Luis Perez v. Zagami, LLC (071358)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Luis Perez v. Zagami, LLC (A-36-12) (071358)
[NOTE: This is a companion case to Cottrell v. Zagami, LLC also filed today.]
Argued January 21, 2014 -- Decided May 21, 2014
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court addresses whether the New Jersey Civil Rights Act (Act or CRA), N.J.S.A. 10:6-
2(c), authorizes a private right of action against a person who is not acting under “color of law.”
In 2006, Zagami, LLC (Zagami) applied to the Borough of Glassboro (Borough) for a renewal of its liquor
license. Luis Perez, a Borough resident, opposed the renewal and alleged that Zagami had committed several
serious infractions. At a license renewal hearing, Perez testified that Zagami flouted fire-safety regulations, served
alcohol to visibly intoxicated patrons, and encouraged bouncers to physically harm rowdy customers. Zagami
disputed the allegations and the Borough Council voted to renew Zagami’s liquor license.
Thereafter, Zagami filed a defamation suit against Perez for his statements at the liquor license renewal
hearing. Perez filed a motion to dismiss, which the trial court denied. The Appellate Division reversed the trial
court’s judgment and dismissed the defamation complaint with prejudice, finding that Perez’s remarks were made in
the course of a quasi-judicial proceeding and thus were entitled to absolute immunity. Zagami, LLC v. Cottrell, 403
N.J. Super. 98 (App. Div. 2008), certif. denied, 198 N.J. 309 (2009).
On July 26, 2010, Perez filed a complaint against Zagami for malicious use of process, arguing that Zagami
had filed its defamation complaint to punish Perez for speaking out at the hearing and to discourage his participation
in future public proceedings. Zagami moved to dismiss the complaint, and Perez filed a cross-motion to include a
claim under the CRA and to add a defendant. The trial court granted Zagami’s motion to dismiss the malicious use
of process claim and denied Perez’s cross-motion to amend the complaint. In respect of the CRA claim, the trial
court concluded specifically that the Act only authorizes private suits against persons acting under “color of law.”
On appeal, the Appellate Division reversed both determinations of the trial court. First, the panel reversed
the trial court’s grant of Zagami’s motion to dismiss the malicious use of process claim, finding that Zagami’s
defamation suit was not supported by probable cause and that Zagami should have known that Perez’s statements
were privileged when it filed suit. Second, the panel allowed Perez to amend his complaint to name an additional
defendant and to include a CRA cause of action against Zagami for a “deprivation” of his civil rights. The panel
reasoned that N.J.S.A. 10:6-2(c) has two distinct clauses, and that the “color of law” language relied upon by the
trial court to deny Perez’s motion only applies to the clause governing “interference” claims.
The Court granted certification to review whether the CRA permits a private right of action against an
individual who is not acting under color of law. 213 N.J. 530 (2013). The Court also granted certification in
Maryann Cottrell’s case, also decided today, on the same issue. Cottrell v. Zagami, Inc., 215 N.J. 483 (2013).
HELD: A private CRA cause of action only may be pursued against persons acting under “color of law”; the Attorney
General, however, is authorized to file CRA actions against persons whether or not they acted under “color of law.”
1. The CRA contains two subsections authorizing causes of action that may be brought by the Attorney General:
Subsection (a) governs claims against someone who, “whether or not acting under color of law, subjects or causes to
be subjected any other person to the deprivation of” protected civil rights. N.J.S.A. 10:6-2(a) (emphasis added).
Subsection (b) governs claims against someone who, “whether or not acting under color of law, interferes or
attempts to interfere” with the exercise of protected civil rights. N.J.S.A. 10:6-2(b) (emphasis added). (p. 6).
1
2. The Act also authorizes a private right of action for deprivations of or interference with protected civil rights.
N.J.S.A. 10:6-2(c) (“Any person who has been deprived of any substantive due process or equal protection rights,
privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those
substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats,
intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for
injunctive or other appropriate relief.”) (emphasis added). At issue in this appeal is whether all private actions filed
under subsection (c) require the presence of state action, or whether the “under color of law” condition is limited to
claims based on interference with protected civil rights. (pp. 7-10).
3. Questions of statutory construction are reviewed de novo. “‘When interpreting statutory language, the goal is to
divine and effectuate the Legislature’s intent.’” State v. Buckley, 216 N.J. 249, 263 (2013) (quoting State v.
Shelley, 205 N.J. 320, 323 (2011)). Although the Court begins its analysis with the statute’s plain language, the
punctuation of N.J.S.A. 10:6-2(c) confounds its clear meaning. Specifically, the absence of a comma before the
phrase “by a person acting under color of law” makes it unclear whether the phrase applies to all private actions, or
solely to interference claims. The grammatical construction of N.J.S.A. 10:6-2(c) would seem to suggest intent to
divide the section into two distinct clauses – the first for deprivation claims and the second for interference claims –
with the “color of law” language applying only to the interference clause. However, punctuation is not necessarily
controlling in the search for legislative intent. See Carisel v. King, 2 N.J. 45, 50 (1949). (pp. 11-12).
4. When construing a statute, “the intention of the Legislature is to be derived from a view of the entire statute” and
all provisions “must be read together in light of the general intent of the act.” Hubner v. Spring Valley Equestrian
Ctr., 203 N.J. 184, 195 (2010). As such, the Court presumes that the Legislature created subsections (a), (b), and (c)
as a cohesive whole. If the Legislature intended for private claims based on the deprivation of civil rights to be
actionable against private citizens, whether or not acting under color of law, it could have clearly expressed that
intention in subsection (c) as it did in subsections (a) and (b). Indeed, dividing subsection (c) into two distinct
clauses – only the second of which is subject to the “color of law” provision – would require acceptance of a reading
that defies the clarity of expression used by the Legislature in subsections (a) and (b). In addition, it would render
the first clause of subsection (c) – involving a private party’s deprivation claim – as the only one in N.J.S.A. 10:6-2
not to have an identified actor who committed the violation. (pp. 12-14).
5. Because the language of N.J.S.A. 10:6-2(c) “does not lead to a single, clear meaning,” the Court looks to the
relevant legislative history. State v. O’Driscoll, 215 N.J. 461, 474 (2013). The CRA, enacted in 2004, was designed
as a “State analog to the federal civil rights statute codified at 42 U.S.C.A. [§] 1983.” Governor’s Statement on
Signing Assembly Bill No. 2073 (Sept. 10, 2004). With regard to the scope of subsection (c), the bill sponsors
explained that “any individual may bring a [private] civil action if his rights, privileges or immunities have been
deprived, interfered with or attempted to be interfered with by threats, intimidation or coercion by a person acting
under color of law.” S. 1558 (Sponsor’s Statement), 211th Leg. (May 6, 2004); Assemb. 2073 (Sponsor’s
Statement), 211th Leg. (Feb. 9, 2004). The sponsors therefore regarded state action as an essential component of
interference and deprivation claims under subsection (c). That construction also comports with the CRA’s purpose
as a state law analogue to Section 1983, which only permits actions against persons acting “under color of” law.
(pp. 14-16).
6. In sum, the phrase “person acting under color of law” in N.J.S.A. 10:6-2(c) applies to deprivation as well as to
interference claims brought by private party plaintiffs under the Act, notwithstanding the lack of a comma preceding
the phrase “by a person acting under color of law.” The contrary interpretation urged by Perez would result in the
deprivation action by a private party becoming the only cause of action in the statute for which the Legislature has
not identified a permissible defendant. Had the Legislature intended to permit private actions for deprivations of
protected rights irrespective of state action, it would have done so expressly. By interpreting the phrase “persons
acting under color of law” to define persons against whom both deprivation and interference (or attempted
interference) claims may be brought, the entire wording of subsection (c) is given meaning and the private cause of
action is aligned with the federal cause of action authorized by Section 1983. (pp. 17-21).
The judgment of the Appellate Division is REVERSED in part.
2
CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and FERNANDEZ-VINA; and
JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-36 September Term 2012
071358
LUIS PEREZ,
Plaintiff-Respondent,
v.
ZAGAMI, LLC, d/b/a THE
LANDMARK AMERICANA TAP AND
GRILL, d/b/a LANDMARK
LIQUORS, d/b/a THE SPOT,
Defendant-Appellant.
Argued January 21, 2014 – Decided May 21, 2014
On certification to the Superior Court,
Appellate Division.
Sean X. Kelly argued the cause for appellant
(Marks, O'Neill, O'Brien, Doherty & Kelly,
attorneys; Mr. Kelly and Melissa J.
Kanbayashi, on the briefs).
Wesley G. Hanna argued the cause for
respondent (Law Office of Sander D.
Friedman, attorney).
Jonathan Romberg argued the cause for amicus
curiae Seton Hall University School of Law
Center for Social Justice.
JUSTICE LaVECCHIA delivered the opinion of the Court.
This appeal involves the private right of action authorized
under the New Jersey Civil Rights Act (Act or CRA), N.J.S.A.
1
10:6-1 to -2. Specifically, we are called on to determine
whether the Legislature intended that the Act permit a private
right of action to be brought against a person who is not acting
under “color of law.” N.J.S.A. 10:6-2(c). For the reasons that
follow, we hold that, although the Act bestows such authority on
the Attorney General, a private CRA cause of action only may be
pursued against persons acting under color of law.
I.
A.
The backdrop to the question of law before us involves a
contested liquor license renewal proceeding.
Zagami, LLC (Zagami) is the owner of the Landmark Americana
Tap and Grill (Landmark), a restaurant and bar in the Borough of
Glassboro (Borough). In 2006, Zagami applied to the Borough for
a renewal of its liquor license. Luis Perez, a citizen residing
in Glassboro, opposed the renewal.1 In a letter to the Glassboro
Borough Council (Council), Perez complained of several serious
infractions allegedly committed by Zagami, including serving
alcohol to minors and bribing public officials with free meals
and drinks. As a result of those allegations, the Council
scheduled a liquor license renewal hearing for June 27, 2006,
and invited Perez and Zagami to participate. At the hearing,
1
Perez was joined in his opposition to Zagami’s license renewal
by Maryann Cottrell, a fellow resident whose appeal is a
companion to this one.
2
Perez testified that, among other things, Landmark flouted fire-
safety regulations, served alcohol to visibly intoxicated
patrons, and encouraged bouncers to physically harm rowdy
customers. Zagami disputed the allegations, calling them
unsubstantiated. At the conclusion of the hearing, the Council
voted to renew Zagami’s liquor license, Perez’s testimony
notwithstanding.
A year later, Zagami filed a defamation complaint against
Perez for statements that he made during the liquor license
renewal hearing. Perez filed a motion to dismiss the complaint,
arguing that his remarks were made in the course of a quasi-
judicial proceeding and thus were entitled to absolute immunity.
The trial court denied the motion to dismiss and the Appellate
Division denied leave to appeal. We granted Perez’s motion for
leave to appeal to this Court and summarily remanded the matter
to the Appellate Division for consideration on the merits. On
remand, the Appellate Division found that Perez’s statements
during the liquor license proceeding were entitled to absolute
immunity and dismissed the defamation complaint with prejudice.
See Zagami, LLC v. Cottrell, 403 N.J. Super. 98 (App. Div.
2008), certif. denied, 198 N.J. 309 (2009).
3
B.
The proceeding that led to the instant appeal commenced on
July 26, 2010, when Perez filed a complaint against Zagami for
malicious use of process.
Essentially, Perez alleged that Zagami had instituted its
defamation complaint as a Strategic Lawsuit Against Public
Participation (SLAPP), or SLAPP suit, designed to punish Perez
for speaking out against Zagami at the liquor license renewal
hearing and to discourage his participation in future public
proceedings. Zagami filed a motion to dismiss the complaint,
and Perez filed a cross-motion to amend his complaint to include
a claim under the CRA and to add as a defendant the law firm
retained by Zagami during the defamation suit. Finding that
Zagami’s defamation suit was supported by probable cause, the
trial court granted Zagami’s motion to dismiss the malicious use
of process claim and denied Perez’s cross-motion to amend the
complaint. In respect of the CRA claim, the trial court
concluded that N.J.S.A. 10:6-2(c) was modeled after 42 U.S.C.A.
§ 1983 (Section 1983) and that, consequently, the CRA only
authorized private suits against persons acting under color of
law.
On appeal, the Appellate Division reversed both
determinations of the trial court. The panel determined that
Zagami’s defamation suit was not supported by probable cause and
4
that Zagami should have been aware that Perez’s statements were
privileged at the time it filed suit. Accordingly, the panel
reversed the trial court’s grant of Zagami’s motion to dismiss
the malicious use of process claim.
Importantly, for purposes of the instant appeal, the panel
disagreed with the trial court’s construction of the CRA.
Relying on Felicioni v. Administrative Office of the Courts, 404
N.J. Super. 382 (App. Div. 2008), certif. denied, 203 N.J. 440
(2010), the appellate panel determined that N.J.S.A. 10:6-2(c)
has two distinct clauses: one clause protects against a
“deprivation” of an individual’s constitutional or statutory
rights and the other clause protects against an “interference”
with those same rights. Because the “under color of law”
language appears only in the second clause of N.J.S.A.
10:6-2(c), which proscribes an interference with protected civil
liberties, the panel reasoned that the state action requirement
was limited to interference claims. As a result, the panel
allowed Perez to amend his complaint to include a cause of
action against Zagami for a deprivation of his civil rights
under the CRA.
We granted certification to review only whether the New
Jersey Civil Rights Act permits a private right of action
against an individual who is not acting under color of law. 213
5
N.J. 530 (2013).2 We also granted amicus curiae status to the
Seton Hall University School of Law Center for Social Justice.
II.
A.
The New Jersey Civil Rights Act, in relevant part, contains
two subsections authorizing causes of action that may be brought
by the Attorney General:
(a) If a person, whether or not acting under
color of law, subjects or causes to be
subjected any other person to the
deprivation of any substantive due process
or equal protection rights, privileges or
immunities secured by the Constitution or
laws of the United States, or any
substantive rights, privileges or immunities
secured by the Constitution or laws of this
State, the Attorney General may bring a
civil action for damages and for injunctive
or other appropriate relief. The civil
action shall be brought in the name of the
State and may be brought on behalf of the
injured party. . . .
(b) If a person, whether or not acting under
color of law, interferes or attempts to
interfere by threats, intimidation or
coercion with the exercise or enjoyment by
any other person of any substantive due
process or equal protection rights,
privileges or immunities secured by the
Constitution or laws of the United States,
or any substantive rights, privileges or
immunities secured by the Constitution or
laws of this State, the Attorney General may
bring a civil action for damages and for
injunctive or other appropriate relief. The
civil action shall be brought in the name of
2
We later granted certification in Cottrell v. Zagami, Inc.,
also decided today, on the same issue. 215 N.J. 483 (2013).
6
the State and may be brought on behalf of
the injured party.
[N.J.S.A. 10:6-2.]
Importantly, the Act also authorizes a private
right of action. In that respect, the Act provides in
pertinent part:
(c) Any person who has been deprived of any
substantive due process or equal protection
rights, privileges or immunities secured by
the Constitution or laws of the United
States, or any substantive rights,
privileges or immunities secured by the
Constitution or laws of this State, or whose
exercise or enjoyment of those substantive
rights, privileges or immunities has been
interfered with or attempted to be
interfered with, by threats, intimidation or
coercion by a person acting under color of
law, may bring a civil action for damages
and for injunctive or other appropriate
relief.
[N.J.S.A. 10:6-2(c).]
The parties dispute the requirements for initiating an
action under subsection (c) against a private party for civil
rights violations. Specifically at issue is whether all claims
filed under N.J.S.A. 10:6-2(c) require the presence of state
action, or whether the “under color of law” condition of that
subsection is limited to claims based on interference with
protected civil rights.
7
B.
Zagami urges this Court to reverse the Appellate Division’s
decision and to apply subsection (c)’s state action requirement
to all private actions under the CRA. In support of its
argument, Zagami points to the general structure of the CRA.
Zagami asserts that, unlike subsections (a) and (b), which
expressly permit the Attorney General to bring suit for civil
rights violations against an individual “whether or not acting
under color of law,” subsection (c) delimits potential
defendants to alleged civil rights violators who act “under
color of law.” According to Zagami, if the Legislature had
intended to allow private actions against individuals not acting
under color of law, subsection (c) would have included the same
unmistakable language as subsections (a) and (b). Moreover,
Zagami notes that construing the “under color of law” portion of
subsection (c) to apply only to interferences with protected
rights would leave the deprivation clause of subsection (c) as
the only portion of the statute not identifying permissible
defendants.
Perez, in contrast, argues that the Appellate Division’s
determination should be upheld as consonant with Owens v.
Feigin, 194 N.J. 607, 611 (2008). In Owens, we held that the
Tort Claims Act’s notice-of-claim requirement was inapplicable
to actions under N.J.S.A. 10:6-2(c) given the “broad remedial
8
purpose of the CRA” and the absence of any text or legislative
history to support imposition of that requirement. Ibid. Perez
maintains that adopting the Appellate Division’s construction of
the CRA aligns with Owens’s references to the broad remedial
purpose underlying the CRA. Perez further argues that the
Legislature intended for the CRA to establish a more robust
scheme for protecting civil liberties than its federal
counterpart, Section 1983. To that end, Perez contends that the
CRA should be construed to permit private actions against both
public and private individuals for deprivations of protected
rights. Finally, Perez points to the structure of the CRA for
support. He argues that, because subsections (a) and (b)
clearly distinguish between deprivations and interferences, the
Legislature must have intended different treatment for
deprivation and interference claims brought under subsection
(c).
The Seton Hall University School of Law Center for Social
Justice (amicus), appearing as amicus curiae on behalf of Perez,
argues that the grammatical construction of subsection (c)
supports the Appellate Division’s conclusion. Amicus maintains
that the presence of a comma preceding the words “or whose
exercise” and the absence of a comma preceding the phrase “by a
person acting under color of law” evinces a legislative intent
to divide N.J.S.A. 10:6-2(c) into two distinct clauses. Because
9
the “under color of law” language of subsection (c) appears in
the interference clause, rather than in the deprivation clause,
amicus submits that only actions alleging interference, or an
attempted interference, with protected rights require proof of
state action.
III.
The issue before this Court is purely one of statutory
construction. Consequently, we review de novo the Appellate
Division’s interpretation of the CRA. See Toll Bros. v. Twp. of
Windsor, 173 N.J. 502, 549 (2002) (noting that matters of law
are subject to de novo review); Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995) (“A trial court’s
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special
deference.”).
A.
This Court has not yet addressed the meaning of N.J.S.A.
10:6-2(c). However, our interpretation of that provision is
guided by traditional principles of statutory construction.
“‘When interpreting statutory language, the goal is to divine
and effectuate the Legislature’s intent.’” State v. Buckley,
216 N.J. 249, 263 (2013) (quoting State v. Shelley, 205 N.J.
320, 323 (2011)). There is no more persuasive evidence of
legislative intent than the words by which the Legislature
10
undertook to express its purpose; therefore, we first look to
the plain language of the statute. See Bosland v. Warnock
Dodge, Inc., 197 N.J. 543, 553 (2009).
It bears repeating that N.J.S.A. 10:6-2(c) provides as
follows:
Any person who has been deprived of any
substantive due process or equal protection
rights, privileges or immunities secured by
the Constitution or laws of the United
States, or any substantive rights,
privileges or immunities secured by the
Constitution or laws of this State, or whose
exercise or enjoyment of those substantive
rights, privileges or immunities has been
interfered with or attempted to be
interfered with, by threats, intimidation or
coercion by a person acting under color of
law, may bring a civil action for damages
and for injunctive or other appropriate
relief.
By its terms, it is unclear whether the “person acting under
color of law” provision of N.J.S.A. 10:6-2(c) applies to all
private actions, or solely to interference claims. Indeed, the
Appellate Division has wrestled with the very question that has
arisen in this matter. Compare Felicioni, supra, 404 N.J.
Super. at 400 (finding that structure of subsection (c) evinces
legislative intent to distinguish between deprivation and
interference claims), with Filgueiras v. Newark Pub. Schs., 426
N.J. Super. 449, 468 (App. Div.) (requiring state action for all
claims under N.J.S.A. 10:6-2(c)), certif. denied, 212 N.J. 460
(2012), and Rezem Family Assocs. L.P. v. Borough of Millstone,
11
423 N.J. Super. 103, 115 (App. Div.) (noting that claims under
N.J.S.A. 10:6-2(c) require same elements as claims under Section
1983), certif. denied, 208 N.J. 368 (2011).
In large part, the punctuation of the clause confounds its
clear meaning. As amicus points out, normally the presence of a
comma preceding the words “or whose exercise” and the absence of
a comma preceding the phrase “by a person acting under color of
law” would evince a legislative intent to divide N.J.S.A.
10:6-2(c) into two distinct clauses. Yet, that would pin heavy
interpretive import on the absence of the second comma.
Punctuation, though important, is not necessarily controlling in
the search for legislative intent. See Carisel v. King, 2 N.J.
45, 50 (1949) (“Although not to be entirely ignored, punctuation
cannot be allowed to control the meaning of the words chosen to
voice the intention.”).
Making the absence of a second comma preceding the phrase
“by a person acting under color of law” in subsection (c) the
determiner of the subsection’s meaning brings about illogical
results. It requires one to accept that the Legislature
abandoned the careful and precise structure used in subsections
(a) and (b) when explaining whether a private person may be sued
under subsection (c). If the Legislature intended for private
claims based on the deprivation of civil rights under subsection
(c) to be actionable against private citizens, whether or not
12
acting under color of law, it could have clearly expressed that
intention as it did in subsection (a), or as it did for
interference claims filed under subsection (b). We do not
believe that the mere omission of a second comma in the
complicated wording of subsection (c) signals that the phrase
“acting under color of law” applies only to a defendant charged
with interfering or attempting to interfere with civil rights.
Indeed, an interpretation of subsection (c) based solely on
punctuation requires acceptance of a reading that is utterly at
odds with the clarity of expression used by the Legislature in
subsections (a) and (b).
When construing a statute, “the intention of the
Legislature is to be derived from a view of the entire statute”
and all provisions “must be read together in light of the
general intent of the act.” Hubner v. Spring Valley Equestrian
Ctr., 203 N.J. 184, 195 (2010). We presume that the Legislature
created subsections (a), (b), and (c) as a cohesive whole. That
presumption cautions against an asserted plain language reading
of subsection (c) that appears at odds with related phraseology
in its sister subsections. Moreover, Perez and amicus’s
asserted interpretation creates ambiguity within subsection (c)
in that our acceptance of the import of a mere missing comma
would render the opening clause of (c) -- involving a private
13
party’s deprivation claim -- as the only one in N.J.S.A. 10:6-2
not to have an identified actor who committed the violation.
In sum, subsection (c) poses a challenging interpretative
task. From a plain language reading, it is difficult to discern
legislative intent with any certainty. We can only conclude
that the argument based on the punctuation of subsection (c)
provides an infirm foundation on which to rest a holding as to
whether the Legislature intended to require both deprivation and
interference claims to be brought only against individuals
acting under color of law.
B.
Because the language of N.J.S.A. 10:6-2(c) “does not lead
to a single, clear meaning,” we seek assistance from the
relevant legislative history. State v. O’Driscoll, 215 N.J.
461, 474 (2013); see also N.J. Dep’t of Children & Families v.
A.L., 213 N.J. 1, 20 (2013) (“If [statutory] language is
ambiguous, courts can examine extrinsic evidence, including
legislative history, for guidance.”).
The CRA was enacted in 2004 for the profound purpose of
“provid[ing] the citizens of New Jersey with a State remedy for
deprivation of or interference with the civil rights of an
individual.” S. Judiciary Comm. Statement to S. No. 1158, 211th
Leg. 1 (May 6, 2004). According to Governor McGreevey, who
signed the bill into law, the CRA was designed as a “State
14
analog to the federal civil rights statute codified at 42
U.S.C.A. [§] 1983” and was not intended to “create any new
substantive rights.” Governor’s Statement on Signing Assembly
Bill No. 2073 (Sept. 10, 2004). Instead, it is apparent that
the CRA was intended to address potential gaps in remedies
available under New Jersey law but not cognizable under the
federal civil rights law, Section 1983.
Subsections (a) and (b) of the CRA authorize the Attorney
General to bring suit on behalf of an individual who has
suffered a deprivation of or interference with certain
substantive civil rights, while subsection (c) of the CRA
provides a private cause of action for an individual subjected
to a deprivation of or interference with those protected rights.
N.J.S.A. 10:6-2. The relevant legislative history, as well as
the plain text of the statute, establish that the Attorney
General may bring suit against an individual “whether or not
[the defendant is] acting under color of law.” N.J.S.A.
10:6-2(a), (b); see Assemb. Judiciary Comm. Statement to Assemb.
No. 2073, 211th Leg. 1 (Feb. 19, 2004). However, in describing
the scope of subsection (c), the Senate sponsor and
corresponding Assembly sponsor explained that “any individual
may bring a [private] civil action if his rights, privileges or
immunities have been deprived, interfered with or attempted to
be interfered with by threats, intimidation or coercion by a
15
person acting under color of law.” S. 1558 (Sponsor’s
Statement), 211th Leg. (May 6, 2004); Assemb. 2073 (Sponsor’s
Statement), 211th Leg. (Feb. 9, 2004). In other words, both the
Senate and General Assembly bill sponsors evidently regarded
state action as an essential component of interference and
deprivation claims under subsection (c). That view is not
contravened elsewhere in the legislative history. Moreover,
that construction comports with the CRA’s purpose as a state law
analogue to Section 1983.3
3
Section 1983 provides:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, subjects, or causes to
be subjected, any citizen of the United
States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress, except that in any
action brought against a judicial officer
for an act or omission taken in such
officer's judicial capacity, injunctive
relief shall not be granted unless a
declaratory decree was violated or
declaratory relief was unavailable. For the
purposes of this section, any Act of
Congress applicable exclusively to the
District of Columbia shall be considered to
be a statute of the District of Columbia.
16
In sum, legislative history supports the conclusion that,
notwithstanding the lack of a comma preceding the phrase “by a
person acting under color of law” in subsection (c), the phrase
was understood by lawmakers responsible for its drafting and
passage through both Houses of the Legislature to refer to
persons subject to suit for both a deprivation as well as an
interference claim by a private party under the Act. In other
words, “acting under color of law” modifies the one and only
reference to persons who may be sued under subsection (c),
regardless of whether it is a deprivation claim or an
interference claim.
IV.
Thus, a plain language reading of subsection (c) does not
clearly indicate to which claims the phrase “person acting under
color of law” should apply.
Moreover, the phrase’s location raises questions about its
intended effect. The interpretation urged by Perez and amicus
would result in the deprivation action by a private party
becoming the only cause of action in the statute for which the
Legislature has not identified a permissible defendant. It thus
would render a portion of subsection (c)’s claims
incomprehensible. Interpretations that lead to absurd or futile
results are to be avoided. See Twp. of Pennsauken v. Schad, 160
N.J. 156, 170 (1999) (“[I]t is axiomatic that a statute will not
17
be construed to lead to absurd results.”). If the complicated
wording of subsection (c) is read as Perez and amicus argue, one
is left wondering why the Legislature would by implication throw
open to private parties deprivation claims against non-state
actors. The Legislature knew how to express itself clearly and
unmistakably in subsections (a) and (b) when setting forth
claims that could be brought against a private person who does
not act under color of law. Rules designed to aid courts
grappling with doubtful meaning of language urge that provisions
within a statute are to be read in a cohesive way. See, e.g.,
Beim v. Hulfish, 216 N.J. 484, 498 (2014) (recognizing that
provisions within overall statutory scheme should be read
together and provide relative context in light of act’s general
intent); Hubner, supra, 203 N.J. at 195.
Further, we are not persuaded that the absence of a comma
in such a complicated statutory sentence is dispositive on the
question of legislative intent. We note, again, that
punctuation, though important, is not decisive of legislative
intent. See Carisel, supra, 2 N.J. at 50 (noting that
punctuation does not trump legislative intent to be gleaned from
“the words chosen to voice th[at] intention”); see also 2A
Sutherland, Statutory Construction, § 47.15 at 345 (7th ed.
2007) (“If the act as originally punctuated does not reflect the
true legislative intent, the punctuation may be disregarded,
18
transposed, or the act may be repunctuated in order to
effectuate such intent.”). In this instance, the lack of a
comma preceding the phrase “person acting under color of law”
seems more an oversight than an intentional effort to
substantively differentiate between deprivation claims and
interference claims.
We seek an interpretation that gives meaning to the
legislative phrasing of subsection (c) in respect of deprivation
claims by private parties. By interpreting the phrase “persons
acting under color of law” to define persons against whom both
deprivation and interference (or attempted interference) claims
may be brought, we give meaning and application to the entire
wording of this first sentence of section (c).
That construction serves an additional and important
purpose. The legislative history is replete with references
that the CRA was intended to provide New Jersey citizens with a
state analogue to Section 1983 actions, and our construction is
in keeping with that purpose. Section 1983 actions may only be
brought against persons who are acting “under color of” law.
See Mitchum v. Foster, 407 U.S. 225, 240, 92 S. Ct. 2151, 2161,
32 L. Ed. 2d 705, 716 (1972) (observing that Section 1983 “was
intended to enforce the provisions of the Fourteenth Amendment
against state action, . . . whether that action be executive,
legislative, or judicial”) (internal quotation marks omitted);
19
see also The Civil Rights Cases, 109 U.S. 3, 10, 3 S. Ct. 18,
20-21, 27 L. Ed. 835, 839 (1883) (explaining that “under color
of law” “is state action of a particular character” and that
Section 1983 only authorizes “redress against . . . the action
of state officers, executive or judicial, when these are
subversive of . . . fundamental rights”); Wildoner v. Borough of
Ramsey, 162 N.J. 375, 385 (2000) (noting similarly that “[t]o
establish a valid claim [under Section 1983], plaintiff[s] must
prove that defendants [1] acted under color of law and [2]
deprived [them] of a well-established federal constitutional or
statutory right”). Our interpretation of the private action
authorized under N.J.S.A. 10:6-2(c) advances that legislative
intent to make the private cause of action correlate to the
federal cause of action authorized by Section 1983.
Indeed, the adoption of Perez’s preferred construction
would dramatically expand the liability of private individuals
beyond its current bounds and authorize actions against a
private person for perceived constitutional violations. We do
not believe that the Legislature intended to work such a radical
change through the ambiguous placement of a comma. Cf. Whitman
v. Am. Trucking Ass’ns, 531 U.S. 457, 468, 121 S. Ct. 903, 909-
10, 149 L. Ed. 2d 1, 13 (2001) (“Congress, we have held, does
not alter the fundamental details of a regulatory scheme in
vague terms or ancillary provisions -- it does not, one might
20
say, hide elephants in mouseholes.”). Had the Legislature
intended to permit private actions for deprivations of protected
rights irrespective of state action, we think it would have done
so expressly.4
On the other hand, to the extent that the CRA authorizes
the Attorney General to bring CRA actions against persons,
whether or not acting under color of law, the legislative choice
to provide a robust remedy for substantive civil rights
violations is unimpeded. Our construction is consistent with
prior statements by this Court recognizing that the Act creates
a broad remedial scheme and provides strong remedies to combat
civil rights violations. See Owens, supra, 194 N.J. at 611
(recognizing CRA’s “broad remedial purpose”).
In conclusion, we hold that the phrase “person acting under
color of law” in N.J.S.A. 10:6-2(c) applies to deprivation as
well as to interference, or attempt-to-interfere, claims brought
by private party plaintiffs under the Act.
V.
The judgment of the Appellate Division is reversed in part.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily
assigned) join in JUSTICE LaVECCHIA’s opinion.
4
Notwithstanding our conclusion that the CRA does not provide a
private action based on a deprivation of civil rights
irrespective of state action, we note that Perez is not without
a remedy because his malicious use of process claims remain
viable under the Appellate Division’s judgment.
21
SUPREME COURT OF NEW JERSEY
NO. A-36 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
LUIS PEREZ,
Plaintiff-Respondent,
v.
ZAGAMI, LLC, d/b/a THE
LANDMARK AMERICANA TAP AND
GRILL, d/b/a LANDMARK
LIQUORS, d/b/a THE SPOT,
Defendant-Appellant.
DECIDED May 21, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM IN PART
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7
1