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Chasin v. Montclair State University

June 02, 1999


The opinion of the court was delivered by: Garibaldi, J.

Argued October 13, 1998

On certification to the Superior Court, Appellate Division.

This appeal involves the interpretation of the provisions of the Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to -14-4, that govern the State's obligations to defend and indemnify its employees in lawsuits brought against them. Specifically, does the TCA oblige the State to defend and indemnify plaintiff, Barbara Chasin, a professor at Montclair State University, in an underlying suit that did not seek damages for tortious conduct? We also consider whether Professor Chasin's refusal to follow the legal advice of the Attorney General justifies the State's refusal to indemnify her. Finally, we determine whether N.J.S.A. 18A:60-4 requires the State to defend and indemnify plaintiff.


Professor Barbara Chasin teaches sociology at Montclair State University. In the fall of 1990, James Lloyd enrolled in Chasin's course on the "Sociology of Rich and Poor Nations." Lloyd was a member of the Marine Reserves. Thirteen weeks into the semester, he was called to active duty as a part of Operation Desert Storm/Shield. At that time, Lloyd had achieved an "A" average, based on a quiz and the mid-term examination. Prior to leaving campus, Lloyd met with Chasin and signed an "Incomplete Contract" in which he agreed to take a make-up final examination or write a paper to complete the course.

While Lloyd was on active duty, the Legislature enacted L. 1991 ch. 167, ("Desert Storm Law"), which provides academic relief for students called to military service in the Gulf War. The Act provides:

"1. A student who is a member of the New Jersey National Guard or of the Reserve component of the Armed Forces of the United States, and who is unable to complete a course or courses at a New Jersey institution of higher education because the student is called to active duty in consequence of the current United Nations action in the Persian Gulf known as operation "Desert Shield" or "Desert Storm," shall be entitled to receive a grade in each course for which the student has completed a minimum of 8 weeks' attendance and all other academic requirements during that period. The grade shall be based on the work completed up to the time when the student was called to active service."

On his return, Lloyd requested that Chasin award him a grade for his course work and mailed Chasin a copy of the Desert Storm Law. Chasin refused and gave Lloyd an "Incomplete." On October 14, 1991, the University Provost sent Chasin a memorandum urging that she reconsider her decision to deny Lloyd a grade:

"I believe that you have asked that Mr. Lloyd fulfill the terms of the incomplete contract entered into in December 1990 or, alternatively, you will give him an F. I urge you to read carefully the attached copy of the law. . . .Our efforts to change the legislation were unsuccessful and the bill was signed into law on June 19, 1991. I appreciate your concerns and understand the position you have taken. But, as employees of the State of New Jersey we have an obligation to obey the laws enacted by the legislature. I hope that you will agree."

The Provost's position was clear. He expressed sympathy for Chasin's position, but felt that she was obliged to "obey" the Law.

Chasin still refused to give Lloyd a grade. In fact, Chasin wrote a letter on October 25, 1991, to Montclair State's President, Irving D. Reid, in an attempt to solicit his support. Although she asserted her position was consistent with the statute, Chasin premised that Conclusion on her own belief that to comply with the Law as written would be:

"to take arbitrary and standardless action in assigning a grade. This would undermine the credibility and validity of Montclair State College as an academic institution. I do not believe that the New Jersey state legislature intended such a result in writing this law. In its attempt to `protect' the participants in the Persian Gulf by this law, the legislature paid insufficient attention to the distinct character of higher education."

Chasin's language in the letter, "I do not believe that the New Jersey state legislature intended. . . ." and "the legislature paid insufficient attention. . . ," indicates that Chasin knew her position contradicted the Desert Storm Law. Chasin understood the law, and simply disagreed with it.

Early in the fall of 1991, Lloyd unsuccessfully sought administrative relief from the University Grade Grievance Committee. Deputy Attorney General Grey DiMenna appeared at the Committee's organization meeting, and, according to Chasin's counsel, "tried to imprint [the college administration and Attorney General's] view on the Committee. . .in light of a narrow view of the `Desert Storm' legislation." Chasin's counsel also maintained that, ". . . injecting a legal issue at this early stage of the proceeding is prejudicial." In her statement to the Committee, Chasin did not claim that her position was consistent with the statute. The Committee, however, expressed its reluctance to substitute its judgment for Chasin's and the University Provost upheld that ruling.

The Dissent relies heavily on the Provost's failure to award a grade as evidence that he supported Chasin's interpretation of the statute. Post at ___ (slip op. at 10-11) (Stein, J., Dissenting). Under Montclair State's Grade Grievance Procedure, however, the Provost is prohibited from changing a grade or ordering a Professor to change a grade. Instead, the Provost may only recommend that the grade be altered. Faced with Chasin's adamant refusal to acknowledge the plain language of the statute, the Provost may well have upheld the grade in an effort to influence Lloyd's position and avoid further dispute with Chasin.In July 1992, Lloyd filed suit in the Chancery Division against Chasin, the University, and the Provost of the University to compel them to comply with the Desert Storm Law. Specifically, he sought equitable relief -- the award of a grade pursuant to the Desert Storm Law. He also sought exemplary damages from the Provost of the University and Chasin for their "intentional, wanton and malicious failure to abide by the duly enacted law of the State of New Jersey." On receipt of the complaint, Chasin sent a formal request for defense and indemnification to the Attorney General, who rejected Chasin's request. The Attorney General's decision was "based upon the actions of Professor Chasin with regard to this matter and the Attorney General's discretion pursuant to N.J.S.A. 59:10A-2 to refuse such representation."

The Chancery Division suit was dismissed because Lloyd failed to exhaust his administrative remedies, and the matter was sent to the Office of Administrative Law for a hearing. Before a hearing was held, the case settled. The initial decision of the Administrative Law Judge ("ALJ") approving the settlement characterizes Lloyd's petition as "seeking to compel compliance with L.1991 c.167." Neither the decision nor the stipulation of settlement mentions a claim for damages. Lloyd received a grade, but his transcript was annotated to indicate that the grade was administratively awarded. In exchange, Lloyd dropped the pending claims against Chasin, the University Provost, and the University.

Immediately after the settlement and pursuant to the TCA, Chasin sent the Attorney General a Demand for Indemnification. The Attorney General did not respond. In July 1995, Chasin filed suit against the State of New Jersey, the Attorney General, and Montclair State University seeking reimbursement for $12,216 in legal fees she incurred defending the Chancery and Administrative actions. In her complaint, Chasin alleged that Lloyd's adminstrative petition sought compliance with the statute and damages. The Attorney General's answer expressly denied that the petition sought any damages. The Law Division granted Chasin summary judgment. The court specifically found that the function of the Attorney General was to provide advice that a state employee was free to follow or disregard. The court further concluded that Chasin had acted in good faith and awarded her $12,216 in attorney's fees. The State moved for reconsideration of the ruling, and Chasin moved for an additional award of fees to cover the cost of the indemnification action. The court denied the State's motion, but granted Chasin an additional $10,000 in attorney's fees.

The Appellate Division reversed and remanded for a plenary hearing to determine the circumstances under which the Attorney General provided advice to Chasin. The court rejected both the Law Division's Conclusion that a state employee is free to disregard the Attorney General's legal position, and the State's contention that Chasin was not entitled to indemnification under the TCA because Lloyd's suit did not seek compensatory damages for tortious behavior. The court found that the Attorney General's legal position was binding on state employees and that the TCA applied to actions for equitable relief. Within that framework, the court focused on whether Chasin knowingly disregarded the Attorney General's advice, and therefore, acted outside the scope of her employment. The opinion suggests that if Chasin willfully disregarded the Attorney General's advice, her actions would fall outside the scope of her employment and the State would not be required to indemnify her. The court deemed the record insufficient on this issue and ordered a remand. Both Chasin's and the Attorney General's Petitions for Certification were granted. 153 N.J. 49 (1998).II.


The Legislature intended the TCA to re-establish "the general rule of the immunity of public entities from liability for injuries to others." Brook v. Odom, 150 N.J. 395, 402. The TCA was also intended to supersede the patchwork of statutory provisions providing for the defense and indemnification of state employees. See N.J.S.A. 59:12-2 (repealing all statutes "inconsistent" with the TCA). The TCA, therefore, provides the unified scheme under which the Attorney General's duty to defend and indemnify employees must be evaluated.

N.J.S.A. 59:10A-1 establishes the Attorney General's basic duty to defend state employees:

"Except as provided [in N.J.S.A. 59:10A-2], the Attorney General shall, upon a request of an employee or former employee of the State, provide for the defense of any action brought against such State employee or former State employee on account of an act or omission in the scope of his employment."

N.J.S.A. 59:10A-2 provides that the Attorney General may refuse to provide a defense for a state employee under N.J.S.A. 59:10A-1 if he determines that:

"a. the act or omission was not within the scope of employment; or"

"b. the act or failure to act was because of actual fraud, willful misconduct or actual malice; or"

"c. the defense of the action or proceeding by the Attorney General would create a conflict of interest between the State and the employee or former employee."

N.J.S.A. 59:10A-3 provides that "[i]n 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." (emphasis added.) *fn1

The State's duty to indemnify an employee parallels the duty to defend. N.J.S.A. 59:10-1 requires the State to indemnify employees for whom a defense is provided. That section specifically exempts the State from paying "punitive or exemplary damages or damages resulting from the commission of a crime." Ibid. If the Attorney General refuses to defend a state employee, the State is only required to indemnify that employee if "the act or omission upon which the claim or judgment was based occurred within the scope of his employment . . . and the State fails to establish . . . actual fraud, actual malice or willful misconduct." N.J.S.A. 59:10-2. If an employee qualifies under that provision, the State is obliged to reimburse that employee for all costs, including reasonable attorneys' fees. *fn2 Thus, even if an employee is not provided with a defense under the TCA, that employee may recover attorneys' fees in limited circumstances.


The language of a statute must be construed according to its plain meaning, so long as that meaning comports with the statute's legislative intent. Merin v. Maglaki, 126 N.J. 430, 434-35 (1992). Additionally, "whatever the rule of [statutory] construction, it is subordinate to the goal of effectuating the legislative plan as it may be gathered from the enactment read in full light of its history, purpose, and context." State v. Haliski, 140 N.J. 1, 9 (1995) (quoting State v. Gill, 47 N.J. 441, 444 (1966)). The limits of the TCA provisions that relate to defense and indemnification are derived from consideration of both their plain language and the history and context within which they were enacted.

N.J.S.A. 59:10A-1 mandates a defense in "any action," unless one of the exceptions of N.J.S.A. 59:10A-2 applies. Those exceptions authorize the Attorney General to refuse a defense when the act complained of falls outside the scope of employment, constitutes "actual fraud, willful misconduct, or actual malice," or creates a conflict of interest. N.J.S.A. 59:10A-2. The third provision governing the duty to defend, N.J.S.A. 59:10A-3, vests the Attorney General with the discretion to defend a state employee, "in any other action or proceeding, including criminal proceedings."

The Appellate Division read the plain language of N.J.S.A. 59:10A-1 to require a defense in "any action," regardless of the remedy sought. The court reasoned that N.J.S.A. 59:10A-3 merely preserves the right of the Attorney General to defend an employee in cases where a specific exception under N.J.S.A. 59:10A-2 applies. That right, however, is preserved by the use of the discretionary "may" rather than the directive "shall" in N.J.S.A. 59:10A-2: "[t]he Attorney General may refuse to provide for the defense . . ." (emphasis added). Under the Appellate Division's construction of the TCA, N.J.S.A. 59:10A-3 is superfluous. It is a well-established canon of construction that

"a legislative provision should not be read in isolation or in a way which sacrifices what appears to be the scheme of the statute as a whole. Rather, a statute is to be interpreted in an integrated way without undue emphasis on any particular word or phrase and, if possible, in a manner which harmonizes all of its parts so as to do Justice to its overall meaning." [Zimmerman v. Municipal Clerk of Tp. of Berkeley, 201 N.J. Super. 363, 368 (App. Div. 1985) (citing Alexander v. New Jersey Power & Light Co., 21 N.J. 373 (1956)).]

N.J.S.A. 59:10A-1 therefore must be understood with reference to N.J.S.A. 59:10A-2 and -3. Given the statutory scheme and the title of the Act, N.J.S.A. 10A-1 mandates that the Attorney General defend "any action" brought in tort; N.J.S.A. 59:10A-2 specifies three instances when such representation of tort cases may be refused by the Attorney General; and N.J.S.A. 59:10A-3 vests the Attorney General with the discretion to defend in cases not covered by N.J.S.A. 59:10A-1. Because N.J.S.A. 59:10A-3 grants discretion "in any other action, including criminal proceedings" (emphasis added), that discretion cannot be limited to criminal proceedings, but must include some civil actions. N.J.S.A. 59:10A-1 requires the Attorney General to defend state employees against tort liability, so the civil claims left to N.J.S.A. 59:10A-3 must seek a remedy other than tort damages.

The history of the TCA demonstrates that it was intended to apply only to civil actions seeking damages for tortious conduct. The Report of the Attorney General's Task Force on Sovereign Immunity (1972) (Task Force Report) was submitted to the Legislature as a pre-cursor to the TCA. The Task Force Report focused on "the 'selective abolition' of the State's sovereign immunity 'in contract and tort.'" Helduser v. Kimmelman, 191 N.J. Super. 493, 508-09 (App. Div. 1983). The Task Force Report recommended that the Attorney General defend and indemnify state employees against "civil liability arising within the scope of their employment." Task Force Report at 15. The Task Force Report, however, focused on the recommendation that "[t]he Attorney General . . . should provide for the defense of all State employees sued for negligence." Id. at 16. "A major premise" of the proposed TCA was to provide limited recovery for a claimant's "economic loss." Ibid. Numerous references to suits for negligence, civil liability, economic loss, and limited liability establish that the Task Force Report only sought to require defense and indemnity in civil actions seeking damages for tortious conduct. The language proposed to accomplish that goal was adopted by the Legislature in N.J.S.A. 59:10-1 to -10A-6. By adopting the proposed sections, the Legislature manifested its intent that the TCA only apply to civil claims for compensatory damages for tortious conduct. Limiting the duty to defend to civil claims for tort damages is also consistent with the underlying legislative intent that courts make a "chary interpretation of a public entity's exposure to liability" that is called for under the TCA. Brooks, supra, 150 N.J. at 402. The legislative intent establishes that civil actions seeking tort damages are covered by the mandatory defense and indemnification provisions of the TCA. Such an interpretation gives meaning to the language "[i]n any other action . . . including criminal proceedings" contained in N.J.S.A. 59:10A-3. *fn3

This construction comports with prior defense and indemnification cases that distinguished tort actions from other suits. See In re Napoleon, 303 N.J. Super. 630, 633-34 (App. Div. 1997); Helduser v. Kimmelman, supra, 191 N.J. Super. at 503.

In In re Napoleon, supra, 303 N.J. Super. at 632, Napoleon, the Medical Director at a state prison, sought defense and indemnification from the Attorney General in a license suspension or revocation hearing before the New Jersey Board of Medical Examiners. The Attorney General rejected Napoleon's request for defense and indemnification, stating that it would be inappropriate for the Attorney General to provide a defense in a case that she had initiated before the professional board. Id. at 633. Moreover, the Attorney General stated that the nature of the allegations and proceedings did not obligate the Attorney General to provide a defense under N.J.S.A. 59:10A-1 or -3 and to indemnify Napoleon under N.J.S.A. 59:10-1. Ibid.

The Appellate Division upheld the denial, observing that "[t]he duty to defend arises in the context of actions filed in accordance with the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 13-10; that is, the Attorney General has a duty to defend present and former State employees only for tortious acts." Id. at 633-34 (emphasis added). The court noted that the proceeding against Napoleon was not a civil action for damages but rather a "disciplinary hearing" before the appropriate licensing authority. Id. at 634. The court also observed that indemnification was properly denied because the indemnification provisions only are triggered "for damages awarded in a civil action for tortious conduct," and because Napoleon was not entitled to a defense, then necessarily he was not eligible for indemnification. Ibid.

Helduser v. Kimmelman, supra, 191 N.J. Super. 493 was a consolidated appeal brought by two suspended members of the state police who were charged with crimes. Both men were acquitted and thereafter submitted requests to the Attorney General for reimbursement of their legal fees. Their requests were denied. On appeal, Helduser argued that N.J.S.A. 59:10A-1 requires the Attorney General to provide for a defense of a state employee in any action brought against that employee unless a specific exception under N.J.S.A. 59:10A-2 applies. Id. at 498. Helduser also relied on N.J.S.A. 59:10-2, asserting that it mandated reimbursement for his counsel fees when the Attorney General refused to provide a defense, because the State failed to show that his conduct was motivated by actual fraud or malice. Ibid.

In affirming the denial of indemnification for the officers, the Appellate Division relied on the history of the TCA:

"As previously stated the language of N.J.S.A. 59:10-1 and -2, and the statement accompanying the bill that became N.J.S.A. 59:10A-1 et seq. as well as other legislative history, about which more will be said shortly, all indicate that the indemnification provisions in N.J.S.A. 59:10-1 and -2 apply only to civil actions for damages based upon an employee's tortious conduct. Similarly, N.J.S.A. 59:10A-1 and -2 were intended to govern the Attorney General's duty to defend state employees in civil actions. The reference in N.J.S.A. 59:10A-3 to `any other action or proceeding, including criminal proceedings,' was simply to preserve the Attorney General's prior statutory and inherent authority to represent or furnish a defense for state employees." [Id. at 507 (emphasis added)]

In discussing N.J.S.A. 59:10A-3, the court further observed:

"More likely, the reference to `any other action or proceeding' was simply a catch-all to cover actions not arising under the Tort Claims Act, including civil actions not seeking damages, as well as criminal actions, in which the Attorney General should have discretionary authority to furnish a defense for a state employee when the state interest would be served." [Id. at 508]

Thus, both Napoleon and Helduser stand for the proposition that the Attorney General's obligation to defend and indemnify arises only in the context of civil actions seeking damages for tortious conduct. We agree that the mandatory defense and indemnification provisions apply only to those civil actions. The defense of any other action is left to the Attorney General's discretion.


In this case, Lloyd's underlying suit sought primarily injunctive relief. Claims of this type are not encompassed by the mandatory defense provision of the TCA. This Conclusion is unaffected by Lloyd's ancillary request for exemplary damages which he dropped when he sought administrative relief after his suit was dismissed by the Chancery Division. In any case, Lloyd's request for exemplary damages does not alter the fundamental nature of his claim. Cf. Shaner v. Horizon Bancorp., 116 N.J. 433, 450-51 (1989) (observing that we consider the nature of the underlying controversy as well as the remedy sought in determining whether the cause of action has been historically primarily equitable on legal in nature).

In an attempt to shoehorn Chasin's indemnification claim into the TCA, the Dissent argues that Lloyd's suit against Chasin was a tort action. Post at ____ (slip op. at 9) (Stein, J., Dissenting). Lloyd filed suit in the Chancery Division, which handles primarily equitable claims. The ALJ's intial decision and the stipulation of settlement do not mention any claim for damages. The Attorney General's answer in this case expressly denies that the administrative petition sought damages. Implicitly acknowledging that Lloyd's claim was equitable, the Appellate Division extended the coverage of the TCA to "any" civil action. Chasin relied on that position in her submissions to this Court; nowhere does she suggest that Lloyd's claim sounded in tort. Neither the parties nor any court involved in this action ever considered Lloyd's claim as anything other than equitable; the Dissent is utterly alone in taking this unsupported position.

Because Chasin was not entitled to a defense under N.J.S.A. 59:10A-1, she also cannot receive indemnification. The remaining indemnification provisions of the TCA are similarly inapplicable to this case. N.J.S.A. 59:10-2 requires the State to indemnify an employee when the Attorney General refuses to defend an action where N.J.S.A. 59:10A-1 entitles the employee to a defense, and the employee demonstrates that the action taken was within the scope of employment, and not the result of willful misconduct, actual fraud or actual malice. That provision, however, applies only when the underlying claim is a civil action for damages. The proof required for indemnification parallels the first two exceptions to the defense provision, listed in N.J.S.A. 59:10A-2. In other words, the statute requires the State to indemnify an employee who demonstrates that the first two exceptions of N.J.S.A. 59:10A-2 do not apply, and whom the Attorney General refused to defend. That category of employees would include those refused a defense under the third exception, a conflict of interest, and those mistakenly refused a defense because the Attorney General erroneously applied one of the first two exceptions.

To summarize, N.J.S.A. 59:10-2 requires the State to indemnify an employee in a N.J.S.A. 59:10A-1 action that the Attorney General fails to defend. The TCA, therefore, indemnifies employees refused a defense only when the underlying claim is a civil action seeking damages in tort. Because Lloyd's claim against Chasin sought injunctive relief, it was outside the scope of N.J.S.A. 59:10-2. Accordingly, the TCA does not require the Attorney General to defend Chasin, and thus, cannot require the State to indemnify her.


The Appellate Division concluded that a state employee seeking to have the Attorney General defend or indemnify her is not free to disregard the Attorney General's advice. We agree. Therefore, even if Chasin's claims could be considered under the TCA, an argument we reject, her willful disregard of the Attorney General's legal position would forfeit any right to defense and indemnification. In cases where a defense is provided, the TCA expressly grants the Attorney General "exclusive control" of the representation and requires the employee to "cooperate fully with the Attorney General's defense." N.J.S.A. 59:10A-4. The official comment to the related indemnification provision make it plain that the Legislature intended the Attorney General's advice to bind employees: "In order to insure that the State's interest will be adequately protected it is provided that a State employee shall not be entitled to indemnification . . . unless he cooperates fully with any defense provided by the Attorney General." Comment to N.J.S.A. 59:10-3. Similarly, the discretionary defense provision authorizes the Attorney General to defend state employees in criminal cases or civil cases not seeking damages when a defense is "in the best interest of the State." N.J.S.A. 59:10A-3.

Both Lloyd and the University Provost provided Chasin with a copy of the Desert Storm Law. The Provost also urged the Professor to "read carefully the attached copy of the law." After noting that the University had opposed the Law and expressing sympathy for the Professor's position, the Provost stated that "as employees of the State of New Jersey we have an obligation to obey the laws enacted by the legislature. I hope that you will agree." In a letter to the University President dated October 25, 1991, Chasin asserted that her position was "consistent" with the Desert Storm Law. Her letter also said, "I do not believe the Legislature intended [to require the award of a grade without further testing] in writing this law. . . . The law specifically requires that the ...

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