State of New Jersey v. Western World, Inc.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3007-12T2
MOTION NO. M-0474-13
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, March 30, 2015
APPELLATE DIVISION
v.
WESTERN WORLD, INC.,
Defendant-Appellant.
_______________________________________________
Motion Argued March 4, 2014 - Decided March 30, 2015
Before Judges Messano, Hayden and Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Sussex County,
Indictment No. 08-06-00186.
Susan Brody, Deputy Public Defender, II,
argued the cause for Party-In-Interest
Office of the Public Defender (Joseph E.
Krakora, Public Defender, attorney; Ms.
Brody, on the brief).
Jeffrey S. Mandel argued the cause for
appellant Western World, Inc. (Cutolo
Mandel, LLC, attorneys; Mr. Mandel, on the
brief).
Gregory Robert Mueller, Assistant Prosecutor,
argued the cause for respondent State of New
Jersey (David J. Weaver, Sussex County
Prosecutor, attorney; Mr. Mueller, on the
brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
This motion presents an issue of first impression in this
State, specifically, whether the Office of the Public Defender
(OPD) must represent on appeal a corporation convicted of an
indictable offense and subsequently declared "indigent" by the
trial court.
The facts and procedural history are undisputed. The
Sussex County grand jury returned Indictment No. 08-06-00186,
charging defendant Western World, Inc., and others with crimes
that arose from a July 7, 2006 shooting during the reenactment
of a gunfight at Wild West City, a business operated by
defendant.1 On April 11, 2012, represented by private counsel
1
We previously described the circumstances in our unpublished
opinion, Stabile v. Benson, No. A-4009-09 (App. Div. Sept. 29,
2011):
[A]n actor [employed] by [defendant] . . .
was participating in the reenactment of a
gunfight at Wild West City. A fellow
employee actor used a gun that did not
contain blanks but rather live ammunition
that had been brought to work by another
employee sometime prior to the gunfight
skit. [The actor] was shot in the head
during the skit, suffered a catastrophic
brain injury, and was severely and
permanently disabled as a result.
[Id. (slip op. at 4).]
(continued)
2 A-3007-12T2
and pursuant to a plea agreement, defendant pled guilty as an
accomplice to count fifteen of the indictment as amended to
charge third-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b), and 2C:2-6(b)(1). The State agreed to dismiss the
balance of the indictment and recommend a one-year period of
probation, subject to specific terms and conditions.
We have not been provided with a transcript of the plea
proceedings as part of this motion record. However, the plea
form and addendum, apparently prepared by the prosecutor,
indicated that the State would also dismiss the indictment as to
co-defendants Michael Stabile, at the time defendant's
president, Nathan McPeak, one of its employees, and Cheyenne
Corporation, an entity that owned the land upon which Wild West
City operated. The addendum also indicated that the State would
not seek a fine, and it set forth the State's recommendations
regarding conditions of probation. Lastly, the addendum
provided:
(continued)
Although citing an unpublished opinion is generally
forbidden, we do so here to provide a full understanding of the
issues presented and pursuant to the exception in Rule 1:36-3
that permits citation "to the extent required by res judicata,
collateral estoppel, the single controversy doctrine or any
other similar principle of law . . . ." See Badiali v. New
Jersey Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div.
2012), aff'd ___ N.J. ___, ___ (2015) (slip op. at 3).
3 A-3007-12T2
It is acknowledged that the amendment to
Count [Fifteen] is legally proper and
sufficient and will not be challenged on
appeal. [Defendant] reserves the right to
appeal the limited question of whether a
carry permit was required by the actors
under the facts of this case. [Defendant]
waives any other appellate issues and agrees
to withdraw the previously filed
interlocutory appeal.
Stabile executed the plea form on behalf of defendant. The
judgment of conviction entered on October 23, 2012, reflects
that the judge placed defendant on probation for one year,
imposed a $7500 fine to be paid over a period of three years,
and imposed other mandatory financial penalties.
On November 8, 2012, defense counsel wrote to the regional
office of OPD, indicating that defendant wished to appeal the
issue reserved at the time of its guilty plea, as well as the
imposition of the fine, and that his firm, which had not been
compensated, would not represent defendant. He further noted
the judge told Stabile at sentencing that "the corporation would
be entitled to a Public Defender if it could not afford an
attorney . . . ." Counsel stated that defendant, however, was
"turned away by the Public Defender's Office." Citing our
decision in In re CLM Construction Co., 277 N.J. Super. 329(App. Div. 1994), defense counsel contended that defendant was
entitled to representation by OPD on appeal.
4 A-3007-12T2
Based on a December 19, 2012 letter from an investigator
assigned to the vicinage Criminal Division Manager's Office, we
gather that Stabile applied on behalf of defendant for the
services of OPD on November 30. Stabile indicated that
defendant had sold its interest in Wild West City in 2007. The
corporation's only asset was "a 58 acre tract of land containing
a large area of wetlands." Review of defendant's financial
records revealed that it had "available bank funds of
$1,874.56," and it was in debt "due to past loans and attorney
fees." There was also a pending civil suit against defendant
based upon the July 7, 2006 incident. As a result, the
investigator approved defendant's application for OPD's services
"upon the acceptance of . . . [OPD]."2
On February 26, 2013, OPD filed a notice of appeal on
behalf of defendant, and, on September 11, OPD filed this motion
2
The record does not contain any order from the trial judge
appointing OPD to represent defendant on appeal. See R. 2:7-1
("[A] person, who by reason of poverty, seeks relief from the
payment of appellate filing fees . . . may without fee file with
the trial court a verified petition setting forth the facts
relied upon, and the court, if satisfied of the facts of
indigency, shall enter an order waiving such payment and
deposit.") (emphasis added); see also R. 2:7-2 ("All persons
convicted of an indictable offense who are not represented by
[OPD] and who desire to appeal, and who assert they are
indigent, shall complete and file . . . with the court in which
they were convicted, the appropriate form . . . . They shall
thereupon be referred to [OPD], which shall represent them on
such appeal . . . as would warrant the assignment of counsel
. . . .") (emphasis added).
5 A-3007-12T2
to be relieved as counsel. OPD argued that, pursuant to the
Public Defender Act (the PDA), N.J.S.A. 2A:158A-1 to -25, it
retained "some measure of discretion" regarding allocation of
its "limited resources." OPD also questioned the "value of
th[e] appeal," because defendant's probationary term was about
to end in October 2013, and the adverse decision defendant
sought to appeal involved the denial of its motion to dismiss
the original charge in the indictment, not the amended charge to
which it pled guilty. OPD also concluded that any appeal
regarding the imposition of a fine lacked merit.
On September 23, Stabile filed a letter brief in opposition
to the motion on behalf of defendant. Rule 1:21-1(c), however,
provides that subject to certain exceptions that do not apply
here, "an entity . . . other than a sole proprietorship shall
neither appear nor file any paper in any action in any court of
this State except through an attorney authorized to practice in
this State." We therefore appointed counsel to represent
defendant for purposes of this motion.3
In opposing OPD's motion, defendant argued that while OPD
has discretion to allocate its resources, it "lacks discretion
to deny representation to an indigent defendant," and, based
3
The Court wishes to extend its thanks to counsel for accepting
the designation.
6 A-3007-12T2
upon the express language of the PDA, the motion must be denied.
Additionally, citing N.J.S.A. 2A:158A-15.1, defendant contended
that review of OPD's request lay with the vicinage Assignment
Judge, although, because of the public interests at stake,
defendant urged us to exercise our original jurisdiction
pursuant to Rule 2:10-5 and decide the motion.4
We also requested that the State file a response to
defendant's motion. Although agreeing that the appeal lacked
merit, the assistant prosecutor who handled the prosecution in
the Law Division took no position on OPD's request to be
relieved.
At oral argument before us, OPD expanded upon its requested
relief. OPD argued that because no "liberty" interest is at
stake, it has no obligation to represent a corporate defendant
under any circumstances. OPD argued that to the extent our
prior decision in CLM Construction implies a contrary result, we
should overrule that precedent.
4
N.J.S.A. 2A:158A-15.1 provides in pertinent part: "A
determination to grant or deny the services of the Public
Defender shall be subject to final review by the Assignment
Judge or his designated judge." As noted, there was no order
from the Law Division appointing OPD, and the record fails to
disclose whether OPD sought such a review. In any event, the
statute has no particular application to the issue at hand,
because pursuant to Rule 2:7-3, a defendant's requests for
relief regarding the waiver of fees or the appointment of
counsel on appeal because of indigency, see R. 2:7-1 and -2, are
reviewable by this court.
7 A-3007-12T2
I.
The only discussion in a published New Jersey decision as
to whether OPD is required to represent an indigent corporation
appears in a footnote in CLM Construction. There, the trial
judge appointed an OPD pool attorney, who had represented the
corporate president as an individual co-defendant, to also
represent the corporate defendant. CLM Const., supra, 277 N.J.
Super. at 330-32. Both defense counsel and the assistant
prosecutor advised the judge that OPD did not represent
corporations. Id. at 331. Nevertheless, the judge indicated he
would appoint counsel to represent the corporation. Id. at 332.
Although counsel provided personal justification for her
refusal, the judge would not reconsider his order of
appointment, ibid., and we granted counsel leave to appeal. Id.
at 330. We reversed the order, concluding that the judge failed
to comply with then-existing Rule 3:27-1,5 failed to make full
inquiry of the corporation or its president, and failed to
5
Rule 3:27-1 was subsequently deleted, and its text combined
with Rule 3:4-2. Pressler & Verniero, Current N.J. Court Rules,
comment on R. 3:27-1 (2015). Rule 3:4-2(b)(5) now provides that
at a defendant's first appearance, "the judge shall . . . if the
defendant asserts indigence, and does not affirmatively . . .
waive the right to counsel, assure that the defendant completes
the appropriate application form for public defender services
and files it with the criminal division manager's office[.]"
8 A-3007-12T2
acknowledge the attorney's objections to the appointment; we
remanded the matter for further proceedings. Id. at 334.
In a footnote, we discussed the assertion by counsel and
the prosecutor that OPD did not represent corporate defendants.
Id. at 331 n.2. We noted that our research "fail[ed] to uncover
any New Jersey authority specifically considering this point."
Ibid. We further observed that both State v. Rush, 46 N.J. 399(1966), and State v. Horton, 34 N.J. 518 (1961), "discuss the
indigent's right to appointed counsel[,]" but that neither case
"distinguish[ed] between indigent individuals and indigent
corporations," and we specifically cited N.J.S.A. 1:1-2 for the
proposition that "a corporation is a person." CLM Const.,
supra, 277 N.J. Super. at 331 n.2. We then considered the
"eight determining factors for eligibility for public defender
representation" contained in N.J.S.A. 2A:158A-14, and noted that
three factors "clearly only apply to people[,]" but the
remaining five factors "may be read as applicable to people or
corporations." Ibid.
We further observed that neither the federal Criminal
Justice Act, 18 U.S.C.A. § 3006A, nor Federal Rule of Criminal
Procedure 44(a), "mentions indigent corporations." Ibid.
Additionally, we took note of two New York decisions, People v.
BNB Realty Corp., 379 N.Y.S.2d 324 (N.Y. Crim. Ct. 1976), and
9 A-3007-12T2
People v. Select Tire, 374 N.Y.S.2d 274 (N.Y. Crim. Ct. 1975),
holding that "the right to counsel, which protects only
individual or property rights, does not exist for corporations
where corporations could neither be imprisoned nor fined, based
on indigency." CLM Const., supra, 277 N.J. Super. at 331 n.2.
II.
We address the issue our footnote in CLM Construction
succinctly framed, but left unresolved, by first considering the
nature and scope of the fundamental right to counsel embodied in
the United States and New Jersey Constitutions.
A.
The Sixth Amendment to the United States Constitution
provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right to . . . have the Assistance of Counsel for his
defence." The Amendment guarantees the right of a criminal
defendant to retain counsel of his choice, United States v.
Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 2561, 165 L.
Ed. 2d 409, 417 (2006), to the effective assistance of counsel,
and if indigent and facing the potential loss of "life or
liberty," to have counsel appointed at the government's expense.
Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d
383 (1979).
10 A-3007-12T2
The right to counsel on appeal from a State court criminal
conviction derives not from the text of the Sixth Amendment, but
rather from the Fourteenth Amendment's equal protection
provisions. As we have explained,
Although there is no constitutional right to
an appeal, Griffin v. Illinois, 351 U.S. 12,
18, 76 S. Ct. 585, 590, 100 L. Ed. 891, 898
(1956), once a right to appeal is provided,
that right must be protected in a non-
discriminatory fashion. Accordingly, an
indigent defendant has a right to counsel on
direct appeal. Douglas v. California, 372
U.S. 353, 357, 83 S. Ct. 814, 816, 9 L. Ed.
2d 811, 814 (1963).
[State v. Coon, 314 N.J. Super. 426, 434
(App. Div.), certif. denied, 157 N.J. 543(1998).]
The right to appointed counsel under the Sixth Amendment,
however, exists only when "the litigant may lose his physical
liberty if he loses the litigation." Lassiter v. Dep't of Soc.
Servs., 452 U.S. 18, 25, 101 S. Ct. 2153, 2158, 68 L. Ed. 2d
640, 648 (1981). "[A]s a litigant's interest in personal
liberty diminishes, so does his right to appointed counsel."
Id. at 26, 101 S. Ct. at 2159, 68 L. Ed. 2d at 649. "[I]t is
the defendant's interest in personal freedom, and not simply the
special Sixth and Fourteenth Amendments right to counsel in
criminal cases, which triggers the right to appointed counsel in
criminal cases. . . ." Id. at 25, 101 S. Ct. at 2158, 68 L. Ed.
2d at 648. Thus, "the line defining the [federal]
11 A-3007-12T2
constitutional right to appointment of counsel" is "actual
imprisonment," not fines or the threat of imprisonment. Scott,
supra, 440 U.S. at 373, 99 S. Ct. at 1162, 59 L. Ed. 2d at 389.
The federal circuits have held the Sixth Amendment applies
to corporations.
The sixth amendment describes the class of
persons protected by its terms with the word
"accused." This language does not suggest
that the protection of sixth amendment
rights is restricted to individual
defendants.
Furthermore, an accused has no less of
a need for effective assistance due to the
fact that it is a corporation. The purpose
of the guarantee is to ensure that the
accused will not suffer an adverse judgment
or lose the benefit of procedural
protections because of ignorance of the law.
A corporation would face these same dangers
unless the agent representing it in court is
a competent lawyer. Thus, the right to
effective assistance of counsel is not so
peculiarly applicable to individuals that
corporations should not be entitled to it.
Nor can we see how this right is in any
manner inconsistent with a corporation's
status as a creature of state law.
Consequently, we hold that the guarantee of
effective assistance of counsel applies to
corporate defendants.
[United States v. Rad-O-Lite of
Philadelphia, Inc., 612 F.2d 740, 743 (3d
Cir. 1979) (internal citations omitted);
12 A-3007-12T2
accord United States v. Unimex, Inc., 991
F.2d 546, 549 (9th Cir. 1993).]6
Significantly, however, federal courts have uniformly held
that corporations, unlike defendants who are natural persons, do
not have a Sixth Amendment right to appointed counsel at public
expense. See United States v. Hartsell, 127 F.3d 343, 350 (4th
Cir. 1997); Unimex, Inc., supra, 991 F.2d at 550; United States
v. Rocky Mt. Corp., 746 F. Supp. 2d 790, 803 (W.D. Va. 2010);
United States v. Rivera, 912 F. Supp. 634, 638 (D.P.R. 1996);
Mid-Central/Sysco Food Servs., Inc. v. Reg'l Food Servs., Inc.,
755 F. Supp. 367 (D. Kan. 1991). The court in Rocky Mt. Corp.,
supra, 746 F. Supp. 2d at 800, explained:
[T]he corporation's right to counsel does
not precisely mirror the individual's right
to counsel. It follows that when we speak
of the corporation's Sixth Amendment right
to counsel, we in no way imply that it can
have counsel it cannot afford. Rather, what
the corporation has is the right to retain
the counsel of its choice to represent its
interests without undo governmental
intrusion. Thus, a corporation's Sixth
Amendment right in a criminal trial is its
right to retain counsel while an
individual's Sixth Amendment right includes
the right to appointed counsel. Unlike an
individual, a corporation cannot have what
it cannot afford.
6
Our Supreme Court has also explicitly recognized that the Sixth
Amendment's right to counsel applies to corporations. Matter of
668 Advisory Comm. on Prof'l Ethics, 134 N.J. 294, 302 (1993).
13 A-3007-12T2
[(Emphasis added) (internal citation
omitted).]
See also Peter J. Henning, The Conundrum of Corporate Criminal
Liability: Seeking a Consistent Approach to the Constitutional
Rights of Corporations in Criminal Prosecutions, 63 Tenn. L.
Rev. 793, 885 (1996) (explaining that under the United States
Constitution, "a corporation cannot claim the same measure or
degree of protection that the individual defendant may claim").
The Sixth Amendment right to counsel is so limited because
corporations cannot be imprisoned or face a loss of liberty.
Unimex, Inc., supra, 991 F.2d at 550; Rivera, supra, 912 F.
Supp. at 638.
B.
In part, Article I, Paragraph 10 of the New Jersey
Constitution provides, "In all criminal prosecutions the accused
shall have . . . the assistance of counsel in his defense." 7 The
Court long ago noted, that "[f]rom very early days New Jersey
has considered the matter of counsel for an indigent criminal
defendant as one of absolute right under state law." Horton,
7
Our prior constitutions also included a right to counsel. N.J.
Const. of 1776, art. XVI ("all criminals shall be admitted to
the same privileges of witnesses and counsel, as their
prosecutors are or shall be entitled to"); N.J. Const. of 1844,
art. I, ¶ 8 (in all criminal prosecutions the accused shall have
the right to "the assistance of counsel in his defense"). See
Rush, supra, 46 N.J. at 403.
14 A-3007-12T2
supra, 34 N.J. at 522. Since 1795, New Jersey has legislated
the right of an indigent defendant to assigned counsel.
Patterson, Laws of the State of N.J., 162 (1800).8 See also
Robert J. Martin and Walter Kowalski, New Jersey Development: "A
Matter of Simple Justice": Enactment of New Jersey's Municipal
Public Defender Act, 51 Rutgers L. Rev. 637, 645 (1999) (noting
that New Jersey was the first state in the nation to enact
legislation providing assigned counsel to represent indigent
defendants in its courts).
In addition, "the right to appointed counsel for indigent
litigants has received more expansive protection under our state
law than federal law." Pasqua v. Council, 186 N.J. 127, 147 n.5
(2006). In many cases, the Court found support for such
expansion in Article I, Paragraph 1 of the New Jersey
Constitution, our State's equivalent of the due process
provisions of the Fifth and Fourteenth Amendments of the Federal
Constitution. Ibid.For example, State constitutional due process rights
require the appointment of counsel for indigents in a variety of
8
The 1795 Act provided that "the court, before whom any person
shall be tried upon indictment, is hereby authorized and
required to assign to such person, if not of ability to procure
counsel, such counsel, not exceeding two, as he or she shall
desire, to whom such counsel shall have free access at all
seasonable hours." Paterson, Laws of New Jersey 162 (1800).
15 A-3007-12T2
situations where the loss of liberty is not at stake. See,
e.g., N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301,
306-07 (2007) (termination of parental rights); Doe v. Poritz,
142 N.J. 1, 31 (1995) (Meagan's law tier classification); In re
S.L., 94 N.J. 128, 142 (1983) (involuntary civil commitment).
State constitutional due process rights also require the
appointment of counsel in circumstances involving the potential
loss of liberty, albeit not as a result of a "criminal
prosecution[]." See Pasqua, supra, 186 N.J. at 149 (holding due
process requires the appointment of counsel for indigent parents
at risk of incarceration resulting from child support
enforcement hearings). Additionally, without referencing our
State Constitution, in Rodriguez v. Rosenblatt, 58 N.J. 281(1971), the Court extended the right to appointed counsel to
indigent defendants in quasi-criminal municipal court
prosecutions. Concluding that result was compelled "as a matter
of simple justice," the Court held that "no indigent defendant
should be subjected to a conviction entailing imprisonment in
fact or other consequence of magnitude without first having had
due and fair opportunity to have counsel assigned without cost."
Id. at 295. Relying on the principle of "simple justice," in
State v. Hermanns, 278 N.J. Super. 19, 30 (App. Div. 1994), we
16 A-3007-12T2
subsequently held that imposition of significant fines
constituted a consequence of magnitude.9
Nonetheless, despite New Jersey's long history of assigning
counsel to represent indigent defendants, and the expanded
protections afforded under our constitution to other indigent
litigants, our research has revealed no case in which a court
has appointed counsel at public expense to represent an
"indigent" corporation.
III.
A.
The arguments made by defendant and OPD require us to
construe the PDA, and in doing so, we apply some well-recognized
tenets. "In statutory interpretation, a court's role 'is to
determine and effectuate the Legislature's intent.'" State ex
rel. K.O., 217 N.J. 83, 91 (2014) (quoting Allen v. V & A Bros.,
208 N.J. 114, 127 (2011)). "In construing any statute, we must
give words 'their ordinary meaning and significance,'
9
In an appendix to Part Seven of the court rules governing
practice in the municipal courts, and applicable to "persons
convicted of non-indictable offenses" seeking representation,
the term "consequence of magnitude" is defined as: 1) any
sentence of imprisonment; 2) any period of driver's license
suspension, suspension of non-resident reciprocity privileges or
driver's license ineligibility; or (3) any monetary sanction of
$800 or greater in the aggregate. Guidelines for Determination
of Consequence of Magnitude, Pressler & Verniero, Current N.J.
Court Rules, Appendix to Part VII (2015).
17 A-3007-12T2
recognizing that generally the statutory language is 'the best
indicator of [the Legislature's] intent.'" Tumpson v. Farina,
218 N.J. 450, 467 (2014) (alteration in original) (quoting
DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
"However, not every statute is a model of clarity. When
the statutory language is sufficiently ambiguous that it may be
susceptible to more than one plausible interpretation, we may
turn to such extrinsic guides as legislative history, including
sponsor statements and committee reports." Wilson ex rel.
Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012) (citing
Burns v. Belafsky, 166 N.J. 466, 473 (2001)). "We may also turn
to extrinsic guides if a literal reading of the statute would
yield an absurd result, particularly one at odds with the
overall statutory scheme." Ibid. (citations omitted). A court
"should also 'be guided by the legislative objectives sought to
be achieved by enacting the statute.'" Town of Kearny v.
Brandt, 214 N.J. 76, 98 (2013) (quoting Wilson, supra, 209 N.J.
at 572). "Accordingly, when a literal interpretation of
individual statutory terms or provisions would lead to results
inconsistent with the overall purpose of the statute, that
interpretation should be rejected." Perrelli v. Pastorelle, 206
N.J. 193, 201 (2011).
18 A-3007-12T2
The PDA provides in pertinent part that "[i]t shall be the
duty of [OPD] to provide for the legal representation of any
indigent defendant who is formally charged with the commission
of an indictable offense[,]" such representation "shall include
any direct appeal from conviction . . . ." N.J.S.A. 2C:158A-5
(emphasis added). Under the PDA, "'indigent defendant' means a
person who is formally charged with the commission of an
indictable offense, and who does not have the present financial
ability to secure competent legal representation, as determined
by the factors in [N.J.S.A. 2A:158A-14], and to provide all
other necessary expenses of representation." N.J.S.A. 2A:158A-2
(emphasis added).
Although "person" is not defined by the PDA, defendant
argues that, "[u]nless . . . otherwise expressly provided or
there is something in the subject or context repugnant to such
construction[,]" N.J.S.A. 1:1-2 supplies the meaning of certain
statutory "words and phrases." "The word 'person' includes
corporations . . . unless restricted by the context to an
individual as distinguished from a corporate entity . . . ."
Ibid.; see also N.J.S.A. 2C:1-14(g) (providing that under the
Criminal Code, "'[p]erson[]' . . . include[s] any natural person
and, where relevant, a corporation . . . ."). Defendant's
argument is straightforward. Since defendant is a person,
19 A-3007-12T2
charged with . . . an indictable offense and lacking the present
financial ability to secure competent representation on appeal,
it is an indigent defendant for purposes of the PDA, and,
therefore, OPD shall provide for its representation on appeal.
The two statutory provisions cited by defendant that
ostensibly supply the definition of "person" omitted from the
PDA by the Legislature, however, are limited by their very
terms. The definitions contained in N.J.S.A. 2C:1-14 are
expressly limited to the Criminal Code. The meanings of
statutory terms supplied by N.J.S.A. 1:1-2 must be rejected if
"there is something in the subject or context [of a statute that
is] repugnant to such construction." Specifically construing a
statute's use of "person" interchangeably with "corporation[]"
should be rejected if the word "person" is "restricted by the
context to an individual as distinguished from a corporate
entity . . . ." Ibid.Decisions that have utilized the default meanings contained
in N.J.S.A. 1:1-2 as aids in interpreting specific statutory
language are too numerous to cite. See, e.g., Shelton v.
Restaurant.com, Inc., 214 N.J. 419, 430-31 (2013) (applying the
default meanings to terms left undefined by the Truth-in-
Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A.
20 A-3007-12T2
56:12-14 to -18). There are far fewer examples of decisions in
which the default meaning was explicitly rejected.
In In re Electrical Inspection Authorities, 127 N.J. Super.
295, 300 (App. Div. 1974), we considered, among other things,
whether N.J.S.A. 45:5A-17, which by its terms applied only to
municipalities, should be interpreted to also include counties.
We recognized that, pursuant to N.J.S.A. 1:1-2, the default
statutory meaning of "[m]unicipality" did not include counties.
Id. at 301. Nevertheless, we held:
The question is one of legislative intent.
In our view, the subject and context of the
quoted section indicates that . . . the
legislative intent was that the provisions
of N.J.S.A. 45:5A-17 should apply to all
governmental units, i.e., cities and
counties which, with statutory
authorization, provide for electrical
inspections . . . and that therefore the
word "municipality" should be construed to
include a county.
[Ibid. (emphasis added).]
In a different context, in Housing Authority of Atlantic
City v. Coppock, 136 N.J. Super. 432, 434 (App. Div. 1975), we
considered the default meaning of "month," as supplied by
N.J.S.A. 1:1-2 ("[t]he word 'month' means a calendar month").
We concluded in that case that the notice of termination served
upon the tenant thirty-one days prior to the filing of the
complaint complied with N.J.S.A. 2A:18-61.1(b) (requiring "one
21 A-3007-12T2
month's" prior notice). Ibid. We specifically rejected the
argument that the Anti-Eviction Act required "the termination be
directed to the end of the month."10 Ibid. We held that given
the express language of the lease that required thirty days'
notice, "the definition of 'month' in N.J.S.A. 1:1-2 as a
calendar month is inapplicable under these circumstances."
Ibid.Whether the default meanings supplied by N.J.S.A. 1:1-2
support or defeat a particular construction returns us to the
lodestar of statutory interpretation — the intent of the
Legislature. See Shelton, supra, 214 N.J. at 431-36 (examining
"the background of the TCCWNA" to determine whether its "scope"
or the "context in which the [undefined] term . . . [was] used
[in the statute was] repugnant" to adopting the default
meaning); see also In re Electrical Inspection, supra, 127 N.J.
Super. at 300 (rejecting the default meaning when contrary to
intent of the Legislature).
In Hardwicke v. American Boychoir School, 188 N.J. 69, 87
(2006), the Court had to consider "whether an institution . . .
c[ould] be a 'person' under the [Child Sexual Abuse Act (CSAA),
N.J.S.A. 2A:61B-1]." Finding the meaning of the term
10
Although not explained in the decision, we infer that the
notice terminated the tenancy prior to the end of a calendar
month.
22 A-3007-12T2
"ambiguous," the Court "look[ed] beyond the language of the
statute and consider[ed] extrinsic evidence [and] . . .
statutory context[,]" id. at 88, as well as N.J.S.A. 1:1-2's
definition of "person." Id. at 89. Ultimately, the Court
concluded,
[i]n light of the language of the statute as
supplemented by the definition of person in
Title I, the extrinsic evidence of
legislative intent, and the State's strong
policy to hold both active and passive child
abusers accountable, we find that the
[defendant] is a person under the passive
abuse provision of the CSAA.
[Id. at 91.]
In short, if the default meaning of "person" supplied by
N.J.S.A. 1:1-2 leads to a result contrary to the Legislature's
intent when it enacted the PDA, that meaning must be rejected.
We are required, therefore, to examine the legislative history
of the PDA.
B.
As already noted, New Jersey's history of providing counsel
to indigent criminal defendants predates passage of the PDA by
nearly two centuries. From 1948 to 1967, counsel were assigned
to indigent defendants under various Rules of Court. For
example, Rule 1:12-9(a) (repealed 1967) provided that "[w]here a
person charged with a crime appears in a trial court without
counsel, the court shall advise him of his right to counsel
23 A-3007-12T2
. . . and if indigent, assign counsel to represent him. . . ."
The application for the assignment of counsel (Form 5A), set
forth in the Appendix to the 1967 Court Rule, contained
questions specifically geared toward an individual, not a
corporation, including whether the defendant was married, had
11
children, earned a salary, or was employed.
"In Rush, supra, 46 N.J. at 412, the Court decided that the
time had come to relieve the New Jersey bar of the task of
defending without compensation indigents accused of indictable
crimes." In re Cannady, 126 N.J. 486, 489 (1991). The
immediate solution arrived at by the Rush Court was to impose
the costs of providing counsel upon the counties. Ibid. The
11
The Court recently noted that the current forms similarly
collect
general personal data, such as name,
address, social security number, date of
birth, and marital status . . . . background
information on the defendant's family,
military service, and education . . . [and]
potentially sensitive information about a
defendant's past and present physical
condition, mental health, and drug and
alcohol use and treatment.
[In re Custodian of Records, Criminal Div.
Manager, 214 N.J. 147, 159-160 (2013).]
We attach a sample of the current form as an appendix to this
opinion. As is apparent, the form implicitly seeks information
unique to a natural person.
24 A-3007-12T2
Court delayed the effective date of its decision, however, to
permit the Legislature to decide how best to provide for the
indigent representation of criminal defendants indicted for
crimes. Id. at 489-90. The Legislature responded by enacting
the PDA in 1967, L. 1967, c. 43, replacing the assigned counsel
system with a statewide program for the defense of indigents at
public expense.
To some degree, the PDA was intended to address the
expected increased costs to individual counties as a result of
the Rush decision. This is clear from sponsors' statements in
support of earlier versions of the bill, see e.g., Sponsor's
Statement to A. 752, at 2 (1967) (noting that increased costs to
counties would result in "an undue burden"), and the Governor's
Statement to S. 287, (1967) (noting that appropriations to fund
the public defender system were the "result of a determined
effort by the State government to . . . be of assistance to our
counties").
Foremost and primarily, however, the PDA was intended to
meet the state's obligation under the Sixth Amendment to provide
court-appointed counsel to indigent defendants, as was then very
recently applied to the states through the Fourteenth
Amendment's Due Process Clause in Gideon v. Wainwright, 372 U.S.
335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). See Public Hearings
25 A-3007-12T2
before Special (Senate) Committee to Determine the Advisability
of providing for the Establishment of a Public Defender System
in the Several Counties, at 2, 27, 31, 40, 59, 11A (Sept. 8,
1965) (noting that Gideon imposed a "tremendous responsibility"
on the State to insure an indigent defendant's right to
appointed counsel).
The PDA as enacted implemented recommendations contained in
the December 22, 1966 report of the "Commission on the Defense
of Indigent Persons Accused of Crime" ("Report").12 See Cannady,
supra, 126 N.J. at 490; Sponsor's Statement to S. 287, at 7
(1967); Governor's Statement to S. 287, supra. In considering
who was entitled to appointed counsel at public expense, the
Commission implicitly spoke in terms of natural persons:
Perhaps the most difficult problem is the
matter of defining who is "indigent."
Several decades ago the term meant an actual
pauper who was entirely without means.[13]
The term no longer has this narrow
significance. In general, it is now widely
understood as referring to a person who is
unable to afford the cost of engaging
counsel to represent him.
[Report, supra, at 5 (emphasis added).]
12
The Report can be found at 90 N.J.L.J. 17 (Jan. 12, 1967).
13
A "pauper" is defined as "[a] very poor person, esp[ecially]
one who receives aid from charity or public funds." Black's Law
Dictionary 1243 (9th ed. 2009).
26 A-3007-12T2
Similarly, earlier public hearings on the proposed PDA, where
pre-eminent lawyers of the day engaged in all aspects of the
legal profession testified, contain repeated references to the
need to provide publicly-financed counsel to "individuals,"
"paupers" and "poor men," without any reference to corporations.
Public Hearings, supra, at 2, 41, 60.
The Court has said that the Legislature created OPD to
"ensure that the State fulfilled its constitutional obligation
to provide legal services for indigent defendants." In re
Custodian of Records, supra, 214 N.J. at 158. The PDA expressly
provides, "It is hereby declared to be the policy of this State
to provide for the realization of the constitutional guarantees
of counsel in criminal cases for indigent defendants . . . ."
N.J.S.A. 2A:158A-1 (emphasis added). Tellingly, however, the
PDA does not track exactly the language of the Sixth Amendment
or the right to counsel provided by our Constitution, both of
which accord the right to "the accused" in criminal
prosecutions.
C.
As initially adopted, the PDA did not provide for the
representation of indigent defendants charged with non-
indictable offenses or juveniles. See In re State in Interest
of Antini, 53 N.J. 488, 492 (1969). With regard to non-
27 A-3007-12T2
indictable offenses, in 1974, in response to the Court's
decision in Rodriguez, supra, 58 N.J. at 281, the Legislature
amended the PDA, L. 1974, c. 33, to expand representation to
"include persons charged as juvenile delinquents or juveniles in
need of supervision, persons charged with parole violation, and
indigent disorderly persons." Sponsor's Statement to A. 1298 at
2 (1974). See In re Contempt of Spann, 183 N.J. Super. 62, 67
(App. Div. 1982). N.J.S.A. 2A:158-5.2 provides:
The Public Defender shall . . . provide for
the legal representation of any person
charged with a disorderly persons offense or
with the violation of any law, ordinance or
regulation of a penal nature where there is
a likelihood that the persons so charged, if
convicted, will be subject to imprisonment
or, in the opinion of the court, any other
consequence of magnitude.
[(emphasis added).]
The Legislature clearly intended to expand the universe of
offenses triggering the right to counsel at public expense for
indigent defendants. The amendment did not, however, expand the
definition of "indigent defendants" to include indigent
corporations.14
14
The amendment also did not define the term "consequence of
magnitude." The current guidelines include two criteria, a
sentence of imprisonment and suspension of a driver's license,
that can only apply to natural persons. Pressler & Verniero,
supra, Appendix to Part VII (2015). One criterion, "any
(continued)
28 A-3007-12T2
In any event, the Legislature failed to appropriate the
funds necessary to expand OPD to the municipal court level. As
a result, OPD was never required to assume its statutory
obligation under N.J.S.A. 2A:158-5.2. Madden v. Delran, 126
N.J. 591, 612 (1992); Spann, supra, 183 N.J. Super. at 67.15
As originally enacted, the PDA also did not provide for the
representation of indigent juveniles. However, just thirteen
days after the PDA was enacted, on May 15, 1967, the United
States Supreme Court held that an indigent juvenile had the
right to be furnished with counsel during "proceedings to
determine delinquency which may result in commitment to an
institution in which the juvenile's freedom is
curtailed. . . ." In re Gault, 387 U.S. 1, 41, 87 S. Ct. 1428,
1451, 18 L. Ed. 2d 527, 554 (1967).
As a result, our Supreme Court amended former Rule 6:3-4(c)
and (d) (1968 (now repealed)), to provide for the assignment of
(continued)
monetary sanction of $800 or greater in the aggregate," could
apply to natural persons and corporations.
15
In 1997, the Legislature enacted the Municipal Public Defender
Act, which created a separate system of municipal public
defenders, N.J.S.A. 2B:24-1 to -17. The legislation does not
shed light on the issue presented, since it similarly requires
representation of an "indigent person," N.J.S.A. 2B:24-2, who
likely, "if convicted, . . . will be subject to imprisonment or
other consequence of magnitude." N.J.S.A. 2B:24-7(a).
29 A-3007-12T2
counsel for indigent juveniles, albeit, not by the OPD, but
under the old alphabetical rotation system as set forth in Rule
1:12-9(c) (1968 (now repealed)). The Court in Antini, supra, 53
N.J. at 494-95, directed, as it had in Rush, supra, 46 N.J. at
415, that "lawyers who provided services since the decision in
Gault was handed down should be reimbursed for any out-of-pocket
expenditures, and the juvenile court judges are authorized to
enter orders, after appropriate application, directing payment
thereof by the particular county."
The Legislature's response was again swift. It amended the
PDA, L. 1968, c. 371, to provide for representation of juveniles
by the OPD:
[T]he Public Defender shall . . . provide
for the legal representation of any person
who is charged as a juvenile delinquent or
as a juvenile in need of supervision and
where in the opinion of the juvenile judge
the prosecution of the complaint may result
in the institutional commitment of such
person.
[N.J.S.A. 2A:158A-24.]
D.
These two examples demonstrate the Legislature's clear
ability to amend the PDA in order to address the rapidly
changing legal landscape whenever the rights of indigent
defendants are implicated. In both situations, the impetus
behind the amendments to the PDA were the vital personal liberty
30 A-3007-12T2
interests at stake. On other occasions, the Legislature has not
hesitated to enact legislation, separate from the PDA, to ensure
that the rights of indigent natural persons are protected by
representation through OPD.
For example, the Legislature enacted legislation that
requires the Office of Parental Representation in OPD to
represent parents and guardians charged in abuse and neglect
cases, or those facing the loss of parental rights, in accord
with their constitutional rights. See, e.g., B.R., supra, 192
N.J. at 306-07; N.J.S.A. 9:6-8.21; N.J.S.A. 9:6-8.30; N.J.S.A.
9:6-8.43(a); N.J.S.A. 30:4C-15.4(a).
Similarly, the Division of Mental Health Advocacy in OPD
provides representation at civil commitment hearings, as
constitutionally guaranteed, see S.L., supra, 94 N.J. at 142,
and statutorily required, not under the PDA, but pursuant to the
civil commitment statutes and court rules. See, e.g., N.J.S.A.
30:4-27.11(c); N.J.S.A. 30:4-27-12(d); R. 4:74-7(c)(2); R. 4:86-
10. OPD counsel is also provided by statute when an indigent
defendant faces commitment under the Sexually Violent Predator
Act, N.J.S.A. 30:4-27.24 to -27.38, as constitutionally
guaranteed, In re Commitment of D.L., 351 N.J. Super. 77, 89
(App. Div. 2002), certif. denied, 179 N.J. 373 (2004), and as
31 A-3007-12T2
statutorily required by Title 30. N.J.S.A. 30:4-27.29(c);
N.J.S.A. 30:4-27.31.
E.
We distill from this discussion the following. The PDA was
born from a legislative desire to practically and publicly fund
the criminal defense of indigents, as required by evolving
federal constitutional doctrine and the long history of New
Jersey's constitutional and statutory right to counsel. The
legislative history of the PDA demonstrates that, at its
inception, the focus of the proposed legislation was on the
protection of the rights of "indigent people" who were natural
persons, not corporations or other business entities. Although
the Legislature could have specifically included corporations or
other business entities within the PDA's definition of "indigent
defendants," it declined to do so. See, e.g., Zabilowicz v.
Kelsey, 200 N.J. 507, 517 (2009) ("The Legislature knows how to
draft a statute to achieve that result when it wishes to do
so."). Yet, whenever necessary, the Legislature has either
amended the PDA or enacted other laws to specifically provide
for the representation by OPD of natural persons whose personal
liberty rights may be adversely affected, or who face other
consequences of magnitude.
32 A-3007-12T2
We conclude, therefore, that it "is repugnant" "to the
subject [and] context" of the PDA, N.J.S.A. 1:1-2, to construe
the word "person" as used in the PDA to include a corporation.
Such a construction is contrary to the Legislature's intent when
it first enacted the PDA, an intention since restated by various
amendments to the PDA and other legislation.
F.
Our conclusion is supported by an examination of federal
decisions that have interpreted language in the CJA and the
Dictionary Act, 1 U.S.C.A. § 1 to § 8, that is similar to that
of the PDA.
The court in Unimex, supra, 991 F.2d at 549-50, explained
that the CJA
provides for appointment of counsel for an
indigent "person," but does not say whether
a corporation is a "person" for purposes of
appointment of counsel. 18 U.S.C. §
3006A(a). The word "person" in a federal
statute includes corporations "unless the
context indicates otherwise." 1 U.S.C. § 1.
In the statute providing for appointment of
counsel, the context does indeed "indicate
otherwise." . . . . The statutory context
includes a list of classes of persons
eligible, with catch-all clauses for a
financially eligible person who "is entitled
to appointment of counsel under the sixth
amendment to the constitution" or "faces
loss of liberty." 18 U.S.C. §
3006A(a)(1)(H),(I). If the purpose of the
statute is to assure that criminal
defendants' constitutional right to
appointed counsel is protected, then no
33 A-3007-12T2
appointments are needed for corporations
. . . . Although authority is scarce, we
conclude from context that the CJA does not
so provide either.
As a result, the federal courts have uniformly denied indigent
corporations representation under the CJA. In re Grand Jury
Proceedings, 469 F.3d 24, 26 (1st Cir. 2006); Hartsell, supra,127 F.3d at 350; Rivera, supra, 912 F. Supp. at 638; United
States v. Hoskins, 639 F. Supp. 512, 514 (W.D.N.Y. 1986), aff'd
o.b. 875 F.2d 308 (2d Cir. 1989).
IV.
We note that the legislatures of a number of our sister
states have implicitly limited the right to appointed counsel at
public expense to indigent criminal defendants who are natural
persons. Some have done so by conditioning the appointment to
situations where imprisonment is probable or possible. See
e.g., Ark. Code Ann. § 16-87-213(a)(1)(A), 213(a)(2)(A) (2014)
(setting forth procedure for "any person charged with an offense
punishable by imprisonment" to obtain public defender services);
Conn. Gen. Stat. § 51-289, 51-296 (2014) (appointing the public
defender unless the court states on the record that the sentence
will not involve incarceration); Ga. Code. Ann. § 17-12-23(a)(1)
(2014) (providing for representation in actions where "there is
a possibility that a sentence of imprisonment or probation or a
suspended sentence of imprisonment may be adjudged"); Ind. Code
34 A-3007-12T2
Ann. § 33-40-1-2 (a)(1) (2014) (defining person entitled to
representation by the public defender as one "confined in a
penal facility in Indiana or committed to the department of
correction due to a criminal conviction"); La. Rev. Stat. Ann. §
15:142(A) (2014) (citing the Louisiana constitution, which
requires indigence and charges for an offense punishable by
imprisonment); Mich. Comp. Laws Serv. § 780.983(d) (2014)
(requiring that a defendant both indigent and "prosecuted or
sentenced for a crime for which an individual may be imprisoned
upon conviction"); N.H. Rev. Stat. Ann. § 604-A:1 (making
representation at public expense a "precondition of
imprisonment"); N.Y. County Law § 722-a (2014) (public defenders
are appointed when "a term of imprisonment is authorized upon
conviction thereof"); Ohio Rev. Code Ann. §120.06(A)(1) (2014)
(limiting representation to those "who are charged with the
commission of an offense or act for which the penalty or any
possible adjudication includes the potential loss of liberty");
Utah Code Ann. § 77-32-302(1) (2014) (providing for defense "if
the indigent is under arrest for or charged with a crime in
which there is a substantial probability that the penalty to be
imposed is confinement in either jail or prison"); Va. Code Ann.
§ 19.2-159(A) (2014) (public defender available if defendant is
indigent and "the charge against him . . . may be punishable by
35 A-3007-12T2
death or confinement in the state correctional facility or
jail"); W. Va. Code Ann. § 29-21-2(2) (defining an "eligible
proceeding" for public defender services as one where "criminal
charges [] may result in incarceration") (2014); Wis. Stat. §
977.08(2) (2014) (authorizing the State Public Defender to
assign attorneys to represent indigents in "crime[s] against
life," other felonies, and misdemeanors that are "punishable by
imprisonment").
Other states have defined the class of indigent defendants
eligible for appointed counsel at public expense such that only
natural persons could qualify. See e.g., Alaska Stat. §
18.85.170(4) (2014) (defining indigent person as one who "does
not have sufficient assets, credit, or other means to provide
for payment of an attorney and all of the necessary expense of
representation without depriving the party or the party's
dependents of food, clothing, or shelter"); Or. Rev. Stat. §
135.050(1)(d) (2014) (eligible if "financially unable to retain
adequate representation without substantial hardship in
providing basic economic necessities to the defendant or the
defendant's dependent family"); R.I. Gen. Laws. § 12-15-8
(defining indigent defendants eligible for the public defender
as those who "after payment of necessary expenses for food,
36 A-3007-12T2
shelter and medical care, do[] not have sufficient income or
assets to enable him or her to retain counsel").
In Illinois, "[t]he constitutional right to appointed
counsel is limited to criminal proceedings which result in
actual imprisonment, and the statutory right to counsel is
similarly limited." Chicago v. Pudlo, 462 N.E.2d 494, 498 (Ill.
App. Ct. 1983), cert. denied, 471 U.S. 1066, 105 S. Ct. 2140, 85
L. Ed. 2d 497 (1985). Notably, however, Illinois law also
specifically provides that "[i]f the accused is a dissolved
corporation and is not represented by counsel, the court may, in
the interest of justice, appoint as counsel a licensed attorney
of th[e s]tate." 725 Ill. Comp. Stat. 5/113-3(a) (2014).
V.
We conclude the Legislature never intended that an indigent
corporation be provided with counsel at public expense pursuant
to the PDA. We therefore relieve OPD of any further
representation of defendant in the prosecution of this appeal.
We also reaffirm, however, that because corporations are
entitled to the assistance of counsel under both the United
States Constitution and New Jersey Constitution, because New
Jersey precedent requires the appointment of counsel whenever a
defendant is charged with a crime or likely faces a consequence
of magnitude, and because our Rules of Court specifically
37 A-3007-12T2
provide for the appointment of counsel in such circumstances on
appeal, the Clerk's Office shall work with the vicinage Criminal
Division Manager to designate counsel to represent defendant
hereafter.16
An appropriate order has been entered.
16
We reach this conclusion independently of our court rules
which, absent certain limited exceptions, do not permit
corporations to appear as self-represented litigants. R. 1:21-
1(c).
38 A-3007-12T2
39 A-3007-12T2
40 A-3007-12T2
41 A-3007-12T2
42 A-3007-12T2