SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Robert Lavezzi v. State of New Jersey (A-29-13) (072856)
Argued March 31, 2014 -- Decided September 9, 2014
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court considers whether the State is obligated to defend and indemnify employees of a
county prosecutor’s office involved in a civil action arising from the loss of, and damage to, non-contraband items
seized in the course of a criminal investigation.
The Essex County Prosecutor’s Office (Prosecutor’s Office) executed a search warrant issued in connection
with a criminal investigation and seized items owned by plaintiffs Robert and Karen Lavezzi. The criminal
investigation was eventually abandoned and the State did not institute either criminal charges or a civil-forfeiture
action against plaintiffs. Plaintiffs claim that their property was lost and damaged while in the custody of the
Prosecutor’s Office. They filed a complaint alleging that the Prosecutor’s Office and three of its employees were
liable to them on theories of negligence, conversion, and unlawful taking. Defendants requested that the Attorney
General’s Office (Attorney General) defend and indemnify the action pursuant to N.J.S.A. 59:10-1 and N.J.S.A.
59:10A-1 of the New Jersey Tort Claims Act (TCA), and Wright v. State, 169 N.J. 422 (2001), under which the
employees of a county prosecutor’s office are entitled to defense and indemnification from the Attorney General
when they are sued on the basis of actions taken in the discharge of their law enforcement duties. The Attorney
General denied defendants’ requests, finding that the Prosecutor’s Office’s processing and safeguarding of
plaintiffs’ property were administrative acts not falling within the purview of Wright. The County appealed and the
Appellate Division affirmed, finding that the retention of plaintiffs’ property “long after any related law enforcement
activity” had concluded constituted an administrative function that did not implicate the Attorney General’s
obligation to defend and indemnify State employees. This Court granted certification. 216 N.J. 14 (2013).
HELD: Pursuant to the Wright standard, the State is obligated to defend and indemnify the Prosecutor’s Office
employees at this early stage of the litigation because, based on the limited record before the Court, this case arises
from the performance of their law enforcement duties.
1. A reviewing court “should not reverse the Attorney General’s determination unless it is arbitrary, capricious or
unreasonable or it is not supported by substantial credible evidence in the record as a whole.” Prado v. State, 186
N.J. 413, 427 (2006). An appellate court defers to an administrative agency’s findings of fact, but reviews its legal
conclusions de novo. Norfolk S. Ry. Co. v. Intermodal Props., LLC, 215 N.J. 142, 165 (2013). (pp. 10-11)
2. Under N.J.S.A. 59:10A-1 of the TCA, which is derived from vicarious liability principles, the Attorney General
must defend State employees in actions arising out of conduct performed in the scope of their employment, unless a
statutory exception listed in N.J.S.A. 59:10A-2 applies. Under N.J.S.A. 59:10-1 of the TCA, if “the Attorney
General provides for the defense of an employee or former employee, the State shall provide indemnification for the
State employee.” In this case, the Attorney General does not argue that its duty to defend and indemnify is
inapplicable because the action arises out of acts committed outside the scope of defendants’ employment for the
Prosecutor’s Office, or because a statutory exception applies. Instead, the Attorney General asserts that it is not
required to defend and indemnify defendants because, in performing the functions at issue in this case, they were not
acting as “state employees” for purposes of N.J.S.A. 59:10-1 and N.J.S.A. 59:10A-1. (pp. 11-14)
3. The Criminal Justice Act of 1970 provides that “[t]he criminal business of the State shall be prosecuted by the
Attorney General and the county prosecutors.” N.J.S.A. 2A:158-4. Moreover, the Attorney General is authorized to
supersede a “county prosecutor for the purpose of prosecuting all of the criminal business of the State in said
county,” and to appear on the State’s behalf “in any court or tribunal” in a criminal investigation or proceeding “as
shall be necessary for the protection of the rights and interests of the State.” N.J.S.A. 52:17B-106. This Court has
1
long recognized that employees of a county prosecutor’s office “possess a hybrid status.” Dunne v. Fireman’s Fund
Am. Ins. Co., 69 N.J. 244, 248 (1976). When “county prosecutors execute their sworn duties to enforce the law by
making use of all the tools lawfully available to them to combat crime, they act as agents of the State. On the other
hand, when county prosecutors are called upon to perform administrative tasks unrelated to their strictly
prosecutorial functions,” they act on behalf of the county. Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996),
cert. denied, 519 U.S. 1084 (1997). (pp. 15-16)
4. In Wright, the Court held that “[b]ecause law enforcement is a basic State function, and because county
prosecutors are uniquely subject at all times to the Attorney General’s statutory power to supervise and supersede
them,” the TCA imposes “vicarious liability on the State for the tortious actions of county prosecutorial employees
in the performance of their law enforcement duties.” 169 N.J. at 429-30. A county prosecutor’s employees,
however, are not State agents for purposes of defense and indemnification in cases arises out of their administrative
functions. In Coleman, for example, the Third Circuit concluded that because a county prosecutor acts as “a local,
county official” when making personnel decisions, the prosecutor and his employees were not entitled to State
defense and indemnification in an action arising from allegedly discriminatory promotion decisions. 87 F.3d at
1506. Similarly, in Courier News v. Hunterdon County Prosecutor’s Office, 378 N.J. Super. 539 (App. Div. 2005),
the Appellate Division held that the State did not have to pay a counsel fee award arising from a county prosecutor’s
office’s denial of an Open Public Records Act (OPRA) request for a copy of a 9-1-1 tape, finding that the liability
arose from the county prosecutor’s office’s administrative decision under OPRA. Id. at 542-53, 546-47. Thus,
although the State is required to assume the burden of defense and indemnification for liability arising from a county
prosecutor’s law enforcement functions, liability derived from a county prosecutor’s administrative functions is the
county’s responsibility. The test is whether the act or omission of the county prosecutor’s office and its employees
that gave rise to the potential liability derived from the prosecutor’s power to enforce the criminal law, and
constituted an exercise of that power. (pp. 16-21)
5. Turning to this case, plaintiffs’ items were seized by the Prosecutor’s Office when it executed a search warrant
during a criminal investigation. To the extent that plaintiffs’ items were lost or damaged when seized, the liability at
issue was clearly incurred during a law enforcement activity and therefore triggers the State’s defense and
indemnification obligations. After being seized, plaintiffs’ items were allegedly stored by the Prosecutor’s Office at
a location and under conditions that are not disclosed by the record. The retention of evidence during a criminal
investigation, like the seizure of that evidence, is a law enforcement activity that gives rise to the State’s obligation
to defend and indemnify a county prosecutor. The damage and loss alleged by plaintiffs may have occurred
following the conclusion of the criminal investigation, when the non-contraband items at issue were no longer
potential evidence, but had not been returned to plaintiffs. If so, the continued retention of plaintiffs’ property,
either intentionally or by oversight, derives from and directly relates to the law enforcement function that the
Prosecutor’s Office fulfilled when it seized and retained the evidence, and thus also implicates the State’s duty to
defend and indemnify. Therefore, the State is obligated to defend and indemnify defendants pursuant to Wright and
N.J.S.A. 59:10-1 and N.J.S.A. 59:10A-1 of the TCA, and the Attorney General’s administrative decision holding
otherwise was “arbitrary, capricious or unreasonable.” (pp. 21-23).
6. If a more complete record at a later stage of this case reveals that plaintiffs’ property was stored in a facility at the
direction of the County, and that the loss or damage to plaintiffs’ property resulted from the condition or
maintenance of that facility, the State may pursue a claim against the County for reimbursement of all or part of its
costs incurred in the defense and indemnification of the Prosecutor’s Office employees. (pp. 23-24)
The judgment of the Appellate Division is REVERSED, and the case is REMANDED to the trial court for
further proceedings in accordance with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and FERNANDEZ-VINA; and
JUDGES CUFF and RODRÍGUEZ (both temporarily assigned) join in JUSTICE PATTERSON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-29 September Term 2013
072856
ROBERT LAVEZZI and KAREN
LAVEZZI,
Plaintiffs,
v.
STATE OF NEW JERSEY,
Defendant-Respondent,
and
CAROLYN A. MURRAY, ACTING
PROSECUTOR OF ESSEX COUNTY;
ESSEX COUNTY PROSECUTOR’S
OFFICE; PATRICK TODD,
INVESTIGATOR FOR THE ESSEX
COUNTY PROSECUTOR’S OFFICE
AND INDIVIDUALLY; JAMES
CONTRERAS, INVESTIGATOR FOR
THE ESSEX COUNTY PROSECUTOR’S
OFFICE AND INDIVIDUALLY,
Defendants,
and
ESSEX COUNTY,
Defendant-Appellant.
Argued March 31, 2014 – Decided September 9, 2014
On certification to the Superior Court,
Appellate Division.
Alan R. Ruddy, Assistant County Counsel,
argued the cause for appellant (James R.
Paganelli, Essex County Counsel, attorney).
1
Lisa A. Puglisi, Assistant Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney; Brian P. Wilson, Deputy
Attorney General, on the letter brief).
JUSTICE PATTERSON delivered the opinion of the Court.
In this case, the Court determines whether the State is
obligated to defend and indemnify employees of a county
prosecutor’s office involved in a civil action arising from the
loss of, and damage to, non-contraband items seized in the
course of a criminal investigation.
The items at the center of this case were the property of
plaintiffs Robert and Karen Lavezzi. They were seized from
plaintiffs’ home after the Essex County Prosecutor’s Office
(Prosecutor’s Office) executed a search warrant issued in
connection with an investigation of plaintiff Robert Lavezzi.
That investigation was eventually abandoned. The State did not
institute either criminal charges or a civil-forfeiture action
against either plaintiff.
Plaintiffs claim that, while their property was in the
custody of the Prosecutor’s Office, some of it was damaged and
some was lost entirely. They filed a complaint in the Law
Division, alleging that the Prosecutor’s Office and three of its
employees were liable to them on theories of negligence,
conversion, and unlawful taking. Essex County (County)
requested that the Attorney General’s Office (Attorney General)
2
defend and indemnify defendants, pursuant to this Court’s
decision in Wright v. State, 169 N.J. 422 (2001). The Attorney
General denied the County’s request for defense and
indemnification, and the Appellate Division affirmed the
Attorney General’s determination.
Based on the sparse record before the Court, which does not
reveal the purpose of the investigation, the date upon which the
investigation was terminated, or the manner in which the seized
items were allegedly damaged and/or lost, we reverse the
Appellate Division’s determination. We apply the governing
standard stated by this Court in Wright, under which the
employees of a county prosecutor’s office are entitled to
defense and indemnification when they are “sued on the basis of
actions taken in the discharge of their law enforcement duties.”
Id. at 456. The articles disputed in this case were seized in
the course of a criminal investigation, part of the State’s
“criminal business” for which the State and county prosecutors
are responsible pursuant to N.J.S.A. 2A:158-4. The limited
record before the Court indicates that this case arises from the
employees’ performance of law enforcement duties, rather than
administrative functions that are the exclusive responsibility
of the County.
Accordingly, we hold that at this early stage of the
litigation, the State shall defend and indemnify the employees
3
of the Prosecutor’s Office named as defendants. The State’s
defense and indemnification of the Prosecutor’s Office employees
shall be subject to a reservation: if it is revealed at a later
stage of this case that plaintiffs’ property was stored in a
facility controlled by the County and that the loss or damage to
plaintiffs’ property resulted from that facility’s condition or
maintenance, the State may seek reimbursement of all or part of
the costs incurred in its defense and indemnification of the
Prosecutor’s Office employees.
I.
The record in this case, consisting of the complaint filed
by plaintiffs and the parties’ briefs, reveals the following
factual background.
On or about December 29, 2005, the Prosecutor’s Office
executed a warrant authorizing a search of plaintiffs’ home in
connection with a criminal investigation of plaintiff Robert
Lavezzi. The details of this investigation are not disclosed in
the record. Plaintiffs allege that the Prosecutor’s Office
seized numerous items, including “collectible and model trains,
train parts and other personal possessions and items belonging
to [p]laintiffs.” They claim that these items were transported
to facilities “owned and/or under the exercise and control of”
the State, the County, former County Prosecutor Paula Dow, the
4
Prosecutor’s Office and two investigators employed by the
Prosecutor’s Office, Patrick Todd and James Contreras.
On a date that is not specified in the record, but is
alleged by plaintiffs to have been on or before April 14, 2009,
the Prosecutor’s Office elected not to prosecute plaintiff
Robert Lavezzi. There is no indication in the record that a
civil forfeiture action under N.J.S.A. 2C:64-1 to -9 was ever
instituted with respect to the disputed property.
Plaintiffs allege that although the Prosecutor’s Office
stated that the items seized during the December 29, 2005 search
would be restored to them, their repeated requests for their
property were ignored, and the items were not returned.
According to plaintiffs, the Prosecutor’s Office met with
plaintiff Robert Lavezzi on or about October 9, 2009, and
January 5, 2010, and returned “some of the items and personal
property” that had been seized during the search of the home.
Plaintiffs assert, however, that “[a] substantial number of
personal possessions and items . . . including but not limited
to collectibles and model trains . . . were not returned.”
Plaintiffs also contend that many of the items were “damaged or
crushed” and that some items sustained water damage to either
the item itself or to its packaging. According to plaintiffs,
the water damage occurred as a result of defendants storing them
in facilities “subject to leaks or . . . located in a flood
5
zone,” including a storage space provided by the County to the
Prosecutor’s Office.
Plaintiffs filed a complaint in the Law Division, naming as
defendants the Prosecutor’s Office, former County Prosecutor
Dow, Investigators Todd and Contreras, and unidentified “John
Doe” defendants. In their complaint, plaintiffs sought
compensatory and punitive damages and attorneys’ fees based on
theories of negligence, gross negligence, conversion, and
unlawful taking. The complaint was served upon defendants with
a summons.
By letter dated November 15, 2011, the County forwarded a
copy of the summons and complaint to the Attorney General.
Citing Wright, the County requested “that the Attorney General’s
Office represent[] the Essex County Prosecutor’s Office and any
and all individual defendants/employees named” in the complaint.
Acting Essex County Prosecutor Carolyn Murray and defendants
Todd and Contreras separately wrote to the Attorney General,
requesting “representation and indemnification on behalf of the
Essex County Prosecutor’s Office” pursuant to N.J.S.A. 59:10-1,
N.J.S.A. 59:10A-1, and Wright. Each stated that plaintiffs’
action had been filed against him or her in his or her “capacity
as a law enforcement official in the Essex County Prosecutor’s
Office.”
6
While defendants’ requests for defense and indemnification
by the State were pending, the County filed a motion to dismiss
the complaint. The trial court dismissed the complaint with
prejudice. However, the trial court subsequently granted
plaintiffs’ motion for reconsideration, modifying its order so
that the motion to dismiss was denied without prejudice. As
part of its order, the court permitted plaintiffs to amend the
complaint to name the State as a defendant. Plaintiffs filed
and served an amended complaint, asserting a claim against the
State based on “principles of vicarious liability/respondeat
superior” and this Court’s decision in Wright.
On August 3, 2012, the Attorney General’s Office issued an
administrative determination responding to the requests for
defense and indemnification submitted by the County and the
Prosecutor’s Office employees. The Attorney General declined
representation, asserting that “the facts at issue . . . [did]
not fall within the purview contemplated” by this Court in
Wright. The Attorney General found that the Prosecutor’s Office
assumed “administrative responsibility to safeguard the
plaintiffs’ property,” and that its “decision not to pursue a
civil forfeiture action” against plaintiff Robert Lavezzi and
its failure to return all of the items seized from plaintiffs,
were “administrative acts, not law enforcement functions.”
Deeming the Prosecutor’s Office’s assumption of a custodial role
7
in the context of a criminal investigation to be “of no moment,”
the Attorney General’s Office stated that
[t]he State’s obligation to provide defense
and indemnification to county prosecutor
employees arises only when the alleged
tortious conduct occurs in the scope of
their employment either during the arrest,
investigation or prosecution of a criminal
matter. The State is not . . . obligated to
provide defense/indemnification to the . . .
Prosecutor’s Office and its employees
because they reached the decision not to
initiate a civil forfeiture action and chose
to return plaintiffs’ property, some of
which was in a damaged condition. . . .
Civil forfeiture does not fall within the
“criminal business” of the . . .
Prosecutor’s Office.
The Attorney General added that “the processing of seized
property is more of an administrative, rather than law-
enforcement function.”
The County appealed the Attorney General’s administrative
determination to the Appellate Division, which affirmed that
decision. The Appellate Division imposed on the County the
burden of proving that the Attorney General had abused his
discretion, and held that the County had failed to demonstrate
that plaintiffs’ property was held in connection with a law
enforcement activity rather than an administrative function.
The panel declined to “adopt the broad principle that the
storage and safeguarding of evidence is invariably an
administrative function.” Instead, it elected to decide the
8
case more narrowly, holding that the retention of plaintiffs’
property “long after any related law enforcement activity” had
concluded constituted an administrative function that did not
implicate the Attorney General’s obligation to defend and
indemnify State employees.
We granted certification. 216 N.J. 14 (2013).
II.
The County challenges the Attorney General’s administrative
determination on the ground that the claims in this matter
derive from the County Prosecutor’s law enforcement functions,
over which the Attorney General exercises supervisory authority.
The County concedes that there is no authority directly
addressing the issue raised by this case. It argues, however,
that case law supports the principle that the collection and
retention of evidence prior to a criminal trial relates to law
enforcement and is generally considered a prosecutorial
function. Noting the absence of an evidentiary showing that the
damaged and lost items were stored in a County facility, the
County argues that this case is much more closely aligned with
the Attorney General’s law enforcement authority than with the
County Prosecutor’s administrative functions.
The State counters that the Attorney General correctly
determined that when the Prosecutor’s Office stored the items at
issue in this case, it acted in an administrative capacity. It
9
asserts that there is an important distinction between the
marshaling of evidence, which is a law enforcement function, and
its storage, which is inherently administrative. The State
characterizes plaintiffs’ claim as being premised upon the
equitable doctrine of replevin, which is grounded in civil law,
and notes that plaintiffs do not challenge the manner in which
the Prosecutor’s Office fulfilled its law enforcement function.
III.
We review the Attorney General’s administrative
determination in accordance with a deferential standard of
review. An appellate court affords a “strong presumption of
reasonableness” to an administrative agency’s exercise of its
statutorily delegated responsibilities. City of Newark v.
Natural Res. Council, Dep’t of Envtl. Prot., 82 N.J. 530, 539,
cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245
(1980). The reviewing court “should not reverse the Attorney
General’s determination unless it is arbitrary, capricious or
unreasonable or it is not supported by substantial credible
evidence in the record as a whole.” Prado v. State, 186 N.J.
413, 427 (2006) (internal quotation marks omitted). “The burden
of demonstrating that the agency’s action was arbitrary,
capricious or unreasonable rests upon the [party] challenging
the administrative action.” In re J.S., 431 N.J. Super. 321,
10
329 (App. Div.) (internal quotation marks omitted), certif.
denied, 216 N.J. 365 (2013).
To determine whether an agency decision “is arbitrary,
capricious or unreasonable,” an appellate court must determine
“(1) whether the agency’s action violates
express or implied legislative policies,
that is, did the agency follow the law; (2)
whether the record contains substantial
evidence to support the findings on which
the agency based its action; and (3) whether
in applying the legislative policies to the
facts, the agency clearly erred in reaching
a conclusion that could not reasonably have
been made on a showing of the relevant
factors.”
[In re Stallworth, 208 N.J. 182, 194 (2011)
(quoting In re Carter, 191 N.J. 474, 482-83
(2007)).]
Although an appellate court defers to an administrative
agency’s findings of fact, see Mazza v. Bd. of Trs., Police &
Firemen’s Ret. Sys., 143 N.J. 22, 29 (1995), it is not “bound by
[an] agency’s interpretation of a statute or its determination
of a strictly legal issue,” Norfolk S. Ry. Co. v. Intermodal
Props., LLC, 215 N.J. 142, 165 (2013) (internal quotation marks
omitted). Thus, to the extent that the Attorney General’s
determination constitutes a legal conclusion, we review it de
novo.
The dispute in this case arises from the State’s general
obligation under the New Jersey Tort Claims Act (TCA), N.J.S.A.
59:1-1 to 12-3, subject to statutory exceptions, to defend and
11
indemnify State employees if the underlying action derives from
the employee’s acts or omissions in the scope of his or her
employment. The TCA was enacted “to supersede the patchwork of
statutory provisions providing for the defense and
indemnification of state employees.” Chasin v. Montclair State
Univ., 159 N.J. 418, 425 (1999). The TCA provides that “[a]
public entity is liable for injury proximately caused by an act
or omission of a public employee within the scope of his
employment.” N.J.S.A. 59:2-2(a).
In enacting the TCA, the Legislature adopted this Court’s
holding in McAndrew v. Mularchuk that employer liability
“follows tortious wrongdoing and . . . employers or principals,
individual or corporate, are responsible for that wrongdoing
when committed by agents and employees acting within the scope
of the employment.” 33 N.J. 172, 190 (1960); see Comment to
N.J.S.A. 59:2-2. Thus, the TCA’s provisions authorizing the
imposition of liability upon the State for the acts and
omissions of employees is derived from established principles of
vicarious liability. See Wright, supra, 169 N.J. at 451.
In that setting, N.J.S.A. 59:10A-1 provides that
the Attorney General shall, upon a request
of an employee or former employee of the
State, provide for the defense of any action
brought against such State employee or
former State employee on account of an act
or omission in the scope of his employment.
12
Notwithstanding that general obligation, the Attorney
General need not defend a State employee if one or more of the
following exceptions applies:
a. the act or omission was not within the
scope of employment; or
b. the act or the failure to act was because
of actual fraud, willful misconduct or
actual malice; or
c. the defense of the action or proceeding
by the Attorney General would create a
conflict of interest between the State and
the employee or former employee.
[N.J.S.A. 59:10A-2.]
As this Court has held, “the Attorney General must provide
a defense to a state employee who requests representation
pursuant to N.J.S.A. 59:10A-1 unless the Attorney General
determines that it is more probable than not that one of the
three [statutory] exceptions . . . applies.” Prado, supra, 186
N.J. at 427; see also Wright, supra, 169 N.J. at 444 (holding
that “the Attorney General must defend a State employee for
actions committed in the scope of employment as long as one of
the . . . exceptions does not apply”).
In addition to the duty to defend, the TCA imposes on the
State a corresponding duty “to indemnify employees for whom a
defense is provided.” Chasin, supra, 159 N.J. at 426; see
N.J.S.A. 59:10-1. Pursuant to the TCA, if “the Attorney General
provides for the defense of an employee or former employee, the
State shall provide indemnification for the State employee.”
13
N.J.S.A. 59:10-1. Indemnification for punitive or exemplary
damages is permitted if, in the Attorney General’s opinion, the
employee’s acts “upon which the damages are based did not
constitute actual fraud, actual malice, willful misconduct, or
an intentional wrong.” N.J.S.A. 59:10-1.1 Thus, the issues of
whether a State employee is entitled to a legal defense, and
whether he or she may be indemnified in the event that a
plaintiff obtains a judgment, are closely intertwined.
In this case, the Attorney General does not dispute the
County’s contention that the acts and omissions by employees of
the Prosecutor’s Office, named by plaintiffs in their civil
action, were committed within the scope of their employment.
Nor does the Attorney General contend that any of the three
exceptions set forth in N.J.S.A. 59:10A-2 apply. Instead, the
question of defense and indemnification turns on whether the
Prosecutor’s Office employees, in performing the functions at
issue in this case, acted as state employees for purposes of
N.J.S.A. 59:10-1 and N.J.S.A. 59:10A-1. See Comment to N.J.S.A.
59:10-4 (stating “that the indemnity provided by the State
1
In contrast to its mandate that State employees be indemnified
under certain conditions, the TCA “‘provides only permissive
[indemnification] authority for local jurisdictions, such as
counties.’” Wright, supra, 169 N.J. at 445 (quoting Michaels v.
State, 968 F. Supp. 230, 236 (D.N.J. 1997), aff’d, 150 F.3d 257
(3d Cir. 1998)).
14
should only be for and to those persons generally considered
employees of the State”).
Employees of county prosecutors serve State functions in
the criminal justice system. The Criminal Justice Act of 1970
provides that “[t]he criminal business of the State shall be
prosecuted by the Attorney General and the county prosecutors.”
N.J.S.A. 2A:158-4. Moreover, the Attorney General is authorized
to supersede a “county prosecutor for the purpose of prosecuting
all of the criminal business of the State in said county,” and
to appear on the State’s behalf “in any court or tribunal” in a
criminal investigation or proceeding “as shall be necessary for
the protection of the rights and interests of the State.”
N.J.S.A. 52:17B-106.
As this Court has long recognized, the employees of a
county prosecutor’s office “possess a hybrid status.” Dunne v.
Fireman’s Fund Am. Ins. Co., 69 N.J. 244, 248 (1976); see also
Cashen v. Spann, 66 N.J. 541, 552 (finding “it appropriate to
regard the defendant officials as State agents where the alleged
tortious conduct arose out of the investigation of criminal
activity, but . . . express[ing] no opinion on the question of
whether the prosecutor or his detectives can be considered State
or county employees for other purposes”), cert. denied, 423 U.S.
829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975); Twp. of Edison v.
Hyland, 156 N.J. Super. 137, 141 (App. Div. 1978) (stating that
15
“[a]lthough a prosecutor and prosecutor’s detectives may be
considered as agents of the State for some purposes, they are
not employees of the State for certain administrative and
remunerative purposes”) (internal citation omitted). The Third
Circuit has noted that the “dual or hybrid” role of county
prosecutors in New Jersey imposes responsibilities on both the
State and the county that the prosecutor serves:
It is well established that when county
prosecutors execute their sworn duties to
enforce the law by making use of all the
tools lawfully available to them to combat
crime, they act as agents of the State. On
the other hand, when county prosecutors are
called upon to perform administrative tasks
unrelated to their strictly prosecutorial
functions, such as a decision whether to
promote an investigator, the county
prosecutor in effect acts on behalf of the
county that is the situs of his or her
office.
[Coleman v. Kaye, 87 F.3d 1491, 1499 (3d
Cir. 1996), cert. denied, 519 U.S. 1084, 117
S. Ct. 754, 136 L. Ed. 2d 691 (1997).]
The dual role of a county prosecutor in criminal justice
activities provided the backdrop for this Court’s opinion in
Wright, supra, 169 N.J. 422. There, the Court considered
whether county prosecutors and their subordinates constituted
state employees under the TCA for purposes of a civil action
arising from the employees’ alleged misconduct in the arrest and
prosecution of an individual suspected of operating a drug
distribution network. Id. at 429-30. The individual alleged
16
that he was wrongfully arrested and prosecuted, beaten, coerced
and subjected to an unlawful search while in custody. Id. at
430-31. The Court held that when county prosecutors investigate
criminal activity and enforce the law, “they are discharging a
State responsibility that the Legislature has delegated to the
county prosecutors” in N.J.S.A. 2A:158-4, “subject to the
Attorney General’s [authority] to supersede” pursuant to
N.J.S.A. 52:17B-106. Id. at 451-52. It further noted that in
contrast to county participation in public education, “the
county prosecutor’s law enforcement function is unsupervised by
county government or any other agency of local government.” Id.
at 452. The Court held that
[b]ecause law enforcement is a basic State
function, and because county prosecutors are
uniquely subject at all times to the
Attorney General’s statutory power to
supervise and supersede them, we are
persuaded that it is appropriate and
consonant with legislative intent to
construe the vicarious liability provisions
of the TCA as imposing vicarious liability
on the State for the tortious actions of
county prosecutorial employees in the
performance of their law enforcement duties.
[Ibid.]
Accordingly, the Court ruled “that the State [could] be
held vicariously liable for the tortious actions of [the]
prosecutors and their subordinates performed during the
investigation, arrest, and prosecution of” the plaintiff. Id.
17
at 453; see also Cashen, supra, 66 N.J. at 544, 552 (holding
that county prosecutor and detectives were “agents of the State
and not the county” for purposes of civil action arising from
search warrant that was allegedly obtained with erroneous
information).
In contrast to cases in which the potential liability
clearly arose from a law enforcement activity, courts have held
that a county prosecutor’s employees are not State agents for
purposes of defense and indemnification when the underlying
action addresses the administrative functions of a county
prosecutor’s office. In Coleman, supra, the Third Circuit
concluded that a county prosecutor is acting as “a local, county
official” when he or she makes personnel decisions regarding
employees of his or her office, and that the prosecutor and his
subordinates were therefore not entitled to State defense and
indemnification in an action arising from allegedly
discriminatory promotion decisions. 87 F.3d at 1506. The court
declined to hold the State responsible for defense or indemnity
arising from civil litigation that did not originate from a law
enforcement activity of the defendant prosecutor. Ibid.; see
also DeLisa v. Cnty. of Bergen, 326 N.J. Super. 32, 35, 40-41
(App. Div. 1999) (holding that county prosecutor was not
entitled to defense and indemnification in case filed by
plaintiff alleging retaliatory discharge under Conscientious
18
Employee Protection Act, N.J.S.A. 34:19-1 to -8, because
plaintiff’s discharge “was based upon a personnel decision of
the Acting County Prosecutor,” and was therefore “administrative
conduct”), rev’d on other grounds, 165 N.J. 140 (2000).2
The Appellate Division reached a similar conclusion in
Courier News v. Hunterdon County Prosecutor’s Office, 378 N.J.
Super. 539 (App. Div. 2005). There, a newspaper’s requests
under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -
13, for a copy of a 9-1-1 tape were denied by a county
prosecutor’s office. Id. at 542. The newspaper then filed an
action in lieu of prerogative writs. Ibid. After its OPRA
claim was upheld on appeal, the newspaper sought reimbursement
for its counsel fees, which raised the issue of whether the
State or the county would be responsible for paying any fees
awarded. Id. at 542-43. The Appellate Division held that
notwithstanding the fact that the disputed 9-1-1 tape related to
law enforcement, the conduct by the prosecutor’s office that
2
In deciding a question of immunity from claims asserted under
42 U.S.C.A. §1983 -- rather than the issue of defense and
indemnification -- the United States Supreme Court also has
differentiated between administrative duties that are “directly
connected with the conduct of a trial,” which trigger immunity,
and “administrative duties concerning, for example, workplace
hiring, payroll administration, the maintenance of physical
facilities, and the like,” which do not. Van de Kamp v.
Goldstein, 555 U.S. 335, 338, 344, 129 S. Ct. 855, 858, 862, 172
L. Ed. 2d 706, 711, 714-15 (2009).
19
prompted the litigation was the refusal to produce the tape,
which was not a law enforcement function:
Here, it is undisputed that the
[prosecutor’s office] was the custodian of
the 9-1-1 tape. The [prosecutor’s office]
assumed administrative responsibility to
safeguard this audio record the minute it
took custody of it. The fact that the
[prosecutor’s office] assumed this custodial
role in connection with a then-active
criminal investigation is of no moment. Its
liability to plaintiff, in the form of
counsel fees, flows exclusively from the
provisions of OPRA, not from its
constitutional status as a law enforcement
agency.
[Id. at 546 (internal citation omitted).]
Consequently, the panel concluded that Wright had “nothing to do
with the question before [the court].” Id. at 545. It declined
to shift the burden of paying the counsel fee award to the
State. Id. at 547.
Thus, both State and federal authority differentiate
between liability arising from county prosecutor’s law
enforcement functions, for which the State is generally required
to assume the burden of defense and indemnification, and
liability derived from the prosecutor’s administrative
functions, which is deemed to be the county’s responsibility.
Pursuant to the limited authority that addresses this issue, the
question is not whether the underlying liability has any nexus
to law enforcement; a personnel or organizational decision is
20
deemed administrative even if it affects the manner in which the
prosecutor’s office administers its law enforcement
responsibilities. Instead, the test is whether the act or
omission of the county prosecutor’s office and its employees
that gave rise to the potential liability derived from the
prosecutor’s power to enforce the criminal law, and constituted
an exercise of that power. See Wright, supra, 169 N.J. at 454
(focusing “on whether the function that the county prosecutors
and their subordinates were performing during the alleged
wrongdoing [was] a function that traditionally has been
understood to be a State function and subject to State
supervision in its execution”).
In that setting, we consider the issue of evidence storage
that gave rise to this case. The record reveals little about
the property at the center of this case. It suggests, however,
that plaintiffs’ items were seized by the Prosecutor’s Office
when it executed a search warrant issued by a judge during a
criminal investigation. To the extent that the items belonging
to plaintiffs were lost or damaged when the Prosecutor’s Office
seized them pursuant to the warrant, the liability at issue was
clearly incurred during a law enforcement activity, as was the
liability derived from the arrest at issue in Wright. Any
allegations of loss or damage incurred at the time of the items’
21
seizure implicate the defense and indemnification obligations of
the State under N.J.S.A. 59:10-1 and N.J.S.A. 59:10A-1.
After being seized, plaintiffs’ items were allegedly stored
by the Prosecutor’s Office at a location and under conditions
that are not disclosed by the record. The retention of evidence
during a criminal investigation, like the seizure of that
evidence, is a law enforcement activity.3 Liability deriving
from such retention ordinarily will give rise to an obligation
on the part of the State to defend and indemnify a county
prosecutor.
In this case, the damage and loss alleged by plaintiffs may
have occurred following the conclusion of the criminal
investigation, when the non-contraband items at issue were no
longer potential evidence, but had not been returned to
plaintiffs. If so, the continued retention of plaintiffs’
property, either intentionally or by oversight, derives from and
3
Indeed, the Attorney General, working with the county
prosecutors, has properly issued detailed guidelines for the
retention of evidence, pursuant to the authority granted by the
Criminal Justice Act, N.J.S.A. 52:17B-97 to -117. The current
version of the Attorney General’s guidelines does not instruct
county prosecutors on the steps that should be taken to avoid
loss or damage to non-contraband evidence retained for a
criminal investigation, or to return such evidence when an
investigation is concluded with no charges filed and no civil
forfeiture action contemplated. Additional guidelines
addressing these issues, however, would be an appropriate
exercise of the Attorney General’s authority under the Criminal
Justice Act and could minimize the risk of liability such as
that which may be incurred in this case.
22
directly relates to the law enforcement function that the
Prosecutor’s Office fulfilled when it seized and retained the
evidence.4 Notwithstanding the State’s argument that plaintiffs
could have pursued a remedy based upon the equitable doctrine of
replevin, the claim in this case originated from an activity
that was part of the Prosecutor’s Office’s performance of “the
criminal business of the State.” N.J.S.A. 52:17B-106.
Accordingly, we hold that the County has met its burden
demonstrating that the Attorney General’s administrative
determination was “arbitrary, capricious or unreasonable.” In
re J.S., supra, 431 N.J. Super. at 329 (internal quotation marks
omitted). At this preliminary stage of plaintiffs’ action, the
State is obligated to defend and indemnify defendant employees
pursuant to N.J.S.A. 59:10-1 and N.J.S.A. 59:10A-1 of the TCA,
and in accordance with the standard in Wright, supra, 169 N.J.
at 455-56.
However, if a more complete record at a later stage of this
case reveals that plaintiffs’ property was stored in a facility
at the direction of the County, and that the loss or damage to
plaintiffs’ property resulted from the condition or maintenance
4
The fact that plaintiffs’ claims are premised on the County
Prosecutor’s continued retention of seized items distinguishes
this case from Courier News, supra, 378 N.J. Super. 539. There,
the act by the county prosecutor’s office that gave rise to the
liability was not a decision made in the context of a criminal
investigation, but the denial of an OPRA request in a separate
proceeding. Id. at 542.
23
of that facility, the State may pursue a claim against the
County for reimbursement of all or part of its costs incurred in
the defense and indemnification of the Prosecutor’s Office
employees.
IV.
The judgment of the Appellate Division is reversed, and the
case is remanded to the trial court for further proceedings in
accordance with this opinion.
CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN, and
FERNANDEZ-VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily
assigned) join in JUSTICE PATTERSON’s opinion.
24
SUPREME COURT OF NEW JERSEY
NO. A-29 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
ROBERT LAVEZZI and KAREN
LAVEZZI,
Plaintiffs,
v.
STATE OF NEW JERSEY,
Defendant-Respondent,
and
CAROLYN A. MURRAY, ACTING
PROSECUTOR OF ESSEX COUNTY;
et al.,
Defendants,
and
ESSEX COUNTY,
Defendant-Appellant.
DECIDED September 9, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7
1