In the Matter of Freddie B. Frazier, Department of Corrections

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3099-11T3
APPROVED FOR PUBLICATION
IN THE MATTER OF FREDDIE B. March 14, 2014
FRAZIER, DEPARTMENT OF
CORRECTIONS. APPELLATE DIVISION
________________________________
Argued Telephonically January 24, 2014 –
Decided March 14, 2014
Before Judges Fisher,1 Koblitz and O'Connor.
On appeal from the Civil Service Commission,
Docket No. 2011-4777.
Mario A. Iavicoli argued the cause for
appellant Freddie B. Frazier.
Donna S. Arons, Deputy Attorney General,
argued the cause for respondent Civil
Service Commission (John J. Hoffman, Acting
Attorney General, attorney; Lewis A.
Scheindlin, Assistant Attorney General, and
Ms. Arons, of counsel; Nicole P. Colon,
Deputy Attorney General, on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
Freddie B. Frazier appeals from a January 11, 2012 final
decision of the Civil Service Commission that removed him from
his position as a Senior Correction Officer because, having been
1
Judge Fisher did not participate in oral argument. He joins
the opinion with counsel's consent. R. 2:13-2(b).
convicted in 2000 of a disorderly persons offense involving
domestic violence, he was statutorily prohibited from possessing
or carrying a firearm, which is a requirement of his position.
We affirm.
This is the thirteenth year of litigation, and third
appeal, in this matter. Frazier was arrested in 1999. Although
indicted for much more serious crimes2, he eventually pleaded
guilty to simple assault by physical menace, N.J.S.A. 2C:12-
1(a)(3). The Department of Corrections (DOC) initially served
Frazier with a Preliminary Notice of Disciplinary Action (PNDA)
in 2001 based on the Lautenberg Amendment to the federal Gun
Control Act, 18 U.S.C.A. § 922(g)(9), which provides that any
person convicted of a qualifying domestic violence offense is
prohibited pursuant to federal law from possessing a firearm.
Frazier was removed from his position, lost his administrative
appeals and appealed to us.
Although noting that the "police report of the incident
that resulted in the charges . . . shows appellant repeatedly
struck his girlfriend with a closed fist and reached for his gun
during the assault," we reversed the determination of the Civil
Service Commission to remove him from his position because the
2
He was indicted for third-degree theft, N.J.S.A. 2C:20-3 and
second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a).
2 A-3099-11T3
simple assault provision to which Frazier pleaded guilty did not
have "'as an element, the use or attempted use of physical
force, or the threatened use of a deadly weapon[]' 18 U.S.C.A. §
921(a)(33)(A) . . . ." In re Frazier, 392 N.J. Super. 514, 520
(App. Div. 2007). In the opinion we noted that Frazier
acknowledged the incident was one of domestic violence. We
stated that
the victim, appellant's live-in girlfriend,
is conceded to have been a cohabitant who
was "similarly situated to a spouse."
Consequently, the only issue is whether
appellant's conviction satisfied the second
criterion of 27 C.F.R. § 478.11 [the
administrative regulation implementing the
Lautenberg Amendment], that is, whether he
was convicted of an offense that has, as an
element, the use or attempted use of
physical force (e.g., assault and battery),
or the threatened use of a deadly weapon.
[Id. at 518-19 (internal quotation marks
omitted).]
Although reversing his removal, we remanded because his
conviction might warrant other disciplinary action. Id. at 520.
The DOC then amended its PNDA, claiming Frazier was
disqualified from possessing a firearm under the New Jersey
analog to the Lautenberg Amendment, the 2004 amendment to
N.J.S.A. 2C:39-7(b)(2), and the Civil Service Commission agreed,
finding that he was prohibited under State law from carrying a
firearm. We again reversed, determining that the last-minute
3 A-3099-11T3
addition of the New Jersey law to the PNDA was procedurally
improper. After the second reversal, the DOC served a new PNDA
on Frazier, again alleging that he could not perform his job
because the 2004 New Jersey law prohibited him from possessing
or using a firearm due to a disorderly persons conviction
involving domestic violence. It is this determination that we
now affirm.
Our role in reviewing a final administrative agency
decision is limited. In re Taylor, 158 N.J. 644, 656 (1999).
We must defer to a final agency decision unless it is arbitrary,
capricious, unsupported by substantial credible evidence in the
record, or in violation of the express or implicit legislative
policy. Id. at 656-57. We must determine whether an agency's
findings could have been "'reached on sufficient credible
evidence present in the record' considering 'the proofs as a
whole,' with due regard to the opportunity of the one who heard
the witnesses to judge of their credibility." Id. at 656
(quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). If
we find sufficient credible evidence in the record to support
the agency's conclusions, then we must affirm even if we would
have reached a different result. Clowes v. Terminix Int'l,
Inc., 109 N.J. 575, 588 (1981). Despite high deference, we must
set aside a decision if an independent review of the record
4 A-3099-11T3
satisfies us that the finding was clearly mistaken or erroneous,
L.M. v. Div. of Med. Assist. & Health Servs., 140 N.J. 480, 490
(1995).
I
Frazier argues that this most recent PNDA is barred by res
judicata, collateral estoppel and the entire controversy
doctrine. He also claims that the PNDA seeks to illegally
impose an ex post facto penalty and also fails because the
statute has an exemption for law enforcement officers while on
duty. None of the issues raised by Frazier was raised in the
administrative proceedings. Our Supreme Court has stated that
appellate courts "will decline to consider questions or issues
not properly presented to the trial [forum] when an opportunity
for such a presentation is available 'unless the questions so
raised on appeal go to the jurisdiction of the trial [forum] or
concern matters of great public interest.'" Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973) (internal citations
omitted). Although raised on appeal for the first time, given
the complicated procedural history and significant ramifications
for Frazier and others, we will address these issues in the
interest of justice.
Frazier claims that our 2011 decision gave finality to his
claim that the DOC could not remove him based on N.J.S.A. 2C:39-
5 A-3099-11T3
7(b)(2), asserting we determined in that opinion that the
evidence presented failed to establish his conviction involved
domestic violence. Although he raised that argument in his
second appeal, we reversed based on a procedural defect. We
stated that Frazier was "arrested as a result of an incident
involving his girlfriend" and declined to address whether
Frazier's conviction was one involving domestic violence. The
principles of collateral estoppel and res judicata do not assist
Frazier because neither we, nor any other court or agency,
determined his conviction did not involve domestic violence. To
the contrary, in his first appeal Frazier conceded the incident
involved his "live-in girlfriend." Frazier, supra, 392 N.J.
Super. at 518. Having conceded that fact in 2007 in this same
litigation, he cannot now raise the issue as unproven.
II
Frazier also argues that applying the 2004 amendment to a
1999 conviction violates the United States and New Jersey
constitutional prohibitions against ex post facto laws. U.S.
Const. art. 1, § 9, cl. 3; U.S. Const. art. 1 § 10, cl. 1; N.J.
Const. art. IV, § 7, P 3; see Doe v. Portiz, 142 N.J. 1, 42-43
n.10 (1995) (explaining that New Jersey interprets its ex post
facto clause consistent with federal law). For a criminal law
to be ex post facto, it must: (1) be "retrospective" in
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applying to events occurring before its enactment and (2)
disadvantage "the offender affected by it." State v. Natale,
184 N.J. 458, 491 (2005) (internal citations and quotation marks
omitted). N.J.S.A. 2C:39-7(b)(2), the applicable part of the
"Certain Persons Not to Have Weapons" statute, states that a
person "having been convicted" of a "disorderly persons offense
involving domestic violence, whether armed or not armed . . .
who purchases, owns, possesses or controls a firearm is guilty
of a crime of the third degree."
The Eighth Circuit decided a similar ex post facto
challenge to the Lautenberg Amendment. In United States v.
Pfeifer, 371 F.3d 430, 436 (8th Cir. 2004), the court held that
the Lautenberg Amendment's prohibition on gun ownership and
possession was not applied ex post facto to a defendant in
possession of a gun who had been convicted of a domestic
violence misdemeanor prior to the passage of the amendment. The
defendant was convicted of violating a South Dakota statute for
attempting to "cause bodily injury" to his wife seventeen years
before the Lautenberg Amendment's passage for using and
possessing a firearm. Id. at 433-36. The court, relying on
precedent from other federal circuits, held that the law is "not
retroactive simply because it 'draws upon antecedent facts for
its operation.'" Id. at 436. The reasoning in Pfeifer
7 A-3099-11T3
upholding the defendant's conviction applies here as well.
Frazier's disqualification because he is unable to legally use a
firearm does not violate the Ex Post Facto Clause of the state
or federal constitution.
III
Frazier claims also that the DOC's fragmented litigation
based on the "same identical, exact core facts" serves to bar
the current proceeding. The entire controversy doctrine is
codified in Rule 4:30A, which provides the "nonjoinder of claims
required to be joined by the entire controversy doctrine shall
result in the preclusion of the omitted claims . . . ." Our
Supreme Court recognizes that the doctrine "encompasses a
mandatory rule for the joinder of virtually all causes, claims
and defenses related to a controversy between the parties
engaged in litigation." Cogdell v. Hospital Ctr., 116 N.J. 7,
16 (1989). In determining whether a prior claim or a successive
claim constitutes a controversy such that the successive claim
should be barred, "the central consideration is whether the
claims against the different parties arise from related facts or
the same transaction or series of transactions." DiTrolio v.
Antiles, 142 N.J. 253, 267 (1995).
While the doctrine is broad, its "boundaries . . . are not
limitless." Mystic Isle Dev. Corp. v. Perskie & Nehmad, 142
8 A-3099-11T3
N.J. 310, 323 (1995). The Court explained that the entire
controversy doctrine does not bar "component claims that are
unknown, unarisen, or unaccrued at the time of the original
action." Ibid. Frazier's disqualification under New Jersey law
from possessing a firearm did not arise until 2004 when N.J.S.A.
2C:39-7(b)(2) took effect. The DOC could not have joined this
claim in its first 2001 PNDA because the New Jersey amendment
did not yet exist. When the DOC attempted to amend the 2001
PNDA to include N.J.S.A. 2C:39-7(b)(2) as a reason for his
removal in 2008, we held that such a modification was
procedurally deficient because proper notice had not been given
to Frazier. Although the DOC could have filed a new PNDA based
on State law sooner, the delay in amending the PNDA does not
constitute a violation of the entire controversy doctrine in
these circumstances. As the Attorney General notes, for reasons
of safety, a corrections officer must be able to legally possess
a firearm to adequately perform his duties. Neither this
requirement nor enforcement of the 2004 criminal statute can be
waived by the DOC.
IV
Frazier argues in his final substantive argument that
N.J.S.A. 2C:39-7(b)(2) contains an exemption codified in
N.J.S.A. 2C:39-7(b)(3), which reads in pertinent part:
9 A-3099-11T3
A person whose firearm is seized pursuant to
the "Prevention of the Domestic Violence Act
of 1991," . . . (2C:25-17 et seq.) . . . who
purchases, owns, possesses or controls a
firearm is guilty of a crime of the third
degree, except that the provisions of this
paragraph shall not apply to law enforcement
officers while actually on duty . . .
[(Emphasis added).]
This provision does not apply to Frazier as he did not have a
firearm seized pursuant to the Domestic Violence Act. See
2C:25-21(d). The Legislature did not exempt law enforcement
officers from the provision of N.J.S.A. 2C:39-7(b)(2) that
prohibits the possession of a firearm by anyone with a criminal
conviction for a domestic violence offense. We must interpret
statutes as they are written. Hardy ex re. Dowdell v. Abdul-
Matin, 198 N.J. 95, 101 (2009) (stating that "the best
indicators" of Legislative intent are the "plain words of the
statute").
We recognize that the DOC should have litigated this matter
more efficiently so that Frazier did not have to endure many
years of litigation. We also understand that Frazier may well
not have pleaded guilty in 1999 had he known the guilty plea
would cost him his job years later. However, when enacting the
2004 amendment, the Legislature chose to expand the statute to
prohibit possession of a firearm by any person, without
exception, who was convicted at any time of a disorderly persons
10 A-3099-11T3
offense involving domestic violence. Our decision gives force
to that intent.
Affirmed.
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