Opposition Brief — Kaye v. Coleman

K-49 vy A. :

Oy

,o (5) [OFFICE OF ty

yes | SUPREME CO

No. 96-712

| RECEIVED

a _ DEC 2a 1996

E CLERK

URT, U.S.

In The Supreme Court,

SUPREME COURT OF THE UNITED STATHS pc 49

October Term, 1996

6

CLERK

1996

JOHN KAYE, Individually and in his capacity as Monmouth

County Prosecutor, THE COUNTY PROSECUTOR’S OFFICE OF

» THE COUNTY OF MONMOUTH; JOHN DOES 1-100; JANE DOES 1-100

THE COUNTY OF MONMOUTH,

Intervenor in District Court,

Fetitioners,

v.

BARBARA COLEMAN,

Respondent.

*

On Petition For A Writ of Certiorari

To The United States Court Of Appeals

For The Third Circuit

+

RESPONDENT’S BRIEF IN OPPOSITION

TO MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF NEW JERSEY ASSOCIATION

OF COUNTIES IN SUPPORT OF PETITIONER’S PETITION

FOR A WRIT OF CERTIORARI

+

*LINDA B. KENNEY

GREGORY S. SCHAER

Attorneys for Barbara Coleman

LAW OFFICES OF LINDA B. KENNEY

The Galleria, Two Bridge Avenue

Atrium Building 5, Second Floor

Red Bank, New Jersey 07701

(908) 219-0099

*Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...cccsscosccessrascosssonasonsoesssseresesenonsnessssetsaterssevonenes

POINT |

THE MOTION BY THi ASSOCIATION OF COUNTIES FOR LEAVE

TO FILE AMICUS CURIAE SHOULD BE DENIED ...............cessssessreeoenes

POINT Il

THE COURT OF APPEALS PROPERLY APPLIED PREVAILING STATE

LAW IN REACHING ITS DETERMINATION AND DID NOT VIOLATE

THE PRINCIPLES IN ERIE RK V TOVAKINS .....ccccessssesssasesesseneccosnnsosescesos

POINT III

THE ASSOCIATION’S ARGUMENT IGNORES THE FACT THAT THE

COUNTY IS ALSO LIABLE FOR THE ACTS OF JOHN KAYE’S

UTA IE FEAT BaD scinionsonssnscrssneessorhnnivontensiictsnansiawlasinnnmsneiatiphednansnciniacurnsiigiaes

CLIVE AASOTLON TS ninvescnsiesnnscenomasssconinneisenedirestbecinkeeiiapalshentinanetosenienc mbar

PAGE NO.

ll

10

; 4.1 ny I

TABLE OF AUTHORITIES

PAGE NO.

& CASES >

: CWA v. Treffinger, 677 A.2d 295, 291 N,/. Super. 376

: ae ol watneeabdaehon 8

: Cashen v. Spann, 66 N,/J. 541, 324 A.2d 81, cert. denied,

: ES Fe Be Rae ee ca ntiicatsthenssartentwicotiddthesianinnesnanecesanpeanvesbieeesens passim

: Dunne v. Fireman’s Fund American Insurance Company,

69 NJ. 244, 250, 353 A.2d 508 (1976) .........sccsecresessessercsneses 5,6

Brie E.R, v. Tomkives, S04. C.E. G4 CL GSG) secscincvenecevscaconscososserecseenssenpons 2

Fuchilla v. Layman, 109 NJ. 319, 335, 537 A.2d 652

CNT, BGG) secccccisinpephccrsersnnveseiantbinkimesincscsnhgubebivicarienysestecapseeseonse 9 a

Giuftre v. Bissell, United States District Court for the District of

New Jersey, Civil Action No. 92-2014 .....ccesccssseeeenreneseneseees 7

Hayes v. County of Mercer, 217 N,J. Super. 614 (App. Div. 1987) ....... 11

In re Investigation Regarding Ringwood Fact Finding Comm.,

65 NJ. 512, 324 AZd 1, 5-15 (NJ. 1974) ...c.csccrsccscsrsoncerernreeserers 4

In re Middlesex County Prosecutor, 605 A.2d 265, 255 N,/. Super.

SSS CAD. THe TRE ccciscesersssccosbinsnecososeiintsasnamonsccostanypevveseiintis 7,8

Knodel v. the Office of the Union County Prosecutor, et al.,

Civil Action No. 89-2470, United States District Court for

the Disteict Of New Jergey iis. cpcicinccscesnscgsseriedeinsgnisceccsvcsesncasastene 5,6 :

Lehmann v. Toys R Us, 626 A.2d 445 (NJ. 1993) .ccccccescseeseesreeeseeeees YB

Morss v. rorbes, 24 NJ. 341, 132 A.2d 1 (NJ. 1957) ..ccccecesersesesencsssenees 3,4

Zamboni v. Stamler, 199 NJ. Super. 378, 489 A.2d 1169

CAD. DIV, TIES) .....rciscccsccocecarecrensccacsvoresancseceversenssnnssonevasenpecsoase 8

ii

TABLE OF AUTHORITIES -~ Continued

PAGE NO.

RULES :

RUPOOTMS CMTS Babe S70 scocsensnagiecncsseodatetepecincenctabicasesnc esata 1

STATUTES

Fifande TES 8, OF MOG, acciicisatbisaaiieinininse madden 2

Pe Foe Eile“ UO) ssccecenrtenieeiecanmielimedivenniatinacbinidinaiatadiabemimdttaeah eactaett 8

OTHER

New Jersey Constitution 1947

ASE Vg SUC. Th, DAP. D . sccsrccancsciecstsiintpneaseelltiinanpipieedainaeagidaimcamungeras 4

Fmt. VEE, SOC: Th EE sinc siecsindncsseateguinsdepaaedaeiianalccabaa ie comes 4

ill

POINT I

THE MOTION BY THE ASSOCIATION OF COUNTIES FOR

LEAVE TO FILE AMICUS CURIAE SHOULD BE DENIED

This brief is submitted on behalf of respondent Barbara Colem n pursuant to

Supreme Court Rule 37(5) in opposition to the motion of the New Jersey Association of

Counties (“Association”) for leave to file an amicus curiae brief ir. the instant matter.

As discussed below, the motion for leave to file an amicus brief simply raises the very

same issues and states the same position that has been extensively briefed by both

respondents. The Court of Appeals presumably recognized that fact when, after

considering the Association’s arguments in support of the petitioner’s motion for a

rehearing and suggestion for a rehearing en banc, nevertheless denied the motion. The

Association’s motion for leave to file amicus simply imposes an unnecessary burden on

the Court and will needlessly require the Court to expend its valuable judicial

resources. Moreover, as discussed in respondent’s opposition brief, there is an

independent basis for the decision of the Court of Appeals in the case at bar, finding

the County of Monmouth liable for the acts of Prosecutor Kaye. In the event that the

Court is inclined to consider the Association’s motion, respondent respectfully requests

the Court to consider this submission which nevertheless dictates that the Association’s

motion be denied.

POINT IT

THE COURT OF APPEALS PROPERLY APPLIED PREVAILING

STATE LAW IN REACHING ITS DETERMINATION AND

DID NOT VIOLATE THE PRINCIPLES IN ERIE RR V.

TOMKINS

The Association seeks to join in the arguments raised by petitioners that the

County should not be liable for the acts of County Prosecutor John Kaye, in the case at

bar. In doing so, the Association relies upon the very same argument raised by

petitioners (i.e., that the Court of Appeals allegedly violated the principles in Erie R.R. v.

Tomkins, 304 U.S. 64 (1938) by failing to apply the principles established by the

Supreme Court of New Jersey in LeAmann v. Toys ‘R Us, 626 A.2d 445 (NJ. 1993) in

analyzing the County’s liability in the case at bar). However, as explained in

respondent’s opposition brief and as discussed more fully below, even a cursory

reading of the decision of the Court of Appeals reveals that the Court of Appeals did

anything but ignore the decision in Lehmann. Rather, the Court of Appeals recognized

that in Lehmann, the New Jersey Supreme Court set forth the applicable standard to

detieinteen whether an employer can be held liable under the New Jersey Law Against

Discrimination, N,/.S.A. 10:5-1, ef seq. (“LAD”) when an employee raises a hostile

work environment, sexual harassment claim against a supervisor. Rather, the court

properly found that the New Jersey Supreme Court expressly held this issue open in

Cashen v. Spann, 66 NJ. 541, 324 A.2d 81, cert. denied, 423 U.S. 829 (1975) and

then followed New Jersey law in holding that liability was properly imposed upon the

County in the case at bar.

hs

A.; an

The Association recognizes that the agency analysis set forth in LeAmann has

never been extended by the Supreme Court of New Jersey to apply to cases involving a

public employer and specifically to cases involving liability of a county for the acts of a

county prosecutor. Certainly, nowhere in the decision in Lehmann did the New Jersey

Supreme court ever suggest, let alone require, that its agency principles be extended to

cases involving liability of a public entity, such a County, for the acts of a county

prosecutor.

By contrast, the Association ignores the long line of New Jersey case law

followed by the Court of Appeals, that specifically discusses the status of a County

Prosecutor and ene that the County was properly found to be liable for the

discriminatory employment decisions of County Prosecutor John Kaye. The Court of

Appeals properly relied upon the established case law holding that notwithstanding the fact

that a county prosecutor in New Jersey is an independent constitutional officer, the County

is properly subject to liability when he acts outside of the scope of his traditional law

cnicacisianiah duties.

In Morss v. Forbes, 24 NJ. 341, 132 A.2d 1 (NJ. 1957), the Supreme Court ot New

Jersey analyzed the role that the county prosecutor plays in New Jersey governmental

structure. In doing so, the Court noted that the county prosecutor is a /ocal official subject

to county control and nof a state official subject to the control of the attorney general. /d.

at 372. In defining the role that the prosecutor plays in local government, the court in

Morss agreed that the “prosecutor enjoys a rather unique status with respect to the

traditional decision of responsibilities between the executive branch and the Legislature...”

Id. at 363.

A.) Cy]

The court found that by provision of the Constitution of 1947, both the attorney

general and the county prosecutor are constitutional officers. Jd However, while the

attorney general, as head of the Department of Law and Public Safety, is within the

executive department (Art V., Sec. Il, par. 3), the provision for the appointment of

prosecutors is found in Art. VII, Sec. ii, par. 1, “Public Officers and Employees.” /d@. Noting

that county “prosecutors receive their remuneration from the county,” the court concluded

that the prosecutor is “primarily a local official” and that “[t]here is no equality in statute or

dignity with the Legislature.” /d. at 372.

In Jn re Investigation Regarding Ringwood Fact Finding Comm., 65 NJ. 512, 324

A.2d 1, 5-15 (N,J. 1974), The New Jersey Supreme Court held that the county prosecutor

was not to be considered an executive officer with the privilege to withhold information

from the Legislature. /d@ at 530. In doing so, the court cited Morss and found that

“although there is still some confusion with respect to the exact status of the prosecutor,

there is ‘little doubt but that the executive chain of command is nof sufficiently prominent

to enable the prosecutor to claim any high prerogative which might be enjoyed by the state

executive with respect to withholding information from the Legislature.” Jd at 519

(emphasis added).

In Cashen v. Spann, the New Jersey Supreme Court found that the County

Prosecutor was to be considered a state agent where the alleged tortious conduct arose

out of the performance of his duties while investigating criminal acts. However, as

recognized by the Court of Appeals in the case at bar, the court in Cashen was careful

to ensure that its holding would not be read too broadly, expressly refusing to decide

AA. om

whether the prosecutor or his detectives were to be considered state or county

employees for other purposes. (Pet. App. 10) The court stated as follows:

We wish to make it clear ... that our resolution of this issue is

limited to the factual circumstances here presented. We find it

appropriate to regard the defendant officials as State agents where the

alleged tortious conduct arose out of the investigation of criminal

activity, but we eapress no opinion on the question of whether thc

prosecutor or his detectives can be considered State or county employees

for other purposes. We also leave for another day the question of

whether a county may be held vicariously liable for the conduct of a

prosecutor or his detectives in other circumstances.

Coleman v. Kaye, 87 F.3d 1491 (1996) (quoting Cashen v. Spann, 66 NJ. 541, S52,

cert. denied, 423 U.S. 829 (1975) In doing so, the court noted that “Justice O’Connor

warned lower courts to be wary of ‘egregious attempts by local governments to insulate

themselves from liability for unconstitutional policies.” (quoting Cashin, 66 Nj. at

127)

In the companion case of Dunne v. Fireman’s Fund American Insurance

Company, 69 N,J. 244, 250, 353 A.2d 508 (1976), the court addressed whether the

county’s insurer was required to pay to defend the suit at issue in Cas/en, under the

terms of its policy with the county. Although the court had previously held that county

was not vicariously liable for the alleged acts of the defendant in the case, the court

concluded that the insurance policy required the insurer to defend the suit. In doing

so, the court recognized an employer/employee relationship between detectives ot the

prosecutor’s office and the county. Dunne, 69 N,/. at 250-251.

The issue addressed by the Court of Appeals in the case at bar regarding the

County’s liability under state law was specifically addressed by the Honorable John W.

Bissell, U.S.D.J., in an Opinion issued on January 5, 1990, in the case of Knodel v. the

A. C7

Office of the Union County Prosecutor, et al., Civil Action No. 89-2470, United States

District Court for the District of New Jersey. (Pet. App. 20) In that case, the plaintiff

alleged various unlawful employment practices by his employer, the Union County

Prosecutor’s Office. Plaintiff asserted claims under both state discrimination laws, as

weil as federal statutory and constitutional claims. The defendant, County of Union,

filed a motion to dismiss the complaint, asserting that Knodel, as an employee of the

Union County Prosecutor’s Office, and not the County of Union, cannot properly

maintain an action against it. The County argued that the Prosecutor’s Office is an

independent state agency that is not controlled by the county government and that,

therefore, plaintiff was not a county employee. (Pet. App. 24)

In denying the County’s motion, the court examined New Jersey cases discussing

the relationship between the prosecutor’s office and the county. In discussing the

decisions in Cashen and Dunne, the court found that the New Jersey Supreme Court

recognized the dual capacity of employees of the prosecutor’s office as both state agents

and county employees depending upon the situation. (Pet App. 29-32) The court

found that the cases “demonstrate the relationship between the prosecutor and the

county.” The court recognized that

[t]he county has the initial responsibility for appropriating

the annual budget for the prosecutor’s office. Realizing the

important role vested with the prosecutor, the legislature

provided an additional procedure to obtain funds in excess

of the budget by obtaining an order from the assignment

judge. This procedure clearly demonstrates the necessity of

including the County of Union as a defendant in this action.

(Pet. App. 32)

an ‘a

The court concluded that “plaintiff Knodel has clearly advanced allegations

which could lead to the relief he seeks. The fact that county prosecutors’ offices have

more autonomy from county government structure than other county offices does not

mean that the county is free from liability.” (Pet. App. 26) See also, Giutire v. Bissell.

United States District Court for the District of Ncw Jersey, Civil Action No. 92-2014

(Pet. App. 4) (finding that “[u]nlike the prosecutor in Cashen whose abuses arose trom

actions which fell squarely within the traditional role of a prosecutor, detendant Bissell

is alleged to have engaged in more expansive misconduct extending well beyond the

reach of his office.”)(Pet. App. 18)

As in the cases discussed above, the discriminatory acts committed by Prosecutor

John Kaye constituted misconduct that extends beyond the prosecutor's traditional role

of law enforcement. Both the New Jersey courts, as well as the District Court of New

Jersey, support the finding of the Court of Appeals that the county is liable for the acts

of the county prosecutor in this context.

Under the Association’s theory, the prosecutor’s authority and discretion in

making personnel decisions constitutes a license to commit unlawful discrimination

without a remedy by the people he or she supervises against their emplover. The

Association’s reliance upon certain decisions finding that, in some circumstdiices. a

County is unable to control the prosecutor’s personnel decisions, is misplaced.

For instance, the decision in Jn re Middlesex County Prosecutor, GOS A.2a 265,

255 NJ. Super. 333 (App. Div. 1992) does not stand for the proposition that the county

could not or would not be liable for the unlawful acts of employment discrimination

committed by the county prosecutor. Rather, the court simply upheld an agency

"%

‘an :

finding that the prosecutor himself was guilty of an unfair labor practice. Significantly,

the only claim asserted was against the prosecutor himself and no claim was made

against the county. Moreover, in Middlesex, the County was attempting to distance

itself from the decisions of the County Prosecutor as it related to the County’s authority

to engage in collective ticyotiations under the New Jersey Employee Relations Act. By

contrast, counties have recognized their potential liability for acts of employment

discrimination committed by the county prosecutor as evidenced by the County’s

continuing commitment to indemnify and defend Kaye in the case at bar. The other

cases cited by the Association included a decision of the Law Division which is of no

precedential value and merely dealt with issues relating to whether the County was an

employer for purposes of a residency requirement (CWA v. Treffinger, 677 A.2d 295,

291 MJ. Super. 376 (Law Div. 1996) and a case involving a challenge to a

reorganization plan that created supervisory officer positions with the unclassified civil

service of the Prosecutor’s investigative staff. (Zamboni v. Stamler, 199 N,j. Super.

378, 489 A.2d 1169 (App. Div. 1985)).

Further, contrary to the assertion of the Association, imposing liability upon the

County does further the purpose of the LAD. The term “employer” under the LAD was

amended in 1977 to specifically include “all public officers, agencies, boards or bodies.”

NJ.S.A. 10:5-5(e). The Act also expressly defines a public entity to include a “public

authority, public agency, and any other political subdivision or public body of the State.”

NJ.S.A. 10:5-5(e). Thus, the LAD recognizes that the County of Monmouth, as plaintiff's

employer and as a public entity, bears liability for the acts of John Kaye and its agents.

Further, providing an incentive for employers to impose prospective measures to

OT iat Neale. “Belted “ile Anan, Nt Saag, AO sty

prevent further discrimination and harassment in the workplace is not the only

purpose served by holding an employer liable for the acts of discrimination committed

by its agents. Equally as important, if not more, is the policy of providing a remedy for

employers and a means of redress for unlawful discriminatory action by the employer

that have harmed them. The decision of the Court of Appeals does indeed further the

remedial purpose of the LAD by providing a remedy for employees of the county

prosecutor’s office, such as Ms. Coleman, against their employer, the County of

Monmouth. See Fuchilla v. Layman, 109 N,J. 319, 335, 537 A.2d 652 (NJ. 1988) (the

LAD was enacted to protect not only the civil rights of individual aggrieved employees

but also to piksiecs the public’s growing interest in a discrimination-free workplace)

The Court of Appeals, in finding that the Supreme Court of New Jersey would

impose liability on the County for the acts of the County Prosecutor, recognized that the

County’s argument would have far reaching implications that contravene both the express

language and the public policy behind the New Jersey LAD. A finding that the County

cond not be held liable for the acts of John Kaye and or his subordinates under resporcdeat

superior, would effectively preclude plaintiff from pursuing an action under the LAD

atae her employer, the County of Monmouth, for the discriminatory actions of her

employer and its agents.

POINT IIT

THE ASSOCIATION’S ARGUMENT IGNORES THE FACT THAT

THE COUNTY IS ALSO LIABLE FOR THE ACTS OF JOHN

KA YE’S SUBORDINATES

It is also critical to recognize that the jury verdict against the County of Monmouth

was not based upon the acts of John Kaye alone. Rather, the jury found that the County was

liable for the acts of John Kaye “and/or one or more of his subordinates.” Thus,

notwithstanding the Association’s argument that Kaye, as county prosecutor is a

constitutional officer, the same cannot be said of his subordinates, including assistant

prosecutors and investigators.

Even under the Association’s mua. assistant prosecutors do not share the same

status as the county prosecutor. Assistant prosecutors are hired on the local level as county

employees. Certainly, for purposes of a master-agent relationship, assistant prosecutors

must be considered to be agents of the County. The testimony at trial supports the jury’s

finding of liability against the county for the acts of John Kaye’s subordinates. The evidence

established that Assistant Prosecutors William Guidry, Robert Hoenecker and Alton Kenney

had direct supervisory powers over investigators of the MCPO and participated in the

decision not to promote plaintiff.

Even if assistant prosecutors may have some, albeit an attenuated, relationship to the

prosecutor himself, defectives of the Monmouth County Prosecutor’s Office certainly have

no such relationship. Detectives are strictly employees of the county and stand in a master

servant relationship with the County. In interpreting the liability of prosecutors under the

Tort Claims Act, the New Jersey Courts have recognized a distinction between the acts of

10

AW oy

the prosecutor as opposed to investigators employed by the prosecutor’s office. See Hayes v.

County of Mercer, 217 NJ. Super. 614 (App. Div. 1987)

The testimony at trial supports a finding of liability against the county based upon

the acts of subordinate agents of the MCPO. For instance, the evidence at trial established

that Chief Frank R. Licitra was involved in the plaintiff's failure to be promoted in 1989.

Plaintiff testified that she asked Chief Licitra why she had been passed over for a promotion

and that Chief Licitra stated “it’s worse than that, you weren’t even considered.” Plaintiff

also testified that she prepared and delivered a memorandum to Chief Licitra to Prosecutor

Kaye regarding her failure to be promoted.

With seabii to plaintiff’s failure to receive a promotion in May and October 1990,

the evidence at trial established that Robert Giaconne received the promotion because the

defendant agents of the MCPO believed that he “had a psychological need” for the position.

With respect to the plaintiff’s failure to receive the promotion in October 1990, defendant

agents of the MCPO participated in the decision to offer the position to Philip George, a

rile investigator with less experience and seniority than plaintiff.

The evidence also established that the evaluation process used by agents of the

MCPO in selecting the individuals who were promoted was used to discriminate against

the plaintiff as a result of her gender by giving her lower ratings than less qualified males.

Additionally, at trial plaintiff produced evidence that the procedures used by agents of the

MCPO in making promotions were changed in April 1990 in an effort to disqualify

plaintiff from being considered for a future promotion.

Based upon the forgoing, the jury specifically found that John Kaye and/or one or

more of his subordinates committed discrimination by failing to promote plaintiff in May

11

1989, June 1990 and October 1990. Thus, in addition to the jury’s finding that John Kaye

intentionally discriminated against the plaintiff, the jury also found that his subordinates,

agents of the MCPO, committed discrimination against the plaintiff rendering the County

liable under respondeat superior.

CONCLUSION

Based upon the foregoing, it is easecticliy submitted that the Association’s motion

to file amicus curiae should be denied.

Respectfully submitted,

Linda B. Kenney, Esq.

Gregory S. Schaer, Esq.

LAW OFFICES OF LINDA B. KENNEY

Two Bridge Avenue

The Galleria, Atrium Bldg. 5, 2nd Floor

Red Bank, New Jersey 07701

(908) 219-0099

Attorneys for Respondent, Barbara Coleman

Dated: December 19, 1996

!