Long Branch cell, from which he was then transported in the custody of Atlantic City police officers about 80 miles to Atlantic City, where he was processed, fingerprinted and after several hours admitted to $2500.00 bail and released at 1:30 A.M.
Plaintiff Ryan, unlike Voytko, was not arrested at home. Ryan was told about Voytko's arrest, and he found out that his hometown police had a warrant for his arrest and that they had called his office to find him. He drove to Atlantic City from his home in Spring Lake Heights. He reported to the clerk of the municipal court, who called the police officers in the same building. Ryan was taken to their office where he was fingerprinted and admitted to bail and released. These events, including Ryan's journey to and from Atlantic City, consumed six hours.
The Voytko and Ryan matters were taken before the Atlantic County grand jury, which refused to indict finding no probable cause that these plaintiffs had violated N.J.S.A. 2A:111-19.
Despite dismissal of the indictment, the defendant hotel and its manager, together with the hotel's attorneys, filed new charges against Voytko and Ryan, alleging a violation of the Disorderly Persons Act for intent to defraud a hotel keeper under N.J.S.A. 2A:170-47 (1971).
The plaintiffs were brought to trial on the disorderly charge. Defendant Gold, an associate of the law firm retained by Ramada Inn, actually prosecuted the case for the state, pursuant to N.J. Rules of Practice 7:4-4(b)
which allows appointment of a private attorney to act as prosecutor in certain criminal cases.
At the close of the prosecution's case, the pending charges were dismissed for failure of proof.
This case presents several issues under the Civil Rights Act of 1871, including whether the defendants' conduct was under color of state law within 42 U.S.C. § 1983, whether the plaintiffs have been deprived of rights cognizable under the federal civil rights statutes, and whether prosecutorial immunity shields the conduct of privately retained attorneys under the circumstances of this case.
A cause of action exists under 42 U.S.C. § 1983 (1970)
against any person who acts under color of state law to deprive a citizen of any right, privilege or immunity secured by the Constitution and laws. Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). The moving defendants claim first that as private parties they have not acted under color of state law, and second that malicious prosecution is not cognizable as a deprivation of a right of constitutional dimension.
There is no bright line by which the conduct of private parties becomes state action for purposes of the Fourteenth Amendment and civil rights statutes.
The Third Circuit, in Magill v. Avonworth Baseball Conference, 516 F.2d 1328 (3d Cir. 1975), has identified three categories of state action cases:
(1) [Where] state courts enforced an agreement affecting private parties; (2) where the state "significantly" involved itself with the private party; and (3) where there was private performance of a government function.
Id. at 1330-31. The requirement of 42 U.S.C. § 1983 that the actions be "under color of state law" is regarded as the functional equivalent of the state action requirement of the Fourteenth Amendment. United States v. Price, 383 U.S. 787, 794-95 n.7, 16 L. Ed. 2d 267, 86 S. Ct. 1152 n.7 (1966); Parks v. "Mr. Ford ", 556 F.2d 132, 135 & n.5 (3d Cir. 1977).
The narrow question now considered is whether the action by a hotel and its agents in filing and prosecuting a criminal complaint under a defrauding of innkeepers statute, where the hotel's retained attorney acts as prosecutor, amounts to "state action." We hold that it does.
It is clear that the allegations indicate that there was private performance of a government function under statutory authority vested in the hotel, its employees and agents.
In Parks v. "Mr. Ford," supra, the Third Circuit (en banc) applied the Magill test to private conduct by garagemen retaining and selling vehicles of creditors. The court's plurality opinion held that the mere retention of debtors' vehicles pursuant to a common law garagemen's lien did not constitute "state action" for several reasons. Such retention was not a power "traditionally associated with sovereignty" because the state does not assist in the conduct, the property is already in the garageman's possession, and the common law lien has ancient origins which have traditionally recognized self-help retention as a private right. 556 F.2d at 138-139.
State action was held to be implicated, however, in the garageman's sale of a retained vehicle pursuant to a statute allowing the garageman to proceed with the sale after notice and "in the same manner as personal property is sold by a sheriff or constable [Pa. Stat. Ann. tit. 6, § 12 (1963)]." 556 F.2d at 140-141. The state was held to have delegated to garagemen powers traditionally reserved to the sheriff by authorizing such sales, directing the use of the same procedures employed by the sheriff, and giving such sales the effect of judicial sales. Id. The state had placed a power amounting to ex parte judicial sale into the arsenal of the garageman who seeks to collect an unpaid private debt.
In the context of debts owed to innkeepers, the retention of property of a guest who fails to pay is an innkeeper's right enjoyed at common law and such retention will not ordinarily be "state action" because the inn's power does not partake of a traditional function of sovereignty.
An innkeeper's sale of the guest's property, however, if tantamount to a judicial sale, would undoubtedly be considered as state action under the Parks v. "Mr. Ford" analysis.
Beyond such civil remedies the state of New Jersey, through N.J.S.A. 2A:111-19 & 170-47 (1971), has provided hotel owners with access to the criminal law in actions arising from a private debt. The power to invoke the aid of state criminal prosecution under statutes specifically limited to persons who fail to pay their hotel bill is a sanction against debtors extending far beyond the common law innkeeper's lien. By instituting a criminal prosecution the innkeeper can enlist state process to seize the person prior to a due process hearing on whether a debt is even owed. It would not be surprising if the threat of criminal prosecution were often effectively used as a potent debt collection weapon, as is alleged to have occurred in this case. An obvious purpose for the defrauding of innkeepers statutes is to deter the nonpayment of hotel debts by threat of criminal penalties. The state has thus shown a special interest in protecting the innkeeper by conferring a deterrent to nonpayment (and, indeed, a potent mechanism to induce payment) which is not available to merchants generally; the state has allied itself with the hotel's interests to this unusual degree.
In sum, the innkeeper exercises a prosecutorial privilege at criminal law which derives from the sovereign. The criminal statutory scheme inherently deters nonpayment and its threatened use in a specific case may induce payment; this places the hotel into a functional position toward debtors not unlike the tax collector who has criminal remedies at his disposal to induce payment. The innkeeper's power to act as if it were the state is even further enhanced by the state custom allowing the hotel's own retained attorney to act as criminal prosecutor on behalf of the state under N.J. Rules of Practice 7:4-4(b), supra.
In this particular case, the combination of the hotel's available statutory remedy of initiating criminal process and arrest for nonpayment of a hotel bill with the custom of permitting a private hotel's attorney to act as state prosecutor, constitutes a delegation of sovereign power and gives rise to state action for purposes of 42 U.S.C. § 1983. The type of privilege here conferred bespeaks a series of activities -- initiation of criminal action, leading to arrest of a person and trial by private prosecutor -- which are "ordinarily associated with the state, thus requiring that its exercise be subjected to constitutional limitations," Parks v. "Mr. Ford ", supra, 556 F.2d at 143, 145 (Adams, J., concurring).
The question of whether the character of the malicious prosecution alleged herein constitutes deprivation of rights under the Constitution and laws requires reference to the common law tort of malicious prosecution.
The tort of malicious prosecution has four elements under the law of New Jersey: (1) a criminal proceeding must have been instituted or continued by the defendant against the plaintiff; (2) terminated in favor of the accused; (3) with absence of probable cause for the charge; and (4) with malice (which may be inferred from lack of probable cause) or primary purpose other than bringing the offender to justice. Lind v. Schmid, 67 N.J. 255, 262, 337 A.2d 365, 368 (1975); Earl v. Winne, 14 N.J. 119, 134-135, 101 A.2d 535, 539-540 (1953); Prosser on Torts § 119 (4th ed. 1971). The plaintiffs have alleged facts which, if proven, support a cause of action at common law for malicious prosecution against the hotel, its manager and attorneys. The issue is to identify the point at which such conduct also becomes cognizable as a violation of federal civil rights.
The existence of a state tort remedy does not foreclose a supplementary federal civil rights remedy if a federal right is also invaded. Monroe v. Pape, 365 U.S. 167, 183, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). Of course, certain simple torts, even if committed by a state officer and arguably implicating some liberty or property impairment, do not also constitute invasion of a federal right.
Constitutional concerns arise when state action deprives a person of a status to which he is otherwise entitled at law; a liberty interest deriving its substance from state law may not be invaded absent the protections of due process.
Whether a person has a civil right to be free from malicious prosecution is a matter which has divided the courts. Many decisions indicate that generally the elements of malicious prosecution under color of state law may form the basis of a § 1983 claim.
The recent decision in Jennings v. Shuman, 567 F.2d 1213 (3d Cir., 1977), settles the issue in the Third Circuit. The court found that a complaint alleging wrongful initiation of criminal process without probable cause, thereby affecting an arrest, with prosecutorial extortionate demands made subsequent to arrest, stated causes of action in tort for both malicious use of process (malicious prosecution) and malicious abuse of process under Pennsylvania law. The cause of action for malicious prosecution was barred by the statute of limitations, but a different limitations period governed the abuse of process charge at state law. The court found that the district court erred in dismissing the complaint, because the abuse of process claim constituted a cause of action under section 1983 since a constitutionally protected liberty interest was invaded. The opinion's rationale clearly indicates that the same result applies in the case of malicious prosecution and that even minimal detention will support this cause of action under section 1983:
The defendants argue that, although malicious use of process [malicious prosecution] is a constitutional tort in that plaintiff is unjustifiably deprived of liberty when falsely arrested, malicious abuse of process does not deprive the plaintiff of constitutional rights. We disagree.