(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued October 12, 1999 -- Decided January 19, 2000
Coleman, J., writing for a unanimous Court.
The issues raised in this appeal are whether an attorney who serves as a municipal prosecutor may also
represent a defendant in a criminal matter pending in the Superior Court of the county in which the attorney serves
as a municipal prosecutor and whether such a scenario calls for the reversal of the conviction of a Superior Court
defendant whose attorney was a municipal prosecutor at the time of the representation.
In this case, the defendant, Robert F. Clark, was convicted in 1994 on two counts each of sexual assault
and endangering the welfare of a child. The offenses were committed in Jamesburg and the trial was held in
Superior Court, Middlesex County. After entry of the judgment of conviction, Clark learned that the attorney the
Public Defender had assigned to represent him had been at the time of trial a part-time municipal prosecutor in New
Brunswick, also in Middlesex County.
On the direct appeal of the judgment of conviction, Clark argued to the Appellate Division that the dual
positions his appointed attorney held in Middlesex County deprived him of his right to effective assistance of
counsel and a fair trial. The parties have agreed that defense counsel was not engaged in an actual conflict of
interest.
The Appellate Division held that it is impermissible for a part-time municipal prosecutor to represent a
criminal defendant in Superior Court in the county where the municipal prosecutor serves and reversed Clark's
conviction.
The Supreme Court granted the State's petition for certification and stayed the judgment.
HELD: Rule 1.15-13(b) is amended to preclude an attorney who serves as a municipal prosecutor from
representing criminal defendants in Superior Court or any municipal court of the county in which the municipal
prosecutor serves. At the time of Clark's trial, there was no such prohibition and no actual conflict of interest on the
part of defense counsel, so Clark's judgment of conviction is reinstated.
1. When Clark was tried and sentenced and until this decision, Rule 1:15-3(b) of the New Jersey Rules of Court
provided that “[a] municipal attorney of any municipality shall not represent any defendant in the municipal court
thereof.” Case law interpreting the rule and its source rule held that a municipal prosecutor was not barred from
representing a criminal defendant in the Superior Court of the county in which the attorney served as a municipal
prosecutor. Because defense counsel's situation in this case was not an actual conflict of interest, did not prejudice
defendant, and violated neither Rule 1:15-3(b) nor case law, there is no ground on which to reverse defendant's
conviction and the judgment of conviction is reinstated. (pp. 4-5)
2. Municipal prosecutions have become increasingly complex and important; the benefits of a rule that permits a
municipal prosecutor to serve as defense counsel in a proceeding in the Superior Court of the same county are
outweighed by the high probability that the prosecutor's impartiality will be undermined. Municipal prosecutors are
supervised by the Attorney General and county prosecutors, who prosecute indictable and juvenile offenses in
Superior Court. The dual representation at issue presents the significant possibility of a conflict that could impair a
defendant's right to a fair trial and effective assistance of counsel. Rule 1:15-3(b), therefore, is amended to preclude
a municipal prosecutor from serving as defense counsel in the same county in which the attorney serves as
municipal prosecutor. (pp. 5-8)
3. The Rule as amended extends in its prohibition to all municipal courts in the county in which the municipal
prosecutor serves and to all criminal defense matters, including but not limited to, indictable offenses, juvenile
offenses, Megan's Law proceedings, and criminal prosecutions based on domestic violence violations. (p. 9)
4. The amended Rule is effective with the filing of the Court's opinion, but municipal prosecutors may complete
their current assignments or terms of office. Municipal prosecutors will not be excused from complying with the
amended Rule after December 31, 2000. (p. 10)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division, as directed by the Appellate Division, for resentencing.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN, LONG, and
VERNIERO join in JUSTICE COLEMAN'S opinion.
SUPREME COURT OF NEW JERSEY
A-
120 September Term 1998
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ROBERT F. CLARK,
Defendant-Respondent.
Argued October 12, 1999-- Decided January 19, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
324 N.J. Super. 178 (1999).
Glenn Berman, Middlesex County Prosecutor,
argued the cause for appellant (Mr. Berman,
attorney; Simon Louis Rosenbach, Assistant
Prosecutor, on the brief).
Kevin G. Byrnes, Designated Counsel, argued
the cause for respondent (Ivelisse Torres,
Public Defender, attorney).
Carol M. Henderson, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Farmer, Jr.,
Attorney General, attorney).
Joan D. Van Pelt, Deputy Public Defender,
argued the cause for amicus curiae Office of
the Public Defender (Ivelisse Torres, Public
Defender, attorney; Michael B. Jones,
Assistant Deputy Public Defender, of counsel
and on the brief).
Michael A. Gill submitted a brief on behalf
of amici curiae Atlantic, Burlington and
Camden County Municipal Prosecutors
Associations (Goldenberg, Mackler, Sayegh &
Mintz, attorneys).
Matthew S. Rogers and Robert B. Hille
submitted a brief on behalf of amicus curiae
Bergen County Bar Association (Contant,
Scherby & Atkins, attorneys).
Dennis Alan Auciello submitted a brief on
behalf of amicus curiae Middlesex County Bar
Association.
Joseph F. DeFino submitted a brief on behalf
of amicus curiae Monmouth County Municipal
Prosecutors Association (Jacobowitz,
Grabelle, DeFino, McGoughran & Latimer,
attorneys).
Raymond A. Noble and Daniel M. Waldman
submitted a brief on behalf of amicus curiae
New Jersey State Bar Association.
John C. Gillespie submitted a brief on behalf
of amici curiae New Jersey State League of
Municipalities and New Jersey Institute of
Municipal Attorneys (Parker, McCay &
Criscuolo and Kearns, Vassallo, Guest &
Kearns, attorneys).
Joseph J. Bell submitted a brief on behalf of
amicus curiae Morris County Municipal
Prosecutors Association (Joseph J. Bell &
Associates, attorneys).
The opinion of the Court was delivered by
COLEMAN, J.
The critical issue raised in this appeal is whether a
municipal prosecutor can simultaneously serve as a defense
attorney in a criminal matter pending in the Superior Court of
the county in which he or she serves as prosecutor. The
Appellate Division adopted a bright-line rule and held that such
a prosecutor may not, and, as a result, reversed defendant's
conviction. Although we agree with the Appellate Division panel
that municipal prosecutors should not in the future represent
defendants in criminal matters in the county in which they serve,
we conclude that the court erred in reversing defendant's
conviction. However, we amend the controlling Court Rule and
direct that the amended Rule be applied prospectively.
In 1994, a jury in Middlesex County convicted defendant on two counts of sexual assault and two counts of endangering the welfare of a child. Those offenses were committed in Jamesburg, New Jersey. Defendant was represented by E. Ronald Wright, Esquire, who was assigned to the case by the Public Defender. Subsequent to the entry of the judgment of conviction, defendant learned that at the time of trial his attorney was a part-time municipal prosecutor in New Brunswick, also located in Middlesex County. The parties have stipulated that defense counsel was not engaged in any actual conflict. Nonetheless, in his direct appeal to the Appellate Division from the judgment of conviction, defendant contended that the dual positions held by his attorney in the same county deprived him of his right to effective assistance of counsel and a fair trial. In reversing the convictions, the Appellate Division held that “it is impermissible for a part-time municipal prosecutor in a municipality located in the county where defendant is tried to represent a criminal defendant.” State v. Clark, 324 N.J. Super. 178, 183 (1999). We granted the State's petition for certification and stayed the judgment. 161 N.J. 336 (1999).
When defendant was tried in January 1994 and sentenced on November 7, 1994, neither the existing Court Rules nor decisional law precluded defendant's trial attorney from serving as municipal prosecutor and representing a defendant in the Superior Court of the same county. The pertinent part of Rule 1:15-3(b) provided then and now, excepting changes that made it gender neutral, that “[a] municipal attorney of any municipality shall not represent any defendant in the municipal court thereof.” The pertinent portion of the source Rule was practically identical to the present Rule and provided that “an attorney shall not represent any defendant in the municipal court of the municipality of which he is the municipal attorney.” R. 1:26 63(c).
The only relevant case decided under either version of the rule is State v. Zold, 105 N.J. Super. 194 (Law Div. 1969), affirmed o.b., 110 N.J. Super. 33 (App. Div.), certif. denied, 57 N.J. 131 (1970). That case held that a municipal attorney, who served as a municipal prosecutor, was not precluded by the rule from representing a defendant in the Superior Court or the former County Court located in the same county in which he or she served as a municipal prosecutor. 105 N.J. Super. at 203. In this case, because Wright's representation of defendant did not violate either Rule 1:15-3(b) or Zold, and because there was no actual conflict or prejudice to defendant, no basis existed to reverse defendant's conviction. The judgment of conviction is therefore reinstated.
Next, we address whether Rule 1:15-3(b) should be expanded to preclude a municipal prosecutor from simultaneously serving as a defense counsel in the Superior Court in the same county in which he or she serves as municipal prosecutor. Clearly, the Rule as presently worded does not prohibit a municipal prosecutor from serving as defense counsel in the Superior Court of any county.
The authority to adopt practice and procedure Rules rests exclusively with this Court. N.J. Const. (1947), art. VI, § 2, ¶ 3. “The Court's Rule-making authority may be exercised by the promulgation of formal Rules to be included in the published Rules of Court, R. 1:1. It may also be exercised in the form of general directives or specific orders.” In re Yaccarino, 101 N.J. 342, 351 (1985). In addition, the Court's authority to engage in rule making includes the exclusive power to establish or modify Court Rules through judicial decisions. State v. Leonardis, 71 N.J. 85, 108-09 (1976); Shambry v. New Jersey Transit Bus Operations, Inc., 307 N.J. Super. 390, 395 (App. Div. 1998). Indeed, “[t]hat the Supreme Court's rule-making power and authority over the administration of all courts in the State is exclusive has never been in doubt.” Cunningham v. Rummel, 223 N.J. Super. 15, 18 (App. Div. 1988).
“Rules of court for controlling practice and procedure date back to the Middle Ages. They were the settled means of effecting changes and improvements in procedure” and practice. Winberry v. Salisbury, 5 N.J. 240, 252, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950). Given the growing complexity and importance of municipal prosecutions, it is apparent to us that the benefit of our rule that permits a municipal prosecutor also to serve as defense counsel in the Superior Court of the same county is now outweighed by the high probability that the prosecutor's impartiality will be undermined.
Municipal prosecutors are under the supervision of the Attorney General and county prosecutors, N.J.S.A. 2B:12-27, the same offices that prosecute indictable and juvenile offenses in the Superior Court. N.J.S.A. 2A:158-4 and -5. Under the existing Court Rule, a municipal prosecutor may be called upon to conduct a direct examination of one or more municipal police officers any weekday or evening in municipal court, and the following day conduct cross-examination of the same officer or his or her partner in the Superior Court of the same county while representing a defendant on an indictable offense. Dual representation in the same county therefore presents a significant possibility of conflict that could impair a defendant's right to a fair trial, including effective assistance of counsel, while at the same time creating prosecutorial partiality. The dual role strikes at the integrity of the criminal justice system because it epitomizes how a prosecutor's impartiality can be undermined. As we have observed in a slightly different context, both the defendant and the complainant (victim) “must trust the impartiality of the proceedings.” State v. Storm, 141 N.J. 245, 254 (1995). Hence, we conclude that Rule 1:15-3(b) must be modified.
In the exercise of the Court's authority to promulgate Court Rules affecting practice and procedure in our criminal and quasi criminal courts, we hereby amend Rule 1:15-3(b) to preclude a municipal prosecutor from simultaneously serving as defense counsel in the same county in which he or she serves as a municipal prosecutor. The text of Rule 1:15-3(b) presently reads:
A municipal attorney of any municipality shall not represent any defendant in the municipal court thereof, except to perform official duties, but may represent a defendant in a joint municipal court if the defendant resides and the offense was allegedly committed in a municipality for which the attorney is not the municipal attorney. An attorney who is a member of the governing body of a municipality shall not practice in the municipal court of that municipality.
That rule is amended to read:
A municipal attorney of any municipality
shall not represent any defendant in the
municipal court thereof, except to perform
official duties, but may represent a
defendant in a joint municipal court if the
defendant resides and the offense was
allegedly committed in a municipality for
which the attorney is not the municipal
attorney. A municipal prosecutor shall not
represent any defendant in any other
municipal court in that county or in the
Superior Court located in that county but may
represent a defendant in a municipal court or
Superior Court in a county other than the one
in which he or she serves as a municipal
prosecutor. This rule does not apply to a
municipal public defender who is not
otherwise considered a municipal attorney.
An attorney who is a member of the governing
body of a municipality shall not practice in
the municipal court of that municipality.
(New language underscored.)
We recognize that the Rule amendment that we adopt today
prohibiting municipal prosecutors from practicing criminal law as
a defense attorney in the county in which he or she holds office
will likely lead to some resignations by municipal prosecutors.
Nonetheless, we agree with the Attorney General that a per se
rule is required. “[T]he municipal prosecutor/defense attorney
will always be part of the prosecutorial branch of the county
because of the supervisory authority maintained by the County
Prosecutor's Officer over the municipal prosecutors.” We also
agree with the Attorney General that there is no existing reason
to require a statewide ban and that the prohibition against
municipal prosecutors involvement in defense work should be
limited to the county in which the municipal prosecutor serves.
The new Rule, however, extends to all municipal courts located in
the same county in which the municipal prosecutor's municipality
is located, and all criminal defense matters including but not
limited to indictable offenses, as well as juvenile offenses,
Megan's Law proceedings, and criminal prosecutions based on
domestic violence violations.
Finally, we address whether the amended Rule should have any retroactive application. The Court exercises its inherent power to preclude any retroactive application of the amended Rule. State v. Lark, 117 N.J. 331, 334-39 (1989); State v. Burstein, 85 N.J. 394, 402-03 (1981). There has been justifiable reliance on the old Rule and on State v. Zold, which is the only reported decision discussing the rule. See State v. Knight, 145 N.J. 233, 251 (1996). This Court denied certification in Zold and was never requested to change the practice approved in Zold until the present case. Moreover, any retroactive application of the amended Rule would have a substantial impact on the administration of justice. State v. Brimage, 153 N.J. 1, 26 (1998). The Public Defender has estimated that there are at least 120 pending cases in which part-time municipal prosecutors have been assigned to represent defendants on indictable offenses in the Superior Court of the same county.
The amended Rule shall take effect on the date of this decision. However, municipal prosecutors may complete their current assignments or current terms of office, except that they will not be excused from complying with the amended Rule after December 31, 2000.
We reverse the judgment of the Appellate Division that vacated defendant's convictions. The matter is remanded to the Law Division, as directed by the Appellate Division, for resentencing.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN, LONG, and VERNIERO join in JUSTICE COLEMAN's opinion.
NO. A-120 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ROBERT F. CLARK,
Defendant-Respondent.
DECIDED January 19, 2000
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY