State of New Jersey v. Ivonne Saavedra

81 A.3d 693, 433 N.J. Super. 501

• Court: New Jersey Superior Court Appellate Division
• Decided: December 24, 2013
• Docket: A-1449-12
• Status: Published

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1449-12T4

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, December 24, 2013 v. APPELLATE DIVISION

IVONNE SAAVEDRA,

Defendant-Appellant. __________________________

Argued September 11, 2013 – Decided December 24, 2013

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-05-0849.

Mario M. Blanch argued the cause for appellant.

Leo Hernandez, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Mr. Hernandez, on the brief).

The opinion of the court was delivered by

FASCIALE, J.A.D.

By leave granted, defendant Ivonne Saavedra appeals from an

order denying her motion to dismiss an indictment returned by a

Hudson County grand jury charging her with second-degree official misconduct, N.J.S.A. 2C:30-2a, and third-degree theft

of movable property (public documents), N.J.S.A. 2C:20-3 and

N.J.S.A. 2C:20-2b(2)(g). Because defendant attacks the facial

validity of the charges against her, we will review the evidence

presented by the State to determine whether there was probable

cause for the grand jury to find that these crimes were

committed and that defendant committed them. In re State ex

rel. A.D., 212 N.J. 200, 218 (2012). We affirm.

I.

Defendant took highly confidential original documents owned

by her employer, contending that she did so to support her

employment discrimination lawsuit. Relying on Quinlan v.

Curtiss-Wright Corp., 204 N.J. 239 (2010), defendant argues that

her acts are not criminally sanctionable. She contends that

because Quinlan purportedly establishes an absolute right for

employees with employment discrimination lawsuits to take

potentially incriminating documents from their employers, the

judge erred by denying her motion. We disagree. Quinlan did

not establish such a bright-line rule as defendant suggests.

Quinlan, a civil employment discrimination case, enunciated a

seven-part totality-of-the-circumstances test (the "Quinlan

analysis") to determine whether a private employer can terminate

its employee for the unauthorized taking of its documents.

2 A-1449-12T4 We hold, under the facts of this case, that a criminal

court judge is not required to perform a Quinlan analysis to

decide a motion to dismiss an indictment charging a defendant

with official misconduct predicated on an employment-related

theft of public documents. Instead, the judge should apply

well-settled standards regarding whether to grant such motions.

That is, to survive a motion to dismiss an indictment, the State

need not produce evidence adequate to sustain a conviction; but

rather, the State must introduce sufficient evidence before the

grand jury to establish a prima facie case that defendant has

committed a crime. State v. Hogan, 144 N.J. 216, 236 (1996).

Because the State produced such evidence here, the judge

properly concluded that the indictment was not manifestly

deficient or palpably defective. Id. at 228-29, 236.

Whether a petit jury ultimately finds defendant guilty of

official misconduct and theft will depend on the State's ability

to prove beyond a reasonable doubt each and every element of

these crimes. If there is sufficient evidence to support

defendant's contention that she honestly believed she had a

right to the documents in question, she can raise such a claim

as an affirmative defense at trial. The State then would have

the burden of proving, beyond a reasonable doubt, that defendant

did not act pursuant to a claim of right.

3 A-1449-12T4 II.

The North Bergen Board of Education (the "Board") employed

defendant for several years as a clerk.1 She started working in

the Board's payroll department and remained there for ten years.

She was thereafter assigned to the Board's Special Services

Department and became a clerk for a child study team.2

Defendant's son also worked as a part-time employee for the

Board.

In November 2009, one year before the Court decided

Quinlan, defendant and her son filed a complaint against the

Board, her supervisor, an office manager, and a North Bergen

1 Although not entirely clear from the record, we infer that defendant's position of "clerk" appears to fall within the scope of clerical or secretarial tenured positions, described in N.J.S.A. 18A:17-2b as "[a]ny person holding any secretarial or clerical position or employment under a board of education of any school district or under any officer thereof." N.J.S.A. 18A:17-2c protects individuals who have acquired tenure in such a position "during good behavior and efficiency" from dismissal, suspension, or reduction in compensation, "except for neglect, misbehavior or other offense . . . ." 2 The child study team in a school is comprised of specified professionals who can evaluate the particular needs of children with learning disabilities. "Each board of education [is required to] provide for basic child study team services. The basic child study team shall consist of a school psychologist, a learning disability teacher consultant and a school social worker, and for the purposes of evaluation and classification shall include pertinent information from certified school personnel making the referral." N.J.S.A. 18A:46-5.1.

4 A-1449-12T4 Township Commissioner.3 Defendant alleged that she was a victim

of gender, ethnic, and sex discrimination. The complaint also

alleged that the Board terminated defendant's son because

defendant voiced what she understood to be problems in her

workplace regarding alleged pay irregularities, reimbursing

employees improperly for "unused" vacation time that they had

actually used, wrongful denial of employee unpaid family leave,

violations of child study team regulations, and "unsafe

conditions."4 They alleged, among other causes of action,

employment discrimination, hostile work environment, and

retaliatory discharge, in violation of the New Jersey Law

Against Discrimination (the "LAD"), N.J.S.A. 10:5-1 to -49, and

they sought punitive damages.5

3 Defendant improperly identified in her civil complaint the North Bergen Township Commissioner as a "councilman." 4 Defendant alleged in her civil complaint against the Board that the Board did not terminate her from employment because she is tenured. 5 The complaint contains the following counts: a violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14 (Count One); a violation of public policy (Count Two); a violation of Section 1983 of the Civil Rights Act, 42 U.S.C.A. § 1983 (Count Three); a violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (Count Four); civil rights conspiracy (Count Five); violations of the Fair Labor Standards Act, 29 U.S.C.A. §§ 201-209 (Count Six); a violation of the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a to -56a38 (Count Seven); hostile work environment, in violation of the LAD (Count Eight); adverse employment action, in violation of the LAD (Count Nine); (continued)

5 A-1449-12T4 Defendant's counsel in the civil case learned eventually

from defendant that defendant possessed hundreds of documents

owned by the Board. Criminal defense counsel on this appeal

indicated in his merits brief that defendant's civil lawyer

"chose to use the documents during the discovery phase of

[defendant's] pending lawsuit against [the Board]." (Emphasis

added). Defendant's civil attorney turned over those documents

to counsel defending the Board in the employment discrimination

suit. The Board's attorney notified the Board's general

counsel. The general counsel brought the matter to the

attention of the Hudson County Prosecutor, who determined that

the matter should be presented to a grand jury.

The grand jury convened to hear evidence in this case in

April 2012, more than two and one-half years after defendant had

filed her civil complaint. The State called the Board's general

counsel to testify as its only witness before the grand jury.

He testified that defendant had sued the Board and that "there

[was] a [civil] lawsuit outstanding." The general counsel

testified that defendant had taken from the Board 367 documents,

(continued) a violation of the New Jersey Family Leave Act, N.J.S.A. 34:11B- 1 to -16, and the Family Medical Leave Act, 29 U.S.C.A. § 2601 to -2654 (Count Ten); intentional infliction of emotional distress (Count Eleven); respondeat superior (Count Twelve); and punitive damages (Count Thirteen).

6 A-1449-12T4 including at least sixty-nine original documents. He informed

the Board's defense counsel that "the information [contained] in

those documents was highly confidential, very sensitive, and

[that the Board] needed to act on [defendant's decision to

resort to self-help] immediately." He then described five of

the documents, focusing on the confidential nature of each one.

The first document is a bank statement that a parent

provided to the Board. The Board used this bank statement to

verify whether that parent and the parent's child met the school

district's residency requirements. This document reveals the

parent's name and address, a bank account number, an account

balance, a description of the type of account (either a checking

or savings account), and a statement date.

The second document is an appointment schedule of a

psychiatrist who treated students with special needs in the

district. This document identifies the names of various

students whom the psychiatrist planned to treat, and it contains

a note that one named student "is on medication and needs [more]

medication." Releasing this document to the public would

jeopardize the Board's ability to ensure that its students with

mental health issues receive psychiatric treatment and would

violate the students' privacy rights.

7 A-1449-12T4 The third document, which general counsel believed to be an

original, is entitled "Consent for Release of Information to

Access Medicaid Reimbursement for Health-Related Support

Services." This document discloses the name and private contact

information of a parent who agreed to participate in a Medicaid-

reimbursement program, and it identifies the student's name,

date of birth, enrollment date, school, and grade level. The

Board uses this type of document to seek reimbursement from

Medicaid for medical and other services that students with

special needs receive. The Board faces liability exposure if

the State or Federal Government performs an audit and this

document is missing.

The fourth document, also believed to be an original, is a

signed letter from a parent whose child is receiving

confidential services for the child's special needs. It

contains the family's private information, such as names of the

parents and student, the name of the student's school, and

contact telephone numbers.

The fifth document is an original letter from a different

parent to the Director of Special Services regarding an

emotional problem involving that parent's child. In the letter,

the parent indicated that her son "came off the bus soaked in

8 A-1449-12T4 urine, very nervous, and his eyes were twitching." The document

reveals the identity of the student.

General counsel testified that the documents in defendant's

possession belonged to the Board. He explained that Board

"employees are trained and informed[,] via internal policies[,]

guidelines[,] and regulations[,] that these documents are highly

confidential and are not to be disclosed or tampered with in any

way." He stated that these documents are not to be "disclosed

[or] taken" by Board employees.

In May 2012, the grand jury indicted defendant and charged

her with committing the crimes of official misconduct and theft.

Defendant then moved to dismiss the indictment. During oral

argument on that motion, the judge focused on whether the State

presented sufficient evidence to establish a prima facie case

that defendant committed these offenses.

Defense counsel contended that defendant took the documents

for a lawful use, that the State failed to present exculpatory

evidence to the grand jury, and that the State was punishing

defendant for exercising improper judgment on the job. Defense

counsel argued that "Quinlan says it's legal to take

confidential documents," and that preventing defendant from

9 A-1449-12T4 taking the confidential documents would have a chilling effect

on future LAD cases.6

The State maintained that it presented to the grand jury

sufficient evidence to show that defendant committed these

crimes. The assistant prosecutor argued that defendant's

reliance on Quinlan was misplaced. He stated that Quinlan,

which he emphasized was decided in the context of a civil case

rather than on a motion to dismiss an indictment, did not create

a bright-line rule permitting a public servant such as defendant

to take highly confidential documents that did not belong to

her. The State asserted that the indictment was not manifestly

deficient or palpably defective and there existed no exculpatory

evidence that squarely refuted an element of the offenses.

In October 2012, the judge issued a thorough written

decision agreeing with the State's arguments, and denied the

motion. The judge recognized that on a motion to dismiss the

indictment, the State need not produce evidence adequate to

sustain a conviction, but rather, the State's evidence must be

sufficient to establish a prima facie showing that a crime has

6 Defense counsel stated in his merits brief that defendant dismissed her lawsuit against the Board. The parties did not produce a stipulation of dismissal, and the record is unclear regarding when or why she dismissed her claims. It is also unclear whether the son continued with his claims against the defendants in the civil case.

10 A-1449-12T4 been committed. She acknowledged that defendant bears a "'heavy

burden' of demonstrating that the 'evidence is clearly lacking

to support the charge[s].'" The judge then concluded that

defendant did not meet her burden.

Although the judge rejected the applicability of Quinlan,

she performed the Quinlan analysis out of an abundance of

caution. The judge concluded that the Quinlan factors weighed

heavily in favor of the Board.7 The judge then held that "an

employee's removal of documents from his or her employer for use

in a []LAD suit, is not per se lawful." This appeal followed.

On appeal, defendant raises the following points:

POINT I THE INDICTMENT FOR "OFFICIAL MISCONDUCT" SHOULD BE DISMISSED AS THE STATE HAS FAILED TO PRESENT SUFFICIENT EVIDENCE TO THE GRAND JURY TO SUSTAIN A PRIMA FACIE CASE.

A. [Defendant] is not a Public Servant for Purposes of Official Misconduct.

B. The State has Failed to Show any "Purpose" to "Obtain a Benefit."

C. The State has Failed to Show Proof that [defendant] acted with Purpose to Injure or Deprive.

D. The Indictment Must Be Dismissed As There is No Evidence

7 It appears that a Quinlan analysis was not performed by a judge in the civil case because defendant dismissed her complaint.

11 A-1449-12T4 to Show that [defendant] Knew that Her Actions Were Unauthorized.

POINT II THE INDICTMENT SHOULD BE DISMISSED BECAUSE THE LEGISLATIVE INTENT IS NOT TO PUNISH EMPLOYEES FOR ALLEGEDLY IMPROPER JUDGMENT ON THE JOB.

POINT III [DEFENDANT] CANNOT BE FOUND GUILTY OF THEFT AS SHE TOOK THE DOCUMENTS FOR A LAWFUL USE.

POINT IV THE INDICTMENT MUST BE DISMISSED AS THE PROSECUTOR FAILED TO PRESENT EXCULPATORY EVIDENCE RELATING TO THE UNDERLYING SUIT [THAT DEFENDANT] HAD PENDING WITH THE BOARD OF EDUCATION OF NORTH BERGEN.

POINT V ALLOWING THE PROSECUTION OF [DEFENDANT] TO CONTINUE WILL CREATE A CHILLING EFFECT TO POTENTIAL PLAINTIFFS IN LAD CLAIMS.

POINT VI THE CRIMINAL PROSECUTION OF [DEFENDANT] IS UNJUST BECAUSE IT HAS ALLOWED THE ATTORNEYS FOR THE . . . BOARD OF EDUCATION TO VIOLATE THE CANONS OF ATTORNEY ETHICS.

III.

We begin by addressing whether the judge abused her

discretion by denying defendant's motion to dismiss the

indictment. We will not disturb the denial of such a motion

"unless [the judge's discretionary authority] has been clearly

abused." State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div.

1994) (quoting State v. Weleck, 10 N.J. 355, 364 (1952)),

12 A-1449-12T4 certif. denied, 140 N.J. 277 (1995). Against this standard, we

conclude that there was no abuse of discretion.

A judge should not dismiss an indictment except on the

clearest and plainest ground, where it is "manifestly deficient

or palpably defective." Hogan, supra, 144 N.J. at 228-29. When

reviewing such motions, the court must construe the facts in the

light most favorable to the State. State v. Fleischman, 383

N.J. Super. 396, 398 (App. Div. 2006), aff'd, 189 N.J. 539

(2007). "As long as an indictment alleges all of the essential

facts of the crime, the charge is deemed sufficiently stated."

State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.),

certif. denied, 151 N.J. 77 (1997). We have stated that "the

quantum of this evidence . . . need not be great." Ibid.

A.

The State produced sufficient evidence to establish a prima

facie case of theft of movable property. N.J.S.A. 2C:20-3a

provides that "[a] person is guilty of theft if he unlawfully

takes, or exercises unlawful control over, movable property of

another with purpose to deprive him thereof." Here, theft is a

third-degree offense pursuant to N.J.S.A. 2C:20-2b(2)(g). At

this stage in the case, we must look at the facts presented to

the grand jury in the light most favorable to the State. From

this perspective, the State introduced evidence that defendant

13 A-1449-12T4 violated the Board's "internal policies[,] guidelines[,] and

regulations[,]" by taking its highly confidential original

documents, which suggests that defendant did so with the purpose

to deprive the Board. The State also introduced evidence

suggesting that by taking these documents, defendant intended to

disrupt the psychiatric treatment of students with special

needs, and also exposed the Board to liability in the event of a

state or federal Medicaid audit.

Defendant's counsel contends, like he did before the

criminal judge, that the State is unable to show that defendant

"unlawfully" took the documents because "Quinlan says it's legal

to take confidential documents." We disagree with defendant's

reading of Quinlan. We also emphasize that the grand jury is an

accusatorial rather than an adjudicative body; grand jurors do

not determine guilt or innocence. Hogan, supra, 144 N.J. at

227. A grand jury is simply "asked to determine whether 'a

basis exists for subjecting the accused to a trial.'" Ibid.

(quoting Trap Rock Indus., Inc. v. Kohl, 59 N.J. 471, 487

(1971), cert. denied, 405 U.S. 1065, 92 S. Ct. 1500, 31 L. Ed.

2d 796 (1972)). Here, the record demonstrates that the grand

jury correctly performed its limited role.

We agree with the trial judge that Quinlan is factually

distinguishable. The plaintiff in Quinlan, a private individual

14 A-1449-12T4 rather than a public employee like defendant, contended that her

employer discriminated against her when it promoted a less

qualified man to the position of supervisor. Quinlan, supra,

204 N.J. at 244. During discovery in her LAD case, her

employer, a private company, learned that Quinlan had taken

confidential documents. Ibid. Thereafter, her employer

terminated her. Ibid.

The Supreme Court framed the issue in Quinlan as

"creat[ing] the appropriate framework against which [civil]

courts may weigh and consider whether, and to what extent, an

employee who finds, copies, and discloses an employer's

otherwise confidential documents in the context of prosecuting a

discrimination case was engaged in conduct protected by the

LAD." Id. at 245. In undertaking that challenge, the Court

balanced the rights of "individual plaintiffs seeking to

vindicate their rights and employers legitimately expecting that

they will not be required to tolerate acts amounting to self-

help or thievery." Id. at 245-46. The Court created a seven-

part analysis for use in a civil case, "a flexible, totality of

the circumstances approach."

Civil judges apply this seven-part analysis by considering,

in part, such things as whether: "discovery of the document was

due to the employee's intentional acts outside . . . her

15 A-1449-12T4 ordinary duties"; the document "includes personal or

confidential information such as Social Security numbers or

medical information about other people"; there is a "company

policy on privacy or confidentiality that the employee's

disclosure has violated"; use of the document "is unduly

disruptive to the employer's ordinary business"; the employee

can obtain the document by "describing it or identifying its

existence to counsel so that it might be requested in

discovery"; and whether there is "a likelihood that the employer

would not maintain it, or would have discarded it in the

ordinary course of business, that it would have been destroyed,

or that its authenticity would be called into doubt." Id. at

269-71. The Court applied this balancing test and stated that

[a]pplying [the Quinlan analysis] to the documents before the court, we find ourselves in agreement with the distinction that the trial court drew. The trial court correctly told the jury that plaintiff's act of taking the documents, . . . was not protected [activity] and that the employer was free to terminate her for doing so.

[Id. at 273.]

We reject defendant's argument that the holding in Quinlan

essentially prevents the State from introducing evidence before

the grand jury that demonstrates a prima facie showing that

defendant "unlawfully t[ook], or exercise[d] unlawful control

over" the documents. Quinlan did not establish a bright-line

16 A-1449-12T4 rule that automatically entitled defendant to take the Board's

highly confidential original documents. In fact, the Court in

Quinlan made clear that even with the availability of its

multifaceted analysis, employees

run the significant risk that the conduct in which they engage will not be found by a court to fall within the protection [the Quinlan analysis] creates. The risk of self-help is high and the risk that a [petit civil] jury will reject a plaintiff's argument that he or she was fired for using the document, rather than for finding it and taking it in the first place, will serve as an important limitation upon any realization of the fears that the employers have expressed to the Court.8

[Id. at 272 (emphasis added).]

B.

facie case of official misconduct. Here, the official

misconduct charge is a second-degree offense pursuant to

N.J.S.A. 2C:30-2, because the State presented evidence to the

grand jury that defendant derived a non-pecuniary benefit. See

State v. Phelps, 187 N.J. Super. 364, 375 (App. Div. 1983)

8 We emphasize that the Quinlan majority gave this warning when it balanced the interests of plaintiffs seeking to vindicate their rights against employers' legitimate expectation "that they will not be required to tolerate acts amounting to self- help or thievery." Id. at 245-46. Thus, the Court gave sufficient notice to employees that by resorting to self-help, their conduct may also be illegal.

17 A-1449-12T4 (stating that "a person may be convicted of the second[-]degree

offense of official misconduct even though no pecuniary benefit

is involved"), aff’d, 96 N.J. 500 (1984). Pursuant to N.J.S.A.

2C:30-2b, official misconduct is a third-degree offense "[i]f

the benefit obtained or sought to be obtained . . . is of a

value of [$200] or less." The Court stated that

the Legislature . . . intended to treat more moderately offenses which, by an objective standard, could be measured to be relatively less consequential in nature than would otherwise be the case. It carved out a type of official misconduct for lenient treatment. But the Legislature did not in the downgrading provision deal with a benefit not subject to pecuniary measurement.

[Phelps, supra, 187 N.J. Super. at 375.]

Pursuant to N.J.S.A. 2C:30-2a,

[a] public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:

a. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner.

Thus, pursuant to this section of the statute, official

misconduct has three elements: (1) a defendant must be a "public

servant," (2) "who committed 'an act relating to his office,'

which constituted 'an unauthorized exercise of his official

18 A-1449-12T4 functions,' knowing that it was unauthorized or committed in an

unauthorized manner," and (3) had a purpose "to obtain a benefit

for himself or another" or "to injure or deprive another of a

benefit." State v. Quezada, 402 N.J. Super. 277, 283 (App. Div.

2008).

The State made a prima facie showing that defendant is a

"public servant," defined by N.J.S.A. 2C:27-1g as any "employee

of government, . . . [who performs] a governmental function[.]"

"The term 'public servant' is 'defined broadly for purposes of

[official] misconduct . . . for . . . offenses against public

administration.'" State v. Perez, 185 N.J. 204, 206 (2005). As

long as defendant performed a "governmental function," she is

considered to be a public servant under this section of the

statute. See Quezada, supra, 402 N.J. Super. at 283 (focusing

on the actor's performance of a governmental function); see also

Perez, supra, 185 N.J. at 207 (stating that a clerk of the North

Bergen Department of Motor Vehicle's office is a "public

servant" because she performed governmental functions). The

Board, which is itself a public entity under N.J.S.A. 59:1-3, is

unquestionably a "governmental vehicle through which [the

constitutional obligation to provide a] mandatory education

takes place." Tonelli v. Bd. of Educ., 185 N.J. 438, 450

(2005). Here, defendant performed a governmental function by

19 A-1449-12T4 serving public school students with special needs and their

families as a clerk for a child study team in the Board's

Special Services Department.

The State also made a prima facie showing that defendant

committed "an act relating to [her] office" which constituted

"an unauthorized exercise of [her] official functions," knowing

that it was unauthorized or committed in an unauthorized manner.

General counsel testified that the Board trained and informed

its employees, "via internal policies[,] guidelines[,] and

regulations[,] that the documents defendant took are highly

confidential and are not to be tampered with in any way." He

asserted that these documents are not to be "disclosed [or]

taken" by Board employees. Giving the State the benefit of all

reasonable inferences, as we must on a motion to dismiss an

indictment, the State showed that it notified defendant in

writing that she was unauthorized to remove the five documents

presented to the grand jury.

Finally, the State produced sufficient evidence to

establish a prima facie showing that defendant had a purpose "to

obtain a benefit for [herself] or another" or "to injure or

deprive another of a benefit." A "benefit" is a "gain or

advantage or anything so regarded by the beneficiary." Phelps,

supra, 187 N.J. Super. at 375; see also N.J.S.A. 2C:27-1a. The

20 A-1449-12T4 statute does not require a malicious intent, but rather an

"affirmative act." State v. Kueny, 411 N.J. Super. 392, 404

(App. Div. 2010). General counsel informed the grand jury that

defendant sued the Board and that defendant's civil case was

pending. Looking at the facts in the light most favorable to

the State, Fleischman, supra, 383 N.J. Super. at 398, defendant

acted with the purpose to derive a benefit by taking the

documents to support her civil lawsuit, or to "injure or

deprive" the Board of its ability to defend the allegations in

the civil suit. Moreover, the removal of copies and original

Board documents exposed the Board to potential liability by

making the Board unprepared for an audit related to Medicaid

reimbursement, and by possibly disrupting psychiatric treatment

for students with special needs.

IV.

Defendant argues that "if she committed any wrongdoing,"

she made an "honest error." Defendant asserts that because she

may have exercised "improper judgment on the job," by taking

documents that may constitute an "unauthorized" act, the judge

erred by denying her motion to dismiss the indictment.

Defendant equated her decision to remove the Board's highly

confidential financial and medical records with that of a

janitor erring by taking home a mop. The premise of her

21 A-1449-12T4 argument is that the Legislature did not intend to include her

conduct as activity that constitutes official misconduct.

"The crime of official misconduct serves to insure that

those who stand in a fiduciary relationship to the public [such

as defendant] will serve with the highest fidelity, will

exercise their discretion reasonably, and will display good

faith, honesty, and integrity." Schenkolewski, supra, 301 N.J.

Super. at 145-46. As we have previously stated, "[a]s long as

an indictment alleges all of the essential facts of the crime,

the charge is deemed sufficiently stated." Id. at 137.

Defendant stood in "a fiduciary relationship" to the public and

therefore was expected to serve with the "highest fidelity."

Thus, we reject defendant's contention that the Legislature did

not intend to include within the official misconduct statute the

activity of taking highly confidential documents while

performing a governmental function as a public servant.

Defendant's "honest error" argument is not insignificant,

however, because it amounts essentially to a claim of right

defense. The time to assert such a defense, though, is at

trial, rather than as a basis to dismiss the indictment.

Pursuant to N.J.S.A. 2C:20-2c, a defendant may assert the

affirmative defense that she "(1) [w]as unaware that the

property . . . was that of another; [or] (2) [a]cted under an

22 A-1449-12T4 honest claim of right to the property . . . that [s]he had a

right to acquire or dispose of it as [s]he did." The jury

charge for this defense states in part that

[i]n addition to . . . her general denial of guilt, the defendant contends that . . . she is not guilty of [theft and official misconduct] because . . . she was acting pursuant to a claim of right to the property.

Our law provides that it is a defense to prosecution[9] for [theft] that the defendant acted under an honest claim of right to the property . . . or that . . . she had a right to acquire or dispose of the property as . . . she did. An honest claim is one that is genuinely, though not necessarily correctly, believed by the defendant.

This defense, you should note, is not limited to situations in which a defendant believed . . . she owned the property.[] Rather, it includes those situations in which the defendant honestly, although not necessarily correctly, believed that . . . she had either the right or the authorization to receive, take, acquire, or dispose of the property.

As I have mentioned to you, since this is a criminal case the burden of proof is on the State. The defendant is,

9 Judges are reminded to omit the phrase "affirmative defense," to avoid any suggestion that the defendant bears the burden of proof on a claim of right defense. Nevertheless, the defense is an affirmative one, and the charge should only be given when there is some evidence that would support it. N.J.S.A. 2C:1- 13b(1); see State v. Ippolito, 287 N.J. Super. 375 (App. Div.) (finding an evidential basis for giving this charge), certif. denied, 144 N.J. 585 (1996).

23 A-1449-12T4 therefore, not required to prove that . . . she acted pursuant to a claim of right; rather the burden is on the State to prove that the defendant did not act pursuant to a claim of right. . . .

. . . .

[I]f the State has failed to prove beyond a reasonable doubt . . . that the defendant did not honestly believe . . . she had a right to the property or was authorized to receive, take, acquire, or dispose of the property, then you must find the defendant not guilty.

At oral argument before us, counsel addressed questions

regarding whether the judge should have conducted what was

described as a "Quinlan hearing" to resolve whether to grant

defendant's motion to dismiss the indictment.10 Here, the judge

performed the Quinlan analysis out of an abundance of caution.

We are satisfied, however, that Quinlan does not apply directly

to the facts presented here because the Supreme Court did not

intend its holding in that civil case to act as a means of

mounting a facial challenge to the indictment in this criminal

case. As we have discussed at length infra, the standards for

10 We note that in general, prosecutors act independently from the "civil system." See Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 63-64 (App. Div. 2002) (indicating in the context of a Title 9 abuse and neglect case that "the criminal justice system acts separately . . . [from] the civil system") (quoting State v. P.Z., 152 N.J. 86, 100 (1997)) (internal quotation marks omitted).

24 A-1449-12T4 assessing the sufficiency of an indictment are well-settled.

Hogan, supra, 144 N.J. at 228-29. There is nothing in Quinlan

that signals any deviation from Hogan.

V.

Defendant contends that the indictment must be dismissed

because the State failed to present to the grand jury

exculpatory evidence "relating to" her LAD lawsuit against the

Board. Defense counsel argues that defendant's taking of the

documents to support her civil lawsuit against the Board "is

legal . . . under Quinlan," and that the assistant prosecutor

failed to present defendant's purported reason for taking the

documents. Defendant argues, therefore, that this evidence

would have negated her guilt.

A prosecutor's duty to present exculpatory evidence to a

grand jury arises "only if the evidence satisfies two

requirements: it must directly negate guilt and must also be

clearly exculpatory." Hogan, supra, 144 N.J. at 237. Limiting

the prosecutor's duty to presenting "evidence that directly

negates . . . guilt" recognizes that "the sole issue before the

grand jury is whether the State has made out a prima facie case

of the accused's guilt." Ibid. Exculpatory evidence must

"squarely refute[] an element of the crime." Ibid. The Court

stated that

25 A-1449-12T4 [a]scertaining the exculpatory value of evidence at such an early stage of the proceedings can be difficult, . . . and courts should act with substantial caution before concluding that a prosecutor's decision in that regard was erroneous. We emphasize that only in the exceptional case will a prosecutor's failure to present exculpatory evidence to a grand jury constitute grounds for challenging an indictment.

[Id. at 238-39 (citation omitted).]

Here, presenting evidence to the grand jury that defendant

took the documents to pursue her civil lawsuit against the Board

is not "clearly exculpatory." Even if Quinlan were directly on

point, which it is not, "what the employee did with the

document" is only one factor to consider pursuant to the Quinlan

analysis. Undertaking the Quinlan analysis is "a difficult . .

. task," Quinlan, supra, 204 N.J. at 271, and defendant's

purported reason for taking the documents does not in and of

itself constitute "clearly exculpatory" evidence.

There is also no credible evidence that the State deceived

the grand jury during its presentment of this matter. See

Hogan, supra, 144 N.J. at 236 (maintaining that "the grand jury

cannot be denied access to evidence that is credible, material,

and so clearly exculpatory as to induce a rational grand juror

that the State has not made out a prima facie case against the

accused"). General counsel informed the grand jury that

26 A-1449-12T4 defendant's lawsuit against the Board was "outstanding." In

fact, the grand jury at one point acknowledged that defendant

had filed a suit against the Board and discussed among

themselves the possibility that she took the documents to

support her civil case.

JUROR: Could I ask a question?

MR. HERNANDEZ: Yes, ma'am.

JUROR: What — I'm just curious. I thought I heard someone . . . say that she was going to sue the Board.

MR. HERNANDEZ: Yes ma'am.

JUROR: But how is that relevant . . . [?]

(At this time, discussion occurs among Grand Jurors.)

MR. HERNANDEZ: I believe you answered your own question.

The assistant prosecutor correctly refrained from

speculating about defendant's purported reason for taking the

documents. See ibid. (stating that "the prosecutor's sole

obligation is to present a prima facie case that the accused has

committed a crime"). In fact, the grand jury was not expected

to resolve the credibility of a potential affirmative claim of

right defense. Ibid. (indicating that "[c]redibility

determinations and resolution of factual disputes are reserved

almost exclusively for the petit jury"). Therefore, presenting

27 A-1449-12T4 such evidence to the grand jury would not "squarely refute[] an

element of the crime." Thus, the assistant prosecutor's

unwillingness to speculate about defendant's purported reason

for taking the documents did not interfere with the grand jury's

decision-making.

VI.

Defendant maintains that allowing the State to criminalize

her conduct through this prosecution will have a chilling effect

on "potential plaintiffs in LAD claims." Defendant implies that

prosecuting her for theft and official misconduct is against

LAD's public policy of rooting out discrimination in the

workplace. This implication amounts to a request that we hold

it is against public policy to criminally prosecute employees

for taking employer public documents.

At the outset, we note that whether to charge an individual

suspected of criminal offenses is within the prosecutor's

discretion. State v. DiFrisco, 118 N.J. 253, 265 (1990) (citing

State v. Hermann, 80 N.J. 122, 127 (1979)). "[T]he Executive

Branch has exclusive authority and absolute discretion to decide

whether to prosecute a case." United States v. Nixon, 418 U.S.

683, 693, 94 S. Ct. 3090, 3100, 41 L. Ed. 2d 1039, 1055 (1974),

superseded by statute, Fed. R. Evid. 104(a). "Beyond purely

constitutional concerns, the judiciary generally defers to the

28 A-1449-12T4 prosecuting attorney's discretion to charge or not to charge

because enforcement decisions are the product of prosecutorial

value judgments and expertise, and [because] courts lack

standards by which to review these decisions." DiFrisco, supra,

118 N.J. at 265 (alteration in original) (citation and internal

quotation marks omitted).

As an intermediate appellate court, we do not have the

power to determine, as a matter of public policy, what should be

considered criminally culpable conduct. The framers of the New

Jersey Constitution expressed that

[t]he powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.

[N.J. Const., art. III, ¶ 1.]

We discern no constitutional basis for the judiciary, much less

this court, to intrude into the policy-making arena, an area

traditionally reserved in our tripartite system of governance to

the legislative and executive branches. As ably expressed by

Chief Justice Vanderbilt sixty-three years ago, "no deviation

from the . . . separation of powers [doctrine] will be tolerated

which impairs the essential integrity of one of the [three]

29 A-1449-12T4 branches of government." Massett Bldg. Co. v. Bennett, 4 N.J.

53, 57 (1950).

Our commitment to this fundamental principle of governance

has been reaffirmed and reflected in a variety of opinions

issued by the Supreme Court as well as this court. See Ross v.

Transp. of N.J., 114 N.J. 132, 147 (1989) (refusing to carve out

an exception to the statutory framework governing governmental

limitations on tort liability); In re Closing of Jamesburg High

Sch., 83 N.J. 540, 550 (1980) (holding that "important policy

question[s]" should be left to the Legislature); Robinson v.

Zorn, 430 N.J. Super. 312, 324-25 (App. Div.) (declining to

create an exception to the policy governing governmental

limitations on liability reflected in the Tort Claims Act,

N.J.S.A. 59:1-1 to -12.3), certif. denied, 216 N.J. 8 (2013); In

re Veto by Governor Christie, 429 N.J. Super. 277, 285-86 (App.

Div. 2012) (refusing to "interven[e]" where the Legislature

decided not to amend a 2001 statute that is related to and

arguably inconsistent with comprehensive 2011 legislation),

certif. denied, 214 N.J. 116 (2013); Brick v. Spivak, 95 N.J.

Super. 401, 406 (App. Div.) (stating that "even if [the court]

were to assume that there was an inadvertent omission" in the

pertinent statute, the court "should not assume the function of

the Legislature and rewrite the law to include therein something

30 A-1449-12T4 which those charged with the legislative responsibility might

have inserted if the matter had been called to their

attention"), aff'd o.b., 49 N.J. 400 (1967). Following this

well-settled precedent, we leave to the wisdom of the

Legislature further consideration of whether to amend the theft

and official misconduct statutes. State ex rel. B.P.C., 421

N.J. Super. 329, 347 (App. Div. 2011) ("Our role as a court is

not to question the wisdom of legislative enactments, but to

enforce them as long as they are not contrary to constitutional

principles.").

Although defendant couches her argument broadly, contending

that the State's prosecution will have a chilling effect on

"potential plaintiffs in LAD claims," we consider this

contention under the facts of this case. The Court in Quinlan

considered the potential concern that an employer would destroy

inculpatory documents or that otherwise relevant documents would

become unobtainable if an employee did not resort to self-help

measures to acquire confidential documents pertinent to the

employee's LAD case. But here there is no evidence to suggest

that the documents necessary to prove defendant's case against

the Board would have been unobtainable by using the ordinary

lawful means for securing discovery. Defendant does not argue

31 A-1449-12T4 that she limited her self-help measures to a document or

documents that were clearly inculpatory, so-called "smoking gun"

evidence, to support her claims. Nor does defendant assert on

appeal that she took the documents because "there was a

likelihood that the [Board] would not maintain [them], or would

have discarded [them] in the ordinary course of business, that

[they] would have been destroyed, or that [their] authenticity

would be called into doubt." Quinlan, supra, 204 N.J. at 271.

Likewise, she does not contend that the documents would have

been unavailable if she described them or identified their

existence to the lawyer representing her in the civil case so

that he might demand them in discovery.

Rather, defendant asserts in general that permitting the

State's prosecution of her for official misconduct and theft

would have a chilling effect on "potential plaintiffs in LAD

claims." (Emphasis added). A plaintiff in a discrimination

case such as this, however, has a variety of options by which to

obtain information that is reasonably calculated to lead to the

discovery of admissible evidence, including, but not limited to

(1) seeking, under certain circumstances, to preserve evidence

through taking depositions and obtaining documents before filing

a lawsuit (R. 4:11-1); (2) requesting documents pursuant to a

protective order (R. 4:10-3); (3) taking depositions after the

32 A-1449-12T4 commencement of the action (R. 4:14-1); (4) subpoenaing non-

party witnesses for depositions (R. 4:14-7); (5) propounding

interrogatories (R. 4:17); (6) serving document demands (R.

4:18); (7) propounding requests for admissions (R. 4:22-1); (8)

obtaining orders to make discovery (R. 4:23); (9) seeking

sanctions for failure to comply with court orders (R. 4:23-2);

and (10) obtaining further sanctions for failure to make

discovery (R. 4:23-5). There is no credible suggestion in this

case that any of these lawful discovery avenues were unavailable

to defendant.

There are also safeguards in place for employees like

defendant who might believe that their employers will hide or

destroy evidence. For example, a trial judge in a civil case

may give an adverse inference charge to the jury, that the

destroyed or concealed evidence would have been unfavorable to

the employer. Under certain circumstances, a judge might issue

sanctions against the employer or its counsel, and a party may

bring a new cause of action based on the tort of fraudulent

concealment. Robertet Flavors, Inc. v. Tri-Form Constr., Inc.,

203 N.J. 252, 272-74 (2010); see also Bldg. Materials Corp. of

America v. Allstate Ins., 424 N.J. Super. 448, 472 (App. Div.)

(explaining various methods of addressing spoliation of

evidence), certif. denied, 212 N.J. 198 (2012).

33 A-1449-12T4 There are other safeguards in place to deter employers from

pursuing criminal prosecution unfairly against employees. For

instance, an aggrieved party may bring a claim for malicious

prosecution if she can show that "(1) a criminal action was

instituted by [the] defendant against [her]; (2) the action was

motivated by malice; (3) there was an absence of probable cause

to prosecute; and (4) the action was terminated favorably to the

plaintiff." LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009)

(citing Lind v. Schmid, 67 N.J. 255, 262 (1975)). And,

importantly, pursuant to R.P.C. 3.4(g), a lawyer runs the risk

of ethics charges if that lawyer "present[s], participate[s] in

presenting, or threaten[s] to present criminal charges to obtain

an improper advantage in a civil matter." See Ruberton v.

Gabage, 280 N.J. Super. 125, 134 (App. Div.) (indicating that

"counsel walks a fine line in view of R.P.C. 3.4(g)"), certif.

denied, 142 N.J. 451 (1995).

Moreover, defense counsel has not contended that defendant

photocopied or took a document that "clearly indicates that the

[Board] was engaged in illegal conduct." Quinlan, supra, 204

N.J. at 282. Although defense counsel states generally the

policy concern that indicting employees who take such documents

would undermine LAD's purpose of rooting out discrimination,

counsel does not point to any "smoking gun" document in this

34 A-1449-12T4 case. Nor does counsel explain why the documents were relevant

to defendant's civil claims. Instead, counsel has noted that

defendant's counsel in her civil case merely "chose" to use the

documents. As Justice Albin stated in his dissent in Quinlan,

in the circumstance of "classic whistle-blowing activity," "[a]

test to balance the competing interests of an employee and

employer and the public good, . . . may well be required."

Ibid. Although an affirmative defense of a claim of right would

also be available to an employee who took, for example, the

"smoking gun," we need not reach what consequence, if any, such

a potential balancing test would have on the State's ability to

establish before a grand jury a prima facie case of official

misconduct or theft because that question is not squarely before

us.

VII.

Our dissenting colleague concludes that the indictment

should be dismissed with prejudice based on fundamental fairness

grounds. She maintains that it is unfair to prosecute employees

who reasonably believe that they are entitled to take employer

documents to support LAD and CEPA claims. To dismiss the

indictment as suggested by our colleague, however, would amount

to the judiciary establishing a public policy that employees

must be categorically insulated from criminal prosecution under

35 A-1449-12T4 the theft and official misconduct statutes if they take

confidential employer documents to support potential LAD and

CEPA claims. Such an approach violates the separation of powers

doctrine and requires a sweeping application of the fundamental

fairness doctrine beyond that currently adopted by our Supreme

Court. As we have stated in Point VI A, we leave that policy

question to the wisdom of the Legislature.

The fundamental fairness doctrine applies "when the scope

of a particular constitutional protection has not been extended

to protect a defendant." State v. Yoskowitz, 116 N.J. 679, 705

(1989) (emphasis added); see, e.g., State v. Johnson, 127 N.J.

458, 473-74, 483 (1992) (recognizing an entrapment defense based

on fundamental fairness, but reversing dismissal of the

indictment under the facts of the case); State v. Gaffey, 92

N.J. 374, 388-89 (1983) (permitting dismissal of an indictment

where a defendant has been deemed incompetent to stand trial,

institutionalized for an "adequate period of time," and remains

unfit to stand trial); State v. Sugar, 84 N.J. 1, 14 (1980)

(stating that a prosecutor's eavesdropping on attorney-client

communications would violate fundamental fairness); State v.

Riley, 242 N.J. Super. 113, 118 (App. Div. 1990) (dismissing

indictment where prosecutor breached an agreement not to use

defendant-informant's statement against him); State v. Calvacca,

36 A-1449-12T4 199 N.J. Super. 434, 440-41 (App. Div. 1985) (vacating part of a

sentence to prevent "fundamentally unfair dual punishment").

Similarly, our Supreme Court has stated when a court may

apply fundamental fairness to dismiss an indictment, such as

when protections against double jeopardy do not apply,

successive trials have not resulted in conviction, and the court

determines that "the chance of the State's obtaining a

conviction upon further retrial is highly unlikely." State v.

Abbati, 99 N.J. 418, 435 (1985) (stating that a dismissing court

must "accord careful consideration to the status of the

individual defendant" with regard to listed factors, and

remanding the case for a determination on whether dismissal was

warranted based on the specific circumstances of the case); see

also State v. Dunns, 266 N.J. Super. 349, 381 (App. Div.),

certif. denied, 134 N.J. 567 (1993). Cf. State v. Cruz, 171

N.J. 419, 432 (2002) (holding that dismissal based on

fundamental fairness was unwarranted after one jury trial

resulted in a hung jury); State v. Ruffin, 371 N.J. Super. 371,

386 (App. Div. 2004) (reversing a trial court's dismissal

because the elements of fundamental fairness in favor of

dismissal were "wholly absent"); State v. Torres, 328 N.J.

Super. 77, 94-95 (App. Div. 2000) (holding that prosecutorial

37 A-1449-12T4 misconduct resulting in a mistrial did not warrant dismissal of

the defendant's indictment).

The Court has declined to adopt a broader application of

the doctrine. State v. Del Fino, 100 N.J. 154, 160 (1985)

(stating that "it is by no means clear that the Appellate

Division was correct in concluding that, as a matter of policy,

'fundamental fairness' itself dictates that each of [multiple]

charged conspirators must receive identical treatment," such

that an indictment dismissed as defective as to one co-

conspirator must also be dismissed as to the other co-

conspirator).

After carefully considering the record and the briefs, we

conclude that defendant's remaining arguments are "without

sufficient merit to warrant discussion in a written opinion."

R. 2:11-3(e)(2). On this record, we therefore conclude that

there was probable cause for the grand jury to find that

defendant committed the crimes of theft and official misconduct.

Affirmed.

38 A-1449-12T4 _____________________________________

SIMONELLI, J.A.D., dissenting.

Although a defendant seeking dismissal of an indictment

bears a heavy burden, the indictment in this case should be

dismissed with prejudice. It is fundamentally unfair to

criminally prosecute and imprison an individual for theft,

N.J.S.A. 2C:20-3a, and official misconduct, N.J.S.A. 2C:30-2a1

for taking or copying confidential employer documents while

engaged in protected activity pursuant to the Conscientious

Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14,2 and the

New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to

-49. The law gives no fair warning the conduct is illegal.

I begin with a brief review of the prohibitions,

protections and encouragements the Legislature established in

the LAD and CEPA. "[T]he essential purpose of the LAD is the

1 The grand jury indicted Ivonne Saavedra for second-degree official misconduct, N.J.S.A. 2C:30-2a. A second-degree crime carries a presumption of imprisonment. N.J.S.A. 2C:44-1d. Thus, Saavedra faces a five- to ten-year term of imprisonment if convicted of this crime. Ibid. 2 Saavedra raised her CEPA claim in the first count of her complaint, alleging she was subjected to retaliation and harassment as a result of her complaints about her employer's violations of law and public policy, including pay irregularities, employee abuse of vacation time, and violations of the Family Medical Leave Act, 29 U.S.C.A. §§ 2601-2654, the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 to -16, and child study regulations. 'eradication of the cancer of discrimination.'" Quinlan v.

Curtiss-Wright Corp., 204 N.J. 239, 258 (2010) (quoting Fuchilla

v. Layman, 109 N.J. 319, 334, cert. denied 488 U.S. 826, 109 S.

Ct. 75, 102 L. Ed. 2d 51 (1988)) (internal quotation marks

omitted). The LAD protects not only the aggrieved employee, but

also the public's strong interest in a discrimination-free

workplace, and acknowledges a well-established tenet of New

Jersey jurisprudence that freedom from discrimination is one of

the fundamental principles of our society. Fuchilla, supra, 109

N.J. at 334-35.

The LAD prohibits employment discrimination because of

race, religion, sex, or other protected status. Cutler v. Dorn,

196 N.J. 419, 430 (2008). The LAD also makes it unlawful to

retaliate against a person who

has opposed any practices or acts forbidden under [the LAD] or because that person has filed a complaint, testified or assisted in any proceeding under [the LAD] or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the LAD].

[N.J.S.A. 10:5-12d.]

Our Supreme Court has emphasized that the LAD's protection

against retaliation

2 A-1449-12T4 is broad and pervasive, and must be seen as necessarily designed to promote the integrity of the underlying antidiscrimination policies of the [LAD] by protecting against reprisals any person who has sought to protect his or her own rights not to be discriminated against or who has acted to support such conduct.

[Quinlan, supra, 204 N.J. at 259 (quoting Craig v. Suburban Cablevision, Inc., 274 N.J. Super. 303, 310 (App. Div. 1994), aff'd, 140 N.J. 623 (1995)) (internal quotation marks omitted).]

In conjunction with the LAD, the Legislature designed CEPA

to provide broad protections against employer retaliation for

employees acting within the public interest. D'Annunzio v.

Prudential Ins. Co. of Am., 192 N.J. 110, 114 (2007); Racanelli

v. Cnty. of Passaic, 417 N.J. Super. 52, 56-57, 59 (App. Div.

2010). CEPA promotes "the 'strong public policy' of

'reaffirm[ing] . . . this State's repugnance to an employer's

retaliation against an employee who has done nothing more than

assert statutory rights and protections.'" Yurick v. State, 184

N.J. 70, 77-78 (2005) (alterations in original) (quoting

Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431

(1994)) (internal quotation marks omitted).

CEPA's "purpose is to protect and encourage employees to

report illegal or unethical workplace activities and to

discourage public and private sector employers from engaging in

such conduct." Abbamont, supra, 138 N.J. at 431 (emphasis

3 A-1449-12T4 added). "The object of CEPA is not to make lawyers out of

conscientious employees but rather to prevent retaliation

against those employees who object to employer conduct that they

reasonably believe to be unlawful or indisputably dangerous to

the public health, safety or welfare." Mehlman v. Mobil Oil

Corp., 153 N.J. 163, 193-94 (1998). Accordingly, CEPA makes it

"unlawful for an employer to retaliate against an employee who

report[s] illegal or unethical workplace activities," Donelson

v. DuPont Chambers Works, 206 N.J. 243, 256-57 (2011)

(alteration in original) (quoting Dzwonar v. McDevitt, 177 N.J.

451, 461-62 (2003)), and subjects employers, both public and

private, to penalties, including punitive damages. Abbamont,

supra, 138 N.J. at 426. "CEPA is a remedial statute that

'promotes a strong public policy of the State' and 'therefore

should be construed liberally to effectuate its important social

goal.'" Battaglia v. United Parcel Serv., Inc., 214 N.J. 518,

555 (2013) (quoting Abbamont, supra, 138 N.J. at 431).

CEPA clearly encourages employees to report, object to, or

refuse to participate in an employer's or co-employee's

activity, policy or practice the employees reasonably believe

violates "a law, or a rule or regulation promulgated pursuant to

law," or "is fraudulent or criminal." N.J.S.A. 34:19-3a(1)-(2),

c(1)-(2); see also Donelson, supra, 206 N.J. at 255-56;

4 A-1449-12T4 Abbamont, supra, 138 N.J. 431. "The sine qua non of a CEPA

claim is not the actual occurrence of a violation of promulgated

authority or public policy, but rather the existence of a

reasonable belief to the effect that such authority or policy

has been breached." Mehlman v. Mobil Oil Corp., 291 N.J. Super.

98, 123 (App. Div. 1996), aff'd, 153 N.J. 163 (1998).

CEPA also clearly encourages whistleblowing employees to

provide information about illegal or unethical workplace

activities and protects them from retaliation for doing so.

N.J.S.A. 34:19-3b. Employees often provide information by

taking or copying confidential employer documents and

transmitting the documents to their attorneys, which Saavedra

did in this case.

I now turn to the pertinent criminal statutes. "A person

is guilty of theft if he unlawfully takes, or exercises unlawful

control over, movable property of another with purpose to

deprive him thereof." N.J.S.A. 2C:20-3a. A person is guilty of

official misconduct

when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit . . . [h]e commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner.

[N.J.S.A. 2C:30-2a.]

5 A-1449-12T4 "Unlike most crimes, as to which ignorance of the law is not

material, . . . an essential element of . . . official

misconduct is defendant's knowledge that the act he commits is

unauthorized." State v. Grimes, 235 N.J. Super. 75, 89 (App.

Div.) (citations omitted), certif. denied, 118 N.J. 222 (1989).

In order for a public servant to be aware that he or she is

committing an unauthorized act and thereby "fairly expose"

himself or herself to prosecution for official misconduct,

"there must be an available body of knowledge by which the

[public servant] had the chance to regulate his conduct. The

law must give a person of ordinary intelligence fair warning

what conduct is proscribed, so that he may act accordingly."

Id. at 89-90 (emphasis added). Thus, where an area of law or

regulation is so amorphous and uncertain that persons of

ordinary intelligence have no fair warning their conduct was

illegal, such conduct cannot be punished with criminal

prosecution. See State v. Kittrell, 145 N.J. 112, 130 (1996)

(holding that criminal statutes must "clearly define the conduct

prohibited and the penalties imposed" in order to satisfy the

notice requirements of the Due Process Clause). We have

emphatically and in no uncertain terms held that where the law

gives a person of ordinary intelligence no fair warning what

conduct is proscribed, "[i]n those circumstances, it is

6 A-1449-12T4 fundamentally unfair to subject a defendant to a criminal

prosecution." Grimes, supra, 235 N.J. Super. at 90. Similarly,

our Supreme Court has held that

[a] penal statute should not become a trap for a person of ordinary intelligence acting in good faith, but rather should give fair notice of conduct that is forbidden. A defendant should not be obliged to guess whether his conduct is criminal. Nor should the statute provide so little guidance to the police that law enforcement is so uncertain as to become arbitrary.

[State v. Lee, 96 N.J. 156, 166 (1984) (citations omitted).]

Neither the theft statute nor the public official statute

give fair warning that the taking or copying confidential

employer documents while engaged in CEPA- and/or LAD-protected

activity is "unlawful" or criminally "unauthorized."3 The LAD

and CEPA give no fair warning as well. In fact, CEPA does not

define the word "information" or prohibit or limit disclosure of

information contained in confidential employer documents.

By contrast, Quinlan permits employees to take or copy

confidential employer documents under certain circumstances,

3 Likewise, the Board's alleged policies and regulations relating to its confidential documents, which the State presented to the motion judge but not the grand jury, do not warn employees of any consequences, let alone criminal prosecution and imprisonment. The State never presented any evidence to the grand jury that Saavedra received or was actually aware of these alleged documents.

7 A-1449-12T4 which the majority declined to characterize as a "theft."

Quinlan, supra, 204 N.J. at 268-72.4 Further, Quinlan only

warned employees of the "significant risk" of adverse employment

action, such as termination, for their self-help activities, not

criminal prosecution and imprisonment. Id. at 272. Even

Justice Albin recognized that employees may be justified in

taking or copying confidential employer documents where the

documents "clearly indicate[] that the employer was engaged in

illegal conduct." Id. at 282 (Albin, J., dissenting). And

there are cases where whistleblowing employees prevailed while

relying on confidential employer documents. See, e.g., Mehlman,

supra, 153 N.J. at 174, 176; Parker v. M & T Chemicals, Inc.,

236 N.J. Super. 451, 453-54 (App. Div. 1989).

Under these circumstances, the law is so amorphous and

uncertain that lay persons of ordinary intelligence acting in

good faith pursuant to CEPA and/or the LAD have no fair warning

it is a crime to take or copy confidential employer documents

they may reasonably believe are relevant to their claims and

transmit those documents to their private attorneys.

Accordingly, it is fundamentally unfair to subject these

4 The Court also upheld the punitive damages award, in part, because the employer "branded [Quinlan] a thief." Id. at 276.

8 A-1449-12T4 individuals to criminal prosecution for theft and official

misconduct.

The majority does not dispute that the law gives no fair

warning the conduct at issue here is illegal. Instead, the

majority states that the judiciary should not expand the

doctrine of fundamental fairness to this case and that applying

the doctrine "would amount to the judiciary establishing a

public policy" categorically insulating employees who took or

copied employer documents to support their LAD and CEPA claims

from criminal prosecution under the theft and official

misconduct statutes. Supra at ___ (slip op. at 35-38).

I do not seek to "intrude into the policy-making arena", as

the majority suggests. Supra at ___ (slip op. at 29). Rather,

because the law, including the theft and official misconduct

statutes, provides no warning the conduct is proscribed, I

suggest that the judiciary expand and apply the doctrine of

fundamental fairness in order to ensure justice for all

employees who act in good faith pursuant to the LAD and/or CEPA.

See Zehl v. City of Elizabeth Bd. of Educ., 426 N.J. Super. 129,

137 (App. Div. 2012) (holding that "[t]he judiciary has more

than a significant stake in ensuring that it is able to operate

in a manner and under circumstances to meet the same policy

9 A-1449-12T4 objective for which remedial legislation strives, that is, to

ensure justice for all litigants").

The majority states, and I agree, that we must "leave to

the wisdom of the Legislature further consideration of whether

to amend the theft and official misconduct statutes." Supra at

___ (slip op. at 31) (emphasis added). It appears that applying

these statutes as presently written to the circumstances of this

case conflicts with the policies, prohibitions, protections and

encouragements the Legislature established in the LAD and CEPA. 5

Criminal prosecution and the threat of imprisonment seem to

interfere with and deprive employees of their clear rights and

protections under the LAD and CEPA, and improperly insulate

employers from what may be entirely legitimate claims exposing

illegal or unethical conduct. See Quinlan, supra, 204 N.J. at

268 (noting that an employer cannot insulate itself from a

legitimate claim of discrimination by accusing the employee of

theft of documents). Only the Legislature can resolve this

5 This conflict may also extend to the New Jersey False Claims Act (FCA), N.J.S.A. 2A:32C-1 to -17. The FCA encourages employees to disclose confidential employer information for the purpose of filing lawsuits alleging fraud of or by State-funded entities, such as the Board in this case. As with the LAD and CEPA, the Legislature has prohibited employers from taking adverse employment action against employees who disclose confidential employer information pursuant to the FCA. N.J.S.A. 2A:32C-10b. However, there is nothing prohibiting criminal prosecution of these employees for theft and official misconduct.

10 A-1449-12T4 conflict. Until the Legislature does so, however, the doctrine

of fundamental fairness should apply to preclude criminal

prosecution in this case.

For these reasons, I respectfully dissent.

11 A-1449-12T4