November 29, 2016
appeal from Superior Court of New Jersey, Law Division,
Mercer County, Docket No. L-2106-10.
Timothy J. Mclnnis (Mclnnis Law) of the New York bar,
admitted pro hac vice, argued the cause for
appellant/cross-respondent (Law Office of Jerome A.
Ballarotto, and Mr. Mclnnis, attorneys; Mr. Ballarotto and
Mr. Mclnnis, on the brief).
D. Wint, Assistant Attorney General, argued the cause for
respondent/cross-appellant (Christopher S. Porrino, Attorney
General, attorney; Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Mr. Wint, on the briefs).
Judges Messano, Espinosa and Guadagno.
case presents us with questions of first impression regarding
the interpretation of provisions of the Mistaken Imprisonment
Act (Act), N.J.S.A. 52:4C-1 to -7, relating to eligibility,
the burden of proof, damages and "reasonable attorney
fees" recoverable under the Act.
was charged in a single indictment and convicted of two
counts of purposeful murder, felony murder, conspiracy to
possess cocaine with intent to distribute and related
offenses. His convictions for murder and felony murder were
set aside after his petition for habeas corpus was granted.
His drug conspiracy conviction remained undisturbed.
Plaintiff was released from prison and commenced this action
against defendant, State of New Jersey, Department of the
Treasury (State), under the Act, seeking more than $6, 000,
000 in damages and $1 million in attorney fees.
Plaintiff's appeal from the $433, 230 judgment in his
favor and the State's cross-appeal present us with
questions of statutory interpretation, specifically (1)
whether plaintiff was ineligible under N.J.S.A. 52:4C-6
because he was not an "innocent person" due to his
drug conspiracy conviction, and (2) whether the decision
granting plaintiff's habeas corpus petition satisfied his
burden under N.J.S.A. 52:4C-3(b) to establish by clear and
convincing evidence "he did not commit the crime for
which he was convicted" as a matter of law. Because we
conclude a remand is necessary, we also address how damages
should be calculated under the Act prior to its 2013
amendment and the reasonable attorney fees that may
be recovered under N.J.S.A. 52:4C-5(b) to provide guidance to
the trial court in the event such issues are reached on
recover under the Act, a claimant must
establish the following by clear and convincing evidence:
a. That he was convicted of a crime and subsequently
sentenced to a term of imprisonment, served all or any part
of his sentence; and
b. He did not commit the crime for which he was convicted;
c. He did not commit or suborn perjury, fabricate evidence,
or by his own conduct cause or bring about his conviction.
Neither a confession or admission later found to be false
shall constitute committing or suborning perjury, fabricating
evidence, or causing or bringing about his conviction under
this subsection; and
d. He did not plead guilty to the crime for which he was
November 1988, a jury convicted plaintiff of conspiracy to
possess cocaine with intent to distribute, two counts of
first-degree murder, and one count of felony murder. The
trial judge entered a judgment of acquittal, notwithstanding
the verdict, in favor of plaintiff on the murder and felony
murder counts. Following appeal, we reinstated the murder
convictions. State v. Kamienski, 254 N.J.Super. 75
(App. Div.), certif. denied, 130 N.J. 18 (1992).
Plaintiff was resentenced and received two life sentences,
with thirty years parole ineligibility, and a consecutive
flat twelve-year term on the drug conspiracy conviction.
filed a habeas corpus petition, challenging only his murder
convictions. The United States District Court denied his
petition; the Court of Appeals for the Third Circuit reversed
and ordered his petition be granted, stating, "no
reasonable juror could conclude that the evidence admitted
against [plaintiff] at his trial established that he was
guilty of murder or felony murder beyond a reasonable
doubt." Kamienski v. Hendricks, 332 Fed.
Appx. 740, 740-41 (3rd Cir. 2009), cert,
denied, 558 U.S. 1147, 130 S.Ct. 1168, 175 L.Ed.2d 972
(2010). Plaintiff was released from prison in June 2 009,
after serving more than twenty years.
filed a verified complaint for compensation under the Act,
seeking $5, 913, 671.30 in damages and $1, 000, 000 in
attorney fees and costs incurred in his initial defense on
the charges at trial and all subsequent proceedings. The
damages sought represented the amount of the adjusted gross
income plaintiff earned in the year prior to his
incarceration ($143, 307) multiplied by the number of years
he was incarcerated.
State moved to dismiss the complaint, arguing plaintiff's
drug conspiracy conviction rendered him ineligible for
recovery pursuant to N.J.S.A. 52:4C-6(a). Plaintiff moved for
declaratory relief, asking the court to adopt his proposed
interpretation of the Act. The trial judge denied both the
State's motion and plaintiff's motion for declaratory
relief. The court denied plaintiff's motion for
reconsideration and determined further that "reasonable
attorney fees" under N.J.S.A. 52:4C-5(b) were limited to
fees incurred in the compensation action.
moved for summary judgment, contending he was entitled to
compensation under the Act as a matter of law. Paragraph 4 of
the Statement of Material Facts submitted pursuant to
Rule 4:46-2(a) states: "Plaintiff did not
commit the murder crimes for which he had been
convicted." The only support in the record cited for
that statement is "March 4, 2011 hearing,
" the date of the trial court's decision
denying the State's motion to dismiss. In opposition, the
State admitted, "the United States Court of Appeals for
the Third Circuit determined that there was insufficient
evidence to support convictions of murder against the
plaintiff" and asserted he failed to establish, by clear
and convincing evidence, that he did not commit the murders.
trial court granted plaintiff's motion for summary
judgment and awarded him $343, 000. Plaintiff's request
for reasonable attorney fees, initially denied without
prejudice, was later granted after a certification of
services was submitted, resulting in an award of $90, 230.
appeal, plaintiff argues the trial court erred in
interpreting how damages are to be calculated and the scope
of reasonable attorney fees under the Act, N.J.S.A.
52:4C-5(a)-(b). In its cross-appeal, the State argues the
trial court erred in interpreting N.J.S.A. 52:4C-6(a),
finding plaintiff was not barred from recovery under the Act.
The State also argues the trial court erred in granting
summary judgment to plaintiff, based upon a misinterpretation
of N.J.S.A. 52:4C-3(b).
interpretation of a statute is an issue of law, which we
review de novo. D.W. v. R.W., 212 N.J. 232, 245-46
(2012). Our "fundamental objective ... is to identify
and promote the Legislature's intent." Parsons
ex rel. Parsons v. Mullica Twp. Bd. of Educ, 226 N.J.
297, 307 (2016). We look first to the "plain language
chosen by the Legislature." State v. Gandhi, 2
01 N.J. 161, 176 (2010). "If the statutory language is
clear and unambiguous, and susceptible to only one
interpretation, courts should apply the statute as written
without resort to extrinsic interpretive aids." In
re Passaic Cty. Utils. Auth., 164 N.J. 270, 299 (2000).
as here, statutory provisions are susceptible to more than
one interpretation, we look to extrinsic evidence to inform
our analysis, "including legislative history and
committee reports." Parsons, supra,
226 N.J. at 308 (quoting State v. Marguez, 202 N.J.
485, 500 (2010)); Wilson ex rel. Manzano v. City of
Jersey City, 209 N.J. 558, 572 (2012). Extrinsic
evidence is also properly considered "if a literal
reading of the statute would yield an absurd result,
particularly one at odds with the overall statutory
scheme." Ibid.; see also DiProspero v.
Penn, 183 N.J. 477, 493 (2005); e.g., Perez
v. Zagami, LLC, 218 N.J. 202');">218 N.J. 202, 214-16 (2014).
mindful that the Act is both remedial legislation and, in
part, a waiver of sovereign immunity. Mills v. N.J.
Dep't of the Treas., 435 N.J.Super. 69, 77 (App.
Div.), certif. denied, 218 N.J. 2 73 (2014). These
dual attributes bring competing standards into play for how
the statute should be construed, liberally or strictly.
jurisdictions have not adopted a uniform approach in
reviewing their own wrongful incarceration statutes. Many
courts have expressed the view that their statutes should be
construed liberally to effect their remedial purpose.
See, e.g., State v. Hill, 125 So.3d 1200,
1203 (La. Ct. App.) (interpreting La. Stat. Ann.
§ 15:572.8 (2017)), writ denied, 129 So.3d 536
(La. 2013); Estate of Jerry Jacobs v. State, 775
S.E.2d 873, 876 ( N.C. Ct. App.) (interpreting N.C. Gen.
Stat. §§ 148-82 to -84 (2016)), review
denied, 778 S.E.2d 93 ( N.C. 2015); State v.
Moore, 847 N.E.2d 452, 456 (Ohio Ct. App. 2006)
(interpreting Ohio Rev. Code Ann. § 2743.48
(Lexis Nexis 2017)); Wilhoit v. State, 226 P;3d 682,
686 (Okla. 2009) (interpreting Okla. Stat, tit. 51,
§ 154(B) (2011)); State v. Oakley, 227 S.W.3d
58, 62 (Tex. 2007) (interpreting Tex. Civ. Prac. &
Rem. Code Ann. §§ 103.001-154 (West 2011));
Larson v. State, 375 P;3d 1096, 1103 (Wash. Ct.
App.) (interpreting Wash. Rev. Code Ann.
§§ 4 .100.010-.090 (West 2017)), review
denied, 385 P;3d 117 (Wash. 2016).
courts and courts from other jurisdictions have held their
wrongful incarceration statutes should be strictly construed
in favor of the State and against any waiver of sovereign
immunity. See, e.g., Sykes v. United
States, 105 Fed. CI. 231, 233 (Fed. CI. 2012)
(observing the federal unjust conviction and imprisonment
statutes, 28 U.S.C.A. §§ 1495, 2513, have
"always been strictly construed" (quoting
Vincin v. United States, 468 F;2d 930, 933 (Ct. CI.
1972))); Fessenden v. State, 52 So.3d 1, 7 (Fla.
Dist. Ct. App. 2010) (interpreting Fla. Stat.
§§ 961.01-.07 (2017)); Webb v. State, 795
N.Y.S.2d 636, 637 (N.Y.App.Div. 2005) (interpreting N.Y.
Ct. CI. Act § 8-b (McKinney 2017)), appeal
denied, 845 N.E.2d 468 (N.Y. 2006). Hawaii's statute
states explicitly that it "shall be broadly construed in
favor of the State and against any waiver of sovereign
immunity." Haw. Rev. Stat. § 661B-6 (Supp.
2016). Taking a more nuanced approach, the California Court
of Appeals stated the sections of its wrongful incarceration
statute should be "construed, not strictly, but
according to the fair import of their terms."
Ebberts v. State Bd. of Control, 148 Cal.Rptr. 543,
546 (Cal.Ct.App. 1978) (interpreting Cal. Penal Code
§§ 4900-4906 (West 2017)).
interpreting the Act, we strive to discern the balance the
Legislature intended to strike between the liberal
construction afforded remedial legislation "in favor of
the persons intended to be benefited thereby, " Berg
v. Christie, 225 N.J. 245, 259 (2016) (quoting Klumb
v. Bd. of Educ. of Manalapan-Enqlishtown Reg'l
High Sch. Dist., 199 N.J. 14, 34 (2009)), and the more
limited construction appropriate to the State's voluntary
assumption of liability, cf. Davenport v. Borough of
Closter, 294 N.J.Super. 635, 637 (App. Div. 1996)
("Under the [Tort Claims Act, N.J.S.A. 59:1-1 to 12-3],
immunity is the norm, unless liability is provided for by the
Act."); see also Deborah F. Buckman,
Annotation, Construction and Application of State
Statutes Providing Compensation for Wrongful Conviction
and Incarceration, 53 A.L.R.6th 305,
325-26 (2010) (noting statutes attempt to balance the
obligation to do justice with the responsibility to assure
that public coffers are not overburdened by baseless claims).
first consider the State's argument that plaintiff is not
eligible to recover under the Act. The State moved to dismiss
plaintiff's complaint on the ground that he was
ineligible to pursue his claim pursuant to N.J.S.A.
52:4C-6(a), which states,
A person serving a term of imprisonment for a crime other
than a crime of which the person was mistakenly convicted
shall not be eligible to file a claim for damages pursuant to
the provisions of this act.
State concedes the language of this provision is susceptible
to more than one interpretation and argues this provision
must be read in light of the Legislature's stated ...