PAUL KAMIENSKI VS. STATE OF NEW JERSEY, DEPARTMENTOF TREASURY(L-2106-10, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4816-14T2
PAUL KAMIENSKI,
Plaintiff-Appellant/
Cross-Respondent, APPROVED FOR PUBLICATION
v. August 16, 2017
APPELLATE DIVISION
STATE OF NEW JERSEY,
DEPARTMENT OF THE
TREASURY,
Defendant-Respondent/
Cross-Appellant.
________________________________________________________________
Argued November 29, 2016 – Decided August 16, 2017
Before Judges Messano, Espinosa and Guadagno.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
2106-10.
Timothy J. McInnis (McInnis Law) of the New
York bar, admitted pro hac vice, argued the
cause for appellant/cross-respondent (Law
Office of Jerome A. Ballarotto, and Mr.
McInnis, attorneys; Mr. Ballarotto and Mr.
McInnis, on the brief).
Peter D. Wint, Assistant Attorney General,
argued the cause for respondent/cross-
appellant (Christopher S. Porrino, Attorney
General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Mr.
Wint, on the briefs).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
This case presents us with questions of first impression
regarding the interpretation of provisions of the Mistaken
Imprisonment Act (Act), N.J.S.A. 52:4C-1 to -7, relating to
eligibility, the burden of proof, damages and "reasonable attorney
fees" recoverable under the Act.
Plaintiff was charged in a single indictment and convicted
of two counts of purposeful murder, felony murder, conspiracy to
possess cocaine with intent to distribute and related offenses.
His convictions for murder and felony murder were set aside after
his petition for habeas corpus was granted. His drug conspiracy
conviction remained undisturbed. Plaintiff was released from
prison and commenced this action against defendant, State of New
Jersey, Department of the Treasury (State), under the Act, seeking
more than $6,000,000 in damages and $1 million in attorney fees.
Plaintiff's appeal from the $433,230 judgment in his favor and the
State's cross-appeal present us with questions of statutory
interpretation, specifically (1) whether plaintiff was ineligible
under N.J.S.A. 52:4C-6 because he was not an "innocent person" due
to his drug conspiracy conviction, and (2) whether the decision
granting plaintiff's habeas corpus petition satisfied his burden
under N.J.S.A. 52:4C-3(b) to establish by clear and convincing
2 A-4816-14T2
evidence "he did not commit the crime for which he was convicted"
as a matter of law. Because we conclude a remand is necessary,
we also address how damages should be calculated under the Act
prior to its 2013 amendment1 and the reasonable attorney fees that
may be recovered under N.J.S.A. 52:4C-5(b) to provide guidance to
the trial court in the event such issues are reached on remand.
To recover under the Act, a claimant must
establish the following by clear and
convincing evidence:
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. Neither
a confession or admission later found to be
false shall constitute committing or suborning
perjury, fabricating evidence, or causing or
bringing about his conviction under this
subsection; and
d. He did not plead guilty to the crime
for which he was convicted.
[N.J.S.A. 52:4C-3.]
1
Because plaintiff was released from prison prior to the
amendment of the Act in 2013, the Act as adopted in 1997 applies.
N.J.S.A. 52:4C-7. References to the Act as originally adopted
will be made to L. 1997, c. 227.
3 A-4816-14T2
I.
In November 1988, a jury convicted plaintiff of conspiracy
to possess cocaine with intent to distribute, two counts of first-
degree murder, and one count of felony murder. The trial judge
entered a judgment of acquittal, notwithstanding the verdict, in
favor of plaintiff on the murder and felony murder counts.
Following appeal, we reinstated the murder convictions. State v.
Kamienski, 254 N.J. Super. 75 (App. Div.), certif. denied, 130
N.J. 18 (1992). Plaintiff was resentenced and received two life
sentences, with thirty years parole ineligibility, and a
consecutive flat twelve-year term on the drug conspiracy
conviction.
Plaintiff filed a habeas corpus petition, challenging only
his murder convictions. The United States District Court denied
his petition; the Court of Appeals for the Third Circuit reversed
and ordered his petition be granted, stating, "no reasonable juror
could conclude that the evidence admitted against [plaintiff] at
his trial established that he was guilty of murder or felony murder
beyond a reasonable doubt." Kamienski v. Hendricks, 332 Fed.
Appx. 740, 740-41 (3rd Cir. 2009), cert. denied, 558 U.S. 1147,
130 S. Ct. 1168, 175 L. Ed. 2d 972 (2010). Plaintiff was released
from prison in June 2009, after serving more than twenty years.
Plaintiff filed a verified complaint for compensation under
4 A-4816-14T2
the Act, seeking $5,913,671.30 in damages and $1,000,000 in
attorney fees and costs incurred in his initial defense on the
charges at trial and all subsequent proceedings. The damages
sought represented the amount of the adjusted gross income
plaintiff earned in the year prior to his incarceration ($143,307)
multiplied by the number of years he was incarcerated.
The State moved to dismiss the complaint, arguing plaintiff's
drug conspiracy conviction rendered him ineligible for recovery
pursuant to N.J.S.A. 52:4C-6(a). Plaintiff moved for declaratory
relief, asking the court to adopt his proposed interpretation of
the Act. The trial judge denied both the State's motion and
plaintiff's motion for declaratory relief. The court denied
plaintiff's motion for reconsideration and determined further that
"reasonable attorney fees" under N.J.S.A. 52:4C-5(b) were limited
to fees incurred in the compensation action.
Plaintiff moved for summary judgment, contending he was
entitled to compensation under the Act as a matter of law.
Paragraph 4 of the Statement of Material Facts submitted pursuant
to Rule 4:46-2(a) states: "Plaintiff did not commit the murder
crimes for which he had been convicted." The only support in the
record cited for that statement is "March 4, 2011 hearing,"2 the
2
Pursuant to Rule 4:46-2(a), plaintiff was required to support
this statement of material fact "with a citation to the portion
5 A-4816-14T2
date of the trial court's decision denying the State's motion to
dismiss. In opposition, the State admitted, "the United States
Court of Appeals for the Third Circuit determined that there was
insufficient evidence to support convictions of murder against the
plaintiff" and asserted he failed to establish, by clear and
convincing evidence, that he did not commit the murders.
The trial court granted plaintiff's motion for summary
judgment and awarded him $343,000. Plaintiff's request for
reasonable attorney fees, initially denied without prejudice, was
later granted after a certification of services was submitted,
resulting in an award of $90,230.
II.
In his appeal, plaintiff argues the trial court erred in
interpreting how damages are to be calculated and the scope of
reasonable attorney fees under the Act, N.J.S.A. 52:4C-5(a)-(b).
In its cross-appeal, the State argues the trial court erred in
interpreting N.J.S.A. 52:4C-6(a), finding plaintiff was not barred
from recovery under the Act. The State also argues the trial
of the motion record establishing the fact or demonstrating that
it is uncontroverted," and such "citation shall identify the
document and shall specify the pages and paragraphs or lines
thereof or the specific portions of exhibits relied on." Plainly,
plaintiff's citation did not comply with this rule, which alone,
provides grounds for denying summary judgment. Ibid.6 A-4816-14T2
court erred in granting summary judgment to plaintiff, based upon
a misinterpretation of N.J.S.A. 52:4C-3(b).
The interpretation of a statute is an issue of law, which we
review de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012). Our
"fundamental objective . . . is to identify and promote the
Legislature's intent." Parsons ex rel. Parsons v. Mullica Twp.
Bd. of Educ., 226 N.J. 297, 307 (2016). We look first to the
"plain language chosen by the Legislature." State v. Gandhi, 201
N.J. 161, 176 (2010). "If the statutory language is clear and
unambiguous, and susceptible to only one interpretation, courts
should apply the statute as written without resort to extrinsic
interpretive aids." In re Passaic Cty. Utils. Auth., 164 N.J.
270, 299 (2000).
When, as here, statutory provisions are susceptible to more
than one interpretation, we look to extrinsic evidence to inform
our analysis, "including legislative history and committee
reports." Parsons, supra, 226 N.J. at 308 (quoting State v.
Marquez, 202 N.J. 485, 500 (2010)); Wilson ex rel. Manzano v. City
of Jersey City, 209 N.J. 558, 572 (2012). Extrinsic evidence is
also properly considered "if a literal reading of the statute
would yield an absurd result, particularly one at odds with the
overall statutory scheme." Ibid.; see also DiProspero v. Penn,
183 N.J. 477, 493 (2005); e.g., Perez v. Zagami, LLC, 218 N.J.
7 A-4816-14T2
202, 214-16 (2014).
We are mindful that the Act is both remedial legislation and,
in part, a waiver of sovereign immunity. Mills v. N.J. Dep't of
the Treas., 435 N.J. Super. 69, 77 (App. Div.), certif. denied,
218 N.J. 273 (2014). These dual attributes bring competing
standards into play for how the statute should be construed,
liberally or strictly.
Other jurisdictions have not adopted a uniform approach in
reviewing their own wrongful incarceration statutes. Many courts
have expressed the view that their statutes should be construed
liberally to effect their remedial purpose. See, e.g., State v.
Hill, 125 So. 3d 1200, 1203 (La. Ct. App.) (interpreting La. Stat.
Ann. § 15:572.8 (2017)), writ denied, 129 So. 3d 536 (La. 2013);
Estate of Jerry Jacobs v. State, 775 S.E.2d 873, 876 (N.C. Ct.
App.) (interpreting N.C. Gen. Stat. §§ 148-82 to -84 (2016)),
review denied, 778 S.E.2d 93 (N.C. 2015); State v. Moore, 847
N.E.2d 452, 456 (Ohio Ct. App. 2006) (interpreting Ohio Rev. Code
Ann. § 2743.48 (LexisNexis 2017)); Wilhoit v. State, 226 P.3d 682,
686 (Okla. 2009) (interpreting Okla. Stat. tit. 51, § 154(B)
(2011)); State v. Oakley, 227 S.W.3d 58, 62 (Tex. 2007)
(interpreting Tex. Civ. Prac. & Rem. Code Ann. §§ 103.001-154(West 2011)); Larson v. State, 375 P.3d 1096, 1103 (Wash. Ct.
App.) (interpreting Wash. Rev. Code Ann. §§ 4.100.010-.090 (West
8 A-4816-14T2
2017)), review denied, 385 P.3d 117 (Wash. 2016).
Federal courts and courts from other jurisdictions have held
their wrongful incarceration statutes should be strictly construed
in favor of the State and against any waiver of sovereign immunity.
See, e.g., Sykes v. United States, 105 Fed. Cl. 231, 233 (Fed. Cl.
2012) (observing the federal unjust conviction and imprisonment
statutes, 28 U.S.C.A. §§ 1495, 2513, have "always been strictly
construed" (quoting Vincin v. United States, 468 F.2d 930, 933
(Ct. Cl. 1972))); Fessenden v. State, 52 So. 3d 1, 7 (Fla. Dist.
Ct. App. 2010) (interpreting Fla. Stat. §§ 961.01-.07 (2017));
Webb v. State, 795 N.Y.S.2d 636, 637 (N.Y. App. Div. 2005)
(interpreting N.Y. Ct. Cl. Act § 8-b (McKinney 2017)), appeal
denied, 845 N.E.2d 468 (N.Y. 2006). Hawaii's statute states
explicitly that it "shall be broadly construed in favor of the
State and against any waiver of sovereign immunity." Haw. Rev.
Stat. § 661B-6 (Supp. 2016). Taking a more nuanced approach, the
California Court of Appeals stated the sections of its wrongful
incarceration statute should be "construed, not strictly, but
according to the fair import of their terms." Ebberts v. State
Bd. of Control, 148 Cal. Rptr. 543, 546 (Cal. Ct. App. 1978)
(interpreting Cal. Penal Code §§ 4900-4906 (West 2017)).
In interpreting the Act, we strive to discern the balance the
Legislature intended to strike between the liberal construction
9 A-4816-14T2
afforded remedial legislation "in favor of the persons intended
to be benefited thereby," Berg v. Christie, 225 N.J. 245, 259
(2016) (quoting Klumb v. Bd. of Educ. of Manalapan-Englishtown
Reg'l High Sch. Dist., 199 N.J. 14, 34 (2009)), and the more
limited construction appropriate to the State's voluntary
assumption of liability, cf. Davenport v. Borough of Closter, 294
N.J. Super. 635, 637 (App. Div. 1996) ("Under the [Tort Claims
Act, N.J.S.A. 59:1-1 to 12-3], immunity is the norm, unless
liability is provided for by the Act."); see also Deborah F.
Buckman, Annotation, Construction and Application of State
Statutes Providing Compensation for Wrongful Conviction and
Incarceration, 53 A.L.R.6th 305, 325-26 (2010) (noting statutes
attempt to balance the obligation to do justice with the
responsibility to assure that public coffers are not overburdened
by baseless claims).
III.
We first consider the State's argument that plaintiff is not
eligible to recover under the Act. The State moved to dismiss
plaintiff's complaint on the ground that he was ineligible to
pursue his claim pursuant to N.J.S.A. 52:4C-6(a), which states,
A person serving a term of imprisonment for a
crime other than a crime of which the person
was mistakenly convicted shall not be eligible
to file a claim for damages pursuant to the
provisions of this act.
10 A-4816-14T2
The State concedes the language of this provision is
susceptible to more than one interpretation and argues this
provision must be read in light of the Legislature's stated purpose
to provide a remedy for "innocent persons":
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.
[N.J.S.A. 52:4C-1 (emphasis added).]
The State contends a legislative intent to limit eligibility
to "truly faultless persons" is reflected in the other subsection
of the noneligibility provision. N.J.S.A. 52:4C-6(b) bars a claim
for damages "if the sentence for the crime of which the person was
mistakenly convicted was served concurrently with the sentence for
the conviction of another crime." (Emphasis added).
"[W]hen construing a statute, we consider not only the
provision in question, but the entire legislative scheme."
Gonzalez v. Bd. of Educ. of Elizabeth Sch. Dist., 325 N.J. Super.
244, 253 (App. Div. 1999), certif. denied, 163 N.J. 77 (2000).
11 A-4816-14T2
In its September 1996 Statement, the Senate Judiciary
Committee noted amendments were adopted to "clarify[] that the
bill is intended to cover only persons mistakenly convicted." S.
Judiciary Comm., Statement to S. 1036 (Sept. 19, 1996). The
Statement described the ineligibility provision, codified in
N.J.S.A. 52:4C-6, stating:
[A] person is not eligible to file a claim for
damages under the act if he either: (1) is
serving a term of imprisonment for a crime
other than the crime of which he was
mistakenly convicted; or (2) served a sentence
for another crime concurrently with the
sentence for the crime of which he was
mistakenly convicted.
[S. Judiciary Comm., Statement to S. 1036
(Sept. 19, 1996) (emphasis added).]
Neither here nor in any other provision does the Act limit
eligibility to "truly faultless persons" whose only conviction is
the one of which they are innocent. A claimant must file suit
under the Act "within two years after his release from
imprisonment, or after the grant of a pardon to him." N.J.S.A.
52:4C-4. The plain language bars persons who are currently serving
a term of imprisonment for another crime during that two-year
period and persons who served a term concurrently with the wrongful
conviction.
The Act is silent regarding the specific circumstances here,
where a claimant was charged in a single indictment with multiple
12 A-4816-14T2
crimes, convicted of multiple crimes, sentenced to consecutive
terms and later had one of those convictions remain intact after
others were set aside.
A variety of approaches have been adopted by other states in
setting the threshold for eligibility. New York requires a
claimant to have all charges in the "accusatory instrument" be
reversed and dismissed on specified grounds. N.Y. Ct. Cl. Act §
8-b(5)(c) (McKinney 2017); see Chalmers v. State, 668 N.Y.S.2d
227, 228 (N.Y. App. Div. 1998); Pough v. State, 582 N.Y.S.2d 590,
592 (N.Y. Ct. Cl. 1992), aff'd, 612 N.Y.S.2d 935 (N.Y. App. Div.
1994), appeal denied, 648 N.E.2d 793 (N.Y. 1995). Similarly,
under the Vermont and Washington statutes, the claimant must prove
he or she "did not engage in any illegal conduct alleged in the
charging documents." Vt. Stat. Ann. tit. 13, § 5574(a)(3) (West
2017); Wash. Rev. Code § 4.100.040(2)(a) (West 2017); see also
Ala. Code § 29-2-156 (2013) (plaintiff must be innocent of all
felonies for which he or she was convicted).
Other states have required the claimant to provide proof of
innocence of "any other felony arising out of or reasonably
connected to the facts supporting the indictment or complaint, or
any lesser included felony," Mass. Gen. Laws ch. 258D, § 1(C)(vi)
(2017); "another criminal offense arising from the same
transaction," Mich. Comp. Laws. § 691.1755(1)(b)) (2017);
13 A-4816-14T2
"multiple charges arising out of the same behavioral incident,"
Minn. Stat. § 590.11, subdiv. 5(a)(2) (2018);3 and lesser included
offenses, Okla. Stat. tit. 51, § 154(B)(2)(e)(2) (2011).
Clearly, if our statute limited eligibility to persons who
were exonerated on all charges in the indictment, as New York,
Vermont and Washington do, plaintiff would not be eligible to
recover under the Act. It is less certain whether his eligibility
would be affected by the standards employed in the other statutes
we have cited. Pursuant to the plain language of N.J.S.A. 52:4C-
6, eligibility does not turn on proof of innocence on any charge
other than the one or ones for which a claimant has been wrongfully
convicted. Rather, the disqualifying criteria relate to the
sentence(s) served by a claimant, and only address concurrent
terms and terms that are being served at the time the complaint
is filed. Thus, if a claimant has served a sentence that is
concurrent to the sentence served for the wrongful conviction or
is serving a sentence for another offense at the time of
application, he is not eligible under the Act.
3
Minnesota also requires claimants to show "the person was not
serving a term of imprisonment for another crime at the same time,
provided that if the person served additional time in prison due
to the conviction that is the basis of the claim, the person may
make a claim for that portion of time served in prison during
which the person was serving no other sentence." Minn. Stat. §
590.11, subdiv. 5(a)(4) (2011).
14 A-4816-14T2
Although it may seem counterintuitive that the imposition of
a consecutive sentence inures to plaintiff's benefit, the absence
of any disqualifier in the Act based on defendant's guilt on
another charged offense or the consecutive sentence imposed
supports the conclusion we reach that N.J.S.A. 52:4C-6 does not
bar him from seeking compensation under the Act.
IV.
To recover under the Act, plaintiff must "establish . . . by
clear and convincing evidence . . . [h]e did not commit the crime
for which he was convicted." N.J.S.A. 52:4C-3(b). The State
contends the court erred when it granted plaintiff's motion for
summary judgment because the record lacks support for a finding
that plaintiff proved subsection (b) 4 by clear and convincing
evidence,5 and the trial court's conclusion to the contrary rested
upon a misinterpretation of N.J.S.A. 52:4C-3. We agree.
4
The State also contends "a question of material fact remains as
to whether [plaintiff's] conduct caused or brought about his murder
convictions" under subsection (c), since he "took steps to
facilitate a drug transaction" by introducing the victims to the
co-defendants, and "was convicted of drug related offenses, which
culminated in the homicides that gave rise to his murder
convictions". This argument lacks sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
5
Plaintiff argues the State abandoned this argument, based upon
a statement by the deputy attorney general that "the crux of this
case right now is the interpretative issue on all equated damages
provision." This statement was made during oral argument on three
motions: plaintiff's motion to strike the State's affirmative
15 A-4816-14T2
When we review a summary judgment order, we view the evidence
"in the light most favorable to the non-moving party," Globe Motor
Co. v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-2(c)),
to determine "if there is a genuine issue as to any material fact
or whether the moving party is entitled to judgment as a matter
of law," Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (citing
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)).
To meet that standard, the movant must present evidence sufficient
to satisfy all the elements of his claim, measured by "the
evidential standard governing that cause of action." Bhagat v.
Bhagat, 217 N.J. 22, 40 (2014). In this case, our review requires
us to interpret the elements of plaintiff's claim as set forth in
N.J.S.A. 52:4C-3. Because this is a legal issue, we owe no
deference to the trial court's conclusions. Murray v. Plainfield
Rescue Squad, 210 N.J. 581, 584 (2012).
The trial judge found that N.J.S.A. 52:4C-3(b) did not require
plaintiff to "prove his innocence." Observing "the federal appeals
court said there was insufficient evidence to prove murder," she
reasoned that the legislature did not intend to "put the onus on
defenses; plaintiff's motion for declaratory relief, seeking a
declaration that plaintiff's interpretation of how damages are to
be calculated is correct; and the State's motion to dismiss for
failure to state a claim. We do not agree that this statement,
taken out of context, constitutes a waiver of this argument.
16 A-4816-14T2
him to prove his innocence." She concluded plaintiff "has met the
requirements of the [Mistaken] Imprisonment Act and we are just
talking about the amount of the damages."
On appeal, the State argues the Third Circuit's conclusion
that the evidence was insufficient to sustain plaintiff's murder
convictions did not equate with a determination there was clear
and convincing evidence that plaintiff did not commit the crimes
charged, as required by N.J.S.A. 52:4C-3(b). Again, we agree.
In the first instance, the decision by the Court of Appeals
did not satisfy plaintiff's burden under N.J.S.A. 52:4C-3(b) as a
matter of law. And, even if that decision were considered as
support for plaintiff's claim, he has failed to show he is entitled
to summary judgment.
The Legislature's stated "intent" is to provide redress for
"those innocent persons who can demonstrate by clear and convincing
evidence that they were mistakenly convicted and imprisoned."
N.J.S.A. 52:4C-1 (emphasis added). From its first iteration, the
Act has required a claimant to establish "by clear and convincing
evidence" that "[h]e did not commit the crime for which he was
convicted." L. 1997, c. 227, § 3(b). The Legislature described
the burden of proof the claimant must satisfy as "substantial,"
and urged courts "in the interest of justice" to consider the
"difficulties of proof" in exercising discretion "regarding the
17 A-4816-14T2
weight and admissibility of evidence submitted" by the claimant.
L. 1997, c. 227, § 1. The plain language of the Act and its
legislative history thus both evince the Legislature's intent that
a claimant "prove" he did not commit the crime.
The burden of proof the Legislature elected for this cause
of action is clear and convincing evidence, the "intermediate
standard" between a preponderance of the evidence and proof beyond
a reasonable doubt. 2 McCormick on Evidence § 340 (Brown ed., 7th
ed. 2013). "[A]dopting a 'standard of proof is more than an empty
semantic exercise.'" Addington v. Texas, 441 U.S. 418, 425, 99
S. Ct. 1804, 1809, 60 L. Ed. 2d 323, 330 (1979) (citation omitted).
"The function of a standard of proof . . . is to 'instruct the
factfinder concerning the degree of confidence our society thinks
he should have in the correctness of factual conclusions for a
particular type of adjudication.'" Id. at 423-24 (quoting In re
Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 1076, 25 L. Ed. 2d
368, 379 (1970) (Harlan, J., concurring)).
Like plaintiffs in other actions where such proof is
required,6 plaintiff was required to satisfy each of the elements
6
See Bhagat, supra, 217 N.J. at 46-47 (holding clear and
convincing standard applies to father seeking to rebut a
presumption of a gift to an adult child and noting that standard
applies to: termination of parental rights, Santosky v. Kramer,
455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); N.J. Div.
of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986);
18 A-4816-14T2
of his cause of action by presenting evidence that met the standard
defined in our Model Jury Charge:
Clear and convincing evidence is evidence that
produces in your minds a firm belief or
conviction that the allegations sought to be
proved by the evidence are true. It is
evidence so clear, direct, weighty in terms
of quality, and convincing as to cause you to
come to a clear conviction of the truth of the
precise facts in issue.
The clear and convincing standard of
proof requires that the result shall not be
reached by a mere balancing of doubts or
probabilities, but rather by clear evidence
which causes you to be convinced that the
allegations sought to be proved are true.
[Model Jury Charge (Civil), 1.19, "Burden of
Proof – Clear and Convincing Evidence"
(2011).]
Plaintiff's only support for his claim that he did not commit
the crimes in question is the opinion by the Court of Appeals that
involuntary commitment of a person to a psychiatric facility,
Addington, supra, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323;
commitment pursuant to the Sexually Violent Predator Act, In re
Commitment of W.Z., 173 N.J. 109 (2002); decision to withhold life
sustaining treatment from a person in a persistent vegetative
state, Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 284, 110
S. Ct. 2841, 2854, 111 L. Ed. 2d 224, 245-46 (1990); decision to
withhold life sustaining treatment from an incompetent nursing
home patient, In re Conroy, 98 N.J. 321, 382 (1985); in
disciplinary proceedings against an attorney or a doctor, In re
Rachmiel, 90 N.J. 646, 661 (1982); In re Polk License Revocation,
90 N.J. 550, 563 (1982); and to prove fraud, Fox v. Mercedes-Benz
Credit Corp., 281 N.J. Super. 476, 484 (App. Div. 1995)).
19 A-4816-14T2
ordered the issuance of a writ of habeas corpus, which was relied
upon by the trial court in denying the State's motion to dismiss.
Even when habeas relief is granted because the State failed
to meet its much higher burden to prove guilt beyond a reasonable
doubt, the order does not prove the petitioner is innocent 7 or
restore the petitioner to a presumption of innocence that is
transferable to the civil action.8 Unless the habeas court makes
7
See, e.g., Doss v. State, 985 N.E.2d 1229, 1231-35 (Ohio 2012).
Although the Ohio statute required only proof by a preponderance
of the evidence, the Ohio Supreme Court held the fact the
plaintiff's conviction was vacated on the ground the state failed
to prove his guilt was insufficient to satisfy his burden "to
affirmatively establish his innocence." Id. at 1234. ("[A]
vacation of Doss's conviction does not prove his innocence."); see
also Fessenden, supra, 52 So. 3d at 7 ("[A]n order vacating a
conviction and sentence based on the legal ruling of this court
is not an order 'based upon exonerating evidence.'" (quoting Fla.
Stat. § 961.03 (2017))); Burrell v. State, 184 So. 3d 246, 254
(La. Ct. App.) ("Merely showing there is lack of credible evidence
to support a conviction is insufficient to meet the [plaintiff's]
burden" to prove "by clear and convincing scientific or non-
scientific evidence that he is factually innocent of the crime for
which he was convicted." (second quotation quoting La. Stat. Ann.
§ 15:572.8 (2017))), writ denied, 206 So. 3d 879 (La. 2016);
Piccarreto v. State, 534 N.Y.S.2d 31, 32 (N.Y. App. Div. 1988)
("[I]nability of the [state] to meet [its] burden in a criminal
trial" does not satisfy claimant's burden to "state facts in
sufficient detail to permit the court to find that he is likely
to succeed at trial in proving that [he or she] did not commit the
acts charged in the accusatory instrument.").
8
See, for example, Hess v. State, 843 N.W.2d 648, 651-53 (Neb.
2014), where, after his murder conviction was reversed, the
plaintiff, who was required to prove he was innocent of the crime
by clear and convincing evidence, argued he could rely upon a
presumption of innocence and that the state was required to prove
his guilt. The court rejected this assertion, holding the Nebraska
20 A-4816-14T2
a finding that a claimant was actually innocent, its findings have
limited probative value.9
A review of the Court of Appeals' decision reveals it falls
short of providing clear and convincing evidence that plaintiff
did not commit the murders. The State's theory regarding the
murders was that plaintiff was one of two accomplices to the actual
statute requires both legal innocence and actual innocence, which
means "a defendant did not commit the crime for which he or she
is charged." Id. at 653. The court observed that the presumption
of innocence pertains only to legal, not actual, innocence, and
has no bearing on the requirement that the plaintiff prove actual
innocence. Ibid.
9
Some statutes require a specific judicial finding or order as
a pre-requisite to pursuing a claim. See, e.g., Fla. Stat. §
961.02(4) (2017) (requiring an order issued by the original
sentencing court finding that the person did not commit "the act
nor the offense that served as the basis for the conviction and
incarceration and that the person did not aid, abet, or act as an
accomplice or accessory to a person who committed the act or
offense"); Haw. Rev. Stat. § 661B-1(b)(1) (Supp. 2016) (petitioner
must allege that either "(1)[t]he judgment of conviction was
reversed or vacated because the petitioner was actually innocent
of the crimes for which the petitioner was convicted, and the
court decision so states; or (2) [t]he petitioner was pardoned
because the petitioner was actually innocent of the crimes for
which the petitioner was convicted and the pardon so states"
(emphasis added)); Me. Stat. tit. 14, § 8241(2)(C) (2016) (claimant
must receive "a full and free pardon" with "a written finding by
the Governor . . . that the person is innocent of the crime for
which [he or she] was convicted"); Md. Code Ann., State Fin. &
Proc. § 10-501(b) (LexisNexis 2014) (claimant must have "received
from the Governor a full pardon stating that the individual's
conviction has been shown conclusively to be in error"); N.Y. Ct.
Cl. Act § 8-b(3)(b)(i) (McKinney 2017) (when a claim is based upon
the grant of a pardon, the pardon must be "upon the ground of
innocence").
21 A-4816-14T2
shooter, co-defendant Joseph Marsieno. The Court of Appeals noted
there was "overwhelming evidence" that plaintiff introduced the
victims to his co-defendants and "brokered a cocaine sale" between
them, and "more than sufficient evidence to allow the jury to
conclude that [plaintiff] was involved in disposing of the
[victims'] bodies and covering up their murders." Kamienski,
supra, 332 Fed. Appx. at 748-49. The Court of Appeals also
observed that the jury had rejected plaintiff's sworn denials of
involvement in the drug deal. Id. at 748. Relief was granted
because the State failed to identify "any direct or circumstantial
evidence that would allow a reasonable jury to conclude that
[plaintiff] knew of Marsieno's intent to rob and/or murder the
[victims] before Marsieno shot them." Id. at 749.
Although the Court of Appeals commented on the lack of
evidence to prove essential elements of the murder charges as well
as certain concessions made by the prosecutor during the trial,
it is clear the court's conclusion that a writ of habeas corpus
must be issued was based on reasoning that the evidence failed to
prove plaintiff's guilt beyond a reasonable doubt and did not
include any declaration that he was factually innocent. In short,
it can be characterized as a finding of legal innocence but not
actual innocence. This was an insufficient basis upon which to
award summary judgment to plaintiff.
22 A-4816-14T2
V.
For guidance in the event that plaintiff proves the elements
of his claim by clear and convincing evidence on remand, we address
plaintiff's argument regarding the calculation of damages. The
damages provision of the Act applicable to plaintiff's claim
provided:
Damages awarded under this act shall not
exceed twice the amount of the claimant's
income in the year prior to his incarceration
or $20,000.00 for each year of incarceration,
whichever is greater.
[L. 1997, c. 227, § 5(a).]
To arrive at the damages awarded plaintiff, the trial court
determined that plaintiff served approximately three years of his
twelve-year drug conspiracy sentence and multiplied $20,000 by
17.2 years.10 Plaintiff does not dispute the court's calculation
of "net" damages by reducing 20.6 years to 17.2 years. He argues
the trial court erred in multiplying the number of years of
incarceration by $20,000 rather than by the amount he earned in
the year prior to his incarceration. We disagree.
Plaintiff concedes the language of the damages provision in
the 1997 version of the Act is ambiguous, and argues it should be
10
The award of $343,000 appears to be a mathematical error.
23 A-4816-14T2
interpreted as if L. 1997, c. 227, § 5(a) included the underlined
language:
Damages awarded under this act shall not
exceed twice the amount of the claimant's
income in the year prior to his incarceration
for each year of incarceration or $20,000.00
for each year of incarceration, whichever is
greater.
To support this interpretation, plaintiff presented an expert
opinion from an English professor, who offered an interpretation
of the statute based upon grammatical principles. "[P]unctuation,
though important, is not decisive of legislative intent." Perez,
supra, 218 N.J. at 215. Moreover, this opinion was entitled to
no deference either in the trial court or on appeal. The purpose
of expert testimony is to assist the trier of fact regarding the
significance of evidence. N.J.R.E. 702. An expert's opinion on
a question of law is neither appropriate nor probative. Boddy v.
Cigna Prop. & Cas. Cos., 334 N.J. Super. 649, 659 (App. Div. 2000);
Healy v. Fairleigh Dickinson Univ., 287 N.J. Super. 407, 413 (App.
Div.), certif. denied, 145 N.J. 372, cert. denied, 519 U.S. 1007,
117 S. Ct. 510, 136 L. Ed. 2d 399 (1996); see also L & L Oil Serv.,
Inc. v. Dir., Div. of Taxation, 340 N.J. Super. 173, 182 (App.
Div. 2001). It is the exclusive province of the court to decide
questions of law, Russo v. Bd. of Trs., Police & Firemen's Ret.
24 A-4816-14T2
Sys., 206 N.J. 14, 27 (2011), such as the interpretation of a
statute.
Turning to principles of statutory construction, "the
doctrine of the last antecedent . . . holds that, unless a contrary
intention otherwise appears, a qualifying phrase within a statute
refers to the last antecedent phrase."11 State v. Gelman, 195 N.J.
475, 484 (2008); see also Singer & Singer, supra, § 47.33 at 494.
("Referential and qualifying words and phrases, where no contrary
intention appears, refer solely to the last antecedent."). Because
the Legislature did not separate the qualifying phrase "for each
year of incarceration" from $20,000 with a comma, the doctrine of
last antecedent provides support for the interpretation that "for
each year of incarceration" applies only to $20,000. Cf. Gudgeon
v. Cty. of Ocean, 135 N.J. Super. 13, 17 (App. Div. 1975) (noting
that where a comma sets off a modifying phrase from previous
phrases, the modifying phrase applies to all previous phrases).
But, more persuasive is the Legislature's own understanding
of the damages provision, as clearly set forth in the legislative
history for the 2013 amendments. Although the amendment itself
does not govern plaintiff's claim, the Legislature's statements
11
"The last antecedent is 'the last word, phrase, or clause that
can be made an antecedent without impairing the meaning of the
sentence.'" 2A Norman J. Singer & Shambie Singer, Statutes and
Statutory Construction § 47.33 at 494-97 (7th ed., rev. 2014).
25 A-4816-14T2
about the amendment and comparison to the corresponding language
in the Act as originally adopted provide invaluable insight into
the Legislature's intent. Our Supreme Court has recognized the
usefulness of an amendment that clarifies, rather than modifies,
a statute as a "tool to determine the intent behind the original
enactment." State v. Schubert, 212 N.J. 295, 314 (2012); e.g.,
D.W., supra, 212 N.J. at 250 (considering "[b]oth the plain
language and historical evolution of" the New Jersey Parentage
Act, N.J.S.A. 9:17-38 to -59, to glean legislative intent); see
also Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380-81, 89 S. Ct.
1794, 1801, 23 L. Ed. 2d 371, 383 (1969) ("Subsequent legislation
declaring the intent of an earlier statute is entitled to great
weight in statutory construction.").
In 2013, the Legislature adopted several amendments to the
Act, including amendments to N.J.S.A. 52:4C-5, the provision that
defines damages. 12 See L. 2013, c. 171. Pertinent to our
12
Another amendment reflected a legislative intent to limit
damages. The original language in the statement of legislative
findings stated it was the Legislature's intent to provide "an
available avenue of redress over and above the existing tort
remedies to seek compensation for damages." L. 1997, c. 227, § 1
(emphasis added). In 2013, N.J.S.A. 52:4C-1 was amended to delete
the underlined language. See L. 2013, c. 171, § 1. A corresponding
amendment was made to N.J.S.A. 52:4C-2, stating any award of
damages in an action against the State, any
26 A-4816-14T2
consideration is the restructured definition of the ceiling for
damages:
Damages awarded under this act shall not
exceed the greater of:
(a) twice the amount of the claimant's
income in the year prior to his incarceration;
or
(b) $50,000 for each year of
incarceration.
[N.J.S.A. 52:4C-5(a)(1).]
The Senate Judiciary Committee Statement clarifies that this
amendment did not change the way in which the ceiling for damages
is determined:
As to damages for eligible claimants, under
current law, damages cannot exceed twice the
amount of the claimant's income in the year
prior to the claimant's incarceration or
$20,000 for each year of incarceration,
whichever is greater. The bill does not alter
this measurement between the greater of income
in the year prior to the claimant's
incarceration or the total per year amount for
each year of incarceration, but this latter
amount would be calculated at $50,000 per year
instead of the current $20,000 per year.
[S. Judiciary Comm., Statement to S. 1219
(June 21, 2012) (emphasis added).]
political subdivision or employee of the same regarding "the same
subject matter shall be offset by any award of damages under [the]
act." L. 2013, c. 171, § 2.
27 A-4816-14T2
The Senate Budget and Appropriations Committee, the Assembly
Judiciary Committee and the Assembly Appropriations Committee all
issued statements regarding the amendment that used identical
language in describing the change made by the amendment. See S.
Budget and Appropriations Comm., Statement to S. 1219 (Oct. 1,
2012); Assemb. Judiciary Comm., Statement to S. 1219 (Dec. 10,
2012); Assemb. Appropriations Comm., Statement to S. 1219 (Feb.
7, 2013).
The legislative history thus presents compelling support for
the conclusion that the Legislature never intended an award of
damages to be based on the calculation urged by plaintiff. We
conclude that, even as originally drafted, the damages provision
defined two caps to a claimant's recovery. Under one scenario,
he would receive twice the amount he earned in the year prior to
his incarceration. The other scenario allowed recovery of an
amount calculated by multiplying the years of incarceration by
$20,000. The successful claimant is entitled to the greater amount
arrived at by either calculation. Therefore, in the event
plaintiff is awarded damages following the remand, his recovery
will be calculated accordingly.
VI.
Finally, we turn to plaintiff's challenge to the calculation
of the attorney fee award, an issue that need only be addressed
28 A-4816-14T2
in the event plaintiff prevails on remand. Plaintiff sought $1
million in fees, an amount that included all fees incurred from
the trial, direct appeal, habeas corpus petition and appeal, as
well as the instant litigation. The trial court determined he was
entitled only to reasonable attorney fees incurred in the instant
litigation.
New Jersey follows the "American Rule," which requires
litigants to bear their own litigation costs, regardless of who
prevails. Innes v. Marzano-Lesnevich, 224 N.J. 584, 592 (2016).
Nonetheless, "a prevailing party can recover those fees if they
are expressly provided for by statute, court rule, or contract."
Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 440 (2001).
The provision of the Act applicable to plaintiff's claim13
stated:
13
Subsection (b) was amended in 2013 to state:
In addition to the damages awarded pursuant
to subsection a., the claimant shall be
entitled to receive reasonable attorney fees
and costs related to the litigation. A
claimant may also be awarded other non-
monetary relief as sought in the complaint
including, but not limited to vocational
training, tuition assistance, counseling,
housing assistance, and health insurance
coverage as appropriate.
[L. 2013, c. 171, § 4 (codified at N.J.S.A.
52:4C-5(b)).]
29 A-4816-14T2
In addition to the damages awarded pursuant
to subsection a., the claimant shall be
entitled to receive reasonable attorney fees.
[L. 1997, c. 227, § 5(b).]
Plaintiff argues the statute is silent as to whether
"reasonable attorney fees" are limited to the fees incurred in the
civil action or extends to all fees related to the criminal
prosecution. He contends the Legislature did not anticipate that
an exonerated person would have the resources to pay for his own
defense from trial through applications for post-conviction relief
and that, if it had, it would have intended to include all fees
in order to "compensate" such persons "for the damages they
suffered because of their wrongful imprisonment." We disagree.
In the first instance, the statute is not silent on this
issue. Any attorney fee award is made "[i]n addition to the
damages awarded pursuant to subsection a." The argument that such
fees must include fees for services related to the criminal
prosecution conflates the concepts of damages and an award for
"reasonable attorney fees."
We are satisfied that if the Legislature intended to
compensate a successful complainant for fees related to the
underlying criminal prosecution, it would have stated so as a
component of recoverable damages in subsection (a) or stated
explicitly that "reasonable attorney fees" had a different meaning
30 A-4816-14T2
than it has historically employed in other statutes with fee-
shifting provisions.14
"The Legislature is presumed to be familiar with its own
enactments, with judicial declarations relating to them, and to
have passed or preserved cognate laws with the intention that they
be construed to serve a useful and consistent purpose." In re
Petition for Referendum on City of Trenton Ordinance 09-02, 201
N.J. 349, 359 (2010) (citation omitted). In light of this
principle, we note that, in 2013, the Legislature amended the
Public Defender Act, N.J.S.A. 2A:158A-1 to -25, to provide
additional relief to a defendant who is awarded damages under the
Mistaken Imprisonment Act "on grounds that the defendant did not
commit the crime for which he was convicted and imprisoned." The
amendment required the Public Defender to "discharge any lien for
services rendered concerning that crime." N.J.S.A. 2A:158A-17(b)
(emphasis added). Although there were amendments to the Act as
well in 2013, there was no corresponding clarification or
modification to the Act to state that "reasonable attorney fees"
included fees for services concerning the criminal prosecution.
14
See, e.g., the Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14, the New Jersey Consumer Fraud Act (CFA),
N.J.S.A. 56:8-1 to -206, and the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49.
31 A-4816-14T2
Therefore, in the absence of any legislative language to the
contrary, we conclude that "reasonable attorney fees" recoverable
under the Act are limited to those incurred in the successful
pursuit of the civil claim.
Reversed and remanded. We do not retain jurisdiction.
32 A-4816-14T2