Robert Lavezzi v. State of N.J. (072856)

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).

Robert Lavezzi v. State of New Jersey (A-29-13) (072856)

Argued March 31, 2014 -- Decided September 9, 2014

PATTERSON, J., writing for a unanimous Court.

In this appeal, the Court considers whether the State is obligated to defend and indemnify employees of a

county prosecutor’s office involved in a civil action arising from the loss of, and damage to, non-contraband items

seized in the course of a criminal investigation.

The Essex County Prosecutor’s Office (Prosecutor’s Office) executed a search warrant issued in connection

with a criminal investigation and seized items owned by plaintiffs Robert and Karen Lavezzi. The criminal

investigation was eventually abandoned and the State did not institute either criminal charges or a civil-forfeiture

action against plaintiffs. Plaintiffs claim that their property was lost and damaged while in the custody of the

Prosecutor’s Office. They filed a complaint alleging that the Prosecutor’s Office and three of its employees were

liable to them on theories of negligence, conversion, and unlawful taking. Defendants requested that the Attorney

General’s Office (Attorney General) defend and indemnify the action pursuant to N.J.S.A. 59:10-1 and N.J.S.A.

59:10A-1 of the New Jersey Tort Claims Act (TCA), and Wright v. State, 169 N.J. 422 (2001), under which the

employees of a county prosecutor’s office are entitled to defense and indemnification from the Attorney General

when they are sued on the basis of actions taken in the discharge of their law enforcement duties. The Attorney

General denied defendants’ requests, finding that the Prosecutor’s Office’s processing and safeguarding of

plaintiffs’ property were administrative acts not falling within the purview of Wright. The County appealed and the

Appellate Division affirmed, finding that the retention of plaintiffs’ property “long after any related law enforcement

activity” had concluded constituted an administrative function that did not implicate the Attorney General’s

obligation to defend and indemnify State employees. This Court granted certification. 216 N.J. 14 (2013).

HELD: Pursuant to the Wright standard, the State is obligated to defend and indemnify the Prosecutor’s Office

employees at this early stage of the litigation because, based on the limited record before the Court, this case arises

from the performance of their law enforcement duties.

1. A reviewing court “should not reverse the Attorney General’s determination unless it is arbitrary, capricious or

unreasonable or it is not supported by substantial credible evidence in the record as a whole.” Prado v. State, 186

N.J. 413, 427 (2006). An appellate court defers to an administrative agency’s findings of fact, but reviews its legal

conclusions de novo. Norfolk S. Ry. Co. v. Intermodal Props., LLC, 215 N.J. 142, 165 (2013). (pp. 10-11)

2. Under N.J.S.A. 59:10A-1 of the TCA, which is derived from vicarious liability principles, the Attorney General

must defend State employees in actions arising out of conduct performed in the scope of their employment, unless a

statutory exception listed in N.J.S.A. 59:10A-2 applies. Under N.J.S.A. 59:10-1 of the TCA, if “the Attorney

General provides for the defense of an employee or former employee, the State shall provide indemnification for the

State employee.” In this case, the Attorney General does not argue that its duty to defend and indemnify is

inapplicable because the action arises out of acts committed outside the scope of defendants’ employment for the

Prosecutor’s Office, or because a statutory exception applies. Instead, the Attorney General asserts that it is not

required to defend and indemnify defendants because, in performing the functions at issue in this case, they were not

acting as “state employees” for purposes of N.J.S.A. 59:10-1 and N.J.S.A. 59:10A-1. (pp. 11-14)

3. The Criminal Justice Act of 1970 provides that “[t]he criminal business of the State shall be prosecuted by the

Attorney General and the county prosecutors.” N.J.S.A. 2A:158-4. Moreover, the Attorney General is authorized to

supersede a “county prosecutor for the purpose of prosecuting all of the criminal business of the State in said

county,” and to appear on the State’s behalf “in any court or tribunal” in a criminal investigation or proceeding “as

shall be necessary for the protection of the rights and interests of the State.” N.J.S.A. 52:17B-106. This Court has

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long recognized that employees of a county prosecutor’s office “possess a hybrid status.” Dunne v. Fireman’s Fund

Am. Ins. Co., 69 N.J. 244, 248 (1976). When “county prosecutors execute their sworn duties to enforce the law by

making use of all the tools lawfully available to them to combat crime, they act as agents of the State. On the other

hand, when county prosecutors are called upon to perform administrative tasks unrelated to their strictly

prosecutorial functions,” they act on behalf of the county. Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996),

cert. denied, 519 U.S. 1084 (1997). (pp. 15-16)

4. In Wright, the Court held that “[b]ecause law enforcement is a basic State function, and because county

prosecutors are uniquely subject at all times to the Attorney General’s statutory power to supervise and supersede

them,” the TCA imposes “vicarious liability on the State for the tortious actions of county prosecutorial employees

in the performance of their law enforcement duties.” 169 N.J. at 429-30. A county prosecutor’s employees,

however, are not State agents for purposes of defense and indemnification in cases arises out of their administrative

functions. In Coleman, for example, the Third Circuit concluded that because a county prosecutor acts as “a local,

county official” when making personnel decisions, the prosecutor and his employees were not entitled to State

defense and indemnification in an action arising from allegedly discriminatory promotion decisions. 87 F.3d at

1506. Similarly, in Courier News v. Hunterdon County Prosecutor’s Office, 378 N.J. Super. 539 (App. Div. 2005),

the Appellate Division held that the State did not have to pay a counsel fee award arising from a county prosecutor’s

office’s denial of an Open Public Records Act (OPRA) request for a copy of a 9-1-1 tape, finding that the liability

arose from the county prosecutor’s office’s administrative decision under OPRA. Id. at 542-53, 546-47. Thus,

although the State is required to assume the burden of defense and indemnification for liability arising from a county

prosecutor’s law enforcement functions, liability derived from a county prosecutor’s administrative functions is the

county’s responsibility. The test is whether the act or omission of the county prosecutor’s office and its employees

that gave rise to the potential liability derived from the prosecutor’s power to enforce the criminal law, and

constituted an exercise of that power. (pp. 16-21)

5. Turning to this case, plaintiffs’ items were seized by the Prosecutor’s Office when it executed a search warrant

during a criminal investigation. To the extent that plaintiffs’ items were lost or damaged when seized, the liability at

issue was clearly incurred during a law enforcement activity and therefore triggers the State’s defense and

indemnification obligations. After being seized, plaintiffs’ items were allegedly stored by the Prosecutor’s Office at

a location and under conditions that are not disclosed by the record. The retention of evidence during a criminal

investigation, like the seizure of that evidence, is a law enforcement activity that gives rise to the State’s obligation

to defend and indemnify a county prosecutor. The damage and loss alleged by plaintiffs may have occurred

following the conclusion of the criminal investigation, when the non-contraband items at issue were no longer

potential evidence, but had not been returned to plaintiffs. If so, the continued retention of plaintiffs’ property,

either intentionally or by oversight, derives from and directly relates to the law enforcement function that the

Prosecutor’s Office fulfilled when it seized and retained the evidence, and thus also implicates the State’s duty to

defend and indemnify. Therefore, the State is obligated to defend and indemnify defendants pursuant to Wright and

N.J.S.A. 59:10-1 and N.J.S.A. 59:10A-1 of the TCA, and the Attorney General’s administrative decision holding

otherwise was “arbitrary, capricious or unreasonable.” (pp. 21-23).

6. If a more complete record at a later stage of this case reveals that plaintiffs’ property was stored in a facility at the

direction of the County, and that the loss or damage to plaintiffs’ property resulted from the condition or

maintenance of that facility, the State may pursue a claim against the County for reimbursement of all or part of its

costs incurred in the defense and indemnification of the Prosecutor’s Office employees. (pp. 23-24)

The judgment of the Appellate Division is REVERSED, and the case is REMANDED to the trial court for

further proceedings in accordance with this opinion.

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

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

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SUPREME COURT OF NEW JERSEY

A-29 September Term 2013

072856

ROBERT LAVEZZI and KAREN

LAVEZZI,

Plaintiffs,

v.

STATE OF NEW JERSEY,

Defendant-Respondent,

and

CAROLYN A. MURRAY, ACTING

PROSECUTOR OF ESSEX COUNTY;

ESSEX COUNTY PROSECUTOR’S

OFFICE; PATRICK TODD,

INVESTIGATOR FOR THE ESSEX

COUNTY PROSECUTOR’S OFFICE

AND INDIVIDUALLY; JAMES

CONTRERAS, INVESTIGATOR FOR

THE ESSEX COUNTY PROSECUTOR’S

OFFICE AND INDIVIDUALLY,

Defendants,

and

ESSEX COUNTY,

Defendant-Appellant.

Argued March 31, 2014 – Decided September 9, 2014

On certification to the Superior Court,

Appellate Division.

Alan R. Ruddy, Assistant County Counsel,

argued the cause for appellant (James R.

Paganelli, Essex County Counsel, attorney).

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Lisa A. Puglisi, Assistant Attorney General,

argued the cause for respondent (John J.

Hoffman, Acting Attorney General of New

Jersey, attorney; Brian P. Wilson, Deputy

Attorney General, on the letter brief).

JUSTICE PATTERSON delivered the opinion of the Court.

In this case, the Court determines whether the State is

obligated to defend and indemnify employees of a county

prosecutor’s office involved in a civil action arising from the

loss of, and damage to, non-contraband items seized in the

course of a criminal investigation.

The items at the center of this case were the property of

plaintiffs Robert and Karen Lavezzi. They were seized from

plaintiffs’ home after the Essex County Prosecutor’s Office

(Prosecutor’s Office) executed a search warrant issued in

connection with an investigation of plaintiff Robert Lavezzi.

That investigation was eventually abandoned. The State did not

institute either criminal charges or a civil-forfeiture action

against either plaintiff.

Plaintiffs claim that, while their property was in the

custody of the Prosecutor’s Office, some of it was damaged and

some was lost entirely. They filed a complaint in the Law

Division, alleging that the Prosecutor’s Office and three of its

employees were liable to them on theories of negligence,

conversion, and unlawful taking. Essex County (County)

requested that the Attorney General’s Office (Attorney General)

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defend and indemnify defendants, pursuant to this Court’s

decision in Wright v. State, 169 N.J. 422 (2001). The Attorney

General denied the County’s request for defense and

indemnification, and the Appellate Division affirmed the

Attorney General’s determination.

Based on the sparse record before the Court, which does not

reveal the purpose of the investigation, the date upon which the

investigation was terminated, or the manner in which the seized

items were allegedly damaged and/or lost, we reverse the

Appellate Division’s determination. We apply the governing

standard stated by this Court in Wright, under which the

employees of a county prosecutor’s office are entitled to

defense and indemnification when they are “sued on the basis of

actions taken in the discharge of their law enforcement duties.”

Id. at 456. The articles disputed in this case were seized in

the course of a criminal investigation, part of the State’s

“criminal business” for which the State and county prosecutors

are responsible pursuant to N.J.S.A. 2A:158-4. The limited

record before the Court indicates that this case arises from the

employees’ performance of law enforcement duties, rather than

administrative functions that are the exclusive responsibility

of the County.

Accordingly, we hold that at this early stage of the

litigation, the State shall defend and indemnify the employees

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of the Prosecutor’s Office named as defendants. The State’s

defense and indemnification of the Prosecutor’s Office employees

shall be subject to a reservation: if it is revealed at a later

stage of this case that plaintiffs’ property was stored in a

facility controlled by the County and that the loss or damage to

plaintiffs’ property resulted from that facility’s condition or

maintenance, the State may seek reimbursement of all or part of

the costs incurred in its defense and indemnification of the

Prosecutor’s Office employees.

I.

The record in this case, consisting of the complaint filed

by plaintiffs and the parties’ briefs, reveals the following

factual background.

On or about December 29, 2005, the Prosecutor’s Office

executed a warrant authorizing a search of plaintiffs’ home in

connection with a criminal investigation of plaintiff Robert

Lavezzi. The details of this investigation are not disclosed in

the record. Plaintiffs allege that the Prosecutor’s Office

seized numerous items, including “collectible and model trains,

train parts and other personal possessions and items belonging

to [p]laintiffs.” They claim that these items were transported

to facilities “owned and/or under the exercise and control of”

the State, the County, former County Prosecutor Paula Dow, the

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Prosecutor’s Office and two investigators employed by the

Prosecutor’s Office, Patrick Todd and James Contreras.

On a date that is not specified in the record, but is

alleged by plaintiffs to have been on or before April 14, 2009,

the Prosecutor’s Office elected not to prosecute plaintiff

Robert Lavezzi. There is no indication in the record that a

civil forfeiture action under N.J.S.A. 2C:64-1 to -9 was ever

instituted with respect to the disputed property.

Plaintiffs allege that although the Prosecutor’s Office

stated that the items seized during the December 29, 2005 search

would be restored to them, their repeated requests for their

property were ignored, and the items were not returned.

According to plaintiffs, the Prosecutor’s Office met with

plaintiff Robert Lavezzi on or about October 9, 2009, and

January 5, 2010, and returned “some of the items and personal

property” that had been seized during the search of the home.

Plaintiffs assert, however, that “[a] substantial number of

personal possessions and items . . . including but not limited

to collectibles and model trains . . . were not returned.”

Plaintiffs also contend that many of the items were “damaged or

crushed” and that some items sustained water damage to either

the item itself or to its packaging. According to plaintiffs,

the water damage occurred as a result of defendants storing them

in facilities “subject to leaks or . . . located in a flood

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zone,” including a storage space provided by the County to the

Prosecutor’s Office.

Plaintiffs filed a complaint in the Law Division, naming as

defendants the Prosecutor’s Office, former County Prosecutor

Dow, Investigators Todd and Contreras, and unidentified “John

Doe” defendants. In their complaint, plaintiffs sought

compensatory and punitive damages and attorneys’ fees based on

theories of negligence, gross negligence, conversion, and

unlawful taking. The complaint was served upon defendants with

a summons.

By letter dated November 15, 2011, the County forwarded a

copy of the summons and complaint to the Attorney General.

Citing Wright, the County requested “that the Attorney General’s

Office represent[] the Essex County Prosecutor’s Office and any

and all individual defendants/employees named” in the complaint.

Acting Essex County Prosecutor Carolyn Murray and defendants

Todd and Contreras separately wrote to the Attorney General,

requesting “representation and indemnification on behalf of the

Essex County Prosecutor’s Office” pursuant to N.J.S.A. 59:10-1,

N.J.S.A. 59:10A-1, and Wright. Each stated that plaintiffs’

action had been filed against him or her in his or her “capacity

as a law enforcement official in the Essex County Prosecutor’s

Office.”

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While defendants’ requests for defense and indemnification

by the State were pending, the County filed a motion to dismiss

the complaint. The trial court dismissed the complaint with

prejudice. However, the trial court subsequently granted

plaintiffs’ motion for reconsideration, modifying its order so

that the motion to dismiss was denied without prejudice. As

part of its order, the court permitted plaintiffs to amend the

complaint to name the State as a defendant. Plaintiffs filed

and served an amended complaint, asserting a claim against the

State based on “principles of vicarious liability/respondeat

superior” and this Court’s decision in Wright.

On August 3, 2012, the Attorney General’s Office issued an

administrative determination responding to the requests for

defense and indemnification submitted by the County and the

Prosecutor’s Office employees. The Attorney General declined

representation, asserting that “the facts at issue . . . [did]

not fall within the purview contemplated” by this Court in

Wright. The Attorney General found that the Prosecutor’s Office

assumed “administrative responsibility to safeguard the

plaintiffs’ property,” and that its “decision not to pursue a

civil forfeiture action” against plaintiff Robert Lavezzi and

its failure to return all of the items seized from plaintiffs,

were “administrative acts, not law enforcement functions.”

Deeming the Prosecutor’s Office’s assumption of a custodial role

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in the context of a criminal investigation to be “of no moment,”

the Attorney General’s Office stated that

[t]he State’s obligation to provide defense

and indemnification to county prosecutor

employees arises only when the alleged

tortious conduct occurs in the scope of

their employment either during the arrest,

investigation or prosecution of a criminal

matter. The State is not . . . obligated to

provide defense/indemnification to the . . .

Prosecutor’s Office and its employees

because they reached the decision not to

initiate a civil forfeiture action and chose

to return plaintiffs’ property, some of

which was in a damaged condition. . . .

Civil forfeiture does not fall within the

“criminal business” of the . . .

Prosecutor’s Office.

The Attorney General added that “the processing of seized

property is more of an administrative, rather than law-

enforcement function.”

The County appealed the Attorney General’s administrative

determination to the Appellate Division, which affirmed that

decision. The Appellate Division imposed on the County the

burden of proving that the Attorney General had abused his

discretion, and held that the County had failed to demonstrate

that plaintiffs’ property was held in connection with a law

enforcement activity rather than an administrative function.

The panel declined to “adopt the broad principle that the

storage and safeguarding of evidence is invariably an

administrative function.” Instead, it elected to decide the

8

case more narrowly, holding that the retention of plaintiffs’

property “long after any related law enforcement activity” had

concluded constituted an administrative function that did not

implicate the Attorney General’s obligation to defend and

indemnify State employees.

We granted certification. 216 N.J. 14 (2013).

II.

The County challenges the Attorney General’s administrative

determination on the ground that the claims in this matter

derive from the County Prosecutor’s law enforcement functions,

over which the Attorney General exercises supervisory authority.

The County concedes that there is no authority directly

addressing the issue raised by this case. It argues, however,

that case law supports the principle that the collection and

retention of evidence prior to a criminal trial relates to law

enforcement and is generally considered a prosecutorial

function. Noting the absence of an evidentiary showing that the

damaged and lost items were stored in a County facility, the

County argues that this case is much more closely aligned with

the Attorney General’s law enforcement authority than with the

County Prosecutor’s administrative functions.

The State counters that the Attorney General correctly

determined that when the Prosecutor’s Office stored the items at

issue in this case, it acted in an administrative capacity. It

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asserts that there is an important distinction between the

marshaling of evidence, which is a law enforcement function, and

its storage, which is inherently administrative. The State

characterizes plaintiffs’ claim as being premised upon the

equitable doctrine of replevin, which is grounded in civil law,

and notes that plaintiffs do not challenge the manner in which

the Prosecutor’s Office fulfilled its law enforcement function.

III.

We review the Attorney General’s administrative

determination in accordance with a deferential standard of

review. An appellate court affords a “strong presumption of

reasonableness” to an administrative agency’s exercise of its

statutorily delegated responsibilities. City of Newark v.

Natural Res. Council, Dep’t of Envtl. Prot., 82 N.J. 530, 539,

cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245

(1980). The reviewing court “should not reverse the Attorney

General’s determination unless it is arbitrary, capricious or

unreasonable or it is not supported by substantial credible

evidence in the record as a whole.” Prado v. State, 186 N.J.

413, 427 (2006) (internal quotation marks omitted). “The burden

of demonstrating that the agency’s action was arbitrary,

capricious or unreasonable rests upon the [party] challenging

the administrative action.” In re J.S., 431 N.J. Super. 321,

10

329 (App. Div.) (internal quotation marks omitted), certif.

denied, 216 N.J. 365 (2013).

To determine whether an agency decision “is arbitrary,

capricious or unreasonable,” an appellate court must determine

“(1) whether the agency’s action violates

express or implied legislative policies,

that is, did the agency follow the law; (2)

whether the record contains substantial

evidence to support the findings on which

the agency based its action; and (3) whether

in applying the legislative policies to the

facts, the agency clearly erred in reaching

a conclusion that could not reasonably have

been made on a showing of the relevant

factors.”

[In re Stallworth, 208 N.J. 182, 194 (2011)

(quoting In re Carter, 191 N.J. 474, 482-83

(2007)).]

Although an appellate court defers to an administrative

agency’s findings of fact, see Mazza v. Bd. of Trs., Police &

Firemen’s Ret. Sys., 143 N.J. 22, 29 (1995), it is not “bound by

[an] agency’s interpretation of a statute or its determination

of a strictly legal issue,” Norfolk S. Ry. Co. v. Intermodal

Props., LLC, 215 N.J. 142, 165 (2013) (internal quotation marks

omitted). Thus, to the extent that the Attorney General’s

determination constitutes a legal conclusion, we review it de

novo.

The dispute in this case arises from the State’s general

obligation under the New Jersey Tort Claims Act (TCA), N.J.S.A.

59:1-1 to 12-3, subject to statutory exceptions, to defend and

11

indemnify State employees if the underlying action derives from

the employee’s acts or omissions in the scope of his or her

employment. The TCA was enacted “to supersede the patchwork of

statutory provisions providing for the defense and

indemnification of state employees.” Chasin v. Montclair State

Univ., 159 N.J. 418, 425 (1999). The TCA provides that “[a]

public entity is liable for injury proximately caused by an act

or omission of a public employee within the scope of his

employment.” N.J.S.A. 59:2-2(a).

In enacting the TCA, the Legislature adopted this Court’s

holding in McAndrew v. Mularchuk that employer liability

“follows tortious wrongdoing and . . . employers or principals,

individual or corporate, are responsible for that wrongdoing

when committed by agents and employees acting within the scope

of the employment.” 33 N.J. 172, 190 (1960); see Comment to

N.J.S.A. 59:2-2. Thus, the TCA’s provisions authorizing the

imposition of liability upon the State for the acts and

omissions of employees is derived from established principles of

vicarious liability. See Wright, supra, 169 N.J. at 451.

In that setting, N.J.S.A. 59:10A-1 provides that

the Attorney General shall, upon a request

of an employee or former employee of the

State, provide for the defense of any action

brought against such State employee or

former State employee on account of an act

or omission in the scope of his employment.

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Notwithstanding that general obligation, the Attorney

General need not defend a State employee if one or more of the

following exceptions applies:

a. the act or omission was not within the

scope of employment; or

b. the act or the failure to act was because

of actual fraud, willful misconduct or

actual malice; or

c. the defense of the action or proceeding

by the Attorney General would create a

conflict of interest between the State and

the employee or former employee.

[N.J.S.A. 59:10A-2.]

As this Court has held, “the Attorney General must provide

a defense to a state employee who requests representation

pursuant to N.J.S.A. 59:10A-1 unless the Attorney General

determines that it is more probable than not that one of the

three [statutory] exceptions . . . applies.” Prado, supra, 186

N.J. at 427; see also Wright, supra, 169 N.J. at 444 (holding

that “the Attorney General must defend a State employee for

actions committed in the scope of employment as long as one of

the . . . exceptions does not apply”).

In addition to the duty to defend, the TCA imposes on the

State a corresponding duty “to indemnify employees for whom a

defense is provided.” Chasin, supra, 159 N.J. at 426; see

N.J.S.A. 59:10-1. Pursuant to the TCA, if “the Attorney General

provides for the defense of an employee or former employee, the

State shall provide indemnification for the State employee.”

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N.J.S.A. 59:10-1. Indemnification for punitive or exemplary

damages is permitted if, in the Attorney General’s opinion, the

employee’s acts “upon which the damages are based did not

constitute actual fraud, actual malice, willful misconduct, or

an intentional wrong.” N.J.S.A. 59:10-1.1 Thus, the issues of

whether a State employee is entitled to a legal defense, and

whether he or she may be indemnified in the event that a

plaintiff obtains a judgment, are closely intertwined.

In this case, the Attorney General does not dispute the

County’s contention that the acts and omissions by employees of

the Prosecutor’s Office, named by plaintiffs in their civil

action, were committed within the scope of their employment.

Nor does the Attorney General contend that any of the three

exceptions set forth in N.J.S.A. 59:10A-2 apply. Instead, the

question of defense and indemnification turns on whether the

Prosecutor’s Office employees, in performing the functions at

issue in this case, acted as state employees for purposes of

N.J.S.A. 59:10-1 and N.J.S.A. 59:10A-1. See Comment to N.J.S.A.

59:10-4 (stating “that the indemnity provided by the State

1

In contrast to its mandate that State employees be indemnified

under certain conditions, the TCA “‘provides only permissive

[indemnification] authority for local jurisdictions, such as

counties.’” Wright, supra, 169 N.J. at 445 (quoting Michaels v.

State, 968 F. Supp. 230, 236 (D.N.J. 1997), aff’d, 150 F.3d 257

(3d Cir. 1998)).

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should only be for and to those persons generally considered

employees of the State”).

Employees of county prosecutors serve State functions in

the criminal justice system. The Criminal Justice Act of 1970

provides that “[t]he criminal business of the State shall be

prosecuted by the Attorney General and the county prosecutors.”

N.J.S.A. 2A:158-4. Moreover, the Attorney General is authorized

to supersede a “county prosecutor for the purpose of prosecuting

all of the criminal business of the State in said county,” and

to appear on the State’s behalf “in any court or tribunal” in a

criminal investigation or proceeding “as shall be necessary for

the protection of the rights and interests of the State.”

N.J.S.A. 52:17B-106.

As this Court has long recognized, the employees of a

county prosecutor’s office “possess a hybrid status.” Dunne v.

Fireman’s Fund Am. Ins. Co., 69 N.J. 244, 248 (1976); see also

Cashen v. Spann, 66 N.J. 541, 552 (finding “it appropriate to

regard the defendant officials as State agents where the alleged

tortious conduct arose out of the investigation of criminal

activity, but . . . express[ing] no opinion on the question of

whether the prosecutor or his detectives can be considered State

or county employees for other purposes”), cert. denied, 423 U.S.

829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975); Twp. of Edison v.

Hyland, 156 N.J. Super. 137, 141 (App. Div. 1978) (stating that

15

“[a]lthough a prosecutor and prosecutor’s detectives may be

considered as agents of the State for some purposes, they are

not employees of the State for certain administrative and

remunerative purposes”) (internal citation omitted). The Third

Circuit has noted that the “dual or hybrid” role of county

prosecutors in New Jersey imposes responsibilities on both the

State and the county that the prosecutor serves:

It is well established that when county

prosecutors execute their sworn duties to

enforce the law by making use of all the

tools lawfully available to them to combat

crime, they act as agents of the State. On

the other hand, when county prosecutors are

called upon to perform administrative tasks

unrelated to their strictly prosecutorial

functions, such as a decision whether to

promote an investigator, the county

prosecutor in effect acts on behalf of the

county that is the situs of his or her

office.

[Coleman v. Kaye, 87 F.3d 1491, 1499 (3d

Cir. 1996), cert. denied, 519 U.S. 1084, 117

S. Ct. 754, 136 L. Ed. 2d 691 (1997).]

The dual role of a county prosecutor in criminal justice

activities provided the backdrop for this Court’s opinion in

Wright, supra, 169 N.J. 422. There, the Court considered

whether county prosecutors and their subordinates constituted

state employees under the TCA for purposes of a civil action

arising from the employees’ alleged misconduct in the arrest and

prosecution of an individual suspected of operating a drug

distribution network. Id. at 429-30. The individual alleged

16

that he was wrongfully arrested and prosecuted, beaten, coerced

and subjected to an unlawful search while in custody. Id. at

430-31. The Court held that when county prosecutors investigate

criminal activity and enforce the law, “they are discharging a

State responsibility that the Legislature has delegated to the

county prosecutors” in N.J.S.A. 2A:158-4, “subject to the

Attorney General’s [authority] to supersede” pursuant to

N.J.S.A. 52:17B-106. Id. at 451-52. It further noted that in

contrast to county participation in public education, “the

county prosecutor’s law enforcement function is unsupervised by

county government or any other agency of local government.” Id.

at 452. The Court held that

[b]ecause law enforcement is a basic State

function, and because county prosecutors are

uniquely subject at all times to the

Attorney General’s statutory power to

supervise and supersede them, we are

persuaded that it is appropriate and

consonant with legislative intent to

construe the vicarious liability provisions

of the TCA as imposing vicarious liability

on the State for the tortious actions of

county prosecutorial employees in the

performance of their law enforcement duties.

[Ibid.]

Accordingly, the Court ruled “that the State [could] be

held vicariously liable for the tortious actions of [the]

prosecutors and their subordinates performed during the

investigation, arrest, and prosecution of” the plaintiff. Id.

17

at 453; see also Cashen, supra, 66 N.J. at 544, 552 (holding

that county prosecutor and detectives were “agents of the State

and not the county” for purposes of civil action arising from

search warrant that was allegedly obtained with erroneous

information).

In contrast to cases in which the potential liability

clearly arose from a law enforcement activity, courts have held

that a county prosecutor’s employees are not State agents for

purposes of defense and indemnification when the underlying

action addresses the administrative functions of a county

prosecutor’s office. In Coleman, supra, the Third Circuit

concluded that a county prosecutor is acting as “a local, county

official” when he or she makes personnel decisions regarding

employees of his or her office, and that the prosecutor and his

subordinates were therefore not entitled to State defense and

indemnification in an action arising from allegedly

discriminatory promotion decisions. 87 F.3d at 1506. The court

declined to hold the State responsible for defense or indemnity

arising from civil litigation that did not originate from a law

enforcement activity of the defendant prosecutor. Ibid.; see

also DeLisa v. Cnty. of Bergen, 326 N.J. Super. 32, 35, 40-41

(App. Div. 1999) (holding that county prosecutor was not

entitled to defense and indemnification in case filed by

plaintiff alleging retaliatory discharge under Conscientious

18

Employee Protection Act, N.J.S.A. 34:19-1 to -8, because

plaintiff’s discharge “was based upon a personnel decision of

the Acting County Prosecutor,” and was therefore “administrative

conduct”), rev’d on other grounds, 165 N.J. 140 (2000).2

The Appellate Division reached a similar conclusion in

Courier News v. Hunterdon County Prosecutor’s Office, 378 N.J.

Super. 539 (App. Div. 2005). There, a newspaper’s requests

under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -

13, for a copy of a 9-1-1 tape were denied by a county

prosecutor’s office. Id. at 542. The newspaper then filed an

action in lieu of prerogative writs. Ibid. After its OPRA

claim was upheld on appeal, the newspaper sought reimbursement

for its counsel fees, which raised the issue of whether the

State or the county would be responsible for paying any fees

awarded. Id. at 542-43. The Appellate Division held that

notwithstanding the fact that the disputed 9-1-1 tape related to

law enforcement, the conduct by the prosecutor’s office that

2

In deciding a question of immunity from claims asserted under

42 U.S.C.A. §1983 -- rather than the issue of defense and

indemnification -- the United States Supreme Court also has

differentiated between administrative duties that are “directly

connected with the conduct of a trial,” which trigger immunity,

and “administrative duties concerning, for example, workplace

hiring, payroll administration, the maintenance of physical

facilities, and the like,” which do not. Van de Kamp v.

Goldstein, 555 U.S. 335, 338, 344, 129 S. Ct. 855, 858, 862, 172

L. Ed. 2d 706, 711, 714-15 (2009).

19

prompted the litigation was the refusal to produce the tape,

which was not a law enforcement function:

Here, it is undisputed that the

[prosecutor’s office] was the custodian of

the 9-1-1 tape. The [prosecutor’s office]

assumed administrative responsibility to

safeguard this audio record the minute it

took custody of it. The fact that the

[prosecutor’s office] assumed this custodial

role in connection with a then-active

criminal investigation is of no moment. Its

liability to plaintiff, in the form of

counsel fees, flows exclusively from the

provisions of OPRA, not from its

constitutional status as a law enforcement

agency.

[Id. at 546 (internal citation omitted).]

Consequently, the panel concluded that Wright had “nothing to do

with the question before [the court].” Id. at 545. It declined

to shift the burden of paying the counsel fee award to the

State. Id. at 547.

Thus, both State and federal authority differentiate

between liability arising from county prosecutor’s law

enforcement functions, for which the State is generally required

to assume the burden of defense and indemnification, and

liability derived from the prosecutor’s administrative

functions, which is deemed to be the county’s responsibility.

Pursuant to the limited authority that addresses this issue, the

question is not whether the underlying liability has any nexus

to law enforcement; a personnel or organizational decision is

20

deemed administrative even if it affects the manner in which the

prosecutor’s office administers its law enforcement

responsibilities. Instead, the test is whether the act or

omission of the county prosecutor’s office and its employees

that gave rise to the potential liability derived from the

prosecutor’s power to enforce the criminal law, and constituted

an exercise of that power. See Wright, supra, 169 N.J. at 454

(focusing “on whether the function that the county prosecutors

and their subordinates were performing during the alleged

wrongdoing [was] a function that traditionally has been

understood to be a State function and subject to State

supervision in its execution”).

In that setting, we consider the issue of evidence storage

that gave rise to this case. The record reveals little about

the property at the center of this case. It suggests, however,

that plaintiffs’ items were seized by the Prosecutor’s Office

when it executed a search warrant issued by a judge during a

criminal investigation. To the extent that the items belonging

to plaintiffs were lost or damaged when the Prosecutor’s Office

seized them pursuant to the warrant, the liability at issue was

clearly incurred during a law enforcement activity, as was the

liability derived from the arrest at issue in Wright. Any

allegations of loss or damage incurred at the time of the items’

21

seizure implicate the defense and indemnification obligations of

the State under N.J.S.A. 59:10-1 and N.J.S.A. 59:10A-1.

After being seized, plaintiffs’ items were allegedly stored

by the Prosecutor’s Office at a location and under conditions

that are not disclosed by the record. The retention of evidence

during a criminal investigation, like the seizure of that

evidence, is a law enforcement activity.3 Liability deriving

from such retention ordinarily will give rise to an obligation

on the part of the State to defend and indemnify a county

prosecutor.

In this case, the damage and loss alleged by plaintiffs may

have occurred following the conclusion of the criminal

investigation, when the non-contraband items at issue were no

longer potential evidence, but had not been returned to

plaintiffs. If so, the continued retention of plaintiffs’

property, either intentionally or by oversight, derives from and

3

Indeed, the Attorney General, working with the county

prosecutors, has properly issued detailed guidelines for the

retention of evidence, pursuant to the authority granted by the

Criminal Justice Act, N.J.S.A. 52:17B-97 to -117. The current

version of the Attorney General’s guidelines does not instruct

county prosecutors on the steps that should be taken to avoid

loss or damage to non-contraband evidence retained for a

criminal investigation, or to return such evidence when an

investigation is concluded with no charges filed and no civil

forfeiture action contemplated. Additional guidelines

addressing these issues, however, would be an appropriate

exercise of the Attorney General’s authority under the Criminal

Justice Act and could minimize the risk of liability such as

that which may be incurred in this case.

22

directly relates to the law enforcement function that the

Prosecutor’s Office fulfilled when it seized and retained the

evidence.4 Notwithstanding the State’s argument that plaintiffs

could have pursued a remedy based upon the equitable doctrine of

replevin, the claim in this case originated from an activity

that was part of the Prosecutor’s Office’s performance of “the

criminal business of the State.” N.J.S.A. 52:17B-106.

Accordingly, we hold that the County has met its burden

demonstrating that the Attorney General’s administrative

determination was “arbitrary, capricious or unreasonable.” In

re J.S., supra, 431 N.J. Super. at 329 (internal quotation marks

omitted). At this preliminary stage of plaintiffs’ action, the

State is obligated to defend and indemnify defendant employees

pursuant to N.J.S.A. 59:10-1 and N.J.S.A. 59:10A-1 of the TCA,

and in accordance with the standard in Wright, supra, 169 N.J.

at 455-56.

However, if a more complete record at a later stage of this

case reveals that plaintiffs’ property was stored in a facility

at the direction of the County, and that the loss or damage to

plaintiffs’ property resulted from the condition or maintenance

4

The fact that plaintiffs’ claims are premised on the County

Prosecutor’s continued retention of seized items distinguishes

this case from Courier News, supra, 378 N.J. Super. 539. There,

the act by the county prosecutor’s office that gave rise to the

liability was not a decision made in the context of a criminal

investigation, but the denial of an OPRA request in a separate

proceeding. Id. at 542.

23

of that facility, the State may pursue a claim against the

County for reimbursement of all or part of its costs incurred in

the defense and indemnification of the Prosecutor’s Office

employees.

IV.

The judgment of the Appellate Division is reversed, and the

case is remanded to the trial court for further proceedings in

accordance with this opinion.

CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN, and

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

assigned) join in JUSTICE PATTERSON’s opinion.

24

SUPREME COURT OF NEW JERSEY

NO. A-29 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

ROBERT LAVEZZI and KAREN

LAVEZZI,

Plaintiffs,

v.

STATE OF NEW JERSEY,

Defendant-Respondent,

and

CAROLYN A. MURRAY, ACTING

PROSECUTOR OF ESSEX COUNTY;

et al.,

Defendants,

and

ESSEX COUNTY,

Defendant-Appellant.

DECIDED September 9, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice Patterson

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

REVERSE AND

CHECKLIST

REMAND

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