Moya v. City of New Brunswick

*512 PASHMAN, J.,

concurring.

I join the Court’s result in this case primarily because I believe that it follows from our holding in Valerius v. Newark, 84 N.J. 591 (1980). Like both the plurality and the dissent, I believe that so recent a decision should not be quickly reversed unless it was clearly wrong. However, our difficulty today in finding a plausible rationale for Valerius shows the need to reconsider the reasoning in that case. I write today because I believe the plurality opinion, intended to clarify the Valerius rule and facilitate its application to future cases, will have precisely the opposite result. Further, in my view, the plurality misreads the Valerius rationale, misconstrues the intent of the Legislature in passing N.J.S.A. 40A:14-155, and establishes rules that are illogical and contrary to the statute’s purposes.

The first problem with the plurality opinion is that it misreads our opinion in Valerius . I agree with the dissent on that score. Having said that, however, I must add that I agree with the plurality that the reasoning in Valerius needs reevaluation in light of the present case. In some respects, the reasoning I would endorse in its stead resembles that offered by the plurality. However, I would state more forthrightly that we are rewriting Valerius . More importantly, I disagree with the rules the plurality draws from its reevaluation of Valerius for the future application of N.J.S.A. 40A:14-155.

I therefore offer my own attempt to put Valerius on more solid ground. Applying Valerius thus redrawn, I would hold, as does the plurality, that Moya was entitled to reimbursement for counsel upon his acquittal. I therefore join the plurality’s result.

Valerius was indicted for conspiring with another officer and two civilians to set up a phony drug purchase. The State *513 charged that two civilians pretended to sell drugs to. persons unaware of the scheme, only to have the sale interrupted by Valerius and his partner. Allegedly, the officers pretended to arrest their civilian co-conspirators and confiscated the drugs and purchase money, dividing the money among themselves.

After his acquittal, Valerius sought reimbursement by the municipality for his counsel fees pursuant to N.J.S.A. 40A:14-155. That statute most clearly applies to cases in which an officer is accused of having performed his duties in some improper fashion, such as using excessive force in an arrest. In Valerius , we extended the scope of the statute. We concluded that the charges against Valerius “involved his status as a police officer and his use of that status in the alleged incident.” 84 N.J. at 596 . They were therefore charges “arising out of or incidental to the performance of his duties,” N.J.S.A. 40A:14-155, and that the municipality therefore had a duty to pay for his counsel. 84 N.J. at 596-97 .

We further held that Valerius was entitled to counsel only upon acquittal. The wording of the statute, providing for counsel whenever an officer “is a defendant,” suggests that counsel is to be provided at the outset of the proceedings regardless of the outcome. We concluded, however, that if Valerius had been guilty as charged, his conduct would have “constituted a perversion and prostitution of his duties,” id. at 596 , and hence the charges could not be said to have arisen from the performance of his duties.

The plurality here thoroughly rewrites Valerius . Finding a passage in the legislative history of N.J.S.A. 40A:14-155 to the effect that the statute was designed to “increase the mora’e of police departments,” see ante at 500, the plurality construes the statute to provide counsel whenever doing so would augment police morale. It therefore concludes that counsel should be provided whenever charges are brought primarily because of the police officer’s status as a member of the police. The plurality distinguishes between “performance” cases in which *514 the officer is charged with wrongdoing in the performance of his duties and “status” cases in which the charges are a result of the officer’s status. In the latter situation, counsel is provided only after acquittal. This disparate treatment is justified by the contention that performance cases arise more frequently and hence are more damaging to police morale.

The problems with this approach are many. First, none of it can be found in the Valerius opinion. There is no mention of police morale, of charges brought because of the officer’s status, or of the frequency with which various charges are brought. In Valerius an officer was charged with misusing his status, which is subtly but significantly different from being charged because of his status.

Second, the plurality places far too much emphasis on police morale as the motivating force for the statute. The chances are strong that the reference was mere boilerplate. More likely, as we explained in Van Horn v. City of Trenton, 80 N.J. 528, 536-37 (1979), quoted by the dissent, post at 519, the statutory purpose was to address a legislative concern that

police officers might be discouraged from effectively pursuing their duties if they were forced to provide their own defense against civil actions and criminal charges brought by disgruntled victims of law enforcement. Police officers, by the very nature of their duties, are exposed to a substantial risk that such civil or criminal actions will be initiated, regardless of their merits. The possibility of having to incur legal expenses to answer for one’s conduct as a police officer would most certainly temper one’s performance of police duties. We are convinced that the Legislature, by enacting N.J.S.A. 40A:14-155, was obviously attempting to minimize the intrusion of this concern into the momentary decisions which police officers are continually required to make, [citations omitted]

Secondarily, the Legislature may have been concerned with the unfairness of forcing police officers to pay for counsel to defend against charges which can be said to be occupational hazards of police work.

Even if morale was a serious legislative concern, the statute should not be expanded to encompass every situation in which payment for counsel would improve morale. Statutes almost never are designed to do everything that might accomplish their *515 goals. This is certainly true where the goal is as general and wide-ranging as improving police morale. Competing considerations arise. The terms of the statute reflect the extent to which its purposes were intended to be effectuated.

The plurality’s rule that the frequency of the charges should determine whether counsel is provided before trial further confuses matters. The statute says nothing about providing counsel based on the frequency of the charge, and the unfairness and difficulty in administering such a rule are evident. More importantly, there is no need to devise a test to determine when counsel should be provided in status cases. Counsel can be provided only upon acquittal in status cases since, as explained below, there is no way to know that the charges were a result of the officer’s status until the officer is acquitted.

Despite my disagreement with the plurality opinion, I agree that our reasoning in Valerius needs reconsideration. This is clear from the facts of this case. The charges against Moya alleged a robbery scheme in which off-duty, out-of-uniform officers conspired with on-duty officers to rob Sears. The on-duty officers allegedly received the alarm from Sears, but did not answer it until they and the off-duty officers had completed the crime. Clearly, the charges against the on-duty officers involved use of their status as officers, since their response to the alarm ensured that no other police would interrupt their activities. Under Valerius , they would therefore be entitled to reimbursement for counsel.

As the dissent points out, however, Moya and the other off-duty officer were not alleged to have made any particular use of their status as officers. They were charged with a “garden variety,” post at 520, breaking and entering. Under the rationale of Valerius , Moya would not be reimbursed even upon his acquittal. Any rule, however, that provided counsel to only some members of this alleged conspiracy of police officers would be completely arbitrary. The lack of rational basis for treating them differently is particularly striking because, by *516 virtue of Moya’s acquittal, we presume that he was not involved in the incident at all. Thus, the allegations could just as well have placed Moya as one of the on-duty officers. I agree in this regard with footnote 14 of the plurality opinion. Ante at 511.

The facts in this case demonstrate that the rationale provided in Valerius leads to untenable results. I agree with the plurality that we should therefore reevaluate our reasoning there. This is the way case law should develop. Rules are re-thought and more finely honed as we learn with experience. A better rationale that I believe was implicit in Valerius is that counsel should be provided for charges brought against a police officer primarily because he is a police officer. This is roughly the rule devised by the plurality, but I do not reach it by the same path and I do not pretend it is the rule we established in Valerius .

In Valerius , the complainant’s charges may have stemmed from the fact that in the course of his duties, Valerius had accused the complainant’s son of committing a crime. Police officers are often subject to charges of criminality in revenge for their police work. Here, the charges arose directly from an investigation of police corruption. Because of the special importance society places on honesty in its police forces, special investigations of this nature are frequent: Erroneous charges are an inevitable result. Further examples of the vulnerability of police to inaccurate charges are imaginable, as the plurality notes. Ante at 501, n.5. Stated succinctly, false charges of this type are an occupational hazard for police officers.

I would construe N.J.S.A. 40A:14-155 to offer some protection against that hazard by providing reimbursement for the police officer’s counsel whenever the officer is acquitted of charges brought primarily as a result of his status as an officer. Such charges, viewed as an occupational hazard, can fairly be seen as “incidental to the performance of [police] duties.” N.J.S.A. 40A:14-155. Further, the fear of facing such “status” charges could discourage officers from effectively pursuing their duties. *517 See Van Horn v. City of Trenton, 80 N.J. at 536-37 . Police may fear to bring charges against one who threatens to file a criminal complaint against them in revenge. Police officers may hesitate to investigate police corruption for fear of being implicated themselves. Although the charges are groundless, counsel may be necessary for those charged to establish innocence. Basic fairness suggests reimbursement for an occupational hazard.

As we held in Valerius , in “status” cases not concerning improper performance of duties, counsel is provided only after the resolution of the charges, and only if the officer is acquitted. The reason is simple. If the officer is found guilty, the charges were brought not because of the officer’s status, but because the officer was corrupt. Stated otherwise, criminality is not an occupational hazard of being a police officer; false charges are. The plurality also reaches this result, but I do not accept its argument that status cases are treated differently from performance of duty cases because of the supposedly lesser frequency with which status charges are brought.

There are good reasons for granting more extensive reimbursement for counsel in performance cases. First, performance cases are most clearly covered by the statute, and the statute clearly intended provision of counsel in advance in such cases.

Second, there is a conceptual distinction between the two cases. In a performance case, the officer is indisputably working for the goals of the police force. The wrongdoing is over-zealousness in the performance of duty. The means may be improper, but the goal is proper. Thus, in performance cases, the charges can be considered an occupational hazard even if they are proven true. Except in the extraordinary case, the law presumes that officers charged with using excessive force in effecting an arrest merely intended to do their job. By contrast, in status cases, the goal itself is illegal, a perversion of an officer’s job.

*518 I would not conclude, as the plurality suggests in dictum, that counsel is to be provided at the outset even when the complaint alleges egregious and manifestly excessive use of force in making an arrest, or where a clearly illegal arrest is made. Such action cannot be considered the performance of police duties. It is more akin to a perversion of those duties. Thus, if forced to reach the issue, I would hold that when the alleged misconduct exceeds simple over-zealousness, and is such that the officer must have known of its illegality, the case should be treated as a status case for which counsel is. provided only upon acquittal.

In sum, I join the plurality’s result. I agree that the municipality should reimburse for counsel whenever a police officer is charged with an offense primarily because of his status as an officer, but only upon his acquittal of those charges. Accordingly, I join their conclusion that Moya is entitled to reimbursement. However, as explained above, I differ significantly from the reasoning by which the plurality reaches that result.