FERNANDO PINIERO, et al. v. NEW JERSEY DIVISION OF STATE POLICE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2273-06T22273-06T2

FERNANDO PINIERO, PAUL DEHOPE,

JOSEPH SOULIAS, OSWALD MORALES,

THOMAS PRIMO AND DENNIS

VECCHIARELLI,

Plaintiffs-Respondents,

v.

NEW JERSEY DIVISION OF

STATE POLICE, CARSON DUNBAR,

JOSEPH SANTIAGO, CARL

LEISINGER, HOWARD BUTT, VINCENT

MODARELLI, WILLIAM NEWSOME,

EDGAR HESS, KENNETH HESS,

FREDERICK MADDEN, ROBERT

DUNLOP, WILLIAM MEDDIS, KIM

HUSBAND, BARRY BOWERS, ROBERT

KILMURRAY, LOUIS TORANTO,

DONALD IZZI, MICHAEL FORTINO,

JOHN GORE, DEBRA STONE, ANTHONY

COWELL, GAYL MAZUCO,

Defendants-Appellants.

MARTIN TEMPLE, MARCO G. PERALTA,

AND THOMAS SUSCEWICZ,

Plaintiffs-Respondents,

v.

PETER C. HARVEY, ATTORNEY GENERAL

OF NEW JERSEY, THE STATE OF NEW

JERSEY, JOSEPH J. SANTIAGO,

JOSEPH "RICK" FUENTES, ROSANNE

MANGHISI,

Defendants-Appellants.

DAVID KUSHNIR, THOMAS PRIMO,

AND DENNIS VECCHIARELLI,

Plaintiffs-Respondents,

v.

NEW JERSEY DEPARTMENT OF LAW

AND PUBLIC SAFETY, OFFICE OF

THE ATTORNEY GENERAL; NEW JERSEY

DEPARTMENT OF LAW AND PUBLIC

SAFETY, DIVISION OF CRIMINAL

JUSTICE; NEW JERSEY DEPARTMENT

OF LAW AND PUBLIC SAFETY,

DIVISION OF STATE POLICE;

JOSEPH SANTIAGO,

Defendants-Appellants.

 

Argued March 28, 2007 - Decided May 31, 2007

Before Judges Cuff, Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, MER-L-582-02, MER-L-1976-03, MER-L-2246-04.

Paulette Brown argued the cause for appellants (Edwards, Angell, Palmer & Dodge, attorneys; Ms. Brown, of counsel and on the brief).

Sumners George, attorneys for appellant Rosanne Manghisi (Thomas W. Sumners, Jr., appearing), relying on the brief of State of New Jersey).

McElroy, Deutsch, Mulvaney & Carpenter, attorneys for appellant Joseph Santiago (Irving E. Hurwitz, relying on the brief of State of New Jersey).

William H. Buckman argued the cause for respondents Piniero, Dehope, Soulias, Morales, Primo and Vecchiarelli.

John H. Rittley argued the cause for respondents Temple, Peralta and Suscewicz.

Joseph R. Donahue argued the cause for respondents Kushnir, Primo and Vecchiarelli (Brickfield & Donahue, attorneys; Mr. Donahue, on the brief).

PER CURIAM

Plaintiffs, officers of the New Jersey State Police, claim that defendants, the State of New Jersey and various state employees and agencies, retaliated against them for various reasons, including their involvement in the background check of Joseph Santiago conducted pursuant to his gubernatorial nomination for Superintendent of the New Jersey State Police. On leave granted, defendants appeal from the portion of the trial court's June 27, 2006 order that directed them, subject to a number of restrictions, to "produce the four-way investigation[] (not including the underlying reports) of Joseph Santiago to all counsel for use in depositions." The trial court stayed that portion of its order pending the outcome of this appeal. We remand for further proceedings.

In the lawsuit, three separate sets of plaintiffs raise various constitutional, statutory and common law claims. Plaintiffs Fernando Piniero, Paul Dehope, Joseph Soulias, and Oswald Morales (the Piniero plaintiffs) did not participate in the Santiago investigation. They contend that they were discriminated against in their employment on the basis of race because they refused to engage in racial profiling at the direction of their supervisors, and that they were retaliated against because of their refusal to do so and because of their complaints regarding the operations of the State Police. Their claims, which are substantively different from the claims of the other plaintiffs, are based on allegations of a continuing course of conduct that began prior to the investigation related to Santiago's appointment.

Plaintiffs David Kushnir, Thomas Primo, and Dennis Vecchiarelli (the Kushnir plaintiffs) had, while Santiago's appointment to the Superintendent position was still pending, received reports that he had ties to organized crime. They claim that after they memorialized this information and submitted the reports up the chain of command, they were retaliated against on the basis of these reports.

The final group of plaintiffs, Martin Temple, Marco Peralta, and Thomas Suscewicz (the Temple plaintiffs), were members of the State Police's Special Investigations Unit (SIU), which is charged with conducting background checks into gubernatorial appointees. In January 2002, they performed the "four-way" investigation into Santiago's background, conducting interviews and gathering information. Though they were concerned about a potential conflict of investigating their potential superintendent, the State Attorney General's Office, through plaintiffs' superior officers, advised them to continue the investigation. They allege that they were retaliated against for their role in the Santiago investigation.

During the course of discovery, plaintiffs sought to depose Santiago and former Attorney General Peter Harvey. They requested the report produced as a result of the four-way investigation for use during the depositions. The court ordered defendants to produce the four-way investigation for in camera inspection and directed plaintiffs to proceed with the depositions without the requested discovery materials.

On June 26, 2006, the parties appeared before the trial court to resolve the discovery issue. On that date, the judge, who had had an opportunity to review the approximately 3500 pages of documents the State had submitted for in camera review, provided an oral decision from the bench, requiring defendants, subject to certain conditions, to produce the "four-way investigation." The following day, the judge entered a written order memorializing his prior oral decision. He directed defendants to "produce the four-way investigation" for use in depositions, subject to the following restrictions: only counsel who submitted a certificate of confidentiality could be present during depositions when the four-way was used, and plaintiffs themselves could not attend the depositions. On July 28, 2006, the court filed a "consent protective order" that it had prepared, setting terms for the use and disclosure of the documents; counsel for all the parties had signed the document, signifying agreement with its terms.

In arriving at his decision to direct the State to produce the four-way investigation, the trial judge made the following observations and findings:

I went through the documents and a host of reports and interviews . . . all of which are tangentially related to the claims made by the plaintiffs. Much of which is largely irrelevant, but which could under our . . . civil discovery lead to relevant information or create some sort of inferences that could be useable in a discovery situation.

. . . .

. . . [F]rom the 3500 documents that I've looked at there isn't a . . . lot in there that demonstrates beyond that which is already public knowledge the potential for retaliation.

. . . .

. . . [T]here's a very legitimate reason to keep four-ways generally confidential simply because we have to rely on people giving up information that is not always a positive information. Retaliation does become more susceptible to those who give up the information as to those who collect it, at leas[t].

. . . .

I believe at long last as a general proposition Nero has no actual application as a theoretical proposition or as a policy proposition. . . . the rational[e] of Nero is important to protect people who would provide information. The collectors of the information are another thing and when I suggested the shorthand term of shooting the messenger doesn't make sense nevertheless that's part of the theory that the plaintiffs argue, that the messenger is indeed shot by having this job assignment . . . .

. . . .

. . . But the policy of our state in discovery is to allow relevance to be broadly construed and responsive to the arguments of plaintiffs and that it can be shown that there was some integration of the inflammatory reaction or inflammatory information contained, then that's an argument that we'll attend another day.

Consequently, upon the confirmation or receipt of all the protective orders and all of the attestations necessary from each [plaintiff] and from their counsel, I will permit the use of the four-way for the examination of Mr. Harvey and Mr. Santiago reasoning as well that this is information that [has] largely either been reported in its most salacious and quasi criminal aspects in the press and also that the plaintiffs themselves are largely acquainted with the information as opposed to a third party such as the public or the investigated soul, such as Nero.

It's my view ultimately . . . that the examination of . . . the witnesses with the four-way will ultimately serve to reduce rather than expand issues for appeal, issues at the trial level, and issues at the secondary analysis level which would be responsive largely to Ms. Brown's [counsel for the State] concerns about relevance.

The remaining documents are two or three degrees removed from relevance beyond the four-way that is suggested. And they do not appear to be -- at least at this point, there's no reasonable relationship to the facts of the case relating to retaliation . . . .

So that'll be the ruling for today. Anybody have any questions about that?

[Kushnir plaintiffs' counsel]: I . . . just want to make sure I understand what you're defining as the four-way. Does that include the investigator's reports, these reports authored by my client?

THE COURT: It includes the four-way itself.

After additional colloquy as to whether the State was required to disclose just the four-way or also the underlying reports upon which it was based, the court said: "Right now, my determination is limited to the four-way itself and not the underlying reports that I believe are synthesized in the four-way."

The rules of discovery are to be liberally construed and accorded the broadest possible latitude to ensure that the ultimate outcome of litigation will depend on the merits of the matter in light of the available facts. Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 215-16 (App. Div. 1987). A trial court has broad discretion in determining the scope of discovery. Axelrod v. CBS Publ'ns, 185 N.J. Super. 359, 372 (App. Div. 1982). Consequently, the trial court's decisions regarding discovery are normally given deference by a reviewing court, and will not be upset on appeal absent an abuse of discretion or a mistaken understanding of the applicable law. Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997).

The discovery issue here implicates a "common-law, qualified privilege[] variously referred to as the 'official information,' 'governmental,' or 'executive' privilege," which, in New Jersey, finds expression in both the statutes and rules of evidence. Loigman v. Kimmelman, 102 N.J. 98, 107 (1986); see also N.J.S.A. 2A:84A-27; N.J.R.E. 515. Because privileges against compelled disclosure of relevant evidence run counter to the fundamental theory of our judicial system that the fullest disclosure of the facts will best lead to the truth, they are generally construed narrowly in favor of admitting relevant evidence. In re Grand Jury Subpoena Issued to Galasso, 389 N.J. Super. 281, 297 (App. Div. 2006). Thus, the executive privilege is not absolute. River Edge Sav. & Loan Ass'n v. Hyland, 165 N.J. Super. 540, 544 (App. Div.), certif. denied, 81 N.J. 58 (1979); see also Loigman, supra, 102 N.J. at 107-08 (describing the privilege as "qualified" and explaining the balancing of interests in which a court must engage before allowing a party access to confidential government documents).

"The controversy over executive privilege . . . requires courts to balance the claims of the member of the public against the claims of [the] government to confidentiality." McClain v. Coll. Hosp., 99 N.J. 346, 353 (1985); Loigman, supra, 102 N.J. at 104. Determining the appropriate balance of public and private interests requires the trial judge to conduct an "exquisite weighing process." Loigman, supra, 102 N.J. at 108. "[I]n civil cases in which disclosure is sought not to aid in the defense of criminal charges, but for the purpose of asserting claims for money damages, the interests of the State in maintaining . . . confidentiality . . . are entitled to a greater degree of respect." Cashen v. Spann, 66 N.J. 541, 556, cert. denied, 423 U.S. 829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975).

The principles guiding the release of a four-way investigation were expounded in Nero, supra, 76 N.J. 213. The plaintiff, Nero, was a prospective gubernatorial appointee. Id. at 216. Following the investigation into his background, the governor chose not to appoint him to the position; when asked why at a news conference, the Governor responded that the Attorney General was concerned with information revealed by the background check. Id. at 216-17. When the plaintiff, "presumably in order to defend his reputation," demanded disclosure of the report produced as a result of the investigation, the Attorney General responded that he considered it confidential and would not release it. Id. at 217.

The Court found that the report fell within the common law definition of a public record. Id. at 221-23. Under the common law rule, a citizen is entitled to inspect public documents provided that he or she "shows the requisite interest" in them. Id. at 222. While the plaintiff in Nero had a cognizable interest in the report, the existence of that interest alone did not give him an absolute right to the document. Id. at 223. The plaintiff's interest in disclosure had to be balanced against the public's interest in the confidentiality of the documents. Id. at 224.

The Court reasoned that as the Governor makes a "staggering" number of appointments, his personal knowledge of most prospective appointees is fleeting at best; the "four-way" process is a reasonable and expeditious method for investigating appointees. Ibid. The main reason for the effectiveness of the method is that those offering information are assured anonymity. Ibid. Disclosure of the report would have a "chilling effect," preventing persons with knowledge of the appointee's unsuitability for office from coming forward. Ibid.

The Governor, as chief executive, must be accorded a qualified power to protect the confidentiality of communications pertaining to the executive function. Id. at 225. Confidentiality is vital because it protects government sources of information and enhances the effectiveness of investigative techniques. Ibid. The privilege also "insulates" the governor's decision-making process it allows the Governor to make decisions "freely and effectively under a mantle of privacy and security." Id. at 225-26. The public has a vital interest in the effectiveness of the Governor's decision-making process. Id. at 226. A qualified privilege thus allows for effective discharge of the Governor's duties while ensuring that disclosure is forthcoming in appropriate circumstances. Ibid.

Though the Nero Court held that under the facts there, the public interest in maintaining confidentiality outweighed the plaintiff's interest in disclosure, id. at 226-27, Nero "does not . . . sustain an absolute privilege of secrecy for all . . . investigatory materials" in the possession of the Attorney General. Loigman, supra, 102 N.J. at 103-04. The Nero "opinion made clear . . . that there [is] no fixed rule for determining whether disclosure is appropriate." Id. at 104. As noted supra, a court should balance, in each case, the individual's right to the information against the public interest in the confidentiality of the file. Ibid. The balancing process must be concretely focused upon the relative interests of the parties in relation to the specific materials requested. McClain, supra, 99 N.J. at 361.

Here, the trial judge permitted production of the four-way investigation subject to a number of restrictions. We have been asked to review that determination on appeal. We are, however, unable to do so given the present record.

As noted earlier, the trial judge indicated that he reviewed approximately 3500 pages of documents. None of these documents, however, had been provided to this court prior to oral argument, which we conducted on March 28, 2007. Upon completion of the argument, we requested that the State submit to us the documents it had previously supplied to the trial court.

In response to our request, the State, by cover letter of April 13, 2007, submitted, for in camera review, 4262 pages of documents to each judge on our panel. No index was provided, nor was the "four-way investigation" identified. Upon review of the documents, we were unable to determine which documents the motion judge had referred to in his order; we so informed counsel for the State. In return, we received correspondence from the State's counsel, dated May 2, 2007, advising us that "it is almost impossible to separate the four-way investigation without the underlying reports. For ease of reference, I have enclosed a detailed description of documents index to assist you with reviewing the documents."

Nonetheless, the thirty-nine-page index did not indicate which documents the trial court was referring to in its determination. Thus, we sent yet another letter to defense counsel, asking whether the State presented the trial judge with the same documents that counsel had submitted to us, and whether the trial judge had identified in any fashion the pages that were encompassed by his order. In our letter, we also identified ninety-eight pages that we surmised constituted the four-way investigation the trial court had referred to in its order.

The following day, we received a letter from defense counsel in which she related that the trial judge had received all of the documents presented to us, and that he did not identify which pages should be turned over to plaintiffs, other than simply ordering disclosure of the "four-way investigation," while excluding from disclosure the underlying investigatory reports. In her letter, defense counsel also disagreed with our understanding of what pages constituted the four-way investigation. She provided the numbers of approximately eighteen pages that she considered to be the four-way investigation; in her opinion, these were "the only pages which do not contain supporting documentation."

To state the obvious, we are somewhat astounded by what has occurred; we were provided with over 4000 pages to review, which we have done, and we have now been told that less than twenty of them constitute the document that the trial court ordered released. The issue on appeal is not whether the trial judge correctly identified the materials comprising the four-way investigation report, but, as the State put it in its brief, whether the "trial court abused its discretion in ordering production of the four-way investigation." If the State takes issue with the trial judge's determination of what constitutes the four-way investigation without the underlying reports, it must first raise that issue with the trial judge.

Given the procedural posture of the case, we make no substantive determination as to the propriety of the release of the four-way investigation to plaintiffs. We are unable to evaluate the merits of the parties' positions on appeal without knowing exactly what pages the judge was referring to when he ordered that the State produce the four-way investigation, exclusive of the underlying reports. As we have observed, case law does not mandate an absolute ban on the disclosure of the requested information, but requires a fact-sensitive balancing test to determine whether the private interest in disclosure outweighs the public interest in confidentiality. Nero, supra, 76 N.J. at 226. We are not able to conduct that balancing test without knowing exactly what documents have been released.

Consequently, we remand to the trial judge to clarify what documents he was referring to in the portion of the June 27, 2006 order requiring release of the four-way investigation. We also direct the trial judge, once he makes that determination, to review the documents under the balancing test enunciated in the case law that we have discussed, and redact, to the extent possible without destroying the utility of the documents for plaintiffs' use in depositions, the identities of confidential sources of information. See Nero, supra, 76 N.J. at 224 (the main reason for the effectiveness of the four-way investigation process is that the individuals who are questioned can be assured anonymity).

Although we recognize, as did the Nero Court, the need for the anonymity of confidential sources, we also recognize that for the investigatory process to maintain its integrity, the investigators must be free from the threat of retaliation by their superiors. As the trial judge aptly stated, defendants should not be permitted to shoot the messenger.

We anticipate that after the trial court has completed its balancing analysis, and identified and redacted the specific documents to be released, the parties may take different positions than they now have as to the release of the materials. Accordingly, we do not retain jurisdiction. Nevertheless, we want to make it clear that any party aggrieved by the trial court's subsequent decision may seek interlocutory review of that determination pursuant to the applicable rules of court, and may seek a stay of that determination should the trial court vacate the stay now in effect. We make no prediction as to how any such application will be decided.

Remanded. We do not retain jurisdiction.

 

n

The four-way investigation is an investigation conducted by the State Police, at the direction of the Attorney General, to examine the background of potential gubernatorial appointees. Nero v. Hyland, 76 N.J. 213, 217 n.1, 224 (1978). The "four-way" is actually "three-pronged[] . . . [i]t includes a check of the FBI 'rap sheet,' State Police records, and interviews of all persons with information relevant to the purposes of the check." Id. at 217 n.1.

To our knowledge, those documents have never been seen by plaintiffs in this action.

The record does not explain why, if the trial judge's estimate was accurate, he was given approximately 3500 pages to review and we were given over 4200 pages to review.

Each page was designated with a Bate number.

(continued)

(continued)

18

A-2273-06T2

RECORD IMPOUNDED

May 31, 2007