NOT FOR PUBLICATION WITHOUT THE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-3528-14T1
LIEUTENANT JOHN KAMINSKAS
and CHIEF DANIEL VANISKA of
the UNION COUNTY POLICE
DEPARTMENT,
Appellants,
v.
STATE OF NEW JERSEY, DEPARTMENT
OF LAW and PUBLIC SAFETY, OFFICE
OF THE ATTORNEY GENERAL,
Respondent.
________________________________________________
Submitted June 28, 2016 – Decided September 6, 2017
Before Judges Espinosa and Grall.
On appeal from the Department of Law and
Public Safety.
Robert E. Barry, Union County Counsel,
attorney for appellants John Kaminskas and
Daniel Vaniska (Steven H. Merman, on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Department of Law
and Public Safety (Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Benjamin H. Zieman, Deputy Attorney General,
on the brief).
PER CURIAM
Appellants, Lieutenant John Kaminskas and his supervisor
Chief Daniel Vaniska are officers of the Union County Police
Department (UCPD). They are also among the several defendants
Emmanuel Mervilus named in a civil action for damages filed in
the United States District Court for the District of New Jersey.1
In that action, Mervilus alleges investigatory and prosecutorial
conduct in violation of 42 U.S.C. § 1983 and N.J.S.A. 10:6-1 to
6-2, which he contends led to his wrongful conviction and
confinement pending reversal of his conviction and acquittal on
retrial. The other defendants in Mervilus's civil action are
the Attorney General, Union County, the Union County Prosecutor
and an assistant prosecutor under his supervision, and officers
of the City of Elizabeth's Police Department.
Mervilus was charged with and convicted of crimes committed
in Elizabeth. Elizabeth police officers investigated and made
the arrest. Following his arrest, Mervilus agreed and
stipulated to a polygraph. Kaminskas administered the polygraph
and testified as the State's polygraph expert at trial. This
1
The notice of appeal and briefs erroneously suggest an appeal
from a civil action in which Emmanuel Mervilus is the plaintiff
and Union County and its officers are the defendants.
2 A-3528-14T1
court reversed the convictions due to plain error in the
admission of Kaminskas's testimony and remanded for a new trial.2
On retrial, the State did not present the polygraph evidence,
and the jury acquitted Mervilus.
On receipt of Mervilus's civil complaint, all Union County
defendants asked the Attorney General to provide their defense.
The Attorney General denied Kaminskas' and Vaniska's requests
but agreed to provide a defense for the prosecutors. The
Attorney General based those determinations on: N.J.S.A. 59:10A-
1, which permits the Attorney General to provide a defense for
state employees; Wright v. State, 169 N.J. 422, 455-56 (2001),
which holds that the "unique role of county prosecutorial
employees" requires the Attorney General to provide them a
defense in civil actions involving investigation and
prosecution; and N.J.S.A. 40A:14-117, which requires "the
governing body of the county . . . to provide" a defense for
officers of county police departments in such actions.3
Kaminskas and Vaniska appeal the Attorney General's
decision, which is a final decision of a state officer subject
to our review. R. 2:2-3(a)(2); Prado v. State, 186 N.J. 413,
2
State v. Mervilus, 418 N.J. Super. 138 (App. Div. 2011).
3
The Attorney General also relied on an unpublished decision of
this court.
3 A-3528-14T1
422-24 (2006). The Attorney General's denial is based on the
law, not on the facts of the case. Cf. id. at 427 (discussing
the standard of review applicable to denials based on N.J.S.A.
59:10A-2, which involve an assessment of the employee's
conduct). While courts owe no deference to a state officer's
interpretation of law, Mayflower Sec. Co. v. Bureau of Sec., 64
N.J. 85, 93 (1973), we agree with the Attorney General's
statement of the law. Accordingly, we affirm substantially for
the reasons stated in the Attorney General's letter decision of
February 26, 2015, as supplemented here.
N.J.S.A. 40A:14-117, directs the county's governing body to
provide a defense for an officer of its county police department
in this circumstance:
Whenever a member or officer of a county
police . . . department or force is a defendant
in any action or legal proceeding arising out
of or incidental to the performance of his
duties, the governing body of the
county . . . shall provide said member or
officer with necessary means for the defense
of such action or proceeding . . . .
Where a statute is clear and unambiguous our courts apply
it as written, because the statutory language is the best
indicator of the Legislature's intent. DiProspero v. Penn, 183
N.J. 477, 492 (2005). Through N.J.S.A. 40A:14-117, the
Legislature clearly directs the county's governing body to
4 A-3528-14T1
provide a defense for Kaminskas and Vaniska as officers of the
UCPD. See also N.J.S.A. 40A:14-106, -106.2 (authorizing a
county governing body to "establish a county police department"
and appoint its personnel and requiring the county governing
body to provide their training). Additionally, with N.J.S.A.
59:10A-1 to -6, the Legislature delineates the Attorney
General's authority to provide a defense for active and former
"state employees" only. The Attorney General's denial of
representation here is consistent with those statutes and with
the narrow exception established in Wright that applies only to
county prosecutors and their employees. 169 N.J. at 455-56. In
our view, Wright's reasoning should not be extended to create an
unnecessary conflict between N.J.S.A. 40A:14-117 and N.J.S.A.
59:10A-1 to -6. See N.J. Ass'n of School Adm'rs v. Schundler,
211 N.J. 535, 555 (2012) (discussing courts' preference for
harmonizing statutes so they "work together").
The Attorney General's denial of indemnification is equally
consistent with statutory law. See N.J.S.A. 59:10-1 to -2
(delineating the Attorney General's authority to indemnify state
employees); N.J.S.A. 59:10-4 (authorizing local public entities
to indemnify their employees).
Affirmed.
5 A-3528-14T1
LIEUTENANT JOHN KAMINSKAS VS. STATE OF NEW JERSEY, ETC.(DEPARTMENT OF LAW AND PUBLIC SAFETY)
Combined Opinion