
We are satisfied, however, that Quinlan does not apply directly
to the facts presented here because the Supreme Court did not
intend its holding in that civil case to act as a means of
mounting a facial challenge to the indictment in this criminal
case. As we have discussed at length infra, the standards for
10
We note that in general, prosecutors act independently from
the "civil system." See Div. of Youth & Family Servs. v. Robert
M., 347 N.J. Super. 44, 63-64 (App. Div. 2002) (indicating in
the context of a Title 9 abuse and neglect case that "the
criminal justice system acts separately . . . [from] the civil
system") (quoting State v. P.Z., 152 N.J. 86, 100 (1997))
(internal quotation marks omitted).
24 A-1449-12T4
assessing the sufficiency of an indictment are well-settled.
Hogan, supra, 144 N.J. at 228-29. There is nothing in Quinlan
that signals any deviation from Hogan.
V.
Defendant contends that the indictment must be dismissed
because the State failed to present to the grand jury
exculpatory evidence "relating to" her LAD lawsuit against the
Board. Defense counsel argues that defendant's taking of the
documents to support her civil lawsuit against the Board "is
legal . . . under Quinlan," and that the assistant prosecutor
failed to present defendant's purported reason for taking the
documents. Defendant argues, therefore, that this evidence
would have negated her guilt.
A prosecutor's duty to present exculpatory evidence to a
grand jury arises "only if the evidence satisfies two
requirements: it must directly negate guilt and must also be
clearly exculpatory." Hogan, supra, 144 N.J. at 237. Limiting
the prosecutor's duty to presenting "evidence that directly
negates . . . guilt" recognizes that "the sole issue before the
grand jury is whether the State has made out a prima facie case
of the accused's guilt." Ibid. Exculpatory evidence must
"squarely refute[] an element of the crime." Ibid. The Court
stated that
25 A-1449-12T4
[a]scertaining the exculpatory value of
evidence at such an early stage of the
proceedings can be difficult, . . . 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 (citation omitted).]
Here, presenting evidence to the grand jury that defendant
took the documents to pursue her civil lawsuit against the Board
is not "clearly exculpatory." Even if Quinlan were directly on
point, which it is not, "what the employee did with the
document" is only one factor to consider pursuant to the Quinlan
analysis. Undertaking the Quinlan analysis is "a difficult . .
. task," Quinlan, supra, 204 N.J. at 271, and defendant's
purported reason for taking the documents does not in and of
itself constitute "clearly exculpatory" evidence.
There is also no credible evidence that the State deceived
the grand jury during its presentment of this matter. See
Hogan, supra, 144 N.J. at 236 (maintaining that "the grand jury
cannot be denied access to evidence that is credible, material,
and so clearly exculpatory as to induce a rational grand juror
that the State has not made out a prima facie case against the
accused"). General counsel informed the grand jury that
26 A-1449-12T4
defendant's lawsuit against the Board was "outstanding." In
fact, the grand jury at one point acknowledged that defendant
had filed a suit against the Board and discussed among
themselves the possibility that she took the documents to
support her civil case.
JUROR: Could I ask a question?
MR. HERNANDEZ: Yes, ma'am.
JUROR: What — I'm just curious. I thought I
heard someone . . . say that she was going
to sue the Board.
MR. HERNANDEZ: Yes ma'am.
JUROR: But how is that relevant . . . [?]
(At this time, discussion occurs among Grand
Jurors.)
MR. HERNANDEZ: I believe you answered your
own question.
The assistant prosecutor correctly refrained from
speculating about defendant's purported reason for taking the
documents. See ibid. (stating that "the prosecutor's sole
obligation is to present a prima facie case that the accused has
committed a crime"). In fact, the grand jury was not expected
to resolve the credibility of a potential affirmative claim of
right defense. Ibid. (indicating that "[c]redibility
determinations and resolution of factual disputes are reserved
almost exclusively for the petit jury"). Therefore, presenting
27 A-1449-12T4
such evidence to the grand jury would not "squarely refute[] an
element of the crime." Thus, the assistant prosecutor's
unwillingness to speculate about defendant's purported reason
for taking the documents did not interfere with the grand jury's
decision-making.
VI.
Defendant maintains that allowing the State to criminalize
her conduct through this prosecution will have a chilling effect
on "potential plaintiffs in LAD claims." Defendant implies that
prosecuting her for theft and official misconduct is against
LAD's public policy of rooting out discrimination in the
workplace. This implication amounts to a request that we hold
it is against public policy to criminally prosecute employees
for taking employer public documents.
At the outset, we note that whether to charge an individual
suspected of criminal offenses is within the prosecutor's
discretion. State v. DiFrisco, 118 N.J. 253, 265 (1990) (citing
State v. Hermann, 80 N.J. 122, 127 (1979)). "[T]he Executive
Branch has exclusive authority and absolute discretion to decide
whether to prosecute a case." United States v. Nixon, 418 U.S.
683, 693, 94 S. Ct. 3090, 3100, 41 L. Ed. 2d 1039, 1055 (1974),
superseded by statute, Fed. R. Evid. 104(a). "Beyond purely
constitutional concerns, the judiciary generally defers to the
28 A-1449-12T4
prosecuting attorney's discretion to charge or not to charge
because enforcement decisions are the product of prosecutorial
value judgments and expertise, and [because] courts lack
standards by which to review these decisions." DiFrisco, supra,
118 N.J. at 265 (alteration in original) (citation and internal
quotation marks omitted).
A.
As an intermediate appellate court, we do not have the
power to determine, as a matter of public policy, what should be
considered criminally culpable conduct. The framers of the New
Jersey Constitution expressed that
[t]he powers of the government shall be
divided among three distinct branches, the
legislative, executive, and judicial. No
person or persons belonging to or
constituting one branch shall exercise any
of the powers properly belonging to either
of the others, except as expressly provided
in this Constitution.
[N.J. Const., art. III, ¶ 1.]
We discern no constitutional basis for the judiciary, much less
this court, to intrude into the policy-making arena, an area
traditionally reserved in our tripartite system of governance to
the legislative and executive branches. As ably expressed by
Chief Justice Vanderbilt sixty-three years ago, "no deviation
from the . . . separation of powers [doctrine] will be tolerated
which impairs the essential integrity of one of the [three]
29 A-1449-12T4
branches of government." Massett Bldg. Co. v. Bennett, 4 N.J.
53, 57 (1950).
Our commitment to this fundamental principle of governance
has been reaffirmed and reflected in a variety of opinions
issued by the Supreme Court as well as this court. See Ross v.
Transp. of N.J., 114 N.J. 132, 147 (1989) (refusing to carve out
an exception to the statutory framework governing governmental
limitations on tort liability); In re Closing of Jamesburg High
Sch., 83 N.J. 540, 550 (1980) (holding that "important policy
question[s]" should be left to the Legislature); Robinson v.
Zorn, 430 N.J. Super. 312, 324-25 (App. Div.) (declining to
create an exception to the policy governing governmental
limitations on liability reflected in the Tort Claims Act,
N.J.S.A. 59:1-1 to -12.3), certif. denied, 216 N.J. 8 (2013); In
re Veto by Governor Christie, 429 N.J. Super. 277, 285-86 (App.
Div. 2012) (refusing to "interven[e]" where the Legislature
decided not to amend a 2001 statute that is related to and
arguably inconsistent with comprehensive 2011 legislation),
certif. denied, 214 N.J. 116 (2013); Brick v. Spivak, 95 N.J.
Super. 401, 406 (App. Div.) (stating that "even if [the court]
were to assume that there was an inadvertent omission" in the
pertinent statute, the court "should not assume the function of
the Legislature and rewrite the law to include therein something
30 A-1449-12T4
which those charged with the legislative responsibility might
have inserted if the matter had been called to their
attention"), aff'd o.b., 49 N.J. 400 (1967). Following this
well-settled precedent, we leave to the wisdom of the
Legislature further consideration of whether to amend the theft
and official misconduct statutes. State ex rel. B.P.C., 421
N.J. Super. 329, 347 (App. Div. 2011) ("Our role as a court is
not to question the wisdom of legislative enactments, but to
enforce them as long as they are not contrary to constitutional
principles.").
B.
Although defendant couches her argument broadly, contending
that the State's prosecution will have a chilling effect on
"potential plaintiffs in LAD claims," we consider this
contention under the facts of this case. The Court in Quinlan
considered the potential concern that an employer would destroy
inculpatory documents or that otherwise relevant documents would
become unobtainable if an employee did not resort to self-help
measures to acquire confidential documents pertinent to the
employee's LAD case. But here there is no evidence to suggest
that the documents necessary to prove defendant's case against
the Board would have been unobtainable by using the ordinary
lawful means for securing discovery. Defendant does not argue
31 A-1449-12T4
that she limited her self-help measures to a document or
documents that were clearly inculpatory, so-called "smoking gun"
evidence, to support her claims. Nor does defendant assert on
appeal that she took the documents because "there was a
likelihood that the [Board] would not maintain [them], or would
have discarded [them] in the ordinary course of business, that
[they] would have been destroyed, or that [their] authenticity
would be called into doubt." Quinlan, supra, 204 N.J. at 271.
Likewise, she does not contend that the documents would have
been unavailable if she described them or identified their
existence to the lawyer representing her in the civil case so
that he might demand them in discovery.
Rather, defendant asserts in general that permitting the
State's prosecution of her for official misconduct and theft
would have a chilling effect on "potential plaintiffs in LAD
claims." (Emphasis added). A plaintiff in a discrimination
case such as this, however, has a variety of options by which to
obtain information that is reasonably calculated to lead to the
discovery of admissible evidence, including, but not limited to
(1) seeking, under certain circumstances, to preserve evidence
through taking depositions and obtaining documents before filing
a lawsuit (R. 4:11-1); (2) requesting documents pursuant to a
protective order (R. 4:10-3); (3) taking depositions after the
32 A-1449-12T4
commencement of the action (R. 4:14-1); (4) subpoenaing non-
party witnesses for depositions (R. 4:14-7); (5) propounding
interrogatories (R. 4:17); (6) serving document demands (R.
4:18); (7) propounding requests for admissions (R. 4:22-1); (8)
obtaining orders to make discovery (R. 4:23); (9) seeking
sanctions for failure to comply with court orders (R. 4:23-2);
and (10) obtaining further sanctions for failure to make
discovery (R. 4:23-5). There is no credible suggestion in this
case that any of these lawful discovery avenues were unavailable
to defendant.
There are also safeguards in place for employees like
defendant who might believe that their employers will hide or
destroy evidence. For example, a trial judge in a civil case
may give an adverse inference charge to the jury, that the
destroyed or concealed evidence would have been unfavorable to
the employer. Under certain circumstances, a judge might issue
sanctions against the employer or its counsel, and a party may
bring a new cause of action based on the tort of fraudulent
concealment. Robertet Flavors, Inc. v. Tri-Form Constr., Inc.,
203 N.J. 252, 272-74 (2010); see also Bldg. Materials Corp. of
America v. Allstate Ins., 424 N.J. Super. 448, 472 (App. Div.)
(explaining various methods of addressing spoliation of
evidence), certif. denied, 212 N.J. 198 (2012).
33 A-1449-12T4
There are other safeguards in place to deter employers from
pursuing criminal prosecution unfairly against employees. For
instance, an aggrieved party may bring a claim for malicious
prosecution if she can show that "(1) a criminal action was
instituted by [the] defendant against [her]; (2) the action was
motivated by malice; (3) there was an absence of probable cause
to prosecute; and (4) the action was terminated favorably to the
plaintiff." LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009)
(citing Lind v. Schmid, 67 N.J. 255, 262 (1975)). And,
importantly, pursuant to R.P.C. 3.4(g), a lawyer runs the risk
of ethics charges if that lawyer "present[s], participate[s] in
presenting, or threaten[s] to present criminal charges to obtain
an improper advantage in a civil matter." See Ruberton v.
Gabage, 280 N.J. Super. 125, 134 (App. Div.) (indicating that
"counsel walks a fine line in view of R.P.C. 3.4(g)"), certif.
denied, 142 N.J. 451 (1995).
Moreover, defense counsel has not contended that defendant
photocopied or took a document that "clearly indicates that the
[Board] was engaged in illegal conduct." Quinlan, supra, 204
N.J. at 282. Although defense counsel states generally the
policy concern that indicting employees who take such documents
would undermine LAD's purpose of rooting out discrimination,
counsel does not point to any "smoking gun" document in this
34 A-1449-12T4
case. Nor does counsel explain why the documents were relevant
to defendant's civil claims. Instead, counsel has noted that
defendant's counsel in her civil case merely "chose" to use the
documents. As Justice Albin stated in his dissent in Quinlan,
in the circumstance of "classic whistle-blowing activity," "[a]
test to balance the competing interests of an employee and
employer and the public good, . . . may well be required."
Ibid. Although an affirmative defense of a claim of right would
also be available to an employee who took, for example, the
"smoking gun," we need not reach what consequence, if any, such
a potential balancing test would have on the State's ability to
establish before a grand jury a prima facie case of official
misconduct or theft because that question is not squarely before
us.
VII.
Our dissenting colleague concludes that the indictment
should be dismissed with prejudice based on fundamental fairness
grounds. She maintains that it is unfair to prosecute employees
who reasonably believe that they are entitled to take employer
documents to support LAD and CEPA claims. To dismiss the
indictment as suggested by our colleague, however, would amount
to the judiciary establishing a public policy that employees
must be categorically insulated from criminal prosecution under
35 A-1449-12T4
the theft and official misconduct statutes if they take
confidential employer documents to support potential LAD and
CEPA claims. Such an approach violates the separation of powers
doctrine and requires a sweeping application of the fundamental
fairness doctrine beyond that currently adopted by our Supreme
Court. As we have stated in Point VI A, we leave that policy
question to the wisdom of the Legislature.
The fundamental fairness doctrine applies "when the scope
of a particular constitutional protection has not been extended
to protect a defendant." State v. Yoskowitz, 116 N.J. 679, 705
(1989) (emphasis added); see, e.g., State v. Johnson, 127 N.J.
458, 473-74, 483 (1992) (recognizing an entrapment defense based
on fundamental fairness, but reversing dismissal of the
indictment under the facts of the case); State v. Gaffey, 92
N.J. 374, 388-89 (1983) (permitting dismissal of an indictment
where a defendant has been deemed incompetent to stand trial,
institutionalized for an "adequate period of time," and remains
unfit to stand trial); State v. Sugar, 84 N.J. 1, 14 (1980)
(stating that a prosecutor's eavesdropping on attorney-client
communications would violate fundamental fairness); State v.
Riley, 242 N.J. Super. 113, 118 (App. Div. 1990) (dismissing
indictment where prosecutor breached an agreement not to use
defendant-informant's statement against him); State v. Calvacca,
36 A-1449-12T4
199 N.J. Super. 434, 440-41 (App. Div. 1985) (vacating part of a
sentence to prevent "fundamentally unfair dual punishment").
Similarly, our Supreme Court has stated when a court may
apply fundamental fairness to dismiss an indictment, such as
when protections against double jeopardy do not apply,
successive trials have not resulted in conviction, and the court
determines that "the chance of the State's obtaining a
conviction upon further retrial is highly unlikely." State v.
Abbati, 99 N.J. 418, 435 (1985) (stating that a dismissing court
must "accord careful consideration to the status of the
individual defendant" with regard to listed factors, and
remanding the case for a determination on whether dismissal was
warranted based on the specific circumstances of the case); see
also State v. Dunns, 266 N.J. Super. 349, 381 (App. Div.),
certif. denied, 134 N.J. 567 (1993). Cf. State v. Cruz, 171
N.J. 419, 432 (2002) (holding that dismissal based on
fundamental fairness was unwarranted after one jury trial
resulted in a hung jury); State v. Ruffin, 371 N.J. Super. 371,
386 (App. Div. 2004) (reversing a trial court's dismissal
because the elements of fundamental fairness in favor of
dismissal were "wholly absent"); State v. Torres, 328 N.J.
Super. 77, 94-95 (App. Div. 2000) (holding that prosecutorial
37 A-1449-12T4
misconduct resulting in a mistrial did not warrant dismissal of
the defendant's indictment).
The Court has declined to adopt a broader application of
the doctrine. State v. Del Fino, 100 N.J. 154, 160 (1985)
(stating that "it is by no means clear that the Appellate
Division was correct in concluding that, as a matter of policy,
'fundamental fairness' itself dictates that each of [multiple]
charged conspirators must receive identical treatment," such
that an indictment dismissed as defective as to one co-
conspirator must also be dismissed as to the other co-
conspirator).
After carefully considering the record and the briefs, we
conclude that defendant's remaining arguments are "without
sufficient merit to warrant discussion in a written opinion."
R. 2:11-3(e)(2). On this record, we therefore conclude that
there was probable cause for the grand jury to find that
defendant committed the crimes of theft and official misconduct.
Affirmed.
38 A-1449-12T4
_____________________________________
SIMONELLI, J.A.D., dissenting.
Although a defendant seeking dismissal of an indictment
bears a heavy burden, the indictment in this case should be
dismissed with prejudice. It is fundamentally unfair to
criminally prosecute and imprison an individual for theft,
N.J.S.A. 2C:20-3a, and official misconduct, N.J.S.A. 2C:30-2a1
for taking or copying confidential employer documents while
engaged in protected activity pursuant to the Conscientious
Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14,2 and the
New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to
-49. The law gives no fair warning the conduct is illegal.
I begin with a brief review of the prohibitions,
protections and encouragements the Legislature established in
the LAD and CEPA. "[T]he essential purpose of the LAD is the
1
The grand jury indicted Ivonne Saavedra for second-degree
official misconduct, N.J.S.A. 2C:30-2a. A second-degree crime
carries a presumption of imprisonment. N.J.S.A. 2C:44-1d.
Thus, Saavedra faces a five- to ten-year term of imprisonment if
convicted of this crime. Ibid.
2
Saavedra raised her CEPA claim in the first count of her
complaint, alleging she was subjected to retaliation and
harassment as a result of her complaints about her employer's
violations of law and public policy, including pay
irregularities, employee abuse of vacation time, and violations
of the Family Medical Leave Act, 29 U.S.C.A. §§ 2601-2654, the
New Jersey Family Leave Act, N.J.S.A. 34:11B-1 to -16, and child
study regulations.
'eradication of the cancer of discrimination.'" Quinlan v.
Curtiss-Wright Corp., 204 N.J. 239, 258 (2010) (quoting Fuchilla
v. Layman, 109 N.J. 319, 334, cert. denied 488 U.S. 826, 109 S.
Ct. 75, 102 L. Ed. 2d 51 (1988)) (internal quotation marks
omitted). The LAD protects not only the aggrieved employee, but
also the public's strong interest in a discrimination-free
workplace, and acknowledges a well-established tenet of New
Jersey jurisprudence that freedom from discrimination is one of
the fundamental principles of our society. Fuchilla, supra, 109
N.J. at 334-35.
The LAD prohibits employment discrimination because of
race, religion, sex, or other protected status. Cutler v. Dorn,
196 N.J. 419, 430 (2008). The LAD also makes it unlawful to
retaliate against a person who
has opposed any practices or acts forbidden
under [the LAD] or because that person has
filed a complaint, testified or assisted in
any proceeding under [the LAD] or to coerce,
intimidate, threaten or interfere with any
person in the exercise or enjoyment of, or
on account of that person having aided or
encouraged any other person in the exercise
or enjoyment of, any right granted or
protected by [the LAD].
[N.J.S.A. 10:5-12d.]
Our Supreme Court has emphasized that the LAD's protection
against retaliation
2 A-1449-12T4
is broad and pervasive, and must be seen as
necessarily designed to promote the
integrity of the underlying
antidiscrimination policies of the [LAD] by
protecting against reprisals any person who
has sought to protect his or her own rights
not to be discriminated against or who has
acted to support such conduct.
[Quinlan, supra, 204 N.J. at 259 (quoting
Craig v. Suburban Cablevision, Inc., 274
N.J. Super. 303, 310 (App. Div. 1994),
aff'd, 140 N.J. 623 (1995)) (internal
quotation marks omitted).]
In conjunction with the LAD, the Legislature designed CEPA
to provide broad protections against employer retaliation for
employees acting within the public interest. D'Annunzio v.
Prudential Ins. Co. of Am., 192 N.J. 110, 114 (2007); Racanelli
v. Cnty. of Passaic, 417 N.J. Super. 52, 56-57, 59 (App. Div.
2010). CEPA promotes "the 'strong public policy' of
'reaffirm[ing] . . . this State's repugnance to an employer's
retaliation against an employee who has done nothing more than
assert statutory rights and protections.'" Yurick v. State, 184
N.J. 70, 77-78 (2005) (alterations in original) (quoting
Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431
(1994)) (internal quotation marks omitted).
CEPA's "purpose is to protect and encourage employees to
report illegal or unethical workplace activities and to
discourage public and private sector employers from engaging in
such conduct." Abbamont, supra, 138 N.J. at 431 (emphasis
3 A-1449-12T4
added). "The object of CEPA is not to make lawyers out of
conscientious employees but rather to prevent retaliation
against those employees who object to employer conduct that they
reasonably believe to be unlawful or indisputably dangerous to
the public health, safety or welfare." Mehlman v. Mobil Oil
Corp., 153 N.J. 163, 193-94 (1998). Accordingly, CEPA makes it
"unlawful for an employer to retaliate against an employee who
report[s] illegal or unethical workplace activities," Donelson
v. DuPont Chambers Works, 206 N.J. 243, 256-57 (2011)
(alteration in original) (quoting Dzwonar v. McDevitt, 177 N.J.
451, 461-62 (2003)), and subjects employers, both public and
private, to penalties, including punitive damages. Abbamont,
supra, 138 N.J. at 426. "CEPA is a remedial statute that
'promotes a strong public policy of the State' and 'therefore
should be construed liberally to effectuate its important social
goal.'" Battaglia v. United Parcel Serv., Inc., 214 N.J. 518,
555 (2013) (quoting Abbamont, supra, 138 N.J. at 431).
CEPA clearly encourages employees to report, object to, or
refuse to participate in an employer's or co-employee's
activity, policy or practice the employees reasonably believe
violates "a law, or a rule or regulation promulgated pursuant to
law," or "is fraudulent or criminal." N.J.S.A. 34:19-3a(1)-(2),
c(1)-(2); see also Donelson, supra, 206 N.J. at 255-56;
4 A-1449-12T4
Abbamont, supra, 138 N.J. 431. "The sine qua non of a CEPA
claim is not the actual occurrence of a violation of promulgated
authority or public policy, but rather the existence of a
reasonable belief to the effect that such authority or policy
has been breached." Mehlman v. Mobil Oil Corp., 291 N.J. Super.
98, 123 (App. Div. 1996), aff'd, 153 N.J. 163 (1998).
CEPA also clearly encourages whistleblowing employees to
provide information about illegal or unethical workplace
activities and protects them from retaliation for doing so.
N.J.S.A. 34:19-3b. Employees often provide information by
taking or copying confidential employer documents and
transmitting the documents to their attorneys, which Saavedra
did in this case.
I now turn to the pertinent criminal statutes. "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:20-3a. A person is guilty of
official misconduct
when, with purpose to obtain a benefit for
himself or another or to injure or to
deprive another of a benefit . . . [h]e
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.
[N.J.S.A. 2C:30-2a.]
5 A-1449-12T4
"Unlike most crimes, as to which ignorance of the law is not
material, . . . an essential element of . . . official
misconduct is defendant's knowledge that the act he commits is
unauthorized." State v. Grimes, 235 N.J. Super. 75, 89 (App.
Div.) (citations omitted), certif. denied, 118 N.J. 222 (1989).
In order for a public servant to be aware that he or she is
committing an unauthorized act and thereby "fairly expose"
himself or herself to prosecution for official misconduct,
"there must be an available body of knowledge by which the
[public servant] had the chance to regulate his conduct. The
law must give a person of ordinary intelligence fair warning
what conduct is proscribed, so that he may act accordingly."
Id. at 89-90 (emphasis added). Thus, where an area of law or
regulation is so amorphous and uncertain that persons of
ordinary intelligence have no fair warning their conduct was
illegal, such conduct cannot be punished with criminal
prosecution. See State v. Kittrell, 145 N.J. 112, 130 (1996)
(holding that criminal statutes must "clearly define the conduct
prohibited and the penalties imposed" in order to satisfy the
notice requirements of the Due Process Clause). We have
emphatically and in no uncertain terms held that where the law
gives a person of ordinary intelligence no fair warning what
conduct is proscribed, "[i]n those circumstances, it is
6 A-1449-12T4
fundamentally unfair to subject a defendant to a criminal
prosecution." Grimes, supra, 235 N.J. Super. at 90. Similarly,
our Supreme Court has held that
[a] penal statute should not become a trap
for a person of ordinary intelligence acting
in good faith, but rather should give fair
notice of conduct that is forbidden. A
defendant should not be obliged to guess
whether his conduct is criminal. Nor should
the statute provide so little guidance to
the police that law enforcement is so
uncertain as to become arbitrary.
[State v. Lee, 96 N.J. 156, 166 (1984)
(citations omitted).]
Neither the theft statute nor the public official statute
give fair warning that the taking or copying confidential
employer documents while engaged in CEPA- and/or LAD-protected
activity is "unlawful" or criminally "unauthorized."3 The LAD
and CEPA give no fair warning as well. In fact, CEPA does not
define the word "information" or prohibit or limit disclosure of
information contained in confidential employer documents.
By contrast, Quinlan permits employees to take or copy
confidential employer documents under certain circumstances,
3
Likewise, the Board's alleged policies and regulations relating
to its confidential documents, which the State presented to the
motion judge but not the grand jury, do not warn employees of
any consequences, let alone criminal prosecution and
imprisonment. The State never presented any evidence to the
grand jury that Saavedra received or was actually aware of these
alleged documents.
7 A-1449-12T4
which the majority declined to characterize as a "theft."
Quinlan, supra, 204 N.J. at 268-72.4 Further, Quinlan only
warned employees of the "significant risk" of adverse employment
action, such as termination, for their self-help activities, not
criminal prosecution and imprisonment. Id. at 272. Even
Justice Albin recognized that employees may be justified in
taking or copying confidential employer documents where the
documents "clearly indicate[] that the employer was engaged in
illegal conduct." Id. at 282 (Albin, J., dissenting). And
there are cases where whistleblowing employees prevailed while
relying on confidential employer documents. See, e.g., Mehlman,
supra, 153 N.J. at 174, 176; Parker v. M & T Chemicals, Inc.,
236 N.J. Super. 451, 453-54 (App. Div. 1989).
Under these circumstances, the law is so amorphous and
uncertain that lay persons of ordinary intelligence acting in
good faith pursuant to CEPA and/or the LAD have no fair warning
it is a crime to take or copy confidential employer documents
they may reasonably believe are relevant to their claims and
transmit those documents to their private attorneys.
Accordingly, it is fundamentally unfair to subject these
4
The Court also upheld the punitive damages award, in part,
because the employer "branded [Quinlan] a thief." Id. at 276.
8 A-1449-12T4
individuals to criminal prosecution for theft and official
misconduct.
The majority does not dispute that the law gives no fair
warning the conduct at issue here is illegal. Instead, the
majority states that the judiciary should not expand the
doctrine of fundamental fairness to this case and that applying
the doctrine "would amount to the judiciary establishing a
public policy" categorically insulating employees who took or
copied employer documents to support their LAD and CEPA claims
from criminal prosecution under the theft and official
misconduct statutes. Supra at ___ (slip op. at 35-38).
I do not seek to "intrude into the policy-making arena", as
the majority suggests. Supra at ___ (slip op. at 29). Rather,
because the law, including the theft and official misconduct
statutes, provides no warning the conduct is proscribed, I
suggest that the judiciary expand and apply the doctrine of
fundamental fairness in order to ensure justice for all
employees who act in good faith pursuant to the LAD and/or CEPA.
See Zehl v. City of Elizabeth Bd. of Educ., 426 N.J. Super. 129,
137 (App. Div. 2012) (holding that "[t]he judiciary has more
than a significant stake in ensuring that it is able to operate
in a manner and under circumstances to meet the same policy
9 A-1449-12T4
objective for which remedial legislation strives, that is, to
ensure justice for all litigants").
The majority states, and I agree, that we must "leave to
the wisdom of the Legislature further consideration of whether
to amend the theft and official misconduct statutes." Supra at
___ (slip op. at 31) (emphasis added). It appears that applying
these statutes as presently written to the circumstances of this
case conflicts with the policies, prohibitions, protections and
encouragements the Legislature established in the LAD and CEPA. 5
Criminal prosecution and the threat of imprisonment seem to
interfere with and deprive employees of their clear rights and
protections under the LAD and CEPA, and improperly insulate
employers from what may be entirely legitimate claims exposing
illegal or unethical conduct. See Quinlan, supra, 204 N.J. at
268 (noting that an employer cannot insulate itself from a
legitimate claim of discrimination by accusing the employee of
theft of documents). Only the Legislature can resolve this
5
This conflict may also extend to the New Jersey False Claims
Act (FCA), N.J.S.A. 2A:32C-1 to -17. The FCA encourages
employees to disclose confidential employer information for the
purpose of filing lawsuits alleging fraud of or by State-funded
entities, such as the Board in this case. As with the LAD and
CEPA, the Legislature has prohibited employers from taking
adverse employment action against employees who disclose
confidential employer information pursuant to the FCA. N.J.S.A.
2A:32C-10b. However, there is nothing prohibiting criminal
prosecution of these employees for theft and official
misconduct.
10 A-1449-12T4
conflict. Until the Legislature does so, however, the doctrine
of fundamental fairness should apply to preclude criminal
prosecution in this case.
For these reasons, I respectfully dissent.
11 A-1449-12T4