KENNETH McPEEK v. DEPUTY ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2181-07T32181-07T3

KENNETH McPEEK,

Plaintiff-Appellant,

v.

DEPUTY ATTORNEY GENERAL OF

THE STATE OF NEW JERSEY,

MATTHEW GABRIELSON, individually

and in his official capacity;

FRANK ZANZUCCKI, EXECUTIVE

DIRECTOR NEW JERSEY RACING

COMMISSION, individually and in his

official capacity; ESTATE OF KARL

KAUFMANN, CHIEF INVESTIGATOR

N.J. RACING COMMISSION, individually

and in his official capacity; ROBERT

FREI, DETECTIVE SERGEANT NEW

JERSEY STATE POLICE, individually

and in his official capacity,

Defendants-Respondents.

___________________________________

 

Submitted December 10, 2008 - Decided

Before Judges C.L. Miniman and King.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5209-02.

Drazin and Warshaw, attorneys for appellant (Richard A. Amdur, Jr., on the brief).

Anne Milgram, Attorney General, attorney for respondents (Melissa H. Raksa, Deputy Attorney General, of counsel; Karen L. Jordan, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Kenneth McPeek appeals the dismissal of his suit against several state officials for violation of his civil rights under the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, McPeek's horse trainer's license was suspended after a race in which one of his horses was injured and was euthanized. Although the suspension never was effective due to a stay pending the successful administrative appeal, McPeek sued the defendant state entities and officials in Federal District Court for violation of his federal and state civil rights.

The District Court dismissed McPeek's federal claims with prejudice and his state claims without prejudice. McPeek then filed a similar suit in the Superior Court, Law Division, Monmouth County. The trial judge concluded, and McPeek's counsel agreed, that the State constitution offered no greater relief in this regard than its Federal counterpart. The judge then dismissed the state action and this appeal followed.

We agree with the trial judge the plaintiff's claims were properly dismissed, and believe that in any case they are barred under res judicata and collateral estoppel principles. We affirm.

I

This is the factual background. On September 17, 1993 "Mean Doris Dean," recently arrived from Kentucky, fell and broke her leg during a race at the Meadowlands track. The horse was euthanized. McPeek, the trainer, was in Kentucky at the time of the race but he had applied for a New Jersey trainer's license from the New Jersey Racing Commission (Commission). Although the Commission did not issue McPeek a trainer's license until September 23, 1993 he did receive a temporary license on September 6, 1993.

After "Mean Doris Jean" was destroyed, two former employees complained to the Commission that, although McPeek knew the horse had swollen and inflamed ankles and was not in a condition to race, he still decided to race her. Following this complaint, the Commission's Board of Stewards conducted a disciplinary hearing on December 8, 1993. On December 11, 1993 the Board of Stewards suspended McPeek's license for thirty days, concluding that he (1) had acted detrimentally to racing, contrary to N.J.A.C. 13:70-1.15; (2) had entered or started a horse not in serviceable, sound racing condition, contrary to N.J.A.C. 13:70-20.11; and (3) had committed questionable conduct, contrary to N.J.A.C. 13:70-16.23.

After the Board of Stewards hearing, defendant Zanzuccki, the Commission's Executive Director, issued a ruling on December 29, 1993, that McPeek had knowingly entered "Mean Doris Jean" in the race in an unfit condition and ordered his trainer's license suspended for one year. McPeek then appealed Zanzuccki's and the Board of Steward's suspensions to the Racing Commission pursuant to N.J.A.C. 13:70-13A-1 and sought a hearing. The matter was referred to an Administrative Law Judge (ALJ) for hearing as a contested case. Pursuant to N.J.A.C. 13:70-13 A. 5. McPeek on January 4, 1994 then requested a stay and Zanzuccki stayed the suspension pending a decision by the ALJ. The ALJ who reviewed the matter issued an initial decision on October 4, 1999 recommending that the Commission dismiss its ruling that McPeek had violated its regulations. (The reason for this five-year delay is not present in the record.) The Commission then adopted the ALJ's initial decision on December 21, 1999 and dismissed the suspension.

On October 3, 2001 McPeek filed suit in the United States District Court for the District of New Jersey alleging that defendants had violated his federal civil rights under the Federal Civil Rights Act, 42 U.S.C.A. 1983, 1985, 1985, 1986, 1988; and Amendments Four, Five, and Fourteen of the Federal Constitution, as well as claims arising under state law and the parallel provisions of the New Jersey Constitution. (Because of the multiplicity of defendants, we will refer to them collectively as the Attorney General. The Attorney General's Office has at all times represented the defendants involved.) The Attorney General then filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) in lieu of a reply. Judge Cooper treated this as a motion for summary judgment, and in a twenty-five page opinion dated September 26, 2002, first dismissed all claims against the State entities on Eleventh Amendment grounds. She also dismissed the claims against the individual defendants Zanzuccki, Kaufmann, and Frei under the doctrine of qualified immunity. In doing so, Judge Cooper observed that although an occupational license is a property interest, and thus McPeek was entitled to due process before its deprivation, the Board of Stewards held an adequate hearing before ordering the suspension of his license. Further, although Zanzuccki increased the suspension from thirty days to one year, he stayed the suspension before it actually went into effect. Judge Cooper thus found that at no time was McPeek ever deprived of a property interest without due process.

Judge Cooper also noted that "bare allegations of malice" were insufficient to overcome a claim of qualified immunity. She found that since 42 U.S.C.A. 1985, 1986, and 1988 require a plaintiff to allege that defendants engaged in a conspiracy to deprive him of equal protection under the law or equal privileges or immunities under the law where there exists a racial or class-based animus behind the conspirators' actions, all individual defendants were entitled to summary judgment. She also dismissed McPeek's pendant state claims without prejudice pursuant to 28 U.S.C.A. 1367(c)(3).

II

McPeek then filed this suit in the New Jersey Superior Court on October 25, 2002. This time, the complaint omitted the State entities, and included a claim against Deputy Attorney General Matthew Gabrielson, individually and in his official capacity. This complaint alleged facts virtually identical to its federal counterpart and argued the defendants violated McPeek's "rights and immunities guaranteed to him under the New Jersey State Constitution Article 1, Paragraph 1, Article 1, Paragraph 5, Article 1, Paragraph 7, the New Jersey [Law Against Discrimination (LAD)], N.J.S.A. 10:5-1 [to -49] as well as the parallel Federal Acts, 42 U.S.C. Sections 1983, 1985, 1986 and 1988 and parallel U.S. Constitution Amendments 4th, 5th and 14th."

The case was scheduled for trial on December 4, 2007, and before trial the Attorney General filed a motion to dismiss. Before the parties began jury selection, Judge Sullivan heard the Attorney General's motion to dismiss. Counsel for both parties consented to a ruling on the motion before trial because the outcome of the motion might render jury selection and witness testimony unnecessary. During argument, this colloquy ensued:

[THE COURT:] My real question though is this. The only cause of action which got remanded to State Court were causes of action arising under State law. Now some of them obviously don't apply, like LAD and things like that. Is there any provision in the New Jersey Constitution that you know of that provides broader remedies than the United States Constitution in this regard?

MR. AMDUR: Not that I'm aware of.

THE COURT: Okay. My reading is the same. That being the case, I would think . . . effectively we got remanded nothing. Everything had been disposed of by the [f]ederal [j]udge and what was remanded to us she didn't want to rule on, but effectively it was the same thing she already ruled on, just encompassed in a different constitution. And that being the case, I would have to grant the Attorney General's motion.

Judge Sullivan then entered an order dismissing the suit for the same reasons Judge Cooper set forth in her federal opinion.

III

Plaintiff argues that Judge Sullivan erred in dismissing his state law claims. We disagree and affirm. Counsel for both sides agreed it was appropriate to hear the motion to dismiss prior to selecting a jury. Judge Sullivan commented: "[W]hether we call it a summary judgment motion or a motion to dismiss or even a Rule 4:37-2 motion brought . . . at the time of opening statements . . ., everyone agrees we need to resolve the legal issues at this time."

In reviewing the grant or denial of a summary judgment, a court of review applies the same standard applied by the motion judge to resolve the issues, without affording any special deference to the judge's interpretation of the law. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Summary judgment motions under Rule 4:46-2(c) and motions to dismiss under Rule 4:37-2 are subject to essentially the same standard. Cf. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540-41 (1995).

Therefore, a reviewing court must decide "what reasonable conclusions a rational jury can draw from the evidence." Id. at 535. To make the determination, the appellate court "must accept as true all evidence [that] supports the position of the party defending against the motion and accord [that party] the benefit of all legitimate inferences which can be deduced therefrom." Ibid. (quotations and citation omitted). Thus, "the essence of the inquiry [is] 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). If reasonable minds could differ, the motion must be denied. Ibid.

McPeek at the outset concedes that the NJCRA provides no greater remedies beyond those in its federal counterparts. He also appears to abandon his Federal constitutional claims in light of Judge Cooper's ruling on that issue. The Attorney General, perhaps as a precaution, argues that McPeek's federal claims were properly dismissed because they had already been fully litigated in federal court and were thus within the ambit of res judicata and collateral estoppel. Although we read McPeek's brief as asserting only State constitutional claims, we agree with the Attorney General that McPeek is now barred from relitigating the federal constitutional issues for the reasons explicated below.

Res judicata, or claim preclusion, "'refers broadly to the common-law doctrine barring relitigation of claims or issues that have already been adjudicated.'" Tarus v. Borough of Pine Hill, 189 N.J. 497, 520 (2007) (quoting Velasquez v. Franz, 123 N.J. 498, 505 (1991)). Res judicata bars repetitive litigation when there has been a final judgment by a court of competent jurisdiction and the causes of action, issues, parties, and relief sought are substantially similar. Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989). Under both federal and state law, claim preclusion requires its proponent to show:

(1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one.

[McNeil v. Legislative Apportionment Comm'n of N.J., 177 N.J. 364, 395 (2003) (quoting Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 412 (1991)), cert. denied, 540 U.S. 1107, 124 S. Ct. 1068, 157 L. Ed. 2d 893 (2004).]

Collateral estoppel, or issue preclusion, "represents the 'branch of the broader law of res judicata which bars relitigation of any issue which was already actually determined in a prior action, generally between the same parties, involving a different claim or cause of action.'" Tarus, supra, 189 N.J. at 520 (quoting Sacharow v. Sacharow, 177 N.J. 62, 76 (2003)). To foreclose relitigation of an issue, the party asserting the collateral estoppel bar must show:

(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 a 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.

[First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (quoting Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005)).]

Although collateral estoppel and res judicata ostensibly are separate constellations in the judicial firmament, the Supreme Court has observed that both serve the "important policy goals" of "'finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness.'" Hennessey, supra, 183 N.J. at 599 (quoting City of Hackensack v. Winner, 82 N.J. 1, 31-33 (1980)).

In the present case, we agree with the Attorney General that McPeek's federal claims are barred. Judge Cooper clearly dismissed each aspect of these claims with prejudice and on the merits. The federal claims were fully and fairly litigated in federal district court. Although one state defendant has been substituted for another, the similarity of parties, claims, and issues remain virtually the same. Cf. Penn Salem Marina, Inc., 190 N.J. at 352. The "issue between the parties was fairly litigated and determined[;] it should not be relitigated." Ibid.

McPeek urges that since the federal court declined to exercise supplemental jurisdiction over his state law claims, "there is nothing which would prevent the plaintiff from attempting to establish a prima facie case of malice, which would, under State law, serve as an exception to any and all immunities available to individual State officials, unlike in the [f]ederal [c]ourt action, which was dismissed."

The Attorney General counters that there is no cause of action for "malice" under State law. The Attorney General asserts that the District Court already decided the malice issue with regard to the qualified immunity of the state officials and McPeek has offered no additional proofs on the matter. Moreover, the Attorney General points out that McPeek's cause of action arose five years before the NJCRA was adopted in 2004 and McPeek never amended his complaint to allege a claim under the Act. Therefore, he should be procedurally barred. Finally, the Attorney General also urges that even if we allow McPeek to assert his NJCRA claim, the District Court already has substantively decided the same issues. Since McPeek conceded the NJCRA affords no greater protection than its federal counterpart, his state civil rights claims should be dismissed under res judicata and collateral estoppel principles. For the most part, we agree.

The NJCRA, enacted as L. 2004, c. 143, 2, effective September 10, 2004, allows a party who has been deprived of any substantive due process, equal protection rights, privileges or immunities secured under either the Federal or State Constitutions to bring a civil action for damages and injunctive relief. See N.J.S.A. 10:6-1, -2(c); cf. Owens v. Feigin, 394 N.J. Super. 85, 97 (App. Div. 2007) (procedural requirements of the Tort Claims Act do not apply to actions under the NJCRA), aff'd as modified, 184 N.J. 607 (2008). McPeek's Law Division complaint and prayer for relief, however, did not include any claims under the NJCRA. Instead, as noted above, he alleges the individual defendants violated his "rights and immunities guaranteed to him under the New Jersey State Constitution Article 1, Paragraph 1, Article 1, Paragraph 5, Article 1, Paragraph 7, the [LAD], N.J.S.A. 10:5-1 [to -4a] as well as the parallel Federal Acts, 42 U.S.C. Sections 1983, 1985, 1986 and 1988 and parallel U.S. Constitution Amendments 4th, 5th and 14th." Although the NJCRA was mentioned in passing by the Attorney General during the motion hearing, we share the Attorney General's doubt as to whether the issue is properly before us.

The Supreme Court in Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230 (1998), comprehensively detailed when an appellate court should review an issue not properly raised below:

An appellate court will consider matters not properly raised below only if the issue is one "of sufficient public concern." State v. Churchdale Leasing, Inc., 115 N.J. 83, 100 (1989); A. & B. Auto Stores of Jones St[.], Inc. v. City of Newark, 59 N.J. 5, 20 (1971). Even if the matter satisfies that test, the court will not consider the issue if the record before the court is not complete as to the newly presented issue. In re Board of Educ. of Boonton, 99 N.J. 523, 536 (1985) (refusing to consider newly raised issue with "an insufficient factual basis" in the record), cert. denied sub nom., Kramer v. Pub[.] Employment Relations Comm'n, 475 U.S. 1072, 106 S. Ct. 1388, 89 L. Ed. 2d 613 (1986); Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234-35 (1973) (remanding "for the orderly and complete presentation of the proofs" without passing on newly-raised issue).

McPeek's appellate brief for the first time presents a claim under the "State Civil Rights Act," while admitting that "the State Civil Rights Act provides no additional remedies beyond the remedies available in the Federal Civil Rights Acts." While we have no doubt that civil rights violations by public officials are a matter of "sufficient public concern," see Cornblatt, supra, 153 N.J. at 230, we do not think that such an issue is presented here. As Judge Cooper noted, McPeek was never effectively denied a property interest; has never offered more than bare allegations of malice; and failed to bear his burden to present evidence that the individual defendants deprived him of equal protection of law or equal immunities under the law due to racial or class-based animus. We find McPeek's NJCRA claim improperly raised on appeal and thus procedurally barred.

Even if the NJCRA claim was properly raised it is now barred under principles of res judicata and collateral estoppel. Tarus, supra, 189 N.J. 497, involved a fact pattern similar to the one at hand and provides an apposite discussion.

In that case, Tarus, who considered himself a "Borough public watchdog," had regularly attended and participated in Borough Council meetings. Tarus, supra, 189 N.J. at 501. At several Council meetings in 2000, Tarus videotaped the proceedings. Id. at 501-02. However, during the September 2000 meeting, the Mayor informed him that several individuals did not want to be videotaped, and instructed him to turn off the camera. Id. at 502. Tarus refused, asserting that it was his civil right to videotape the meetings. Ibid. The Mayor then instructed the Police Chief to remove him. Ibid. When the Police Chief told Tarus to turn off the camera, he again refused; the Police Chief escorted him to the station and issued a disorderly persons summons. Ibid.

Tarus subsequently filed a complaint under 42 U.S.C.A. 1983 against the Borough, Mayor, and Police Chief in federal court. Tarus, supra, 189 N.J. at 504. He alleged that the defendants arrested him without probable cause, maliciously prosecuted him, and otherwise denied his rights under the First, Fourth, and Fourteenth Amendments of the Federal Constitution, as well as his rights under Article 1, paragraph 6 of the New Jersey Constitution. Ibid. The District Court granted defendants' motion for summary judgment as to all federal law claims, but like the present case, declined to exercise supplemental jurisdiction over Tarus's state law claims and dismissed them without prejudice. Id. at 505.

Tarus then filed a claim in the Law Division realleging his state law claims. Ibid. The trial judge agreed with the District Court that the defendants had probable cause to arrest Tarus, and disposed of the false arrest, imprisonment, and malicious prosecution claims. Ibid. Tarus appealed, and we affirmed. Ibid. In affirming our decision on this issue, the Supreme Court concluded:

Notwithstanding the District Court's dismissal "without prejudice" of plaintiff's additional state-law claims of malicious prosecution and false arrest, the Law Division correctly observed that the District Court's findings of probable cause defeated plaintiff's claims in this action. The Appellate Division affirmed, holding that plaintiff's state-law claims were "barred from litigation here under the doctrine of res judicata." Tarus [v. Borough of Pine Hill], 381 N.J. Super. [412], 425 [(App. Div. 2005)]. We conclude the plaintiff is estopped from relitigating his contention that defendants lacked probable cause for arrest because that issue was "actually determined in a prior action." [State v.] Gonzalez, 75 N.J. [181,] 186 [(1977)]. Accordingly, we need not reach that issue on the merits. Because probable cause is an absolute defense to an allegation of malicious prosecution or false arrest, Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000), plaintiff's claims must fail.

[Tarus, supra, 189 N.J. at 521.]

As in Tarus, McPeek's federal civil rights claims were already considered, discussed at length, and dismissed on the merits by the District Court. McPeek here concedes the NJCRA provided no greater protection than its federal analogues. He has offered no additional evidence to demonstrate Zanzuccki acted with malice when he increased the license suspension from thirty days to one year. As all of these same issues have been decided, under Tarus we find it appropriate to dismiss McPeek's state law claims under res judicata principles.

Affirmed.

(continued)

(continued)

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A-2181-07T3

December 22, 2008