Judges Skillman, P.g. Levy and Lesemann.
The opinion of the court was delivered by: Lesemann, J.s.c. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Sussex County.
Defendants, Dennis O'Leary, the former Prosecutor of Sussex County, and William Geffken, the former Chief of Detectives of Sussex County, appeal pursuant to leave granted from a Law Division order denying their motion for summary judgment dismissing plaintiffs' malicious prosecution complaint against them. The complaint alleges that defendants had brought about the indictment of plaintiff Michael Curcio, a police officer for the Borough of Sussex (which is in Sussex County), on drug charges and charges of destruction of evidence, and that of plaintiff Mark Van Engelen, Chief of the Sussex Borough Police Department, for alleged complicity in the destruction of evidence. Plaintiffs charged that defendants obtained the indictment because Curcio had filed charges against patrons of a tavern known as Captain Bill's Bar, which was owned by William Morrison, a former client of O'Leary and an acquaintance of Geffken, and they wanted to protect and assist Morrison.
A primary issue (besides the question of whether defendants' actions constitute malicious prosecution) is whether the immunity granted by N.J.S.A. 59:3-8 (a part of the New Jersey Tort Claims Act) for "instituting or prosecuting" a judicial or administrative proceeding applies here, or whether it is rendered inapplicable by N.J.S.A. 59:3- 14, which says that no immunity applies where a public official's conduct "was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct."
We conclude that under the standards of Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995), summary judgment should have been granted since the evidence submitted was insufficient "to permit a rational fact finder" to conclude that O'Leary and Geffken had acted for improper motives; that at most plaintiffs demonstrated mistaken judgment by defendants, and that, accordingly, the complaint was properly dismissed.
O'Leary became Sussex County Prosecutor on February 1, 1991. In his deposition he acknowledged that when he assumed his position, he had limited criminal experience. Partly to compensate for that limitation, he appointed Geffken as his Chief of Detectives. O'Leary said he had regarded himself as a "lawyer" rather than a "cop," whereas Geffken had long experience as a State Police officer and would be regarded as a "cop" within the Prosecutor's office. *fn1
So far as appears, O'Leary's and Geffken's tenure was relatively smooth until January 10, 1992, when a melee broke out in Captain Bill's Bar in Sussex Borough. William Morrison, who owned the tavern, had been a client of O'Leary's before O'Leary became Prosecutor. Both said that O'Leary had performed some miscellaneous tasks for Morrison over the years, the last of which had been preparation of a deed in 1988. O'Leary, however, had continued as registered agent for Morrison's corporation after he became Prosecutor.
The incident at Captain Bill's was reported in the press and received considerable local attention. Police from other municipalities had assisted and Curcio had played a major role in the event. At one point he removed the liquor license from the wall and took it with him. In his deposition he indicated that he thought he had a right to do that, that such action was standard procedure, and that it would result in an immediate closing of the bar. He also testified that on the day after the raid, the Mayor of Sussex Borough told him to return the license.
On January 13, 1992, the Monday following the weekend raid, O'Leary convened a meeting with Geffken, Van Engelen and Curcio. According to the plaintiffs, O'Leary indicated that his office would follow-up on the Captain Bill's incident and the Borough Police Department, which consisted only of Chief Van Engelen and three officers (Curcio and two others), would not be required to do so.
Five days later, on January 18, 1992, O'Leary wrote a letter to the Mayor and Council of Sussex Borough, sending a copy to the local news media. In view of the claim that O'Leary's motivation throughout was to assist Morrison, it is worth reproducing that letter in its entirety:
"January 18, 1992 Mayor Peter Horvath & Council Sussex Borough Municipal Building 2 Main Street Sussex, NJ 07461
The incidents which occurred at Captain Bill's Tavern on January 10, 1992 are reprehensible and demand the strongest action on your part. When the situation reaches the point where police are physically thrown out of a bar when attempted [sic] to enforce the law, it is time for the authorities to take immediate action. I am advised by the local police that this is a common occurrence and I am sure you agree with me that this should be brought to an immediate halt.
The attitude, as articulated by one of the bartenders that the police do not run the town, "We do" is disturbing and perhaps best sums up not only the philosophy of the lawless element which apparently hangs out in this establishment but also is the best reason for the Mayor and Council to take the swiftest and sternest possible action. I enclose a copies of relative portions of police reports of recent incidents for your review.
In addition, members of my office faced an angry and intoxicated mob in Captain Bill's about three weeks ago when they went in to make a drug arrest.
Clearly a major problem in Sussex Borough is an inordinate use of alcohol and drugs. This must end now! It is clear that drastic measures have to be taken to "retake" the borough from the lawless element that has established such a strong presence in the community. I intend to begin a concerted campaign by law enforcement to this end. I am sure the responsible citizens of Sussex Borough support this and I trust we will have your cooperation and assistance.
I am committed to this end and I am sure you share this commitment with me. A first step in that direction is by the Mayor and Council imposing a substantial ...