solely on the doctrine of respondeat superior. Consequently, her § 1983 claim against the County must be dismissed. See Sagendorf-Teal v. County of Rensselaer, 100 F.3d 270, 276-77 (2d Cir. 1996) (affirming grant of summary judgment in favor of county on plaintiff's § 1983 claim where "trial court was not presented with any evidence or allegation of an official [county] policy").
The County's motion for summary judgment as to plaintiff's complaint is hereby granted, and plaintiff's malicious prosecution and § 1983 claims against the County are hereby dismissed.
B. As To The Crossclaims Against The State
The issue presented in the County's motion against the State -- i.e., whether the State must indemnify and defend the prosecutorial defendants because the claims asserted against them arose out of a criminal investigation and prosecution
-- remains unsettled, although both sides have attempted to convince the court of the contrary. Because the County and the State disagree not only as to the appropriate disposition of the motion, but as to the current state of the law itself, a review of the relevant decisional and statutory law is a necessary first step.
As discussed above, the Supreme Court of New Jersey in Cashen held that a County cannot be found vicariously liable for the acts of prosecutors because, when "investigating . . . criminal activity," prosecutors act "as agents of the State and not the county." Cashen, 66 N.J. at 552. While Cashen is directly on point as to the issue raised in the County's motion against Michaels (i.e., whether the County can be held vicariously liable for the acts of the prosecutorial defendants), it did not consider the issue of whether the State is responsible for indemnification and defense costs. Indeed, the Court explicitly limited the application of its ruling to the "factual circumstances there presented" and "expressed no opinion on the questions of whether the prosecutor or his detectives can be considered State or county employees for other purposes." Id. (emphasis added). Thus, Cashen adds little to the equation.
After the dismissal of Morris County in Cashen was affirmed on appeal, Morris County's insurance carrier refused to represent the remaining county detectives. Consequently, the detectives filed an order to show cause why Morris County and its insurance carrier should not be required to defend and satisfy any judgment against the detectives. Dunne v. Fireman's Fund Am. Ins. Co., 69 N.J. 244, 247, 353 A.2d 508 (1976). Morris County crossclaimed against the insurance carrier and filed a third-party complaint against the State, asserting that the State was obligated to defend the detectives and pay any judgment rendered against them. Id. After the trial court ordered Morris County to defend the detectives, Morris County appealed. The Supreme Court of New Jersey considered the limited issue of "whether the County of Morris, or its liability insurance carrier, Fireman's Fund American Insurance Company (Fireman's Fund), or neither [was] obligated to furnish a defense for the detectives in the Cashen suit." Id. at 245. In doing so, the Court analyzed the County's insurance policy to determine "whether the detectives in the County Prosecutor's office were 'persons insured' under the comprehensive liability insurance policy issued by Fireman's Fund to the County of Morris." Id. at 248.
The Dunne Court explained that "county prosecutors' detectives possess a hybrid status." Id. That is, while the detectives were "'agents of the State'" when they "prepared and executed the affidavit upon which the search warrant was based and conducted the search," id. at 250, "at the same time they were also employees of and there existed an employer-employee relationship with the County" "for certain administrative and remunerative purposes." Id. at 250-51. Because the Court believed that the "literal" language of the policy afforded coverage for the detectives even though they possessed such a "hybrid status," id. at 251, it held that the County's insurance company "was under a duty to defend the suit."
Id. at 252. In so holding, however, the Court specifically declared that, because "neither the plaintiff detectives nor Fireman's Fund have sued the State" and because "no adjudication was made on the third party action of the County of Morris against the State," it was "not passing upon what responsibility, if any, the State may have to bear the cost of the defense or satisfy any judgment that may be entered against the detectives." Id. Thus, contrary to the State's contentions, Dunne is not dispositive of whether the State must indemnify and defend the prosecutorial defendants, and any extension of Dunne beyond the insurance context in which it was considered would be unwarranted. See, e.g., In re Bergen County Bd. Of Chosen Freeholders, 172 N.J. Super. 363, 368, 412 A.2d 130 (App. Div. 1980) ("Since the [Dunne] case dealt with the narrow issue of the status of the detectives for insurance purposes, we do not find the opinion either controlling or instructive"); Communication Workers of Am. v. Treffinger, 291 N.J. Super. 336, 349, 677 A.2d 295 (Law. Div. 1996) ("The Dunne case is inapplicable to the case at bar because its holding is limited to a determination of who was the employer of the detectives for insurance purposes").
The State contends that, for at least the past twenty years or so since Cashen and Dunne, the County (i.e., never the State) has indemnified and defended employees such as the ones in this case in damages suits brought against them. Affidavit of Jerry Fischer ("Fischer Aff.") at P 4. The County does not dispute this fact and, indeed, conceded it at oral argument. The County contends, however, that the recent decision by the Court of Appeals for the Third Circuit in Coleman, 87 F.3d 1491, has clarified and changed the previous jurisprudence -- or the lack thereof -- regarding the issue before the court. Specifically, the County contends that, based on Coleman, the State rather than the County is now responsible for providing indemnification and defense costs for claims arising out of a criminal investigation or prosecution.
Coleman considered an issue similar but, again, clearly not identical, to the one at bar, i.e., whether the County of Monmouth can be held vicariously liable for acts performed by the county prosecutor in his administrative capacity and unrelated to his duties in a criminal prosecution. Id. at 1499-1506. While Coleman filled in some of the gaps left open by the Supreme Court of New Jersey in Cashen and Dunne, it did not decide, or even address, the issue presented by the crossclaims, i.e., whether the State must indemnify and defend the prosecutorial defendants.
The Third Circuit found, as the Dunne Court had found as to county detectives, that county prosecutors and their subordinates possess a "hybrid status":
The Dunne court stated that "county prosecutors' detectives possess a hybrid status. [Citations omitted]. Our review of New Jersey law has convinced us that the same can be said about county prosecutors. When county prosecutors engage in classic law enforcement and investigative functions, they act as officers of the State. But where, as here, the county prosecutor decides whether an employee at his or her office is worthy of an open promotion, the county prosecutor is performing an administrative function on the local level entirely unrelated to the duties involved in criminal prosecution.