Luis Perez v. Zagami, LLC (071358)

SYLLABUS

(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

interest of brevity, portions of any opinion may not have been summarized).

Luis Perez v. Zagami, LLC (A-36-12) (071358)

[NOTE: This is a companion case to Cottrell v. Zagami, LLC also filed today.]

Argued January 21, 2014 -- Decided May 21, 2014

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court addresses whether the New Jersey Civil Rights Act (Act or CRA), N.J.S.A. 10:6-

2(c), authorizes a private right of action against a person who is not acting under “color of law.”

In 2006, Zagami, LLC (Zagami) applied to the Borough of Glassboro (Borough) for a renewal of its liquor

license. Luis Perez, a Borough resident, opposed the renewal and alleged that Zagami had committed several

serious infractions. At a license renewal hearing, Perez testified that Zagami flouted fire-safety regulations, served

alcohol to visibly intoxicated patrons, and encouraged bouncers to physically harm rowdy customers. Zagami

disputed the allegations and the Borough Council voted to renew Zagami’s liquor license.

Thereafter, Zagami filed a defamation suit against Perez for his statements at the liquor license renewal

hearing. Perez filed a motion to dismiss, which the trial court denied. The Appellate Division reversed the trial

court’s judgment and dismissed the defamation complaint with prejudice, finding that Perez’s remarks were made in

the course of a quasi-judicial proceeding and thus were entitled to absolute immunity. Zagami, LLC v. Cottrell, 403

N.J. Super. 98 (App. Div. 2008), certif. denied, 198 N.J. 309 (2009).

On July 26, 2010, Perez filed a complaint against Zagami for malicious use of process, arguing that Zagami

had filed its defamation complaint to punish Perez for speaking out at the hearing and to discourage his participation

in future public proceedings. Zagami moved to dismiss the complaint, and Perez filed a cross-motion to include a

claim under the CRA and to add a defendant. The trial court granted Zagami’s motion to dismiss the malicious use

of process claim and denied Perez’s cross-motion to amend the complaint. In respect of the CRA claim, the trial

court concluded specifically that the Act only authorizes private suits against persons acting under “color of law.”

On appeal, the Appellate Division reversed both determinations of the trial court. First, the panel reversed

the trial court’s grant of Zagami’s motion to dismiss the malicious use of process claim, finding that Zagami’s

defamation suit was not supported by probable cause and that Zagami should have known that Perez’s statements

were privileged when it filed suit. Second, the panel allowed Perez to amend his complaint to name an additional

defendant and to include a CRA cause of action against Zagami for a “deprivation” of his civil rights. The panel

reasoned that N.J.S.A. 10:6-2(c) has two distinct clauses, and that the “color of law” language relied upon by the

trial court to deny Perez’s motion only applies to the clause governing “interference” claims.

The Court granted certification to review whether the CRA permits a private right of action against an

individual who is not acting under color of law. 213 N.J. 530 (2013). The Court also granted certification in

Maryann Cottrell’s case, also decided today, on the same issue. Cottrell v. Zagami, Inc., 215 N.J. 483 (2013).

HELD: A private CRA cause of action only may be pursued against persons acting under “color of law”; the Attorney

General, however, is authorized to file CRA actions against persons whether or not they acted under “color of law.”

1. The CRA contains two subsections authorizing causes of action that may be brought by the Attorney General:

Subsection (a) governs claims against someone who, “whether or not acting under color of law, subjects or causes to

be subjected any other person to the deprivation of” protected civil rights. N.J.S.A. 10:6-2(a) (emphasis added).

Subsection (b) governs claims against someone who, “whether or not acting under color of law, interferes or

attempts to interfere” with the exercise of protected civil rights. N.J.S.A. 10:6-2(b) (emphasis added). (p. 6).

1

2. The Act also authorizes a private right of action for deprivations of or interference with protected civil rights.

N.J.S.A. 10:6-2(c) (“Any person who has been deprived of any substantive due process or equal protection rights,

privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights,

privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those

substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats,

intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for

injunctive or other appropriate relief.”) (emphasis added). At issue in this appeal is whether all private actions filed

under subsection (c) require the presence of state action, or whether the “under color of law” condition is limited to

claims based on interference with protected civil rights. (pp. 7-10).

3. Questions of statutory construction are reviewed de novo. “‘When interpreting statutory language, the goal is to

divine and effectuate the Legislature’s intent.’” State v. Buckley, 216 N.J. 249, 263 (2013) (quoting State v.

Shelley, 205 N.J. 320, 323 (2011)). Although the Court begins its analysis with the statute’s plain language, the

punctuation of N.J.S.A. 10:6-2(c) confounds its clear meaning. Specifically, the absence of a comma before the

phrase “by a person acting under color of law” makes it unclear whether the phrase applies to all private actions, or

solely to interference claims. The grammatical construction of N.J.S.A. 10:6-2(c) would seem to suggest intent to

divide the section into two distinct clauses – the first for deprivation claims and the second for interference claims –

with the “color of law” language applying only to the interference clause. However, punctuation is not necessarily

controlling in the search for legislative intent. See Carisel v. King, 2 N.J. 45, 50 (1949). (pp. 11-12).

4. When construing a statute, “the intention of the Legislature is to be derived from a view of the entire statute” and

all provisions “must be read together in light of the general intent of the act.” Hubner v. Spring Valley Equestrian

Ctr., 203 N.J. 184, 195 (2010). As such, the Court presumes that the Legislature created subsections (a), (b), and (c)

as a cohesive whole. If the Legislature intended for private claims based on the deprivation of civil rights to be

actionable against private citizens, whether or not acting under color of law, it could have clearly expressed that

intention in subsection (c) as it did in subsections (a) and (b). Indeed, dividing subsection (c) into two distinct

clauses – only the second of which is subject to the “color of law” provision – would require acceptance of a reading

that defies the clarity of expression used by the Legislature in subsections (a) and (b). In addition, it would render

the first clause of subsection (c) – involving a private party’s deprivation claim – as the only one in N.J.S.A. 10:6-2

not to have an identified actor who committed the violation. (pp. 12-14).

5. Because the language of N.J.S.A. 10:6-2(c) “does not lead to a single, clear meaning,” the Court looks to the

relevant legislative history. State v. O’Driscoll, 215 N.J. 461, 474 (2013). The CRA, enacted in 2004, was designed

as a “State analog to the federal civil rights statute codified at 42 U.S.C.A. [§] 1983.” Governor’s Statement on

Signing Assembly Bill No. 2073 (Sept. 10, 2004). With regard to the scope of subsection (c), the bill sponsors

explained that “any individual may bring a [private] civil action if his rights, privileges or immunities have been

deprived, interfered with or attempted to be interfered with by threats, intimidation or coercion by a person acting

under color of law.” S. 1558 (Sponsor’s Statement), 211th Leg. (May 6, 2004); Assemb. 2073 (Sponsor’s

Statement), 211th Leg. (Feb. 9, 2004). The sponsors therefore regarded state action as an essential component of

interference and deprivation claims under subsection (c). That construction also comports with the CRA’s purpose

as a state law analogue to Section 1983, which only permits actions against persons acting “under color of” law.

(pp. 14-16).

6. In sum, the phrase “person acting under color of law” in N.J.S.A. 10:6-2(c) applies to deprivation as well as to

interference claims brought by private party plaintiffs under the Act, notwithstanding the lack of a comma preceding

the phrase “by a person acting under color of law.” The contrary interpretation urged by Perez would result in the

deprivation action by a private party becoming the only cause of action in the statute for which the Legislature has

not identified a permissible defendant. Had the Legislature intended to permit private actions for deprivations of

protected rights irrespective of state action, it would have done so expressly. By interpreting the phrase “persons

acting under color of law” to define persons against whom both deprivation and interference (or attempted

interference) claims may be brought, the entire wording of subsection (c) is given meaning and the private cause of

action is aligned with the federal cause of action authorized by Section 1983. (pp. 17-21).

The judgment of the Appellate Division is REVERSED in part.

2

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and FERNANDEZ-VINA; and

JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.

3

SUPREME COURT OF NEW JERSEY

A-36 September Term 2012

071358

LUIS PEREZ,

Plaintiff-Respondent,

v.

ZAGAMI, LLC, d/b/a THE

LANDMARK AMERICANA TAP AND

GRILL, d/b/a LANDMARK

LIQUORS, d/b/a THE SPOT,

Defendant-Appellant.

Argued January 21, 2014 – Decided May 21, 2014

On certification to the Superior Court,

Appellate Division.

Sean X. Kelly argued the cause for appellant

(Marks, O'Neill, O'Brien, Doherty & Kelly,

attorneys; Mr. Kelly and Melissa J.

Kanbayashi, on the briefs).

Wesley G. Hanna argued the cause for

respondent (Law Office of Sander D.

Friedman, attorney).

Jonathan Romberg argued the cause for amicus

curiae Seton Hall University School of Law

Center for Social Justice.

JUSTICE LaVECCHIA delivered the opinion of the Court.

This appeal involves the private right of action authorized

under the New Jersey Civil Rights Act (Act or CRA), N.J.S.A.

1

10:6-1 to -2. Specifically, we are called on to determine

whether the Legislature intended that the Act permit a private

right of action to be brought against a person who is not acting

under “color of law.” N.J.S.A. 10:6-2(c). For the reasons that

follow, we hold that, although the Act bestows such authority on

the Attorney General, a private CRA cause of action only may be

pursued against persons acting under color of law.

I.

A.

The backdrop to the question of law before us involves a

contested liquor license renewal proceeding.

Zagami, LLC (Zagami) is the owner of the Landmark Americana

Tap and Grill (Landmark), a restaurant and bar in the Borough of

Glassboro (Borough). In 2006, Zagami applied to the Borough for

a renewal of its liquor license. Luis Perez, a citizen residing

in Glassboro, opposed the renewal.1 In a letter to the Glassboro

Borough Council (Council), Perez complained of several serious

infractions allegedly committed by Zagami, including serving

alcohol to minors and bribing public officials with free meals

and drinks. As a result of those allegations, the Council

scheduled a liquor license renewal hearing for June 27, 2006,

and invited Perez and Zagami to participate. At the hearing,

1

Perez was joined in his opposition to Zagami’s license renewal

by Maryann Cottrell, a fellow resident whose appeal is a

companion to this one.

2

Perez testified that, among other things, Landmark flouted fire-

safety regulations, served alcohol to visibly intoxicated

patrons, and encouraged bouncers to physically harm rowdy

customers. Zagami disputed the allegations, calling them

unsubstantiated. At the conclusion of the hearing, the Council

voted to renew Zagami’s liquor license, Perez’s testimony

notwithstanding.

A year later, Zagami filed a defamation complaint against

Perez for statements that he made during the liquor license

renewal hearing. Perez filed a motion to dismiss the complaint,

arguing that his remarks were made in the course of a quasi-

judicial proceeding and thus were entitled to absolute immunity.

The trial court denied the motion to dismiss and the Appellate

Division denied leave to appeal. We granted Perez’s motion for

leave to appeal to this Court and summarily remanded the matter

to the Appellate Division for consideration on the merits. On

remand, the Appellate Division found that Perez’s statements

during the liquor license proceeding were entitled to absolute

immunity and dismissed the defamation complaint with prejudice.

See Zagami, LLC v. Cottrell, 403 N.J. Super. 98 (App. Div.

2008), certif. denied, 198 N.J. 309 (2009).

3

B.

The proceeding that led to the instant appeal commenced on

July 26, 2010, when Perez filed a complaint against Zagami for

malicious use of process.

Essentially, Perez alleged that Zagami had instituted its

defamation complaint as a Strategic Lawsuit Against Public

Participation (SLAPP), or SLAPP suit, designed to punish Perez

for speaking out against Zagami at the liquor license renewal

hearing and to discourage his participation in future public

proceedings. Zagami filed a motion to dismiss the complaint,

and Perez filed a cross-motion to amend his complaint to include

a claim under the CRA and to add as a defendant the law firm

retained by Zagami during the defamation suit. Finding that

Zagami’s defamation suit was supported by probable cause, the

trial court granted Zagami’s motion to dismiss the malicious use

of process claim and denied Perez’s cross-motion to amend the

complaint. In respect of the CRA claim, the trial court

concluded that N.J.S.A. 10:6-2(c) was modeled after 42 U.S.C.A.

§ 1983 (Section 1983) and that, consequently, the CRA only

authorized private suits against persons acting under color of

law.

On appeal, the Appellate Division reversed both

determinations of the trial court. The panel determined that

Zagami’s defamation suit was not supported by probable cause and

4

that Zagami should have been aware that Perez’s statements were

privileged at the time it filed suit. Accordingly, the panel

reversed the trial court’s grant of Zagami’s motion to dismiss

the malicious use of process claim.

Importantly, for purposes of the instant appeal, the panel

disagreed with the trial court’s construction of the CRA.

Relying on Felicioni v. Administrative Office of the Courts, 404

N.J. Super. 382 (App. Div. 2008), certif. denied, 203 N.J. 440

(2010), the appellate panel determined that N.J.S.A. 10:6-2(c)

has two distinct clauses: one clause protects against a

“deprivation” of an individual’s constitutional or statutory

rights and the other clause protects against an “interference”

with those same rights. Because the “under color of law”

language appears only in the second clause of N.J.S.A.

10:6-2(c), which proscribes an interference with protected civil

liberties, the panel reasoned that the state action requirement

was limited to interference claims. As a result, the panel

allowed Perez to amend his complaint to include a cause of

action against Zagami for a deprivation of his civil rights

under the CRA.

We granted certification to review only whether the New

Jersey Civil Rights Act permits a private right of action

against an individual who is not acting under color of law. 213

5

N.J. 530 (2013).2 We also granted amicus curiae status to the

Seton Hall University School of Law Center for Social Justice.

II.

A.

The New Jersey Civil Rights Act, in relevant part, contains

two subsections authorizing causes of action that may be brought

by the Attorney General:

(a) If a person, whether or not acting under

color of law, subjects or causes to be

subjected any other person to the

deprivation of any substantive due process

or equal protection rights, privileges or

immunities secured by the Constitution or

laws of the United States, or any

substantive rights, privileges or immunities

secured by the Constitution or laws of this

State, the Attorney General may bring a

civil action for damages and for injunctive

or other appropriate relief. The civil

action shall be brought in the name of the

State and may be brought on behalf of the

injured party. . . .

(b) If a person, whether or not acting under

color of law, interferes or attempts to

interfere by threats, intimidation or

coercion with the exercise or enjoyment by

any other person of any substantive due

process or equal protection rights,

privileges or immunities secured by the

Constitution or laws of the United States,

or any substantive rights, privileges or

immunities secured by the Constitution or

laws of this State, the Attorney General may

bring a civil action for damages and for

injunctive or other appropriate relief. The

civil action shall be brought in the name of

2

We later granted certification in Cottrell v. Zagami, Inc.,

also decided today, on the same issue. 215 N.J. 483 (2013).

6

the State and may be brought on behalf of

the injured party.

[N.J.S.A. 10:6-2.]

Importantly, the Act also authorizes a private

right of action. In that respect, the Act provides in

pertinent part:

(c) Any person who has been deprived of any

substantive due process or equal protection

rights, privileges or immunities secured by

the Constitution or laws of the United

States, or any substantive rights,

privileges or immunities secured by the

Constitution or laws of this State, or whose

exercise or enjoyment of those substantive

rights, privileges or immunities has been

interfered with or attempted to be

interfered with, by threats, intimidation or

coercion by a person acting under color of

law, may bring a civil action for damages

and for injunctive or other appropriate

relief.

[N.J.S.A. 10:6-2(c).]

The parties dispute the requirements for initiating an

action under subsection (c) against a private party for civil

rights violations. Specifically at issue is whether all claims

filed under N.J.S.A. 10:6-2(c) require the presence of state

action, or whether the “under color of law” condition of that

subsection is limited to claims based on interference with

protected civil rights.

7

B.

Zagami urges this Court to reverse the Appellate Division’s

decision and to apply subsection (c)’s state action requirement

to all private actions under the CRA. In support of its

argument, Zagami points to the general structure of the CRA.

Zagami asserts that, unlike subsections (a) and (b), which

expressly permit the Attorney General to bring suit for civil

rights violations against an individual “whether or not acting

under color of law,” subsection (c) delimits potential

defendants to alleged civil rights violators who act “under

color of law.” According to Zagami, if the Legislature had

intended to allow private actions against individuals not acting

under color of law, subsection (c) would have included the same

unmistakable language as subsections (a) and (b). Moreover,

Zagami notes that construing the “under color of law” portion of

subsection (c) to apply only to interferences with protected

rights would leave the deprivation clause of subsection (c) as

the only portion of the statute not identifying permissible

defendants.

Perez, in contrast, argues that the Appellate Division’s

determination should be upheld as consonant with Owens v.

Feigin, 194 N.J. 607, 611 (2008). In Owens, we held that the

Tort Claims Act’s notice-of-claim requirement was inapplicable

to actions under N.J.S.A. 10:6-2(c) given the “broad remedial

8

purpose of the CRA” and the absence of any text or legislative

history to support imposition of that requirement. Ibid. Perez

maintains that adopting the Appellate Division’s construction of

the CRA aligns with Owens’s references to the broad remedial

purpose underlying the CRA. Perez further argues that the

Legislature intended for the CRA to establish a more robust

scheme for protecting civil liberties than its federal

counterpart, Section 1983. To that end, Perez contends that the

CRA should be construed to permit private actions against both

public and private individuals for deprivations of protected

rights. Finally, Perez points to the structure of the CRA for

support. He argues that, because subsections (a) and (b)

clearly distinguish between deprivations and interferences, the

Legislature must have intended different treatment for

deprivation and interference claims brought under subsection

(c).

The Seton Hall University School of Law Center for Social

Justice (amicus), appearing as amicus curiae on behalf of Perez,

argues that the grammatical construction of subsection (c)

supports the Appellate Division’s conclusion. Amicus maintains

that the presence of a comma preceding the words “or whose

exercise” and the absence of a comma preceding the phrase “by a

person acting under color of law” evinces a legislative intent

to divide N.J.S.A. 10:6-2(c) into two distinct clauses. Because

9

the “under color of law” language of subsection (c) appears in

the interference clause, rather than in the deprivation clause,

amicus submits that only actions alleging interference, or an

attempted interference, with protected rights require proof of

state action.

III.

The issue before this Court is purely one of statutory

construction. Consequently, we review de novo the Appellate

Division’s interpretation of the CRA. See Toll Bros. v. Twp. of

Windsor, 173 N.J. 502, 549 (2002) (noting that matters of law

are subject to de novo review); Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995) (“A trial court’s

interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special

deference.”).

A.

This Court has not yet addressed the meaning of N.J.S.A.

10:6-2(c). However, our interpretation of that provision is

guided by traditional principles of statutory construction.

“‘When interpreting statutory language, the goal is to divine

and effectuate the Legislature’s intent.’” State v. Buckley,

216 N.J. 249, 263 (2013) (quoting State v. Shelley, 205 N.J.

320, 323 (2011)). There is no more persuasive evidence of

legislative intent than the words by which the Legislature

10

undertook to express its purpose; therefore, we first look to

the plain language of the statute. See Bosland v. Warnock

Dodge, Inc., 197 N.J. 543, 553 (2009).

It bears repeating that N.J.S.A. 10:6-2(c) provides as

follows:

Any person who has been deprived of any

substantive due process or equal protection

rights, privileges or immunities secured by

the Constitution or laws of the United

States, or any substantive rights,

privileges or immunities secured by the

Constitution or laws of this State, or whose

exercise or enjoyment of those substantive

rights, privileges or immunities has been

interfered with or attempted to be

interfered with, by threats, intimidation or

coercion by a person acting under color of

law, may bring a civil action for damages

and for injunctive or other appropriate

relief.

By its terms, it is unclear whether the “person acting under

color of law” provision of N.J.S.A. 10:6-2(c) applies to all

private actions, or solely to interference claims. Indeed, the

Appellate Division has wrestled with the very question that has

arisen in this matter. Compare Felicioni, supra, 404 N.J.

Super. at 400 (finding that structure of subsection (c) evinces

legislative intent to distinguish between deprivation and

interference claims), with Filgueiras v. Newark Pub. Schs., 426

N.J. Super. 449, 468 (App. Div.) (requiring state action for all

claims under N.J.S.A. 10:6-2(c)), certif. denied, 212 N.J. 460

(2012), and Rezem Family Assocs. L.P. v. Borough of Millstone,

11

423 N.J. Super. 103, 115 (App. Div.) (noting that claims under

N.J.S.A. 10:6-2(c) require same elements as claims under Section

1983), certif. denied, 208 N.J. 368 (2011).

In large part, the punctuation of the clause confounds its

clear meaning. As amicus points out, normally the presence of a

comma preceding the words “or whose exercise” and the absence of

a comma preceding the phrase “by a person acting under color of

law” would evince a legislative intent to divide N.J.S.A.

10:6-2(c) into two distinct clauses. Yet, that would pin heavy

interpretive import on the absence of the second comma.

Punctuation, though important, is not necessarily controlling in

the search for legislative intent. See Carisel v. King, 2 N.J.

45, 50 (1949) (“Although not to be entirely ignored, punctuation

cannot be allowed to control the meaning of the words chosen to

voice the intention.”).

Making the absence of a second comma preceding the phrase

“by a person acting under color of law” in subsection (c) the

determiner of the subsection’s meaning brings about illogical

results. It requires one to accept that the Legislature

abandoned the careful and precise structure used in subsections

(a) and (b) when explaining whether a private person may be sued

under subsection (c). If the Legislature intended for private

claims based on the deprivation of civil rights under subsection

(c) to be actionable against private citizens, whether or not

12

acting under color of law, it could have clearly expressed that

intention as it did in subsection (a), or as it did for

interference claims filed under subsection (b). We do not

believe that the mere omission of a second comma in the

complicated wording of subsection (c) signals that the phrase

“acting under color of law” applies only to a defendant charged

with interfering or attempting to interfere with civil rights.

Indeed, an interpretation of subsection (c) based solely on

punctuation requires acceptance of a reading that is utterly at

odds with the clarity of expression used by the Legislature in

subsections (a) and (b).

When construing a statute, “the intention of the

Legislature is to be derived from a view of the entire statute”

and all provisions “must be read together in light of the

general intent of the act.” Hubner v. Spring Valley Equestrian

Ctr., 203 N.J. 184, 195 (2010). We presume that the Legislature

created subsections (a), (b), and (c) as a cohesive whole. That

presumption cautions against an asserted plain language reading

of subsection (c) that appears at odds with related phraseology

in its sister subsections. Moreover, Perez and amicus’s

asserted interpretation creates ambiguity within subsection (c)

in that our acceptance of the import of a mere missing comma

would render the opening clause of (c) -- involving a private

13

party’s deprivation claim -- as the only one in N.J.S.A. 10:6-2

not to have an identified actor who committed the violation.

In sum, subsection (c) poses a challenging interpretative

task. From a plain language reading, it is difficult to discern

legislative intent with any certainty. We can only conclude

that the argument based on the punctuation of subsection (c)

provides an infirm foundation on which to rest a holding as to

whether the Legislature intended to require both deprivation and

interference claims to be brought only against individuals

acting under color of law.

B.

Because the language of N.J.S.A. 10:6-2(c) “does not lead

to a single, clear meaning,” we seek assistance from the

relevant legislative history. State v. O’Driscoll, 215 N.J.

461, 474 (2013); see also N.J. Dep’t of Children & Families v.

A.L., 213 N.J. 1, 20 (2013) (“If [statutory] language is

ambiguous, courts can examine extrinsic evidence, including

legislative history, for guidance.”).

The CRA was enacted in 2004 for the profound purpose of

“provid[ing] the citizens of New Jersey with a State remedy for

deprivation of or interference with the civil rights of an

individual.” S. Judiciary Comm. Statement to S. No. 1158, 211th

Leg. 1 (May 6, 2004). According to Governor McGreevey, who

signed the bill into law, the CRA was designed as a “State

14

analog to the federal civil rights statute codified at 42

U.S.C.A. [§] 1983” and was not intended to “create any new

substantive rights.” Governor’s Statement on Signing Assembly

Bill No. 2073 (Sept. 10, 2004). Instead, it is apparent that

the CRA was intended to address potential gaps in remedies

available under New Jersey law but not cognizable under the

federal civil rights law, Section 1983.

Subsections (a) and (b) of the CRA authorize the Attorney

General to bring suit on behalf of an individual who has

suffered a deprivation of or interference with certain

substantive civil rights, while subsection (c) of the CRA

provides a private cause of action for an individual subjected

to a deprivation of or interference with those protected rights.

N.J.S.A. 10:6-2. The relevant legislative history, as well as

the plain text of the statute, establish that the Attorney

General may bring suit against an individual “whether or not

[the defendant is] acting under color of law.” N.J.S.A.

10:6-2(a), (b); see Assemb. Judiciary Comm. Statement to Assemb.

No. 2073, 211th Leg. 1 (Feb. 19, 2004). However, in describing

the scope of subsection (c), the Senate sponsor and

corresponding Assembly sponsor explained that “any individual

may bring a [private] civil action if his rights, privileges or

immunities have been deprived, interfered with or attempted to

be interfered with by threats, intimidation or coercion by a

15

person acting under color of law.” S. 1558 (Sponsor’s

Statement), 211th Leg. (May 6, 2004); Assemb. 2073 (Sponsor’s

Statement), 211th Leg. (Feb. 9, 2004). In other words, both the

Senate and General Assembly bill sponsors evidently regarded

state action as an essential component of interference and

deprivation claims under subsection (c). That view is not

contravened elsewhere in the legislative history. Moreover,

that construction comports with the CRA’s purpose as a state law

analogue to Section 1983.3

3

Section 1983 provides:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the

District of Columbia, subjects, or causes to

be subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws, shall

be liable to the party injured in an action

at law, suit in equity, or other proper

proceeding for redress, except that in any

action brought against a judicial officer

for an act or omission taken in such

officer's judicial capacity, injunctive

relief shall not be granted unless a

declaratory decree was violated or

declaratory relief was unavailable. For the

purposes of this section, any Act of

Congress applicable exclusively to the

District of Columbia shall be considered to

be a statute of the District of Columbia.

16

In sum, legislative history supports the conclusion that,

notwithstanding the lack of a comma preceding the phrase “by a

person acting under color of law” in subsection (c), the phrase

was understood by lawmakers responsible for its drafting and

passage through both Houses of the Legislature to refer to

persons subject to suit for both a deprivation as well as an

interference claim by a private party under the Act. In other

words, “acting under color of law” modifies the one and only

reference to persons who may be sued under subsection (c),

regardless of whether it is a deprivation claim or an

interference claim.

IV.

Thus, a plain language reading of subsection (c) does not

clearly indicate to which claims the phrase “person acting under

color of law” should apply.

Moreover, the phrase’s location raises questions about its

intended effect. The interpretation urged by Perez and amicus

would result in the deprivation action by a private party

becoming the only cause of action in the statute for which the

Legislature has not identified a permissible defendant. It thus

would render a portion of subsection (c)’s claims

incomprehensible. Interpretations that lead to absurd or futile

results are to be avoided. See Twp. of Pennsauken v. Schad, 160

N.J. 156, 170 (1999) (“[I]t is axiomatic that a statute will not

17

be construed to lead to absurd results.”). If the complicated

wording of subsection (c) is read as Perez and amicus argue, one

is left wondering why the Legislature would by implication throw

open to private parties deprivation claims against non-state

actors. The Legislature knew how to express itself clearly and

unmistakably in subsections (a) and (b) when setting forth

claims that could be brought against a private person who does

not act under color of law. Rules designed to aid courts

grappling with doubtful meaning of language urge that provisions

within a statute are to be read in a cohesive way. See, e.g.,

Beim v. Hulfish, 216 N.J. 484, 498 (2014) (recognizing that

provisions within overall statutory scheme should be read

together and provide relative context in light of act’s general

intent); Hubner, supra, 203 N.J. at 195.

Further, we are not persuaded that the absence of a comma

in such a complicated statutory sentence is dispositive on the

question of legislative intent. We note, again, that

punctuation, though important, is not decisive of legislative

intent. See Carisel, supra, 2 N.J. at 50 (noting that

punctuation does not trump legislative intent to be gleaned from

“the words chosen to voice th[at] intention”); see also 2A

Sutherland, Statutory Construction, § 47.15 at 345 (7th ed.

2007) (“If the act as originally punctuated does not reflect the

true legislative intent, the punctuation may be disregarded,

18

transposed, or the act may be repunctuated in order to

effectuate such intent.”). In this instance, the lack of a

comma preceding the phrase “person acting under color of law”

seems more an oversight than an intentional effort to

substantively differentiate between deprivation claims and

interference claims.

We seek an interpretation that gives meaning to the

legislative phrasing of subsection (c) in respect of deprivation

claims by private parties. By interpreting the phrase “persons

acting under color of law” to define persons against whom both

deprivation and interference (or attempted interference) claims

may be brought, we give meaning and application to the entire

wording of this first sentence of section (c).

That construction serves an additional and important

purpose. The legislative history is replete with references

that the CRA was intended to provide New Jersey citizens with a

state analogue to Section 1983 actions, and our construction is

in keeping with that purpose. Section 1983 actions may only be

brought against persons who are acting “under color of” law.

See Mitchum v. Foster, 407 U.S. 225, 240, 92 S. Ct. 2151, 2161,

32 L. Ed. 2d 705, 716 (1972) (observing that Section 1983 “was

intended to enforce the provisions of the Fourteenth Amendment

against state action, . . . whether that action be executive,

legislative, or judicial”) (internal quotation marks omitted);

19

see also The Civil Rights Cases, 109 U.S. 3, 10, 3 S. Ct. 18,

20-21, 27 L. Ed. 835, 839 (1883) (explaining that “under color

of law” “is state action of a particular character” and that

Section 1983 only authorizes “redress against . . . the action

of state officers, executive or judicial, when these are

subversive of . . . fundamental rights”); Wildoner v. Borough of

Ramsey, 162 N.J. 375, 385 (2000) (noting similarly that “[t]o

establish a valid claim [under Section 1983], plaintiff[s] must

prove that defendants [1] acted under color of law and [2]

deprived [them] of a well-established federal constitutional or

statutory right”). Our interpretation of the private action

authorized under N.J.S.A. 10:6-2(c) advances that legislative

intent to make the private cause of action correlate to the

federal cause of action authorized by Section 1983.

Indeed, the adoption of Perez’s preferred construction

would dramatically expand the liability of private individuals

beyond its current bounds and authorize actions against a

private person for perceived constitutional violations. We do

not believe that the Legislature intended to work such a radical

change through the ambiguous placement of a comma. Cf. Whitman

v. Am. Trucking Ass’ns, 531 U.S. 457, 468, 121 S. Ct. 903, 909-

10, 149 L. Ed. 2d 1, 13 (2001) (“Congress, we have held, does

not alter the fundamental details of a regulatory scheme in

vague terms or ancillary provisions -- it does not, one might

20

say, hide elephants in mouseholes.”). Had the Legislature

intended to permit private actions for deprivations of protected

rights irrespective of state action, we think it would have done

so expressly.4

On the other hand, to the extent that the CRA authorizes

the Attorney General to bring CRA actions against persons,

whether or not acting under color of law, the legislative choice

to provide a robust remedy for substantive civil rights

violations is unimpeded. Our construction is consistent with

prior statements by this Court recognizing that the Act creates

a broad remedial scheme and provides strong remedies to combat

civil rights violations. See Owens, supra, 194 N.J. at 611

(recognizing CRA’s “broad remedial purpose”).

In conclusion, we hold that the phrase “person acting under

color of law” in N.J.S.A. 10:6-2(c) applies to deprivation as

well as to interference, or attempt-to-interfere, claims brought

by private party plaintiffs under the Act.

V.

The judgment of the Appellate Division is reversed in part.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,

FERNANDEZ-VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily

assigned) join in JUSTICE LaVECCHIA’s opinion.

4

Notwithstanding our conclusion that the CRA does not provide a

private action based on a deprivation of civil rights

irrespective of state action, we note that Perez is not without

a remedy because his malicious use of process claims remain

viable under the Appellate Division’s judgment.

21

SUPREME COURT OF NEW JERSEY

NO. A-36 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

LUIS PEREZ,

Plaintiff-Respondent,

v.

ZAGAMI, LLC, d/b/a THE

LANDMARK AMERICANA TAP AND

GRILL, d/b/a LANDMARK

LIQUORS, d/b/a THE SPOT,

Defendant-Appellant.

DECIDED May 21, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice LaVecchia

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

CHECKLIST AFFIRM IN PART

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 7

1