WE PLEASE HAVE APPEARANCES OF COUNSEL, APPEARANCES TENDERED. CHIEF
JUSTICE RABNER: WELCOME, COUNSEL, THANK YOU FOR JOINING US VIRTUALLY, MS. GOOIG, PLEASE
GO AHEAD. GOOIG GOOIG THANK YOU, YOUR HONOR. MAY I RESERVE TWO MINUTES OF MY TIME FOR
REBUTTAL, IF I NEED IT. CHIEF JUSTICE RABNER: YES. MS. GIGL:
THANK YOU, YOUR HONOR. CHIEF JUSTICE RABNER: YES. MS. GIGL:
MAY IT FLEES THE COURT, BEFORE THE COURT TODAY ARE FOUR CONSOLIDATED APPEALS THAT ALL
ARISE OUT OF A FEDERAL LAWSUIT INVOLVING THE MURDER OF A WOMAN BY HER EX-HUSBAND, WHO
AT THE TIME HE COMMITTED THE MURDER WAS A NEPTUNE POLICE OFFICER. THE ISSUE BEFORE THE
COURT IS WHETHER THE CONDUCT ALLEGED IN THE VARIOUS FEDERAL COMPLAINTS THAT WERE FILED
AND I'LL KIND OF GO THROUGH THAT FEDERAL PROCEDURAL HISTORY BECAUSE IT'S RELEVANT TO
THIS APPEAL. THE ISSUES RAISED AGAINST THE MONMOUTH COUNTY PROSECUTOR'S OFFICE DEFENDANT
S WHICH I WILL CALL ALL MY CLIENTS FOR PURPOSES OF THIS ARGUMENT, THE ISSUES WERE THAT
THEY FAILED TO INVESTIGATE THE ALLEGATIONS AGAINST PHILIP SEIDLE, THE THEN POLICE
OFFICER. THEY FAILED TO SEIZE HIS WEAPON. THEY RETURNED HIS WEAPON WHEN THEY SHOULDN'T
HAVE. THEY ALLOWED HIM TO RETAIN HIS WEAPON AND THEY FAILED TO PROPERLY SUPERVISE AND
TRAIN LAW ENFORCEMENT PERSONNEL. AND SO THE ISSUE BEFORE THE COURT IS WHETHER
THAT CONDUCT, THAT IS ALLEGED IN THOSE VARIOUS COMPLAINTS IS LAW ENFORCEMENT UNDER THIS
COURT'S RULING IN WRIGHT V STATE AND THEREFORE, IF IT IS, ENTITLE THE MONMOUTH COUNTY
PROSECUTOR'S OFFICE DEFENDANTS WOULD BE ENTITLED TO REPRESENTATION AND INDEMNIFICATION
BY THE ATTORNEY GENERAL'S OFFICE. AT THE CENTER OF THIS CASE IS A LAW ENFORCEMENT
DIRECTIVE ISSUED IN 2 THOUSAND BY THE THEN ATTORNEY GENERAL DEALING WITH DOMESTIC
VIOLENCE INCIDENCES INVOLVING LAW ENFORCEMENT OFFICERS. THAT DIRECTIVE, WHICH IS ENTITLED
A DIRECTIVE IMPLEMENTING PROCEDURE FROM MUNICIPAL COUNTY ENFORCEMENT OFFICERS INVOLVING
DOMESTIC VIOLENCE ISSUES STATES THAT THE DIRECTIVE IS TO BE FOLLOWED BY COUNTY
PROSECUTORS WHEN HANDLING LOCAL AND COUNTY LAW ENFORCEMENT OFFICERS INVOLVED IN DOMESTIC
VIOLENCE INCIDENTS. SO THAT'S AT THE CENTER OF THIS CASE. THE CASE
GETS A LITTLE MORE COMPLICATED BECAUSE OF THE PROCEDURAL POSTURE OF THE FEDERAL CASE SO
WHAT HAPPENS IN THE FEDERAL CASE IS THAT THERE IS AN ORIGINAL COMPLAINT THAT'S FILED IN
JUNE OF 2017 AND IT MAKES VARIOUS ALLEGATIONS THE NEPTUNE POLICE DEPARTMENT, THE AS BUR
Y PARK POLICE DEPARTMENT AN THE MONT MOT COUNTY PROSECUTOR'S OFFICE'S OFFICE DEFENDANTS,
THAT IS THEN SENT TO THE ATTORNEY GENERAL'S OFFICE WITH A REQUEST THAT THERE BE DEFENSE
INDEMNIFICATION PURSUANT TO WRIETH AND THE ATTORNEY GENERAL'S OFFICE SENT A LITTLE
SAYING WE'RE GOING TO DEFEND AND I'M DEM NIF FIE ON CERTAIN ISSUES IN THE CASE BUT WE'RE
NOT GOING TO DEFEND AND INDEMNIFY ON OTHERS. THAT IS THE ORIGINAL SIN IN THIS CASE AND
I WILL COME BACK TO THAT AND TALK ABOUT WHY, BUT PROCEDURALLY WHAT THEN HAPPENED IS THAT
EVEN BEFORE THAT COMPLAINT IN THE FEDERAL COURT IS DEALT WITH IS THAT THERE IS AN AMENDED
COMPLAINT FILED AND FOR OUR PURPOSES ALL THAT DOES IS IT ADDS THE ASSISTANT PROSECUTOR
DEFENDANTS THAT I REPRESENT IN THIS MATTER. SO WE HAVE A COMPLAINT AND AN AMENDED COMPLAINT
PENDING IN THE FEDERAL COURT AND ON APRIL 19TH OF 2018, JUDGE MICHAEL SHIPP WHO HAS THAT IS
CASE IN THE FEDERAL COURT DISMISSES THE AMENDED COMPLAINT AND THAT HIS DECISION IS PART
OF OUR APPELLATE BLANK AT PAGE 144 AND IN DISMISSING IT HE DISMISSES WITH PREJUDICE ALL
CLAIMS DEALINGS L DEALING WITH LAW ENFORCEMENT AND INVESTIGATIVE FUNCTIONS ENGAGED IN
BY THE MONMOUTH COUNTY PROSECUTOR'S OFFICE DEFENDANTS AND HE DIDN'T SPECIFY WHAT THOSE
PARTICULAR ALLEGATIONS IN THE COMPLAINT WERE, BUT HE DISMISSED THEM WITH PREJUDICE.
FOLLOWING THAT, THERE IS THE SECOND AMENDED COMPLAINT FILED IN MAY OF 2018 AND.
JUSTICE ALBIN: CAN I STOP YOU FOR ONE MOMENT. MS. GIGL: SURE.
JUSTICE ALBIN: JUDGE SHIPP DISMISSED THE CLAIM ON WHAT BASIS. HE DIDN'T DO IT ON THE
BASIS OF THE 11TH AMENDMENT IMMUNITY OR PROSECUTE TORL IMMUNITY? MS. GIGL:
I BELIEVE IT WAS BOTH, JUSTICE. HE -- I CAN FISH FOR HIS OPINION IF YOU WANT KNEE TO,
BUT MY RECOLLECTION IS THAT HE SAID THAT IN TERMS OF STATE ACTION SO THAT IT WOULD BE
THE CONSTITUTIONAL CLAIM HE FOUND THAT IT WAS STATE ACTION, BUT HE ALSO FOUND THAT THEY
-- THERE WAS QUALIFIED IMMUNITY UNDER THE RIGHT ANALYSIS THAT THIS WAS LAW ENFORCEMENT
CONDUCT SO WITHOUT SPECIFICING WHAT IT WAS THAT HE WAS MISSING, MY P UNDERSTANDING JUSTICE
IS THAT HE DISMISSED IT ON BOTH GROUNDS? JUSTICE ALBIN: THANK YOU.
MS. GIGL: YOU'RE WELCOME. SO WHAT HAPPENS WHEN WE SEND THE SECOND AMENDED
COMPLAINT TO THE ATTORNEY GENERAL'S OFFICE IS THAT DESPITE THE FACT THAT THE SECOND AMENDED
COMPLAINT CONTAINS BASICALLY THE EXACT SAME ALLEGATIONS THAT WERE IN THE ORIGINAL
COMPLAINT AND THE AMENDED COMPLAINT, THE ATTORNEY GENERAL SAYS, NO, JUDGE SHIPP DISMISSED
EVERYTHING THAT IS LAW ENFORCEMENT, WE'RE NOT DOING ANYTHING. AND IF YOUR HONORS LOOK
TO THE APPELLATE DIVISION DECISION IN THIS MATTER AT PAGES 17 AND 18, THERE IS A CHART
THAT SHOWS THE VARIOUS ALLEGATIONS AND HOW THEY FLOW FROM THE COMPLAINT TO THE AMENDED
COMPLAINT AND TO THE SECOND AMENDED COMPLAINT JUST BEING REMEMBER NUMBERED AS THEY GO
ALONG AND SO THE ATTORNEY GENERAL SAYS WE'RE NOT COVERING ANYTHING; THAT BECOMES APPEAL
NO. 3. AND ON DECEMBER 11TH, 2018, JUDGE SHIPP AGAIN DISMISSES THE SECOND
AMENDED COMPLAINT AND IN DISMISSING THAT, IT'S JUST A VERY SHORT LETTER SAYING THE SECOND
AMENDED COMPLAINT REALLY DIDN'T CURE THE DEFECTS IN THE AMENDED COMPLAINT AND HE'S DISMISSING
IT BUT HE CAUTIONS PLAINTIFF'S COUNSEL THAT HE HAS DISMISSED ALL CLAIMS AGAINST THE MONMOUTH
COUNTY PROSECUTOR'S OFFICE AND PROSECUTOR GRAMICCIONI WITH PREJUDICE AND, AGAIN, THAT
LETTER OPINION IS IN THE JOINT SECOND SUPPLEMENTARY APPENDIX THAT WAS FILED BY THE
PARTIES IN THE APPELLATE DIVISION. JUDGE SHIPP GIVES PLAINTIFF'S COUNSEL IN
THE FEDERAL CASE THE LAST BITE AT THE APPLE STOE TO SPEAK AND A THIRD AMENDED COMPLAINT
IS FILED ON JANUARY 25TH. IT'S 143 PAGES LONG. IT'S 738 PARAGRAPHS LONG AND, AGAIN,
WHEN WE SENDS IT TO THE ATTORNEY GENERAL'S OFFICE FOR COVERAGE AND DEFENSE, THE ATTORNEY
GENERAL, AGAIN, DENIES THAT IT OWES ANY DUTY TO DEFEND ANY PORTION OF IT. CHIEF
JUSTICE RABNER: MAY I ASK YOU A QUESTION ABOUT THAT, THE THIRD AMENDED COMPLAINT?
THERE IS A PARAGRAPH, PARAGRAPH 47 IN WHICH PLAINTIFFS ASSERT THAT THE PROSECUTORS WERE
ACTING IN AN ADMINISTRATIVE CAPACITY AS OPPOSED TO A LAW ENFORCEMENT OR INVESTIGATORY
FUNCTION. TO WHAT EXTENT DOES THAT CONTROL IN A CASE LIKE THIS? MS.
GIGL: YOUR HONOR, YOU ANTICIPATED MY NEXT SENTENCE OF MY ARGUMENT, WHICH WAS THAT THEY
PUT THAT IN THERE. I DON'T THINK IT HAS ANY CONTROLLING WEIGHT. I MEAN YOU HAVE A
SITUATION WHERE A COURT HAS SAID, I AM DISMISSING ANYTHING THAT IS LAW ENFORCEMENT. WELL
PA GOOD PLAINTIFF EASE LAWYER IS GOING TO SAY, WELL, THIS ISN'T LAW ENFORCEMENT, BUT IT
DOESN'T MATTER WHAT THE PLAINTIFF CALLED IT. IT MATTERS WHAT IT IS AND WHAT IT IS ON
THE WRIGHT AND UNDERSTAND LAVEZZI, NOT HOW A PLAINTIFF EASE ATTORNEY WANTS TO CHARACTERIZE
IT. JUSTICE ALBIN: EXCUSE ME, THE NET PARAGRAPH THAT THE CHIEF JUST READ
TELLS ME THAT WRIGHT IS AFFECTING OR EVEN PERVERTING THE WAY PLAINTIFF'S CIVIL RIGHTS
ATTORNEYS ARE FILING HAD THEIR COMPLAINTS. AS A RESULT OF WRIGHT, THE PLAINTIFFS KNOW
THAT IF IT'S ADMINISTRATIVE, IT WILL APPLY TO THE COUNTY, THE COUNTY IS NOT SUBJECT TO
11TH AMENDMENT IMMUNITY, THE COUNTY IS A PERSON UNDERSTAND 1983 AND THE STATE HAS 11TH
AMENDMENT IMMUNITY AND IT IS NOT A PERSON. SO THE ATTORNEYS NOW HAVE BEEN FRAMING THEIR
1983 COMPLAINTS ARE LOOKING TO WRIGHT AND THIS DIVIDE THAT ITS MADE AND NOW IT'S I'M MRIK
INDICATINGING, ALSO, THE PAYMENT. IT SEEMS TO ME TO HAVE HAD A REALLY UNINTENDED CONSEQUENCE.
AM I OFF ABOUT THAT? MS. GIGL: I DON'T THINK YOU ARE, YOUR HONOR.
ALTHOUGH, I WOULD NOTE IN THIS CASE, IT TOOK BASICLY TWO DIRECT WARNINGS FROM JUDGE SHIPP
FOR PLAINTIFFS COUNSEL IN THE UNDERLYING CASE TO GET THE MESSAGE AND PUT IN THE LANGUAGE
THAT THE CHIEF JUSTICE READ, BUT, YES, YOU ARE CORRECT, I THINK PLAINTIFF'S COUNSELS ARE
PICKING UP ON THAT AND THAT'S WHY I THINK IT'S IMPORTANT THAT THERE BE INDEPENDENT RE
VIEW BY THE ATTORNEY GENERAL'S OFFICE AND THEN PERHAPS ULTIMATELY BY THE COURT TO GO THROUGH
AND MAKE A DECISION REGARDLESS OF WHAT A PLAINTIFF'S COUNSEL CALLS SOMETHING AS TO
WHETHER OR NOT IT'S LAW ENFORCEMENT AND IS COVERED BY WRIGHT AS OPPOSED TO JUST GOING BY
WHAT A PLAINTIFF'S COUNSEL PUTS IN A COMPLAINT BECAUSE AS YOUR HONOR CORRECTLY POINTS
OUT, ANY SMART PLAINTIFF'S COUNSEL, KNOWING THAT THEY WILL HAVE THEIR COMPLAINT DISMISSED
ON 11TH AMENDMENT GROUNDS ISN'T GOING TO LOOK FOR GOING AFTER THE STATE. AND IF, UNDER,
WRIGHT, IF IT'S LAW ENFORCEMENT, THIS COURT HAS HELD THAT A STATE ACTION AND THEREFORE
COVERED BY -- THE FEDERAL COURTS THEREFORE SAY IT'S COVERED BY THE 11TH AMENDMENT SO I
AGREE WITH YOUR HONOR. CHIEF JUSTICE RABNER: LET'S GO TO SOME OF THE
PARTICULAR ALLEGATIONS THEN. YOU HAVE FOR EXAMPLE, THE ALLEGATION THAT THE -- THERE WAS
FAILURE TO FOLLOW THE ATTORNEY GENERAL DIRECTIVE. SPEAK TO THAT, TELL US YOUR POSITION
ON A G DIRECTIVES AND WHETHER THEY ARE SUBJECT TO INDEMNIFICATION IN ALL MATTERS.
MS. GIGL: YOUR HONOR, I DON'T THINK THAT EVERY ATTORNEY GENERAL DIRECTIVE MAKES SOMETHING
LAW ENFORCEMENT. I THINK THIS ONE DOES AND I WOULD SAY, YOU KNOW, AS IN ANY CASE YOU HAVE
TO EXAMINE THE PARTICULAR FACTS TO DETERMINE WHETHER OR NOT A DIRECTIVE IS LAW
ENFORCEMENT. SO, FOR EXAMPLE, A DIRECTIVE ON OEP PRACTICE AND WHAT SOMEONE SHOULD DO IN
TERMS OF FILING OEP PRACTICE I DON'T THINK WOULD BE A LAW ENFORCEMENT DIRECTIVE. BUT
IN THIS PARTICULAR CASE, NO. 1 IT'S ENTITLED THE LAW ENFORCEMENT DIRECTIVE, BUT MORE
IMPORTANTLY, THE ATTORNEY GENERAL IN ISSUING IT SAYS WHEN LAW ENFORCEMENT OFFICERS ARE
CHARGED WITH COMMITTING ACTS OF DOMESTIC VIOLENCE, IT IS IMPORTANT THAT MATTERS BE
UNIFORMLY AND EXPEDITIOUSLY HANDLED. TO ACHIEVE THESE OBJECTIVES, IT IS NECESSARY THAT
THERE BE A STATE WIDE POLICY GOVERNING THE SEIZURE OF WEAPONS FROM A LAW ENFORCEMENT
OFFICER WHO IS CHARGED WITH COMMITTING AN ACT OF DOMESTIC VIOLENCE. JUSTICE
PATTERSON: I THINK, MS. GIGL, ONE OF THE THINGS THAT MAKES THIS A CLOSE CASE TO ME IS
THAT IT IS NOT THE ATTORNEY GENERAL'S DIRECTIVE ON RESPONDING TO DOMESTIC VIOLENCE STATE
WIDE. IT'S THE ATTORNEY GENERAL'S DIRECTIVE ON RESPONDING TO DOMESTIC VIOLENCE INCIDENTS
INVOLVING LAW ENFORCEMENT AND OBVIOUSLY THE COUNTIES HAVE INTERACTIONS WITH LAW
ENFORCEMENT THAT ARE PERHAPS MORE OF A CLOSE -- OF A GRAY AREA ON THAT. SO WOULD YOU ADDRESS
WHERE -- OBVIOUSLY, YOU'RE ARGUING THAT IT FALSE ON THE SIDE OF LAW ENFORCEMENT, BUT HOW
DO WE ADDRESS THE FACT THAT THIS DIRECTIVE IS SPECIFICALLY AIMED AT POLICE OFFICERS WHEN
THEY WERE INVOLVED OR ALLEGEDLY INVOLVED IN DOMESTIC VIOLENCE. MS. GIGL:
YOUR HONOR, I BELIEVE THAT WHAT THE DIRECTIVE IS IS TO -- WHILE IT IS BROADLY TO ALL LAW
ENFORCEMENT AGENCIES, IT IS SPECIFICALLY TO COUNTY PROSECUTORS AND HOW COUNTY PROSECUTORS
HANDLE INCIDENTS OF DOMESTIC VIOLENCE INVOLVING LAW ENFORCEMENT OFFICERS WITHIN THEIR
JURISDICTION. SO IT'S A DIRECTIVE TO THE COUNTY PROSECUTORS WITH SPECIFIC DETAILS AS
TO WHAT THEY ARE TO DO IN EACH PARTICULAR CASE SO THIS IS NOT SOMETHING THAT COUNTY GOVERNMENT
CAN GET INVOLVED IN. THIS IS SOMETHING THAT THE ATTORNEY GENERAL IS USING HIS SUPERVISORY
AUTHORITY OVER LAW ENFORCEMENT AND SAYING THIS IS WHAT YOU WILL DO WHEN YOU HAVE AN INCIDENT
OF DOMESTIC VIOLENCE INVOLVING A LAW ENFORCEMENT OFFICER IN YOUR COUNTY. JUSTICE
ALBIN: SO LET'S TAKE THE FAILURE TO SEIZE A WEAPON. NOW, THAT IS A VERY IMPORTANT
ALLEGATION IN A CIVIL RIGHTS SUIT FOR SHOWING FAILURE TO SUPERVISE OR BUT WHAT DOES IT
HAVE TO DO WITH THE INVESTIGATION OR PROSECUTION OF A CASE AND THIS IS THE DIVIDE, IT
MAY NOT BE A CLEAN DIVIDE THAT WRIGHT MADE. WHAT DOES IT HAVE TO DO WITH ANYTHING
THAT INVOLVES THE ACTUAL PROSECUTION OR INVESTIGATION OF A MATTER? MS.
GIGL: FIRST OF ALL, YOUR HONOR, I WOULD SAY IT INVOLVES AN INVESTIGATION OF WHETHER OR NOT
THERE COULD BE A CASE, BUT, AGAIN, RESPECTFULLY, I THINK THAT I DISAGREE A LITTLE BIT
WITH YOUR HONOR IN TERMS OF WHAT WRIETH IS INTENDED TO COVER. I DON'T THINK WRIGHT WAS
INTENDED TO BE LIMITED TO BASICLY, YOU KNOW, WHAT WOULD FALL UNDERSTAND EITHER ABSOLUTE
OR QUALIFIED IMMUNITY IN THE FEDERAL SENSE. I THINK WRIGHT IS BETTER THAN THAT. I THINK
THERE IS THREE CRITERIA THAT WRIGHT PUTS FORWARD THAT WOULD MAKE SOMETHING FOR PURPOSES
OF THE NEW JERSEY TORT CLAIMS ACT AND THEREFORE MAKE THE PROSECUTOR A STATE ACTOR AND
SUBJECT TO COVERAGE. I THINK THOSE THREE CRITERIA ARE THE PROSECUTOR MUST BE
DISCHARGING A STATE FUNCTION DELEGATED TO THE COUNTY PROSECUTORS BY THE LEGITIMATE TORE,
IN THIS CASE, ACTING AS THE CHIEF LAW ENFORCEMENT OFFICER OF THE COUNTY, GOING BACK TO
JUSTICE PATTERSON'S QUESTION, THIS IS A DIRECTIVE TO TP COUNTY PROSECUTOR SAYING YOU WILL
DO THE. THE SECOND CRITERIA IS THAT THE COUNTY PROSECUTOR HAS TO BE ACTING PURSUANT OR
UNDER THE A G'S SUPERVISORY AUTHORITY WITH THE ATTORNEY GENERAL'S POWER TO SUPERSEDE;
THAT, TOO, IS PART OF THE DIRECTIVE. THE ATTORNEY GENERAL IS SAYING I'M DOING THIS AS.
(SOUND INTERRUPTION.) AND I AM #150U7 PER SEEDING ANYTHING ELSE THAT IS GOING
ON IN YOUR COUNTY AND YOU WILL DO THIS. AND THEN THE FINAL THING IS THAT THE COUNTY GOVERNMENT
PLAYS NO ROLE SO TO ME THOSE ARE THE THREE CRITERIA OF WRIGHT. AND HERE IN TERMS OF
THIS DIRECTIVE, AGAIN, COUNTY GOVERNMENT HAS ABSOLUTELILY NO CONTROL OVER WHAT THE
ATTORNEY GENERAL IS TELLING THE COUNTY PROSECUTOR TO DO AND WHAT THE COUNTY PROSECUTOR
THEN DOES IN RETURN. THIS IS -- JUSTICE PATTERSON: UNDER THE SECOND OF
YOUR THREE FACTORS WHICH IS THE PROSECUTOR IS ACTING UNDERSTAND THE A G SUPERVISE
REAUTHORITY AN THE SUPERSEDING, WOULDN'T THAT INCLUDE THE OEP PRACTICE SITUATION WHEN THE
ATTORNEY GENERAL ISSUES A DIRECTIVE AND SAYS WE WANT EVERYBODY TO UNIFORMLY RESPOND TO
OEP AND THIS IS HOW YOU'RE GOING TO DO IT, WOULDN'T THAT BE PURSUANT TO THAT SAME POWER
TO SUPERSEDE AND IF SO WOULDN'T THAT INCLUDE ALL DIRECTIVES. ? MS. GIGL:
YOUR HONOR, I THINK YOU HAVE TO MEET ALL THREE CRITERIA. JUSTICE PATTERSON:
I UNDERSTAND. MS. GIGL: SO WHILE YES, YOU MIGHT CORRECT THAT A DIRECTIVE FROM
THE ATTORNEY GENERAL SAYING HERE IS WHAT I WANT TO DO IN AN OEP PRACTICE REQUEST, YOU
KNOW, IT SUPERSEDES, BUT YOU DON'T THEN HAVE THE OTHER TWO CRITERIA BECAUSE CERTAINLY,
COUNTS TEE GOVERNMENT PLAYS A ROLE IN RESPONDING TO OEP PRACTICE REQUESTS AND CERTAINLY
IN TERMS OF THE FUNCTION OF A PROSECUTOR THAT IS NOT SOMETHING THAT SL DELEGATED TO HIM
BY THE LEGISLATURE. IT IS JUST THE LAW IN GENERAL IN TERMS OF ALL PUBLIC AGENCY, YOU
HAVE TO COMPLY WITH THIS LAW. SO I WOULD SAY IN THE SITUATION THAT YOU POSED JUSTICE
PATTERSON, THAT YOU WOULDN'T MEET ALL THREE CRITERIA AND I DO BELIEVE YOU DO NEED TO MEET
ALL THREE CRITERIA UNDERSTAND WRIGHT. SHOULD I CONTINUE WITH MY ARGUMENT OR
QUESTIONS OR DID I ANSWER EVERYONE QUESTIONS? JUSTICE LA VECCHIA: COUNSEL,
WHEN YOU IDENTIFIED YOUR THREE CRITERIA, IS THIS A BREAK DOWN OF THE LANGUAGE THAT APPEARS
IN WRIGHT ON PAGE 456, I HOPE I HAVE THE RIGHT PAGE. MS. GIGL: ACTUALLY,
YOUR HONOR, I WAS LOOKING AT PAGES 451 AND 452 AND I CAN QUOTE IT FOR YOU IF YOU WANT
ME TO. JUSTICE LA VECCHIA: NO, I HAVE IT HERE. THE REASON I
POINTED TO 456 IS BECAUSE WHEN THE WRIGHT COURT WAS TRYING TO SUMMARIZE AND THE WRIGHT
COURT SAID MANY THINGS IN A COUPLE DIFFERENT WAY, IT SEEMED TO BE FOCUSING ON THE DISCHARGE
OF LAW ENFORCEMENT DUTIES WHICH YOU HAVE BROKEN DOWN NICELY INTO THREE KATHLEEN PETRUCCI FOR
THE STATE, BUT THEY ARE NOT SUBJECT TO ANALYSIS AS IF THEY ARE TIED TO A SPECIFIC CASE OR
A SPECIFIC INVESTIGATION, WHICH WOULD LOOP IN THE KIND OF LAW ENFORCEMENT DIRECTIVE SUCH
AS WE HAVE HERE, BUT NOT THE KIND SUCH AS THE OEP PRACTICE EXAMPLE THAT WAS GIVEN BY MY
COLLEAGUE JUSTICE PATTERSON BEFORE WHICH IS A MORE GENERIC OBLIGATION ON PUBLIC ENTITIES
TYPICALLY, NOT SOMETHING SPECIFIC TO LAW ENFORCEMENT DUTIES REGARDLESS OF WHETHER IT'S
TOOID TO A ONE CASE SITUATION OR NOT. DO YOU AGREE WITH THAT? MS.
GIGL: TO BE HONEST WITH YOUR HONOR, I AM NOT SURE I FOLLOW YOUR HONOR'S QUESTION?
JUSTICE LA VECCHIA: I AM READING LAW ENFORCEMENT A LITTLE BIT MORE BROADLY AND I JUST
WANT TO SEE IF YOU AGREE. BECAUSE YOU SAID DISCHARGING A STATE FUNCTIONING, ACTING
UNDERSTAND THE A G'S AUTHORITY TO SUPERVISE AND SUBJECT TO SUPER SESSION, SUBJECT TO SUPPER
SESSION IS SPECIFICALLY DONE IN THE CONTEXT OF HA SPECIFIC CASE BUT I DON'T THINK YOU'RE
REQUIRING THERE TO BE A SPECIFIC CASE IN ORDER FOR SOMETHING TO BE A LAW ENFORCEMENT DUTY,
ARE YOU SUGGESTING THAT? MS. GIGL: THANK YOU FOR CLARIFYING, I DO AGREE
WITH YOUR HONOR. I THINK THE WRIGHT COURT IN TENLDED LAW ENFORCEMENT TO BE VIEWED BROADLY
AND AS I SAID TO JUSTICE ALBIN, I DON'T THINK IT'S LIMITED TO THE SITUATION THAT WE SEE
IN EITHER A 13TH AMENDMENT CONTEXT, AN ABSOLUTE OR QUALIFIED IMMUNITY CONTEXT. I THINK
UNDERSTAND WRIGHT IT'S MUCH BROADER SO I AGREE WITH YOUR HONOR. JUSTICE LA
VECCHIA: SO THEN FROM THAT, WE NOW ARE SEEING IN THIS CASE AN EXAMPLE OF WHERE COMPLAINTS
HAVE BEEN PARSED BY PARAGRAPH, LOOKING TO DETERMINE WHETHER OR NOT COVERAGE IS GOING TO
PROVIDE -- BE PROVIDED FOR THIS PARAGRAPH, BUT NOT THAT PARAGRAPH. IN ONE OF YOUR BRIEFS
YOU POINT OUT THE DIFFERENT POSITION TAKEN BY THE ATTORNEY GENERAL REGARDING PARAGRAPH
64 AND 65, IN ONE ITERATION ONE IS A MORE PARTICULARIZED EXPLANATION OF THE OTHER.
IT'S HARD TO SEE A DIFFERENCE. IF WE VIEW LAW ENFORCEMENT DUTIES MORE BROADLY, IT WOULD
PRECLUDE, I THINK THIS KIND OF PARAGRAPH BY PARAGRAPH PARSING AND LOOK MORE AT THE
COMPLAINT OR COUNTS AS A WHOLE; IS THAT WHAT YOU ARE ASKING THIS COURT TO DO IN REVIEWING
THE ATTORNEY GENERAL DECISION IN THIS MATTER? MS. GIGL: ABSOLUTELY, YOUR HONOR.
I MEAN, YOU ARE CORRECT IN TERMS OF WHAT WE HAD IN OUR BRIEFS AND HOW THIS WAS PARSED
WHERE EVEN SOME CLAUSES WITHIN A PARAGRAPH ARE COVERED, BUT OTHER CLAUSES WITHIN THE SAME
PARAGRAPH ARE NOT COVERED AND, AS AN ATTORNEY, WHO ULTIMATELY HAS TO LITIGATE A CASE,
IT IS A PROCEDURAL NIGHTMARE HOW LOGISTICALLY DO YOU HANDLE A CASE WHEN A PARAGRAPH IS
COVERED BY THE ATTORNEY GENERAL, BUT ANOTHER PARAGRAPH OR ANOTHER SENTENCE IN THE SAME
PARAGRAPH ISN'T COVERED. JUSTICE LA VECCHIA: I DO NOT KNOW HOW THAT LITIGATION
CAN POSSIBLY BE MANAGED SO I AM SOMEWHAT SURPRISED TO SEE IT IN THIS SETTING. I DON'T
KNOW HOW -- EVEN IF COUNSEL HAD BEEN ON TAKENED FOR OUTSIDE REPRESENTATION, I DON'T KNOW
HOW THERE COULD HAVE BEEN A COORDINATION BETWEEN THE TWO COUNSEL IN THIS MATTER.
JUSTICE SOLOMON: PICKING UP ON WHAT JUSTICE LA VECCHIA SAID, I TAKE IT YOUR ARMTH IS L
ESSENTIALLY THAT THIS INVOLVES THE ENFORCEMENT OF THE DOMESTIC VIOLENCE ACT AGAINST A
POLICE OFFICER AND THAT IS LAW ENFORCEMENT AND THEREFORE, IT IS SUBJECT TO INDEMNIFICATION
AND REPRESENTATION; THAT'S IN ESSENCE, WHAT YOU'RE SAYING. MS. GIGL: YOU
ARE CORRECT, JUSTICE FERNANDEZ-VINA FERN COUNSEL, WOULD IT BE VERY DIFFICULT FOR YOU
REPRESENTING YOUR CLIENT TO JUST FIGHT EVERY ALLEGATION AN THEN DPENGDZ ON HOW THE JURY
COMES BACK THAT WILL DETERMINE WHAT IS COVERED AND WHAT ISN'T LATER BUT AS COUNSEL YOU
DEFERRED ALL CLAIMS AGAINST YOUR CLIENT EQUALLY REGARDLESS OF WHAT IS DEFENDED AT THE
END OF THE DAY, THAT'S DONE A LOT WHERE THERE IS ALLEGATIONS OF INTENTIONAL CONDUCT AND
NEGLIGENCE, YOU DON'T HAVE TWO ATTORNEYS TRYING THE CASE, THE ATTORNEY TRIES TO FIGHT
EVERY COUNT AND THEN AT THE END YOU DETERMINE WHAT IS COVERED AND WHAT ISN'T?
MS. GIGL: YOUR HONOR, I AGREE THAT THAT WHAT WHAT, IS WHAT WOULD HAPPEN REALISTICALLY
FOR WHOEVER IS DEFENDING THE CASE. I WOULD PREFER TO RATHER THAN COUNSEL APPOINTED BY
THE COUNTY THAT THIS BE THE ATTORNEY GENERAL'S OFFICE BECAUSE WE'RE DEALING WITH, YOU KNOW,
WHAT WE'RE SAYING IS A LAW ENFORCEMENT. I DEFER BACK TO WHAT JUSTICE PATTERSON DID IN
LAVEZZI WHERE IT KIND OF EUPHEMISTIC KALLY SHE ISSUED A RESERVATION OF RIGHTS LETTER AND
SAID, LISTEN WHEN YOU GO FARTHER DOWN THE ROAD ON THIS CASE, LOOKING AT THE ALLEGATIONS
THAT WE HAVE NOW IT APPEARS TO BE LAW ENFORCEMENT. IF IT TURNS OUT WE'RE WRONG AND
IT TURNS OUT THAT THE COUNTS TEE LOST IT OR THE PROSECUTOR'S OFFICE LOST IT BECAUSE THE
COUNTY DID SOMETHING WRONG WITH THE STORAGE, THEN WE'RE FREE TO RECONSIDER THIS AND YOU'RE
FREE TO SAY NO THE FACTS AS DEVELOPED SHOW THAT IT WASN'T LAW ENFORCEMENT AND SO I THINK
THAT IS IS -- JUSTICE FERNANDEZ-VINA: I SAID THAT'S MY POINT.
JUSTICE LA VECCHIA: JUST FOLLOWING UP, IF I MAY ON JUSTICE SOL'S QUESTION, THIS IS.
JUSTICE PATTERSON: WHEN A COUNTY PROSECUTOR DOES NOT RETURN A SERVICE WEAPON
TO A POLICE OFFICER ACCUSED OF DOMESTIC VIOLENCE, DOES THE COUNTY PROSECUTOR ACT UNDER
THE AUTHORITY OF THE DOMESTIC VIOLENCE ACT? MS. GIGL: YES, BECAUSE WHAT
THE DOMESTIC VIOLENCE VIOLENCE ACT HAS A SERIES OF THINGS, GUIDELINES THAT WHAT SHOULD
HAPPEN IN TERMS OF THE SEIZURE OF A WEAPON AND IT SPELLS OUT WHETHER OR NOT, YOU KNOW,
WHAT YOU DO IN CASE THERE IS A COURT ORDER, WHAT YOU DO WHEN THERE IS A FINDING THAT DOMESTIC
VIOLENCE OCCURRED OR IN THIS CASE, WHAT YOU DO WHEN THERE HAS BEEN A SEIZURE AND THERE
HAS BEEN NO DOMESTIC VIOLENCE OFFENSE COMMITTED NO CRIMINAL CHARGE OR COURT ORDER SO THAT'S
ALL SPELLED OUT IN THE DIRECTIVE. JUSTICE PATTERSON: BUT SPECIFICALLY AS
TO THE POLICE OFFICER, YOU KNOW, I CERTAINLY WOULD PRESUME THAT WHEN PEOPLE GO OUT TO
AN ORDINARY CITIZEN'S HOME AN SEIZE A GUN THAT'S UNDERSTAND THE DOMESTIC VIOLENCE ACT
BUT WHEN THE COUNTY PROSECUTOR ACTING AS A SUPERVISOR, LAW ENFORCEMENT, WITHIN THE
COUNTY DECLINES TO RETURN A SERVICE WEAPON TO A POLICE OFFICER IN D V, IS THE COUNTY
PROSECUTOR ACTING UNDER THE AUTHORITY OF THE DID HAVE ACT OR UNDER THE LEGISLATIVE GRANT
OF AUTHORITY TO OVERSEE LAW ENFORCEMENT IN THAT COUNTY OR SOME COMBINATION OF THE TWO
OR SOME OTHER THING? DO YOU SEE WHAT I AM TALK ABOUT? MS. GIGL:
I THINK TI DO, YOUR HONOR. JUSTICE PATTERSON: BECAUSE THE WEAPON IS ISSUED
BY THE MUNICIPALITY TO THE POLICE OFFICER. IT'S NOT A WEAPON THAT SOMEBODY WENT OUT AN
BOUGHT AT A BEGUN SHOP. IT'S FOR THE POLICE OFFICER'S USE IN THE COURSE OF HIS OR HER
DUTY SO WHERE IS THE AUTHORITY TO NOT RETURN IT COMING FROM? MS. GIGL: I
BELIEVE IT'S COMING FROM THE DIRECTIVE. I BELIEVE THE ATTORNEY GENERAL HAS GIVEN THE
COUNTY PROSECUTORS PURSUANT TO THIS DIRECTIVE, EVEN IN A SITUATION WHERE THERE HAS BEEN
NO COURT ORDER, WHERE THERE HAS BEEN NO CRIMINAL CHARGE OR A CIVIL CHARGE OF DOMESTIC
VIOLENCE, IF THE COUNTY PROSECUTOR BELIEVES IT'S NOT SAFE TO RETURN A WEAPON TO A LAW
ENFORCEMENT OFFICER UNDERSTAND THE DIRECTIVE THE COUNTY PROSECUTOR IS ENTITLED TO ISSUE
THAT TYPE OF DECISION. AND IF I MAY JUST KINDS OF SEGUE OFF OF THAT YOUR HONOR --
JUSTICE ALBIN: ARE YOU SUGGESTING THAT THE COUNTY PROSECUTOR, THAT THE CHIEF LAW
ENFORCEMENT OFFICER IN THE COUNTS TEE DOES NOT HAVE THE AUTHORITY TO SEIZE A POLICE
OFFICER'S WEAPON OUTSIDE THE REALM OF THE DOMESTIC VIOLENCE ACT IF THE COUNTY PROSECUTOR
BELIEVES DUE TO INFRACTIONS, VIOLATIONS OR WHATEVER, THAT THAT INDIVIDUAL OFFICER POSES
A DANGER, IF QUIPPED WITH A SERVICE RECOVER VER. MS. GIGL: ABSOLUTELY THE
COUNTY PROSECUTOR HAS THAT AUTHORITY YOUR HONOR. JUSTICE ALBIN: AND THAT'S
OUTSIDE OF THE DOMESTIC VIOLENCE VIOLENCE ACT, CORRECT? MS. GIGL: YES.
I WOULDN'T CONSIDER MYSELF AN ABSOLUTE AUTHORITY ON PROSECUTOR POWERS, BUT I BELIEVE YOU
ARE CORRECT THAT THAT IS PART OF THE AUTHORITY OF LAW ENFORCEMENT. JUSTICE LA
VECCHIA: MAY I ADDRESS, IF I CAN THE SECOND PRONG OF YOUR TEST BECAUSE THE LANGUAGE THAT
YOU'RE USING AND YOU'RE BEING PROBED A LITTLE BIT ON THAT RIGHT NOW IS LANGUAGE USED IN
WRIGHT TO DETERMINE WHETHER OR NOT VICARIOUS LIABILITY WOULD ATTACH TO THE STATE. IT
WAS A WHOLLY DISTINCT PART OF THE WRIGHT ANALYSIS FROM THE INDEMNIFICATION ANALYSIS AND
I WONDER IF YOU ARE INADVERTENTLY NARROWING, THE INDEMNIFICATION ANALYSIS AS IT STARTED
OUT IN WRIETH BY INK KORP RAITHING VICARIOUS LIABILITY STANDARDS INTO THE DECISION FOR
IN DEM NIF FINGER INDICATION. MS. GIGL: YOUR HONOR, I AM CERTAINLY NOT
TRYING TO IN THE EVENING NATURALLY OR INADVERTENTLY NARROW WRIGHT IN ANY WAY. IT
IS MY UNDERSTANDING THAT WHAT THE COURTS HELD IN WRIGHT IS THAT NORMALLY THERE ARE TWO
DIFFERENT STANDARDS, FOR EXAMPLE, IN AN INSURANCE CONTEXT AS TO WHEN THERE IS A DUTY TO
DEFEND AND WHEN THE THERE IS A DUTY TO INDEMNIFY AND THEY MIGHT BE DIFFERENT STANDARDS.
JUSTICE LA VECCHIA: CORRECT. MS. GIGL: THE COURT FOUND IN
WRIETH THAT THOSE TWO ARE CON JOINED FOR PURPOSES OF A COURT CLAIM ANALYSIS, FOR PURPOSES OF
WHAT IS LAW ENFORCEMENT AND HOW WE'RE GOING TO DETERMINE WHETHER OR NOT A COUNTY PROSECUTOR
IS EVEN ENTITLED TO INDEMNIFICATION AN DEFENSE. THERE IS NO SEPARATE DUT TO DEFEND, DUTY
TO INDEMNIFY WHAT THE COURT FOUND IS THAT THEY ARE ONE, SO I AM CERTAINLY NOT TRYING TO
SUGGEST IN ANY WAY THAT, YOU KNOW, WRIGHT'S LIMITED LAW ENFORCEMENT OR NOT TRYING TO
NARROW THE COURT'S HOLDING IN ANY WAY. I AM SUGGESTING THAT THE COURT INTENDED IT TO BE
VERY BROAD AND, AGAIN, AS I THINK I RESPONDED TO JUSTICE ALBIN, NOT LIMITED TO CONTACTS
THAT WE WOULD NORMALLY SEE IN FEDERAL CASES DEALING WITH EITHER 11TH AMENDMENT ISSUES
OR QUALIFIED OR ABSOLUTE IMMUNITY ISSUES IT'S MUCH BROADER THAN THAT AND I THINK THAT'S
WHAT THE COURT IN WRIGHT WAS TRYING TO SET FORTH AN I THINK MY ARGUMENT IS 245 WHAT THE
ATTORNEY GENERAL HAS DONE IN THIS CASE IS THE TO TRY TO NARROW WRIGHT'S HOLDING AND SOME
SO IMPROPERLY AND IN DOING SO DENIED A DEFENSE AND IN DEM NIF PHYSICIAN INDICATION TO
THE PROSECUTOR'S OFFICE. CHIEF JUSTICE RABNER: DO YOU DRAW ANY DISTINCTION
UNDERSTAND YOUR ANALYSIS BETWEEN AN ALLEGED FAILURE BY THE COUNTY PROSECUTOR'S OFFICE
NOT TO INVESTIGATE DOMESTIC VIOLENCE AND A JUDGMENT CALL BY THE COUNTY PROSECUTOR THAT
THIS PARTICULAR INDIVIDUAL, THIS EMPLOYEE OF MINE SHOULD NOT HAVE A WEAPON OR THE WEAPON
MAY BE RETAINED? MS. GIGL: WELL, I THINK, YOUR HONOR, THAT PERHAPS WE'RE
TALK ABOUT TWO DIFFERENT SETS OF AUTHORITY AS JUSTICE ALBIN SAID, DOESN'T A COUNTY
PROSECUTOR ALWAYS HAVE THE RIGHT TO TAKE A LAW ENFORCEMENT PERSON'S WEAPON IF THEY BELIEVE
THAT THAT PERSON IS A DANGER TO HIMSELF OR ANOTHER AND I THINK, AS I RESPONDED, I
BELIEVE THEY DO HAVE THAT POWER. I THINK WHAT THIS CASE IS ABOUT, THOUGH, IS A SUBSET
OF THAT WHERE THERE IS SPECIFIC GUIDANCE FROM THE ATTORNEY GENERAL SAYING YOU WILL DO
THIS AS OPPOSED TO YOU CAN DO THIS OR YOU MAY DO THIS OR YOU HAVE THE AUTHORITY TO DO
THIS. WHAT THE ATTORNEY GENERAL IS SAYING, I WANT A UNIFIED RESPONSE TO DOMESTIC VIOLENCE
CLAIMS INVOLVING LAW ENFORCEMENT OFFICERS SO I AM DIRECTING YOU, COUNTY PROSECUTORS TO
DO THIS WHEN YOU HAVE THESE SITUATIONS. SO I THINK IT'S A SUBSET OF THE BIGGER ISSUES
AND IN THIS PARTICULAR SUBSET THAT WE'RE DEALING WITH, YOU HAVE A SITUATION WHERE IF ATTORNEY
GENERAL HAGS SAID HERE IS WHAT YOU'RE GOING TO DO. CHIEF JUSTICE RABNER: IS
THAT AN OVERSIMPLIFICATION OF WHAT THE GUIDANCE FROM THE ATTORNEY GENERAL IN THIS SITUATION
IS? DOES A COUNTY PROSECUTOR SIMPLY NEED TO LOOK AT THE DIRECTIVE AND SAY,
OKAY, I FALL UNDER THIS, HERE IS THE ANSWER, NO FURTHER CONSIDERATION IS REQUIRED, IT'S
ALL LAID OUT, ALL COVERED, ALL DICK THATD? MS. GIGL: NO, YOUR HONOR. OBVIOUS
LY IF A COUNTY PROSECUTOR IS STILL OBLIGATED TO DO AN INVESTIGATION, TO INTERACT WITH THE
MUNICIPALITY WHERE THE PARTICULAR OFFICER, IF THEY ARE HE NOT A COUNTY OFFICER, IS A
MUNICIPALITY WHERE THIS INDIVIDUAL IS WORKING AND IF IT FALSE OUTSIDE -- SO, FOR EXAMPLE,
IF YOU HAVE AN OFFICER WHO LIVES IN MONMOUTH COUNTY BUT WORKS IN OCEAN COUNTY TEE, YOU
HAVE TO COORDINATE WITH THAT COUNTY PROSECUTOR, AS WELL, SO, NO, IT'S NOT JUST A CHECK
OFF THE BOX, YOU HAVE TO DO AN INVESTIGATION, YOU HAVE DO COORDINATE, YOU HAVE TO, YOU KNOW,
MAKE AN LAW ENFORCEMENT DETERMINATION AS TO WHETHER OR NOT THERE IS AN ISSUE AND IF, SO,
WHAT IS THE APPROPRIATE REMEDY USING THE DIRECTIVES IN TERMS OF WHAT YOU SHOULD BE
DOING, BUT I DON'T THINK IT'S AS SIMPLE AS JUST, YOU KNOW, HERE IS THE DIRECTIVE, THAT'S
THE END OF THE DISCUSSION. YOU STILL HAVE TO EXERCISE YOUR LAW ENFORCEMENT AUTHORITY
TO INVESTIGATE AND MAKE DETERMINATIONS IN TERMS HF WHAT THE APPROPRIATE REMEDIES ARE IN
THAT PARTICULAR CASE. JUSTICE LA VECCHIA: IS THERE A DIFFERENCE TO BE
ACKNOWLEDGED WHEN THE DETERMINATION AS TO WHETHER TO TAKE A GUN FROM AN OFFICER ARISES
AS A RESULT OF DISCIPLINARY INFRACTIONS OR SOME PSYCHOLOGICAL INDICIA THAT HAS SHOWN ITSELF
TO CALL INTO QUESTION A PERSON'S FITNESS FOR DUTY AS OPPOSED TO WHAT WE HAD HERE, AN
OUTSIDE VICTIM OF DOMESTIC VIOLENCE FILING COMPLAINT AFTER COMPLAINT HAVING BEEN
THREATENED, HARM HD BY THIS INDIVIDUAL AND COUNTLESS, WELL, IT CAN BE COUNTED, BUT
NUMEROUS INSTANCES WHERE INTERSESSION HAD TO OCCUR IN ORDER TO PROTECT THE COMPLAINANT.
DOES THAT PROVIDE A DEMARCATION TAS TO WHEN WE'RE DEALING WITH TAKING A GUN
AWAY FROM AN OFFICER AT A COUNTY PROSECUTOR'S DIRECTION POTENTIALLY HERE? MS.
GIGL: I BELIEVE THE ANSWER IS YES, YOUR HONOR, BECAUSE, YOU KNOW, IF YOU HAVE A -- OBVIOUSLY
THIS CASE ARISES WITH A PARTICULAR SET OF FACTS AND, YOU KNOW, SO IF YOU'RE TALKING
HYPOTHETICALLY ABOUT A DIFFERENT SET OF FACTS WHERE YOU HAVE AN OFFICER WHO FOR -- THERE IS
NO DOMESTIC VIOLENCE, WE'RE NOT TALKING ABOUT THIS PARTICULAR DIRECTIVE BUT WE'RE TALKING
ABOUT AN OFFICER WHO FOR SOME REASON IS SENT FOR A FITNESS FOR DUTY EVALUATION AND DOES
NOT PASS THAT FITNESS FOR DUTY EVALUATION, CERTAINLY, THEN THE PROSECUTOR HAS THE RIGHT,
IF NOT THE OBLIGATION TO DISARM THAT INDIVIDUAL UNTIL THEY CAN BE DECLARED FIT FOR DUTY.
SO I THINK THERE IS, YOU KNOW, A STANDARD THAT WOULD APPLY TO THOSE CASES THAT IS OUTSIDE
THE DIRECTIVE. THIS CASE, YOU KNOW, FALSE WITHIN THE DIRECTIVE BECAUSE, AS YOUR HONOR
POINTS OUT THE FACTUAL SITUATION, YOU KNOW, INVOLVES DOMESTIC VIOLENCE INVOLVING A LAW
ENFORCEMENT OFFICER. CHIEF JUSTICE RABNER: YOUR POSITION, IF I UNDERSTAND
IT, IS, IT'S OF COURSE A CLASSIC LAW ENFORCEMENT FUNCTION FOR THE COUNTY PROSECUTOR TO
PROCEED WITH THE ALLEGATION OF DOMESTIC VIOLENCE AND TO INVESTIGATE IT THOROUGHLY. I DON'T
THINK THERE IS ANY DISPUTE AMONGST THE PARTIES AS THE TO THAT AND JUST THE SAME AS A CLASSIC
LAW ENFORCEMENT FUNCTION FOR THE COUNTY PROSECUTOR TO DETERMINE WHETHER AN EMPLOYEE
MAY RETAIN A WEAPON WHEN THERE IS A D V ALLEGATION OF THE NATURE OF THE CASE WE HAVE HERE?
MS. GIGL: THAT'S CORRECT, YOUR HONOR. I WOULD POINT OUT TWO THINGS. I
THINK THE APPELLATE DIVISION IN RENDERING ITS DECISION ON PAGE 14 APPLIED THE WRONG
STANDARD. THE APPELLATE DIVISION APPLIED A STANDARD BASED ON NEW JERSEY STATUTE 2C:25-2
1 D 1 WHICH DEALS WITH THE SEIZURE OF WEAPONS IN DOMESTIC VIOLENCE CASES GENERALLY, HAVING
NOTHING TO DO WITH LAW ENFORCEMENT AND THAT WAS THE STANDARD THAT THE ATTORNEY GENERAL
SAID IT USED AND THAT'S THE WRONG LEGAL STANDARD TO USE AND I BELIEVE THE APPELLATE
DIVISIONERED WHEN IT UPHELD THE ATTORNEY GENERAL'S USE OF THAT STANDARD. THERE IS A
SPECIFIC DIRECTIVE THAT SUPERSEDES THAT STATUTE AS IT APPLIES THE TO LAW ENFORCEMENT OFFICERS
WHO ARE CHARGED WITH DOMESTIC VIOLENCE AND SO I THINK, YOU KNOW, THAT IS ONE THING THAT
THIS SHOULD CONSIDER IN ANALYZING WHAT IT SHOULD DO, THAT, YOU KNOW, THERE IS A GENERAL
STATUTE THAT DEALS WITH HOW WE DEAL WITH WEAPONS OR HOW A COUNTY PROSECUTOR DEALS WITH
WEAPONS IN DOMESTIC VIOLENCE CASES AND THAT'S STATUTORILY CREATED, BUT THAT'S NOT THE
STANDARD THAT COULD BE APPLIED IN THIS CASE BECAUSE THE ATTORNEY GENERAL SUPERCEDED AND
SAID WHEN WE HAVE A LAW ENFORCEMENT OFFICER, THIS IS WHAT I WANT YOU TO DO.
JUSTICE ALBIN: THIS IS MY LAST QUESTION. ALTHOUGH WE ARE DECIDING AN INDEMNIFICATION
ISSUE HERE, HOWEVER WE DECIDE THIS CASE WILL DETERMINE WHETHER OR NOT JUDGE SHIPP
DISMISSES A CLAIM OR KEEPS A CLAIM. IF WE ACCEPT YOUR ARGUMENT, HE IS GOING TO DISMISS A
BUNCH OF CLAIMS BASED UPON 11TH AMENDMENT IMMUNITY? I AM ONLY ASKING THIS
QUESTION TO SEE WHAT THE CONSEQUENCES OF OUR DECISION WILL BE. AM I CORRECT
ABOUT THAT? MS. GIGL: I MEAN, CERTAINLY THAT WOULD BE MY EXPECTATION, YOUR
HONOR, BUT I DON'T THINK THIS COURT SHOULD MAKE A DETERMINATION AS -- JUSTICE
ALBIN: I AM NOT SUGGESTING THAT WE SHOULD. I AM JUST TRYING TO FIGURE OUT WHAT THE
CONSEQUENCES ARE. I AM NOT SAYING THAT WE SHOULD BE GUIDED BY THOSE CONSEQUENCES I JUST
WANT TO KNOW WHAT THEY ARE, AM I CORRECT? MS. GIGL: YOU ARE CORRECT, YOUR HONOR.
I MEAN, JUDGE SHIPP HAS ALREADY INDICATED THAT, YOU KNOW, THE CLAIMS THAT ARE LAW ENFORCEMENT
HAVE BEEN DISMISSED WITH PREJUDICE SO IF THIS COURTS WERE TO STAY THAT WE FIND THAT THIS IS
ALL LAW ENFORCEMENT, I THINK THE NEXT APPLICATION TO JUDGE SHIPP WOULD BE WHETHER IT'S
BY THE ATTORNEY GENERAL OR BY, YOU KNOW, MY OFFICE WOULD BE, YOU KNOW, YOUR HONOR, THIS
COMPLAINT SHOULD BE DSD AS TO THESE PARTIES. NOW, YOU KNOW, HE MAY WELL SAY,
WELL, THERE IS STILL CERTAIN CLAIMS THAT I FIND REMAIN, BUT I CAN'T PREDICT WHAT JUDGE
SHIPP IS GOING TO DO BUT I TEND TO GREE WITH YOUR HONOR THAT YES, THERE WILL BE CONSEQUENCES
IN THAT UNDERLYING LITIGATION. THE OTHER ISSUE THAT IS PUZZLING IN TERMS OF
THE ATTORNEY GENERAL'S POSITION IS ITS STATEMENT THAT THE -- FROM -- IN ALL ITS LETTERS
THAT I UNCOVERED THAT THE TRAINING AND SUPERVISION OF LAW ENFORCEMENT OFFICERS IS
NOT A LAW ENFORCEMENT FUNCTION WHILE AT THE SAME TIME IN THE UNDERLYING LITIGATION ARGUING
TO JUDGE SHIPP THAT IT WAS. SO I AM NOT AWARE OF ANY CASES THAT DEAL WITH TRAINING AND
SUPERVISION IN TERMS OF WRIGHT AS TO WHETHER OR NOT THIS COURT OR AN APPELLATE COURT HAS
HELD THAT TRAINING AND SUPERVISION IS A CLASSIC LAW ENFORCEMENT FUNCTION. THERE ARE NUMEROUS
FEDERAL CASES THAT SAY THAT IT IS. THE ATTORNEY GENERAL, AS I SAID, IN ITS BRIEF TO DISMISS
THE LAW ENFORCEMENT CLAIMS IN THE SCOMBRUNDZ LYING CASE SAID THAT IT WAS TRAINING AND
SUPERVISION WAS A CLASSIC LAW ENFORCEMENT SO IN TERMS OF ALL THE ALLEGATIONS THAT ARE
CONTAINED IN THE VARIOUS COMPLAINTS I THINK IT'S CLEAR THAT, YOU KNOW, BROADLY THEY ARE
ALL LAW ENFORCEMENT, THEY WERE ALL INTENDED TO BE COVERED BY WRIGHT AND THAT THE ATTORNEY
GENERAL'S DECISION NOT TO COVER ALL THE CLAIMS WAS ERRONEOUS AND SHOULD BE REVERSED.
CHIEF JUSTICE RABNER: MISS GIG JUST ONE MORE QUESTION FOLLOWING UP ON JUSTICE
ALBIN'S QUESTION, DOES THE ESTATE OF THE VICTIM IN THIS CASE UNDERSTAND THE CONSEQUENCES
THAT THEY ARE NOT BEFORE THIS COURT? MS. GIGL: YOUR HONOR, I CAN'T ANSWER
THAT QUESTION. I HAVE NO IDEA AS TO, YOU KNOW, WHAT THE ESTATE KNOWS OR DOESN'T KNOW
OTHER THAN FROM, YOU KNOW, READING THEIR PLEADINGS AND, YOU KNOW, I CAN'T TELL YOU
CANDIDLY, YOU KNOW, WHAT THEY KNOW. CHIEF JUSTICE RABNER: HAVE THEY BEEN
SERVED WITH COPIES OF THE PAPERS IN THIS CASE AS FAR AS YOU KNOW? MS. GIGL:
THE ONLY WAY THAT I KNOW THAT THEY HAVE SOME OF THE INFORMATION, YOUR HONOR, IS THAT
AFTER THE APPELLATE DIVISION REVERSED IN PART THE ATTORNEY GENERAL'S DECISIONS ON THE THIRD
-- THE SECOND AND THIRD AMENDED COMPLAINTS, THE ATTORNEY GENERAL THEN DID FILE A SUBSEQUENT
LETTER AMENDING AND THEN CAME BACK INTO THE FEDERAL LITIGATION TO MOVE TO DISMISS AND
SO AS PART OF THAT, THE PARTIES WERE MADE AWARE OF, OBVIOUSLY, THE APPELLATE DIVISION
DECISION, THIS UNDERLYING LITIGATION AND WHAT IS TRANSPIRING AND KNEW THAT THERE WAS A
-- AT THAT POINT, I BELIEVE IT WAS A PETITION FOR CERTIFICATION THAT WAS PENDING AND SO
THEY WOULD, YOU KNOW, BE AWARE THAT THIS HAD BEEN GOING ON. BUT THERE HAS BEEN NO EFFORT
ON ANYONE'S PART TO FORMALLY SERVE THEM WITH COPIES OF ANYTHING IN THIS COURT THAT I'M
AWARE OF. CHIEF JUSTICE RABNER: THANK YOU, COUNSEL. DOMINICK DOMESTIC
VIOLENCE DOMESTIC VIOLENCE CHIEF JUSTICE RABNER: DANIEL M.
VANNELLA: THE COURT HELD IN WRIGHT VERSUS STATE THAT COUNTY EMPLOYEES ARE STATE EMPLOYEES
FOR PURPOSES OF THE TORT CLAIMS ACT ONLY WHEN THEY INVESTIGATE ARREST AND PROSECUTE PEOPLE
FOR CRIMINAL OFFENSES. OF A CRIMINAL PROSECUTION, FOR PURPOSES OF THE TORT CLAIMS
ACT, THE STATE IS LIABLE UNLESS THE DEFENDANT INDEMNIFY. WHEN A COUNTY DETECTIVE IS SUED
FOR FALSE ARREST OR EXCESSIVE FORCE. BUT WHEN COUNTY EMPLOYEES BECOME INVOLVED IN THE
SUPERVISION OR MANAGEMENT OF LOCAL POLICE, THAT IS NOT THE TYPE OF ACTIVITY FOR PURPOSES
OF THE TORT CLAIMS ACT FOR WHICH THE STATE IS LIABLE AND MUST DEFEND AND INDEMNIFY. BUT
THAT INCLUDES ADMINISTRATIVE INVESTIGATIONS OF POLICE. ADMINISTRATIVE PROCEDURES OF POLICE
OFFICER WEAPONS AND MORE GENERALLY TRAINING AND OVERSIGHT PROVIDED TO LOCAL POLICE
DEPARTMENTS. THE COUNTY's POSITION IN THIS APPEAL IF IT IS ACCEPTED WOULD
RE-WRITE THE RIGHT DECISION AND BECAUSE IT WOULD SHIFT LIABILITY TO THE STATE FOR CLAIMS
THAT TRADITIONALLY HAVE BEEN DIRECTED AGAINST OTHER ENTITIES AND CONTINUE TO HAVE BEEN
IN THE 19 YEARS SINCE WRIGHT WAS DECIDED. THE COURT THUS SHOULD REJECT THE COUNTY's
POSITION AND IF YOU CONSIDER THE ARGUMENTS ON WHICH IT RE-LIES, IT IS CLEAR WHY THE COURT
SHOULD DO SO. THE COUNTY RE-LIES ON THE ATTORNEY GENERAL SUPERSESSION POWER, WHICH THE
COURT DID CITE AND HIS POWER TO ISSUE DIRECTIVES BUT THEY PLACE FAR TOO MUCH WEIGHT ON
BOTH OF THESE. THIS IS BECAUSE THE ATTORNEY GENERAL's ABILITY TO INFLUENCE COUNTY
PROSECUTOR'S OFFICE PURSUANT TO THE CRIMINAL ACT ENCOMPASSES VIRTUALLY EVERYTHING THEY
DO. EVEN THOSE THINGS THIS COURT AND OTHER COURTS HAVE DEFINITIVELY HELD.
HE COULD SUPERSEDE OR ASSIGN A D A G OR AN AA G TO A PROSECUTORS IN VIRTUALLY ANY CAPACITY
THAT IF PROSECUTOR'S OFFICE HANDLES. HE ALSO CAN AND HAS ISSUED A NUMBER OF LAW ENFORCEMENT
DIRECTIVES AND GUIDELINES THAT BIND NOT JUST COUNTY PROSECUTORS BUT ALL LAW ENFORCEMENT
OFFICERS IN THE STATE. AND AS THE COURT HAS ALREADY NOTED, THESE INCLUDE DIRECTIVES ON
PUBLIC RECORDS REQUESTS AS WELL AS DIRECTIVES THAT GUIDE PERSONNEL DECISIONSES BOTH OF
WHICH UN-SDWUTEDLY UNDER CASE LAW PRESS DID SENT. BUT IF THE FOLLOW THE THE COUNTY's
LOGIC, BECAUSE THE ATTORNEY GENERAL HAS THESE POWERS, THE STATE WOULD BE OBLIGATED TO
INDEMNIFY ALL COUNTY AND LOCAL LAW ENFORCEMENT OFFICES FOR THOSE FUNCTIONS AND FOR VIRTUALLY
EVERYTHING ELSE THEY SDO. I KNOW THAT THE COUNTY ADDED A NUANCE TODAY THAT NOT ALL DIRECTIVES
ARE NECESSARILY DETERMINATIVE OF UNDER WRIGHT. JUST THE ONES THAT ARE NEEDED TO INSTILL
STATEWIDE CONSISTENCY. BUT THAT'S WHAT EVERY DIRECTIVE THAT IS ISSUED IS MEANT TO DO,
IS TO CREATE A STATEWIDE UNIFORMITY IN THE PERFORMANCE OF A PARTICULAR FUNCTION. SO
THAT IS WHY THE COUNTY's LOGIC FAILS. INSTEAD, WRIGHT CARVED OUT ONLY SERVE
CLASSIC FUNCTIONS PERFORMED BY COUNTY PROSECUTORIAL EMPLOYEES IN ORDER TO HARMONIZE
THEIR CASE LAW WITH STATUTES AS WELL AS PUBLIC POLICIES. WE SUBMIT THAT CARVE OUT WAS
INTENDED TO BE NARROW AND LIMITED JUST AS THE TORT CLAIMS IS NARROW AND LIMITED. THE
COURT SHOULD CONTINUE TO INTERPRET IT AS SUCH AND AS SAID IN OUR BRIEFS THE PRIOR STATE
AND FEDERAL LAW INTERPRETED IT AS SUCH. WRIGHT ALSO RECOGNIZED THAT STATUTORY
AUTHORITY HOLDS THE COUNTY RESPONSIBLE FOR PAYING ALL NECESSARY SXRENSZ IN- H AUTHORITIES
ON WHICH WRIGHT RELY ALSO RE-ENFORCE THAT NOTWITHSTANDING THE ATTORNEY GENERAL POWERS
TO ISSUE DIRECTIVES AND TO SUPERSEDE, THE COUNTY MAINTAINS EMPLOY EMPLOYEE RELATIONSHIPS
WITH THE PROSECUTORS EMPLOYEES. -SOUND INTERRUPTED-AND THEY DO THAT THE THE COUNTY
IS LIABLE FOR EMPLOYMENT IN OPRA LAWSUITS DESPITE THEIR HAVING SOME NEXUS WITH LAW ENFORCEMENT,
CERTAINLY THESE AUTHORITIES CAN AND DO HOLD THE COUNTY LIABLE FOR ANY OTHER LAWSUITS OUTSIDE
OF THE LIMITED STATE CARVE OUT. THEREFORE WE QUEST THAT THIS COURT AFFIRM THE APPELLATE
DIVISION. THIS CONCLUDES MY OPENING STATEMENT. JUSTICE PATTERSON: MR.
VANNELLA, IF I COULD START OUT, WHAT IS THE ATTORNEY GENERAL's POSITION AS TO WHAT
CLAIMS, AND I DON'T MEAN BY NUMBER OR BY PAGE, A VERY LONG COMPLAINT, BUT WHAT CLAIMS ARE
LEFT IN THIS CASE AFTER JUDGESHIP's DISMISSAL WITH PREJUDICE OF THE LAW ENFORCEMENT RE-
LATER CLAIMS. DANIEL M. VANNELLA: WELL, MY UNDERSTANDING, YOUR HONOR, IS,
DESPITE MAKING THAT RULING IN THE FIRST ROUND OF THE MOTIONS TO DISMISS, IT'S STILL NOT
CLEAR WHAT CLAIMS ARE STILL ACTIVE BECAUSE-SOUND INTERRUPTED-. BUT I WOULD SUBMIT THAT
AND THERE'S STILL A MOTION, A THIRD -- A MOTION TO DISMISS THE THIRD AMENDED COMPLAINT
PENDING WHICH-SOUND INTERRUPTED-ARE BOTH INVOLVED IN. BUT WE WOULD SUBMIT THAT FOLLOWING
THAT DECISION, WHAT SHOULD BE LEFT IF ANYTHING, THE CLAIMS THAT -- AGAINST THE COUNTY
PROSECUTOR'S EMPLOYEES THAT THE ATTORNEY GENERAL DENIED RIGHT REPRESENTATION IN-DID HE MEAN
FOUNDATION. SO THE CLAIMS RELATING TO THE RETURN OF THE SERVICE WEAPON AND THE CLAIMS
RELATING TO THIS ALLEGED SUPERVISION OR OVERSIGHT THAT THE COUNTY PROSECUTOR HAD OFFICER
SIEDLE OR OTHER LOCAL POLICE OFFICERS WHO WERE INVOLVED IN THE INCIDENT. WE ANTICIPATE
THAT THE CLAIMS THAT OUR OFFICE AGREED TO REPRESENT AND INDEMNIFY WHICH ARE STILL
PENDING IN FRONT OF JUDGESHIP ARE NOT ONLY CLASSIC LAW ENFORCEMENT FUNCTIONS BUT FROM THEM
ARE ALLEGATIONS THAT SHOULD BE ENTITLED TO PROSECUTORIAL IMMUNITY, ALTHOUGH THAT IS AN
ISSUE OF INTERPRETATION OF COMMON LAW, NOT RIGHT. WE DISPUTE THOSE CLAIMS SHOULD BE DISMISSED,
HOWEVER, BASED ON THAT IMMUNITY PAR PARND TO ANSWER ANOTHER QUESTION THAT WAS ASKED OF
MS. GIGL, THE 11TH AMENDMENT WOULD ONLY IF ANYTHING DISMISS CLAIMS AGAINST THE COUNTY
PROSECUTOR'S OFFICE AND THAT IS IF YOU -- IF JUDGESHIP ACCEPTS THAT THE CLAIMS THAT ARE
BEING DIRECTED AGAINST THE PROSECUTOR'S OFFICE THAT RE-LATE TO THE CLASSIC LAW ENFORCEMENT
FUNCTIONS, IN THAT SCENARIO THE PROSECUTOR'S OFFICE WOULD BE CONSIDERED AN ARM OF THE
STATE AND THEREFORE JUST AS THE STATE WOULD HAVE 11TH AMENDMENT IMMUNITY, THE COUNTY
PROSECUTOR'S OFFICE WOULD BE DISMISSED. THAT IN ITSELF WOULD NOT DISMISS ANY OTHER CLAIMS
AGAINST THE INDIVIDUAL OFFICIALS BECAUSE THERE COULD BE INDIVIDUAL LIABILITY CLAIMS AGAINST
THEM. JUSTICE PATTERSON: IF I MAY FOLLOW UP. IS THERE -- WHAT IS THE ATTORNEY
GENERAL's POSITION AS TO WHETHER THERE IS ANY DELIGHT BETWEEN CLAIMS THAT ARE SUBJECT TO
11TH AMENDMENT IMMUNITY FOR THE STATE AND CLAIMS AS TO WHICH THE ATTORNEY GENERAL MUST
AND WILL DEFEND AND INDEMNIFY IN THIS CASE? DANIEL M. VANNELLA: I THINK
OUR POSITION IS AND HAS BEEN SINCE WRIGHT CAME OUT IS THAT ANYTHING -- ANY CLAIMS DIRECTED
AGAINST A PROSECUTOR'S OFFICE, THE ENTITY ITSELF, OR OFFICIAL CAPACITY CLAIMS AGAINST
PROSECUTORS EMPLOYEES THAT ARE CLASSICAL LAW ENFORCEMENT FUNCTIONS AND THEREFORE STATE
FUNCTIONS UNDER WRIGHT SHOULD BE ENTITLED TO 11TH AMENDMENT IMMUNITY BECAUSE IF THOSE
SAME CLAIMS WERE DIRECTED AGAINST SAY MY OFFICE, WHICH IS 100 PERCENT A STATE OFFICE,
THAT OFFICE WOULD HAVE 11TH AMENDMENT IMMUNITY. BUT THE ATTORNEY GENERAL OR A PROSECUTOR
IN THE DIVISION OF CRIMINAL JUSTICE COULD ALWAYS BE SUED IN THEIR INDIVIDUAL CAPACITY
AND WHETHER THOSE CLAIMS SURVIVE DEPENDS NOT ON THE 11TH AMENDMENT BUT ON ENTIRELY SEPARATE
DOCTRINES OF ABSOLUTE PROSECUTORIAL IMMUNITY OR QUALIFIED IMMUNITY. SO IN SHORT WRIGHT
HAVE NO BEARING ON WHETHER CLAIMS AGAINST INDIVIDUAL EMPLOYEES ARE ENTITLED TO ABSOLUTE
OR QUALIFIED IMMUNITY. JUSTICE ALBIN: IT ALSO DEPENDS ON WHETHER THE
INDIVIDUAL IS ACTING IN HIS INDIVIDUAL CAPACITY OR IN HIS OFFICIAL CAPACITY. THEN HE OR
SHE IS THE ALTER EGO OF THE ENTITY AND WOULD HAVE 11TH AMENDMENT IMMUNITY. AM I CORRECT
ABOUT THAT? DANIEL M. VANNELLA: YOU'RE CORRECT, JUSTICE ALBIN. MY
UNDERSTANDING OF HOW THESE CASES ARE LITIGATED IS IT DOESN'T TAKE MUCH FOR A COURT TO ASSUME
AT LEAST AT THE PLEADING STAGE THAT A PLAINTIFF IS SUING ANY -- IT COULD BE ANY OFFICIAL.
SAY THE COUNTY PROSECUTORIAL EMPLOYEES IN THIS CASE BOTH IN THEIR INDIVIDUAL AND CAPACITY.
AS LONG AS THEY'RE BEING SUED IN THEIR PERSONAL OR INDIVIDUAL CAPACITIES, THOSE CLAIMS
WOULD STILL SURVIVE. JUSTICE LA VECCHIA: MR. VANNELLA, WHEN YOU ARE
REFERRING TO CLASSIC LAW ENFORCEMENT FUNCTIONS, ARE YOU TYING THAT TO DEFENSE SPECIFIC
CLAIMS INVESTIGATIONS OF SPECIFIC COMPLAINTS? HOW BROADLY DOES THAT TERM GOOD IN THE
ATTORNEY GENERAL's IMPLEMENTATION OF THIS INDEMNIFICATION OBLIGATION UNDER WRIGHT?
DANIEL M. VANNELLA: I DON'T KNOW THAT WE HAVE A -- I DON'T KNOW THAT WE WOULD
SAY AS A BRIGHT LINE RULE THAT IT HAS TO BE TIED TO AN INDIVIDUAL INVESTIGATION, BUT I THINK
THAT'S A FAIR WAY TO LOOK AT IT. BECAUSE WHEN YOU'RE TALKING ABOUT INVESTIGATION
PROSECUTION, ARREST, YOU'RE TALKING ABOUT SOMETHING SPECIFIC. I THINK OUR
INTERPRETATION THAT WOULD NARROW THE ONE THAT I THINK YOU SUGGESTED, JUSTICE LAVECCHIA,
THAT UNDER WRIGHT WHAT THE STATE IS LIABLE FOR UNDER THE TORT CLAIMS ACT INDEMNIFY IS
SPECIFICALLY INVESTIGATIONS OF CRIMES. THE PROSECUTOR HAS AN ABUNDANT LEVEL OF AUTONOMY
THAT HAS BEEN LONG RECOGNIZED EVEN BEFORE THE CRIMINAL JUSTICE ACT IN 1970 AS DOES THE
ATTORNEY GENERAL TVMENT CRIMINAL JUSTICE ACT KIND OF SINKS THE TWO LEVELS OF AUTHORITY.
THE COUNTY PROSECUTORS HAVE A LOT OF AUTHORITY TO DO THE SORT OF THINGS THAT WE DENY
DEFENSE INDEMNIFICATION AND ALWAYS HAVE REGARDING OVERSIGHT OF LOCAL POLICE DEPARTMENTS.
WHAT WE SEE IN THIS CASE, ONE OF THE ALLEGATIONS AND WHAT HAS BEEN COMING UP SPEAKING
AS SOMEONE WHO IS FAMILIAR WITH THE WRIGHT REQUEST AND THE LAWSUITS FROM WHICH THEY
DERIVE FROM IN THE PAST SO YEARS, WE'RE SEEING MORE AND MORE CLAIMS THE COUNTY PROSECUTORS
ARE THE CHIEF LAW ENFORCEMENT OFFICERS OF THE COUNTY, THEY HAVE OVERSIGHT OVER ALL LOCAL
POLICE DEPARTMENTS SO THEREFORE THEY'RE LIABLE JUST FOR ALLOWING BAD PRACTICES TO GO
UN-CORRECTED OR BECAUSE THEY'RE IN A POSITION WHERE THEY MIGHT HAVE DONE SOMETHING. THAT'S
NOT TIED TO A SPECIFIC INVESTIGATION. WE WOULD SAY CERTAINLY THAT IS NOT SOMETHING FOR
WHICH THE STATE GOVERNMENT UNDER WRIGHT IS REQUIRED TO DEFEND AND INDEMNIFY. AND AS WE
TAKE IN THE POSITION IN THIS CASE THAT INCLUDES ANY INTERNAL AFFAIRS INVESTIGATION THAT
THE COUNTY PROSECUTOR MIGHT BECOME INVOLVED WITH, WHETHER IT'S REGARDLESS OF THE AUTHORITY
WHICH IT DERIVES. JUSTICE SOLOMON: SIT YOUR CONTENTION THAT ENFORCEMENT
OF THE DOMESTIC VIOLENCE ACT OR OR IS NOT A LAW ENFORCEMENT FUNCTION? DANIEL
M. VANNELLA: WE WOULD SAY THAT IT'S -- WELL, THAT'S PART OF WHAT WE DISAGREED WITH ON
THE COUNTY. IT'S ONE THING TO SAY IT'S A LAW ENFORCEMENT FUNCTION. I WOULD SAY JUST
ABOUT ANYTHING THE PROSECUTOR DOES IS A LAW ENFORCEMENT FUNCTION. BUT THE ISSUE IN
WRIGHT -- JUSTICE SOLOMON: I'M NOT TALKING ABOUT THAT. I'M SAYING, THE
ENFORCEMENT OF THE DOMESTIC VIOLENCE ABLTH AGAINST A PARTICULAR LAW ENFORCEMENT OFFICER,
IS THAT OR IS THAT NOT A LAW ENFORCEMENT FUNCTION? WE CAN PARSE THE INDIVIDUAL ACTS
LATER. DANIEL M. VANNELLA: I WOULD AGREE THAT'S -- THAT'S CLEARLY ENFORCEMENT
OF THE LAW. THAT'S A LAW ENFORCEMENT FUNCTION. CHIEF JUSTICE RABNER: YOUR
COLLEAGUE HAS ARGUED TO US THAT RETENTION OR A DECISION BY THE COUNTY PROSECUTOR WHETHER
AN EMPLOYEE CAN RETAIN OR WHETHER A WEAPON MUST BE SEIZED IN THE CONTEXT OF POINTED DOMESTIC
VIOLENCE ALLEGATION AS AS WE HAVE IN THIS CASE IS NO DIFFERENT THAN THE CLASSIC LAW ENFORCEMENT
DECISION ABOUT INVESTIGATION PROSECUTION ARREST. CAN YOU SPEAK TO THAT? DANIEL
M. VANNELLA: I WOULD SAY THERE IS NO DIFFERENCE IF TWRAU SEIZED AS PART OF AN ARREST OR
AS PART OF OF A CRIMINAL CHARGE. BUT PROSECUTORS ARE INVOLVED WITH MORE THAN JUST CRIMINAL
INVESTIGATIONS AND CRIMINAL CHARGES AND AS THIS CASE SHOWS, THERE ARE SITUATIONS WHERE
THE PROSECUTOR'S OFFICE MAY EITHER ON ITS OWN INITIATIVE OR PURSUANT TO THE DOMESTIC
VIOLENCE ACT OR THE ATTORNEY GENERAL's DIRECTIVE MAY SEIZE WEAPONS WHEN THERE IS NO CRIMINAL
CHARGE THAT WILL RESULT FROM IT. AND IN THE CASE OF LAW ENFORCEMENT OFFICERS, THERE IS
A REASON FOR THAT. AND IT'S NOT JUST BECAUSE WE ONLY WANT TO DEAL WITH THE OFFICERS WHO
HAVE OR ARE ABOUT TO COMMIT A CRIME, BUT WE ARE DEALING WITH A CLASS OF PEOPLE WHO UN-
LIKE MOST PEOPLE IN THE STATE ARE AUTHORIZED TO NOT ONLY POSSESS BUT USE WEAPONS, BUT
LIKE ANYONE MIGHT BE SUBJECT TO SITUATIONS IN THEIR PERSONAL LIFE WHERE ACCESS TO THAT
WEAPON, YOU KNOW, WOULD CREATE A GREAT DANGER AND AS PART OF THE GENERAL OVERSIGHT THAT
THE COUNTY PROSECUTORS HAVE, PART OF THAT IS TO ENSURE THAT OFFICERS ARE NOT ALLOWED TO
GET TO THAT SITUATION WHERE THEY MIGHT ACTUALLY COMMIT A CRIME. IN THIS CASE, WE DENIED
WRIGHT FOR -- TO THE EXTENT THAT THEY SEIZED HIS WEAPON AND THEY WERE CONDUCTING BASICALLY
ADMINISTRATIVE FUNCTION, THEY WERE PART OF THE FITNESS FOR DUTY EVALUATION. YOU WOULD
SAY THAT IS FAR -- THAT IS OUTSIDE AND SEPARATE FROM A SCENARIO WHERE THEY MIGHT SEIZE
A WEAPON BECAUSE THEY ARRESTED OFFICER SIEDLE FOR ACTUALLY COMMITTING A CRIME, WHETHER
IT'S A DOMESTIC VIOLENCE CRIME OR -- JUSTICE PATTERSON: BUT WOULD YOU CONCEDE,
MR. VANNELLA, THIS IS A MUCH MORE -- MUCH CLOSER CASE THAN A SITUATION WHERE AN OFFICER
IS JUST IN THE NORMAL COURSE OF HIS DUTIES OR HER DUTIES IS CREATING -- BEHAVING IN A
MANNER THAT CREATES CONCERN ABOUT HIS MENTAL HEALTH GENERALLY? I MEAN, WE HAVE HERE HIS
DV HISTORY ALLEGED WHICH DOES IMPLICATION THE DOMESTIC VIOLENCE ACT. AND I WOULD SUGGEST
MAKES IT DIFFERENT HAVE A SITUATION WHERE, YOU KNOW, THE SUPERVISING OFFICERS ARE OBSERVING
BEHAVIOR AND SPEECH OF THE OFFICER THAT'S GIVING PEOPLE CONCERN IN THE POLICE STATION
THAT PERHAPS HE'S NOT FIT FOR DUTY AND STARTS AN ADMINISTRATIVE PROCESS. DO YOU SEE WHAT
I MEAN? YOU'VE GOT A REAL DV ASPECT TO THIS, WHICH IS STATUTORY AND WHICH IS LAW
ENFORCEMENT. DANIEL M. VANNELLA: WELL, I CAN'T DISAGREE THAT THE DOMESTIC
VIOLENCE ACT IS PART OF TITLE 2C. AS WE ARGUED, DOMESTIC VIOLENCE INVESTIGATIONS ARE NOT
SOLELY CRIMINAL INVESTIGATIONS. THEY CAN BE BROUGHT EITHER WAY. I WOULD CERTAINLY AGREE
THAT THERE IS A -- TO THE EXTENT THE DOMESTIC VIOLENCE CAN BE CONSIDERED A CRIME, IT'S
CERTAINLY CLOSER TO A CRIMINAL INVESTIGATION THAN OTHER SCENARIOS THAT YOU MENTIONED,
JUSTICE PATTERSON. WE WOULD STILL ARGUE THAT THERE IS A -- THERE'S STILL A CLEAR
DISTINCTION BETWEEN THIS AND AN ACTUAL CRIMINAL INVESTIGATION. JUSTICE ALBIN:
ONE OF THE CLAIMS ON WHICH YOU HAVE DECLINED TO DEFEND IS FAILING TO PROPERLY SUPERVISE,
MONITOR, TRAIN, RETAIN AND DISCIPLINE OFFICERS. WHICH IS A CLASSIC LINE IN A CIVIL RIGHTS
COMPLAINT. AND IF THE SFURL FAILURE TO SUPERVISE, MONITOR USHGS TRAIN AND DISCIPLINE
HAS TO DO WITH AN OFFICER THAT HAS REPEATEDLY, RECKLESSLY FIRED HIS WEAPON AND THEN ON
THE SIXTH OCCASION WINDS UP KILLING SOMEONE, IS THAT A LAW ENFORCEMENT FUNCTION? IS IT
AN ADMINISTRATIVE FUNCTION TO NOT HAVE ACTED -- TAKE IT AWAY. DANIEL M.
VANNELLA: SO PART OF THE PROBLEM WITH THIS CASE -- I'LL JUST PREFACE THIS BY SAYING, WHEN
WE GET A WRIGHT REQUEST -- AND TO BE FAIR THE COUNTY HAS A SIMILAR DILEMMA. WE HAVE TO
ASSUME THAT ALL THE ALLEGATIONS ARE TRUE AND ACTUALLY CAN RESOLVE IN LIABILITY. PART
OF THE PROBLEM IS YOU'RE DEALING WITH ALLEGATIONS LIKE THIS WHERE IT'S NOT CLEAR AT LEAST
TO ME THAT WHETHER A PROSECUTOR IS A COUNTY OR STATE EMPLOYEE THAT THEY HAVE ANY LIABILITY
FOR FAILURE TO SUPERVISE SOMEONE WHO'S NOT THEIR ACTUAL EMPLOYEE, MEANING LOCAL POLICE
OFFICERS. SO THE FIRST ISSUE WE HAVE TO DEAL WITH IS WHETHER THAT IS ACTUALLY AN ACTIONABLE
CLAIM. WE HAVE TO ASSUME AT THIS POINT THAT IT IS. OUR POSITION, AGAIN, IS THAT WRIGHT
ONLY PUTS THE STATE LIABLE FOR CRIMINAL INVESTIGATIONS AND PROSECUTIONS. IT'S AN
EITHER OR. WE BELIEVE THAT WHEN THE COURT DECIDED WRIGHT, IT WAS SAYING THAT THERE ARE
CERTAIN THINGS THAT THE STATE WOULD HAVE TO DEFEND AND INDEMNIFY FOR AND OTHER THINGS
THAT THE COUNTY WOULD. IF IT'S NOT THE STATE, IT'S THE COUNTY. AND THE REASON FOR THAT
IS THE LIMITED-SOUND INTERRUPTED-THE NARROW DEFINITION OF STATE EMPLOYEE AS WELL AS THE
STATUTE THAT HOLDS THE COUNTY RESPONSIBLE FOR PAYING ALL NECESSARY EXPENSES. WE ARE SAYING
THIS IS NOT A STATE FUNCTION FOR PURPOSES OF THE TORT CLAIMS ACT AND THEREFORE IT SHOULD FALL
ON THE COUNTY TO DEFEND AND INDEMNIFY. JUSTICE ALBIN: I POSED THIS QUESTION
TO MS. GIGL RG BUT HOW WE DECIDE THIS CASE, IF WE ACCEPT YOUR ARGUMENT, MORE COUNTIES
WILL BE SUBJECT TO LAWSUITS IN FEDERAL COURT BECAUSE THEY WILL NOT BE PROTECTED BY 11TH
AMENDMENT IMMUNITY. THAT'S ONE OF THE CONSEQUENCES OF OUR INDEMNIFICATION DECISION
HERE. AM I CORRECT ABOUT THAT? DANIEL M. VANNELLA: WELL, FIRST OF ALL,
WE WOULD ARGUE THAT IF THE COURT RULES IN OUR FAVOR IT WOULD BE MAINTAINING WHAT THE STATUS
QUO HAS BEEN SINCE WRIGHT, WHICH IS TO SAY THAT THESE SORT OF CLAIMS HAVE CONTINUED TO HAVE
BEEN HANDLED BY THE COUNTY. BUT I WILL ADD THIS, THAT EVEN THOUGH THE COUNTY -- IF THE
COUNTY ITSELF WERE SUED AS AN ENTITY, WHICH I BELIEVE THE COUNTY IS SUED AS AN ENTITY
IN THIS CASE, ALTHOUGH I COULD BE WRONG. THEY'RE CERTAINLY SUED IN MANY OTHER CASES AGAINST
COUNTY PROSECUTOR'S OFFICE OF WHICH I'M AWARE. EVEN THOUGH THE COUNTY, MONMOUTH COUNTY
IN THIS CASE, WOULD NOT HAVE 11TH AMENDMENT IMMUNITY, THEY STILL WOULD NOT HAVE-SOUND
INTERRUPTED-LIABILITY AS WELL. THE COUNTY WOULD STILL ONLY BE LIABLE IF THE PLAINTIFF
COULD SOMEHOW SHOW THAT THE COUNTY ITSELF COMMITTED A CONSTITUTIONAL VIOLATION UNDER
THE MAN KNELL CASE, MEANING THAT THEY HAD SOME POLICY. JUSTICE ALBIN: I
AGREE WITH THAT. I THINK WE UNDERSTAND THAT. BUT THE FURTHER WE ACCEPT YOUR ARGUMENT,
THE MORE WE TAKE AWAY 11TH AMENDMENT IMMUNITY FROM COUNTIES. CORRECT? I'M NOT TALKING
ABOUT MAN NAL. OF COURSE THEY HAVE MAN NAL PROTECTION IF THEY'RE IN THE CASE.
DANIEL M. VANNELLA: WELL, I GUESS WHAT I WOULD SAY IS THE COUNTY NEVER HAD 11TH
AMENDMENT IMMUNITY AND I DON'T SEE THAT THIS WOULD -- HOWEVER THE COURT RULES ON THIS WOULD
PUT MORE OR LESS LIABILITY ON THE COUNTY ITSELF. BECAUSE -- JUSTICE ALBIN:
THEY DIDN'T BEFORE WRIGHT. BUT WE NOW KNOW THAT THEY'RE HAVING 11TH AMENDMENT IMMUNITY
BECAUSE JUDGESHIP IS DISMISSING CLAIMS AGAINST THE COUNTY. BEFORE WRIGHT, COUNTIES WERE
SUED IN THE FEDERAL COURT. THE FURTHER WE EXPAND WRIGHT, THE FEWER COUNTIES ARE GOING
TO BE SUED IN FEDERAL COURT BECAUSE OF 11TH AMENDMENT IMMUNITY. AM I MISTAKEN ABOUT
THAT? DANIEL M. VANNELLA: I'M NOT SURE THAT JUDGESHIP -- I COULD BE WRONG.
I DON'T BELIEVE HE DISMISSED ANY CLAIMS AGAINST MONMOUTH COUNTY BASED ON 11TH AMENDMENT
IMMUNITY. LIKE I SAID, I THINK THE ONLY QUESTION IS WHETHER -- IS WHETHER THE COUNTY
PROSECUTOR'S OFFICE, WHICH IS ITSELF A DEFENDANT, WOULD BE ENTITLED TO 11TH AMENDMENT
IMMUNITY EITHER IN FULL OR IN PART. AND AGAIN THEY WOULD ONLY BE ENTITLED TO THE EXTENT
THAT THERE ARE CLAIMS THAT RE-LATE TO CLASSIC LAW ENFORCEMENT FUNCTIONS. SO
EITHER WAY THE CLAIMS AGAINST THE COUNTY PROSECUTOR'S OFFICE ARE ALMOST DERIVATIVE OF
THE CLAIMS AGAINST THE PROSECUTOR AND THE THREE ASSISTANT PROSECUTORS. IN SHORT, THE
PLAINTIFF HAS A CLAIM AGAINST ANY OF THEM. THE CLAIMS CAN BE PROVEN AGAINST THOSE
INDIVIDUALS. THEY ALMOST DON'T NEED THE COUNTY PROSECUTOR'S OFFICE. SO I DON'T KNOW THAT
I WOULD AGREE THAT THIS COURT'S DECISION WOULD HAVE -- WOULD RESULT IN ANY REAL CHANGES
FOR THE COUNTY ITSELF AS A DEFENDANT IN FUTURE LAWSUITS. JUSTICE LA VECCHIA:
MR. VANNELLA, IS IT COMMON IN THE ATTORNEY GENERAL's REVIEW OF COMPLAINTS LIKE WHAT
AROSE IN THIS SITUATION TO REVIEW PARAGRAPH BY PARAGRAPH AND DETERMINE WHETHER OR NOT
THEY'LL BE COVERAGE FOR ONE PARAGRAPH VERSUS ANOTHER AND THEN MAKE SOME OVERALL
DETERMINATION ABOUT COUNTS OR THE COMPLAINT AS A WHOLE? I CAN'T SAY THAT I RECALL SEEING
THE DETAIL THAT I'VE SEEN HERE. DANIEL M. VANNELLA: WELL, SO I'VE BEEN
D A G IN THIS OFFICE FOR TEN YEARS, NOW AN A G, JUSTICE. THIS IS ONE OF THE MORE COMPLEX
COMPLAINTS THAT I'VE SEEN. THEY'RE USUALLY MUCH MORE SIMPLER. AND THERE WERE HUNDREDS
OF PARAGRAPHS AND HUNDREDS OF DIFFERENT FACTUAL ALLEGATIONS. SO TO ANSWER YOUR QUESTION,
WE DON'T NECESSARILY NORMALLY BREAK THINGS DOWN BY PARAGRAPH. I THINK THE ATTORNEY GENERAL
WHO DRAFTED THIS RESPONSE AND THE ATTORNEY GENERAL's DECISION THERE WAS HOPEFUL THAT
THIS WOULD MAKE CLEARER WHAT WE WERE AGREEING TO DEFEND AND INDEMNIFY RATHER THAN MAKE
IT MORE CONFUSING. BUT WHAT I WOULD DISAGREE WITH IN GENERAL ABOUT THE COUNTY's
POSITION IS, IT'S ALMOST AS IF THEY'RE SAYING AS LONG AS THERE'S ONE DISTINCT CLAIM OR
ALLEGATION IN THE COMPLAINT THAT CLEARLY FALLS UNDER WRIGHT, WHATEVER THAT IS, THEN THAT
MEANS THE STATE WOULD HAVE TO PICK UP THE ENTIRE COMPLAINT AT LEAST UNTIL THE END. I DON'T
THINK THAT'S NECESSARY. I DON'T THINK THAT'S CORRECT UNDER WRIGHT. AND WHILE IT MAY BE
NOT AS EASY TO HAVE TWO ATTORNEYS REPRESENTING A DEFENDANT IN A LAWSUIT, IT'S ALSO FAR
FROM A RARE THING. IT'S BEEN HAPPENING IN THIS CASE, IT HAPPENS ON OCCASIONS IN OTHER
WRIGHT CASES IN WHICH WE ARE INVOLVED. AS WELL AS OTHER NON-WRIGHT CASES IN WHICH WE
ARE INVOLVED. I THINK FOR PURPOSES OF WRIGHT, AS WELL AS WE MAKE CLEAR WHAT THE CLAIMS
ARE THAT WE BELIEVE FALLS UNDER THE STATE'S OBLIGATION AND WE ARE AGREEING TO DEFEND AND
INDEMNIFY THAT, THAT'S ALL OUR OBLIGATION IS. AND IF THERE'S NO UNCERTAINTY LIKE LAW
IN. JUSTICE LA VECCHIA: VEZ SEE, WHICH THIS IS NOT, THIS IS NOT A SITUATION
WHERE IT APPEARS TO BE A CLASSIC LAW ENFORCEMENT FUNCTION BUT WE MAY NOT KNOW SOMETHING
ABOUT THE COUNTY's INVOLVEMENT. IF WE'RE CORRECT THAT FAILURE TO SUPERVISE A POLICE OFFICER
IS NOT A CLASSIC LAW ENFORCEMENT FUNCTION, THERE IS NOTHING THAT CAN CHANGE THAT BASED
ON WHATEVER MAY COME OUT IN DISCOVERY. SO THIS IS RELATIVELY DETAILED BUT
IT'S NOT THE ONLY TIME WE'VE DONE SOMETHING LIKE THIS WITH THE WRIGHT DECISION.
CHIEF JUSTICE RABNER: OTHER QUESTIONS, ANYONE? ANYTHING YOU'D LIKE TO ADD, MR. VANNELLA?
DANIEL M. VANNELLA: NO. THANK YOU, YOUR HONORS. CHIEF JUSTICE
RABNER: MS. GIGL, BRIEF REBUTTAL? ROBYN B. GIGL: VERY BRIEF, YOUR HONOR.
IN TERMS OF THE LAST POINT THAT JUSTICE LAVECCHIA RAISED IN THE PARAGRAPH BY PARAGRAPH
ANALYSIS, IT HAS SET UP AN INTERESTING DYNAMIC WHERE THE ATTORNEY GENERALRR ATTORNEY
GENERAL's OFFICE, AND MY OFFICE, NOT ME, BUT SOMEONE ELSE FROM MY OFFICE WHO IS
REPRESENTING THE COUNTY PROSECUTORS DEFENDANTS IN THE UNDERLYING CASE ARE ACTUALLY IN CONFLICT
WITH EACH OTHER BECAUSE THE DAGR ATTORNEY GENERAL IS TRYING TO LIMIT WHAT IS LAW ENFORCEMENT
AS OPPOSED TO, YOU KNOW, OUR POSITION WHICH IS EVERYTHING IS LAW ENFORCEMENT. SO JUST
FROM A LOGISTICAL STANDPOINT, NOT ONLY DO WE HAVE THE ISSUE THAT WE TALKED ABOUT BEFORE
IN TERMS OF HOW DO YOU FINED A CASE WHERE THERE ARE MULTIPLE PARAGRAPHS OR CLAUSES WITHIN
PARAGRAPHS AND NO PARTICULAR COUNTS THAT THE ATTORNEY GENERAL IS SAYING IS COVERED, BUT
YOU ALSO HAVE A SITUATION WHERE COUNSEL, ALTHOUGH REPRESENTING, YOU KNOW, THE SAME PARTIES,
ARE NOT ON THE SAME PAGE. SO IT'S A VERY -- JUSTICE FERNANDEZ-VINA: THERE'S
NO WAY TO AVOID THAT, IS THERE, COUNSEL? THERE'S NO WAY TO AVOID. IT'S UNAVOIDABLE WHEN
YOU HAVE A SITUATION LIKE THIS THAT THEY'LL BE A CONFLICT. IT HAPPENS EVEN IN CIVIL
CASES. THERE'S ALWAYS A CONFLICT. IT CAN'T BE RESOLVED UNLESS -- UNLESS THE ATTORNEY
GENERAL ROLLS OVER AND SAYS EVERYTHING IS COVERED. ROBYN B. GIGL: I'M
NOT SAYING THEY SHOULD ROLL OVER. I'M SAYING IT IS COVERED, JUSTICE. JUSTICE
FERNANDEZ-VINA: BUT IF YOU'RE WRONG AND THERE'S A CONFLICT, THEY COULDN'T DEFEND BECAUSE
THE DEFENSE ITSELF CREATES THE CONFLICT. SO YOU WOULD -- IT WOULD PREVENT THEM FROM RAISING
ANY TYPE OF PROJECTION TO COVERAGE. ROBYN B. GIGL: BUT WHEN YOU HAVE THE
CLASSIC SITUATION, LET'S TAKE THE INSURANCE CONTEXT, WHERE THERE ARE COVERED CLAIMS AND
NON-COVERED CLAIMS, YOU GO THROUGH WITH ONE COUNSEL, AND TO THE EXTENT THAT THERE'S AN
ULTIMATE DETERMINATION THAT SOMETHING RESULTED IN LIABILITY, YOU HANDLE INDEMNIFICATION
ISSUES DIFFERENTLY. SO THAT -- JUSTICE FERNANDEZ-VINA: IT'S A SEPARATE
LAWSUIT. ROBYN B. GIGL: I'M SORRY? JUSTICE FERNANDEZ-VINA:
IT'S A SEPARATE LAWSUIT. YOU DON'T TRY THEM AT THE SAME TIME SO THERE'S NO NEED TO --
A DEFENSE ATTORNEY IN A NEGLIGENCE OR CASE, THERE WAS NO NEGLIGENCE, THERE WAS NO INTERVENTION
NAL ACT. SO IT DOESN'T COME UP. ROBYN B. GIGL: AGAIN, GOING BACK TO JUSTICE
PATTERSON IN. JUSTICE LA VECCHIA: VEZ SEE, THAT'S BASICALLY WHAT SHE SAID
TLCHLT WHICH WAS, LOOK, IT'S EARLY ON IN THIS CASE BUT THE GENESIS OF THIS CASE IS IN
LAW ENFORCEMENT SO WE SHOULD PROVIDE COVERAGE OR THE ATTORNEY GENERAL SHOULD PROVIDE COVERAGE
AND IT TURNS OUT LATER ON THE COUNTY WAS RESPONSIBLE, WELL, THAT CAN BE ADDRESSED.
THE SAME THING HERE. THIS ARISES OUT OF A LAW ENFORCEMENT CONTEXT. AND SO THE GENESIS
OF THE COMPLAINT IS LAW ENFORCEMENT. SO THE ATTORNEY GENERAL SHOULD COVER. IF IT TURNS
OUT LATER ON THAT THERE WERE ITEMS THAT SHOULD NOT HAVE BEEN THE ATTORNEY GENERAL's
RESPONSIBILITY, THEN THAT CAN BE THE SUBJECT OF A SEPARATE LAVECCHIA LAWSUIT BETWEEN THE
ATTORNEY GENERAL AND THE COUNTY. JUSTICE ALBIN: THE CONFLICT YOU'RE TALKING
ABOUT IS THAT IF MR. VANNELLA AND YOU WERE BOTH BEFORE JUDGESHIP AND HIS ARGUMENT IS
ACCEPTED, YOUR CLIENT IS GOING TO WIND UP IN THE CASE. YOUR CLIENT IS GOING TO WIND UP
REMAINING ON THE LEDGER SHEET. CORRECT? ROBYN B. GIGL: YES, YOUR HONOR.
JUSTICE ALBIN: BECAUSE HE'S ARGUING, HEY, THE COUNTY WAS ACTING IN AN
ADMINISTRATIVE CAPACITY. THEY SHOULD REMAIN IN THE 1983 LAWSUIT. ROBYN B.
GIGL: THAT'S CORRECT, YOUR HONOR. JUSTICE LA VECCHIA: HAS IT HAPPENED SO FAR
THAT TWO ATTORNEYS ARE STANDING UP FOR THE SAME CLIENT BEFORE JUDGESHIP AND TAKING DIFFERENT
POSITIONS ON A QUESTION LIKE JUSTICE ALBIN JUST POSED? ROBYN B. GIGL: IT'S
BEEN A LITTLE BIT MORE NUISANCED THAN PSHGS YOUR HONOR, BUT THE ANSWER IS YES. BECAUSE
AFTER THE SECOND AMENDED COMPLAINT -- I'M SORRY. AFTER THE FIRST AMENDED COMPLAINT WHEN
ALL PARTIES FILED MOTIONS TO DISMISS, THE ATTORNEY GENERAL FILED A MOTION TO DISMISS
BUT SAID WE'RE ONLY MOVING TO DISMISS ON LAW ENFORCEMENT ISSUES. MY OFFICE FILED A MUCH
BROADER MOTION TO DISMISS. JUSTICE LA VECCHIA: ON BEHALF OF THE SAME CLIENT?
ROBYN B. GIGL: ON BEHALF OF THE SAME CLIENT. WHEN THAT MOTION WAS GRANTED
AND JUDGESHIP SAID EVERYTHING THAT'S LAW ENFORCEMENT OR DEALING WITH THE MONMOUTH
COUNTY PROSECUTOR'S OFFICE IS DISMISSED WITH PREJUDICE, THEREAFTER THE ATTORNEY GENERAL's
OFFICE HAS SAID, WELL, WE'RE NOT IN THIS CASE ANY MORE. DESPITE THE FACT THAT THE SAME
ALLEGATIONS REMAINED IN THE NEXT COMPLAINT. THE ALLEGATIONS THAT THE ATTORNEY GENERAL's
SAID THEY WERE COVERING. SO THEY JUST KIND OF WASHED THEIR HANDS OF IT AND SAID, WELL,
WE'RE OUT. AND, YOU KNOW, AS I SAID, THE APPELLATE DIVISION's DECISION HAS TO THR THE
CHART SHOWING THAT THOSE VERY SAME FACTUAL ALLEGATION WS STILL IN THE SECOND AMENDED
COMPLAINT THAT THE ATTORNEY GENERAL SAID WE'RE NOT DEFENDING IT. JUSTICE
PATTERSON: BUT DOESN'T THAT PROBLEM GO AWAY TO SOME DEGREE WHEN THE JUDGE RULES ON THE
CURRENT MOTION THAT'S PENDING? AND DECIDES, AS I UNDERSTAND THAT MOTION, WHAT'S REALLY
LAW ENFORCEMENT AND WHAT'S NOT. IN THE NEW COMPLAINT. ROBYN B. GIGL:
JUSTICE PATTERSON, I DON'T KNOW THAT JUDGESHIP IS INCLINED AT THIS POINT TO DETERMINE WHAT
IS LAW ENFORCEMENT AND WHAT IS NOT. I DON'T WANT TO SPEAK FOR JUDGESHIP. BUT CERTAINLY
HE HAS NOT SHOWN AN INTEREST SO FAR IN GOING THAT ROUTE. SO, I MEAN, AGAIN, WE'RE AT
THE VERY EARLY STAGES PROCEDURALLY AT LEAST IN THAT CASE IN THAT, YOU KNOW, NO ANSWER
HAS BEEN FILED. YOU KNOW, BY THE COUNTY DEFENDANTS. THERE HAVE JUST BEEN MOTIONS TO
DISMISS. SO, YOU KNOW, I THINK THE MORE LIKELY RESULT THAT WHATEVER THIS COURT DECIDES
WILL IMPACT JUDGESHIP IN TERMS OF HOW HE HANDLES THINGS. CHIEF JUSTICE RABNER:
ON THAT POINT, AND WE TOUCHED ON THIS AT THE END OF YOUR FIRST ARGUMENT, IN LIGHT OF THE
CONSEQUENCES, IF YOU PREVAIL HERE, SHOULDN'T THE ESTATE AND THE CHILDREN HAVE RECEIVED
AT LEAST A COURTESY COPY OF THE PAPERS IN THIS LITIGATION SO THAT THEY COULD MAKE A
DETERMINATION WHAT TO DO JUST AS A MATTER OF BASIC FAIRNESS? ROBYN B. GIGL:
YOUR HONOR, I MEAN, THE HONEST ANSWER IS, AS I SAID, YOU KNOW, I KNOW THEY'RE AWARE OF
IT BECAUSE IT'S BEEN PART OF THE PLEADINGS, BUT IN TERMS OF PROVIDING A COURTESY COPY,
YOUR HONOR, IT'S NOT -- HONESTLY NOT SOMETHING THAT I THOUGHT ABOUT. YOU KNOW, THE ARGUMENT
FOR US WAS WITH THE ATTORNEY GENERAL's OFFICE AND -- CHIEF JUSTICE RABNER:
TO BE CLEAR, I'M NOT SUGGESTING ANY BAD MOTIVES HERE AT ALL. ROBYN B. GIGL:
I UNDERSTAND. CHIEF JUSTICE RABNER: WHAT SHOULD WE DO ALTERNATE THIS POINT
IS THE QUESTION. ROBYN B. GIGL: WITH ALL DUE RESPECT TO COUNSEL FOR THE
ESTATE, I MEAN, CLEARLY THEIR POSITION I THINK -- YOU KNOW, AS JUSTICE ALBIN AS SAID,
IS GOING TO BE THAT THIS IS ALL ADMINISTRATIVE. AND SO REALLY I DON'T KNOW THAT THEIR
INPUT IS IMPORTANT TO THE COURT'S DECISION. IN FACT, IT MIGHT BE BETTER FOR THE COURT
TO DECIDE IT IN THE VACUUM THAT YOU'RE IN BECAUSE YOU CAN'T MAKE A DECISION BASED ON WHAT
WILL HAPPEN IN THE UNDERLYING CASE. YOU HAVE TO MAKE A DECISION BASED ON WHAT IS THE
LAW ACCORDING TO WRIGHT AND LAVEZZI AND HOW THOSE CHIPS FALL FROM THERE. YOU KNOW, WHILE
I UNDERSTAND THERE WILL BE CHIPS THAT FALL FROM THERE AND I'M NOT TRYING TO BE GLIB IN
ANY WAY, BUT THAT CAN'T BE THIS COURT'S CONCERN, JUST LIKE IT SHOULDN'T BE THE ATTORNEY
GENERAL's CONCERN WHEN MAKING THESE DECISIONS OR ANYONE ELSE'S. JUSTICE
PATTERSON: WE HAVE THE ESTATE'S ALLEGATION AND THE CHILDREN'S ALLEGATION THAT THIS IS
ALL ADMINISTRATIVE. IN THE COMPLAINT. ROBYN B. GIGL: JUSTICE PATTERSON,
IT IS IN THEIR THIRD AMENDED COMPLAINT. CORRECT. CHIEF JUSTICE RABNER:
WE JUST SPENT AN HOUR AND 20 MINUTES TEASING OUT THAT PARAGRAPH AND THAT'S WHY I ASKED
THAT QUESTION. THERE IS SOME BENEFITS TO ORAL ARGUMENT. AND WE'RE NOT HEARING ANYTHING
FROM THE ESTATE EXCEPT FOR THE FEW WORDS THEY INCLUDED IN PARAGRAPH 47. ROBYN
B. GIGL: YES, YOUR HONOR. CHIEF JUSTICE RABNER: ANYTHING ELSE YOU'D LIKE
TO ADD? ROBYN B. GIGL: NO, YOUR HONORS. THANK YOU VERY MUCH.
CHIEF JUSTICE RABNER: WE'LL TAKE THE MATTER UNDER ADVISEMENT.