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Loigman v. Township Committee of the Township of Middletown in the County of Monmouth

January 18, 2006

LARRY S. LOIGMAN, PLAINTIFF-RESPONDENT,
v.
THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MIDDLETOWN IN THE COUNTY OF MONMOUTH, NEW JERSEY AND THOMAS J. SAVAGE, ESQ., DEFENDANTS-APPELLANTS, AND SAUNDER WEINSTEIN AND WILLIAM F. DOWD, ESQ., DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(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).

In this appeal, the Court must determine whether the litigation privilege shields a lawyer from a civil suit filed under 42 U.S.C.A. § 1983 charging him with the improper use of a sequestration motion to exclude a spectator from a public hearing.

The case begins with a civil service appeal filed by a Middletown Township Police officer with the Merit System Board claiming that the Township wrongly denied him promotion to the Chief of Police. The appeal was transferred to the Office of Administrative Law (OAL), where an Administrative Law Judge (ALJ) conducted hearings over twenty-three days.

On March 25, 1999, the first day of the hearing, the ALJ granted the officer's motion to sequester all witnesses in the case with the exception of those who were helping Thomas J. Savage, Esq., the Township's special counsel, with the presentation of his case. Savage requested that plaintiff, Larry Loigman, Esq., who was also present, be excused as a potential witness. Loigman is a self-described watchdog and community activist in Middletown. Savage contended that Loigman might be called during the Township's defense or rebuttal case, although Loigman had not been listed as a witness or subpoenaed by either party. The ALJ reserved his decision and asked Savage to provide a summary of Loigman's expected testimony.

The following day, Savage renewed his sequestration motion and asked permission to amend the Township's answers to interrogatories to include Loigman as a potential witness. Savage maintained that Loigman, who had been a candidate for Township office, had information bearing on the officer's retaliation claim. Based on those representations, the ALJ ordered that Loigman be sequestered.

Loigman denied that he was a witness and stated that he had never received a subpoena. He submitted that he would not respond to a subpoena issued by Savage and that the Township would have to go to Superior Court to enforce it. Loigman insisted he had no relevant information, that Savage's representations were untrue, and that he had no intention of testifying. The ALJ voiced his belief that he was powerless to enforce his sequestration order. In defiance of the order, Loigman continued to attend the hearings.

Five months later, the ALJ confirmed in a written order his sequestration ruling and his belief that he lacked authority to enforce it. A day before the entry of that order, Loigman appeared in the public gallery of the hearing room. Savage asked the ALJ to direct Loigman to leave and, if he did not comply, to adjourn the hearing to permit Savage to obtain a Superior Court order enforcing the sequestration ruling. In the face of that threat, which would have meant delaying the proceedings, Loigman voluntarily withdrew.

Several days later, in a letter to the Department of Personnel, the Agency conducting the hearing, Loigman requested an interlocutory review of the sequestration order. The Commissioner denied the request, and the Appellate Division denied Loigman's motion for leave to appeal.

Unbowed by these rulings, Loigman continued to attend the hearings. Savage never sought to enforce the sequestration order in the Superior Court and never called Loigman as a witness.

In January 2000, Loigman filed a five-count verified complaint in lieu of prerogative writs in the Superior Court, Law Division, against Savage, the Township, and others. The first four counts, which are not relevant to this appeal, were dismissed. The fifth count named only Savage and the Township as defendants and constitutes Loigman's § 1983 claim. It alleges that Savage, acting with the purported authority of an officer of the Township, filed a spurious sequestration motion, causing him to be deprived of his First Amendment right to attend a public court hearing.

In moving for summary judgment, defendants argued that a lawyer's motion to sequester a witness, even if motivated by ill will and supported by misrepresentations, falls within the litigation privilege, rendering Savage and the Township immune from civil suit. The trial court denied the motion, holding that "intentional lying" to a tribunal to exclude a person from a public proceeding was a deprivation of a constitutional right and not privileged conduct. After a three-day trial, a jury found in favor of Loigman, concluding that the substantial motivating factor behind Savage's sequestration motion was to deny Loigman his First Amendment right to attend a public proceeding and that Savage was acting as a policymaker for the Township. The jury also found that Loigman suffered no damages and therefore gave him no monetary award. Based on the jury's verdict, the trial court granted Loigman's motion to permanently enjoin Savage and the Township from interfering with Loigman's right to attend future public hearings. The court also determined Loigman was a prevailing party pursuant to 42 U.S.C.A. § 1988(b) and awarded him attorney's fees.

The Appellate Division affirmed the trial court in an unpublished per curiam opinion. The panel held that the litigation privilege did not insulate defendants from Savage's misrepresentations and intentional misuse of the sequestration motion. The panel concluded that Savage was a policymaker, reasoning that the Township made him its counsel, and that he had exclusive authority to make all decisions in the matter.

The Supreme Court granted the Township's petition for certification.

HELD: The litigation privilege protects Savage and the Township from being haled into a civil court to face a damages judgment as a result of Savage's sequestration motion. In addition, Savage's role as special counsel for the Township at the administrative hearing did not transform him into a municipal "policymaker" under § 1983.

1. Savage and the Township claim that the litigation privilege provides them with the shelter of absolute immunity from suit under § 1983. The U.S. Supreme Court has established that immunities to prosecution under § 1983 are to be read in harmony with common-law principles of immunities and defenses. Thus, the first step is to determine whether the litigation privilege was recognized in tort actions at common law when the legislation was enacted in 1871. The second step is to decide whether § 1983's history or purposes nonetheless counsel against recognizing the same immunity. (pp. 10-13)

2. The litigation privilege has deep roots in the common law, dating back to medieval England. The privilege also found expression in the early common law of this country, and has long been embedded in New Jersey's jurisprudence. The Court is persuaded that the litigation privilege was firmly rooted in the common law as of 1871. (pp. 13-15)

3. The U.S. Supreme Court has accorded absolute immunity to judges, prosecutors, and witnesses in § 1983 actions. In all three categories, such immunity was well-established in the common law. The common law thread that runs through such immunity is the need to ensure that participants in the judicial process act without fear of the threat of ruinous civil litigation when performing their respective functions. Such immunity is for the benefit of the public. Judges and prosecutors are granted immunity so that they can perform their duties independently and without fear of consequences. Immunity is conferred on witnesses for the purpose of advancing the truth-seeking function of the judicial process. The threat of future civil litigation might make such witnesses reluctant to come forward and might cause their testimony to be distorted. (pp. 15-18)

4. The arguments arrayed in favor of judicial, prosecutorial, and witness immunity in § 1983 actions apply with equal force to the litigation privilege. Like judicial, prosecutorial, and witness immunity, the litigation privilege is essential for the proper functioning of our criminal and civil justice systems and is not at odds with the history and purposes of § 1983. In New Jersey, the litigation privilege protects attorneys not only from defamation actions, but also from a host of other tort-related claims. The Court can find nothing in the history and purposes of § 1983 that would lead to the conclusion that the privilege should not apply in federal civil rights cases. (pp. 18-22)

5. The next question is whether an attorney's sequestration motion falls within the protective sphere of the litigation privilege. The privilege shields any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other authorized participants; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. Courts have extended the reach of the privilege even to statements made by attorneys outside the courtroom that are related to the litigation. If such statements are protected by the privilege, a motion to sequester a witness made inside the courtroom similarly must be protected. The Township, as a party, is entitled to the same protection under the privilege as Savage, its representative. The Court does not in any way condone Savage's conduct, if in fact he used the sequestration motion as a pretext to remove Loigman from the courtroom, as the jury believed. Nonetheless, Loigman did have other possible forms of relief. He could have demanded that Savage enforce the order in Superior Court and there raised his First Amendment claim. Loigman also was free to file an ethics complaint against Savage. An attorney who falsely represents to a court or tribunal his intent to call a witness as a pretext for excluding that person from a courtroom violates the Rules of Professional Conduct and is subject to discipline. (pp. 18-29)

6. For the purpose of providing guidance, the Court addresses Loigman's argument that, under § 1983, Savage acted as a "policymaker" as the Township's special counsel. A municipality may be liable under § 1983 for the acts or decisions of one of its "policymakers," provided the acts or decisions may fairly be said to represent official policy. However, the municipality is liable only for acts which it has officially sanctioned or ordered, and for acts of those officials who have final policymaking authority. By hiring Savage to represent it in litigation, the Township did not transform him into an official with final policymaking authority. And, a trial lawyer's decision to make a mundane sequestration motion is hardly the type of decision that reflects an officially sanctioned municipal policy. It is clear that Savage was not a municipal "policymaker" for § 1983 purposes. (pp. 29-33)

The judgment of the Appellate division is REVERSED and the matter is REMANDED to the trial court for the entry of a judgment dismissing the § 1983 complaint and the injunction against defendants.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, WALLACE, and RIVERA-SOTO join in JUSTICE ALBIN's opinion.

The opinion of the court was delivered by: Justice Albin

Argued October 12, 2005

In this appeal, we must determine whether the litigation privilege shields a lawyer from a civil suit charging him with the improper use of a sequestration motion to exclude a spectator from a public hearing. Plaintiff Larry Loigman, Esq. filed a federal civil rights lawsuit under 42 U.S.C.A. § 1983, alleging that defendants Thomas J. Savage, Esq.*fn1 and the Township of Middletown (Township) violated his First Amendment right to attend an administrative law hearing. The gist of the lawsuit is that Savage, the Township's specially retained labor attorney, persuaded the Administrative Law Judge to enter a sequestration order barring Loigman from the courtroom by pretending that Loigman was a potential witness in the case. In a jury trial on the § 1983 action, Loigman obtained a judgment against Savage and the Township. Both the trial court and Appellate Division rejected defendants' claim that Savage's request for a sequestration order was protected by the litigation privilege, thereby giving defendants absolute immunity from a § 1983 lawsuit. In addition, both courts determined that, under § 1983, Savage was acting as a "policymaker" in his capacity as the Township's lawyer in the case, thus making the Township vicariously liable for Savage's violation of Loigman's rights.

We now reverse. We hold that the litigation privilege protects Savage and the Township from being haled into a civil court to face a damages judgment as a result of Savage's sequestration motion. We also hold that Savage's role as special counsel for the Township at the administrative hearing did not transform him into a municipal "policymaker" under § 1983.

I.

A.

Our case begins with a civil service appeal filed by Robert Oches, a Middletown Township police officer who claimed that the Township wrongly ...


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