J.S v. MARSETTA LEE

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0216-10T3

J.S.,

Plaintiff-Respondent,

v.

MARSETTA LEE AND MARY BETH

WOOD,

Defendants-Appellants.

________________________________________________________________

April 11, 2011

Argued January 25, 2011 - Decided

Before Judges Wefing, Payne and Koblitz.

On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Essex County, Docket No. L-783-10.

Karen L. Jordan, Deputy Attorney General, argued the cause for appellants (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Rahat N. Babar, Deputy Attorney General, on the briefs).

Richard D. Pompelio argued the cause for respondent (Pompelio, Foreman & Gray, L.L.C., attorneys; Mr. Pompelio, on the brief).

PER CURIAM

Defendants Deputy Attorney General Marsetta Lee (Director), director of the New Jersey Victims of Crime Compensation Office (VCCO), and Senior Deputy Attorney General (SDAG) Mary Beth Wood, counsel to the VCCO, were granted leave to appeal the trial court s order of July 23, 2010, allowing a civil rights lawsuit brought by J.S. to proceed against them in connection with the VCCO s consideration of J.S. s claim for a victim compensation award. After reviewing the record in light of the contentions advanced on appeal, we reverse.

J.S. sought an award from the VCCO based on the abuse inflicted by his adoptive father between 1991 and 2001. The father is currently incarcerated for sexually abusing him and his younger sibling. J.S. disclosed the abuse in 2006,1 and two years later, on April 8, 2008, filed a claim with the VCCO. On June 30, 2008, the VCCO entered an award of $25,000 for loss of support from offender.

On March 3, 2008, Governor Jon S. Corzine issued a reorganization plan, which transferred the Victims of Crime Compensation Agency (VCCA) from the Department of the Treasury to the Department of Law and Public Safety and renamed the entity the VCCO. See Executive Reorganization Plan No. 001-2008, 40 N.J.R. 913(a) (Mar. 28, 2008).

Also, during the first part of 2008, the New Jersey Office of the Inspector General conducted a review of VCCA operations and internal controls, which also included a review of case files for the past five years. See Letter from Mary Jane Cooper, Inspector General of New Jersey, to Anne Milgram, Attorney General of New Jersey (July 15, 2008), available at http://www.state.nj.us/oig/pdf/lettertoagmilgram_victimsofcrime compensation.pdf. The Inspector General indicated that some past payments from the VCCA did not have sufficient documentation. Ibid.

The VCCO advised J.S. in an October 10, 2008 letter that it had reconsidered the earlier award and denied the claim. The VCCO indicated that J.S. s application contained inaccurate and misleading information, in that J.S. had disclosed the abuse in 2005, not 2006 as he claimed, and his application was therefore untimely, in that it had not been filed within two years of disclosure. The VCCO also determined that J.S. s sibling had received compensation (paid to their mother as the sibling was a minor). When J.S. disclosed the abuse he suffered, he was already living on his own, and the perpetrator was already incarcerated for abusing J.S.'s sibling.

J.S. appealed the VCCO's decision to deny him compensation to the VCCO Review Board (Board) on November 18, 2008. N.J.S.A. 52:4B-3.4. On October 29, 2009, the Board held a hearing at which SDAG Wood appeared on behalf of the VCCO. On November 19, 2009, the Board reversed the prior denial and awarded the original amount of $25,000 to J.S. On January 21, 2010, the VCCO issued an order to that effect.

Three days later, on January 25, 2010, J.S. filed a complaint in lieu of prerogative writs seeking an order requiring that defendants individually process plaintiff s order of payment and compensate J.S. for tortious interference with an economic advantage, intentional infliction of emotional distress and a violation of plaintiff s civil rights under state and federal law.

On January 28, 2010, the VCCO sent a check to J.S. at his former address. J.S. s counsel notified the VCCO of J.S. s current address on January 29, 2010. A second check was sent to J.S. on February 11, 2010. On February 16, 2010, the VCCO entered an additional order of payment for $3750, fifteen percent of the total award, for counsel fees.

J.S. claimed that SDAG Wood, acting under the Director's authority, did not provide to the Board members reviewing the October 10, 2008 denial the June 30, 2008 order granting an award until the hearing began. In his complaint, J.S. conceded that he had nevertheless received a fair and just hearing before the Board. J.S. also alleged that SDAG Wood and the Director tortiously withheld payment of his June 30, 2008 award.

Defendants moved to dismiss the complaint in its entirety on May 17, 2010. In its order of July 23, 2010, the court dismissed J.S.'s request for an order compelling payment and his state tort claims, but left intact the civil rights claims under federal and state law.

Defendants argue that they did not deprive plaintiff of his civil rights and are immune from suit. SDAG Wood additionally raises the litigation privilege.

Plaintiff points out that the website of the VCCO displays its mission:

Our [m]ission is to provide compensation to innocent victims of violent crime for some expenses they suffer as a result of the crime. In carrying out its mission, the VCCO is mindful of the special needs of those victimized by crime and their right to be treated with fairness, compassion and respect.

[VCCO homepage, http://www.nj.gov/oag/nj victims/.]

Plaintiff also relies on the Victims' Rights Amendment (VRA) of the New Jersey Constitution, which provides that a victim of crime shall be treated with fairness, compassion and respect by the criminal justice system. N.J. Const. art. 1, 22. He relies as well on New Jersey's Crime Victims' Bill of Rights, which indicates that crime victims should be treated with dignity and compassion and compensated for their loss whenever possible. N.J.S.A. 52:4B-36a and b. He also relies on New Jersey's Civil Rights Act. N.J.S.A. 10:6-1 to -2.

Plaintiff asserts that the delay in providing him compensation is a due process violation that affords him a cause of action against the public employees under federal law as well as state law. In a similar situation, we rejected a substantive due process challenge to the method of setting the priority of restitution payments to crime victims. Felicioni v. Admin. Office of the Courts, 404 N.J. Super. 382 (App. Div. 2008). In Felicioni, we recognized that substantive due process is reserved for the most egregious governmental abuses against liberty or property rights, abuses that 'shock the conscience' or otherwise offend . . . judicial notions of fairness . . . and that are offensive to human dignity. Id. at 392 (internal quotation marks and citations omitted). We did not view the mere deferral of payment to be of constitutional dimension, rejecting the plaintiff s constitutional challenge based on federal law, the New Jersey Civil Rights Act and the VRA. Id. at 396, 398-401.

J.S. received his award and attorney's fees after an appellate process consisting of what he terms a fair and just hearing before the Board. His complaint is that the award was delayed by actions of the Director and that her counsel did not provide the Board in a timely manner with evidence of the prior award. Although an appellate process may be slow at times, and perhaps frequently seems slow to the aggrieved party, such delay does not amount to a violation of due process. J.S. waited at least two years to file a claim application and then waited another twenty-two months before receiving payment. Any delay in providing appropriate compensation to a crime victim is unfortunate. However, we find no support for a claim of violation of civil rights.

Additionally, defendants, as government officials, are entitled to qualified immunity from suit under federal law, 42 U.S.C. 1983, because their conduct did not violate clearly established . . . constitutional rights of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, ___, 129 S. Ct. 808, 815, L. Ed.2d 565, 573 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982)). As we find that no constitutional or statutory rights were violated, a reasonable person could not have known to the contrary.

Moreover, defendants' assertion of qualified immunity was not premature. "Qualified immunity is 'an immunity from suit rather than a mere defense to liability.'" Pearson, supra, 555 U.S. 223 at ___, 129 S. Ct. at 815, L. Ed. 2d at 573 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411, 425 (1985)). "[T]he 'driving force' behind creation of the qualified immunity doctrine was a desire to ensure that '"insubstantial claims" against government officials be resolved prior to discovery.'" Pearson, supra, 555 U.S. at ___, 129 S. Ct. at 815, L. Ed. 2d at 573 (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2, 107 S. Ct. 3034, 3039 n.2, 97 L. Ed. 2d 523, 53 n.2 (1987)). The United States Supreme Court has therefore "'repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.'" Pearson, supra, 555 U.S. at ___, 129 S. Ct. at 815, L. Ed. 2d at 573 (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589, 595 (1991)).

SDAG Wood is also immune from suit due to the litigation privilege, which shields an attorney from civil liability for communications made in the course of litigation, including administrative proceedings. Loigman v. Twp. Comm. of Middletown, 185 N.J. 566, 585-86 (2006) (applying the privilege to an attorney's sequestration motion). As the Court said in Loigman, "[i]n applying the privilege, [courts] consider neither the justness of the lawyers' motives nor the sincerity of their communications." Id. at 586. Even if SDAG Wood intentionally sought to keep the prior award grant hidden from the Board, which is extremely unlikely given the reliance by plaintiff on that award in his argument before the Board, her motives are not relevant to consideration of this privilege.

Reversed.

1 When J.S. disclosed the abuse, his adoptive father was already incarcerated for abusing his sibling. The father subsequently entered a guilty plea and was sentenced for abusing J.S.