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September 27, 1991


The opinion of the court was delivered by: Sarokin, District Judge.



In this matter, the federal government challenges the New Jersey Rule and practice which permits private citizens to prosecute minor crimes where the local prosecutor has failed or refused to do so.

The practical reasons for the rule are obvious. There are many instances in which the prosecutor, because of the nature of the complaint combined with limited resources, chooses not to prosecute a particular complaint or category of complaints. Many personal disputes are and can be decided or resolved at the municipal court level without the time and expense of a local prosecutor.

The risk of abuses from such practice is equally obvious. Individuals can and do utilize such criminal proceedings to bolster a related civil proceeding or merely for vindictive or harassing purposes. In addition to possible improper initiation, the conduct of such proceedings risks a violation of due process. The strictures which guide and limit a prosecutor are unknown to the private citizen and are difficult to enforce. Plea bargains which are otherwise available would not be. Duties of disclosure and other constitutional safeguards likewise would be unknown and unenforced. Thus, in the initiation and the conduct of such private prosecutions, the self-interest of the complainant-prosecutor, absent the safeguards imposed upon a neutral prosecutor, place the constitutional rights of the named defendant in jeopardy.

In certain cases, the conflict of interest of a self-interested complainant acting in the role of prosecutor may be of such a magnitude that the court should prohibit a complainant or her agent from acting as prosecutor. This is such a case.


Before the court is defendant's motion to dismiss the criminal case against him based on the allegedly unconstitutional application of New Jersey Local Court Rule 7:4-4(b), which allows private individuals to prosecute certain criminal complaints.*fn1 The motion is opposed by the State, as represented by Mr. Gregg Foti, whose opposition is supported by the New Jersey Attorney General, an intervenor in the case for purposes of this motion.

Defendant Michael Imperiale is a Supervisor of Mails at the Monmouth General Mail Facility, Eatontown, New Jersey. Mr. Gregg Foti, the complainant and prosecutor in this case, is a maintenance control clerk at the same postal facility, as well as an officer of the union.

Foti and Imperiale present different versions of the March 22, 1989 events which give rise to the criminal complaint. Briefly, Imperiale claims that he saw a misplaced mail hamper creating a safety hazard on the work floor; when he pushed it out of the way, Foti made a commotion, shouting that Imperiale was doing unit bargaining work. Imperiale claims that Foti then pushed the hamper towards Imperiale. Imperiale Declaration, ¶ 4. Imperiale then issued Foti a letter of suspension for insubordination, at which time Foti allegedly vowed revenge on Imperiale. Id. Foti and the union subsequently filed two grievances against Imperiale for creating a safety hazard and for issuing the suspension, both of which were denied at stage two of the grievance procedure.

The next day, on March 23, 1989, Foti filed a criminal complaint stating that Imperiale "did commit simple assault upon complainant by pushing a rolling mail hamper into the victim three times, causing injury." Thus, in contrast to Imperiale's story, Foti complains that it was Imperiale who pushed the mail cart at Foti and that Foti suffered injury as a result. Cplt., Notice of Removal, Exh. 1. Mr. Foti missed two days of work following the incident. Imperiale Dec., ¶ 8. Pursuant to this complaint, the New Jersey Municipal Court of Eatontown issued summons No. C-266-89 against Imperiale, charging simple assault in violation of N.J.S. 2C:12-1(a).*fn2 On April 11, 1989, defendant removed the case to federal court pursuant to 28 U.S.C. § 14:42(a)(1).

On May 30, 1989, the Municipal Prosecutor of the Borough of Eatontown informed the court that he would not prosecute the matter. Pursuant to N.J. Ct.R. 7:4-4(b), Foti seeks to privately prosecute this criminal case of simple assault.*fn3 7:4-4(b) provides:

  Whenever in his [sic] 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 for
  and on behalf of the State or municipality.

Foti intends to prosecute this action himself, without hiring counsel.*fn4 Defendant is represented by the United States Attorney for New Jersey, as the incident occurred in the course of defendant's duties as a federal officer. By order dated September 12, 1990, this court granted the New Jersey Attorney General's Office leave to intervene pursuant to 28 U.S.C. § 2403(b) in order to defend the constitutionality of the state court rule.


Defendant argues that N.J. Ct.R. 7:4-4(b) is unconstitutional as applied in this case because the private prosecutor rule deprives this criminal defendant of his constitutional right to a "fundamentally fair trial" under the due process clause of the fifth and fourteenth amendments. Although defendant sometimes refers to his interest as a "fundamental right" to an impartial and disinterested prosecutor, see Def. Reply Brief at 4, this terminology does not accurately reflect the constitutional interest at stake. Both defendant and the State*fn5 agree that the private prosecutor provision implicates defendant's due process right to a "fundamentally fair trial." Def. Brief at 18; AG Brief at 6-7. The absence of an impartial and disinterested prosecutor has been held to violate a criminal defendant's due process right to a fundamentally fair trial. Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967) (conviction violated fundamental fairness assured by due process clause when part-time Commonwealth Attorney suffered impermissible conflict of interest by prosecuting defendant for criminal assault while simultaneously representing defendant's wife in divorce action).

The question of what constitutes an "impartial" prosecutor demands clarification. A prosecutor is not "partial" simply because she zealously seeks conviction. Rather, "partiality" in this context is similar to a conflict of interest in the sense that the prosecutor has a personal interest or stake in the outcome of the criminal prosecution. Thus, "partiality" refers not to "personal" zeal but to "structural" problems where personal interests (including non-pecuniary interests) generate a structural conflict of interest. See Young v. US. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807-08 and n. 18, 107 S.Ct. 2124, 2137-38 and n. 18, 95 L.Ed.2d 740 (1987); Polo Fashions v. Stock Buyers Intern., 760 F.2d 698, 705 (6th Cir. 1985).

According to defendant, Mr. Foti's interest in prosecuting this case is revenge, not necessarily pecuniary gain. Def. Reply Brief at 6. Therefore, the State suggests that the instant prosecution is not "tainted" because a private prosecutor only suffers from a "structural" conflict of interest if the ...

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