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Stomel v. City of Camden

July 25, 2007; as amended August 1, 2007

ELLIOT S. STOMEL, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
THE CITY OF CAMDEN, GWENDOLYN FAISON AND THE CAMDEN CITY COUNCIL, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS, AND MAYOR MILTON MILAN AND JOHN DOE(S) 1-10, INDIVIDUALLY, JOINTLY AND/OR IN THE ALTERNATIVE, DEFENDANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 383 N.J. Super. 615 (2006).

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).

The issues in this appeal are whether a municipality may be held vicariously liable under 42 U.S.C.A. § 1983 for the mayor's removal of a municipal public defender; and whether this municipal public defender may be an "employee" of the City of Camden for purposes of advancing a claim under New Jersey's Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.

Plaintiff Elliot Stomel was the public defender for the City from 1982 through 1999, typically under one-year contracts. The last contract provided for services to be rendered through October 31, 1998, at an annual rate of $30,000 paid in monthly installments. The contract was signed by then-Mayor Milton Milan and approved by City Council. Stomel continued to provide services under the terms of that contract until he was removed from office on December 17, 1999.

During the fall of 1997, Camden Municipal Prosecutor Joseph Caruso allegedly threatened that Stomel's reappointment as municipal public defender could not be guaranteed unless Stomel "contributed" $5,000 to Milan's re-election campaign. Stomel reported the incident to the Camden County Prosecutor's Office and to the Office of the United States Attorney. At the direction of the County Prosecutor's Office, Stomel paid the $5,000 contribution. He was then reappointed as municipal public defender for the 1997-98 contract period. A federal investigation ensued and Caruso was indicted. On December 7, 1999, at Caruso's criminal trial, Stomel appeared as a government witness. His testimony directly implicated Milan. On December 14, a mistrial was declared. Three days later, Milan sent a letter advising Stomel that he was being replaced by another lawyer effective January 3, 2000, pending final approval by City Council.

On December 28, 1999, Stomel filed a complaint against the City, Mayor Milan, and City Council alleging that he was terminated from his position in violation of CEPA, in retaliation for his cooperation and testimony in the Caruso criminal case.On December 29, the Law Division temporarily restrained the City and Milan from appointing a new public defender. In January 2000, the court lifted the retraining order, allowing the City to appoint another public defender but permitting Stomel to represent the clients already assigned to him. In February 2000, Milan's appointee for municipal public defender was not approved by City Council. In December 2000, Gwendolyn Faison replaced Milan as Mayor. With Council approval, Mayor Faison appointed a new public defender in March 2001.

In April 2001, Stomel filed an amended complaint, naming Mayor Faison as a defendant and adding a claim under 42 U.S.C.A. § 1983. The Law Division dismissed Stomel's CEPA claims, finding that Stomel was not a City "employee" within the meaning of CEPA. The court also dismissed the § 1983 claims against Mayor Faison, the City and City Council, determining that the City was not vicariously liable for Milan's actions because Milan was not the "final decision-maker or policy-maker with regard to the municipal public defender position." Thus, only Stomel's § 1983 claim against Milan, in Milan's personal capacity, went to trial.

The Appellate Division affirmed the dismissal of the § 1983 claim against the City. 383 N.J. Super. 615 (App. Div. 2006). The panel reversed on the CEPA issue, however, finding that Stomel was an "employee" for CEPA purposes. The Supreme Court granted the parties' cross-petitions for certification. The opinion of the court was delivered by: Justice LaVECCHIA

Argued January 4, 2007

In December 1999, plaintiff Elliot Stomel, the municipal public defender for the City of Camden (City), testified as a witness for the United States Government in the political corruption trial of Camden's municipal prosecutor, Joseph Caruso. His testimony against Caruso implicated Camden's mayor, Milton Milan, in unlawful activity. The prosecution's case ended in a mistrial and, three days later, Mayor Milan informed Stomel in writing that he was being removed as Camden's municipal public defender after more than seventeen years of service. Stomel responded by filing two claims against the City. First, he alleged that he was removed from his position as municipal public defender in retaliation for "whistleblowing" contrary to New Jersey's Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. He also filed a claim under 42 U.S.C.A. § 1983, alleging that he was removed from office in violation of his First Amendment rights under the United States Constitution.

The Appellate Division held that Stomel was an "employee" for purposes of advancing a claim under CEPA and reversed the entry of summary judgment in favor of the City on that claim. We agree and affirm the panel's judgment in respect of Stomel's CEPA claim. The panel also held, however, that the City could not be held vicariously liable for Milan's actions on the § 1983 claim. We disagree and, on that part of the panel's judgment, we reverse.

I.

Stomel served part-time as Camden's municipal public defender from 1982 until 1999. After his initial appointment in 1982, he was reappointed annually through October 31, 1998. Written agreements between Stomel and the City were anything but consistent. For seven of his seventeen years, Stomel worked under one-year contracts. The remainder of those years was served without a new one-year contract, during which time Stomel continued under the terms and with the salary of his most recently expired annual contract. During the years when new contracts were negotiated, Stomel arranged the compensation terms with the municipal court's administrator through the submission of a request for approval that would result in the monthly rate to be paid for his municipal public defender services. For the entirety of his seventeen years as public defender, Stomel was paid a flat amount, monthly, for the representation of indigent defendants that he undertook for the City.

Stomel's last contract with the City provided for municipal public defender legal services to be rendered for the period November 1, 1997, though October 31, 1998, during which he was compensated at an annual rate of $30,000 paid in monthly installments. The contract was signed by Milan and approved by the City Council. Stomel continued to provide public defender services under the terms of that contract until he was removed from office on December 17, 1999.*fn1

During the Fall of 1997, Camden Municipal Prosecutor Joseph Caruso solicited a contribution from Stomel on behalf of Mayor Milan. According to Stomel, Caruso threatened that he could not guarantee Stomel's reappointment as municipal public defender unless he "contributed" $5,000 to Milan's re-election campaign. Stomel reported the incident to the Camden County Prosecutor's Office and to the Office of the United States Attorney. At the direction of the Camden County Prosecutor's Office, Stomel paid the $5,000 contribution and was reappointed as municipal public defender for the 1997-98 contractual period.

A federal investigation followed, resulting in Caruso's indictment. At Caruso's criminal trial, Stomel appeared as a government witness on December 7, 1999, and his testimony directly implicated Mayor Milan. On December 17, 1999, three days after a mistrial was declared, Milan sent a letter to Stomel advising that he was being replaced by another lawyer, who would be appointed as Camden's municipal public defender effective January 3, 2000, pending final approval by the City Council. See N.J.S.A. 40:69A-36(b) (providing municipal council with "advice and consent" power).

On December 28, 1999, Stomel filed a verified complaint and order to show cause against the City, Mayor Milan, and the City Council. The complaint alleged that Stomel was terminated from his position as municipal public defender for cooperating with investigators and testifying in Caruso's trial, in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. On December 29, 1999, the Law Division temporarily enjoined Mayor Milan and the City from appointing a new public defender. In a hearing on January 12, 2000, however, the trial court lifted the restraining order and permitted the City to appoint another public defender, but also ordered that Stomel could continue to represent the indigent public defender clients already assigned to him. Thereafter, on February 10, 2000, the Mayor's appointee for municipal public defender was not approved by the City Council. Milan was replaced as mayor by Gwendolyn Faison in December 2000. With Council approval, Mayor Faison appointed Frank Fontanez as the City's new municipal public defender in March 2001.

In April 2001 Stomel filed an amended complaint, naming Mayor Faison as a defendant, and adding a claim under 42 U.S.C.A. § 1983.*fn2 Following defendants' motion for summary judgment, the Law Division dismissed Stomel's CEPA claims, concluding that Stomel was not an "employee" of the City within the meaning of the statute. The trial court also dismissed Stomel's § 1983 claims against Mayor Faison, the City, and the City Council. In dismissing the § 1983 claim against the City, the court determined that the City was not vicariously liable for the actions of Mayor Milan because Milan was "not the final decision-maker or policy-maker with regard to the Municipal Public Defender position." As a result, only Stomel's § 1983 action against Mayor Milan, in his personal capacity, went to trial. On that claim, a jury awarded Stomel $316,465 in damages.

On appeal, the Appellate Division affirmed the dismissal of Stomel's § 1983 action against the City. Stomel v. City of Camden, 383 N.J. Super. 615, 633 (App. Div. 2006).*fn3 The panel reversed on the CEPA issue, however, finding that Stomel was an "employee" for CEPA purposes. Id. at 637. The parties filed cross-petitions for certification, which we granted. 188 N.J. 491 (2006).

II.

A.

We turn first to the viability of Stomel's § 1983 action against the City of Camden. Section 1983 sanctions civil claims against any state official who, acting under the color of state law, deprives any other individual of any right secured by the Constitution or laws of the United States. 42 U.S.C.A. § 1983. Although § 1983 does not create substantive rights, it serves as an important vehicle for the vindication of violations of ...


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