On appeal from Superior Court, Law Division, Middlesex County.
Antell, Dreier and Skillman. The opinion of the court was delivered by Antell, P.J.A.D.
[264 NJSuper Page 560] The State of New Jersey and its related defendants appeal, by our leave granted, from an interlocutory order of the Law Division dated November 20, 1992, denying their motion to transfer the within matter to the Appellate Division for Disposition. The motion was made in the Law Division on the ground that the complaint herein sought review of State administrative agency action and could therefore only be presented by appeal to the
Appellate Division. R. 2:2-3(a)(2). Defendant New Jersey Turnpike Authority appeals from a separate order also dated November 20, 1992, denying its motion to transfer or, in the alternative, to dismiss the action for failure to state a cause of action. We have consolidated both appeals for purposes of review.
Plaintiffs are New Jersey State Troopers who successfully defended themselves against criminal indictments charging them with offenses allegedly committed in connection with their official duties. They then brought this action for reimbursement of their attorneys fees incurred in connection with their defenses. Plaintiff Henig seeks reimbursement of $357,797.40. Plaintiff Waldie seeks reimbursement of $110,926.61. The claims were made pursuant to The New Jersey Tort Claims Act, N.J.S.A. 59:10-2.1, which provides:
If any criminal action is instituted against any State officer based upon an act or omission of that officer arising out of and directly related to the lawful exercise of his official duties or under color of his authority, and that action is dismissed or results in a final Disposition in favor of that officer, the State shall reimburse the officer for the cost of defending the action, including reasonable attorney's fees and costs of trial and appeals.
Citing the principles announced in Pascucci v. Vagott, 71 N.J. 40, 52, 362 A.2d 566 (1976), the State maintains that its refusal to reimburse plaintiffs constitutes "an internal administrative decision as to whether the employee acted within the scope of his employment entitling him to protection under the statute," a determination that may be reviewed only in the Appellate Division. Without elaboration, the State relies upon Helduser v. Kimmelman, 191 N.J. Super. 493, 467 A.2d 1094 (App.Div.1983), for the proposition that the Attorney General's decision to provide or not to provide a defense in criminal matters is "wholly discretionary."
Helduser was decided several years before N.J.S.A. 59:10-2.1 was enacted. The focus of that decision was upon Chapter 10A, not Chapter 10. Chapter 10A deals with the duty of the Attorney General to provide for the defense of any action brought against a State employee or former State employee on account of an act or omission in the scope of employment. N.J.S.A. 59:10A-2 expressly
states that the Attorney General may refuse to provide such a defense if he decides that the act or omission was not within the scope of employment or if the employee's conduct was a product of fraud, willful misconduct or actual malice, or if the defense of the action would create a conflict of interest between the State and the employee or former employee. The dispute in Helduser arose under N.J.S.A. 59:10A-3, which provides as follows:
In any other action or proceeding, including criminal proceedings, the Attorney General may provide for the defense of a State employee or former State employee, if he concludes that such representation is in the best interest of the State.
The Helduser court simply concluded that the phrase "including criminal proceedings" contained in Section 10A-3 was intended "to express the Attorney General's discretionary authority to furnish a defense for all state employees charged with crimes when he determines that it is [in] the 'best interest of the State' to do so." Id., at 509-510, 467 A.2d 1094. The State seems to argue that because the Helduser court recognized the Attorney General's discretion to decide under N.J.S.A. 59:10A-3 whether or not to provide a defense, that the same discretion should be applied to the question of whether or not indemnification should be paid under N.J.S.A. 59:10-2.1 where a defense is not provided and the criminal proceeding is disposed of favorably to the officer. But one statute deals with indemnification; the other with providing a defense. The fact that the Legislature expressly vested discretion in the Attorney General to decide whether or not a defense should be provided and omitted to do so where payment of indemnification is concerned, signifies that the omission in the latter case was intentional. What the Legislature omits courts will not supply. See, e.g., Craster v. Newark Bd. of Commn'rs, 9 N.J. 225, 230, 87 A.2d 721 (1952). This is especially true here, where the Legislature has demonstrated that when it chose to vest discretion in the ...