ESTATE OF FRANK P. LAGANO, Plaintiff-Respondent,
BERGEN COUNTY PROSECUTOR'S OFFICE, Defendant-Appellant, and MICHAEL MORDAGA, Defendant. STATE OF NEW JERSEY, Plaintiff-Appellant,
$1, 297, 522.20, Defendant, and ESTATE OF FRANK P. LAGANO, Claimant-Respondent.
November 8, 2017
appeal from Superior Court of New Jersey, Law Division,
Passaic County, Docket No. L-0093-16, and Bergen County,
Docket No. L-0311-05.
A. Yomtov, Deputy Attorney General, argued the cause for
appellant State of New Jersey (Christopher S. Porrino,
Attorney General, attorney; Mr. Yomtov, of counsel and on the
J. Pack argued the cause for appellant Bergen County
Prosecutor's Office (Hanrahan Pack, LLC, attorneys, join
in the brief of appellant State of New Jersey).
D. Gillet, Deputy First Assistant Prosecutor, argued the
cause for appellant Middlesex County Prosecutor's Office
(Andrew C. Carey, Middlesex County Prosecutor, attorney,
joins in the brief of appellant State of New Jersey).
V. Kleiner argued the cause for respondent.
Judges Yannotti, Carroll, and Leone.
State appeals orders issued December 1 and 15, 2016,
unsealing wiretap materials, including intercepted
conversations and evidence derived from them, and compelling
their disclosure to the Estate of Frank P. Lagano (Estate).
We agree with the trial court that disclosure for use in
civil litigation is permissible "upon a showing of good
cause" under N.J.S.A. 2A:156A-17(c). We disapprove the
contrary ruling in In re Disciplinary Proceedings Against
Spinelli, 212 N.J.Super. 526 (Law Div. 1986). We also
affirm the court's finding of good cause for disclosure
we vacate the orders to the extent they allowed the
disclosure of information revealing the roles of confidential
informants. We remand for the trial court to consider whether
disclosure will reveal a person was a confidential informant
for a particular agency, in a particular investigation,
during a particular period, or in a particular way, and to
consider whether disclosure of such particular information
was justified by the Estate's showing. We also remand for
entry of a broader protective order.
appeal relates to "Operation Jersey Boyz, " an
extensive joint investigation by the Bergen County
Prosecutor's Office (BCPO) and the New Jersey State
Police. Between August and November 2004, a Passaic County
Law Division judge (original judge) issued wiretap orders and
communication data warrants. In December 2004, officers under
the command of Michael Mordaga, then the BCPO Chief of
Detectives, conducted a series of raids which were the
culmination of the "Jersey Boyz" investigation.
Over forty people were arrested during the raids, including
Frank P. Lagano. Lagano was charged with racketeering,
promoting gambling, conspiracy to promote gambling, and two
counts of criminal usury.
January 2 005, the BCPO initiated a civil forfeiture action
in Bergen County against monies seized in the "Jersey
Boyz" raids. State v. $1, 297, 522.20, Docket
No. L-0311-05. That included $264, 428 in cash seized from
the residence of Lagano and his wife and from their safety
deposit boxes at two banks. Lagano filed an answer asserting
that the seized funds were not connected to any criminal
December 14, 2006 order and sealed opinion, the original
judge suppressed the "Jersey Boyz" wiretaps,
communication data warrants, and search warrants, and
"the fruits thereof." The record of these
proceedings were sealed. The BCPO appealed and we reversed as
to seven warrants, remanded three warrants for further
hearings, and affirmed the suppression of sixteen warrants,
including each of the three wiretaps that captured or
referenced Lagano. We impounded our opinion, as well as the
appellate briefs and appendices.
April 12, 2007, Lagano was fatally shot in East Brunswick.
The Middlesex County Prosecutor's Office (MCPO) commenced
a still-open investigation into his death. Thereafter, the
Estate asserted its interest in the seized $264, 428 in the
forfeiture action was stayed for six years during the
suppression proceedings and subsequent ex parte litigation
before the original judge by the BCPO and the Office of the
Attorney General (the State) regarding legal issues stemming
from the "Jersey Boyz" wiretaps and warrants. After
the stay was lifted, the Estate sought discovery. However,
the State refused to produce the documentation sought on the
grounds it was under seal by the prior orders of the Law
April 2012, the Estate filed a motion to unseal and compel
the production of all relevant discovery. Another Law
Division judge denied the motion and a motion to reconsider.
On June 26, 2013, that judge granted summary judgment to the
BCPO. However, we reversed and remanded, ruling the
Estate's submissions created a genuine issue of material
fact. State v. $1, 297, 522.20, No. A-0208-13 (App.
Div. Dec. 7, 2015).
in August 2012, the Estate filed a civil complaint against
the BCPO and Mordaga in federal district court, Docket No.
12-CV-0441. The majority of its factual averments were based
on allegations made by James Sweeney, a now-deceased former
investigator, in a 2010 complaint he filed following his
termination by the Division of Criminal Justice (DCJ).
See Estate of Lagano v. Bergen Cty. Prosecutor's
Office, 769 F.3d 850, 853 & n.2 (3d Cir. 2014).
Estate's federal complaint alleged the following. Lagano
and Mordaga "enjoyed a personal and business
relationship, " which included socializing and
vacationing together, as well as "multiple business
ventures." Id. at 852. Lagano was also under
investigation for his possible involvement in an organized
crime gambling operation by the BCPO, where Mordaga was Chief
of Detectives. Ibid. After Lagano was arrested,
charged, and had cash and other items seized, Mordaga
allegedly brought Lagano to his office and told Lagano that
if he retained a certain attorney, "90% of his problems
would go away." Ibid. However, Lagano did not
take Mordaga's recommendation and instead agreed to serve
as a confidential informant for Sweeney. Ibid.
federal complaint also alleged that, in early 2007, Mordaga
showed up unexpectedly at a restaurant where Lagano was
having a dinner meeting and again urged Lagano to hire the
attorney he had previously recommended, with the assurance
that, if Lagano did so, "half his money would be
returned and . . . [he] would serve no prison time."
Ibid. Lagano rejected Mordaga's offer, and their
relationship "soured." Ibid. Afterwards,
"[BCPO] personnel . . . disclosed to alleged members of
traditional Organized Crime families . . . that [Lagano] had
been an informant, " and Lagano was shot and killed
Estate's three-count federal amended complaint, count one
claimed the disclosure of Lagano's status as a
confidential informant established a state-created danger in
violation of his due process rights. Ibid. Count two
asserted the same claim under the New Jersey Civil Rights
Act, N.J.S.A. 10:6-1 to 2. Count three alleged unlawful
conversion of Lagano's property (the seized $264, 428) in
violation of the Fourth Amendment and 42 U.S.C. §§
1983 and 1985. Id. at 853.
BCPO and Mordaga each filed a motion to dismiss. The federal
district court dismissed the Estate's claims on the
grounds that the defendants were acting on behalf of the
State, that the BCPO had sovereign immunity, that Mordaga had
qualified immunity, and that count three was barred by the
statute of limitations. Id. at 853-54. On October
15, 2014, the Third Circuit Court of Appeals affirmed the
district court's ruling that count three was barred by
the statute of limitations, but vacated the dismissal of the
state-created danger claim in counts one and two, and
remanded to the district court. Id. at 854-61.
December 2015, pursuant to the order of a federal magistrate
judge, the Estate returned to the Law Division in Passaic
County and filed a motion to unseal the records the Law
Division had sealed. Estate v. BCPO, et al., Docket
No. L-0093-16. Pursuant to Rule 1:38-12, the motion
sought "entry of an order unsealing and compelling the
production of all court records and documentary evidence in
the Bergen County gambling investigation 'Jersey Boyz,
' and all records and evidence relevant to" the
forfeiture and federal actions. Oral argument was heard by
the original judge. Sealed in-camera sessions were held to
discuss issues related to the possible disclosure of
December 1, 2016 order, the original judge
"substantially granted" the motion after reviewing
the extensive evidence and history of the case in a sealed
opinion. The judge denied the State's motion for
reconsideration and issued a revised order on December 15,
2016. We granted motions by the State, the BCPO, and the MCPO
for leave to appeal and for a stay of the Law Division's
orders and proceedings.
State argues the release of the sealed wiretaps and related
evidence to a private litigant for use in a civil action is
not authorized by Title III of the Omnibus Crime and Safe
Streets Act, 18 U.S.C. §§ 2510-2520 (Title
III), or New Jersey's Wiretapping and Electronic
Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37
("Wiretap Act" or "Act"). Whether wiretap
evidence may be disclosed "is an issue of statutory
construction; our review is therefore de novo."
State v. Olivero, 221 N.J. 632, 638 (2015). We must
hew to that standard of review.
"this is a case of statutory interpretation, " our
task "'is to discern and give effect' to the
legislature's intent." State v. Munafo, 222
N.J. 480, 488 (2015) (citation omitted). "To begin, we
look at the plain language of the statute."
Ibid. Courts "can also draw inferences based on
the statute's overall structure and composition."
State v. S.B., 230 N.J. 62, 68 (2017).
"Statutory language is to be interpreted 'in a
common sense manner to accomplish the legislative
purpose.'" Olivero, 221 N.J. at 639
(citation omitted). "We do not support interpretations
that render statutory language as surplusage[.]"
Burgos v. State, 222 N.J. 175, 203 (2015). "If
the language is unclear, courts can turn to extrinsic
evidence for guidance, including a law's legislative
history." Munafo, 222 N.J. at 488. "But a
court may not rewrite a statute or add language that the
legislature omitted." Ibid.
Jersey's Wiretap Act generally makes it a crime to
"disclose the existence of an order authorizing
interception of a wire, electronic or oral communication or
the contents of, or information concerning, an intercepted
wire, electronic or oral communication or evidence derived
therefrom." N.J.S.A. 2A:156A-19; see N.J.S.A.
2A:156A-3(b). Disclosure is only permitted "as
specifically authorized pursuant to this act."
Estate invoked two disclosure provisions in the Wiretap Act.
Section 15 of the Act provides: "Applications made and
orders granted pursuant to this act and supporting papers
shall be sealed by the court and held in custody as the court
shall direct[.]" N.J.S.A. 2A:156A-15. "They may be
disclosed only upon a showing of good cause before a court of
competent jurisdiction." Ibid. Section 17(c) of
the Act provides: "The contents of any intercepted wire,
electronic or oral communication, or evidence derived
therefrom, may otherwise be disclosed or used only upon a
showing of good cause before a court of competent
jurisdiction." N.J.S.A. 2A:156A-17(c). Thus, those
provisions allow disclosure of wiretap ...