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Nunez v. Pachman

October 14, 2009


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3901-08.

Per curiam.


Submitted September 23, 2009

Before Judges Fisher and Sapp-Peterson.

We are asked to determine whether plaintiff stated an actionable claim when he alleged a violation of his state constitutional right of privacy based on defendants' use of plaintiff's expunged criminal records at an employment grievance hearing. Because the judge mistakenly held defendants were privileged to reveal expunged information and because other questions surrounding the state constitutional right of privacy have not been sufficiently developed, we reverse.


In examining the issues raised on appeal, we start with an understanding of related federal trial and appellate proceedings, followed by this subsequent overlapping state court action and its disposition in the trial court.

On November 17, 2006, plaintiff filed a complaint in the United States District Court for the District of New Jersey. The record in that action, as explained in the district judge's written opinion, revealed that while employed by defendant City of Union City in 2005, plaintiff filed a grievance arising from the denial of a vacation request; the employment contract permitted arbitration. In preparation for the arbitration, defendant Martin Pachman, the city's attorney in the matter, interviewed various city employees and heard that plaintiff had pled guilty to a third-degree criminal offense several years earlier. This apparently prompted Pachman to obtain records of plaintiff's criminal history from the city's police department.

Precisely how the expunged conviction was used at the arbitration is not entirely clear.*fn1 We have not been provided with a transcript of the arbitration proceedings; indeed, for all we know, those proceedings may not have been recorded. As a result, obtaining an understanding of what occurred during the arbitration has been confounded by the fact that we have only the parties' deposition testimony and other sworn statements as to what occurred; these statements are not entirely consistent. For example, Pachman stated in a certification filed in support of the motion to dismiss that plaintiff testified on direct examination that he was "an honest man," which prompted Pachman during cross-examination to ask plaintiff "whether or not it was true that he had been convicted of a weapons offense in this state in order to debunk his claim of near sainthood." Defendants also appear to deny knowledge of the expungement order up to and at that time. On the other hand, plaintiff asserted that the arbitrator asked and Pachman acknowledged he was aware the conviction had been expunged. Because we are reviewing a dismissal based on Rule 4:6-2(e), we assume as true plaintiff's version and, therefore, assume the expunged conviction was used with knowledge of the expungement order.*fn2

In his federal complaint, plaintiff asserted that the disclosure of his expunged 1991 conviction violated both federal and state constitutional privacy principles. The district judge entered summary judgment in favor of defendants on July 30, 2008, holding that an individual "has no privacy interest in an expunged criminal record." The judge relied on Puricelli v. Borough of Morrisville, 820 F. Supp. 908, 917-18 (E.D. Pa. 1993), aff'd o.b., 26 F.3d 123 (3d Cir.), cert. denied, 513 U.S. 930, 115 S.Ct. 321, 130 L.Ed. 2d 282 (1994), where the district court held that an order requiring expungement does not create a constitutionally protected right of privacy in the expunged records of criminal convictions. The judge also relied upon Fraternal Order of Police, Lodge No. 5 v. City of Phila., 812 F.2d 105, 117 (3d Cir. 1987), which found the absence of a federal constitutional right of privacy in arrest records. Based on these authorities, the district judge granted summary judgment in favor of defendants.

The district judge, however, ruled only on the merits of plaintiff's federal constitutional claim, and, upon disposing of that claim, "decline[d] to exercise supplemental jurisdiction over [p]laintiff's remaining claims, all of which arise under New Jersey state law"; the state law claims were dismissed without prejudice to allow their further pursuit in state court.

Plaintiff filed a notice of appeal with the Court of Appeals for the Third Circuit on July 31, 2008, the day after summary judgment was entered. In his civil information statement, plaintiff identified the issues he intended to present to the court of appeals, including his claim that the district court should not have dismissed the state claims because "the interest of justice demanded . . . they be heard by the [f]ederal [c]court."

Despite arguing in the court of appeals that the state law claims belonged in federal court, plaintiff filed a complaint in the Law Division on August 4, 2008, a few days after the filing of the federal appeal. He alleged the same facts contained in his federal complaint and claimed damages based upon defendants' alleged failure to abide by N.J.S.A. 2C:52-30,*fn3 and upon defendants' alleged breach of plaintiff's state constitutional and common law rights of privacy. Plaintiff thereafter moved for a stay pending disposition of the federal appeal. Defendants responded by moving for dismissal for failure to state a claim upon which relief may be granted, pursuant to Rule 4:6-2(e). The trial judge denied the motion for a stay and granted the motion to dismiss; separate orders memorializing those determinations were entered on October 24, 2008.


Plaintiff appealed, seeking our review of the dismissal of his complaint. He argues that the use of the expunged information during the arbitration constituted a violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,*fn4 as well as his state constitutional and common law rights of privacy in those records. On August 26, 2009, after briefs were filed and shortly before this appeal's disposition date, the court of appeals affirmed the district court's grant of summary judgment, finding that plaintiff failed to demonstrate the existence of a federal constitutional right of privacy in the expunged criminal records. Nunez v. Pachman, __ F.3d __, __ (3d Cir. 2009) (slip op. at 3). The court of appeals did not disturb the district court's dismissal without prejudice of the state law claims.

In reviewing this matter, we consider: (a) the judge's disposition of the motion for a stay; (b) his application of the litigation privilege in dismissing plaintiff's complaint; and (c) whether the state constitution provides a ...

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