L.C. VS. MIDDLESEX COUNTY PROSECUTOR'S OFFICE (L-1292-17, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3654-18
L.C.1,
Plaintiff-Appellant,
v.
MIDDLESEX COUNTY
PROSECUTOR'S OFFICE,
COUNTY OF MIDDLESEX,
NEW JERSEY, BOROUGH OF
SAYREVILLE, NEW JERSEY,
ANDREW CAREY, Prosecutor,
Middlesex County Prosecutor's
Office, CHRISTOPHER KUBERIET,
1st Asst. Prosecutor, Middlesex
County Prosecutor's Office,
DETECTIVE DAVID ABROMAITIS,
Investigator/Detective, Middlesex
County Prosecutor's Office,
SAYREVILLE BOARD OF
EDUCATION (BOE), DR. RICHARD
LABBE, Superintendent, Sayreville
Schools (BOE), MICHAEL
MACAGNONE, President, Sayreville
Board of Education (BOE), THE
1
Pursuant to R.1:38-3(d)(5) initials are continued for plaintiff to maintain
confidentiality.
BUSCH LAW GROUP, JONATHAN
BUSCH, attorney for the Sayreville
Board of Education (BOE), ARI
SCHNEIDER, attorney for the
Sayreville Board of Education (BOE),
TERESA RAFFERTY, Piscataway
Superintendent of Schools,
Defendants-Respondents.
_______________________________
Argued March 16, 2021 – Decided April 9, 2021
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-1292-17.
Kevin T. Flood argued the cause for appellant (Kevin
T. Flood and Paul DePetris, on the briefs).
Elisa M. Pagano argued the cause for respondents
Andrew Carey, Christopher Kuberiet, and Detective
David Abromaitis (Chiesa Shahinian & Giantomasi,
PC, attorneys; Matthew E. Beck, Elisa M. Pagano, and
Chelsea P. Jasnoff, on the brief).
Keith J. Murphy argued the cause for respondents Dr.
Richard Labbe and Michael Macagnone (Gordon Rees
Scully Mansukhani, LLP, attorneys; Keith J. Murphy,
of counsel and on the brief).
Meredith Kaplan Stoma argued the cause for
respondents The Busch Law Group, LLC, Jonathan
Busch, and Ari Schneider (Lewis Brisbois Bisgaard &
Smith, LLP, attorneys; Meredith Kaplan Stoma and
Jeffrey S. Leonard, on the brief).
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Michael A. Pattanite, Jr., argued the cause for
respondent Teresa Rafferty (Lenox Law Firm,
attorneys; Michael A. Pattanite, Jr., on the brief).
PER CURIAM
Plaintiff L.C. appeals from October 5, 2017, July 23, 2018, and March 15,
2019 orders dismissing his complaint for failure to state a claim and a February
23, 2018 order denying reconsideration of the October 5, 2017 order. He also
challenges a March 28, 2017 order transferring venue and an April 28, 2017
order denying reconsideration of the venue transfer.
This matter arises from numerous incidents which occurred in the
Sayreville War Memorial High School (SHS) locker room in September 2014,
involving plaintiff and several other juvenile members of the SHS football team
regarding the alleged sexual assault of another juvenile. The Middlesex County
Prosecutor's Office (MCPO) investigated the incident and charged plaintiff, then
a juvenile, with offenses, which if committed by an adult, would constitute
conspiracy to commit aggravated criminal sexual contact, aggravated assault,
hazing, riot, and criminal restraint. Several other juveniles on the SHS football
team were also charged. MCPO Detective David Abromaitis signed the
complaint.
A-3654-18
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Following the filing of the juvenile complaint and based on the allegations
contained in the arrest warrant, SHS suspended plaintiff for violating the
Sayreville Board of Education's (SBOE) code of conduct. The day after
plaintiff's suspension, his parents received notice of a disciplinary hearing
regarding his suspension from the SBOE pursuant to N.J.A.C. 6A:16-7.3. On
October 21, 2014, plaintiff's counsel informed SBOE plaintiff waived the time
requirement set forth in N.J.A.C. 6A:16-7.3(a)(10)(iii), which requires the
SBOE to hold a hearing no later than thirty days following the suspension. As
a result, the SBOE adjourned the disciplinary hearing until after the final
disposition of the juvenile delinquency matter.
In October 2014, Abromaitis and First Assistant Prosecutor Christopher
Kuberiet disclosed the records of the charged juveniles, including plaintiff, to
SBOE's attorneys, Jonathan Busch and the Busch Law Group (collectively, the
Busch defendants). The Busch defendants thereafter disclosed the records to
Dr. Richard Labbe, superintendent of Sayreville schools, and Michael
Macagnone, president of the SBOE (collectively, the SBOE defendants).
In April 2015, the MCPO filed a second complaint charging plaintiff with
four additional acts of delinquency relating to the original incident. Abromaitis
signed the complaint.
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On July 1, 2015, plaintiff was adjudicated of offenses, which if committed
by an adult, would constitute criminal restraint, simple assault, and disorderly
conduct, and acquitted of the remaining offenses. Following a motion for
reconsideration, the Family Part judge acquitted plaintiff of criminal restraint
on August 7, 2015. In August 2016, the court dismissed the adjudications for
simple assault and disorderly conduct.
In the interim, on July 13, 2015, plaintiff, his parents, and his counsel met
with Labbe, Busch, and Schneider regarding his return to SHS following his
suspension. According to plaintiff's complaint, Labbe, Busch, and Schneider
stated they would do everything in their power to prevent his return, and Busch
suggested plaintiff transfer out of SHS, advising him that several of the other
juveniles charged already accepted offers of transfer. Plaintiff's parents
demanded a hearing and the meeting ended.
SBOE notified plaintiff his disciplinary hearing had been rescheduled for
August 31, 2015. Prior to the hearing, SBOE filed an emergent application
requesting permission to use the audio recordings from plaintiff's juvenile
delinquency proceeding at the disciplinary hearing, which the Family Part judge
denied.
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On August 31, 2015, the MCPO issued a "News Release" relating to the
four incidents of misconduct at SHS, between September 9 and September 30,
2014. The release read as follows:
[News Release,] Sayreville football sex abuse
investigation drawing to a close [(Aug. 31, 2015)]
Middlesex County Prosecutor Andrew C. Carey
announced today that six of seven teenagers charged
with sexually assaulting and/or abusing four other
teammates at [SHS] have been placed on probationary
terms and ordered to each serve [fifty] hours of
community service, but will avoid being labeled as
Megan's Law sex offenders.
The sentences were imposed in New Brunswick
by a Family Court judge after four of the six football
players pleaded guilty in Family Court to charges of
committing a disorderly persons offense of hazing, and
third degree endangering the welfare of their younger
fellow teammates. Each of those four defendants was
placed on probation for two years.
The two others were placed on one-year
probationary terms after they were adjudicated
delinquent following a trial in Family Court. A seventh
juvenile defendant is awaiting a trial in Family Court.
No trial date has been set.
Prosecutor Carey said that while these juveniles
were charged with serious sexual offenses, the cases
were resolved in accordance with juvenile laws and in
the best interests of the juvenile defendants, the victims
and their families. As part of the plea agreements, the
[MCPO] did not pursue the imposition of mandatory
sex offender registration required under Megan's Law.
A-3654-18
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"As was previously disclosed, the [MCPO]
determined that the defendants would not be tried as
adults and that the Middlesex County Family Court
remains the proper venue for these cases," Prosecutor
Carey said. "While the Code of Juvenile Justice
provides confidentiality for the protection of juveniles,
that confidentiality, unfortunately, allows for certain
individuals to unscrupulously mislead the public as to
what occurred at the school and during juvenile
proceedings."
....
"The facts that were alleged by the [MCPO] at
the beginning of this case have clearly been proven in
a court of law. The community of Sayreville needs to
know that these serious crimes occurred, and now must
work together to heal. I thank those who went to
extraordinary lengths throughout the proceedings to
protect the rights of the victims, the juvenile
delinquents, and the families of those involved,"
Prosecutor Carey said.
The four juvenile defendants who have pleaded
guilty have been ordered to provide truthful testimony
against their co-defendants, and were ordered to have
no contact with the victims.
In addition, one of them was placed on curfew
while serving his two year probationary term.
As part of the plea agreements, the [MCPO] did
not insist on having these juvenile defendants
registered as Megan's Law offenders. The decision was
reached after the [MCPO] obtained input from the
victims and their families.
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The two other juvenile defendants who were
adjudicated delinquent on July 1, 2015, stood trial in a
closed Family Court trial. Both of them were placed on
probation for one year and were ordered to serve [fifty]
hours of community service.
During the trial, the high school principal
testified as a character witness for both of the juvenile
defendants, despite having no personal knowledge of
the assaults and abuses that occurred in the high school
locker room.
One of the trial defendants was deemed
delinquent on charges of a disorderly persons simple
assault, disorderly conduct, hindering his own
apprehension by lying to police and hindering the
apprehension of his co-defendants by lying to police.
He also was found delinquent on counts of obstruction
and false swearing. The majority of the offenses would
have been considered fourth degree indictable offenses,
if they had been committed by an adult.
....
The other juvenile tried in Family Court was
found delinquent on a disorderly persons simple assault
charge, and a petty disorderly persons count of
engaging in disorderly conduct for his role in the hazing
and sexual conduct.
Initially, the Family Court judge had adjudicated
them both delinquent of criminal restraint. Following
a motion by the defense to reconsider the decision, and
without the receipt of any additional testimony, the
judge reversed his own findings of fact, and instead
found them not guilty of criminal restraint, thus sparing
them from mandatory registration as Megan's Law
offenders.
A-3654-18
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The seven juvenile defendants were taken into
custody in October 2014, after the investigation
determined they each played roles in the attacks upon
their fellow teammates in four separate incidents at the
high school between September 19, 2014 and
September 30, 2014.
During the initial appearances, each time the
seven juvenile defendants were taken into Family
Court, their identities were protected by authorities who
transported them in undercover vehicles and brought
them into court through security entrances that are
outside the public view.
The juvenile defendants were charged during an
investigation by the [MCPO].
The first incident occurred on September 19,
2014, when a [seventeen]-year-old juvenile defendant
"body slammed" a [fifteen]-year-old victim to the floor
and pretended to stomp and kick the victim, exposing
him to bodily injury.
On September 26, 2014, the same [seventeen]-
year-old defendant, along with the two who were
adjudicated delinquent following the trial, and another
[sixteen]-year-old male who is awaiting trial, took part
in an attack of a [fourteen]-year-old boy.
The victim also was forcibly knocked to the floor.
One defendant held the victim, while at least two of the
other defendants grabbed his penis and attempted to
digitally penetrate his anus. Two to five other students,
who could not be identified by the victim, surrounded
him during the sexual assault.
....
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Further investigation showed that on September
29, 2014, three [fifteen]-year-old defendants were
charged with sexually assaulting a [fourteen]-year-old
boy, whose anus was digitally penetrated through his
clothing by one of the defendants, while the other two
held the victim down. All three defendants have
pleaded guilty and admitted to the penetration.
The final incident occurred on September 30,
2014, when the [fifteen]-year-old male charged with the
digital penetration on the previous day, swiped his
fingers between the buttocks of a [fourteen]-year-old
boy. The defendant also pleaded guilty to the lesser
charges in that sexual assault.
On September 1, 2015, plaintiff filed a petition and motion for emergent
relief with the Commissioner of Education, seeking dismissal of SBOE's
disciplinary charges and reinstatement to SHS. The application was transferred
to the Office of Administrative Law (OAL) for adjudication by an administrative
law judge (ALJ). On September 10, 2015, the ALJ issued a written decision
denying plaintiff's application. The judge also ordered SBOE to hold plaintiff's
disciplinary hearing by September 16, 2015. The SBOE scheduled a hearing for
that date.
On September 3, 2015, the SBOE filed a motion in the Family Part for
leave to admit a portion of MCPO's investigation file at the disciplinary hearing
and to introduce testimony from Abromaitis relating to his investigation of the
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underlying incident. The day before plaintiff's disciplinary hearing, the Family
Part judge denied SBOE's motion to admit MCPO's investigation file but
permitted the introduction of Abromaitis's testimony limited to matters within
his personal knowledge, not the investigation file. The judge stayed plaintiff's
disciplinary hearing pending appeal. On September 15, 2015, SBOE advised
plaintiff his disciplinary hearing was canceled pending an appeal of the judge's
order.
On September 17, 2015, we granted plaintiff's application for leave to
appeal, which sought to vacate the stay of the disciplinary hearing. However,
pending appeal, plaintiff's parents transferred custody of him to a family
member residing in Piscataway so plaintiff could attend Piscataway High School
(PHS) for his senior year, where plaintiff wished to play football. SBOE signed
waiver forms to permit the other SHS students involved in the incident, all of
whom entered pleas in their juvenile matters and transferred from SHS, to
participate on their new high school football teams. Although SBOE initially
indicated it would sign a waiver form for plaintiff, it subsequently refused to do
so. Piscataway Schools Superintendent Teresa Rafferty permitted plaintiff to
enroll at PHS, but precluded him from participating in athletics because his
A-3654-18
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juvenile adjudications and participation on the team could endanger PHS's New
Jersey State Interscholastic Athletic Association (NJSIAA) eligibility.
On October 20, 2015, we denied plaintiff's motion to vacate the stay and
reversed and remanded the part of the Family Part judge's order holding SBOE
was not entitled to the records from plaintiff's juvenile delinquency proceedings.
We instructed the judge to determine whether good cause existed to release
plaintiff's records pursuant to N.J.S.A. 2A:4A-60(a)(6).
By letter dated November 3, 2015, plaintiff's counsel advised the Family
Part judge plaintiff no longer intended to return to SHS, and withdrew the
request for a disciplinary hearing. On November 8, 2015, plaintiff's counsel
again wrote to the judge reiterating his position the court did not need to conduct
the remand proceedings to determine if there was good cause to release
plaintiff's records.
On November 9, 2015, SBOE's counsel wrote to the judge with concerns
plaintiff would not concede he waived his right to a disciplinary hearing and
accepted the discipline imposed by SBOE. SBOE's counsel also voiced concern
plaintiff would later file a civil suit arguing SBOE deprived him of a disciplinary
hearing or SBOE's disciplinary decision was arbitrary. MCPO joined SBOE's
position.
A-3654-18
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The Family Part judge sought clarification from us as to whether a
decision on the remand issue was necessary. We advised the remand hearing
was not mandatory, unless plaintiff's counsel indicated in writing he required a
determination in order to further litigate the matter. On December 7, 2015,
plaintiff's counsel sent a letter to the OAL waiving the hearing, stating the matter
was moot.
On January 20, 2017, plaintiff filed a complaint in the Law Division
against the MCPO, Prosecutor Andrew Carey, Kuberiet, and Abromaitis
(collectively, the MCPO defendants); the Busch defendants; the SBOE
defendants; Rafferty; the Borough of Sayreville; and County of Middlesex. On
February 16, 2017, plaintiff filed a first amended complaint alleging the
following counts: violations of the New Jersey Civil Rights Act, N.J.S.A. 10:6-
1 to -2 (NJCRA) (count one); violation of the Juvenile Justice Code, N.J.S.A.
2A:4A-20 to -92 (count two); malicious prosecution (count three); abuse of
process (count four); negligent supervision/respondent superior (count five);
defamation-libel (count six); defamation-slander (count seven); invasion of
privacy-false light (count eight); negligence (count nine); intentional negligent
infliction of emotional distress (IIED) (count ten); negligent infliction of
A-3654-18
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emotional distress (count eleven); civil conspiracy (count twelve); punitive
damages (count thirteen); and invasion of privacy (counts fourteen and fifteen) .
On March 28, 2017, the Middlesex Vicinage Assignment Judge sua sponte
transferred venue to Monmouth Vicinage pursuant to Rule 4:3-3(a), in order to
"avoid all appearance of any perceived conflict." Plaintiff filed a motion for
reconsideration, which the Assignment Judge denied following oral argument
on April 28, 2017. The judge reasoned the prosecutors' regular appearances
before the judges in Middlesex Vicinage, the interests of justice, and to avoid
any appearance of impropriety or perceived conflict necessitated the transfer.
In May 2017, the Busch defendants, MCPO defendants, SBOE
defendants, Borough of Sayreville, and Middlesex County filed motions to
dismiss the first amended complaint pursuant to Rule 4:6-2(e) for failure to state
a claim upon which relief can be granted. On October 5, 2017, the court entered
an order dismissing several counts by consent against each defendant and
adjudicating dismissal of claims against the Borough and the County; we address
the dismissals related to the parties involved in this appeal. As to the SBOE and
MCPO defendants, the court dismissed the NJCRA equal protection claim in
count one without prejudice, as well as counts six and seven, and dismissed the
NJCRA substantive due process claim in counts one, four, eight, ten, twelve,
A-3654-18
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thirteen, and fifteen with prejudice. As to the Busch defendants, the court
dismissed counts six and seven without prejudice and dismissed counts one, two,
four, five, and eight through thirteen with prejudice.
The court also granted plaintiff leave to file a second amended complaint
"to allege sufficient facts . . . to pursue civil rights claims against the [SBOE]
. . . [and] the [MCPO] defendants on the basis of violation of equal protection
rights" and to further address the counts which were dismissed without
prejudice, including those against the Busch defendants. Plaintiff filed a motion
for reconsideration, which the court denied on February 23, 2018, following a
two-day oral argument. Contrary to plaintiff's arguments, the court concluded
it made adequate findings in support of its October 2017 order and plaintiff's
disagreement with the decision was not grounds for reconsideration. The court
granted plaintiff leave to file a second amended complaint.
On April 2, 2018, plaintiff filed a second amended complaint, restating
the original fifteen counts 2, and adding eight additional counts including a cause
of action under NJCRA pled with greater specificity against the SBOE and
MCPO defendants (count sixteen), and additional claims alleging violations of
2
The second amended complaint named count three only to indicate it had been
dismissed against all defendants by consent.
A-3654-18
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the Federal Civil Rights Act (FCRA), 42 U.S.C. § 1983 against the SBOE,
MCPO, and Busch defendants (counts seventeen through twenty-two) and
Rafferty (count twenty-three). The MCPO defendants, Busch defendants, SBOE
defendants, Borough, and County moved to dismiss the second amended
complaint pursuant to Rule 4:6-2(e). The court made detailed oral findings and
entered an order granting defendants' motions dismissing the second amended
complaint with prejudice on July 23, 2018.
In October 2018, Rafferty moved to dismiss the claims against her set
forth in the second amended complaint pursuant to Rule 4:6-2(e). On March 15,
2019, the court made detailed oral findings and granted the motion, dismissing
the claims against Rafferty with prejudice.
Plaintiff raises the following points on appeal:
I. THE TRIAL COURT ERRED BY DISMISSING
VIOLATIONS OF THE [NJCRA] AS TO
SUBSTANTIVE DUE PROCESS.
A. The CRA Generally.
B. The SBOE Defendants And Busch
Defendants Acted Under Color of Law
C. The Trial Court Erred By Applying Waiver
D. Exhaustion Of Administrative Remedies Is
No Defense
A-3654-18
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E. The Litigation Privilege Is No Defense
F. Kuberiet And Carey Aren't Entitled To
Absolute Immunity As They Were Acting In
Their Administrative Capacities When They
Violated Plaintiff's Constitutional Rights
G. Qualified Immunity Can't Be Decided Yet
H. Qualified Immunity Doesn't Bar
Declaratory And Injunctive Relief [Not Raised
Below As To All Defendants]
II. THE TRIAL COURT ERRED BY DISMISSING
VIOLATIONS OF THE [NJCRA] AS TO EQUAL
PROTECTION
III. THE TRIAL COURT ERRED BY DISMISSING
VIOLATIONS OF THE [FCRA] (PRIVACY,
PROCEDURAL AND SUBSTANTIVE DUE
PROCESS) FOR IMPROPERLY LABELING
PLAINTIFF A SEX OFFENDER WITH PREJUDICE
IV. THE TRIAL COURT ERRED BY DISMISSING
VIOLATIONS OF THE [FCRA] (PROCEDURAL
DUE PROCESS) FOR IMPROPERLY DISCLOSING
JUVENILE RECORDS
V. THE TRIAL COURT ERRED BY DISMISSING
RAFFERTY ALLEGING VIOLATIONS OF THE
[FCRA] (PRIVACY, PROCEDURAL AND
SUBSTANTIVE DUE PROCESS) FOR
IMPROPERLY USING PAST JUVENILE
ADJUDICATIONS OF PLAINTIFF TO
DISCRIMINATE AGAINST PLAINTIFF
VI. THE TRIAL COURT ERRED BY DISMISSING
RAFFERTY ALLEGING VIOLATIONS OF THE
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[FCRA] (PRIVACY, PROCEDURAL AND
SUBSTANTIVE DUE PROCESS) FOR
IMPROPERLY USING PAST JUVENILE
ADJUDICATIONS OF PLAINTIFF TO
DISCRIMINATE AGAINST PLAINTIFF
VII. THE TRIAL COURT ERRED BY DISMISSING
CIVIL CONSPIRACY
VIII. THE TRIAL COURT ERRED BY DISMISSING
DEFAMATION (LIBEL AND SLANDER) AGAINST
KUBERIET AND CAREY
A. Defamation Generally
B. Plaintiff Was a Private Person And
Plaintiff [Should] Be Afforded The Opportunity
To Conduct Discovery To Prove Those Claims
C. The Defamation Claims Were Sufficiently
Pled Against Kuberiet And Carey
IX. THE TRIAL COURT ERRED BY
TRANSFERRING THE CASE FROM MIDDLESEX
COUNTY TO MONMOUTH COUNTY
I.
"A motion to dismiss under Rule 4:6-2(e) requires application of 'the test
for determining the adequacy of a pleading: whether a cause of action is
"suggested" by the facts.'" Gonzalez v. State Apportionment Comm'n, 428 N.J.
Super. 333, 349 (App. Div. 2012) (quoting Printing Mart-Morristown v. Sharp
Elecs. Corp., 116 N.J. 739, 746 (1989)). "A complaint should be dismissed for
A-3654-18
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failure to state a claim pursuant to Rule 4:6-2(e) only if 'the factual allegations
are palpably insufficient to support a claim upon which relief can be granted.'"
Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010) (quoting Rieder
v. State Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)).
"In evaluating motions to dismiss, courts consider 'allegations in the
complaint, exhibits attached to the complaint, matters of public record, and
documents that form the basis of a claim.'" Banco Popular N. Am. v. Gandi,
184 N.J. 161, 183 (2005) (quoting Lum v. Bank of Am., 361 F.3d 217, 222 n. 3
(3d Cir. 2004)). The inquiry is limited to examining the legal sufficiency of the
facts alleged only on the face of the complaint; neither the trial nor appellate
court is concerned with the weight, worth, nature, or extent of the evidence.
Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).
A "with-prejudice" dismissal of a plaintiff's complaint will be reversed if
it is "premature, overbroad, . . . [or] based on a mistaken application of the law."
Flinn v. Amboy Nat'l Bank, 436 N.J. Super. 274, 287 (App. Div. 2014). When
we review a trial court's ruling dismissing claims against a party under Rule 4:6-
2(e), we apply a plenary standard of review which owes no deference to the trial
court's conclusions. Bacon v. N.J. State Dep't of Educ., 443 N.J. Super. 24, 33
(App. Div. 2015).
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"Motions for reconsideration are granted only under very narrow
circumstances . . . ." Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462
(App. Div. 2002). Reconsideration should be used only for those cases where
"either (1) the [c]ourt has expressed its decision based upon a palpably incorrect
or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or
failed to appreciate the significance of probative, competent evidence." Ibid.
(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). We
review the trial court's denial of reconsideration for an abuse of discretion.
Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).
II.
In points I and II, plaintiff contends that the trial court erred by dismissing
his substantive due process and equal protection claims brought pursuant to the
NJCRA.
Regarding the substantive due process claims, plaintiff argues: (1) the
SBOE and Busch defendants acted under color of state law; (2) waiver did not
bar his claim; (3) the exhaustion of administrative remedies was not a defense
to his claim; (4) the litigation privilege did not apply; (5) Kuberiet and Carey
were not entitled to prosecutorial immunity; and (6) for the first time on appeal
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asserts qualified immunity does not bar declaratory and injunctive relief as to
all defendants. We address these arguments in turn.
A plaintiff asserting a claim pursuant to the NJCRA, must allege: (1) the
constitution or law of this state conferred on him a substantive right; (2)
defendants deprived him of that right or interfered with that right by threats,
intimidation or coercion; and (3) the defendants were acting under color of law
when they did so. Tumpson v. Farina, 218 N.J. 450, 473 (2014) (quoting
N.J.S.A. 10:6-2(c)).
At the outset, we note plaintiff's brief does not identify any substantive
rights violated by defendants. Generally, "[t]he failure to adequately brief the
issues requires it to be dismissed as waived." Weiss v. Cedar Park Cemetery,
240 N.J. Super. 86, 102 (App. Div. 1990). Notwithstanding, we presume
plaintiff's substantive due process claims are based on the fact his sus pension
deprived him of the opportunity to play football. However, participation in
extracurricular activities, such as athletics, is a privilege, not a protected
interest. See Todd v. Rush Cnty. Sch., 133 F.3d 984, 986 (7th Cir.) (observing
that extracurricular activities, like athletics, are a privilege), cert. denied, 525
U.S. 824 (1998).
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Furthermore, to the extent plaintiff's claims are based on the argument he
was deprived of a timely disciplinary hearing and his juvenile records were
disclosed without prior court approval in violation of N.J.S.A. 2A:4A-60, which
states the records of "juveniles charged as a delinquent . . . shall be strictly
safeguarded from public inspection[,]" such claims are procedural in nature and
not cognizable under the NJCRA. See Coles v. Carlini, 162 F. Supp. 3d 380,
402 (D.N.J. 2015) (finding NJCRA does not provide for vindication of
procedural due process rights, only substantive rights); Tumpson, 218 N.J. at
478 (to recover under NJCRA, plaintiffs must show the right allegedly violated
was substantive, not procedural).
We also reject plaintiff's argument a NJCRA claim was viable against the
SBOE and Busch defendants because they were acting under color of law.
Private actions under the NJCRA for violation of an individual's substantive
rights only lie against persons acting under "color of law," N.J.S.A. 10:6-2(c),
meaning the exercise of power "possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law."
Polk Cnty. v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting United States v.
Classic, 313 U.S. 299, 326 (1941)). "A private actor may be deemed to have
acted under color of state law only where his or her conduct is 'fairly attributable
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to the state.'" Poling v. K. Hovnanian Enters., 99 F. Supp. 2d 502, 513 (D.N.J.
2000) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)). The
"relevant question" is not simply whether a private person or group is serving a
"public function," but whether the function performed has been "traditionally
the exclusive prerogative of the State." Rendell-Baker, 457 U.S. at 842
(emphasis omitted) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 353
(1974)). Thus, the fact that "a private entity performs a function which serves
the public does not make its acts state action." Ibid.
Concluding the Busch defendants did not act under color of law, the trial
court stated:
Set forth in the complaint, the Busch defendants were
contracted to provide legal services to the [SBOE],
which is a private function not performed by the State.
The actions alleged by plaintiff were conducted
by the Busch defendants during the course of their
representation of the [SBOE]. And no factual basis has
been presented to attribute to the Busch defendants'
actions which were performed by the State.
We discern no reversible error. We have stated: "It is clear that an
attorney acts as an agent for his client," Hewitt v. Allen Canning Co., 321 N.J.
Super. 178, 184 (App. Div. 1999), but a "lawyer, although required to work for
the client's benefit, has considerable independence in doing so." Cohen v.
A-3654-18
23
Southbridge Park, Inc., 369 N.J. Super. 156, 161 (App. Div. 2004) (quoting
Restatement (Third) of The Law Governing Lawyers, Introductory Note to
Chapter 2, The Client–Lawyer Relationship (2000)). Thus, "attorneys are also
independent contractors as well as agents." Ibid. (quoting McCarthy v.
Recordex Serv., Inc., 80 F.3d 842, 853 (3d Cir.), cert. denied, 519 U.S. 825
(1996)). Therefore, the Busch defendants were neither state actors nor acting
"under color of law" because they represented a public entity. Polk Cnty., 454
U.S. at 318.
We also reject plaintiff's argument the trial court's finding he waived his
claims was error. Waiver is the voluntary and intentional relinquishment of a
known right. Knorr v. Smeal, 178 N.J. 169, 177 (2003). In Knorr, the New
Jersey Supreme Court explained:
An effective waiver requires a party to have full
knowledge of his legal rights and intent to surrender
those rights. The intent to waive need not be stated
expressly, provided the circumstances clearly show that
the party knew of the right and then abandoned it, either
by design or indifference. The party waiving a known
right must do so clearly, unequivocally, and decisively.
[Ibid. (citations omitted).]
In holding plaintiff waived his substantive due process claim, the court
stated:
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24
Plaintiff . . . fails to account for the fact that he
was afforded a hearing and had a full opportunity to
litigate the issues raised against the [SBOE] defendants
regarding his school discipline. N.J.S.A. 18A:37-5
grants the [SBOE] the authority to impose a long-term
suspension or expulsion.
There is no dispute the [SBOE] followed the
processes enumerated in N.J.A.C. 6A:16-7.3(a), et seq,
and afforded plaintiff a formal hearing on the proposed
discipline.
However, the proceedings were originally stayed
at plaintiff's request pending the outcome of the
juvenile proceedings . . . .
The Appellate Division later remanded the matter
back to the [t]rial [c]ourt . . . [and o]n remand, plaintiff
requested the [t]rial [c]ourt not issue a ruling on the
good cause standard on the basis that the issue was
moot because plaintiff no longer intended to return to
. . . [SHS], and therefore no longer desired to have a
disciplinary hearing to challenge his suspension.
The [SBOE] and the [MCPO] defendants took
issue with the contention, and sought a ruling on the
issue of whether plaintiff waived his right to a
disciplinary hearing.
When plaintiff failed to inform the [c]ourt in
writing he intended to litigate the matter further, as was
ordered by the Appellate Division, plaintiff effectively
waived his right to continue to litigate.
Plaintiff further withdrew his petition before the
Commissioner wherein he sought dismissal of the
disciplinary charges, and demanded reinstatement at
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25
[SHS], thus failing to exhaust his statutory
administrative remedies prior to filing this case.
Therefore, as plaintiff was clearly provided the
opportunity for a hearing, and informed that he had a
right to continue with the litigation, and chose not to
proceed, plaintiff has not only failed to allege any
viable claim, but cannot now attempt to re-litigate a
challenge to a suspension claiming the [SBOE] violated
his rights to a thorough and efficient system of
education.
....
. . . [T]he precise issue regarding disclosure of the
records and whether good cause existed for . . . the
[SBOE] defendants to possess the records, was
previously remanded by the Appellate Division for a
determination by the [t]rial [c]ourt in the plaintiff's
juvenile case.
Plaintiff informed the [c]ourt the issue was moot,
and he had no intent further of litigating the matter.
Additionally, plaintiff fails to realize that when
an allegation as serious as sexual misconduct in a
school locker room arises and criminal charges are
brought, the [MCPO] defendants are entitled to all of
plaintiff's disciplinary records.
The trial court did not err. A Board of Education has the authority to
suspend or expel a pupil. N.J.S.A. 18A:37-5. In each instance of a long-term
suspension, the Board must hold a hearing on the proposed discipline and render
a decision. N.J.A.C. 6A:16-7.3(a). The decision of the Board may then be
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26
appealed to the Commissioner of Education. N.J.A.C. 6A:16-7.3(b); N.J.S.A.
18A:37-2.4. The Commissioner makes the final agency decision, which may
then be subject to appellate review. N.J.S.A. 18A:6-9.1.
It is undisputed plaintiff was provided the opportunity to challenge his
suspension at a disciplinary hearing pursuant to N.J.A.C. 6A:16-7.3(a). At
plaintiff's request, the hearing was deferred until after the juvenile delinquency
proceedings concluded. Thereafter, plaintiff's counsel advised the trial court the
disciplinary matter was moot because plaintiff no longer intended to return to
SHS or challenge his suspension. Plaintiff's actions constituted an unequivocal
waiver.
Plaintiff contends the court's finding he failed to exhaust his
administrative remedies was erroneous because "[a]dministrative courts [do] not
have jurisdiction to hear the issue regarding access to, and/or disclosure of . . .
juvenile records of law enforcement." He also argues "[a]dministrative [c]ourts
do NOT have jurisdiction to award attorney fees or monetary damages and
therefore it was impossible for [p]laintiff to exhaust his administrative remedies
regarding his civil cause of action." Furthermore, he argues "[b]y the time the
Appellate Division rendered its decision, the football season was over, making
A-3654-18
27
any attempt of seeking redress for returning to play football through the
administrative courts futile."
"[T]he exhaustion of remedies requirement is a rule of practice designed
to allow administrative bodies to perform their statutory functions in an orderly
manner without preliminary interference from the courts." Brunetti v. Borough
of New Milford, 68 N.J. 576, 588 (1975). "Exhaustion of administrative
remedies before resort to the courts is a firmly embedded judicial principle. This
principle requires exhausting available procedures, that is, 'pursuing them to
their appropriate conclusion and, correlatively . . . awaiting their final outcome
before seeking judicial intervention.'" Garrow v. Elizabeth Gen. Hosp. &
Dispensary, 79 N.J. 549, 558-59 (1979) (second alteration in original) (citations
omitted) (quoting Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 767
(1947)). Our Supreme Court has explained
the doctrine of exhaustion of administrative remedies
serves three primary goals: (1) the rule ensures that
claims will be heard, as a preliminary matter, by a body
possessing expertise in the area; (2) administrative
exhaustion allows the parties to create a factual record
necessary for meaningful appellate review; and (3) the
agency decision may satisfy the parties and thus obviate
resort to the courts.
[Atl. City v. Laezza, 80 N.J. 255, 265 (1979).]
A-3654-18
28
However, "[t]he exhaustion doctrine is not an absolute." Garrow, 79 N.J.
at 561. "Exceptions exist when only a question of law need be resolved; when
the administrative remedies would be futile; when irreparable harm would
result; when jurisdiction of the agency is doubtful; or when an overriding public
interest calls for a prompt judicial decision." Ibid. (citations omitted).
The Commissioner of Education has "plenary" authority over education-
related matters, Archway Programs, Inc. v. Pemberton Twp. Bd. of Educ., 352
N.J. Super. 420, 424 (App. Div. 2002), and "fundamental and indispensable
jurisdiction over all disputes and controversies arising under the school laws ,"
Hinfey v. Matawan Reg'l Bd. of Educ., 77 N.J. 514, 525 (1978). N.J.S.A. 18A:6-
9 states: "The commissioner shall have jurisdiction to hear and determine,
without cost to the parties, all controversies and disputes arising under the
school laws, excepting those governing higher education, or under the rules of
the State board or of the commissioner." The Commissioner's jurisdiction
includes the power to resolve issues implicating constitutional claims. Desilets
v. Clearview Reg'l Bd. of Educ., 137 N.J. 585, 595-96 (1994). "[W]ith respect
to school-law controversies, particularly where a local board's decision is
challenged, it is the exhaustion of remedies doctrine which requires first resort
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29
to the administrative process." Theodore v. Dover Bd. of Educ., 183 N.J. Super.
407, 414 (App. Div. 1982).
Plaintiff was required to exhaust his administrative remedies prior to
instituting the Law Division action. He commenced, but then withdrew from
the administrative dispute resolution process, advising the issue was moot. As
the trial court correctly determined, plaintiff's actions prevented a proper
resolution of his challenge to the disciplinary action. We find no error in the
decision to dismiss his complaint accordingly.
Plaintiff contends the court erred by finding the SBOE defendants were
protected under the litigation privilege. He argues the privilege did not apply
because "[t]he SBOE, Labbe[,] and Macagnone were[ not] litigants or other
participants authorized by law at [p]laintiff's juvenile delinquency trial." He
contends he "has a procedural due process right to not hav[e] the records
disclosed without first being heard by a court of law or at a minimum, seeking
permission from his parents."
The litigation privilege generally protects attorneys and litigants "from
civil liability arising from words . . . uttered in the course of judicial
proceedings." Loigman v. Twp. Comm. of Middletown, 185 N.J. 566, 579
(2006). See also Ruberton v. Gabage, 280 N.J. Super. 125, 132 (App. Div. 1995)
A-3654-18
30
("A statement made in the course of judicial, administrative or legislative
proceedings is absolutely privileged and wholly immune from liability."). The
privilege shields "any communication: (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by law; (3) to
achieve the objects of the litigation; and (4) that have some connection or logical
relation to the action." Hawkins v. Harris, 141 N.J. 207, 216 (1995) (quoting
Silberg v. Anderson, 50 Cal. 3d 205, 369 (1990)).
The privilege is not confined to the courtroom and "extends to all
statements or communications in connection with the judicial proceeding."
Ruberton, 280 N.J. Super. at 133. It "extends not only to testimony and
documents admitted in evidence but also to documents utilized in the
preparation of judicial proceedings." Durand Equip. Co. v. Superior Carbon
Prods., Inc., 248 N.J. Super. 581, 584 (App. Div. 1991). See also DeVivo v.
Ascher, 228 N.J. Super. 453, 457 (App. Div. 1988) (litigation privilege "may be
extended to statements made in the course of judicial proceedings even if the
words are written or spoken maliciously, without any justification or excuse,
and from personal ill will or anger against the party defamed"). Additionally,
pretrial communications by parties and witnesses are protected "to promote the
development and free exchange of information and to foster judicial and extra -
A-3654-18
31
judicial resolution of disputes." Hawkins, 141 N.J. at 218 (quoting Gen. Elec.
Co. v. Sargent & Lundy, 916 F.2d 1119, 1129 (6th Cir. 1990)). "The only
limitation which New Jersey places upon the privilege is that the statements at
issue 'have some relation to the nature of the proceedings.'" Rabinowitz v.
Wahrenberger, 406 N.J. Super. 126, 134 (App. Div. 2009) (quoting Hawkins,
141 N.J. at 215).
Plaintiff's arguments are unpersuasive. It is evident, as the trial court
concluded, the statements made by the SBOE defendants, and the evidence
disclosed by them, was in anticipation of, and preparation for, plaintiff's
disciplinary hearing, which was a quasi-judicial proceeding. See Pa. R.R. Co.
v. N.J. State Aviation Comm'n, 2 N.J. 64, 70 (1949) ("Where the administrative
tribunal is under a duty to consider evidence and apply the law to the facts as
found, thus requiring the exercise of a discretion or judgment judicial in nature
on evidentiary facts, the function is quasi judicial and not merely ministerial.").
Therefore, regardless of the reasons for disclosures, the litigation privilege
applied.
Plaintiff contends Kuberiet and Carey were not entitled to absolute
prosecutorial immunity. He argues their "conduct of disclosing [p]laintiff's
juvenile records to other defendants, along with labeling [p]laintiff a sex
A-3654-18
32
offender in a post adjudication press release, do not relate to an advocate's
preparation for the initiation of a prosecution or for a judicial proceeding and
therefore, are[ not] entitled to absolute immunity."
Prosecutors enjoy absolute immunity for claims brought under statutory
and common law alleging the deprivation of rights. Imbler v. Pachtman, 424
U.S. 409, 427 (1976). Absolute prosecutorial immunity is granted out of
"concern that harassment by unfounded litigation would cause a deflection of
the prosecutor's energies from his public duties, and the possibility that he would
shade his decisions instead of exercising the independence of judgment required
by his public trust." Id. at 423. Although absolute immunity "does leave the
genuinely wronged defendant without civil redress against a prosecutor whose
malicious or dishonest action deprives him of liberty," the broader public
interest promoting a prosecutor's "vigorous and fearless performance" of the
office's duties must prevail. Id. at 427. However, a prosecutor's administrative
duties and investigatory functions that do not relate to the preparation for the
initiation of a prosecution or for judicial proceedings are not entitled to absolute
immunity. Burns v. Reed, 500 U.S. 478, 494-96 (1991).
To determine whether particular actions of government officials are
entitled to absolute immunity, courts apply a "functional approach," see id. at
A-3654-18
33
486, which considers "the nature of the function performed, not the identity of
the actor who performed it," Forrester v. White, 484 U.S. 219, 229 (1988). See
also Michaels v. New Jersey, 50 F. Supp. 2d 353, 359 (D.N.J. 1999). When a
prosecutor functions as an administrator rather than an officer of the court, the
prosecutor is entitled only to qualified immunity. Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993). The official seeking immunity has the burden to show
immunity is justified for the function in question. Burns, 500 U.S. at 486.
The trial court stated:
Here, while plaintiff alleges the [MCPO]
defendants violated his constitutional rights for their
alleged wrongful acts in the investigation of him, such
investigations were clearly done in preparation for the
prosecution of plaintiff or anyone else. And plaintiff
was, in fact, subsequently charged.
However, to the extent that the complaint centers
on the [MCPO] defendants['] individual activity that
cannot be argued to be in furtherance or preparation of
plaintiff's prosecution[, t]he doctrine of qualified
immunity must be examined to determine [i]f the
defendants are shielded from liability.
It is evident the trial court found this aspect of plaintiff's claims was barred
by the litigation privilege, not absolute prosecutorial immunity. Plaintiff's
argument to the contrary lacks merit.
A-3654-18
34
Plaintiff contends the court erred by finding Kuberiet and Carey were
entitled to qualified immunity. He argues "[a] full analysis of whether qualified
immunity applies to [p]laintiff's claims against [d]efendants is premature
because there are unresolved questions of fact relevant to the analysis, including
whether defendants knowingly violated the law, as suggested in the second
[amended] complaint." Plaintiff also argues "[q]ualified immunity does[ not]
bar actions for injunctive relief. Even where the lower [court] found qualified
immunity for the respective defendants, [he] is still entitled to declaratory and
injunctive relief under the FCRA and [NJ]CRA."
Qualified immunity is an affirmative defense that may be raised where
claims are brought against a government official pursuant to 42 U.S.C. § 1983
and the NJCRA. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982); Gormley v.
Wood-El, 218 N.J. 72, 97-98, 113-15 (2014). Qualified immunity shields
government officials "from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow, 457 U.S. at 818. "The
protection of qualified immunity applies regardless of whether the governme nt
official's error is 'a mistake of law, a mistake of fact, or a mistake based on
mixed questions of law and fact.'" Pearson v. Callahan, 555 U.S. 223, 231
A-3654-18
35
(2009) (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J.,
dissenting)). "Whether an official is covered by qualified immunity is a matter
of law to be decided by a court." Gormley, 218 N.J. at 113.
Qualified immunity, however, is not available if the unlawfulness of the
official's act is objectively apparent given the pre-existing law at the time of the
alleged deprivation of rights. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
In other words, "whether an official protected by qualified immunity may be
held personally liable for an allegedly unlawful official action gener ally turns
on the 'objective legal reasonableness' of the action, assessed in light of the legal
rules that were 'clearly established' at the time it was taken." Id. at 639 (quoting
Harlow, 457 U.S. at 819 and 818).
"[T]he 'driving force' behind creation of the qualified immunity doctrine
was a desire to ensure that "'insubstantial claims' against government officials
[will] be resolved prior to discovery." Pearson, 555 U.S. at 231 (quoting
Anderson, 483 U.S. at 640 n.2). "Reliance on the objective reasonableness of
an official's conduct, as measured by reference to clearly established law, should
. . . permit the resolution of many insubstantial claims on summary judgment."
Harlow, 457 U.S. at 818.
A-3654-18
36
A right is clearly established when "'[t]he contours of the right [are]
sufficiently clear that a reasonable official would understand that what he is
doing violates that right.'" Gormley, 218 N.J. at 113 (first alteration in original)
(quoting Anderson, 483 U.S. at 640). "If the law was clearly established, the
immunity defense ordinarily should fail, since a reasonably competent public
official should know the law governing his conduct." Harlow, 457 U.S. at 818-
19.
As we noted, plaintiff's complaint failed to identify any substantive right
violated in support of his NJCRA and constitutional claims. Thus, the trial court
correctly determined defendants were entitled to qualified immunity. We
decline to consider plaintiff's argument qualified immunity did not bar his ability
to seek injunctive relief because his complaint did not seek this relief and he did
not raise this argument before the trial court. Therefore we do not consider it
on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
In point II of his brief, plaintiff contends the trial court erred by dismissing
his NJCRA equal protection claim. He argues "[t]he SBOE has a history and
tradition of treating African American students differently from non -African
American students" and he was treated differently than a white student (John
Doe 1). Plaintiff asserts:
A-3654-18
37
The MCPO defendants never disclosed to the SBOE or
the Busch defendants the confidential records of John
Doe 1 . . . . The SBOE defendants did[ not] drag John
Doe 1 through the [c]ourt system in order to have his
records used at a long term suspension hearing in
violation of his due process rights.
The fundamental guarantee to equal protection of the laws embraced by
Article I, Paragraph 1 of the New Jersey Constitution does not require all persons
be treated alike. In re Contest of Nov. 8, 2011, 210 N.J. 29, 48 (2012); Lewis
v. Harris, 188 N.J. 415, 442 (2006). Rather, "[t]o establish a violation of the
equal protection clause, a plaintiff must show that the allegedly offensive
categorization invidiously discriminates against the disfavored group." In re
Contest of Nov. 8, 2011, 210 N.J. at 48 (quoting Price v. Cohen, 715 F.2d 87,
91 (3d Cir. 1983)). The test involves weighing "the nature of the affected right,
the extent to which the governmental restriction intrudes upon it, and the public
need for the restriction." Lewis, 188 N.J. at 468 (quoting Sojourner A. v. N.J.
Dep't of Hum. Servs., 177 N.J. 318, 333 (2003)). "The test is a flexible one,
measuring the importance of the right against the need for the governmental
restriction." Id. at 443. "Under that approach, each claim is examined 'on a
continuum that reflects the nature of the burdened right and the importance of
the governmental restriction.'" Ibid. (quoting Sojourner A., 177 N.J. at 333).
A-3654-18
38
In dismissing plaintiff's equal protection claim against the SBOE
defendants, the trial court stated:
Here, plaintiff's equal protection claims against
the [SBOE] defendants must fail as a matter of law.
Applying the analytical framework established in
Greenberg[ v. Kimmelman, 99 N.J. 552 (1985)], the
[c]ourt finds no equal protection violation because
plaintiff has not suffered a loss of [a] fundamental right.
....
Plaintiff fails to make a showing the [SBOE]
defendants unevenly applied Federal or State laws,
rather the gravamen in the claim for equal protection
violation centers on the difference in disciplinary
treatment he received in comparison to another student
involved in another matter.
....
. . . Plaintiff continues to address the difference
in how he was treated in comparison to that of John Doe
1, yet the [c]ourt has previously addressed this issue,
maintaining no Federal or State Constitutional rights
were infringed upon in this matter.
Regarding the MCPO defendants, the court stated:
Prosecutors are subject to varying levels of official
immunity. Absolute immunity attaches to all actions
performed in a quasi-judicial role, Imbler, [424 U.S. at
430].
This includes activity taken while in court such
as the presentation of evidence or legal argument as
well as selected out of court behavior intimately
A-3654-18
39
associated with the judicial phases of litigation,
Kulwicki [v. Dawson, 969 F.2d 1454, 1463 (3d Cir.
1992).]
Plaintiff's claims against Kuberiet and Carey's
conduct center on their prosecutorial discretion. As
stated in Imbler absolute immunity attaches for all
actions taken in a quasi-judicial role. Plaintiff attempts
to argue that defendants acted arbitrarily and
maliciously but offers no proofs other than the
allegations made in this complaint.
Again, plaintiff refers to the [p]rosecutor's
actions in handling the John Doe matter[,] but the
[c]ourt has already determined he failed to establish
that both were similarly situated individuals who
received unequal treatment of governing law. There are
also additional facts and differences between the two
cases plaintiff fails to address.
To reiterate, school disciplinary actions fail to
serve as a basis for equal protection claims. The
complaint fails to establish the [MCPO] defendants
were not acting in their official capacity during the
investigation.
We affirm substantially for the reasons expressed by the trial court. We
add the following comments. Plaintiff's equal protection claims failed because
his complaint did not identify the deprivation or violation of any fundamental
right. Further, he failed to establish the law was unevenly applied to him in
comparison to another similarly situated individual. See e.g., Startzell v. City
of Phila., 533 F.3d 183, 203 (3d Cir. 2008) ("Persons are similarly situated under
A-3654-18
40
the Equal Protection Clause when they are alike 'in all relevant aspects.'")
(quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). See also In re T.J.S., 419
N.J. Super. 46, 58-59 (App. Div. 2011) ("Indeed, the constitutional guarantee
'does not demand that things that are different in fact be treated the same in law
. . . .'") (quoting State v. Chun, 194 N.J. 54, 103 (2008), aff'd, 212 N.J. 334
(2012)).
Plaintiff argues John Doe 1 received less severe discipline; however, John
Doe 1 was involved in a wholly unrelated incident described as an assault during
which John Doe 1 punched a fellow student more than twenty times. Plaintiff's
complaint does not allege John Doe 1 had a disciplinary hearing while plaintiff
was denied one on the basis of race. Indeed, plaintiff fails to identify what
disciplinary action was taken against John Doe 1 or how it differed from the
discipline he received.
Plaintiff's claims against the MCPO defendants fail for similar reasons.
From the Prosecutor's perspective, the incident involving John Doe 1 was a fist
fight between two high school students, which was wholly different from
plaintiff's alleged conduct. No reasonable inference can be drawn that plaintiff's
race motivated the MCPO defendants to disclose his information during a quasi-
A-3654-18
41
judicial proceeding or the related investigation because plaintiff and John Doe
1 were not similarly situated "in all relevant respects."
III.
In points III, IV, and V of his brief, plaintiff argues the trial court erred in
dismissing his FCRA claims against Kuberiet, Carey, and Rafferty.
A.
Plaintiff contends the trial court erred by dismissing his section 1983
claims against Kuberiet and Carey because these defendants labeled him a sex
offender in a news release, violating his "privacy, procedural and substantive
due process rights under the United States Constitution and rights under the
Code of Juvenile Justice." Plaintiff argues he "pled sufficient facts to suggest
a[n] FCRA cause of action for his being labeled a sex offender."
The United States Supreme Court explained the Fourteenth Amendment
Due Process Clause as follows:
By requiring the government to follow appropriate
procedures when its agents decide to "deprive any
person of life, liberty, or property," the Due Process
Clause promotes fairness in such decisions. And by
barring certain government actions regardless of the
fairness of the procedures used to implement them, . . .
it serves to prevent governmental power from being
"used for purposes of oppression[]" . . . .
A-3654-18
42
[Daniels v. Williams, 474 U.S. 327, 331 (1986)
(quoting Den Ex Dem. Murray v. Hoboken Land &
Improv. Co., 59 U.S. 272, 277 (1856)).]
"[T]he substantive component of the Due Process Clause can only be violated
by governmental employees when their conduct amounts to an abuse of official
power that 'shocks the conscience.'" Fagan v. City of Vineland, 22 F.3d 1296,
1303 (3d Cir. 1994) (citations omitted).
"Generally speaking, [42 U.S.C.] section 1983 provides a cause of action
in state or federal courts to redress federal constitutional and statutory violations
by state officials." Bernstein v. State, 411 N.J. Super. 316, 335-36 (App. Div.
2010) (quoting Gen. Motors Corp. v. City of Linden, 143 N.J. 336, 341 (1996),
cert. denied, 519 U.S. 816). To prevail on a section 1983 claim, a plaintiff must
establish the following elements: (1) a violation of rights, privileges, or
immunities secured by the Constitution or laws of the United States; and (2) the
violation complained of was committed by a person acting under color of state
law. Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011).
Furthermore, "a plaintiff who wishes to sustain a [section] 1983 claim based
upon a violation of procedural due process must, at a minimum, prove
recklessness or 'gross negligence' and in some instance[s] may be required to
show a 'deliberate decision to deprive' the plaintiff of due process." Jordan v.
A-3654-18
43
Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1277 (3d Cir. 1994) (quoting
Daniels, 474 U.S. at 333-34).
The trial court explained its reasons for dismissing plaintiff's due proces s
claims as follows:
Plaintiff's basis for the claim is that the August
2015 press release labeled him as a sex offender. A
review of the press release shows that plaintiff is not
labeled as a sex offender as no individual defendants
are named . . . .
Plaintiff asserts a violation of procedural
substantive due process rights relying on O'Neill [v.
Kerrigan, No. 11-3437, 2013 U.S. Dist. LEXIS 24658
(E.D. Pa. Feb. 22, 2013)]. The [c]ourt notes it's an
unpublished opinion. Plaintiff did not attach a copy in
violation of [Rule] 1:36.
Nevertheless, the O'Neill decision discusses
whether there's a privacy right associated with
disclosure of juvenile records and finds there is a lack
of precedent to support a finding of any such right.
Plaintiff also relies on Kirby [v. Siegelman, 195
F.3d 1285, 1292 (11th Cir. 1999), and Neal v. Shimoda,
131 F.3d 818, 829 (9th Cir. 1997),] in arguing the
[p]rosecutors acted maliciously. The present matter is
distinguishable from both Kirby and . . . Neal as both
dealt with the classification of an inmate as [a] sex
offender[].
Specifically, in . . . Neal due process violations
were found where the inmates were labeled sex
offenders prior to being convicted of the offense. It
should be further noted the defendants in Neal were
A-3654-18
44
ultimately entitled to qualified immunity which this
[c]ourt agrees is applicable to the [MCPO] defendants.
As previously stated[,] there's no specific
mention of plaintiff's name or specific accusation made
against him of being a sex offender. There's no clearly
established privacy right violated by disclosure of
juvenile records and the [MCPO] defendants are
entitled to qualified immunity.
The trial court's reasoning is sound. Plaintiff's second amended complaint
alleged the news release stigmatized and portrayed him as a "sexual pariah,"
thereby causing him "specific harm by defaming him." However, damage to
one's reputation does not give rise to a valid claim under section 1983. See Paul
v. Davis, 424 U.S. 693, 701 (1976) (holding reputation alone is not an interest
protected by Due Process Clause). Without demonstrating the deprivation of a
federally protected interest, plaintiff could not assert a cognizable due process
claim under section 1983. See Kelly v. Borough of Sayreville, 107 F.3d 1073,
1078 (3d Cir. 1997) ("[W]e must be careful not to equate a state defamation
claim with a cause of action under section 1983 predicated on the Fourteenth
Amendment."); Robb v. City of Phila., 733 F.2d 286, 294 (3d Cir. 1984)
("Stigma to reputation alone, absent some accompanying deprivation of present
or future employment, is not a liberty interest protected by the [F]ourteenth
[A]mendment").
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45
Moreover, as the trial court noted, plaintiff's reliance on Kirby and Neal
is misplaced. In Kirby, the Circuit Court determined the plaintiff's due process
rights were implicated not only because he was classified and stigmatized as a
sex offender without being convicted of a sex crime, but also the classification's
negative consequences on his conditions of confinement. 195 F.3d at 1291-92.
Here, plaintiff was neither confined nor classified as a sex offender resulting in
the deprivation of any rights or liberties.
Similarly, Neal involved the designation of inmates as sex offenders
compelling their participation in Hawaii's "Sex Offender Treatment Program"
as a precondition to their eligibility for parole. 131 F.3d at 821. The Ninth
Circuit held designating a prisoner as a sex offender and requiring him to
complete a sex offender treatment program as a precondition to parole eligibility
violated the prisoner's due process rights when the prisoner had never been
convicted of a sex offense and never had an opportunity to challenge the "sex
offender" label in an adversarial setting. Id. at 831. Unlike Neal, plaintiff was
not classified as a sex offender or compelled to participate in a sex offender
program. Moreover, the news release did not label him a sex offender or name
him. Therefore, no protected liberty interests were implicated, and no privacy
rights were violated by Kuberiet or Carey.
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B.
Plaintiff contends the trial court erred by dismissing his FCRA claims
against Kuberiet and Carey for the improper disclosure of his juvenile records
because "[e]very juvenile has an expectation of privacy in their juvenile
records." He asserts "[t]he litigation privilege does[ not] protect defendants
from liability for FCRA claims," because he "has a procedural due process right
to not hav[e] the records disclosed without first being heard by a court of law or
at a minimum, seeking permission from his parents."
In J.P. v. DeSanti, juveniles filed suit to enjoin compilation and
dissemination of social histories prepared by state probation authorities
concerning legal proceedings involving those juveniles. 653 F.2d 1080, 1081
(6th Cir. 1981). The Sixth Circuit concluded "the Constitution does not
encompass a general right to nondisclosure of private information." Id. at 1090.
The court stated: "The interest . . . in nondisclosure [of juvenile court records]
. . . is 'far afield' from those privacy rights that are 'fundamental' or 'implicit in
the concept of ordered liberty.'" Ibid. See also McCrary v. Jetter, 665 F. Supp.
182, 186 (E.D.N.Y. 1987) (holding plaintiff did not have constitutionally
protected interest in confidentiality of his youthful offender file, explaining:
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47
"Plaintiff's federal civil rights claim does not fall within the 'zones of privacy'
recognized by the Supreme Court.").
Here, the trial court stated:
Most of the Federal Courts have considered the
issue and have found . . . considerable doubt as to
whether a constitutional right to privacy extends to
juvenile arrest and related records, see [United States v.
T.E.S., 165 F.3d 913 (1998)], finding it doubtful that a
State may create a constitutionally protected reasonable
expectation of privacy in the nondisclosure of a
juvenile's criminal record, . . .[see also] DeSanti, [653
F.2d at 1088-90] . . . , holding there's no constitutional
right to privacy in juvenile court records as the interest
in nondisclosure of such records is far afield from those
privacy rights that are fundamental or implicit in the
concept of ordered liberty.
....
Here the claim for violation of procedural due
process fail[s] for several reasons. First, the cited cases
show there[ is] no clearly established right of privacy
violated by disclosure of a juvenile record. The [c]ourt
has already determined the plaintiff waived his claims
related to disclosure of his records and dismissed those
claims with prejudice . . . .
Further, the [c]ourt will not permit the plaintiff
an opportunity to amend both on the improper form and
also the case law which shows amendment would be
futile . . . .
The trial court correctly concluded plaintiff's claim of an FCRA violation
relating to the release of his juvenile records failed as a matter of law. Plaintiff
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did not have a protected right to the nondisclosure of his juvenile records and
there was no violation of a right under the Constitution or federal law.
Furthermore, plaintiff's argument the MCPO defendants failed to obtain the
court's permission or parental consent before disclosing his juvenile records was
not a viable claim because section 1983 cannot be used to maintain actions for
alleged violations of state law. Harvey, 635 F.3d at 609.
C.
Plaintiff argues the trial court erred by dismissing his FCRA claims
against Rafferty for similar reasons as the MCPO defendants. Pointing to count
twenty-three of the second amended complaint, he argues "Rafferty used
[p]laintiff's past juvenile adjudication on record to discriminate against
[p]laintiff as a student by not allowing him to engage in . . . sports and/or other
extra-curricular activities."
The trial court stated:
The [c]ourt finds that [c]ount [twenty-three of the
second amended complaint] must be dismissed because
plaintiff has not pled sufficient facts to support a cause
of action under [section] 1983 . . . . At oral [argument]
plaintiff's counsel indicated that plaintiff's due process
rights had been violated because Rafferty had failed to
issue a waiver which would have permitted him to play
football and plaintiff was not given the right of appeal.
Defendant's counsel offered that the waiver in question
had to come from Sayreville, not Piscataway.
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49
Accepting plaintiff's argument as true, it must
still fail because the [c]ourt finds that plaintiff again
does not have a fundamental or constitutional right to
participate in interscholastic sports. Thus, even
assuming that Rafferty was acting under color of law
because she was acting in her capacity as a school
Superintendent[,] plaintiff has not identified any
fundamental constitutional right violated by Rafferty to
support a viable claim under [section] 1983.
Plaintiff alleges that Rafferty used his past
juvenile record to preclude him from participating in
sports in [PHS]. However, plaintiff has provided no
legal precedent that states he is entitled to a privacy
right in his juvenile records under the constitution.
....
More importantly Rafferty would be entitled to
qualified immunity from plaintiff's claims. As a state
public official performing a discretionary function
Rafferty would be immune from suit unless she clearly
violated a statutory or constitutional right which a
reasonable person should have known[.] Harlow, 457
U.S. [at] 818.
In order for plaintiff to overcome a qualified
immunity defense plaintiff must prove that defendant's
conduct violated plaintiff's constitutional rights and
that the right was clearly established at the time of the
misconduct. Plaintiff has identified no fundamental or
constitutional right under the facts alleged and Rafferty
would be entitled to qualified immunity had the
constitutional claims not been dismissed . . . .
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We affirm substantially for the reasons expressed by the trial court and in
the preceding section of this opinion. We add that participation in school-
sponsored extracurricular activities is not a fundamental right under the United
States Constitution. Palmer v. Merluzzi, 868 F.2d 90, 96 (3d Cir. 1989); Albach
v. Odle, 531 F.2d 983, 984-85 (10th Cir. 1976); Mitchell v. La. High Sch.
Athletic Ass'n, 430 F.2d 1155, 1158 (5th Cir. 1970); Angstadt v. Midd-West
Sch. Dist., 286 F. Supp. 2d 436, 442 (M.D. Pa. 2003), aff'd, 377 F.3d 338 (3d
Cir. 2004). Because section 1983 cannot be used to maintain alleged violations
of state law, the claims against Rafferty failed as a matter of law.
IV.
In point VI of his brief, plaintiff challenges the dismissal of his intentional
IIED claim. He argues "[t]his tort is[ not] subject to any heightened pleading
requirements and the complaint sufficiently pleads the factual predicates for the
emotional infliction of emotional distress." He asserts the court erred because
it "cannot make factual determinations about the severity of the emotional
distress that [he] suffered or whether that distress was intentionally inflicted by
defendant. At this juncture, [he] is entitled to every reasonable inference." He
asserts he was entitled to discovery before the court dismissed his claim.
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To establish a claim for IIED, a plaintiff must show: (1) the actor intended
to inflict emotional distress or the actor knew or should have known emo tional
distress was a likely result of his or her conduct; (2) the conduct was extreme
and outrageous; (3) the actor's conduct was the proximate cause of plaintiff's
distress; and (4) the emotional distress sustained by the plaintiff was severe.
Cole v. Laughrey Funeral Home, 376 N.J. Super. 135, 146-47 (App. Div. 2005).
The conduct must be "so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized society." Buckley v. Trenton
Sav. Fund Soc., 111 N.J. 355, 366 (1988) (quoting Restatement (Second) of
Torts § 46 cmt. d (Am. Law Inst. 1965)). The emotional distress must be "so
severe that no reasonable man could be expected to endure it." Ibid. (quoting
Restatement, § 46 cmt. j). The standard is an objective one. Turner v. Wong,
363 N.J. Super. 186, 200 (App. Div. 2003).
The severity of emotional distress is a mixed question of law and fact, and
therefore the court decides whether as a matter of law such emotional distress
can be found, and the jury decides whether, in fact, it has been proved. Buckley,
111 N.J. at 367. "A[] severe and disabling emotional or mental condition which
is capable of being generally recognized and diagnosed by professionals trained
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52
to do so qualifies as severe emotional distress." Hill v. N.J. Dep't of Corr., 342
N.J. Super. 273, 297 (App. Div. 2001) (citing Taylor v. Metzger, 152 N.J. 490,
515 (1998)).
In dismissing the IIED claim pled in the initial complaint, the trial court
stated:
Here plaintiff's allegations regarding the
defendants did not give rise to any indication the
defendants acted with any intent to cause plaintiff to
suffer severe emotional distress[] or cause him harm,
and failed to rise to the level of extreme and outrageous
conduct.
Although plaintiff claims defendants['] conduct
was extreme and outrageous, no facts have been alleged
that could give rise to any claim that defendants acted
in an extreme and outrageous way to constitute an
intentional infliction of emotional distress claim.
Simply providing plaintiff's . . . [c]ounsel's certification
and letters from plaintiff himself, and plaintiff's mother
fails to establish any entitlement to emotional distress
damages.
Dismissing the IIED claim pled against Rafferty in the second amended
complaint, the court stated:
Giving plaintiff's complaint its most expansive
reading, plaintiff has failed to plead any facts which
might reasonably support a claim for intentional
infliction of emotional distress. Plaintiff does not cite
any conduct that shows Rafferty acted with any intent
to cause him to suffer harm or severe emotional
distress.
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To the contrary, Rafferty made the decision to
preclude plaintiff from participating in activities . . .
[for] several reasons, among them concern that other
students would be harmed if the school were to lose its
NJSIAA eligibility by permitting [plaintiff] as a
juvenile adjudged to be delinquent to participate in the
program.
The [c]ourt also notes that . . . although the
complaint speaks in general terms of "outrageous
behavior" there's no identification of anything beyond
the fact[] that Rafferty was acting in her capacity as
superintendent. It was her job to make a decision
whether or not to permit plaintiff to enroll in school,
which she did permit.
It was within her role as Superintendent to decide
whether or not he should be permitted to participate in
interscholastic sports. She made the decision and
proffered at least one reasonable basis for the decision
....
Accepting those facts as true, . . . there is nothing
there from which a reasonable person might conclude
that what Rafferty did was shocking, that it was not
something that would occur in the daily lives [of]
people or that the conduct was extreme or outrageous.
The trial court correctly found the conduct alleged by plaintiff did not set
forth a cause of action for IIED because it lacked any indicia of being outrageous
and extreme. Moreover, plaintiff did not allege a medical or psychological
diagnosis or he received treatment as a result of the conduct alleged in his
pleadings.
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We reject plaintiff's contention he should have been afforded discovery
prior to the dismissal of this claim. "It has long been established that pleadings
reciting mere conclusions without facts and reliance on subsequent discovery do
not justify a lawsuit." Glass v. Suburban Restoration Co., Inc., 317 N.J. Super.
574, 582 (App. Div. 1998). Because plaintiff's claim was precluded as a matter
of law, discovery would be futile as the facts relating to his physical and
psychological conditions were known to him prior to the commencement of his
suit and not pled.
V.
In point VII, plaintiff challenges the dismissal of his civil conspiracy
claim. Similar to the IIED claim, he asserts he should be afforded discovery "to
further develop the claims which are suggested by the facts and pled in the
complaint."
Our law defines a civil conspiracy as
a combination of two or more persons acting in concert
to commit an unlawful act, or to commit a lawful act by
unlawful means, the principal element of which is an
agreement between the parties to inflict a wrong against
or injury upon another, and an overt act that results in
damage.
[Banco Popular, 184 N.J. at 177 (quoting Morgan v.
Union Cnty. Bd. of Chosen Freeholders, 268 N.J.
Super. 337, 364 (App. Div. 1993)).]
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55
Civil conspiracy is not an independent cause of action, but rather a
"liability expanding mechanism" which exists only if a plaintiff can prove the
underlying "independent wrong." Farris v. Cnty. of Camden, 61 F. Supp. 2d
307, 326 (D.N.J. 1999). "The gist of an action in civil conspiracy is not the
conspiracy itself but the underlying wrong, which absent the conspiracy, would
give a right of action." Malaker Corp. Stockholders Protective Comm. v. First
Jersey Nat'l Bank, 163 N.J. Super. 463, 491 (App. Div. 1978). "The essential
element of the tort is not the conspiracy[,] but the damage inflicted pursuant to
it." Ibid.
The trial court dismissed plaintiff's civil conspiracy count against the
MCPO defendants in the first amended complaint, finding it was "devoid of any
facts to suggest the defendants conspired to cause plaintiff harm," and "any
underlying wrongs [were] additionally barred because of the immunity bestowed
upon the public entity defendants." Because plaintiff's complaint failed to state
a claim, the court likewise found it could be dismissed prior to obtaining
discovery. The court dismissed the civil conspiracy count against Rafferty in
the second amended complaint, for similar reasons, finding plaintiff had
not sufficiently pled the requisite underlying act to hold
Rafferty liable . . . . In order for [Rafferty] to be held
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56
liable for civil conspiracy there must be an underlying
unlawful act.
. . . [P]laintiff's claims have been withdrawn or
dismissed . . . and as a result there is no predicate act
and no underlying activity that can form the basis for
the civil conspiracy.
The trial court did not err. Plaintiff's complaint alleged "[d]efendants
entered into a real agreement" to "perpetrate a tort against [him]" and
"[d]efendants . . . acted together and in concert to deprive [him of] his civil
rights." However, plaintiff failed to plead any facts identifying the nature of the
agreement between defendants giving rise to a conspiracy, when the conspiracy
occurred, or how it was accomplished. "Complaints cannot survive a motion to
dismiss where the claims are conclusory or vague and unsupported by particular
overt acts." Delbridge v. Off. of Pub. Def., 238 N.J. Super. 288, 314 (Law Div.
1989), aff'd o.b. sub nom., A.D. v. Franco, 297 N.J. Super. 1 (App. Div. 1993),
certif. denied, 135 N.J. 467, cert. denied, 513 U.S. 832 (1994).
Because plaintiff failed to establish defendants violated any of his
substantive rights under the NJCRA or FCRA, there was no underlying wrong
to support the civil conspiracy claim. Furthermore, as we noted, immunity and
the litigation privilege applied to the respective defendants, which also
prevented a finding of an underlying wrong. As with the IIED claim, dismissal
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57
did not have to await the completion of discovery where plaintiff failed to
sufficiently plead facts showing a civil conspiracy.
VI.
In point VIII, plaintiff challenges the trial court's dismissal of his
defamation claim against Kuberiet and Carey. He argues he pled viable
defamation claims and was entitled to discovery prior to dismissal of the claims.
He asserts discovery was necessary to determine whether the MCPO defendants
were entitled to "qualified privilege . . . and even then, whether a defendant
abused that privilege is an issue reserved for the jury."
"A defamatory statement is one that is false and 'injurious to the reputation
of another' or exposes another person to 'hatred, contempt or ridicule' or subjects
another person to 'a loss of the good will and confidence' in which he or she is
held by others." Romaine v. Kallinger, 109 N.J. 282, 289 (1988) (quoting Leers
v. Green, 24 N.J. 239, 251 (1957)). See also Salzano v. N. Jersey Media Grp.,
Inc., 201 N.J. 500, 512 (2010) ("A defamatory statement is one that is false and
harms the reputation of another such that it lowers the defamed person in the
estimation of the community or deters third parties from dealing with that
person."). "The law of defamation is rooted in the notion that individuals should
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58
be free to enjoy their reputations unimpaired by false and defamatory attacks."
Salzano, 201 N.J. at 505.
The elements of a cause of action for defamation are: (1) defendant "made
a false and defamatory statement concerning" plaintiff; (2) "the statement was
communicated to another person (and not privileged);" and (3) defendant "acted
negligently or with actual malice." G.D. v. Kenny, 205 N.J. 275, 292-93 (2011).
"[T]he actual naming of plaintiff is not a necessary element in an action for libel.
It is enough that there is such reference to him that those who read or hear the
libel reasonably understand the plaintiff to be the person intended." Dijkstra v.
Westerink, 168 N.J. Super. 128, 133 (App. Div. 1979).
"In the case of a complaint charging defamation, plaintiff must plead facts
sufficient to identify the defamatory words, their utterer and the fact of their
publication. A vague conclusory allegation is not enough." Zoneraich v.
Overlook Hosp., 212 N.J. Super. 83, 101 (App. Div. 1986). Truth "is an absolute
defense to a claim of defamation." G.D. v. Kenny, 411 N.J. Super. 176, 187
(App. Div. 2009).
"The threshold issue in any defamation case is whether the statement at
issue is reasonably susceptible of a defamatory meaning," which is a question
of law "to be decided first by the court." Romaine, 109 N.J. at 290. "In making
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59
this determination, the court must evaluate the language in question 'according
to the fair and natural meaning which will be given it by reasonable persons of
ordinary intelligence.'" Ibid. (quoting Herrmann v. Newark Morning Ledger
Co., 48 N.J. Super. 420, 431 (App. Div.), aff'd on rehearing, 49 N.J. Super. 551
(App. Div. 1958)). "If a published statement is susceptible of one meaning only,
and that meaning is defamatory, the statement is libelous as a matter of law."
Ibid. "Conversely, if the statement is susceptible of only a non-defamatory
meaning, it cannot be considered libelous, justifying dismissal of the action."
Ibid.
In dismissing without prejudice the defamation claims in the first amended
complaint, the trial court stated:
Here, plaintiff contends that, "On or about
August 31[], 2015[,] defendants defamed plaintiff by
publishing written statements about plaintiff and his
case with malice and forethought that were either false,
reckless or misleading."
And, "On or about October of 2014 and thereafter
defendants defamed plaintiff by uttering and/or
publishing statements about plaintiff in this case with
malice of forethought that were either false, reckless or
misleading."
....
. . . [T]he Court is satisfied that blanket
allegations that defendants spoke and published
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60
defamatory statements about the plaintiff failed to
identify any such statements or provide the context for
such statements, and how if at all they defamed the
plaintiff's character.
Without properly identifying a slanderous or
libelous statement the plaintiff is unable to sustain a
claim for liable and slander.
Moreover, the attempt to distinguish between
public and private defamation is essentially meritless,
as plaintiff has failed to properly identify the libelous
writings or slanderous statements made by the
defendants, or even if any of the statements actually
identified him by name.
....
Additionally[,] plaintiff claims . . . that the
[MCPO] defendants issued a defamatory press release
about the case in that it misled the public into thinking
criminal restraint, of which plaintiff was found not
guilty, was a sexually based crime.
What plaintiff fails to acknowledge, however, is
that, "[While] criminal restraint does not in and of itself
contain a sexual element, [it] is included under Megan's
Law definition of sex offenses when committed against
minors." See N.J.S.A. 2C:7-2.
....
Moreover, while it may not be expressly required
that the defendants specifically name the plaintiff, the
[court] finds it important to note there's no allegation
that any of the defendants ever released plaintiff's name
to the public.
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61
Therefore, because the claim lacks any
allegations defendants specifically published any
written or oral statements that were libelous or
slanderous the libel and slander claims are dismissed
without prejudice.
When the court dismissed the defamation claims in the second amended
complaint, it stated:
Here, the [c]ourt again finds no viable cause of
action for defamation against the [MCPO] defendants
by application of the law of the case doctrine . . . .
....
While plaintiff is correct in contending the
application of the law of the case doctrine is
discretionary, the [c]ourt finds this application is
necessary here. A claim for defamation against the
[MCPO] defendants centers on the August 31 press
release. A review of the first and second amended
complaints show the claim is based on the same set of
operative facts. Plaintiff offers no additional facts in
support of the claim and the [c]ourt has already
determined that the defamation claims based on the
press release are barred.
Further, a review of the press release fails to
show any specific reference to the plaintiff by name and
the [c]ourt cannot agree the statements made constitute
defamation per se.
On appeal, plaintiff identifies seven statements from the news release he
claims are defamatory. We enumerate them as follows: (1) "[S]ix of seven
teenagers [were] charged with sexually assaulting and/or abusing four other
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62
teammates at [SHS;]" (2) "As was previously disclosed, the [MCPO] determined
that the defendants would not be tried as adults and that the Middlesex County
Family Court remains the proper venue for these cases[;]" (3) "The facts that
were alleged by the [MCPO] at the beginning of the case have clearly been
proven in a court of law[;]" (4) MCPO "did not pursue imposition of mandatory
sex offender registration required under Megan's law[;]" (5) "The other juvenile
tried in Family Court was found delinquent on a disorderly persons simple
assault charge, and a petty disorderly persons count of engaging in disorderly
conduct for his role in the hazing and sexual conduct[;]" (6) "[T]he investigation
determined they each played roles in the attacks upon their fellow teammates in
four separate incidents at the high school[;]" and (7) "One defendant held the
victim, while at least two of the defendants grabbed his penis and attempted to
digitally penetrate his anus. Two to five other students, who could not be
identified by the victim, surrounded him during the sexual assault."
We address these statements in turn. Statement 1 was not defamatory
because it was not false; plaintiff was charged with, among other things,
conspiracy to commit aggravated criminal sexual conduct, criminal sexual
contact, aggravated assault, hazing, riot, and criminal restraint. The news
release's usage of the phrase "sexual assault" was not defamatory because "[t]he
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63
law of defamation overlooks minor inaccuracies, focusing instead on 'substantial
truth.'" G.D., 205 N.J. at 294 (quoting Masson v. New Yorker Mag., Inc., 501
U.S. 496, 516 (1991)). "Minor inaccuracies do not amount to falsity so long as
the substance, the gist, the sting, of the libelous charge be justified." Ibid.
(internal quotation marks omitted) (quoting Masson, 501 U.S. at 517).
Furthermore, the statement referred to other defendants and could not
reasonably be construed to suggest plaintiff was involved in all four incidents
referenced in the release. Indeed, the release made clear the juveniles who were
tried, including plaintiff, were involved in only one of the referenced incidents.
Plaintiff claims statement 2 is defamatory because he was never subject
to waiver to adult criminal court. Whether plaintiff was subject to waiver was
a minor inaccuracy and did not constitute defamation. Moreover, the balance of
the statement was true because the Middlesex County Family Court was the
proper venue for the case.
Plaintiff claims statement 3 was false and therefore defamatory because
the MCPO never proved its case against him as he was acquitted of the original
charges and only adjudicated delinquent on lesser included offenses. However,
the statement does not claim all the charges filed against all the juveniles were
proven, but rather the facts alleged were proven. The statement was not false
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64
because it was supported by the guilty pleas and the delinquency adjudications
of the various juvenile defendants. The news release's reference to the "other
juvenile" who went to trial, namely, plaintiff, clearly stated he was found
delinquent on a disorderly persons simple assault charge and a petty disorderly
persons count of engaging in disorderly conduct. Therefore, the statement was
neither false nor constituted defamation.
Plaintiff contends statement 4 is "knowingly, willfully and maliciously
false" because he was never eligible for registration as a sex offender. However,
plaintiff's argument ignores the entirety of the statement, which read as follows:
"As part of the plea agreements, the [MCPO] did not pursue the imposition of
mandatory sex offender registration required under Megan's Law." (Emphasis
added). This statement is true. Moreover, the statement does not refer to
plaintiff and is inapplicable to him because he did not enter a guilty plea.
Plaintiff claims statement 5 is defamatory because he was acquitted of
hazing and the charges related to sexual conduct. This statement is not false
because he was adjudicated delinquent of the disorderly persons offenses of
simple assault and disorderly conduct for his role in the locker room incident.
His acquittal of the hazing and sexual conduct did not negate his involvement in
the incident.
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65
Plaintiff contends statement 6 is false because he "did not play a role in
four separate incidents" and "did not attack any of his fellow teammates."
However, plaintiff reads the statement out of context. Read in its entirety,
statement 6 states: "The seven juvenile defendants were taken into custody in
October 2014, after the investigation determined they each played roles in the
attacks upon their fellow teammates in four separate incidents at the high school
between September 19, 2014 and September 30, 2014." A thorough reading of
the statement shows it intended to convey each juvenile played a role in several
incidents—not each juvenile was involved in every incident. Indeed, the release
discussed each of the four incidents separately and ascribed only one of the four
incidents to plaintiff. Contrary to plaintiff's contention, use of the word "attack"
was not defamatory and reasonably described the underlying incidents.
The trial court did not specifically address statement 7 in its decision.
Plaintiff contends this statement is "knowingly, willfully and maliciously false"
because neither he nor any of the other juvenile defendants "were ever charged
with grabbing the victim's penis," nor were they "ever found delinquent of
grabbing the victim's penis or attempting to digitally penetrate his anus ."
In context, the statement reads as follows:
The first incident occurred on September 19,
2014, when a [seventeen]-year-old juvenile defendant
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66
"body slammed" a [fifteen]-year-old victim to the floor
and pretended to stomp and kick the victim, exposing
him to bodily injury.
On September 26, 2014, the same [seventeen]-
year-old defendant, along with the two who were
adjudicated delinquent following the trial, and another
[sixteen]-year-old male who is awaiting trial, took part
in an attack of a [fourteen]-year-old boy.
The victim also was forcibly knocked to the floor.
One defendant held the victim while at least two of the
defendants grabbed his penis and attempted to digitally
penetrate his anus. Two to five other students, who
could not be identified by the victim, surrounded him
during the sexual assault.
None of the juveniles were charged, pled, or adjudicated with grabbing
the victim's penis or attempting to digitally penetrate his anus. However, as the
sole juvenile tried and adjudicated, the news release, without naming plaintiff,
identifies him as participating in grabbing the victim's genitals and attempting
to anally penetrate him. The news release made sufficient references to plaintiff
such that anyone who read or heard the statement could reasonably understand
the release referred to plaintiff. Dijkstra, 168 N.J. Super. at 133.
Therefore, this aspect of plaintiff's defamation claim was pled with
enough sufficiency to survive a motion to dismiss pursuant to Rule 4:6-2(e)
because statement 7 included accusations of serious criminal activity and sexual
misconduct, which plaintiff alleges did not occur and the MCPO defendants
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67
knew did not occur, yet asserted in the news release. For these reasons,
dismissal of this aspect of the defamation claim is reversed and remanded for
further proceedings. We hasten to add our decision should not be construed as
an opinion on the ultimate merits of plaintiff's claim.
VII.
Finally, in point IX plaintiff contends the court erred by transferring venue
from Middlesex to Monmouth Vicinage and denying his request for
reconsideration of the transfer decision. He asserts the trial court failed to find
an actual conflict of interest, and an appearance of impropriety is not a basis to
transfer venue under Rule 4:3-2(a). He argues the matter should not have been
transferred because the cause of action arose from, and all defendants are
located, in Middlesex County, and the court should have deferred to his choice
of venue.
Judges must avoid actual conflicts of interest as well as the appearance of
impropriety in order "to promote confidence in the integrity and impartiality of
the Judiciary." DeNike v. Cupo, 196 N.J. 502, 507 (2008). Rule 4:3-2 provides
venue "shall be laid in the county in which the cause of action arose, or in which
any party to the action resides at the time of its commencement, or in which the
summons was served on a nonresident defendant." Rule 4:3-3(a)(2) states the
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Assignment Judge may order a change of venue "if there is a substantial doubt
that a fair and impartial trial can be had in the county where venue is laid."
Decisions relating to a change in venue "will not be disturbed on appeal except
upon a showing of an abuse of discretion." State v. Harris, 282 N.J. Super. 409,
413 (1995) (citing State v. Marshall, 123 N.J. 1, 76 (1991)).
The March 28, 2017 order transferring venue to Monmouth County noted
it was made "having considered . . . [Rule] 4:3-3(a) and . . . [to] avoid all
appearances of any perceived conflict . . . ." On reconsideration, the Assignment
Judge explained he denied plaintiff's motion because the
Middlesex County Prosecutor's Office appears before
[Middlesex Vicinage] judges on a regular basis and in
the interest of eliminating any appearance of
impropriety, this [c]ourt felt it was necessary to transfer
venue from Middlesex County to a sister vicinage . . . .
....
. . . And if the judge is in . . . civil today, [they]
could be in criminal tomorrow. Again, it's those
appearances with which the [c]ourt is concerned.
We discern no error either in the initial decision to transfer venue or in the
denial of reconsideration. Plaintiff's argument lacks sufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(1)(E).
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Affirmed in part, and reversed and remanded in part. We do not retain
jurisdiction.
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