DION HARRELL VS. STATE OF NEW JERSEY DEPARTMENT OF THE TREASURY (L-2768-18, MONMOUTH COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3628-18T3
DION HARRELL,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY
DEPARTMENT OF THE
TREASURY,
Defendant-Respondent.
________________________
Argued January 13, 2020 – Decided February 25, 2020
Before Judges Sabatino, Sumners and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-2768-18.
Glenn Andrew Garber argued the cause for appellant.
Brett J. Haroldson, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Brett J. Haroldson, on the
brief).
PER CURIAM
In 1993, plaintiff Dion Harrell was convicted by a jury of second-degree
sexual assault, a crime that he indisputably did not commit. He completed his
sentence for that crime, and a separate burglary charge, in 1997. After DNA
evidence obtained on July 13, 2016 excluded him as the assailant in the sexual
assault, he requested that the Monmouth County Prosecutor vacate his sentence.
On August 3, 2016, the Monmouth County Prosecutor consented to vacate
Harrell's sexual assault conviction along with two related convictions for
Megan's Law, N.J.S.A. 2C:7-1 to -11, violations.
Less than two years later, on August 1, 2018, Harrell filed a complaint
against the New Jersey Department of the Treasury (Department) seeking money
damages under the Compensation for Persons Mistakenly Imprisoned Act
("MIA" or "Act"), N.J.S.A. 52:4C-1 to -7, for the period he was wrongfully
imprisoned and for the time he was improperly forced to register as a sex
offender. The Department filed a motion to dismiss for failure to state a claim
under Rule 4:6-2(e), contending that Harrell, while innocent of the sexual assault
charge, failed to file his claim within two-years "after his release from
imprisonment"1 as specifically prescribed by the MIA. N.J.S.A. 52:4C-4.
1
The MIA also permits an individual to file within two years "after the grant of
a pardon," a circumstance inapplicable here. N.J.S.A. 52:4C-4.
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2
Relying on Watson v. N.J. Dep't of Treasury, 453 N.J. Super. 42 (App.
Div. 2017), the trial court granted the Department's motion. We fully agree with
the trial court's well-reasoned analysis that Harrell failed to file his claim within
two-years of his release from prison as required by the MIA and is time barred
under the clear and unambiguous language of the statute. We also reject
Harrell's request that we equitably toll the statutory period.
I.
We discuss the relevant and undisputed factual background and
procedural history of Harrell's convictions and his request for compensation
under the MIA to provide context for our opinion. In September 1988, a
seventeen-year old girl was grabbed from behind by her neck and dragged with
her mouth covered into an empty parking lot where she was sexually assaulted.
After the assailant stole her purse, he left the victim who ran home, told her
mother who then called the police. The victim was then taken to the emergency
room where a rape kit obtained from her examination was turned over to police,
refrigerated, and transported to the New Jersey State Police East Regional
Laboratory for analysis.
Despite claiming he was elsewhere playing basketball with friends at the
time of the sexual assault, Harrell was arrested shortly thereafter and released
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on bail pending trial. Harrell was tried and convicted of second-degree sexual
assault and sentenced to an eight-year custodial term. At the time of his
conviction, Harrell had a pending unrelated third-degree burglary charge for
rummaging through a parked vehicle. Harrell pled guilty to the burglary charge
and was sentenced to a four-year prison term, to run consecutively to the sexual
assault conviction.
Harrell served four years in prison before being released on parole on
March 26, 1997. Following his release, Harrell was required to register as a sex
offender under Megan's Law. Harrell failed to comply with the registry program
and was arrested, pled guilty, and re-imprisoned on two separate occasions, June
25, 2004, and July 17, 2013.
In his merits brief, Harrell states that "at the time of [his] prosecution and
. . . release, DNA testing was not available." He further asserts, without any
record support, that "in 2002, when the law changed to permit DNA testing for
incarcerated defendants asserting innocence, [he] reached out to the Innocence
Project for assistance" but was "turned away" "because the law at the time only
applied to incarcerated defendants." In his verified petition, he asserted that "in
2014 the Innocence Project took on [his] case and filed a motion to have DNA
testing done . . . [and] [a]fter . . . initial opposition by the Monmouth County
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Prosecutor, the motion was granted on consent on February 13, 2015. " On July
13, 2016, a report from Bode Cellmark Forensic excluded Harrell as the assailant
in the sexual assault, "conclusively proving his innocence." Harrell's sexual
assault conviction and the two Megan's Law violations were subsequently
vacated on August 3, 2016.
On August 1, 2018, Harrell filed a verified complaint in the Law Division,
seeking compensation for his wrongful imprisonment under the MIA. The
complaint requested relief of $50,000 per year for each year Harrell served in
prison for his wrongful conviction, and $25,000 per year for each year he was
on the sex offender registry.
In opposing the Department's motion to dismiss, Harrell argued that the
MIA should be interpreted expansively to allow claims to be brought within two
years of a sentence being vacated. He maintained that reading the statute to
permit only claims to be brought within two years of release from prison, or two
years from the date of a pardon, would be contrary to the Legislature's intent.
Harrell alternatively argued that equitable tolling should apply to permit his
belated filing.
In his oral decision, the trial judge reasoned that Harrell's failure to file
his complaint within two years of being released from prison barred his claim.
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Although the judge did not specifically address Harrell's equitable tolling
argument, the judge was clearly aware of the equities attendant to his decision,
commenting:
The real issue is when does this cause of action accrue.
And is this one of those instances where the
[L]egislature just got it wrong. And if you look at their
intent which, you know, I realize the traditional
arguments advanced here are the [L]egislature is
presumed to act correctly when they act. But as
plaintiff's counsel does indicate, there are those rare
circumstances where if you ask me to read this
legislation in a remedial fashion to protect those who
have been wrongly incarcerated, then I need to take a
little bit more of an expansive view of this.
The judge further noted:
[U]ntil the charges were vacated, it would have been an
immediate [Rule] 4:62 motion probably filed by a
frivolous litigation letter had any attorney brought suit
saying that my client's innocent and you know he's
entitled to compensation under the [MIA] when there
would be a valid, an undisturbed criminal conviction.
The judge nonetheless acknowledged that he was bound by this court's
authority in Watson, 453 N.J. Super. at 42, to strictly apply the "clear and
unambiguous" two-year statute of limitations imposed by the MIA. This appeal
followed.
Before us, Harrell raises the same two arguments rejected by the trial
court. First, he maintains that despite the MIA's clear language, this court can
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and should interpret the statute to give it the meaning and effect the Legislature
intended by allowing him to bring his claim within two years of his vacated
conviction. Second, he contends that we should apply the doctrine of equitable
tolling as an alternative remedy because plaintiff was prevented from asserting
his rights "in some extraordinary way."
In response, the Department contends that the clear and unambiguous
language of the MIA bars Harrell's untimely claims and the facts here do not
warrant the equitable tolling of the statutory period. The Department also
advances two arguments not presented to the trial court. Specifically, it
maintains that because Harrell pled guilty to Megan's Law offenses, "he could
not recover for any time spent in prison as a result of [those] violations." The
Department also claims that even though Harrell received a consecutive, and not
a concurrent sentence, "he would have still . . . spent four years in prison for the
burglary regardless of the outcome of the sexual assault charges" and
consequently he should not receive any compensation for the four years he was
unjustly incarcerated on the sexual assault offense.
II.
We review an order granting a motion to dismiss de novo and we owe no
deference to the trial court's conclusions. Castello v. Wohler, 446 N.J. Super.
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1, 14 (App. Div. 2016); Rezem Family Assocs., LP v. Borough of Millstone,
423 N.J. Super. 103, 114 (App. Div. 2011). A motion to dismiss for failure to
state a claim must be denied if, giving plaintiff the benefit of all his allegations
and all favorable inferences, a claim has been made out. R. 4:6-2(e); Banco
Popular North America v. Gandi, 184 N.J. 161, 165 (2005). The inquiry is
limited to examining the legal sufficiency of the facts alleged on the face of the
complaint. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739,
746 (1989).
Effective August 25, 1997, the MIA provides a cause of action for
individuals who were imprisoned and can prove by clear and convincing
evidence that they are innocent of the crime for which they served time. The
Act provides:
The Legislature finds and declares that innocent
persons who have been convicted of crimes and
subsequently imprisoned have been frustrated in
seeking legal redress and that such persons should have
an available avenue of redress to seek compensation for
damages. The Legislature intends by enactment of the
provisions of this act that those innocent persons who
can demonstrate by clear and convincing evidence that
they were mistakenly convicted and imprisoned be able
to recover damages against the State.
In light of the substantial burden of proof that must be
carried by such persons, it is the intent of the
Legislature that the court, in exercising its discretion as
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permitted by law regarding the weight and admissibility
of evidence submitted pursuant to this section, may, in
the interest of justice, give due consideration to
difficulties of proof caused by the passage of time, the
death or unavailability of witnesses, the destruction of
evidence or other facts not caused by such persons or
those acting on their behalf.
[N.J.S.A. 52:4C-1.]
"[T]he Act is remedial legislation intended to facilitate the claims of
innocent persons who have been wrongly convicted of crimes and subsequently
imprisoned by according them remedies over and above those already existin g .
. . ." Mills v. State, 435 N.J. Super. 69, 77 (App. Div. 2014) (internal quotations
omitted). In order to recover damages under the MIA, a claimant is required to
prove, by clear and convincing evidence, each of the following elements:
a. That he was convicted of a crime and subsequently
sentenced to a term of imprisonment, served all or any
part of his sentence; and
b. He did not commit the crime for which he was
convicted; and
c. He did not commit or suborn perjury, fabricate
evidence, or by his own conduct cause or bring about
his conviction . . . ; and
d. He did not plead guilty to the crime for which he was
convicted.
[N.J.S.A. 52:4C-3.]
A-3628-18T3
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Because the "Act is, in part, a waiver of [state] sovereign immunity," it is
not without limits. Mills, 435 N.J. Super. at 77. In this regard, a falsely
imprisoned person who wishes to recover under the MIA must bring his or her
claim "within a period of two years after his release from imprisonment, or after
the grant of a pardon to him . . . ." N.J.S.A. 52:4C-4. For individuals like Harrell
whose release preceded the MIA's 1997 enactment, the statute provided that
"any eligible claimant released or pardoned during the five-year period prior to
May 2, 1996 shall have two years from the effective date of [the] act to file suit."
Thus, the MIA by its plain language does not permit a vacated sentence to be
the triggering date for the accrual of the statute of limitations.
Statutes of limitations serve at least three important policy interests. The
first is to instill in society a "'measure of repose.'" Caravaggio v. D'Agostini,
166 N.J. 237, 245 (2001) (quoting Farrell v. Votator Div. of Chemetron Corp.,
62 N.J. 111, 115 (1973)). The New Jersey Supreme Court has recognized this
as the primary benefit of statutes of limitations, finding that "eventual repose
creates desirable security and stability in human affairs." Galligan v. Westfield
Centre Serv., Inc., 82 N.J. 188, 191-92 (1980).
Second, the statutes encourage the prompt settlement of disputes, so that
potential litigants do not sit on their rights. "By penalizing unreasonable delay,
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such statutes induce litigants to pursue their claims diligently so that answering
parties will have a fair opportunity to defend." Id. at 192 (citations omitted);
see also Troum v. Newark Beth Israel Med. Ctr., 338 N.J. Super. 1, 22 (App.
Div. 2001). Third, statutes of limitations help assure that judges and juries do
not have to adjudicate "stale claims." Mitzner v. W. Ridgelawn Cemetery, Inc.,
311 N.J. Super. 233, 236 (App. Div. 1998).
III.
Harrell offers five reasons in support of his first argument on appeal.
Initially, he contends that a literal reading of the statute would produce an
"absurd result" and is "at odds with the overall statutory scheme" because
despite his "diligent" efforts to pursue exoneration, he was not allowed to make
use of DNA testing to prove his innocence within the two-year period after his
release from prison.
Second, he argues that we should view the MIA in conjunction with
related legislation that permits DNA testing for the wrongfully convicted.
According to Harrell, if the Legislature in 2015 recognized that DNA testing
should not be limited to people still in prison, then the MIA, which is intertwined
with the overall post-conviction statutory scheme, should be interpreted to
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accept claims that are brought within two years of exoneration, when the claim
first becomes cognizable.
Third, he maintains that under the MIA, Harrell must prove by clear and
convincing evidence that "[h]e did not commit the crime for which he was
convicted," N.J.S.A. 52:4C-3, a showing he contends was impossible for him to
make until his conviction was reversed, because a criminal conviction is
conclusive evidence of guilt.
Fourth, he posits that the pardon provision in the MIA supports his
interpretation that a person should be able to bring a claim within two years of
their conviction being vacated because a pardon exoneree would be able to
achieve relief under the Act even though more than two years has passed since
being released from prison. Harrell argues it is therefore "illogical" for the
Legislature to afford access to this type of exoneree yet preclude someone like
Harrell who is equally worthy.
Fifth, he claims that if forcing a claimant to file suit under the MIA before
he is released from custody was considered unfair by the Legislature (as
evidenced by the accrual date of the statute of limitations not beginning to run
until after release from prison), it is "inconceivable" that the Legislature wanted
the statute of limitations to begin running before a claim can even be proven.
A-3628-18T3
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We have thoroughly considered all of these arguments and reject them as
they effectively request that we re-write a clear and unambiguous statute and
ignore the Legislature's clear manifestation that claims like Harrell's must be
filed within two years "after his release from imprisonment" or "after the grant
of a pardon." The vacatur of a sentence or dismissal of criminal charges simply
is not a triggering event under the MIA.
When interpreting a statute, we begin with its plain language, which is the
"best indicator" of legislative intent. State v. Rodriguez, 238 N.J. 105, 113
(2019). A statute's plain language "must be construed 'in context with related
provisions so as to give sense to the legislation as a whole.'" Ibid. (quoting
Spade v. Select Comfort Corp., 232 N.J. 504, 515 (2018). "Unless it is
'inconsistent with the manifest intent of the legislature,' or 'another or different
meaning is expressly indicated,' we ascribe to the Legislature's words and
phrases 'their generally accepted meaning, according to the approved usage of
the language.'" Finkelman v. Nat'l Football League, 236 N.J. 280, 289 (2019)
(quoting N.J.S.A. 1:1-1).
"If the plain language leads to a clear and unambiguous result, then our
interpretive process is over." Johnson v. Roselle EZ Quick LLC, 226 N.J. 370,
386 (2016) (quoting Richardson v. PFRS, 192 N.J. 189, 195 (2007)). However,
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"if there is ambiguity in the statutory language that leads to more than one
plausible interpretation, we may turn to extrinsic evidence, 'including legislative
history, committee reports, and contemporaneous construction.'" DiProspero v.
Penn, 183 N.J. 477, 492-93 (2005).
This court has previously interpreted the statute of limitations provision
of the MIA in Watson, 453 N.J. Super. at 47. In that case, the trial court granted
the State's motion to dismiss because Watson did not file his complaint within
two years of being released from prison. Ibid. Before us, Watson argued that
the two-year limitation period should begin to run when his 1988 conviction was
vacated, as opposed to two years after he was released from prison. Id. at 46-
47. We rejected that argument and affirmed the trial court's decision and found
"the plain language [of the statute] is clear and unambiguous," id. at 49, and
reasoned:
The statute identifies two triggering events from which
to calculate the two-year statute of limitations: release
from imprisonment or a pardon. It is apparent from the
plain language of the MIA that the Legislature
considered pardon to be a separate and independent
triggering event. The Legislature did not include as a
triggering event, reversals or vacatur of convictions
subsequent to a criminal defendant's release from
imprisonment. The legal consequences of each are not
always equivalent.
[Ibid. (emphasis added).]
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Harrell points out that the facts in Watson are distinguishable from the
facts here. He argues Watson was most likely guilty and his sentence was
vacated on constitutional grounds rather than innocence grounds, and that he
committed many other serious crimes. Further, Watson had an opportunity to
vacate his sentence in 2000 and chose not to do so, instead waiting fourteen
years after the remedy became available to seek vacatur. In contrast, Harrell
alleges (without record support) that he sought assistance from the Innocence
Project to vacate his sentence in 2002.
While we acknowledge that Harrell is an eminently more sympathetic
party than Watson, and the circumstances regarding his claim are clearly
distinct, the Watson holding was not premised on any of those distinguishing
facts. Rather, the Watson court correctly interpreted the statute of limitations
provision of the MIA to not include reversals or vacaturs of convictions as
additional triggering events that start the limitations clock, a conclusion we still
endorse.
Turning to Harrell's remaining arguments, we reject his claim that he was
unable to access his DNA evidence until 2016 as unsupported by the record and
speculative. In addition, we find no support in the text of the MIA that the
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Legislature intended it to be read in conjunction with N.J.S.A. 2A:84A-32A,2
and certainly not in a manner that contravenes the clear statutory period for
bringing claims. See Carlson v. City of Hackensack, 410 N.J. Super. 491, 497
(App. Div. 2009) (holding that because the statutory language was "clear and
unambiguous, [the court] need not resort to reading the statutes in pari materia").
Further, the pardon exception, rather than supporting Harrell's argument
undermines it. Indeed, by permitting the two-year statutory period to accrue
upon a pardon, the Legislature clearly expressed its intent that an event, other
than the release from prison, can trigger accrual. The Legislature did not
identify a vacated conviction as such an event, however. We therefore cannot
conclude under these circumstances that the dismissal of Harrell's complaint,
while understandably disappointing to him, is an "absurd" result or one that was
"inconceivable" to the Legislature.
2
Amended in 2015 and effective March 1, 2016, N.J.S.A. 2A:84A-32A
provides procedures for obtaining DNA evidence. As currently enacted, it
permits "[a]ny eligible person [to] . . . make a motion before the trial court that
entered the judgment of conviction for the performance of forensic DNA
testing." (Emphasis added). A previous version of that statute, effective July 7,
2002, permitted only a "person who was convicted of a crime and . . . currently
serving a term of imprisonment" to request DNA testing.
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IV.
Harrell alternatively requests that this court apply the doctrine of equitable
tolling3 to allow him to bring a claim under the MIA, contending that he was
prevented from asserting his rights "in some extraordinary way." Specifically,
he maintains that at all relevant times, "New Jersey law barred Harrell from
seeking DNA testing to prove his innocence until 2016, when [N.J.S.A.]
2A:84A-32A was amended."
"Equitable tolling is traditionally reserved for limited occasions." F.H.U.
v. A.C.U., 427 N.J. Super. 354, 379 (App. Div. 2012). A statute of limitations
may be tolled "(1) [if] the defendant has actively misled the plaintiff, (2) if the
plaintiff has 'in some extraordinary way' been prevented from asserting his
rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the
wrong forum . . . ." Ibid.; see also Freeman v. State, 347 N.J. Super. 11, 31
(App. Div. 2002). Equitable tolling affords relief from "inflexible, harsh or
unfair application of a statute of limitations, but it requires the exercise of
reasonable insight and diligence by a person seeking its protection." Villalobos,
342 N.J. Super. at 52. However, "absent a showing of intentional inducement
3
"Equitable tolling assumes the accrual of the action but intercepts and delays
the bar of the statute of limitations . . . ." Villalobos v. Fava, 342 N.J. Super.
38, 46 (App. Div. 2001).
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or trickery by a defendant, the doctrine of equitable tolling should be applied
sparingly and only in the rare situation where it is demanded by sound legal
principles as well as the interests of justice." Freeman, 347 N.J. Super. at 31.
As noted, in his verified complaint, Harrell asserts only that "[i]n 2014,
the Innocence Project took on [p]laintiff's case and filed a motion to have DNA
testing done, which was not available when plaintiff was prosecuted."
(Emphasis added). He further verified that after initially objecting, the
Monmouth Prosecutor consented to DNA testing on February 13, 2015, resulting
in the July 13, 2016 Bode Cellmarks Forensic report. In his merits brief,
however, Harrell claims, without appropriate citation to the record, that "[i]n
2002, when the law changed to permit DNA testing for incarcerated defendants
asserting innocence, Harrell reached out to the Innocence Project for assistance.
However, because the law at the time only applied to incarcerated defendants,
Harrell was turned away."4
4
In support of that claim, Harrell's merits briefs improperly cite to statements
his counsel made at oral argument before the trial court. See Celino v. Gen.
Accident Ins., 211 N.J. Super. 538, 544 (App. Div. 1986) ("Facts intended to be
relied on which do not already appear of record and which are not judicially
noticeable are required to be submitted to the court by way of affidavit or
testimony."). Further, Harrell's verified complaint makes no mention of any
contact with the Innocence Project at any point prior to 2014.
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Harrell does not assert in his verified complaint that he took any action
during the period between August 25, 1997, when the MIA was enacted and
which triggered the two-year statutory period, and when it lapsed two years later
on August 25, 1999. Harrell did not maintain that he filed any request for DNA
evidence, either through an action under the MIA or otherwise. Thus, Harrell's
verified statement that "DNA testing . . . was not available when [he] was
prosecuted" does not address the critical analytical period.
We also observe that contrary to his unsupported assertions, Harrell was
not precluded from requesting DNA evidence prior to 2002. Indeed, in State v.
Cann, the court held that a convicted individual in a post-conviction relief
application had the right to request DNA testing, stating that "if a defendant
desires a DNA sample for testing purposes . . . he must make an application to
the trial court." 342 N.J. Super. 93, 103 (App. Div. 2001); see also State v.
Hogue, 175 N.J. 578, 582 (2003). Relying on Rule 1:1-2, we noted that though
"applications of this type [were] not envisioned by [Rule] 3:20-1, which
authorizes a trial judge, on defendant's motion, to grant defendant a new trial 'if
required in the interest of justice' . . . [t]he absence of a rule authorizing the
filing of a motion does not deprive a litigant of the right to make an application
to the court." Ibid.
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The fact remains that on this record, Harrell took no action during this
operative period and his claim that DNA evidence was unavailable is therefore
not only unsupported but speculative.5 We therefore are unable to conclude that
he was "in some extraordinary way" prevented from asserting his rights. F.H.U.,
427 N.J. Super. at 379; see also Freeman, 347 N.J. Super. at 31.6
Even were we to accept Harrell's argument that the 2002 version of
N.J.S.A. 2A:84A-32A acted as a bar for him to obtain DNA evidence until its
2016 amendment, his lack of proven action from between 1997 and 1999, and
from 1999 to 2002, establishes that he failed to exercise the requisite "reasonable
insight and diligence" necessary to obtain the protection of the equitable tolling
doctrine. Villalobos, 342 N.J. Super. at 52.
5
In this regard, we part company with the trial court's obiter dictum that u ntil
the prosecutor vacated Harrell's conviction, any suit under the MIA would have
resulted in an immediate Rule 4:62 motion likely followed by a frivolous
litigation letter. First, no such application was ever filed and therefore any
prognostication regarding the outcome is entirely speculative. Second, we note
that the MIA required that Harrell clearly and convincingly establish that: 1) he
was convicted, 2) sentenced and served all or a part of his sentence, 3) he "did
not commit the crime for which he was convicted," and 4) he "did not commit
or suborn perjury, fabricate evidence" or bring about his conviction by "his own
conduct." As noted, infra, Harrell actually possessed forensic evidence that
established his innocence of the sexual assault conviction two years prior to
filing suit.
6
Harrell does not allege that he was "actively misled" or that he "timely asserted
his rights mistakenly in the wrong forum." Ibid.
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Moreover, even when Harrell received the Bode Cellmarks Forensic
report in July 2016, he waited over two years before filing his August 1, 2018
complaint. We acknowledge that Harrell filed his complaint within two years
of the court's August 3, 2016 decision to vacate his sentence, but as detailed,
supra, the MIA is not triggered when a sentence is vacated. The unexplained
over-two-year delay from receipt of the Bode Cellmarks report, and near two-
year delay in filing his complaint after his conviction was vacated, provides
further support for our conclusion that it would be inappropriate to apply the
equitable tolling doctrine here.7
V.
In light of our decision, we need not address the merits of the Department's
alternative argument Harrell's Megan's Law and burglary convictions affect his
recoverability under the MIA, nor Harrell's assertion that the Department waived
those claims by failing to raise them in the trial court. See Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Affirmed.
7
In any event, the Legislature has the authority to adopt statutory amendments
to provide relief to persons such as Harrell, and to evaluate the fiscal
consequences of doing so. We are aware such bills have been proposed but not
enacted.
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