IN THE MATTER OF STATE TROOPER KEITH JUCKETT v. STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

STATE TROOPER KEITH JUCKETT,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY (DIVISION

OF STATE POLICE),

Defendant-Respondent.

__________________________________

Telephonically argued January 22, 2014 Decided February 26, 2014

Before Judges Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-22-13.

Hilary L. Brunell argued the cause for appellant (Nuzzi & Mason, LLC, attorneys; Vincent J. Nuzzi, of counsel; Ms. Brunell, on the briefs).

Marvin L. Freeman, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Freeman, on the brief).

PER CURIAM

By verified complaint, served by order to show cause, New Jersey State Trooper Keith Juckett sought an order from the Law Division dismissing disciplinary proceedings then pending against him. He alleged a violation of N.J.S.A. 53:1-33, which generally requires that a disciplinary complaint against a State Police trooper "shall be filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based."1 The State responded to the order to show cause by seeking summary judgment dismissing the complaint on the merits. The court granted the State's motion, and Juckett appeals.

On our own motion, we dismiss the appeal because the Law Division lacked jurisdiction to consider Juckett's request for relief, and the appeal from the Division of State Police's actions is interlocutory. Although we are hampered by the omission from the record of Juckett's complaint, it is evident from the oral argument before the Law Division, and the briefing before us, that Juckett challenged the correctness of an ongoing State agency proceeding.

Under Rule 2:2-3(a)(2), judicial review of "final decisions or actions of any state administrative agency or officer" is vested in this court, not the Law Division. We discern no exception to the Rule. This is not a declaratory judgment action. Cf. NL Indus., Inc. v. N.J. Dep't of Envtl. Prot., 397 N.J. Super. 127, 131-32 (App. Div. 2007) (holding that plaintiff acted properly in seeking declaratory relief from trial court despite absence of a final agency decision), certif. denied, 195 N.J. 418 (2008). Nor does Title 53 authorize review by the trial court. Cf. N.J.S.A. 40A:14-150 (permitting review by Law Division of disciplinary action against police officer in non-civil service municipality).

We recognize that it has long been the preference of our system, when a matter has been brought in the wrong division, to transfer it to the correct one, rather than dismiss the case. O'Neill v. Vreeland, 6 N.J. 158, 169 (1951) (discussing transfer between Chancery and Law Divisions). When a wrongly filed matter is appealed without having been transferred, we may proceed to decide the appeal as if taken directly from the agency. See R. 1:13-4(b); Mutschler v. N.J. Dep't of Envtl. Prot., 337 N.J. Super. 1, 10 (App. Div.), certif. denied, 168 N.J. 292 (2001). In Roberts v. N.J. Div. of State Police, 386 N.J. Super. 546, 550 (App. Div. 2006), aff'd 191 N.J. 516 (2007), a case also involving N.J.S.A. 53:1-33, the trooper initially filed a challenge in the Law Division to a final disciplinary action. Upon a motion by the Division of State Police, the matter was transferred to the Appellate Division. Ibid.

However, unlike Roberts, Juckett does not appeal from a final decision. Instead, he asks the court to intervene in the early stages of a disciplinary matter, before a hearing is held pursuant to N.J.S.A. 53:1-33, and before the Division has itself considered Juckett's argument or his defense on the merits to the charges of misconduct.2 See Bouie v. N.J. Dep't of Cmty. Affairs, 407 N.J. Super. 518, 527 (App. Div. 2009) (stating that "an agency action does not become final until all avenues of internal administrative review have been exhausted"); In re Donohue, 329 N.J. Super. 488, 494 (App. Div. 2000) (stating that an "administrative determination must be final as to all parties and all issues" to be appealable).

Juckett has failed to exhaust administrative remedies. See R. 2:2-3(a)(2) (stating that appellate review "shall not be maintainable so long as there is available a right of review before any administrative agency or officer, unless the interest of justice requires otherwise"); see, e.g. Central R.R. Co. v. Neeld, 26 N.J. 172, 178, cert. denied, 357 U.S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371 (1958). We discern no exception to the exhaustion rule in this case. See Triano v. Div. of State Lottery, 306 N.J. Super. 114, 121-22 (App. Div. 1997) (stating the exhaustion rule generally will not apply: "(1) when only a question of law exists; (2) when administrative remedies would be futile; (3) when irreparable harm would result; (4) when jurisdiction of the agency is doubtful; or (5) when an overriding public interest calls for a prompt judicial decision.").

Interlocutory review may only be secured by leave granted upon good cause shown. R. 2:4-4.

[T]he grant of leave to appeal [as within time] is most extraordinary relief and . . . the haphazard employment of it can have but a deleterious impact on appellate practice and the overall administration of justice. Piecemeal reviews, ordinarily, are anathema to our practice, as expressed in the rules which require the final disposition of all issues at one hearing on the trial level followed by orderly appellate review. The interruption of the litigation at the trial level, by the taking, as here, of an unsanctioned "appeal", disrupts the entire process and is wasteful of judicial resources.
 
[Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div. 1975).]

We decline to grant such leave under the circumstances of this case. Juckett was the subject of a criminal investigation that did not lead to criminal charges. The Supreme Court in Roberts, supra, construed the provision in N.J.S.A. 53:1-33 that tolls the forty-five-day period for filing disciplinary charges during a concurrent criminal investigation. The statute provides:

The applicable time limit shall not apply if an investigation of an officer or trooper for a violation of the internal rules or regulations of the law enforcement unit is included directly or indirectly within a concurrent investigation of that person for a violation of the criminal laws of this State. The applicable time limit shall begin on the day after the disposition of the criminal investigation.

[N.J.S.A. 53:1-33.]

The Court in Roberts held that the forty-five days do not run immediately after the criminal investigation ends; rather, the time period begins to run after the criminal investigation is complete, and the superintendent obtains sufficient information to file disciplinary charges. Roberts, supra, 191 N.J. at 525-26. Applying the statute, the Court denied Roberts's argument that the disciplinary action against him was untimely. Id. at 526. In dictum, the Court indicated that its interpretation of the statute was subject to a possible exception if there were excessive delays in the superintendent's internal review, after the completion of a criminal investigation. Ibid. The Court stated, "Here we do not confront a situation in which an internal investigation was unnecessarily delayed or protracted." Ibid.

Juckett seizes on that statement by the Roberts Court, and asserts that the investigation in his case was indeed "unnecessarily delayed or protracted." Consideration of Juckett's argument would require a detailed review of the facts surrounding the internal investigation of his actions. That is best performed based on a full record after a hearing before the agency. Moreover, the superintendent has not expressly addressed Juckett's timeliness challenge in a final decision.

Juckett's argument would also require us to infuse meaning into the Court's dictum in Roberts, which the Court has not yet amplified or applied to concrete facts. If presented with a suitable controversy, we are bound to respect the Court's relevant dictum. See State v. Breitweiser, 373 N.J. Super. 271, 282-83 (App. Div. 2004) (stating the Appellate Division "consider[s] [itself] bound by carefully considered dictum from the Supreme Court"), certif. denied, 182 N.J. 628 (2005). Yet, depending on the disposition of Juckett's arguments before the Division of State Police both as to the forty-five-day requirement, and as to any defense on the merits of the charges we may avoid reaching the issue. We therefore decline to reach, prematurely and perhaps unnecessarily, this novel issue of the meaning of the Court's dictum. See Edwards v. McBreen, 369 N.J. Super. 415, 423 (App. Div. 2004) (declining to reach a novel issue of law on an incomplete record).

1 A copy of the complaint was not included in the record, notwithstanding the command of Rule 2:6-1(a)(1)(A), which states that an appendix shall include the pleadings in a civil action. We infer the verified complaint's contents from the order to show cause and oral argument before the trial court.

2 A trooper may waive a hearing and accept a final decision on the charges against him or her. See N.J.S.A. 53:1-33 (stating that a State trooper "may waive the right to a hearing and may appeal the charges directly to any available authority"). However, there is no indication in the record that Juckett has waived a hearing.