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Yurick v. State

June 22, 2005


On appeal from the Superior Court, Appellate Division.


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This is an unusual case. It involves claims by a former county prosecutor that the Governor and Attorney General violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, when they exercised their statutory power to supersede him as prosecutor. The prosecutor also claims that County Freeholders similarly violated CEPA when they underfunded his budget.

Andrew N. Yurick, II, was nominated Gloucester County Prosecutor in 1997 by then-Governor Christine Todd Whitman and was confirmed by the State Senate. Yurick's five-year term ended on January 31, 2002.

On February 1, 2002, Governor McGreevey sent a letter to Attorney General David Samson requesting that, pursuant to N.J.S.A. 52:17B-106, the Attorney General supersede the Gloucester County Prosecutor for the purpose of prosecuting all of the criminal business of the State in Gloucester County. In the letter, Governor McGreevey stated that Yurick's removal was necessary because a January 2002 audit identified a series of deficiencies in the management of the office and raised concerns about the integrity of the criminal justice system in that county.

Attorney General Samson superseded Yurick as the Prosecutor of Gloucester County that day. In written notice to Yurick, Samson stated that the supersedure was ordered pursuant to a written request by the Governor, and added that both Samson and the Governor were sufficiently concerned about the integrity of the criminal justice system that, in order to maintain the public's confidence and ensure the continued efficient functioning of the prosecutor's office, the supersedure was necessary.

In September 2002, Yurick filed this action against the State, McGreevey, Samson, and the Gloucester County Board of Freeholders, asserting violations of CEPA and his federal constitutional rights under 42 USCA §§ 1983 and 1985. Yurick claimed that he was the subject of retaliatory acts by the defendants. Specifically, Yurick alleged that the Freeholders retaliated against him and his office because of political affiliation, his investigation into alleged corruption and other wrongdoing by individuals connected to the Freeholders, and his objection to interference by the Freeholders. The retaliatory actions allegedly taken by the Freeholders included refusing to approve essential budgetary items and reducing the salaries of employees within Yurick's office. In respect of the State defendants, the complaint alleged that they interfered with the independent powers, duties and functions of Yurick as the county prosecutor and they did not comply with the strict requirements for duly appointing a successor for his office.

In lieu of filing an answer, both the State and the Freeholders moved to dismiss the complaint with prejudice. The trial court granted the motions, holding that the complaint failed to state a claim. The trial court concluded that CEPA was not intended to protect an employee of Yurick's status because a prosecutor is not the sort of employee who was in fear of losing his position or who is especially vulnerable.

A majority of the Appellate Division affirmed the dismissal of Yurick's federal claims, but reversed the dismissal of the CEPA claims. Citing CEPA's purpose to provide a broad protection against employer retaliation for employees who act in the public interest, the Court found no basis to conclude that the Legislature intended to preclude a CEPA action brought by a county prosecutor.

Judge Hoens dissented. She found that Yurick was not within the class of people that CEPA was designed to protect and, in any event, Yurick failed to state a cognizable claim. Among other problems with Yurick's claims, the dissent found that they related to personal wrongs unrelated to any concern for the public good. The dissent characterized Yurick's claims as personal dissatisfaction with a funding decision entrusted by statute to the Freeholders and a choice to supersede that, in the final analysis, was the Governor's to make.

Defendants appealed as of right on the CEPA claims based on the dissent.

HELD: Yurick has failed to state a claim because the specific facts alleged here do not include the type of retaliatory action that was made actionable by CEPA.

1. The purpose of CEPA is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct. To establish a prima facie cause of action under CEPA, a plaintiff must demonstrate a reasonable belief that the employer's conduct violated either a law or regulation or a clear mandate of public policy; he or she performed a "whistle-blowing" activity; an adverse employment action was taken against him or her; and a causal connection exists between the whistle-blowing activity and the adverse action. (pp. 8-10)

2. In New Jersey, county prosecutors are vested with broad discretionary powers, including the authority to use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws. Nonetheless, the county prosecutor's law enforcement function remains at all times subject to the supervision and supersession power of the State. The Attorney General is authorized to maintain general supervision over county prosecutors with a view to obtaining effective and uniform enforcement of the criminal laws throughout the State. The general supervision power permits the Attorney General, in the best interests of the State, to participate in, initiate, or supersede a county prosecutor in respect of any investigation, criminal action or proceeding. And, whenever requested in writing by the Governor, the Attorney General is required to supersede the county prosecutor. N.J.S.A. 52:17B-106. (pp. 10-12)

3. In respect of the county prosecutor's relationship with county officials, the county prosecutor's law enforcement function is unsupervised by county government or any other agency of local government. However, the county exercises considerable control over the fiscal operations of the county prosecutor's office, including appropriation of funds expended by the county prosecutor for staff salaries and in investigating and prosecuting crime. (p. 12)

4. Yurick attempts to characterize the inadequacies of the budget enacted for his office by the county freeholders as the equivalent of retaliatory action under CEPA. If the county's proposed funding of the budget is not satisfactory to the prosecutor, the Legislature provided a mechanism to bring an independent arbiter into the process -- the assignment judge of the vicinage. N.J.S.A. 2A:158-7. The statute commits to the assignment judge the authority to see to it that the needs of the county prosecutor are met if they are not provided for by the freeholders. Here, Yurick did not complete that process. In the face of Yurick's abandonment of the legislatively created budget process, the Court cannot conclude that he has pled a prima facie claim of retaliatory action under CEPA. The Court rejects Yurick's contention that the inadequacy in his budget, untested by an application before a neutral assignment judge, constitutes a claim of retaliatory action. That core factual failing dooms Yurick's CEPA cause of action against the County Freeholders. (pp. 12-15)

5. The Court does not regard the act of supersession, accomplished pursuant to a legislative process involving the Governor and the Attorney General at the expiration of Yurick's five-year term of office, to be a wrong cognizable under CEPA. Yurick may have hoped to remain as a holdover officer in charge of the operation of his office at the conclusion of his five-year term, but he had no reasonable expectation that he would be permitted to do so. Supersession must occur when the Governor requests it, and the Governor has wide discretion in the exercise of that power. The Court refuses to equate the fact that the Attorney General took over operation of the Gloucester County Prosecutor's Office at the expiration of the prosecutor's term of office with retaliatory action constituting an element in a CEPA cause of action. (pp. 15-17)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED for REINSTATEMENT of judgment for defendants.


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