The opinion of the court was delivered by: DEBEVOISE
This is a criminal case instituted by a private complainant, Deborah Hadley, who charged defendant William Kinder with simple assault and battery in violation of N.J. Stat. Ann. 2C:12-1a. The Municipal prosecutor is not prosecuting this action. Until after argument of the motion addressed in this opinion, Ms. Hadley represented herself, but at trial she will prosecute the action through her private attorney pursuant to New Jersey Municipal Court Rule 7:4-4(b). This case was removed by defendant from the Municipal Court of New Brunswick, New Jersey, to this court pursuant to 28 U.S.C. § 1442(a). Defendant's motion to dismiss pursuant to Fed. R. Crim. P. 12(b) is presently before the court. Defendant contends, inter alia, that the authorization in Rule 7:4-4(b) for the use of a private prosecutor is unconstitutional. Despite certification by this court pursuant to 28 U.S.C. § 2403(b), the New Jersey Attorney General's Office has declined to exercise its right to intervene.
Defendant has related the following facts in an affidavit. Ms. Hadley works as a letter carrier in the New Brunswick Section of the United States Post Office in New Brunswick, New Jersey. On June 30, 1988, defendant was the acting supervisor of the North Brunswick Section of that office. It was his responsibility to assure that the letter carriers who serve North Brunswick picked up mail at the post office and delivered it to the residents of North Brunswick.
On June 30, Ms. Hadley was on "partial disability" which restricted her from actually delivering the mail. Instead, she was responsible for casing the mail for delivery. Defendant contends that on numerous occasions on the day in question he observed that Ms. Hadley was not doing her job, but was conducting non-work related conversations with other postal employees. Defendant claims that Ms. Hadley twice refused to obey defendant's order to leave the work floor so that he could reprimand her in private. Ms. Hadley charges that sometime after these refusals defendant committed an assault and battery by pushing her with his body.
A summons was issued to the defendant by the New Jersey Municipal Court on July 7, 1988. The summons and complaint charge defendant with simple assault and battery in violation of N.J. Stat.Ann. 2C:12-1a. The maximum penalty for such an offense is six months in prison and a fine of $ 1,000. N.J. Stat. Ann. 2C:43-3, 43-8.
A threshold issue to be resolved in this case is whether New Jersey Municipal Court Rule 7:4-4(b) must be applied, despite the fact that this former Municipal Court action was removed to federal court. It is firmly established that when a criminal case is removed from state to federal court, the federal court must conduct the trial under federal rules of procedure, while applying the criminal law of the state. Arizona v. Manypenny, 451 U.S. 232, 241, 68 L. Ed. 2d 58, 101 S. Ct. 1657 (1981) rehearing denied, 452 U.S. 955, 69 L. Ed. 2d 965, 101 S. Ct. 3100 (citing Tennessee v. Davis, 100 U.S. 257, 271-72, 25 L. Ed. 648 (1880)). There is, however, sound authority which requires that Rule 7:4-4(b) be applied in this case.
New Jersey Municipal Court Rule 7:4-4(b) provides:
Appearance of Prosecution. Whenever in his judgment the interests of justice so require, or upon the request of the court, the Attorney General, county prosecutor, municipal court prosecutor, or municipal attorney, as the case may be, may appear in any court on behalf of the state, or of the municipality, and conduct the prosecution of any action, but if the Attorney General, county or municipal court prosecutor or municipal attorney does not appear, any attorney may appear on behalf of any complaining witness and prosecute the action on behalf of the state or the municipality.
This Rule contains both procedural and substantive rights, allowing a complaining witness who is the victim of a disorderly persons offense to enforce the criminal law in cases where the state or municipality lacks the resources to do so.
The importance of the Rule becomes evident when one realizes that absent its use, disorderly persons offenses would go unprosecuted, harming not only the state's interest in enforcing its laws, but also the victim's (if not society's) interest in obtaining satisfaction for wrongs committed. Beyond the importance of this rule, it is significant that there is no provision of the Federal Rules of Criminal Procedure which conflicts with its provisions. Thus, the instant case does not present circumstances previously addressed by the Supreme Court in the context of civil removal cases. Those civil cases involved circumstances where a state procedural rule conflicted with a federal rule; in such circumstances the Court required that federal courts exclusively apply the federal rule. See e.g., Burlington Northern R. Co. v. Woods, 480 U.S. 1, 94 L. Ed. 2d 1, 107 S. Ct. 967 (1987); Hanna v. Plumer, 380 U.S. 460, 469-74, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965).
The present case presents issues similar to those discussed by the Supreme Court in Arizona v. Manypenny, 451 U.S. 232, 68 L. Ed. 2d 58, 101 S. Ct. 1657 (1981), a criminal removal case. In Manypenny, the Court confronted the delicate balance between state and federal law which is involved in criminal cases removed from state to federal court under 28 U.S.C. § 1442(a). The defendant in Manypenny was a Border Patrol Agent with the Immigration and Naturalization Service ("INS"), who was charged in state court with the state offense of assault with a deadly weapon. The state court action was removed to federal district court because the defendant committed the alleged assault while on duty with the INS. After the defendant was found guilty by a jury, the district court, acting sua sponte, granted a motion for acquittal based on federal immunity, despite the fact that immunity was not raised as a defense at trial. The state timely filed an appeal with the Court of Appeals, but that appeal was dismissed based on a lack of jurisdiction. The Court of Appeals held that ...