SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-0409-96T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWARD A. WARD, II,
Defendant,
-------------------------------
WILLIAM R. HUFF,
Appellant.
___________________________________________________________________
Submitted April 7, 1997 - Decided July 3,
1997
Before Judges Petrella, Landau and Kimmelman.
On appeal from Superior Court, Law Division,
Morris County.
Walder, Sondak & Brogan and Crummy, Del Deo,
Dolan, Griffinger and Vecchione, attorneys for
appellant (Jeffrey A. Walder, of counsel, and
John J. Gibbons, of counsel, on the brief).
John B. Dangler, Morris County Prosecutor,
attorney for respondent (Michael Jan,
Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
LANDAU, J.A.D.
This is an appeal by William R. Huff, who had filed a number of complaints in Harding Township charging criminal offenses
against the defendant, Edward A. Ward, II. As several of the
complaints charged fourth degree indictable offenses, all of the
complaints were referred to the Office of the Morris County
Prosecutor.
Huff and his wife had pending at the same time a civil action
against Ward and his wife. The Huffs' residential property
includes a private road which is subject to an easement used by the
Wards to reach their house. As the result of disputes about the
speed at which the Wards' vehicles traverse the easement,
assertedly endangering the Huffs and their young children, the
Huffs placed speed bumps on sections of the private road which had
been paved by the Wards. Ward objected particularly to one speed
bump and asked that it be removed. When Huff refused, it is
asserted that Ward had the speed bump removed and the asphalt
residue dumped off the road portion of Huff's property. The civil
suit has reportedly produced numerous claims and counterclaims.
The disputes are obviously bitter.
Huff's complaints, filed in Harding Township Municipal Court,
charged violations of N.J.S.A. 2C:17-3(a)(1) and (2)(purposefully
or knowingly damaging property of another and purposefully or
recklessly tampering with property of another so as to endanger
people or property); criminal trespass, in violation of N.J.S.A.
2C:18-3; and violation of the Solid Waste Management Act,
specifically N.J.S.A. 13:1E-9.3(a) and (b). The latter sections
prohibit collection, transport or disposal of solid waste in excess
of .148 cubic yards of solids except at an approved disposal site.
The criminal mischief complaints asserted damages in excess of
$500, and accordingly would constitute fourth degree crimes under
the N.J. Code of Criminal Justice (Code). The other complaints
charged disorderly persons offenses.
Initially, the Morris County Prosecutor sent a form letter to
Ward and to the Harding Township Municipal Court advising that the
complaints had been administratively dismissed. The form utilized
contained a check mark in the box entitled "civil court matter."
Upon learning of this disposition, Huff's personal attorney, James
A. Plaisted, Esq., wrote to the prosecutor requesting that the
disorderly persons offenses be remanded to the municipal court
rather than being dismissed. The prosecutor did not remand any of
the complaints to the municipal court.
Thereafter, the Assignment Judge of Morris County entertained
Huff's "motion", entitled under the summons numbers of the
respective complaints, for an order remanding the disorderly
persons complaints to the municipal court and further, for an order
vacating the prosecutor's administrative dismissal.See footnote 1
Initially denied, the judge granted reconsideration and
required the prosecutor to explore further the substance of the
complaints and requested that the assistant prosecutor meet with
Huff's attorney. Following the meeting between the prosecutor and
Huff's private attorney, the prosecutor reaffirmed the decision to
dismiss all charges.
The judge again entertained briefs and arguments. Several
counsel appeared for Huff, and a letter-brief from a professor of
an out-of-state law school was also submitted on his behalf. This
letter-brief was later incorporated in the appendix before us.See footnote 2
The judge concluded that the standard to be applied in
considering the prosecutor's determination was whether it
constituted a clear abuse of discretion. He found, following the
prosecutor's compliance with the court's direction to meet with
Huff's representative and more fully consider Huff's complaints,
that there was compliance with the policy of the New Jersey Crime
Victim's Bill of Rights, N.J.S.A. 52:4B-34 to 4B-49. The judge
further found that there was no clear abuse of discretion in the
prosecutor's determination that the criminal complaints were more
appropriately addressed in the pending civil actions, but that
there was "probable cause respecting each of the criminal
complaints filed by William R. Huff against Edward A. Ward II."
The final order affirmed the prosecutor's administrative dismissal
of each of the five complaints.
On appeal, Huff argues that the judge erred in ruling that the
county prosecutor had authority to dismiss the disorderly persons
complaints when the complainant wished to pursue them in municipal
court (Point I); that, assuming the prosecutor's authority to
dismiss such complaints, the judge erred in applying an abuse of
discretion standard rather than conducting an independent plenary
review (Point II); that the prosecutor could not administratively
dismiss environmental law complaints (Point III); and finally, that
even if an abuse of discretion standard was proper, the judge erred
in concluding that the discretion had not been abused (Point IV).
We have considered carefully these arguments in light of the
record and applicable law, and affirm, substantially for the
reasons set forth by Judge Stanton in the oral opinion and colloquy
of the hearing of August 6, 1996. We add these comments.
As to the prosecutor's authority to dismiss disorderly persons complaints, Judge Stanton's conclusion is supported by the picture of broad prosecutorial authority that emerges from a comprehensive reading of New Jersey statutes, court rules and cases. There is undisputedly a remaining role for private prosecutions of disorderly persons complaints, but that role has been restricted by New Jersey courts in recognition that the criminal laws exist to protect the public's interest rather than to afford vindication of private property rights or personal grievances.
While these public and private interests may frequently coincide, the Attorney General and the county prosecutors have been
designated to prosecute the criminal business of the State,
N.J.S.A. 2A:158-4, and to exercise the discretion whether to
prosecute or to refrain from prosecution. State v. Hermann,
80 N.J. 122, 127 (1979); State v. Mitchell,
164 N.J. Super. 198, 201
(App. Div. 1978).
In State v. Downie,
117 N.J. 450, cert. denied,
498 U.S. 819,
111 S.Ct. 63,
112 L.Ed.2d 38 (1990), the authority of the Monmouth
County Prosecutor to intervene in on-going municipal court cases
was recognized by the Supreme Court. Earlier, in State v. Downie,
229 N.J. Super. 207 (App. Div. 1988), affirmed by the Supreme
Court, we said:
N.J.S.A. 2A:158-4 and 5 give the Attorney
General and county prosecutors plenary
jurisdiction to prosecute all criminal matters
in this State. It is clear from the wording
of N.J.S.A. 2A:158-5 that the words "criminal
business" in § 4 are not limited to crimes,
but include the prosecution of "offenders
against the law." Cf. R. 3:23-9.
[Downie, supra, 229 N.J. Super. at 209 n.1.]
N.J.S.A. 2A:158-4 provides that "criminal business of the
State shall be prosecuted by the Attorney General and the county
prosecutors".See footnote 3 N.J.S.A. 2A:158-5 provides that:
Each prosecutor shall be vested with the
same powers and be subject to the same
penalties, within his county, as the attorney
general shall by law be vested with or subject
to, and he shall use all reasonable and lawful
diligence for the detection, arrest,
indictment and conviction of offenders against
the laws.
Inasmuch as the prosecutor has been vested with the powers of the
Attorney General, the powers of the latter official must also be
explored. N.J.S.A. 52:17b-107a provides:
Whenever in the opinion of the Attorney
General the interests of the State will be
furthered by so doing, the Attorney General
may (1) supersede a county prosecutor in any
investigation, criminal action or proceeding,
(2) participate in any investigation, criminal
action or proceeding, or (3) initiate any
investigation, criminal action or proceeding.
In such instances, the Attorney General may
appear for the State in any court or tribunal
for the purpose of conducting such investiga-tions, criminal actions or proceedings as
shall be necessary to promote and safeguard
the public interests of the State and secure
the enforcement of the laws of the State.
N.J.S.A. 52:17B-103 provides in part:
The Attorney General shall consult with
and advise the several county prosecutors in
matters relating to the duties of their office
and shall maintain a general supervision over
said county prosecutors with a view to
obtaining effective and uniform enforcement of
the criminal laws throughout the State.
Under N.J.S.A. 2A:158-5, since the county prosecutor has the
same powers as the Attorney General, the county prosecutor also has
general supervisory power over municipal prosecutors. Cf.
Kershenblatt v. Kozmor,
264 N.J. Super. 432, 437-439 (L. Div.
1993). This is confirmed by the recently-enacted N.J.S.A. 2B:12-27, which places municipal prosecutors under supervision of "the
Attorney General or county prosecutor."
Several Court Rules also support the conclusion that the
prosecutor's broad authority in municipal prosecutions includes the
right to dismiss.
Rule 3:23-9, governing appeals to the Law Division from courts
of limited jurisdiction, provides that the prosecuting attorney in
such appeals shall be "the municipal attorney, in a case involving
a violation of a municipal ordinance," but shall be "the county
prosecutor in all other cases." Thus, the prosecutor has exclusive
jurisdiction to represent the State in appeals from municipal
court, subject to R. 3:23-9(d).
As noted in Pressler, Current New Jersey Court Rules, comment
4 to R. 3:23-9(d)(1997), the provision that "[w]ith the consent of
the court, the attorney for a complaining witness ... may be
permitted to act for the prosecuting attorney", was added to the
rules "for the purpose of making clear that in no event shall the
attorney for the complaining witness be deemed the prosecuting
attorney unless the court, with the consent of the prosecuting
attorney permits him to so act." Inasmuch as the review from a
municipal conviction is a trial de novo on the record, subject in
some cases to further supplementation, R. 3:23-8, the county
prosecutor clearly has a substantial interest in determining which
cases shall be prosecuted.
The fact that participation by the county prosecutor in
municipal court is contemplated by the Rules of Court is also borne
out by R. 7:4-8(b), which provides that plea agreements will be
"allowed in any municipal court in cases handled by the Office of
the Attorney General or the County Prosecutor." Similarly, R. 7:4-2(f), a rule dealing with proceedings before trial, provides for
motions to suppress in municipal court in any case "in which the
Attorney General, county prosecutor, or municipal prosecutor is
prosecuting attorney on behalf of the State and on notice to said
prosecutor."
The Guidelines for Operation of Plea Agreements that follow R.
7:4-8 provide:
GUIDELINE 3. Prosecutor's Responsibilities.
Nothing in these Guidelines should be con-strued to affect in any way the prosecutor's
discretion in any case to move unilaterally
for an amendment to the original charge or a
dismissal of the charges pending against a
defendant if the prosecutor determines and
represents on the record the reasons in
support of the motion.
[Emphasis added.]
The official Comment to the R. 7:4-8 Guidelines is
illuminating. It states, in pertinent part, that:
Plea agreements are to be distinguished
from the discretion of a prosecutor to charge
or unilaterally move to dismiss, amend or
otherwise dispose of a matter.... The
prosecutor is not an ordinary advocate.
Rather, the prosecutor has an obligation to
defendants, the State and the public to see
that justice is done and truth is revealed in
each individual case.
We reject Huff's contention that State v. Labato,
7 N.J. 137,
(1951) has conclusively held that a county prosecutor does not have
the power to dismiss non-indictable offenses. The precise language
relied on is:
The Police Court was not deprived of
jurisdiction by the course taken by the County
Prosecutor. The grant of jurisdiction is not
thus conditioned. Neither R.S. 2:182-4,
N.J.S.A., placing the prosecution of the
criminal business of the State in the hands of
the County Prosecutor, nor Rule 8:3-3(d) of
this Court is directed to that end. Both have
reference to indictable offenses, and not to
prosecutions under the Disorderly Persons Act.
This dual authority in matters of law
enforcement undoubtedly gives rise to policy
and administrative difficulties; but the
remedy lies with the Legislature.
[Labato, supra, 7 N.J. at 151].
Reliance upon Labato is misplaced for two reasons. First, the prosecutor there had never sought to dismiss the prior prosecution in Police Court which was asserted as the basis for a double jeopardy defense. Instead, the county prosecutor had merely made an unsuccessful demand by way of objection that the defendant "be prosecuted under the Crimes Act". Id. at 142. Thus, the comment
respecting R.S. 2:182-4 (predecessor to N.J.S.A. 2A:158-4) was at
most dictum in the severely split Labato opinion. Second, and more
importantly, there have been substantial statutory and court rule
changes (as invited by the Court) since the questionable dictum in
Lobato. Among these changes has been enactment of the Code. Under
the Code, the word "offense" includes crimes as well as lesser
disorderly persons offenses. N.J.S.A. 2C:1-14k. Thus, as we noted
in State v. Downie, supra, 229 N.J. Super. at 209 n.1., the vesting
of powers in the prosecutor under N.J.S.A. 2A:158-5 respecting
"offenders against the laws" includes all "criminal business",
i.e., all "offenses", including disorderly persons violations.
We do not intend to suggest that there is no role for pro se
prosecutions of disorderly persons offenses or for private
prosecutions, when duly authorized. We emphasize merely that the
determination of whether a matter should or should not be
criminally prosecuted is fundamentally an executive determination
delegated to the Attorney General and the county prosecutors. If
the prosecutor arbitrarily or corruptly fails or refuses to act,
the courts must then intervene to correct the administrative abuse.
In re Ringwood Fact Finding Comm., supra, 65 N.J. at 516-517; State
v. Winne,
12 N.J. 152, 172 (1953). The duty of a prosecuting
officer necessarily requires that in each case he examine the
available evidence, the law and the facts, and the applicability of
each to the other, and that he intelligently weigh the chances of
successful termination of the prosecution, having always in mind
the relative importance to the county he serves of the different
prosecutions which might be initiated. Such duties necessarily
involve a good faith exercise of sound discretion. State v. Winne,
12 N.J. at 172-173 (citing State ex rel. McKittrick v. Wallach,
353 Mo. 312,
182 S.W.2d 313 (Sup. Ct. 1944); see also State v. Childs,
242 N.J. Super. 121, 129-130 (App. Div.), certif. denied,
127 N.J. 321 (1990). Rule 7:4-4(b) allows a complaining witness who was the
victim of a disorderly persons offense to enforce the criminal law
in cases where the prosecutor has failed to act. See, e.g., New
Jersey v. Imperiale,
773 F. Supp. 747 (D.N.J. 1991); New Jersey v.
Kinder,
701 F. Supp. 486, 488 (D.N.J. 1988). However, in the
present case, based upon the competent directions of the judge, the
prosecutor did not fail to act, rather, the prosecutor investigated
further and exercised his authority to dismiss.
In evaluating the prosecutor's determination, Judge Stanton
was evidently also conscious of his duty in private prosecutions to
be satisfied of an entirely impartial, dispassionate and fair
prosecution by a neutral prosecuting attorney. State v. Storm,
141 N.J. 245, 252-255 (1995).
The Supreme Court has recently recognized the discretionary
authority of the prosecutor in determining whether or not to
prosecute disorderly persons offenses in the municipal court, see
State v. Hessen,
145 N.J. 441, 452-453 (1996), subject to review of
the prosecutor's discretion for arbitrariness or abuse. The
Hessen Court invoked its authority to restrict exercise of
prosecutorial discretion in drinking and driving cases, noting
however, that this was necessary to support policy decisions of the
legislative and executive branches, thereby avoiding a separation
of powers violation. Id. at 454.
In sum, the county prosecutor's discretion as to whether to
prosecute or dismiss extends to disorderly persons offenses, but is
subject to the judicial power to correct an abuse of discretion.
Huff urges on appeal that it is no longer appropriate for the judiciary to review the exercise of prosecutorial discretion in a case such as this under the traditional abuse-of-discretion stan-dard. He suggests that proper recognition of the rights of crime victims articulated in recent constitutional and legislative provi-sionsSee footnote 4, requires that court review of a prosecutorial determination to prosecute or not be conducted as a plenary, de novo proceeding.
As we noted above, in State v. Hessen the Supreme Court has again recognized that the appropriate standard for review of a prosecutor's independent decision-making authority not to prosecute is that of "arbitrariness or abuse." Id. at 452-453. Of course, where the subject is one of far-reaching public interest such as
curtailing drunk driving, manifested by policy decisions of the
executive, legislative and judicial branches of government, the
Court has not hesitated to insist upon rigorous enforcement. Id.
at 457-459. Such a palpable and paramount public interest is not
here apparent. Moreover, comprehensive vindication of the asserted
private rights is available in the pending private action through
injunctive relief and damages. The private action may possibly
establish sufficient basis for punitive damages as well, thereby,
together with such injunctive relief as might be deemed
appropriate, addressing public concerns.
To the extent that the Huff appeal suggests that a complainant
in a disorderly persons offense matter has a right to a more
intense review of a prosecutor's decision to dismiss than the
victim of an indictable crime, we reject the argument as
incongruous and unfounded. While impact on the victim may be an
important policy factor for consideration as to propriety of an
administrative dismissal, this does not equate with a requirement
to change the standard of review. Moreover, both the N.J.
Constitution, art. I, ¶22, and the Crime Victims' Bill of Rights
(CVBR) each address only victims of a "crime". Even if we
disregard the differences between a crime and the less serious
category of disorderly persons offense set forth in N.J.S.A. 2C:1-4, there is surely no warrant suggested by ¶22 or the CVBR for us
to afford to victims of lesser offenses greater rights than are
afforded to victims of offenses which have been designated as
"crimes".
In this case, the judge saw to it that Huff had an opportunity
to fully set forth his position respecting the alleged offenses
before prosecutorial representatives. See N.J.S.A. 52:4B-36(m)(requiring only consideration by the prosecutor) and State v.
Kraft,
265 N.J. Super. 106, 116-17 (App. Div. 1993)(recognizing
"great deference" to be afforded to the prosecutor's decision
whether or not to aggressively prosecute). With respect to
disorderly persons offenses, as with indictable offenses, there is
judicial responsibility to ensure unbiased, impartial prosecution
in vindication of the public interest and, where the prosecutor has
determined to dismiss a complaint, to ensure that such dismissal
does not constitute a clear abuse of discretion.
Mindful of Huff's argument that a prosecutor has no authority
to dismiss complaints that charge environmental violations, we add
that presence or absence of mens rea as an element of environmental
offenses is not a factor bearing upon either the authority of the
prosecutor to dismiss such complaints or upon the standard of
judicial review to be applied to the dismissal.
We turn finally to the challenge to Judge Stanton's ruling that, notwithstanding existence of sufficient probable cause for each of the complaints, the prosecutor's exercise of discretion to dismiss was not arbitrary. In doing so, it is appropriate to recall what we said in State v. Kraft, supra:
Unquestionably, policy determinations, such as which offenses to aggressively
prosecute, fall within the domain of the
prosecutor, not the judiciary. State v.
Dalglish, supra, 86 N.J. at 511,
423 A.2d 74.
This stems primarily from the fact that it is
the fundamental responsibility of the
prosecutor to decide whom to prosecute. Id.
at 509,
432 A.2d 74; Leonardis II, supra, 73
N.J. at 381,
375 A.2d 607. Additionally, as
noted above, once such a decision has been
made, it is entitled to great deference. See,
e.g., State v. DeMarco, supra, 107 N.J. at
566,
527 A.2d 417; State v. Dalglish, supra,
86 N.J. at 509,
432 A.2d 74; State v. Bender,
supra, 80 N.J. at 89,
402 A.2d 217; Leonardis
II, supra, 73 N.J. at 381,
375 A.2d 607; State
v. Hoffman, supra, 224 N.J. Super. at 155,
539 A.2d 1254; State v. Litton, supra, 155 N.J.
Super. at 212,
382 A.2d 664.
[Kraft, supra, 265 N.J. Super. at 116-117.]
We identify at least three factors present here that satisfy us
that the prosecutor's action was not arbitrary under this
deferential standard of review.
First, the pending civil lawsuit was adequate to provide
private redress, the possibility of punitive damages for willful
wrongdoing, and injunctive correction of an adverse public or
private impact from Ward's alleged misconduct.
Second, "private prosecutions pose the risk that the
complainant will use the municipal court proceeding to harass the
defendant or to obtain an advantage in a related civil action."
State v. Storm, supra, 141 N.J. at 253; New Jersey v. Bazin,
912 F.
Supp 106 (D.N.J. 1995); New Jersey v. Imperiale,
773 F. Supp. 747,
748-749 (D.N.J. 1991). There is a strong governmental interest in
dispassionate assessment of the propriety of criminal charges,
particularly where there is a pending civil case which might
benefit from the criminal prosecution. Young v. United States ex
rel. Vuitton et Fils S.A.,
481 U.S. 787,
107 S.Ct. 2124,
95 L.Ed.2d 740 (1987).
Third, where the interests involved are predominantly private,
and the pubic interest is not great, limiting the private
complainant to available tort and equitable remedies does not
constitute an abuse of prosecutorial or judicial discretion. In
this regard we note that, while asphalt may be deemed solid waste,
we have found no statutory or regulatory indication that the
materials described as having been pushed from the roadway
constitute hazardous or toxic substances. See N.J.A.C. 7:1E-10.
Asphalt is defined as "a brown to black bituminous substance that
is found in natural beds and is also obtained as a residue in
petroleum refining ..." Webster's Ninth New Collegiate Dictionary.
N.J.A.C. 7:1E, which treats with discharges of petroleum or
petroleum products, refers to liquid products and the hazardous
substances listed in Appendix A to N.J.A.C. 7:1E-10. As indicated,
asphalt paving material does not appear to fall into this category.
Thus, the public environmental interest might reasonably be
regarded as not particularly significant.
The order under review is affirmed. We note that there was no cross appeal, and that in consequence, the decretal paragraph which determined that Huff had probable cause to file each of the criminal complaints is embraced by this affirmance.
Footnote: 1The parties have raised no question of Huff's standing to
file the motion. In some ways that issue is related to the
principal issues we discuss infra in this opinion. We believe that
the alleged victim of a criminal offense, who is asserting a public
interest in its prosecution, has a sufficient stake in the outcome
to seek to invoke a review of the exercise of prosecutorial
discretion in selecting matters for prosecution or dismissal.
Although not specifically so designated, this would seem to be an
action in lieu of prerogative writs. See In re Ringwood Fact
Finding Comm.,
65 N.J. 512, 516-517 (1974); also Elizabeth Federal
Savings & Loan v. Howell,
24 N.J. 488, 500-502 (1957)(standing of
interested persons to challenge administrative action).
Footnote: 2The letter-brief should not have been accepted without pro
hoc vice application and admittance of counsel. We note that
Huff's briefs rely in part on the contents of the letter-brief.
Footnote: 3In Morss v. Forbes,
24 N.J. 341 (1957), the Court reviewed
the development of the Office of County Prosecutor, tracing it
through its roots in the powers of the attorney general.
The Court noted that:
At common law in England, the attorney general was the chief legal representative of the Crown, and in theory his powers of criminal prosecution were almost unlimited. As a practical matter, however, the responsibility for securing enforcement of the criminal laws
was left largely in the hands of private
parties. See State v. Winne,
12 N.J. 152,
164-165 (1953). This distinction, if it ever
received any recognition in the Colony of New
Jersey, perished long before the Revolution,
and the attorney general commonly undertook to
prosecute "culprits from minor offenders to
murderers." Journal of the Courts of Common
Right and Chancery of East New Jersey, 1683-1702 (Edsall ed. 1937), 3 and passim. See
State v. Winne, supra. Public prosecution
supplanted private prosecution, and,
consequently, at the time of the adoption of
the Constitution of 1776, the first attorney
general of the State of New Jersey possessed
and assumed considerable powers of law
enforcement.
[Morss, supra, 24 N.J. at 364-365.]
Footnote: 4N.J. Const., art. I, ¶22 adopted November 5, 1991, defines a
"victim" as a person who "has incurred loss of or damage to
personal or real property as a result of a crime". Included among
the rights enumerated in N.J.S.A. 52:4B-36 is the following:
m. To submit a written statement about
the impact of the crime to a representative of
the county prosecutor's office which shall be
considered prior to the prosecutor's final
decision concerning whether formal criminal
charges will be filed.