DANA CLARK STEVENSON VS. DEPARTMENT OF LAW AND PUBLIC SAFETY (NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1390-17T4
DANA CLARK STEVENSON,
Petitioner,
v.
DEPARTMENT OF LAW AND
PUBLIC SAFETY,
Respondent-Respondent.
____________________________
Argued September 18, 2019 – Decided October 1, 2019
Before Judges Fuentes and Haas.
On appeal from the New Jersey Department of Law and
Public Safety.
Michael M. Mulligan, Salem County Counsel, argued
the cause for appellant County of Salem.
Robert J. McGuire, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Robert J. McGuire, on
the brief).
PER CURIAM
Appellant County of Salem (the County) appeals from the Attorney
General's final decision denying the County's request for defense and
indemnification in connection with a class action lawsuit filed against it by a
group of inmates. We affirm.
The underlying facts of this matter are not in dispute. On May 17, 2017,
four inmates housed by the County in the Salem County Jail filed a complaint
against the County in the Law Division. The inmates alleged that the County
violated their federal and state civil rights by adopting policies and practices
requiring that they and other similarly-situated inmates be "classified as suicidal
for no apparent reason, made to wear garments which exposed [their] private
parts, and . . . routinely strip searched" several times a day. The inmates sought
an award of compensatory damages, and a judgment declaring the County's
"policies, practices and customs to be unconstitutional and/or violations of their
rights."
Significantly, the complaint did not name the County Sheriff or any
individual county employees as defendants. On June 19, 2017, the County filed
an answer to the complaint.
Two months later, the County sent a letter to the Attorney General and the
Commissioner of the State Department of Corrections demanding that the
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Attorney General defend and provide indemnification to the County in the
lawsuit. In support of this demand, the County relied upon the Tort Claim Act,
N.J.S.A. 59:1-1 to -12.3 (the Act), but failed to cite a specific section of the Act
that supported its request. The County also referred to the Supreme Court's
seminal decision in Wright v. State, 169 N.J. 422 (2001) in support of its claim
that it was entitled to defense and indemnification.
On September 21, 2017, the Attorney General rendered a written decision
denying the County's demand. The Attorney General explained that in Wright,
the Court held that a county prosecutorial employee, sued for actions taken while
acting in his or her law enforcement or investigatory capacity, could be
considered a "State employee" under the Act and entitled to defense and
indemnification provided by the State. In this case, however, the Attorney
General determined that Wright did not apply because the County's development
and implementation of a strip search policy at the county-operated correctional
facility was an administrative function, rather than a law enforcement action.
This appeal followed.
On appeal, the County raises the following contentions:
POINT ONE: The County Sheriff and his
uniformed corrections staff prove to be local agents of
the State for law enforcement purposes respecting the
management of a county adult correctional facility.
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POINT TWO: A county sheriff's operation of a
county jail is subject to a compulsory and pervasive
State government regulatory framework administered
by the Attorney General and the Department of
Corrections.
POINT THREE: The vicarious liability rule of the
New Jersey Tort Claims Act [the Act] authorizes
imposition of liability on the State for unintentional
wrongs by its local law enforcement "agents[,"]
including county jail corrections staff.
POINT FOUR: Where the [Act] permits vicarious
liability to be imposed upon the State of New Jersey for
a sheriff's law enforcement officer's unintentional
wrongs, the State owes trial court defense and
indemnity obligations to the sheriff and the county.
We have reviewed the County's contentions in light of the record and
applicable law, and conclude they are without sufficient merit to warrant
extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the
following brief comments.
The County based its demand for defense and indemnification on two
grounds: the Act and the Court's decision in Wright. However, neither provides
support for the County's contentions.
N.J.S.A. 59:10A-1 provides that "the Attorney General shall, upon a
request of an employee or former employee of the State, provide for the defense
of any action brought against such State employee or former State employee on
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account of an act or omission in the scope of his [or her] employment."
(emphasis added). "If . . . the Attorney General provides for the defense of an
employee or former employee, the State shall [also] provide indemnification for
the State employee." N.J.S.A. 59:10-1. (emphasis added).
Here, only the County was named as a defendant in the inmates'
complaint. Neither the County Sheriff nor any of his individual employees were
parties to the Law Division action. Because the Act plainly states that only an
employee may seek defense and indemnification, the County was not entitled to
do so under the Act, N.J.S.A. 59:10A-1; N.J.S.A. 59:10-1, and the County was
unable to offer any alternate statutory support for its claim.
Under these circumstances, the Court's decision in Wright is simply
inapplicable. In that case, the Court had to decide whether employees of a
county prosecutor's office should be treated as "State employees" eligible for
defense and indemnification in a case where they were sued as individuals for
alleged improper actions taken during their law enforcement activities. Wright,
169 N.J. at 429-31. The Court concluded that these county prosecutors held a
"hybrid status" due to their "unique role" in performing a "function that has
traditionally been the responsibility of the State and for which the Attorney
General is ultimately answerable." Id. at 455-56.
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In the present case, however, no county employees were parties to the
underlying class action lawsuit, and no employees sought defense and
indemnification from the State. Therefore, and contrary to the County's
assertions, there is no need to perform a Wright analysis in this matter.
Nevertheless, and for purposes of completeness, we note that the County
Sheriff "and his [or her] office are part of county government." In re Burlington
County Bd. of Chosen Freeholders, 99 N.J. 90, 97 (1985). Unlike the situation
in Wright, where the county prosecutors shared responsibility with the State for
the enforcement of the State's criminal law, the County Sheriff alone is charged
with "the care, custody and control of the county jail or jails and all persons
therein, and shall be responsible for the conduct of any keeper appointed by
him" to oversee the operation of those institutions. N.J.S.A. 30:8-17. These
"administrative functions[,]" including the development and implementation of
the challenged search procedures, "are the exclusive responsibility of the
County" and, therefore, do not fall under the rule of Wright. Lavezzi v. State,
219 N.J. 163, 167 (2014); see also Kaminskas v. Office of the Attorney General,
236 N.J. 415, (2019) (reaffirming Wright, and holding that the Attorney General
was not required to defend and indemnify county police officers).
Affirmed.
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