February 23, 2011
PATROL OFFICER JONATHAN GILES, PLAINTIFF-APPELLANT, AND SERGEANT JAMES FINNEGAN, PLAINTIFF,
NEW JERSEY TRANSIT CORPORATION AND
NEW JERSEY TRANSIT POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Essex County, Law Division, Docket No. L-8226-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 15, 2010
Before Judges R. B. Coleman and J. N. Harris.
New Jersey Transit Patrol Officer Jonathan Giles appeals from the February 27, 2009, order dismissing his verified complaint in lieu of prerogative writs with temporary restraints filed against defendants New Jersey Transit Police Department (NJTPD), a division of the New Jersey Transit Corporation. We affirm the dismissal.
On August 7, 2007, plaintiff Giles, along with other officers of the
NJTPD, were involved in an on-duty arrest of Donald Brady*fn1
and Jamal Pittman (the incident). As a result of the
encounter, on August 9, 2007, Brady filed a civilian complaint with
the Internal Affairs Division (Internal Affairs or IAD) of the NJTPD
against the officers alleging that he was the victim of a robbery in
Hoboken, New Jersey, and was wrongfully arrested by both NJTPD
officers and Hoboken police officers.
On August 10, 2007, Maureen Scianimanico, Senior Investigator (the investigator) in Internal Affairs, was assigned by Captain Edward Iandoli to investigate the complaint filed by Brady. On August 23, 2007, Giles was notified by Internal Affairs that he was the "subject officer" of the Brady civilian complaint. On August 27, 2007, Scianimanico interviewed Brady concerning the civilian complaint and subsequently met with Iandoli and other members of the Detective Bureau who had commenced an investigation of the incident. The meeting concluded in a determination that the Detective Bureau would continue a criminal investigation regarding the allegations raised by Brady. On August 30, 2007, the Internal Affairs investigation was suspended pending the criminal investigation of the officers by the Detective Bureau and court action or other resolution.
By letter dated February 5, 2008, Internal Affairs requested that the Office of Hudson County Prosecutor (Prosecutor) conduct a concurrent criminal review of any potential criminal conduct on the part of the arresting officers involved in the Brady/Pittman matter. On February 13, 2008, the Prosecutor issued a declination letter to Internal Affairs advising that no criminal charges would be sought in the matter against Giles.
In the interim, the Brady/Pittman dispute was removed from Hoboken Municipal Court to Secaucus Municipal Court, where Internal Affairs monitored the pre-trial and trial proceedings from January 29, 2008 through June 18, 2008. The Brady trial commenced on May 20, 2008, and continued until June 18, 2008, when the court dismissed the charge of simple assault, but found him guilty of disorderly conduct. The investigator certified that she personally attended the Brady court proceedings on January 29, February 11 and 13, March 25, May 20 and June 18, 2008.
After the conclusion of the Brady municipal court proceedings, the investigator and Internal Affairs continued their investigation. Giles was interviewed on July 8, 2008, and by July 17, 2008, interviews of all other officers, subjects and witnesses involved in the incident were completed. On August 6, 2008, Internal Affairs concluded its administrative investigation by exonerating two of the officers under review and forwarding on August 19, 2008, to Chief of Police Joseph Bober the investigative report which recommended that the case be reviewed for appropriate disciplinary action against Giles and Sergeant James Finnegan. On August 26, 2008, a formal disciplinary charge of Unsatisfactory Performance was filed against Giles, in violation of Patrol Guide Rules and Regulations, Section 7.12.
It is from this charge that Giles filed his complaint*fn2
in lieu of prerogative writs with temporary restraints in the
Law Division, Essex County. The complaint asserts (1) the
disciplinary action taken against him was in violation of the
forty-five day provision of N.J.S.A. 27:25-15.1c and N.J.S.A.
40A:14-181, the Attorney General's Internal Affairs Guidelines and
Procedures; and (2) the alleged delay in filing the disciplinary
action was in violation of the New Jersey State Constitution. On
February 27, 2009, Judge Michael R. Casale dismissed the complaint and
ruled that (1) judicial review "for contesting State administrative
agency action is the Appellate Division"; and (2) Giles must exhaust
his administrative remedies pursuant to Rule 2:2-3(a)(2), with final
action taken by an agency as to the disciplinary complaint before he
may appeal under Rule 2:2-3. Moreover, the trial court held that
"there is no jurisdiction here to handle this matter by way of a
verified complaint and an order to show cause," but if there was
jurisdiction, the judge would be inclined to dismiss even on a
substantive basis for Giles' failure to meet the standard under Crowe
v. De Gioia, 90 N.J. 126 (1982). We agree with the holdings of Judge
Rule 2:2-3(a) describes appeals allowed as of right to the Appellate Division. Such appeals may be taken:
(1) from final judgments of the Superior Court trial divisions, or the judges thereof sitting as statutory agents; the Tax Court; and in summary contempt proceedings in all trial courts except municipal courts;
(2) to review final decisions or actions of any state administrative agency or officer, and to review the validity of any rule promulgated by such agency or officer excepting matters prescribed by R. 8:2 (tax matters) and matters governed by R. 4:74-8 (Wage Collection Section appeals), except that review pursuant to this subparagraph shall not be maintainable so long as there is available a right of review before any administrative agency or officer, unless the interest of justice requires otherwise;
(3) in such cases as are provided by law.
An appeal to review the action or inaction of a local administrative agency is by complaint in lieu of prerogative writs in the Law Division. R. 4:69-1. But NJTPD is a state agency, and an appeal to review the action or inaction of a state agency goes to the Appellate Division. R. 2:2-3(a)(2). See Selobyt v. Keough-Dwyer Corr. Facility, 375 N.J. Super. 91, 95 (App. Div. 2005) (citing Cent. R.R. Co. of N.J. v. Neeld, 26 N.J. 172, cert. denied, 357 U.S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371 (1958)); Dolan v. City of E. Orange, 287 N.J. Super. 136, 142 (App. Div. 1996).
In dismissing Giles' complaint, the trial judge found that:
[T]he proper forum here is the Appellate Division pursuant to Rule 4:69-1 and Rule 2:2-3A . . . [a]nd this . . . case concerns administrative action by New Jersey Transit. Police chief needs to make a final assessment after the hearing, any review must then come at the Appellate Division after final agency action. Thus, this matter is not justiciable in the Law Division. Plaintiff's verified complaint and order to show cause should be denied.
On rare occasions, a decision of a state agency with statewide jurisdiction is better reviewed in the trial court. See Infinity Broad. Corp. v. N.J. Meadowlands Comm'n, 187 N.J. 212, 225 (2006). Limited exceptions exist to appellate review of state administrative agency's pursuant to Rule 2:2-3(a)(2). For example: (1) where it is necessary to develop a record before there can be meaningful review, then the appeal should be in the Law Division, Infinity, supra, 187 N.J. at 225; (2) where the ordinary rules on allocation of jurisdiction within the Superior Court would result in separate courts hearing parts of the same controversy, then it is better to assign responsibility to one tribunal, Pascucci v. Vagott, 71 N.J. 40, 53-54 (1976); and (3) where it is an action for access to information under the Open Public Records Act, N.J.S.A. 47:1A-1, review is in the Law Division because of the need for trial and fact-finding, Hartz Mountain Indus. Inc. v. N.J. Sports & Exposition Auth., 369 N.J. Super. 175, 183 (App. Div.), certif. denied, 182 N.J. 147 (2004).
Giles' action does not fall into any recognized exception to Rule 2:2-3(a)(2). The action commenced by Giles seeks judicial review of an administrative charge brought against a police officer for an alleged violation of departmental rules. As noted in Pressler and Verniero, Current N.J. Court Rules, comment 3.2.1 on R. 2:2-3(a)(2) (2011):
The Appellate Division's exclusivity may . . . not be circumvented by instituting either actions in lieu of prerogative writs or declaratory judgment actions or actions otherwise styled in the trial court where the essence of the relief sought is review of quasi-judicial ministerial or discretionary agency action.
Pursuant to Rule 2:2-3(a)(2), we agree that after Giles exhausts his administrative remedies, the proper forum for the case is the Appellate Division, and as such, the trial judge's dismissal for that reason is correct.
Additionally, so long as there is still a right of review within the administrative agency, a decision of the administrative agency is not appealable as of right to the Appellate Division. Rule 2:2-3(a)(2). It is well-settled that "[e]xhaustion of administrative remedies before resort to the courts is a firmly embedded judicial principle." Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 558-59 (1979) (citing Neeld, supra, 26 N.J. at 178). Accordingly, Giles must exhaust his available administrative remedies pursuant to Rule 2:2-3(a)(2) before commencing an appeal in the Appellate Division.
Although the doctrine is applied throughout New Jersey courts, it is not a procedural requirement, but rather "the preference for exhaustion of administrative remedies is one 'of convenience, not an indispensable pre-condition.'" Abbott v. Burke, 100 N.J. 269, 297 (1985) (citing Swede v. City of Clifton, 22 N.J. 303, 315 (1956)). There are several exceptions which, if applicable to the case at hand, obviate the convenience and override the interest of justice in having to exhaust administrative remedies.
Generally, the exhaustion rule will not be applied in the following circumstances: (1) when only a question of law exists; (2) when administrative remedies would be futile; (3) when irreparable harm would result; (4) when jurisdiction of the agency is doubtful; or (5) when an overriding public interest calls for a prompt judicial decision.
[Triano v. Div. of State Lottery, 306 N.J. Super. 114, 121-22 (App. Div. 1997) (citing Magliochetti v. State, 276 N.J. Super. 361, 375 (Law Div. 1994)).]
Giles asserts that his case should receive judicial review because the issue involves the application of N.J.S.A. 27:25-15.1c to the undisputed material facts that are not within the special expertise of the agency. He cites to Roberts v. Div. of State Police, 191 N.J. 516, 523 (2007), where the Supreme Court ruled that the exhaustion of administrative remedies rule did not apply to the appeal by State Police Officer Roberts of the disciplinary charges filed against him. In a footnote, the Supreme Court noted that [t]he State Police moved to dismiss the matter on the ground that Roberts had failed to exhaust his administrative remedies. The State Police argued that, in light of the fact that Roberts had not challenged the disciplinary action through the requisite administrative channels, there was no final agency decision that the Appellate Division could review. We rejected that assertion, pointing out that because the issue presented was a question of law, exhaustion doctrine did not apply. [Roberts, supra, 191 N.J. at 520 n.2, (citing Roberts v. Div. of State Police, 386 N.J. Super. 546, 550-51 (App. Div. 2006)).]
Our reason for rejecting the State Police's argument was, however, because the invocation of the exhaustion of administrative remedies rule "would serve no useful purpose [there]." Roberts, supra, 386 N.J. Super. at 550. We stated:
Documents submitted on Roberts' behalf demonstrate that the State Police have declined to address the implementation of the [statute] administratively at contractual proceedings held to review grievance appeals of written reprimands, and have instead "defer[red] to the judicial forums" such statutory interpretation issues. In this circumstance, we find a remand to permit further administrative consideration of this issue would be fruitless. Where administrative "remedies are futile, illusory or vain, elemental considerations of justice will dictate that the courts reject their invocation as a barrier to judicial relief" against allegedly arbitrary or illegal action.
[Id. at 551 (emphasis added) (citing Naylor v. Harkins, 11 N.J. 435, 444 (1953)).]
Unlike Roberts, the facts here are clearly distinguishable. The record is devoid of any evidence that NJTPD has refused to address the matter administratively, nor is there evidence that Giles has attempted to exhaust his administrative remedies by appealing to the NJTPD, or bringing the matter before the department's hearing officer. Additionally, none of the exceptions to the general rule applies. See Triano, supra, 306 N.J. Super. at 121-22.
Although the trial judge was of the view he did not have jurisdiction to decide the matter, he ruled that in the event the trial court had jurisdiction to hear the case, the plaintiff did not satisfy the standard for equitable relief under Crowe, supra, 90 N.J. at 132-34. The standard under Crowe requires the applicant to demonstrate that (1) court action is necessary to prevent irreparable harm, generally considered to be so if it cannot be redressed adequately by money damages; (2) the legal right underlying the application is unsettled; (3) there is a reasonable probability of ultimate success on the merits, although mere doubt as to the validity of the claim is an insufficient basis to entertain the application; and (4) the relative hardships to the parties favor granting or denying relief. Crowe, supra, 90 N.J. 126 at 132-34. We agree with the trial judge's denial of Giles' application for preliminary, permanent and declaratory relief.
At the heart of Giles' application for relief is his assertion that the charge was not filed in compliance with the forty-five day rule prescribed by N.J.S.A. 27:25-15.1c.
The statute provides:
A person shall not be removed from employment or a position as a police officer of the New Jersey Transit Police Department pursuant to section 2 of P.L.1989, c. 291 (C.27:25-15.1), or suspended, fined or reduced in rank for a violation of the internal rules and regulations established for the conduct of employees of the New Jersey Transit Police Department, unless a complaint charging a violation of those rules and regulations is filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based. A failure to comply with this section shall require a dismissal of the complaint. The 45-day time limit shall not apply if an investigation of a police officer for a violation of the internal rules and regulations of the New Jersey Transit Police Department is included directly or indirectly within a concurrent investigation of that officer for a violation of the criminal laws of this State; the 45-day limit shall begin on the day after the disposition of the criminal investigation. The 45-day requirement in this section for the filing of a complaint against a police officer of the New Jersey Transit Police Department shall not apply to a filing of a complaint by a private individual. [N.J.S.A. 27:25-15.1c (emphasis added).]
In discussing the forty-five day provision in the statute governing disciplinary actions against state troopers, a provision that contains language similar to the statute governing NJTPD, the Supreme Court in Roberts held that "it is not the happening of the event giving rise to discipline that starts the clock for purposes of evaluating timeliness, but the receipt of 'sufficient information' by the one who is authorized to file the charge that is significant." Roberts, supra, 191 N.J. at 524 (citing N.J.S.A. 53:1-33). Receipt of the investigatory report by the person who has the authority to file a charge satisfies the statutory requirement of the receipt of sufficient information. Id. at 524 (citations omitted).
In Aristizibal v. City of Atlantic City, 380 N.J. Super. 405 (Law Div. 2005), police officers brought an action to enjoin the City of Atlantic City from proceeding with disciplinary charges arising out of their alleged participation in a "sick-out" which had occurred months earlier. Id. at 408-09. The Law Division found that the City failed to file the charges until seventy-two days after the receipt of valid reasons to initiate disciplinary proceedings against the police officers. Id. at 433. As a result, the court enjoined the City from proceeding with disciplinary hearings. Id. at 435. The Law Division noted that "barring extraordinary circumstances . . . [an] investigation should commence promptly after the occurrence of events which may warrant disciplinary action." Id. at 433-34. The court ultimately made a factual determination, that there was no "justifiable basis" to delay the commencement of charges filed 120 days after the events occurred when there were valid reasons to bring disciplinary charges much earlier. Id. at 434.
Unlike Aristizibal, the record in this case supports NJTPD's position that an investigation was immediately commenced and was ongoing until Internal Affairs presented its report and recommendation to Chief Bober. Bober promptly approved the issuance of disciplinary charges one day after receiving the report. Scianimanico certified that she conducted the Internal Affairs investigation into the incident and the officers involved in the handling and arrest that resulted from this incident. Her investigation led to the recommendation that charges be brought against Giles. There was not "sufficient information" to initiate disciplinary proceedings against Giles until after the conclusion of the criminal investigation against him, and not until the ancillary matters regarding Brady's underlying arrest were resolved, including the municipal proceedings.
We are cognizant of Giles' assertion that once NJTPD was notified on February 13 by the Hudson County Prosecutor that no criminal charges were to be preferred against him, defendant had sufficient information to lodge disciplinary charges since there was no concurrent criminal investigation pending which would justify tolling the forty-five day statute. That assertion has been heartily rejected by the Supreme Court. See Roberts, supra, 191 N.J. at 524 (declaring that the clock for purposes of evaluating timeliness starts upon the receipt of "sufficient information" by the one who is authorized to file the charge).
The intent of the statute is to protect law enforcement officers from an appointing authority unduly and prejudicially delaying the imposition of disciplinary action. Aristizibal, supra, 380 N.J. Super. at 428. "Conversely, the statute is undoubtedly not designed to force an appointing authority, at the risk of being estopped, to prospectively bring ultimately valid, but unripe, disciplinary charges within 45 days of an incident without properly investigating the matter to ensure that sufficient information to bring such charges is obtained." Id. at 426 (citation omitted).
Under such circumstances, the dismissal of the complaint seeking to foreclose any action on the disciplinary charges was appropriate. As Scianimanico certified:
Based on NJ Transit's Detective Bureau conducting a criminal investigation into the totality of the events surrounding the Brady/Pittman incident, which automatically involved the actions of the officers, and since the Brady/Pittman matter was pending a Court date, which of necessity involved the written reports and testimony of the officers, the Office of Professional Standards administrative investigation was suspended pending the outcome of these matters.
Thus, the case was still not ripe on the day Giles received notification that the Prosecutors were not pressing criminal charges and the resolution of the Brady/Pittman incident was likewise necessary for "proper investigati[on] [of] the matter to ensure that sufficient information to bring such charges is obtained." Aristizibal, supra, 380 N.J. Super. at 426.
The record illustrates that the investigation of Giles resumed soon
after the municipal court proceedings were resolved.*fn3
On July 2, 2008, Giles was again notified that he was the
subject of an Internal Affairs investigation and on July 8, 2008, he
was interviewed regarding the Brady civilian complaint.
On July 10, 2008, Sergeant Finnegan and Officer Burke were notified that they were subjects of the same Internal Affairs investigation, and they were interviewed on July 17, 2008. On August 6, 2008, the investigation was concluded and on August 19, 2008, a recommendation was made to NJTPD Chief Bober that both Officer Giles and Sergeant Finnegan should be charged with unsatisfactory performance with respect to the Brady/Pittman arrest. On August 26, 2008, a formal disciplinary charge was brought against Giles and Sergeant Finnegan. This supports a finding that the investigators needed "a whole view of the case" in order to perform a "complete and thorough internal investigation." Roberts, supra, 191 N.J. at 523 (concluding that based on the court's analysis of the legislative history of the forty-five day rule, "the Legislature intended to balance three competing considerations . . . the need for a complete and thorough internal investigation, the need for deference to a related criminal investigation, and the interests of the particular trooper to be free of undue delay in being charged."). For the reasons above, this would not have been possible without resolution of the Brady matter. We agree that the record does not disclose that NJTPD was untimely in filing the disciplinary charges.
Thus, we also agree that Giles has not satisfied a substantial likelihood of success on the merits under Crowe, supra, 90 N.J. at 132-34, and the arguments raised by Giles relating to injunctive relief lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).