ELAINE RABBITT v. LORETTA WEINBERG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ELAINE RABBITT,

Plaintiff-Appellant,

v.

LORETTA WEINBERG, TIMOTHY

DRISCOLL, MARIE GILLMAN,

ATTORNEY GENERAL'S OFFICE,

DEPUTY ATTORNEY GENERAL

VINCENT MILITELLO,

Defendants-Respondents,

and

BERGEN COUNTY,

Defendant.

__________________________________________

December 14, 2015

Submitted November 10, 2015 Decided

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4189-12.

Law Offices of Louis A. Zayas, attorneys for appellant (Mr. Zayas and Alex Lee, on the briefs).

Rose Marie Manger, attorney for respondent Thomas Driscoll, Executor of the Estate of Timothy Driscoll, deceased.

John J. Hoffman, Acting Attorney General, attorney for respondents Loretta Weinberg, Attorney General's Office and Deputy Attorney General Vincent Militello (Lisa A. Puglisi, Assistant Attorney General, of counsel; Luanh L. D'Mello, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Elaine Rabbitt appeals from an order entered by the Law Division on October 12, 2012, dismissing her complaint against defendants Timothy Driscoll (Driscoll), Loretta Weinberg (Weinberg), the Office of the Attorney General of New Jersey (the OAG), and Deputy Attorney General Vincent Militello (Militello). Plaintiff also appeals from an order entered by the Law Division on March 18, 2014, granting summary judgment in favor of defendant Marie Gillman (Gillman). We affirm.

I.

We briefly summarize the relevant facts. In September 2005, the Bergen County Democratic Party conducted a special election to fill the seat of retiring State Senator Byron Baer. Weinberg, who was then a member of the State Assembly, was a candidate for the position, as was Charles "Ken" Zisa. Sometime prior to the election, Kevin Clancy, the Chairman of the Democratic County Committee of Bergenfield (the Committee) received five letters from persons indicating that they were resigning from the Committee, which rendered them ineligible to vote in the special election.

Driscoll and Gillman were informed of these letters on the date of the election. Steven R. Rothman (Rothman), who was then a member of Congress from Bergen County, presided at the special election and determined voter eligibility. Rothman spoke with Driscoll and Gillman. They said they had not signed the letters and did not intend to resign from the committee.

A Bergen County grand jury later charged plaintiff and Dennis Mulligan (Mulligan) with fourth-degree forgery, contrary to N.J.S.A. 2C:21-1a(2). The charge against plaintiff was based on her alleged transmittal of a forged resignation letter from Gillman, dated January 16, 2005. According to the indictment, Gillman's name had been handwritten and signed on that letter.

In June 2009, plaintiff filed a motion in the Law Division to dismiss the indictment. Plaintiff argued that the State had not presented the grand jury with sufficient evidence to establish probable cause for the forgery charge. She argued that the State had not shown, with expert testimony, that she "made completed, executed, authenticated, issued or transferred" Gillman's purported resignation letter. Plaintiff also argued that the State failed to present the grand jury with the findings of its handwriting expert that "[c]ertain types of evidence cannot be observed on reproductions of writings" and that "the handwritten signature and date on the resignation letter did not match" plaintiff's signature.

The Law Division judge denied the motion. In a written decision dated July 22, 2009, the judge noted that the State had presented the grand jury with the report of a handwriting expert, who had opined within a "reasonable degree of certainty" that it was "highly probable" plaintiff had written the printed name on the letter. The judge found this evidence was sufficient to establish a prima facie case of forgery under N.J.S.A. 2C:21-1a(2).

In addition, the judge found that the State had not failed to present any exculpatory evidence to the grand jury. The judge noted that the statement by the handwriting expert "on the potential difficulty in analyzing a photocopy would not have directly negated either defendant's guilt in this matter," or the possibility that another person was involved in the forgery.

The judge also noted that the grand jury did not need to be informed that the handwriting expert only matched plaintiff's handwriting to Gillman's printed name, and not to the cursive signature or the date. The judge observed that this evidence had "no bearing on the fact that [plaintiff's] handwriting was matched to the printed name on" the Gillman resignation letter.

In addition, the judge rejected plaintiff's contention that the grand jury should have been informed that there were other "potential suspects" for the alleged forgery. The judge pointed out, however, that the grand jury had been told in general terms that the handwriting expert had considered "other names" for analysis with regard to the resignation letters.

The judge wrote that, even if the grand jury had not been made "sufficiently aware" that there were other potential suspects, this would still have no bearing on the expert's conclusion that the handwriting on one of the letters matched plaintiff's handwriting.

On February 8, 2011, the day before the trial was scheduled to begin, the State provided plaintiff's attorney with a copy of a previously-undisclosed certification by Gillman, which was dated September 15, 2005. In that certification, Gillman stated she had resigned her seat on the County Committee in January 2005.

However, in the cover letter accompanying the certification, Militello, who was handling the matter for the State, wrote that it was his understanding Gillman would testify she signed the certification at the behest of her husband, and the statements in the certification were not true. Militello noted that Gillman's husband would corroborate her testimony, and indicate that he believed plaintiff had given him the unsigned document.

The trial began on February 9, 2011. Prior to opening statements, plaintiff moved to dismiss the indictment based on the State's alleged failure to present Gillman's certification to the grand jury and provide it to defense counsel. The trial judge concluded that the certification was not exculpatory. However, the judge ruled that, because the certification had been provided to defense counsel the day before trial, it could not be used by the State but plaintiff could use it for her defense if she wanted to do so.

After the State rested, plaintiff moved for a judgment of acquittal. The judge denied the motion. The judge noted that the handwriting expert had testified that it was "highly probable" that plaintiff printed Gillman's name on the purported resignation letter, and this was sufficient to establish a prima facie case of forgery. At the end of the case, the judge found plaintiff not guilty of forgery.

On May 25, 2012, plaintiff filed a complaint in the Law Division naming Weinberg, Driscoll, Gillman, Bergen County (the County), the OAG, and Militello as defendants. Plaintiff asserted a claim of malicious prosecution against Weinberg, Driscoll and Gillman, and a claim of abuse of process against Weinberg and Driscoll.

Plaintiff further alleged that the OAG violated her "civil rights" by failing to train employees to disclose exculpatory evidence. She claimed that Militello had violated her "civil rights" by intentionally and recklessly withholding exculpatory evidence from the grand jury and her defense attorney.

In addition, plaintiff alleged that the County violated her constitutional rights to free speech, political association and assembly by terminating her employment. She also claimed that the County had breached its implied covenant of good faith and fair dealing by suspending her employment without pay after she was indicted, and later terminating her employment.

Defendants filed answers denying liability, and asserted various affirmative defenses. In July 2012, Driscoll filed a motion to dismiss pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. In August 2012, Weinberg, the OAG and Militello also filed a motion to dismiss for failure to state a claim.

On October 12, 2012, the court granted the motions and dismissed the claims against Driscoll, Weinberg, the OAG and Militello. In January 2014, Gillman filed a motion for summary judgment. On March 18, 2014, the court granted Gillman's motion. Plaintiff's appeal followed.1 We note that Driscoll died in March 2013, and we entered an order substituting his estate for Driscoll as a party to the appeal.

On appeal, plaintiff raises the following arguments

POINT I

THE TRIAL COURT ERRED IN APPLYING COLLATERAL ESTOPPEL TO DISMISS PLAINTIFF'S MALICIOUS PROSECUTION AND EXCULPATORY EVIDENCE CLAIMS, BECAUSE THE CIVIL AND CRIMINAL PROCEEDINGS INVOLVED NONIDENTICAL AND SEPARATE ISSUES.

POINT II

THE TRIAL COURT ERRED IN APPLYING COLLATERAL ESTOPPEL BECAUSE THE CRIMINAL PROCEEDING AND CIVIL PROCEEDING INVOLVED SEPARATE TRIBUNALS WITH DIFFERENT STANDARDS.

POINT III

THE TRIAL COURT ERRED IN APPLYING COLLATERAL ESTOPPEL BECAUSE PLAINTIFF NEVER HAD A FULL AND FAIR OPPORTUNITY TO LITIGATE THE ISSUES OF PROBABLE CAUSE AND EXCULPATORY EVIDENCE.

POINT IV

BECAUSE PLAINTIFF WAS UNABLE TO APPEAL THE CRIMINAL COURT'S RULINGS, THE FRAUD TO THE GRAND JURY AND THE CRIMINAL JUDGE'S DECISION BEING BASED ON FALSE TESTIMONY, THE ISSUE OF EXCULPATORY EVIDENCE SHOULD BE RESERVED FOR THE CIVIL CASE.

POINT V

THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S ABUSE OF PROCESS CLAIM BECAUSE PROBABLE CAUSE IS NOT AN ELEMENT OF THE CLAIM, AND PLAINTIFF SUFFICIENTLY ALLEGED FACTS TO STATE A CLAIM.

POINT VI

THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S CLAIMS WITHOUT ADDRESSING PLAINTIFF'S CLAIMS OF VIOLATIONS OF HER RIGHTS TO POLITICAL SPEECH, POLITICAL ASSOCIATION, AND POLITICAL RETALIATION.

POINT VII

THE TORT CLAIMS ACT DOES NOT APPLY TO PLAINTIFF'S CIVIL RIGHTS CLAIMS AND DEFENDANT MILITELLO IS NOT PROTECTED BY THE TORT CLAIMS ACT DUE TO HIS ACTIONS THAT WERE TAKEN IN AN "INVESTIGATIVE" ROLE.

POINT VIII

THE TRIAL COURT ERRED IN FINDING THAT THE OAG DOES NOT CONSTITUTE A "PERSON" WITHIN THE MEANING OF THE [NEW JERSEY CIVIL RIGHTS ACT].

II.

Plaintiff argues that the trial court erred by dismissing her malicious prosecution claims against Driscoll, Weinberg and Gillman and the claims against the OAG and Millitello based on the alleged failure to provide the grand jury and defense counsel with exculpatory evidence. Plaintiff argues that the trial court erroneously determined that she was bound by decisions made by the judges in the criminal case on issues essential to these claims. We disagree.

As we noted previously, the trial court dismissed the claims against Driscoll, Weinberg, the OAG and Militello pursuant to Rule 4:6 2(e) for failure to state a claim upon which relief can be granted. The court also granted Gillman's motion for summary judgment.

In ruling on a motion to dismiss under Rule 4:6-2(e), the trial court must review the pleading and determine whether a claim can be gleaned even from an obscure statement. Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989). We apply the same standard in reviewing the trial court's order granting the motion. Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002).

In addition, summary judgment should be granted when there is no genuine issue of any material fact in dispute, and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We apply this standard in reviewing an order of the trial court granting summary judgment. Townsend v. Pierre, 221 N.J. 36, 59 (2015); Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014).

We are convinced that the court correctly determined that plaintiff's malicious prosecution claim failed as a matter of law. It is well-established that a finding of probable cause is an absolute defense to claim of malicious prosecution. Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000). Here, the court noted that the judges in plaintiff's criminal action had essentially determined that there was probable cause for the charges.

As we stated previously, plaintiff was charged with fourth-degree forgery under the indictment, and the indictment "creates a presumption of probable cause as a matter of law." Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 251 (3d Cir. 2001). Furthermore, the judge in the criminal case denied plaintiff's motion to dismiss the indictment, effectively finding that there was probable cause for the charges. See State v. Hogan, 144 N.J. 216, 227 (1996) (noting that grand jury must determine whether the State has made out a prima facie case "that a crime has been committed and that the accused has committed it") (citations omitted).

In addition, in the criminal proceeding, plaintiff moved for a judgment of acquittal, which required the court to apply the standard under State v. Reyes, 50 N.J. 454, 458-59 (1967). Under that standard, the court must determine

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[Ibid.]

The trial judge denied plaintiff's motion, thereby again effectively deciding that there was probable cause for the forgery charge.

Plaintiff contends that the trial court in this case erred by invoking the doctrine of collateral estoppel, and she should have been permitted to re-litigate the decisions by the motion judge and the trial judge in the criminal case.

Collateral estoppel may preclude a party from re-litigating an issue where

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

[In re Estate of Dawson, 136 N.J. 1, 20-21 (1994) (citations omitted).]

Here, the issue of probable cause was litigated and decided in the criminal case. A final judgment was entered in that matter, finding plaintiff not guilty of forgery. In addition, the determinations that the State had established a prima facie case before the grand jury and at trial were essential to the final judgment because, without those determinations, the case would not have proceeded to trial or to the final judgment of acquittal. Moreover, plaintiff was a party at her criminal trial.

Thus, the trial court correctly found that plaintiff was estopped from re-litigating the issue of probable cause in this matter. The Court's decision in Tarus v. Borough of Pine Hill, 189 N.J. 497, (2007), supports our conclusion. In that case, the plaintiff filed an action in the United States District Court asserting claims under federal and state law for false arrest, false imprisonment and malicious prosecution. Id. at 504-05.

The federal court found that the defendants had probable cause to charge, arrest and prosecute the plaintiff. Id. at 505. The federal court dismissed plaintiff's state law claims and they were re-filed in the Law Division. Ibid. Our Supreme Court held that the plaintiff could not re-litigate the claim that the defendants lacked probable cause for the arrest and prosecution because that issue actually had been decided in the prior action. Id. at 520-21.

In this case, the issue of whether there was probable cause to charge plaintiff with fourth-degree forgery had been decided in plaintiff's criminal case. The trial court correctly determined that plaintiff was barred from re-litigating that issue in this matter. The court correctly found that plaintiff's claims of malicious prosecution against Driscoll, Weinberg and Gillman failed as a matter of law.

The trial court also correctly determined that plaintiff's claim that the State wrongfully failed to provide the grand jury and her attorney with exculpatory evidence failed as a matter of law. As we stated previously, plaintiff had raised this issue in her criminal case, and her motions to dismiss the indictment on these grounds had been denied by the motion judge and trial judge.

The trial court correctly applied collateral estoppel and determined that plaintiff could not re-litigate that issue in this case. The court properly found that plaintiff's claim against the OAG and Militello for failure to provide exculpatory evidence to the grand jury and defense counsel failed as a matter of law.

III.

Plaintiff further argues that the trial court erred by dismissing her malicious abuse of process claim. Again, we disagree. The trial court found that this claim failed as a matter of law because plaintiff did not establish the absence of probable cause for the criminal charge. We are convinced that the court correctly determined that plaintiff's malicious abuse of process claim must be dismissed, but not because there was probable cause for the criminal charge. Rather, dismissal was required because a claim of malicious use of process applies to civil actions, not criminal matters. See LoBiondo v. Schwartz, supra, 199 N.J. 62, 90 (2009).

The plaintiff in such an action must establish "the civil counterpart" of the elements of a claim for malicious prosecution. Ibid. (citations omitted). The plaintiff also must show that he or she has "suffered a special grievance caused by the institution of the underlying civil claim." Ibid. (citations omitted).

Because plaintiff's claim pertains to the criminal matter, not a civil action, her claim of malicious abuse of process failed as a matter of law.

IV.

Next, plaintiff argues that the trial court erred by failing to consider her claims that her rights to political speech, political association and to be free of political retaliation had been violated. The complaint makes clear, however, that these claims were asserted against the County, not the other defendants.

As we noted previously, plaintiff's claims against the County have been resolved. Therefore, in addressing the motion to dismiss filed by Driscoll, Weinberg, the OAG and Militello, and Gillman's motion for summary judgment, the trial court was not obligated to address these claims.

V.

Plaintiff argues that the trial court erred by finding that Militello is entitled to absolute prosecutorial immunity. We cannot agree.

A prosecutor is entitled to absolute immunity for all actions associated with the judicial process, and is shielded from liability for any wrongdoing allegedly committed while acting as an advocate for the State. Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S. Ct. 984, 994-96, 47 L. Ed. 2d 128, 143-44 (1976). Here, plaintiff alleges that Militello improperly withheld allegedly exculpatory evidence from the grand jury and defense counsel.

However, the allegations pertain to actions Militello allegedly took while acting as advocate for the State. See Yarris v. Cty. of Delaware, 465 F.3d 129, 135-37 (3d Cir. 2006) (holding that prosecutor is entitled to absolute immunity on a claim that the prosecutor failed to disclose exculpatory evidence when acting in a prosecutorial capacity).

Plaintiff maintains that Militello is not entitled to absolute immunity in this case because he was acting as an investigator, rather than a prosecutor. The argument is without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

In addition, plaintiff argues that the trial court erred by finding that she could not assert a claim against the OAG under the New Jersey Civil Rights Act ("NJCRA"), N.J.S.A. 10:6-1 to

-2, which provides in pertinent part that

Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.

[N.J.S.A. 10:6-2(c).]

The NJCRA does not specifically define the term "person" to include the State or any of its departments or agencies. However, N.J.S.A. 1:1-2 states that, as used in legislative enactments, the word "person"

includes corporations, companies, associations, societies, firms, partnerships and joint stock companies as well as individuals, unless restricted by the context to an individual as distinguished from a corporate entity or specifically restricted to [one] or some of the above enumerated synonyms and, when used to designate the owner of property which may be the subject of an offense, includes this State, the United States, any other State of the United States as defined [herein] and any foreign country or government lawfully owning or possessing property within this State.

Thus, unless a specific enactment provides otherwise, the term "person" in a statute does not include the State, except when referring to ownership of certain property.

Moreover, there is no indication in the NJCRA that the Legislature intended to waive its sovereign immunity and authorize civil actions against the State, its departments or agencies for alleged violations of constitutional or statutory rights. Indeed, by its terms, the NJCRA only permits the filing of a private cause of action against "persons" acting under color of law. N.J.S.A. 10:6-2(c).

In this case, plaintiff alleges that the OAG violated her constitutional rights by failing to properly train its attorneys in the handling of allegedly exculpatory evidence. The trial court correctly determined that such a claim cannot be asserted against the OAG under the NJCRA because the OAG is not a "person" under that statute.

In arguing that the NJCRA should be interpreted so that the OAG is deemed a "person" under the NJCRA, plaintiff relies upon cases which hold that municipalities and other local government units can be considered "persons" under 42 U.S.C.A. 1983. See Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611, 635-36 (1978). Plaintiff's reliance upon these cases is misplaced. The OAG is not a municipality or unit of local government, and the State is not a "person" for purposes of 42 U.S.C.A. 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45, 57-58 (1989). The argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We have been advised that, prior to the filing of the notice of appeal, plaintiff resolved her claims against the County.