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
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
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
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 ...