On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-9164-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and Waugh.
Defendant City of Camden appeals a judgment in favor of plaintiff Elliot S. Stomel on claims that his termination as a part-time municipal public defender in Camden violated 42 U.S.C. § 1983 and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Defendant Milton Milan, formerly the mayor of Camden, appeals the denial of his motion for leave to file cross-claims against Camden with respect to the judgment previously entered on Stomel's § 1983 claim against him.*fn1 We affirm.
The following factual and procedural background informs our decision on these appeals.
The factual background relevant to this appeal was set forth in the Supreme Court's opinion, Stomel v. City of Camden, 192 N.J. 137 (2007) (Stomel II), affirming in part and reversing in part our earlier opinion with respect to this controversy, Stomel v. City of Camden, 383 N.J. Super. 615 (App. Div. 2006) (Stomel 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.
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, N.J.S.A. 34:19-1 to -8. [Stomel also alleged that the defendants acted in violation of 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.] 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. [Stomel II, supra, 192 N.J. at 142-44 (footnote omitted).]
Following a period for discovery, the defendants moved for summary judgment. In October 2002, the Law Division dismissed all of Stomel's claims against Camden, as well as his CEPA claim against Milan. In June 2004, following a three-day trial, a jury found in Stomel's favor on his § 1983 claim against Milan, awarding him $30,000 in compensatory damages and $60,000 in punitive damages. With prejudgment interest, attorneys' fees, and costs, the entire amount of the judgment was $316,464.89. The trial judge denied Stomel's post-trial motion seeking to compel Camden to pay the judgment against Milan, who was incarcerated on unrelated charges at the time. Stomel then filed his first appeal.
We reversed the trial court's determination that Stomel was not an employee for the purposes of CEPA, Stomel I, supra, 383 N.J. Super. at 633-37, but affirmed the determination that there was no viable § 1983 claim against Camden, id. at 626-33. We also affirmed the trial judge's denial of Stomel's motion seeking to make Camden responsible for the payment of the judgment against Milan on theories of agency and vicarious liability. Id. at 637-38. Finally, we affirmed the trial judge's refusal to award counsel fees on the dismissed CEPA claim to Camden, as to which issue Camden had filed a cross-appeal. Id. at 638.
The Supreme Court granted the parties' cross-petitions for certification. 188 N.J. 491 (2006). The Court affirmed our reversal with respect to the CEPA claim, Stomel II, supra, 192 N.J. at 153-56, but reversed our affirmance with respect to dismissal of the § 1983 claim against Camden, id. at 144-53.
The case was returned to the trial court for disposition of Stomel's CEPA claim against Milan and his CEPA and § 1983 claims against Camden. On remand, Milan moved for leave to amend his answer to assert cross-claims against Camden. The motion was denied in January 2008.
Stomel then moved for summary judgment on his claims against Camden. In February 2008, the motion judge granted summary judgment on Stomel's CEPA and § 1983 claims against Camden. Because the judge concluded that the compensatory damage award against Milan at the earlier trial had already established the appropriate measure of such damages on Stomel's claims against Camden, he entered judgment against Camden in the amount of $256,464.89, excluding the amount of previously awarded punitive damages and reserving that issue for trial. The resulting order also reflected Stomel's voluntary dismissal, with prejudice, of his ...