Opinion
DOCKET NO. A-4254-12T4
07-15-2014
IN THE MATTER OF THE DENIAL OF DEFENSE AND INDEMNIFICATION TO THE CAPE MAY COUNTY BOARD OF ELECTIONS BY THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY.
James B. Arsenault, Jr., Assistant County Counsel, argued the cause for appellant Cape May County (Barbara L. Bakley-Marino, Cape May County Counsel, attorney; Mr. Arsenault, on the briefs). Susan M. Scott, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Robert Lougy, Assistant Attorney General, of counsel; Ms. Scott, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Maven.
On appeal from the Office of the Attorney General, Department of Law and Public Safety.
James B. Arsenault, Jr., Assistant County Counsel, argued the cause for appellant Cape May County (Barbara L. Bakley-Marino, Cape May County Counsel, attorney; Mr. Arsenault, on the briefs).
Susan M. Scott, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Robert Lougy, Assistant Attorney General, of counsel; Ms. Scott, on the brief). PER CURIAM
Appellant Cape May County (the County) appeals from the March 28, 2013 final agency decision of the Department of Law and Public Safety, Office of the Attorney General (Attorney General) declining to provide the County defense and indemnification in connection with a tort action filed by a citizen-voter against the County and the Cape May County Board of Elections (Board). Because the function of a county election board is local in nature, and not one that has traditionally been the responsibility of the State, we affirm.
We discern the following facts from the record before us. On May 23, 2011, Kathleen McCullough filed a complaint alleging, among other things, malicious prosecution for voter fraud in violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 against the County, the Board, the Cape May County Prosecutor's Office, the City of Wildwood, and certain named individuals. Specifically, Ms. McCullough alleged she had incurred damages by having to defend against the County's rejection of her voter registration application.
McCullough v. Cnty. of Cape May, Docket No. CPM-L-0298-11.
On June 3, 2011, County Counsel requested that the Attorney General provide defense and indemnification to the Cape May County Prosecutor's Office and two named employees (Prosecutor-Defendants) as well as to the Board and its named employees (Board-Defendants). On June 24, 2011, the County reiterated its request for representation and indemnification. Having received no response, County Counsel submitted its request to the Lieutenant Governor and the Office of the Attorney General. In January 2012, the Attorney General granted defense and indemnification to the Prosecutor-Defendants, but did not tender any formal response as to the Board-Defendants.
According to the County, in October 2012, the Board filed a complaint against the State in the Superior Court, Law Division, seeking a declaratory judgment that the Attorney General was obligated to provide it defense or indemnification for the claims asserted in the McCullough case.
On March 28, 2013, the Attorney General denied the Board's request for defense and indemnification. The State provided two bases for its decision. First, it determined that because the Board registrars were neither State officers, nor employees under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, the Attorney General could not provide a defense. Second, the State determined the Board did not perform a traditionally recognized State function. Thus, under N.J.S.A. 19:45-4, the County was responsible for the Board's representation and liability. This appeal followed.
On that same date, the State filed a motion to dismiss the Board's complaint for lack of jurisdiction, which was granted on May 8, 2013.
N.J.S.A. 19:45-4 provides
All costs, charges and expenses incurred by the county clerk, county board, commissioner, superintendent, or any other officer or official of a county in carrying out the provisions of this title and the salaries of the members of the county board,
commissioner, superintendent, salaries and compensation for extra service of the clerk and other employees of the county board and the compensation of the members of the district boards, except as herein otherwise provided, shall be paid by the county upon certification by the county clerk, county board, commissioner, superintendent or other county officer or official[.]
On appeal, the County contends the State's decision to deny the requested defense was arbitrary, capricious, and unreasonable. The County, relying on Wright v. State, 169 N.J. 422 (2001), argues the Board, like the County Prosecutor, has a hybrid status in that it performs a State function by overseeing the State's election process, and its operations are supervised through the Secretary of State. Thus, the County argues, pursuant to Wright, the Attorney General must provide representation. We disagree.
Our review of decisions by administrative agencies is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable" or not supported by substantial credible evidence in the record as a whole. Ibid. (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In our review, we only determine:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[In re Carter, 191 N.J. 474, 482-83 (2007)]
"[I]f substantial evidence supports the agency's decision, a court may not substitute its own judgment for the agency's even though the court might have reached a different result . . . ." Id. at 483 (citation omitted).
A court owes "substantial deference to the agency's expertise and superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28 (2007). Deference controls even if the court would have reached a different result. Ibid. However, "we are 'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue[.]'" Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). Our review of a "strictly legal issue" is de novo. In re Langan Eng. & Environ. Svcs., Inc., 425 N.J. Super. 577, 581 (App. Div. 2012).
The County's reliance on Wright is misplaced. In Wright, the Supreme Court considered whether the State could be held vicariously liable for the tortious conduct of county prosecutors and their employees. Wright, supra, 169 N.J. at 429. Answering that question in the affirmative, the Court focused on "whether the function that the county prosecutors and their subordinates were performing during [the time that] the alleged wrongdoing [occurred was] a function that traditionally has been understood to be a State function and subject to State supervision in its execution." Id. at 454.
The Court held the State liable to provide representation solely because of the unique "hybrid" statutory relationship between the Attorney General and county prosecutors' offices. The Court reasoned that:
[t]he position of county prosecutor was created for the purpose of prosecuting [t]he criminal business of the State, N.J.S.A. 2A:158-4, and the Attorney General [is the] chief law enforcement officer, who maintain[s] a general supervision and control over all of the county prosecutors. N.J.S.A. 52:17B-98; N.J.S.A. 52:17B-103.
As viewed here, the Wright case is plainly inapposite. Unlike the statutory relationship between the Attorney General and county prosecutors in Wright, there is no similar nexus between the Attorney General and the Board. The Board's role in overseeing the election process in each respective county is not a traditionally recognized State function. The electoral structure set forth in Title 19 restricts the Board's handling of election matters to those in its own county. N.J.S.A. 19:1-1 to 63-28.
This legislatively designed scheme is subject to minimal State oversight. The Secretary of State, as the chief elections official for the State of New Jersey, has statutorily defined supervisory duties that are largely ministerial and limited. The Secretary of State is assigned specific functions, including, (1) certifying voting machines, N.J.S.A. 19:48-2; (2) serving as the filing officer for those persons seeking state and federal office, N.J.S.A. 19:13-9 and 19:23-6; (3) certifying election results in primary races for state and congressional races, N.J.S.A. 19:23-57; and (4) setting up the computer software, hardware, and security measures to implement the Help America Vote Act of 2002 (HOVA), N.J.S.A. 19:31-31(a).
Even if we were to conclude that the State's role in county elections is more than minimal, Wright does not mandate representation in all instances. The State would certainly not be required to intervene in a situation where, as here, the Board was acting within it local election duties at the time of the events alleged in the complaint. The Board was presumably acting in furtherance of its responsibilities for determining the validity of McCullough's voter registration application. See N.J.S.A. 19:31-5 to -19. That action would not invoke the supervision of the Secretary of State. See N.J.S.A. 19:31-2. ("The commissioner of registration shall have complete charge of the registration of all eligible voters within their respective counties.").
Lastly, the County urges this court to establish new precedent by extending the rational espoused in Wright to this case. The County argued that "strong public interests of the State in ensuring fair and free elections compels judicial action" to direct the Attorney General to provide a legal defense or indemnification to the Board. We are unpersuaded by the generalized commonalities offered by the County in support of its claim that a county board of elections shares the same level of purpose and relationship as that shared between the Attorney General and county prosecutors. In our view, and contrary to the County's analysis, the holding in Wright should be read narrowly to apply to the unique circumstances of that case. As discussed previously, N.J.S.A. 19:45-4 clearly and unequivocally allocates the Board's costs to the County, and we find no basis to deviate from the clear reading of this legislative provision.
In sum, we conclude the Attorney General's decision to deny the County's request was not arbitrary, capricious or unreasonable. A final determination by the Department declining to provide defense and indemnification "is entitled to the usual deference accorded to [an administrative agency] decision." Prado v. State, 186 N.J. 413, 427 (2006).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION