[238 NJSuper Page 328] Plaintiffs filed 42 complaints*fn1 against state, county and governmental agencies as well as private agencies and persons alleging, inter alia, conspiracy, fraud, malice, malicious prosecution, legal malpractice, medical malpractice and civil rights violations.
This is a motion for summary judgment made by all of the above-listed defendants represented by the Attorney General to dismiss the complaint against them.*fn2
The issues are: (1) whether judges enjoy absolute immunity; (2) whether the complaints against Governor Kean, Attorney General Edwards, DYFS and all other persons involved in the child-abuse proceedings are barred by the doctrine of quasi -judicial immunity; (3) whether Attorney General Edwards, his deputy, DYFS and the other defendants are immune from suit under N.J.S.A. 59:3-3 for their good faith execution and enforcement of law; (4) whether Governor Kean, Attorney General Edwards and all other state employees involved are immune because of the discretion vested in them under N.J.S.A. 59:2-3 and :3-2; (5) whether Governor Kean, Attorney General Edwards and other superiors are liable under the doctrine of respondeat superior; (6) whether DYFS, Bayonne Agency, Adoption Resource Center and the Department of Civil Service are "persons" within the meaning of 42 U.S.C.A. § 1983; (7) whether any respondeat superior theory exists under 42 U.S.C.A. § 1983; (8) whether plaintiffs have established the required elements of malicious prosecution based upon either a prior criminal judicial proceeding or a prior civil proceeding when no proceeding was terminated in their favor; (9) whether defendants are immune from suit, in any event, under 42 U.S.C.A. § 1983; and (10) whether claims for improper medical examinations are barred by N.J.S.A. 59:6-4.
The court holds that defendants are immune under all theories, and therefore, grants summary judgment dismissing the complaints against them.
Jill Schneider (now Delbridge) called a state hotline alleging*fn3 that daughter Jill had been sexually abused by the girl's father, Adolph Delbridge. This prompted an immediate investigation by DYFS.
Five Delbridge children were placed in DYFS foster care.
Adolph Delbridge pleaded guilty to a violation of N.J.S.A. 2C:24-4(a) (endangering the welfare of a child) and was sentenced to five years probation.
The sixth Delbridge child, born subsequent to the above date, was placed in DYFS foster care.
The seventh Delbridge child, born November 1987, was placed in DYFS foster care.
Parental rights of plaintiffs to six of their children were terminated by order of the Hon. J. Leonard Hornstein, J.S.C. His findings of fact were made on April 14, 1988. Plaintiffs' appeal of this decision is pending.
PLAINTIFFS ARE COLLATERALLY ESTOPPED FROM ARGUING THE MERITS AND/OR THE EFFICACY OF THE DECISION TO REMOVE THEIR CHILDREN.
Under the doctrine of collateral estoppel,
[O]nce an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. [ Montana v. U.S., 440 U.S. 147, 153, 99 S. Ct. 970, 973, 59 L. Ed. 2d 210 (1979)]
A party is thus precluded by collateral estoppel from relitigating matters or facts which the party actually litigated and which were determined in a prior action, involving a different claim or cause of action, and which were directly in issue between the parties. Mazzilli v. Accident & Casualty Ins. Co., etc., 26 N.J. 307, 314-316, 139 A.2d 741 (1958). This basic principle has been fully adopted and enforced by the courts of New Jersey. See, e.g., State v. Gonzalez, 75 N.J. 181, 186-187, 380 A.2d 1128 (1977).
Plaintiffs are collaterally estopped from pursuing these actions as the thrust of consolidated complaints against all defendants, including but not limited to DYFS, its various offices, staffers and consultants, because the decision to remove the Delbridges' children from them was already the subject of two prior family court actions. Plaintiffs cannot, and do not, now complain that they lacked a full and fair opportunity to litigate that decision in those prior actions. Their complaints are confined primarily to allegations of conspiracy, malice and intentional or negligent medical and legal malpractice. Indeed, Mr. Delbridge was present, and participated, in both proceedings.
Likewise, when a party is "precluded from re-litigating an issue with an opposing party, he is also precluded from doing so with another person unless he lacked a full and fair opportunity to litigate the issue in the first action or unless other circumstances justify affording him an opportunity to relitigate the issue." United Rental Equipment Co. v. Aetna Life & Cas Ins. Co., 74 N.J. 92, 101, 376 A.2d 1183 (1977); Feniello v. University of Pennsylvania Hospital, 558 F. Supp. 1365, 1367 (D.N.J.1983); Melikian v. Corradetti, 791 F.2d 274 (3 Cir.1986).
All of plaintiffs' complaints arise out of the proceedings in the Family Court before Judge Hornstein or in the criminal matter to which Mr. Delbridge pled guilty. For this court to allow the present complaints to stand and proceed to trial would require relitigation of issues already decided by courts of competent jurisdiction. This would not only damage or strain the foundation of American jurisprudence, but also destroy the concept of finality of court determinations and totally negate it. Any time a litigant, in any proceeding, whether a municipal traffic violation or an appeal to the United States Supreme Court, can by paying $75 (nothing if you claim indigency as here) relitigate the case ad infinitum.*fn4
To the extent that Mr. Delbridge was a party in both family court proceedings, there is nothing to suggest he did not have a full and fair opportunity to voice those complaints with Judge Hornstein's decision to remove his children, which he voices now in some 41*fn5 consolidated complaints. Moreover, plaintiff
offers no reason why he could not, as a matter of law, obtain review of either or both family court orders.
Review is clearly available to plaintiffs in the form of an appeal (which is currently pending). If any of the decisions to remove the children were erroneous, as plaintiffs allege, it can be reversed by a higher court. To give plaintiffs a new avenue of recourse now for an old issue would defeat the purpose of the doctrine of collateral estoppel.
Therefore, plaintiffs are collaterally estopped from relitigating them.
Judges HORNSTEIN, HUMPHREYS AND SCHAEFFER ARE ABSOLUTELY IMMUNE FROM SUITS FOR DAMAGES ARISING OUT OF JUDICIAL ACTS WITHIN THEIR JURISDICTION.
"Few doctrines [are] more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction." Pierson v. Ray, 386 U.S. 547, 553-554, 87 S. Ct. 1213, 1217, 18 L. Ed. 2d 288, 294 (1967). "A judge is absolutely immune from liability for his judicial acts." Stump v. Sparkman, 435 U.S. 349, 359, 98 S. Ct. 1099, 1106, 55 L. Ed. 2d 331, 341 (1978); Briscoe v. LaHue, 460 U.S. 325, 334, 103 S. Ct. 1108, 1115, 75 L. Ed. 2d 96 (1983).
In Pierson, the Supreme Court held that this absolute immunity applies to suits brought under the Civil Rights Act of 1871, 42 U.S.C.A. § 1983. Later cases have affirmed this principle. See Stump, supra, 435 U.S. at 356, 98 S. Ct. at 1104; Briscoe, supra, 460 U.S. at 334, 103 S. Ct. at 1115 and Imbler v. Pachtman, 424 U.S. 409, 418, 96 S. Ct. 984, 989, 47 L. Ed. 2d 128 (1976). The Supreme Court has consistently adhered to the rule that judges defending against § 1982 actions enjoy absolute immunity for acts performed in their judicial capacities. Dennis v. Sparks, 449 U.S. 24, 27, 101 S. Ct. 183, 186, 66 L. Ed. 2d 185 (1980); Supreme Court of Virginia v. Consumers Union
of the United States, 446 U.S. 719, 733-734, 100 S. Ct. 1967, 1975, 64 L. Ed. 2d 641, 654-655 (1980).
A judge is not deprived of this immunity even when an action taken is in error, malicious or in excess of his authority. Stump, supra, 435 U.S. at 356, 98 S. Ct. at 1104. See also Pierson, supra, 386 U.S. at 554, 87 S. Ct. at 1217 (immunity applies even when judge is accused of acting maliciously and corruptly).
The rationale for this rule was explained in Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974):
Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity -- absolute or qualified -- for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from that error than not to decide or act at all. [416 U.S. at 241-242, 94 S. Ct. at 1689; emphasis supplied]
As further explained by the Supreme Court in Dennis, supra:
Judicial immunity arose because it was in the public interest to have judges who were at liberty to exercise their independent judgment about the merits of a case without fear of being mulcted for damages should an unsatisfied litigant be able to convince another tribunal that the judge acted not only mistakenly but with malice and corruption. [449 U.S. at 31, 101 S. Ct. at 188]
Absolute immunity is needed to permit judges to render decisions with independence and without fear of consequences. Pierson, supra, 386 U.S. at 554, 87 S. Ct. at 1217. It is of the highest importance to the proper administration of justice that judges be free to act upon their own convictions without apprehension of the consequences to themselves. Stump, supra, 435 U.S. at 355, 98 S. Ct. at 1104. The immunity is intended to provide judges with the maximum ability to act fearlessly and impartially, without an atmosphere of intimidation. Ferri v. Ackerman, 444 U.S. 193, 203-204, 100 S. Ct. 402, 408-09, 62 L. Ed. 2d 355 (1979). It is necessary to assure that judges can perform their function without harassment or intimidation.
Butz v. Economou, 438 U.S. 478, 512, 98 S. Ct. 2894, 2913, 57 L. Ed. 2d 895 (1978).
The immunity is especially necessary given the nature of judicial proceedings. As the court explained in Pierson:
It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation. [386 U.S. at 554, 87 S. Ct. at 1218]
Or, as the court in Butz added: "Controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus." 438 U.S. at 512, 98 S. Ct. at 2913.
Finally, the immunity is permitted because of the other safeguards that exist. The court in Butz noted that there is less need for private damage actions to control unconstitutional conduct where judges are involved:
The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges. [ Ibid. ]
The sole requirement for judicial immunity is that two criteria must be met. First, the act complained of must be a judicial act. Stump, supra, 435 U.S. at 360, 98 S. Ct. at 1106. Second, the judge must have jurisdiction over the subject matter before him at the time he acts. Id. at 356, 98 S. Ct. at 1104; Dennis, supra, 449 U.S. at 29, 101 S. Ct. at 187.
In Stump, the Supreme Court explained that a judicial act is one performed by a judge in his judicial capacity. 435 U.S. at 360, 98 S. Ct. at 1106.
The factors which determine whether an act by a judge is a judicial one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. [ Id. at 362, 98 S. Ct. at 1107]
The acts complained of in the present case were clearly judicial acts.
33599-87 -- findings of fact and entry of order in child custody case;
33600-87 -- findings of fact, weighing evidence, ordering psychological and other examinations and entry of order in child custody case;
015514-88 -- findings of fact and entry of order permitting foster parents to relocate children to a more conducive environment upon proper application in a child custody case;
007121-88 and 007126-88 -- findings of fact and entry of order in child custody matter setting visitation schedule and ordering psychological evaluations.*fn6
W-13097-88 -- for the appointment of members to the Child Placement Review Board and actions of its members acting in their official capacity as an arm of the family court. (See discussion later as to quasi -judicial immunity as it relates to the board itself.) All of these acts were performed in his capacity as assignment judge of Hudson County;
W-15005-88 -- for his actions as assignment judge in a supervisory capacity over Judge Hornstein.
15007-88 -- for his actions as presiding judge of Hudson County in failing to supervise Judge Hornstein in his handling of a child custody case.
Clearly, plaintiffs' allegations against the judges are for their actions in their judicial capacities.*fn7 The first criterion for judicial immunity, therefore, is met.
The second criterion is whether the judge had jurisdiction over the subject matter before him at the time he acted. The scope of this jurisdiction must be broadly construed. Stump, supra, 435 U.S. at 356, 98 S. Ct. at 1104; Dennis, supra, 449 U.S. at 29, 101 S. Ct. at 187. The immunity will be denied only where the judge acted in the clear absence of all jurisdiction. Stump, supra, 435 U.S. at 357-358, 98 S. Ct. at 1105.
For example, if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of his jurisdiction. On the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would be immune. [ Id. at 357-358, n. 7, 98 S. Ct. at 1105 n. 7]
Plaintiffs cite Zarcone v. Perry, 581 F.2d 1039 (2 Cir.1978) in support of their position. Clearly, that case, where punitive damages were awarded against a judge who acted "without any colorable legal basis," id. at 1040, is inapplicable. The judge ordered the deputy sheriff and two others to bring the vendor/appellant through the crowded courthouse in handcuffs, and then the judge tongue-lashed the vendor, threatening him with legal action for selling him a "putrid" cup of coffee. In the present matter, all suits brought against the judges were for duties carried out while performing in their official capacity.
Similarly inapplicable is the case of Harper v. Merckle, 638 F.2d 848 (5 Cir.1981). Therein, the judge asked plaintiff to raise his right hand to be sworn, ordered plaintiff apprehended, held contempt proceedings and ordered plaintiff incarcerated. The controversy, however, that led to the incarceration did not center around any matter pending before the judge but, rather, around domestic problems of plaintiff's former wife, who worked in the court house. Plaintiff saw the judge in a social forum and did not visit the judge in his official capacity. In contrast to the case herein, the judge in Harper v. Merckle acted in a manner so as to use his office as an "offensive weapon to vindicate personal objectives." No party invoked judicial machinery for any purpose. The judge's conduct did not amount to "judicial acts." Nonjudicial acts are not cloaked with judicial immunity.
Plaintiffs contend that when Judge Hornstein discussed the child abuse case with the media, namely, the Jersey Journal, the judge lost his immunity. Plaintiffs, in response to this motion, submitted several newspaper clippings (apparently from the Jersey Journal -- although the name of the newspaper
and dates of the articles were not on the copies) from early 1986.
One article in question stated:
They also allege that Superior Court Judge J. Leonard Hornstein of The Family Division in Hudson County said they will never see their children again. Hornstein said he cannot remember if he used the word "never."
In a previous interview with The Jersey Journal, Hornstein stated, "The children are not being returned to them."
The judge expressed this view three times during the interview saying, "Strictly speaking I shouldn't be talking about this. Everything that could have been done was attempted and we need cooperation from the biological parents. We did not get their cooperation."
The Jersey Journal received a phone call from Hornstein about two weeks after the initial interview. He stated that he meant the following: "At this time, the children are in placement now and will not be returned to them. I do not mean they will never go back to the parents. Circumstances can change."
Several months ago, The Jersey Journal ran a letter to the editor expressing the view of an individual who felt that DYFS had "far too much power" when investigating child abuse allegations. Hornstein sent a copy of the letter to attorneys and other people involved in the proceedings. It stated: "Enclosed is a copy of a letter to the editor appearing in the Jersey Journal on Friday, Jan. 16, 1987. The letter is signed 'J.D., Bayonne.' It would appear that 'JD' is Jill Schneider-Delbridge."
"I am sending this to you for your information and guidance."
Hornstein later explained why he mailed the news clipping by stating, "They (all those involved in the cases) should know about it. There are no surprises in these types of cases, and all information should be disclosed to everybody."
Prior to April 17, 1986, the court ordered plaintiffs not to discuss their case with persons not directly involved with the case. This caused plaintiffs to seek the aid of the American Civil Liberties Union of New Jersey, who filed a brief with Judge Hornstein on April 17, 1986 stating, inter alia:
In a sealed proceeding, defendant may legitimately be precluded from public comment on the proceedings themselves. But to bar him from speaking about the case in general constitutes a major infringement of his First Amendment rights without any showing whatsoever of the requisite "clear and present danger."
Nonetheless, the media still continued to publicize the case.
However, it was plaintiffs who went to the media about their family court matter; Judge Hornstein had the right to respond ...