NOT FOR PUBLICATION WITHOUT THE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-5650-16T4
A-1714-17T4
A-0075-18T4
A-3428-18T4
CHRISTOPHER J. GRAMICCIONI,
Petitioner-Appellant,
v.
DEPARTMENT OF LAW AND
PUBLIC SAFETY,
Respondent-Respondent.
_______________________________
GREGORY J. SCHWEERS,
JACQUELYNN F. SEELY and
RICHARD E. INCREMONA,
Petitioners-Appellants,
v.
DEPARTMENT OF LAW AND
PUBLIC SAFETY,
Respondent-Respondent.
_______________________________
MONMOUTH COUNTY
PROSECUTOR'S OFFICE,
CHRISTOPHER J. GRAMICCIONI,
GREGORY J. SCHWEERS,
JACQUELYNN F. SEELY, and
RICHARD E. INCREMONA,
Petitioners-Appellants,
v.
DEPARTMENT OF LAW AND
PUBLIC SAFETY,
Respondent-Respondent.
_______________________________
Argued (A-5650-16/A-1714-17/A-0075-18) April 4,
2019 and Submitted (A-3428-18) May 3, 2019 –
Decided June 7, 2019
Before Judges Simonelli, Whipple and Firko.
On appeal from the New Jersey Department of Law and
Public Safety.
Robyn B. Gigl argued the cause for appellants
(GluckWalrath LLP, attorneys; Robyn B. Gigl, of
counsel and on the briefs; Victoria Flynn, on the briefs).
Daniel M. Vannella, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Daniel M. Vannella, on
the briefs).
A-5650-16T4
2
PER CURIAM
In these consolidated appeals, the Monmouth County Prosecutor's Office
(MCPO), Monmouth County Prosecutor Christopher J. Gramiccioni, and former
Monmouth County Assistant Prosecutors Gregory J. Schweers, Jacquelynn F.
Seely, and Richard E. Incremona (collectively, appellants), appeal from the July
6, 2017, October 27, 2017, August 2, 2018, and March 19, 2019 orders of the
Department of Law and Public Safety refusing, in part, appellants' request for
defense and indemnification.
On June 16, 2015, Philip Seidle, an off-duty Neptune Township police
sergeant, shot and killed his ex-wife Tamara Wilson-Seidle with his service
weapon. Wilson-Seidle's estate (Estate) brought a lawsuit in the United States
District Court for the District of New Jersey, Kirsten Siedle, et al. v. Neptune
Township, et al., No. 17-4428 (D.N.J. June 16, 2017), against appellants, as well
as other law enforcement agencies.
The Estate has filed one complaint and three amended complaints in the
district court. Each complaint describes Seidle's history of domestic violence
towards Wilson-Seidle in the years preceding the fatal shooting. The original
complaint, filed on June 16, 2017, named the MCPO and Gramiccioni as
defendants and alleged they failed to properly protect Wilson-Seidle, permitted
A-5650-16T4
3
Seidle to remain on the police force, and improperly returned Seidle's service
weapons after they were civilly seized.
On June 21, 2017, the MCPO and Gramiccioni sought defense and
indemnification from the New Jersey Attorney General. On July 6, 2017, the
Attorney General issued a written decision granting in part and denying in part
the request. Relying upon State v. Wright, 169 N.J. 422 (2001), the Attorney
General distinguished claims arising from "classic" law enforcement activities,
which the Attorney General must defend and indemnify, from administrative
functions, which are carried out on behalf of the county and are not eligible for
defense and indemnification. The Attorney General parsed the original
complaint and agreed to defend and indemnify the following claims:
failing to conduct a criminal investigation (including
failing to monitor evidence of stalking, failing to
conduct a proper internal affairs investigation and
failing to prohibit discriminatory or disparate
treatment of Tamara [Wilson-]Seidle) and prosecute
Philip Seidle . . . ;
failing to provide law enforcement protection to a
victim of domestic violence . . . [;]
failing to respond properly at the scene . . . ;
failing to supervise at the scene . . . ;
failing to file (or assist Tamara Wilson-Seidle in
filing) a restraining order against Philip Seidle. . . [;]
A-5650-16T4
4
failing to follow the New Jersey Attorney General
Guidelines to the extent the claim alleges a failure
to conduct a criminal investigation and/or prosecute
....
However, the Attorney General refused to defend and indemnify claims related
to what he determined were a prosecutor's administrative functions:
failing to properly supervise, monitor, train, retain,
and discipline officers . . . ;
permitting and allowing Philip Seidle to remain
employed . . . ;
permitting and allowing Philip Seidle to possess a
service weapon, or any weapon . . . ;
failing and refusing to keep Philip Seidle disarmed
...;
permitting Philip Seidle to be reinstated [following
a previous suspension] . . . ;
failing to follow the New Jersey Attorney General
Guidelines for handling domestic violence
complaints and incidents involving law enforcement
(with the exception of any claim for failure to
conduct a criminal investigation and/or prosecute)
...;
returning Philip Seidle's service weapon . . . [;]
failing to conduct an administrative investigation
....
The MCPO and Gramiccioni appealed. A-5650-16T4.
A-5650-16T4
5
Meanwhile, on October 2, 2017, the Estate filed its first amended
complaint and added former Monmouth County assistant prosecutors Schweers,
Seely and Incremona (AP defendants) as defendants. The first amended
complaint alleged that in 2012 the Neptune Township Police Department, the
MCPO, Gramiccioni and the AP defendants disciplined, suspended and seized
Seidle's services weapons because he cancelled a dispatch call from Wilson-
Seidle related to domestic violence. Seidle was found unfit for duty and
underwent counseling. The first amended complaint further alleges that months
later, the Neptune Township Police Department, the MCPO and Gramiccioni
reinstated Seidle and returned his weapons, notwithstanding escalating domestic
violence. The complaint also alleges Gramiccioni, Schweers, Seely and
Incremona failed to take mandated action in response to observed warning signs
of domestic violence and provide assistance to the victim.
The AP defendants sought defense and indemnification from the Attorney
General. On October 27, 2017, the Attorney General declined their request,
because the decisions related to Seidle's employment status, the return of his
service weapons, and the failure to keep Seidle disarmed were related to the
prosecutors' administrative functions. The AP defendants filed a notice of
A-5650-16T4
6
appeal. A-1714-17. We consolidated the AP defendants' appeal with A-5650-
16.
On April 20, 2018, United States District Court Judge Michael Shipp
dismissed with prejudice the Estate's claims in the first amended complaint
against the MCPO and Gramiccioni in their official capacities and in connection
with their law enforcement investigatory functions. The Estate filed a second
amended complaint, and the MCPO and Gramiccioni again requested defense
and indemnification from the Attorney General. On August 2, 2018, the
Attorney General declined their request and found "the claims asserted in the
[s]econd [a]mended [c]omplaint pertain[ed] to administrative functions for
which [the Attorney General] denied representation in connection with the
initial complaint." Appellants filed a notice of appeal, A-0075-18,1 and we
consolidated that appeal with cases A-5650-16 and A-1714-17.
On December 11, 2018, Judge Shipp dismissed the Estate's second
amended complaint for failure to plead claims with particularity and noted all
1
The Attorney General's August 2, 2018 letter was specifically addressed to the
MCPO and Gramiccioni, but the appeal of the decision is on behalf of all five
appellants. Because this distinction is immaterial for our purposes and due to
the significant overlap between the claims at issue, we use "appellants" to refer
to all five parties seeking defense and indemnification from the Attorney
General.
A-5650-16T4
7
claims against the MCPO and Gramiccioni connected with their law
enforcement and investigatory functions were previously dismissed with
prejudice. Judge Shipp made no finding as to whether specific actions were
administrative or law enforcement functions.
Judge Shipp was unable to discern which legal theory the Estate was
alleging against which defendant, as well as the facts associated with those
claims. The Estate was given "one final opportunity to cure the deficiencies" in
their pleadings and it filed a third amended complaint on January 25, 2019. The
third amended complaint alleges appellants permitted the re-arming of Seidle
without condition despite knowledge of his unfitness. Regarding the failure to
train, supervise and discipline, the third amended complaint alleges Gramiccioni
failed to oversee, train and supervise the AP defendants and that the AP
defendants failed to oversee, train and supervise police officers consistent with
the Attorney General's guidelines. The third amended complaint also claims the
AP defendants failed to help Wilson-Seidle obtain a restraining order in
compliance with the Attorney General's guidelines to protect victims of
domestic violence. 2
2
Appellants' motion to dismiss the third amended complaint is pending in
federal court at the time of this writing.
A-5650-16T4
8
We requested supplemental briefing to clarify how the third amended
complaint affected the consolidated appeals, and we received briefs on March
12, 2019. On March 19, 2019, the Attorney General denied appellants' request
for defense and indemnification related to the third amended complaint. On
April 12, 2019, appellants filed a notice of appeal and subsequently moved to
consolidate with the prior appeals, which we granted. A-3428-18.
Within this framework, we review each appeal in turn.
I.
Our first inquiry is whether the Attorney General properly denied defense
and indemnification to the MCPO and Gramiccioni for actions related to Seidle's
continuing employment, the return of Seidle's service weapons, the failure to
follow the Attorney General's guidelines for handling domestic violence
complaints and the failure to conduct an administrative investigation.
"We review the Attorney General's administrative determination in
accordance with a deferential standard of review." Lavezzi v. State, 219 N.J.
163, 171 (2014). The Attorney General's action carries a "strong presumption
of reasonableness." Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186
N.J. 5, 16 (2006) (quoting City of Newark v. Nat. Res. Council, 82 N.J. 530,
539 (1980)). We will "not reverse the Attorney General's determination unless
A-5650-16T4
9
it is arbitrary, capricious or unreasonable or it is not supported by substantial
credible evidence in the record as a whole." Lavezzi, 219 N.J. at 171 (quoting
Prado v. State, 186 N.J. 413, 427 (2006)). "Moreover, '[a] reviewing court may
not substitute its own judgment for the agency's, even though the court mi ght
have reached a different result.'" Allstars Auto Grp., Inc. v. N.J. Motor Vehicle
Comm'n, 234 N.J. 150, 158 (2018) (alteration in original) (quoting In re
Stallworth, 208 N.J. 182, 194 (2011)). Although we defer to an administrative
agency's findings of fact, "to the extent that the Attorney General's
determination constitutes a legal conclusion, we review it de novo." Lavezzi,
219 N.J. at 172.
The Attorney General owes defense and indemnity to "State employee[s]."
N.J.S.A. 59:10-1. County prosecutors, like appellants herein, occupy the
"hybrid role" of serving both the State and county. Lavezzi, 219 N.J. at 174-75.
When county prosecutors exercise their law enforcement authority, they are
acting on behalf of and accountable to the State. N.J.S.A. 2A:158-4; Lavezzi,
219 N.J. at 174; see also Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996)
("It is well established that when county prosecutors execute their sworn duties
to enforce the law by making use of all of the tools lawfully available to them
to combat crime, they act as agents of the State."). When county prosecutors
A-5650-16T4
10
"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." Lavezzi,
219 N.J. at 175 (quoting Coleman, 87 F.3d at 1499).
In Wright, our Supreme Court explained the Attorney General must
defend and indemnify county prosecutors "for the tortious actions" committed
"in the performance of their law enforcement duties." 169 N.J. at 452. However,
when county prosecutors are sued for actions performed while carrying out
administrative tasks, they are not considered "agents" or "officers" of the State
and no defense and indemnification is owed. Ibid. In Wright, the county
prosecutor was entitled to indemnification because the alleged wrongs occurred
during the investigation, arrest and prosecution of a criminal defendant. Id. at
453.
The Lavezzi Court explained the distinction between law enforcement and
administrative actions:
the question is not whether the underlying liability has
any nexus to law enforcement; a personnel or
organizational decision is 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
A-5650-16T4
11
prosecutor's power to enforce the criminal law, and
constituted an exercise of that power.
[219 N.J. at 178 (emphasis added).]
To "derive[] from the prosecutor's power to enforce the criminal law" refers to
core prosecutorial functions, such as investigation, seizure of evidence and
prosecution. Id. at 178-79. It also includes the supervision and training of
subordinate prosecutors, police officers and detectives exercising the same law
enforcement authority. See Van de Kamp v. Goldstein, 555 U.S. 335, 344
(2009) (United States Attorney's Office entitled to § 1983 immunity because the
failure to maintain a database to track impeachment material, while an
administrative task, was "directly connected with the conduct of a trial").
The plaintiffs in Lavezzi sued the Essex County Prosecutor's Office for
destruction of evidence seized and then neglected in storage. Id. at 166. Our
Supreme Court was careful to draw the line between law enforcement and
administrative functions. Id. at 179. If the plaintiffs' property was damaged at
the conclusion of a criminal investigation, the retention of the property
"derive[d] from and directly relate[d] to the [county prosecutor's ] law
enforcement function[.]" Ibid. However, if the plaintiffs' property was stored
in a facility at the direction of the county, and the property damage resulted from
A-5650-16T4
12
the condition or maintenance of the county facility, the claim was derived from
an administrative function. Id. at 180.
Upon becoming aware Seidle was the subject of a domestic violence
complaint, appellants were required to oversee the return of Seidle's service
weapons. Pursuant to Attorney General Law Enforcement Directive No. 2000-
3 (Directive), county prosecutors must investigate police officers who are
alleged to have committed acts of domestic violence to determine whether the
officer should be permitted to carry a service weapon. Attorney General, Law
Enforcement Directive No. 2000-3, at 2-3 (Sept. 1, 2000). When an officer's
service weapon is seized, absent a court order, the county prosecutor may
authorize return of the service weapon subject to certain conditions.
Appellants argue compliance with the Directive is a law enforcement
function and point to the Directive's introduction, which, in part, reads "[a]ll law
enforcement agencies and law enforcement officers in the State are required to
cooperate with the Attorney General to secure the benefits of a uniform and
efficient enforcement of the criminal law[.]" Directive, at 1. We disagree.
Prosecutors have two separate obligations pertaining to a police officer
alleged to have committed domestic violence. One is classic law enforcement,
i.e., the obligation to investigate and enforce criminal laws, including instances
A-5650-16T4
13
of domestic violence. N.J.S.A. 2C:25-19. The second is the obligation to
maintain control over the weapons seized from officers and to determine when
and if the officers should be re-armed and allowed to serve as an officer.
Directive, at 3-5. The Attorney General acknowledged and agreed to defend and
indemnify appellants as to any allegations within the former category but not
the latter, because the oversight and eventual return of seized weapons is an
administrative, rather than prosecutorial function of the prosecutor's office.
Indeed, in New Jersey, all weapons, firearms purchaser identification
cards and permits to purchase a handgun seized under N.J.S.A. 2C:25-21(d)(1)
must be delivered to the county prosecutor in the county where the alleged
domestic violence occurred. The determination of whether the weapon will be
returned is subject to a civil proceeding, not a criminal proceeding, and is an
administrative function of the prosecutor. N.J.S.A. 2C:25-21(d)(3). To that end,
most prosecutor's offices in New Jersey have weapons return units dedicated to
this function.
Here, compliance with the Directive related to appellants' administrative
duties. The fact that the offender in this case was a police officer does not alter
the analysis. Under the Lavezzi test, the allegations concerning the re-arming
of Seidle fall squarely into the administrative category.
A-5650-16T4
14
The allegations pertaining to the failure to supervise, monitor, train,
retrain and discipline and Seidle's continued employment also fall into the
administrative category. Coleman, 87 F.3d at 1499. Appellants assert, pursuant
to Van de Kamp, that supervision of the police force is a prosecutorial function.
However, the Estate has not alleged conduct that arose in connection with an
instance of failure to supervise, train or discipline "intimately associated with
the judicial phase of the criminal process." Van de Kamp, 555 U.S. at 345
(quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Unlike Van de Kamp,
the allegations in the first amended complaint of failure to supervise, monitor,
train, retrain and discipline have no nexus to any criminal investigation or
prosecution. Therefore, we discern no error in the decision by the Attorney
General to deny defense and indemnification for liability arising from such
functions, and we affirm the July 6, 2017 order.
II.
We now turn to the second appeal, A-1714-17, in which the AP defendants
appeal from the Attorney General's October 27, 2017 letter denying defense and
indemnification for the Estate's first amended complaint.
In his letter, the Attorney General reiterated his commitment to defend
certain claims but not others pursuant to Wright. However, we discern error in
A-5650-16T4
15
the Attorney General's ultimate determination to deny relief because certain law
enforcement-related claims, which the Attorney General agreed to cover in the
first instance, were re-pled in the first amended complaint.
Appellants are entitled to defense and indemnification with regard to the
allegations arising from the exercise of their law enforcement authority. Though
purportedly dismissed with prejudice, some previously dismissed allegations
were simply rearranged and incorporated into the remaining claims against the
appellants. Defense and indemnification by the State is still warranted for those
allegations because appellants were still required to appear and seek dismissal .
We include a paragraph-by-paragraph comparison in our discussion below.
Accordingly, notwithstanding our deferential standard of review, we disagree
with the Attorney General's conclusion denying coverage for all claims in the
first amended complaint as a matter of law and reverse the October 27, 2017
order in part.
III.
In A-0075-18, appellants appeal from the August 2, 2018 blanket refusal
to defend and indemnify them from claims contained in the second amended
complaint. In denying the request, the Attorney General reasoned that because
Judge Shipp dismissed all claims related to law enforcement and investigatory
A-5650-16T4
16
functions, any remaining claims in the second amended complaint necessarily
pertained to administrative functions.
However, the following side-by-side comparison of the original, first and
second amended complaints demonstrate certain law enforcement-related
allegations, previously deemed covered by the Attorney General, were again
pled in the first and second amended complaints.
Complaint First Amended Second Amended
Paragraph No. Complaint Complaint
Paragraph No. Paragraph No.
27(d) 29(d) 29(d)
65 67 78
66 68 79
68 70 81
74 76 89
76 78 91
77 79 92
78 80 93
82 84 97
85 87 100
90 92 108
101 103 145
102 104 160
103 106 --
108 111 --
114(9), (10) & 117(9), (10) & 202(4) & (9)
(11) (11)
116 119 179(10) &(11);
119 (listed
between 202 and
203)
A-5650-16T4
17
142 145 --
144 147 --
Many of the allegations were identical throughout all three complaints.
For some claims, the only difference was the paragraph or sub-paragraph they
fell under. Thus, the Attorney General should have scrutinized the first and
second amended complaints and provided coverage to the extent it found claims
it agreed to cover in the original complaint were re-pled. Therefore, we reverse
the August 2, 2018 order in part.
IV.
On March 19, 2019, the Attorney General issued a final agency
determination, A-3428-18, by way of written decision, denying appellants'
request for defense and indemnification as to the third amended complaint. In
dismissing the first and second amended complaints without prejudice for lack
of specificity, Judge Shipp also dismissed with prejudice the portions of those
complaints that related to appellants' law enforcement and investigatory
functions.
In the third amended complaint, under the section entitled "Nature of the
Action," the Estate identifies each appellant and states "[a]t all relevant times
[appellants] were acting in an administrative capacity as opposed to a law
A-5650-16T4
18
enforcement or investigatory function[.]" The Attorney General seized on this
language and issued a blanket denial of defense and indemnification for all
claims in the third amended complaint. However, the Attorney General
overlooked portions of the third amended complaint where allegations it
originally agreed to provide defense and indemnification were scattered among
different areas of the complaint.
For example, the Attorney General agreed to provide defense and
indemnification for claims related to "fail[ure] to file (or assist Tamara Wilson-
Seidle in filing) a restraining order against Philip Seidle[.]" This same claim
was made again in the third amended complaint against the AP defendants in
paragraphs 514, 527, 539, and 551, yet the Attorney General declined to provide
defense and indemnification. We realize the bulk of the claims brought against
appellants in the third amended complaint concern compliance with the
Directive, which we have explained relates to appellants' administrative duties.
Nevertheless, appellants were entitled to defense and indemnification, no matter
how little, for claims related to exercise of their law enforcement authority.
Ultimately, we conclude the Attorney General properly applied Wright
and correctly determined which claims in the original complaint pertained to
appellants' law enforcement or administrative functions. However, the Attorney
A-5650-16T4
19
General was required to, but did not, apply the same scrutiny to the subsequent
amended complaints. We reverse the Attorney General's denial of defense and
indemnification as to the first amended, second amended and third amended
complaints to the extent that certain allegations, previously determined by the
Attorney General to relate to the exercise of law enforcement functions, and thus
covered under Wright, were re-pled notwithstanding their purported dismissal
with prejudice.
At this point, the most realistic and practical resolution is for appellants
to make an application in the Law Division, pursuant to our ruling, for
reimbursement to recover the portion of the costs incurred in the defense of those
allegations relating to the exercise of law enforcement authority previously
deemed covered by the Attorney General but for which defense and
indemnification was later disclaimed. See Lavezzi, 219 N.J. at 180 (noting "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 [p]rosecutor's [o]ffice
employees").
Affirmed in part, reversed in part.
A-5650-16T4
20
CHRISTOPHER J. GRAMICCIONI VS. DEPARTMENT OF LAW AND PUBLIC SAFETY GREGORY J. SCHWEERS VS. DEPARTMENT OF LAW AND PUBLIC SAFETY MONMOUTH COUNTY PROSECUTOR'S OFFICE VS. DEPARTMENT OF LAW AND PUBLIC SAFETY (NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY) (CONSOLIDATED)
Combined Opinion