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MICHAELS v. NEW JERSEY

June 30, 1997

MARGARET KELLY MICHAELS, Plaintiff,
v.
STATE OF NEW JERSEY, ATTORNEY GENERAL'S OFFICE, COUNTY OF ESSEX, ESSEX COUNTY PROSECUTOR'S OFFICE, GEORGE L. SCHNEIDER, ESQ., HERBERT TATE, ESQ., JOHN MASTROANGELO, JOHN NOONAN, GLENN GOLDBERG, ESQ., SARAH SPENCER-McARDLE, EILEEN C. TREACY, M.A., ESSEX COUNTY POLICE DEPARTMENT, NEWARK POLICE DEPARTMENT, DIVISION OF YOUTH AND FAMILY SERVICES, LOUIS FONNELARAS, SUSAN ESQUILLAN, [ ], Defendants,



The opinion of the court was delivered by: TRUMP

 BARRY, District Judge

 The County of Essex (the "County") moves for summary judgment on the complaint of plaintiff Margaret Kelly Michaels ("Michaels") on the ground that the County cannot be held liable on a theory of respondeat superior for the acts of the former Essex County Prosecutor, Herbert H. Tate, Jr., three former assistant prosecutors, Glenn D. Goldberg ("Goldberg"), Sara Sencer-McArdle (improperly plead as "Sara Spencer-McArdle") ("Sencer-McArdle"), and George L. Schneider, and an investigator, John Mastroangelo (collectively the "prosecutorial defendants"). The County also moves for summary judgment on its crossclaims against defendant the State of New Jersey (the "State") on the ground that the State is legally responsible for indemnifying and defending the prosecutorial defendants because the claims asserted against them arose out of the criminal investigation and prosecution of Michaels. *fn1"

 I.

 As discussed by this court in Michaels v. State, 955 F. Supp. 315 (D.N.J. 1996), and in greater detail by the Supreme Court of New Jersey in State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994), and the Superior Court of New Jersey, Appellate Division, in State v. Michaels, 264 N.J. Super. 579, 625 A.2d 489 (App. Div. 1993), this litigation arises out of the alleged malicious and unconstitutional investigation, prosecution, and conviction of a nursery school teacher for bizarre acts of sexual abuse against many of the children for whom she was responsible. For present purposes, a brief synopsis of what has gone before will suffice.

 On April 15, 1988, after a nine-month trial in the Superior Court of New Jersey, Law Division, a jury convicted Michaels of 115 counts of aggravated sexual assault, sexual assault, endangering the welfare of children, and terroristic threats. Michaels, 136 N.J. at 305-06. On March 26, 1993, the Appellate Division reversed the conviction and remanded for a new trial, concluding that the prosecution's interviews and interrogations of the allegedly abused children were "highly improper." Michaels, 264 N.J. Super. at 629-32. The Appellate Division further ordered that in the event the prosecution decided to retry the case, a pretrial hearing would be necessary to determine whether the statements and testimony of those children should be excluded from evidence as untrustworthy. Id. at 631-32. On June 23, 1994, after granting certification on the limited issue of the pretrial hearing, the Supreme Court of New Jersey affirmed the Appellate Division's reversal and remand, and required the prosecution, in the event of a retrial, to prove the reliability of the children's statements by "clear and convincing" evidence because "the interrogations . . . were improper and there is a substantial likelihood that the evidence derived from them is unreliable." Michaels, 136 N.J. at 324. The prosecution decided not to retry Michaels and, on December 1, 1994, formally dismissed all criminal charges against her. Complaint, First Count at P 25.

 On June 13, 1996, Michaels filed a six-count complaint *fn2" in the Superior Court of New Jersey, Law Division. Defendants removed the case to this court on July 25, 1996. On September 12, 1996, the County filed two crossclaims against the State, seeking a declaratory judgment as to the State's obligation to indemnify and defend the prosecutorial defendants and the County. *fn3" On November 8, 1996, this court dismissed sua sponte the Second, Third, Fifth, and Sixth Counts of plaintiff's complaint for noncompliance with the limitations and notice provisions of the New Jersey Tort Claims Act, see Michaels, 955 F. Supp. at 315, leaving only plaintiff's malicious prosecution and § 1983 claims and the County's crossclaims. As noted above, the County now moves for summary judgment as to the complaint and the County's crossclaims against the State.

 II.

 A. As to Plaintiff's Complaint

 The only theory of liability even arguably asserted in the complaint against the County is one of respondeat superior, i.e., that the County is vicariously liable for the actions of the prosecutorial defendants because they were acting as employees or agents of the County. This theory of liability, as applied to facts such as those present in this case, has been firmly rejected by both New Jersey courts and federal courts, presumably the reason why plaintiff has not opposed the motion insofar as it is addressed to plaintiff's complaint. Given this lack of opposition, only a brief discussion of the caselaw is necessary, and that only to provide background for the County's motion insofar as it is addressed to the crossclaims.

 In Cashen v. Spann, 66 N.J. 541, 334 A.2d 8 (1975), a case factually similar to the one at bar, the plaintiffs were the subject of an allegedly illegal search by Morris County detectives -- a search that the Superior Court of New Jersey, Appellate Division, later described as a "bizarre mistake." Cashen v. Spann, 125 N.J. Super. 386, 391, 311 A.2d 192 (App. Div. 1973). As a result of the illegal search, the plaintiffs sued Morris County on the theory of respondeat superior. After the trial court granted Morris County's motion for summary judgment, the Appellate Division, in one paragraph, affirmed:

 
The theory upon which the plaintiffs assert liability on the part of the County of Morris is that the prosecutor and his aides were acting in this instance as agents of the county which was therefore vicariously liable on principles of Respondeat superior. The short answer -- though the question was not discussed in any of the briefs -- is that the prosecutor and his aides were not agents of the county, but rather of the State in their actions with respect to plaintiffs.
 
* * *
 
Therefore, in performing the actions with which they are charged, the prosecutor and his aides were the agents of the State and not of the County of Morris, and there is no liability as to the county for those actions under the doctrine of Respondeat superior. . . . We also leave for an appropriate case the question of whether the county may be vicariously liable for the actions of detectives in other circumstances.

 Id. at 403-04 (emphasis added).

 The Supreme Court of New Jersey affirmed the Appellate Division, again ...


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