This case addresses the applicability of the Frivolous Pleading Statute, N.J.S.A. 2A:15-59.1, to an agency of the government of the State of New Jersey, here, the Division of Youth and Family Services of the Department of Human Services, when that agency has been a non-prevailing litigant whose pleadings and positions during the litigation are claimed by the prevailing party to be frivolous. For the reasons set forth below, this court finds that N.J.S.A. 2A:15-59.1 does apply to the State and all agencies and political subdivisions thereof, but does not award fee sanctions in this case.
This case was originally about the efforts of a natural mother, B.F., to regain custody of her child, K.L.F., and the efforts of the New Jersey Division of Youth and Family Services, DYFS, to place K.L.F. permanently with persons other than B.F. It has become a case about whether the State, i.e., DYFS, should pay B.F.'s legal bill for defending litigation which DYFS commenced and lost.
B.F. became pregnant with K.L.F. as a result of having been raped in New York City. Desirous of escaping New York City and its climate antithetical to the rearing of a child, B.F. came to New Jersey and gave birth to her daughter in November 1988. Due to her relatively uncertain housing situation and means of livelihood, B.F. entered into a temporary custody agreement with DYFS which provided for the temporary placement of K.L.F. into foster care pursuant to N.J.S.A. 30:4C-11.
After living in a Bergen County shelter for the next two months and making periodic visits to K.L.F., B.F. returned to New York City in search of permanent housing. During the next eighteen months, B.F. had neither a home nor livelihood but lived in a series of shelters and with friends until she eventually was able to procure a three-year lease on an apartment in Staten Island, where B.F. currently resides. During this time, B.F. made telephone calls from various New York City pay telephones in repeated attempts to contact a DYFS case worker who had familiarity with her case, but none of the calls met with success.
During this same period of time, DYFS had made several similarly unsuccessful attempts to communicate with B.F. regarding her daughter. In May of 1990, eighteen months after K.L.F. had initially been placed in foster care, DYFS concluded that she needed a permanent home and it moved her to a new set of pre-adoptive parents. One month later, B.F. did contact a DYFS case worker who informed her that the agency was bringing an action for guardianship and that B.F. would not be permitted visitation in the interim. B.F. travelled to Bergen and Passaic Counties in a frustrated attempt to file a pro se motion for visitation, and then returned to Staten Island without having obtained any other assistance in her matter and without ever seeing K.L.F.
On March 23, 1991, DYFS petitioned for guardianship and termination of parental rights based on abandonment and the best interests of the child under N.J.S.A. 30:4C-15. At that time, K.L.F. had been living for ten months with her second set of pre-adoptive parents, which fact prompted, at trial, the issue of whether K.L.F.'s separation from her pre-adoptive parents would be adverse to her best interests. After a trial, this court declined to terminate B.F.'s parental rights, concluding that the mother had not abandoned the child and was indeed fit to raise the child, and, further, that the child would not suffer psychological harm by being removed from her pre-adoptive parents and returned to her mother. The Appellate Division, in an unreported decision, and the Supreme Court, at 129 N.J. 32 (1992), each unanimously affirmed the ruling of this trial court. B.F. now seeks fee sanctions under the Frivolous Pleading Statute, N.J.S.A. 2A:15-59.1, for the original trial court proceeding.
A. The Frivolous Pleading Statute Itself.
This court is in the novel position of having to assess the operation of New Jersey's Frivolous Pleading Statute, N.J.S.A. 2A:15-59.1, in a context whereby application for fee sanctions has been made against a non-prevailing party that is also a constituent agency of the State of New Jersey.
The language of the statute, in relevant part, reads as follows:
A party who prevails in a civil action, either as plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the Judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the non-prevailing person was frivolous. [N.J.S.A. 2A:15-59.1 (a).]
Of course, in assessing the applicability of the foregoing provision vis-a-vis the State as a party to a civil action, the critical instruction given by the Legislature is that a party may seek sanctions against "any other [non-prevailing] party." These words are intended to delineate that category of persons against whom fees may be assessed, provided the other requirements of the statute are satisfied. However, this phrase, in unfortunately indeterminate fashion, leaves unattended the question of whether "any party" includes the State of New Jersey and any of its constituent agencies and political subdivisions, or is merely restricted to non-prevailing*fn1 private parties. Therefore, the analysis herein must necessarily begin with a judicial construction of the precise language of N.J.S.A. 2A:15-59.1 so that a determination may be made as to whether an award of relief in the form of fee sanctions imposed upon the State was indeed within the contemplation of the Legislature. Of course, should this threshold question be resolved in the negative, then this court need not reach the issue of whether the state's conduct or pursuit of this litigation at the trial level may indeed be characterized as "frivolous" within the letter and intent of N.J.S.A. 2A:15-59.1.
B. Construction of the Statute.
The foremost uncertainty which exists, and for whose explanation the Frivolous Pleading Statute must now be construed, is whether the Legislature, in its inclusion of "any party" without according explicit exception to the state, affirmatively intended to impel the state, under the threat of potential fee sanctions, towards the same standards of "good faith" and "reasonable basis in law"*fn2 that inure to private parties whenever they prosecute, defend, or otherwise appear in a civil or quasi-civil action. To resolve this query we must look to the principles of statutory interpretation.
Under the general rules of statutory construction, it is clear that the court must first direct its inquiry to the actual language of the statute. Schiavo v. John F. Kennedy Hosp., 258 N.J. Super. 380, 609 A.2d 781 (App. Div. 1992). Where the Legislature has clearly spoken, the court may not ignore the Legislature's intent and must give full force and effect to it. In the absence of a clear intent, however, the court may derive the legislative intent from a variety of sources, including the language of the statute, the policy behind the statute, concepts of reasonableness, and legislative history. Coletti ...