IN THE MATTER OF KEVIN NEWSOM, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3273-19
IN THE MATTER OF
KEVIN NEWSOM, NEW
JERSEY STATE PRISON.
______________________
Argued December 14, 2021 – Decided January 7, 2022
Before Judges Vernoia and Firko.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2015-2238.
Donald C. Barbati argued the cause for appellant Kevin
Newsom (Crivelli & Barbati, LLC, attorneys; Donald
C. Barbati, on the briefs).
Jana R. DiCosmo, Deputy Attorney General, argued the
cause for respondent New Jersey Department of
Corrections (Andrew J. Bruck, Acting Attorney
General, attorney; Sookie Bae-Park, Assistant Attorney
General, of counsel; Paul D. Nieves, Deputy Attorney
General, on the brief).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Steven M. Gleeson, Deputy Attorney General, on the
statement in lieu of the brief).
PER CURIAM
Kevin Newsom appeals from a March 16, 2020 Civil Service Commission
final agency decision and order adopting an administrative law judge's (ALJ)
decision denying his order to show cause seeking the reopening of a disciplinary
proceeding that ended with a 2016 Commission decision upholding New Jersey
State Prison's (NJSP) removal of him from his position as a corrections sergeant,
and denying his motion for summary disposition on the disciplinary charges.
We affirm the Commission's order denying Newsom's motion for summary
disposition and vacate the Commission's denial of the order to show cause
seeking to reopen the disciplinary proceeding based on newly discovered
evidence. We remand for the Commission to consider Newsom's request to
reopen the disciplinary proceeding under the correct legal standard.
I.
There have been three separate proceedings before the Commission
related to Newsom's challenge to NJSP's December 30, 2014 removal of him
from his position as a corrections sergeant. We briefly describe the disciplinary
charges that resulted in the proceedings, and the proceedings themselves, to
provide context for our discussion of the issues presented.
On December 30, 2014, NJSP issued a final notice of disciplinary action
removing Newsom from his position as a corrections sergeant for conduct
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unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and other sufficient
cause, N.J.A.C. 4A:2-2.3(a)(11). The notice alleged that on October 29, 2010,
Newsom caused serious bodily injury to NJSP inmate Bradley Peterson by
striking him "in the head several times with a metal baton while Peterson was
handcuffed, shackled[,] and offering no resistance."
The Disciplinary Proceeding
The first proceeding before the Commission began when Newsom
appealed from his removal. The Commission referred the matter to the Office
of Administrative Law as a contested case, and an ALJ conducted an eight-day
hearing on the disciplinary charges against Newsom. The ALJ subsequently
issued a detailed February 24, 2016 written decision finding Newsom struck
Peterson with an extended baton and upholding Newsom's removal. The
disciplinary proceeding ended on April 25, 2016, when the Commission adopted
the ALJ's decision.1 Newsom did not appeal from the Commission's decision.
Newsom's Request to Reopen the Disciplinary Proceeding
The second proceeding before the Commission commenced almost two
years later, on January 9, 2018, when Newsom filed an order to show cause
1
The ALJ's February 24, 2016 decision was deemed adopted by the
Commission on April 25, 2016, pursuant to N.J.S.A. 40A:14-204.
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seeking: vacatur of the Commission's April 25, 2016 decision; the reopening of
the disciplinary proceeding; and summary disposition reversing the
Commission's decision and dismissing the disciplinary charges. In support of
his order to show cause, Newsom relied on what he claimed was newly
discovered evidence he obtained in a federal lawsuit brought by Peterson against
Newsom and other NJSP corrections officers. In the lawsuit, Peterson claimed
Newsom and the other officers violated his civil rights during the October 29,
2010 incident that resulted in the disciplinary charges against Newsom.
More particularly, Newsom relied on a video recording of a statement
Peterson gave to the Mercer County Prosecutor's Office following the October
29, 2010 incident. Newsom claimed the recording was first provided to him
during discovery in Peterson's federal civil rights case.2 He argued the recording
constituted newly discovered evidence that exonerated him on the disciplinary
charges because he is African American and, during the statement, Peterson said
the person who struck him with the baton was a "tall, bald, white guy." Newsom
argued the newly discovered statement warranted vacatur of the Commission's
2
Newsom asserted that only a portion of the recording was made available to
him during the disciplinary proceeding before the ALJ and the Commission. The
portion of the recording provided at that time did not include the statement from
Peterson that Newsom claimed supported the relief sought in his order to show
cause.
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April 25, 2016 final decision and either a reversal of the Commission's decision
or a reopening of the disciplinary proceeding.
The Commission interpreted Newsom's order to show cause as a motion
for reconsideration of its April 25, 2016 decision. The Commission determined
Newsom's request was untimely under N.J.A.C. 4A:2-1.6(a) because it was not
filed within forty-five days of the April 25, 2016 decision. 3 The Commission
denied the order to show cause on that basis, and Newsom appealed.
In our decision on Newsom's appeal, we found the forty-five-day time
limit for filing a motion for reconsideration from a Commission decision was
inapplicable because Newsom did not seek "reconsideration of the
[Commission's] prior decision." In re Kevin Newsom, New Jersey State Prison,
No. A-3194-17 (App. Div. July 30, 2019) (slip op. at 4). We determined
Newsom's order to show cause actually "sought to reopen the hearing to allow
consideration of evidence he contends was previously unavailable." Id. at 4.
We therefore reversed the Commission's decision denying the order to show
cause on timeliness grounds and "remand[ed] . . . for the Commission to
consider [Newsom's] application to reopen the hearing" in the disciplinary
3
Under N.J.A.C. 4A:2-1.6(a), a party may petition the Commission for
reconsideration "[w]ithin [forty-five] days of receipt of a [Commission]
decision."
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proceeding that ended with the Commission's April 25, 2016 decision. As noted,
the decision adopted the ALJ's determination NJSP properly removed Newsom
because he struck a handcuffed and shackled inmate, Peterson, with an extended
baton. Id. at 7.
The Remand Proceeding
The third proceeding arising from Newsom's challenge to NJSP's removal
decision followed our remand. The Commission referred the case to the same
ALJ that conducted the original proceeding on the disciplinary charges and who
rendered the February 24, 2016 decision the Commission adopted on April 25,
2016.
Prior to the ALJ's disposition of the issue we remanded—consideration of
Newsom's request to vacate the Commission's April 25, 2016 decision and
reopen the disciplinary proceeding—Newsom filed a motion for summary
disposition seeking reversal of the Commission's April 25, 2016 decision and
dismissal of the disciplinary charges. In support of the motion, Newsom claimed
a no-cause jury verdict in his favor in Peterson's federal civil rights required
reversal of the Commission's April 25, 2016 decision and dismissal of the
disciplinary charges based on res judicata and collateral estoppel grounds.
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The ALJ subsequently rendered a written decision on Newsom's pending
applications. The ALJ found our remand "decision [did] not require a hearing,"
and explained that "in an attempt to promptly address [the] matter, [he] did not
reschedule a hearing, but reviewed the federal-court trial testimony of
[Peterson], reviewed the videotape of [Peterson's] interview, and closed the
matter."
The ALJ expressly recognized our remand required consideration of
Newsom's "application to reopen the hearing," and the ALJ explained the issues
presented included whether Peterson's video recorded statement "warranted the
reopening of the hearing." However, although our decision made clear
Newsom's order to show cause was not a motion for reconsideration, the ALJ
incongruously stated that an issue presented on remand was whether Peterson's
recorded statement warranted "reconsideration of" the Commission's April 25,
2016 decision.
In his legal analysis of the issues, the ALJ did not directly address the
precise and limited issue we required be considered on remand. That is, the ALJ
did not consider or decide whether Newsom's order to show cause supported
vacatur of the Commission's April 25, 2016 decision and a reopening of the
disciplinary proceeding. Instead, the ALJ cited, explained, and applied only the
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standard for "reconsideration" of an order under Rule 4:49-2. For example, the
ALJ relied on D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990),
where it was explained that a motion for reconsideration "[s]hould be utilized
only for those cases where (1) the court has expressed its decision based upon a
palpably incorrect or irrational basis, or (2) it is obvious that the court either did
not consider, or failed to appreciate the significance of probative, competent
evidence." Thus, the ALJ analyzed only whether the Commission's April 25,
2016 decision should be vacated under the standard for reconsideration. 4
The ALJ then considered the putative newly discovered evidence —
Peterson's video recorded statement describing the officer who struck him —
and the evidence and testimony Peterson presented during the federal civil rights
trial. In his opinion, the ALJ noted that in Peterson's submissions to the federal
court, he asserted Newsom was the individual who struck him with the baton.
The ALJ further noted that at the federal trial, Peterson represented he did not
4
If Newsom's order to show cause actually constitutes a motion for
reconsideration, the ALJ should have dismissed it as untimely under N.J.A.C.
4A:2-1.6(a). Our prior decision, however, explained the order to show cause is
not a motion for reconsideration that is time-barred under N.J.A.C. 4A:2-1.6(a),
and is instead a motion to reopen the prior disciplinary hearing. In re Kevin
Newsom, slip op. at 4. Indeed, that is the precise reason we reversed the
Commission's dismissal of the order to show cause and remanded for the
Commission's consideration of Newsom's request to reopen the disciplinary
proceeding. Id. at 4, 7.
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know who hit him with the baton and he had vision issues prior to the October
29, 2010 incident.
The ALJ also explained Peterson did not testify in the original disciplinary
proceeding, and the determination Newsom struck Peterson was based on the
testimony and statements of other corrections officers who were present when
the incident occurred and who the ALJ deemed credible. The ALJ concluded
Peterson's various statements "are all in conflict with each other and provide [a]
sufficient basis to question the credibility of the videotaped statement" upon
which Newsom relied in support of his order to show cause to reopen.
Based on those findings, the ALJ reasoned that although the newly
discovered video recording contradicted evidence upon which the February 24,
2016 decision was based, Peterson's statement in the recording was not
sufficiently credible to undermine the decision and determination Newsom
struck Peterson with the baton. The ALJ then denied Newsom's "motion for
reconsideration" because Newsom did not demonstrate the ALJ acted
"arbitrarily, capriciously, or unreasonably," and the credible evidence supported
the initial determination he made in the February 24, 2016 decision that Newsom
committed the charged disciplinary offenses.
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The ALJ determined Newsom was not entitled to reconsideration of the
Commission's April 25, 2016 decision, but the ALJ nonetheless addressed
Newsom's motion for summary disposition. The ALJ concluded the no-cause
verdict in the federal civil rights case did not warrant reversal of the
Commission's April 25, 2016 decision or dismissal of the disciplinary charges
on res judicata and collateral estoppel grounds. This appeal followed.
II.
"Our review of administrative agency action is limited." Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). A reviewing "court
ordinarily should not disturb an administrative agency's determinations or
findings unless there is a clear showing that (1) the agency did not follow the
law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the
decision was not supported by substantial evidence." In re Virtua-West Jersey
Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). "The
burden of demonstrating that the agency's action was arbitrary, capricious or
unreasonable rests upon the [party] challenging the administrative action." In
re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006).
Newsom argues the Commission erred by dismissing the matter following
our remand without holding a hearing. He contends that following the remand,
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his motion for summary disposition was the only application pending before the
Commission, and the Commission could not properly decide his motion without
a hearing.
Newsom's arguments put the proverbial cart before the horse. He fails to
recognize that before he could properly file a motion for summary disposition
dismissing the disciplinary charges, he had to first reopen the disciplinary
proceeding which ended with the Commission's April 25, 2016 adoption of the
ALJ's February 24, 2016 decision upholding NJSP's removal of him from his
corrections sergeant position. Newsom also ignores that, as we explained in our
initial decision, his order to show cause constituted a motion to reopen the prior
disciplinary proceeding, and we remanded to the Commission for it to consider
and decide that application. We directed that the Commission consider
Newsom's application to reopen the disciplinary hearing based on his claim he
was entitled to such relief based on newly discovered evidence. See Flanigan v.
McFeely, 20 N.J. 414, 420 (1956) ("[T]he trial court is under a peremptory duty
to obey in the particular case the mandate of the appellate court precisely as it
is written.").
Thus, contrary to Newsom's claim that the only application pending before
the Commission on remand was his motion for summary disposition, our remand
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order required the Commission to decide Newsom's application to reopen the
disciplinary proceeding that the Commission had erroneously denied as time-
barred. Although framed as a motion to reopen the disciplinary hearing,
Newsom's order to show cause is more accurately characterized as a motion to
vacate the Commission's April 25, 2016 final decision and order. That is
because the disciplinary proceeding could be reopened only if Newsom obtained
relief from what was otherwise the Commission's final decision upholding his
removal.
The ALJ and the Commission misinterpreted our remand order. In our
decision, we made clear Newsom's order to show cause was not a request for
reconsideration of the Commission's April 25, 2016 adoption of the ALJ's
February 24, 2016 decision, and we remanded for the Commission to consider
Newsom's motion to reopen based on newly discovered evidence. In re Kevin
Newsom, slip op. at 4. Nonetheless, on remand the ALJ never directly addressed
Newsom's motion to reopen and instead the ALJ applied the standard for
reconsideration motions, deciding Peterson's newly discovered statement did not
warrant reconsideration of the ALJ's February 24, 2016 decision upholding
Newsom's removal. The Commission similarly ignored the requirements of our
remand and adopted the ALJ's determination under the reconsideration standard.
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"It is settled that an administrative body has the inherent power, in the
absence of legislative restriction, to reopen or modify orders previously
entered." In re Adamar of N.J., Inc., 222 N.J. Super. 464, 474 (App. Div. 1988).
That power "may be invoked by administrative agencies to serve the ends of
essential justice and the policy of the law," Minsavage for Minsavage v. Bd. of
Trs., Teachers' Pension and Annuity Fund, 240 N.J. 103, 107-08 (2019) (quoting
In re Van Orden, 383 N.J. Super. 410, 421 (App. Div. 2006)), but it "must be
exercised reasonably and invoked only for good cause shown, and only where
the applicant acted with reasonable diligence," In re Adamar, 222 N.J. Super. at
474.
The New Jersey Administrative Code includes a regulation prescribing the
procedure and standard for a motion for reconsideration of a Commission's final
decision and order. See N.J.A.C. 4A:2-1.6. The Administrative Code does not
include a comparable provision setting the procedure or standard for a motion
to reopen a final Commission decision based on newly discovered evidence.
The New Jersey Uniform Administrative Procedure Rules, N.J.A.C. 1:1-
1.2 to -21.6, in part fills the gap created by the absence of a specific rule for
vacatur of a Commission final decision and reopening of a proceeding based on
newly discovered evidence. N.J.A.C. 1:1-1.3(a) provides that "[i]n the absence
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of a rule, a judge [in an administrative proceeding] may proceed in accordance
with the New Jersey Court Rules, provided the rules are compatible with " the
purposes of "achiev[ing] just results, simplicity in procedure, fairness in
administration and the elimination of unjustifiable expense and delay."
Our Court Rules make express provision for motions to set aside a final
judgment and reopen a matter based on newly discovered evidence. In a manner
consistent and compatible with the purposes of the New Jersey Uniform
Administrative Procedure Rules, Rule 4:50-1(b) provides that a party may be
relieved from "a final judgment or order" based on "newly discovered evidence
which would probably alter the judgment or order and which by due diligence
could not have been discovered in time to move for a new trial." A "party
seeking relief" under Rule 4:50-1(b) "must demonstrate 'that the evidence would
probably have changed the result, that it was unobtainable by the exercise of due
diligence for use at the trial, and that the evidence was not merely cumulative.'"
DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009) (quoting Quick Chek
Food Stores v. Twp. of Springfield, 83 N.J. 438, 445 (1980)). All three of these
requirements must be met to justify relief from a final order. Ibid.Here, the ALJ's and the Commission's erroneous application of the
reconsideration standard on remand resulted in their failure to decide the issue
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we directed must be considered on remand: whether Newsom is entitled to
vacatur of the Commission's April 25, 2016 decision, and thereby reopen the
disciplinary proceeding, based on newly discovered evidence. See Flanigan, 20
N.J. at 420. We are therefore constrained to vacate the Commission's March 16,
2020 order denying Newsom's order to show cause, and we again remand for the
Commission to consider, decide, and make findings on that issue in accordance
with the applicable legal standard.5
Newsom also argues the Commission erred by denying his motion for
summary disposition reversing NJSP's December 30, 2014 final notice of
disciplinary action removing him from his position. However, Newsom's
motion, should not have been filed or considered unless and until he obtained
5
We note that even if we were inclined to do so, the record on appeal does not
permit us to decide the merits of the order to show cause. Newsom does not
include the complete record concerning the motion in the appendix on appeal.
For example, the order to show cause was supported by the certification of
Newsom's counsel, but the certification is not included in the appellate record.
See R. 2:6-1(a)(1)(I) (requiring the appendix on appeal include "such . . . parts
of the record . . . as are essential to the proper consideration of the issues"). We
are not "obliged to attempt review of an issue when the relevant portions of the
record are not included." Cmty. Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz
Donnelly Fried & Forte, P.C., 381 N.J. Super. 119, 127 (App. Div. 2005); see
also Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78
(App. Div. 2002) (finding that, because of an appellant's failure to adhere to the
requirements of Rule 2:6-1(a)(1)(I) "rendered review on the merits impossible,
we ha[d] no alternative but to affirm").
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vacatur of the Commission's April 25, 2016 final decision and a reopening of
the disciplinary proceeding. Most simply stated, Newsom could not properly
seek summary disposition of the disciplinary charges in his favor because the
charges were no longer pending following entry of the Commission's April 25,
2016 final decision.
For that reason, we affirm the Commission's denial of the motion for
summary disposition, but we do so on procedural grounds and without prejudice
to Newsom's right to renew the motion if, on remand, the Commission grants
the order to show cause to vacate the April 25, 2016 final decision and reopen
the disciplinary proceeding. See Hayes v. Delamotte, 231 N.J. 373, 387 (2018)
("[I]t is well-settled that appeals are taken from orders and judgments and not
from opinions, oral decisions, informal written decisions, or reasons given for
the ultimate conclusion." (quoting Do-Wop Corp. v. City of Rahway, 168 N.J.
191, 199 (2001))). We have not considered the merits of either Newsom's res
judicata and collateral estoppel claims or the Commission's March 16, 2020
decision affirming the ALJ's denial of summary disposition motion, and we
express no opinion on them.6
6
We note we would otherwise be unable to address the merits of Newsom's
premature motion for summary disposition because he fails to include the
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Affirmed in part, vacated in part, and remanded for further proceedings in
accordance with this opinion. We do not retain jurisdiction.
complete motion record presented to the ALJ and Commission in the appendix
on appeal. See R. 2:6-1(a)(1)(I). For example, Newsom's motion was supported
by a certification of his counsel that is not included in the appendix. In addition,
the ALJ's February 14, 2020 decision following the remand refers to numerous
exhibits and transcripts of testimony that were submitted by the parties in
support of, and in opposition to, Newsom's motion for summary disposition, but
not all of those those exhibits and transcripts are included in the record on
appeal. See Cmty. Hosp. Grp., Inc., 381 N.J. Super. at 127; Soc'y Hill Condo.
Ass'n, 347 N.J. Super. 163, 177-78.
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