This post is by my colleague Jeffrey A. Shooman. He discusses an important criminal law decision that the Appellate Division issued today.
State v. Saavedra, 433 N.J. Super. 501 (App. Div. 2013). At issue in this case was the criminal culpability of public employees in taking confidential documents from an employer in order to prosecute a separate civil discrimination suit against that employer.
Defendant was indicted for second-degree official misconduct and third-degree theft of public documents. She moved in the trial court to dismiss the indictment. The Law Division denied the motion. The Appellate Division granted defendant leave to appeal and, in a 2-1 decision, affirmed, with the majority applying the abuse of discretion standard in evaluating the Law Division’s ruling on a motion to dismiss an indictment. Judge Fasciale wrote the majority opinion, in which Judge Fuentes joined. Judge Simonelli dissented.
Defendant was a clerk at the North Bergen Board of Education. At the relevant time, she was a clerk for a child study team. In November 2009, defendant (along with her son, who was a part-time employee for the Board) filed a complaint against the Board, among others, alleging that she had been the victim of gender, ethnic, and sex discrimination. Specifically, defendant alleged employment discrimination, hostile work environment, and retaliatory discharge, all in violation of the New Jersey Law Against Discrimination (“LAD”).
Defendant’s counsel in the civil case learned eventually that defendant possessed hundreds of documents that were owned by the Board. Defendant’s counsel chose to use the documents in the civil case and turned them over to the Board. The Board’s attorney notified the Board’s general counsel and, in turn, the general counsel brought the matter to the attention of the prosecutor’s office. A grand jury was empaneled.
The State called the Board’s general counsel to testify before the grand jury. He testified that defendant had taken 367 documents, some of them highly confidential. The grand jury indicted defendant.
The crux of defendant’s argument was that she took the documents for a lawful use, and under the Supreme Court’s decision in Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010), she could not be lawfully charged. In Quinlan, the Court considered the rights of employees in the context of taking confidential documents in order to support a lawsuit. The Court considered the appropriate framework where “courts may weigh and consider whether, and to what extent, an employee who finds, copies, and discloses an employer’s otherwise confidential documents in the context of prosecuting a discrimination case was engaged in conduct protected by the LAD.” Id. at 245-46. Accordingly, the Court created a seven-part balancing text, advocating for a totality of the circumstances approach. Defendant thus argued that given Quinlan, her indictment for official misconduct and theft could not stand, for she resorted to self-help to support her LAD claims against the Board.
The Appellate Division rejected this argument. “Quinlan did not establish a bright-line rule that automatically entitled defendant to take the Board’s highly confidential documents.” Indeed, the Quinlan court made clear that employees who take an employer’s documents run a significant risk because a court may find that the employee’s conduct does not fall into the case’s protection based on the seven-factor analysis. The indictment for theft was sustained since it was not “manifestly deficient or palpably defective,” viewing the facts alleged most favorably to the State. The panel also rejected the notion that trial judges should conduct Quinlan hearings. Judge Fasciale stated that the Supreme Court “did not intend its holding in that civil case to act as a means of mounting a facial challenge to [an] indictment in [a] criminal case.”
The majority also sustained the indictment for official misconduct. Judge Fasciale conducted a straightforward analysis and held that the State had made its prima facie case under the statute.
Judge Fasciale next addressed defendant’s argument of “honest error,” stating that it essentially “amounts . . . to a claim of right defense.” But the majority held that this argument was premature, for the time to assert this defense is at trial; it simply is not a basis to dismiss an indictment.
The panel went on to reject defendant’s arguments that the State had failed to present the grand jury with exculpatory evidence, and that allowing the State to criminalize her conduct through prosecution would have a chilling effect on potential victims of discrimination who bring LAD claims. As to the latter argument, Judge Fasciale stated that “[a]s an intermediate appellate court, we do not have the power to determine, as a matter of public policy, what should be considered criminally culpable conduct.” To the extent that defendant’s argument actually called for amendment of the statutory regime, such an amendment was for the Legislature, not the judiciary.
Expounding on the “chilling effect” argument, the panel noted that one of the central concerns in Quinlan was the potential concern that an employer would destroy inculpatory documents or that other documents would be unobtainable if an employee did not resort to self-help. But none of the Quinlan circumstances were present here—defendant did not argue that she limited her self-help to finding only inculpatory, “smoking gun” type documents. Nor did defendant maintain that she took the documents because the Board would have destroyed them. This case is simply not Quinlan, Judge Fasciale held, and a plaintiff in a discrimination case has a panoply of options (including, for instance, under certain circumstances, Rule 4:11-1, taking depositions and obtaining documents before filing the lawsuit) at her disposal in properly prosecuting a lawsuit.
Judge Simonelli dissented. She found it “fundamentally unfair to criminally prosecute and imprison an individual for theft . . . and official misconduct . . . for taking or copying confidential employer documents while engaged in protected activity pursuant to the Conscientious Employee Protection Act . . . and the [LAD] . . . .” Judge Simonelli would have held that neither the theft nor the misconduct statute give fair warning that taking confidential documents is “unlawful” or criminally “unauthorized.”
Judge Simonelli makes a trenchant point—given the amorphous nature of protection under Quinlan, the LAD, and CEPA—that no reasonable person could have been on notice that the underlying charged conduct was illegal. The Supreme Court should take this case to clarify public employees’ obligations under these circumstances.