PAUL KAMIENSKI, Plaintiff-Appellant/ Cross-Respondent, v. STATE OF NEW JERSEY, DEPARTMENT OF THE TREASURY, Defendant-Respondent/ Cross-Appellant.
DOCKET NO. A-4816-14T2
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
August 16, 2017
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION; APPROVED FOR PUBLICATION August 16, 2017 APPELLATE DIVISION
Before Judges Messano, Espinosa and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2106-10.
Timothy J. McInnis (McInnis Law) of the New York bar, admitted pro hac vice, argued the cause for appellant/cross-respondent (Law Office of Jerome A. Ballarotto, and Mr. McInnis, attorneys; Mr. Ballarotto and Mr. McInnis, on the brief).
Peter D. Wint, Assistant Attorney General, argued the cause for respondent/cross-appellant (Christopher S. Porrino, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Mr. Wint, on the briefs).
ESPINOSA, J.A.D.
This case presents us with questions of first impression regarding the interpretation of provisions of the Mistaken Imprisonment Act (Act),
Plaintiff was charged in a single indictment and convicted of two counts of purposeful murder, felony murder, conspiracy to possess cocaine with intent to distribute and related offenses. His convictions for murder and felony murder were set aside after his petition for habeas corpus was granted. His drug conspiracy conviction remained undisturbed. Plaintiff was released from prison and commenced this action against defendant, State of New Jersey, Department of the Treasury (State), under the Act, seeking more than $6,000,000 in damages and $1 million in attorney fees. Plaintiff‘s appeal from the $433,230 judgment in his favor and the State‘s cross-appeal presеnt us with questions of statutory interpretation, specifically (1) whether plaintiff was ineligible under
To recover under the Act, a claimant must establish the following by clеar and convincing evidence:
a. That he was convicted of a crime and subsequently sentenced to a term of imprisonment, served all or any part of his sentence; and
b. He did not commit the crime for which he was convicted; and
c. He did not commit or suborn perjury, fabricate evidence, or by his own conduct cause or bring about his conviction. Neither a confession or admission later found to be false shall constitute committing or suborning perjury, fabricating evidence, or causing or bringing about his conviction under this subsection; and
d. He did not plead guilty to the crime for which he was convicted.
[
N.J.S.A. 52:4C-3 .]
In November 1988, a jury convicted plaintiff of conspiracy to possess cocaine with intent to distribute, two counts of first-degree murder, and one cоunt of felony murder. The trial judge entered a judgment of acquittal, notwithstanding the verdict, in favor of plaintiff on the murder and felony murder counts. Following appeal, we reinstated the murder convictions. State v. Kamienski, 254 N.J. Super. 75 (App. Div.), certif. denied, 130 N.J. 18 (1992). Plaintiff was resentenced and received two life sentences, with thirty years parole ineligibility, and a consecutive flat twelve-year term on the drug conspiracy conviction.
Plaintiff filed a habeas corpus petition, challenging only his murder convictions. The United States District Court denied his petition; the Court of Appeals for the Third Circuit reversed and ordered his petition be granted, stating, “no reasonable juror could conclude that the evidence admitted against [plaintiff] at his trial established that he was guilty of murder or felony murder beyond a reasonаble doubt.” Kamienski v. Hendricks, 332 Fed. Appx. 740, 740-41 (3rd Cir. 2009), cert. denied, 558 U.S. 1147, 130 S. Ct. 1168, 175 L. Ed. 2d 972 (2010). Plaintiff was released from prison in June 2009, after serving more than twenty years.
Plaintiff filed a verified complaint for compensation under
The State moved to dismiss the complaint, arguing plaintiff‘s drug conspiracy conviction rendered him ineligible for recovery pursuant to
Plaintiff moved for summary judgment, contending he was entitled to compensation under the Act as a matter of law. Paragraph 4 of the Statement of Material Facts submitted pursuant to
The trial court granted plaintiff‘s motion for summary judgment and awarded him $343,000. Plaintiff‘s request for reasonable attorney fees, initially denied without prejudice, was later granted after a certification of services was submitted, resulting in an award of $90,230.
II.
In his appeal, plaintiff argues the trial court erred in interpreting how damages are to be calculated and the scope of reasonable attorney fees under the Act,
The interpretation of a statute is an issue of law, which we review de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012). Our “fundamental objective . . . is to identify and promote the Legislature‘s intent.” Parsons ex rel. Parsons v. Mullica Twp. Bd. of Educ., 226 N.J. 297, 307 (2016). We look first to the “plain language chosen by the Legislature.” State v. Gandhi, 201 N.J. 161, 176 (2010). “If the statutory language is clear and unambiguous, and susceptible to only one interpretation, courts should apply the statute as written without resort to extrinsic interpretive aids.” In re Passaic Cty. Utils. Auth., 164 N.J. 270, 299 (2000).
When, as here, statutory provisions are susceptible to more than one interpretation, we look to extrinsic evidence to inform our analysis, “including legislative history and committee reports.” Parsons, supra, 226 N.J. at 308 (quoting State v. Marquez, 202 N.J. 485, 500 (2010)); Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012). Extrinsic evidence is also properly considered “if a literal reading of the statute would yield an absurd result, particularly one at odds with the overall statutory scheme.” Ibid.; see also DiProspero v. Penn, 183 N.J. 477, 493 (2005); e.g., Perez v. Zagami, LLC, 218 N.J. 202, 214-16 (2014).
We are mindful that the Act is both remedial legislation and, in part, a waiver of sovereign immunity. Mills v. N.J. Dep‘t of the Treas., 435 N.J. Super. 69, 77 (App. Div.), certif. denied, 218 N.J. 273 (2014). These dual attributes bring competing standards into play for how the statute should be construed, liberally or strictly.
Other jurisdictions have not adopted a uniform approach in reviewing their own wrongful incarceration statutes. Many courts have expressed the view that their statutes should be construed liberally to effect their remedial purpose. See, e.g., State v. Hill, 125 So. 3d 1200, 1203 (La. Ct. App.) (interpreting
Federal courts and courts from other jurisdictions have held their wrongful incarceration statutes should be strictly construed in favor of the State and against any waiver of sovereign immunity. See, e.g., Sykes v. United States, 105 Fed. Cl. 231, 233 (Fed. Cl. 2012) (observing the federal unjust conviction and imprisonment statutes,
In interpreting the Act, we strive to discern the balance the Legislature intended to strike between the liberal construction
III.
We first consider the State‘s argument that plaintiff is not eligible to recover under the Act. The State moved to dismiss plaintiff‘s complaint on the ground that he was ineligible to pursue his claim pursuant to
A person serving a term of imprisonment for a crime other than a crime of which the person was mistakenly convicted shall not be eligible to file a claim for damages pursuant to the provisions of this act.
The Legislature finds and declares that innocent persons who have been convicted of crimes and subsequently imprisoned have been frustrated in seeking legal redress and that such persons should have an available avenue of redress to seek compensation for damages. The Legislature intends by enactment of the provisions of this act that those innocent persons who can demonstrate by clear and convincing evidence that they were mistakenly convicted and imprisoned be able to recover damages against the State.
[
N.J.S.A. 52:4C-1 (emphasis added).]
The State contends a legislative intent to limit eligibility to “truly faultless persons” is rеflected in the other subsection of the noneligibility provision.
“[W]hen construing a statute, we consider not only the provision in question, but the entire legislative scheme.” Gonzalez v. Bd. of Educ. of Elizabeth Sch. Dist., 325 N.J. Super. 244, 253 (App. Div. 1999), certif. denied, 163 N.J. 77 (2000).
[A] person is not eligible to file a claim for damages under the act if he either: (1) is serving a term of imprisonment for a crime other than the crime of which he was mistakenly convicted; or (2) served a sentence for another crime concurrently with the sentence for the crime of which he was mistakenly convicted.
[S. Judiciary Comm., Statement to S. 1036 (Sept. 19, 1996) (emphasis added).]
Neither here nor in any other provision does the Act limit eligibility to “truly faultless persons” whose only conviction is the one of which they are innocent. A claimant must file suit under the Act “within two years after his release from imprisonment, or after the grant of a pardon to him.”
The Act is silent regarding the specific circumstances here, where a claimant was charged in a single indictment with multiple
A variety of approaches have been adopted by other states in setting the threshold for eligibility. New York requires a claimant to have all charges in the “accusatory instrument” be reversed and dismissed on specified grounds.
Other states have required the claimant to provide proof of innocence of “any other felony arising out of or reasonably connected to the facts supporting the indictment or complaint, or any lesser included felony,”
Clearly, if our statute limited eligibility to persons who were exonerated on all charges in the indictment, as New York, Vermont and Washington do, plaintiff would not be eligible to recover under the Act. It is less certain whether his eligibility would be affected by the standards employed in the other statutes we have cited. Pursuant to the plain language of
IV.
To recover under the Act, plaintiff must “establish . . . by clear and convincing evidence . . . [h]e did not commit the crime for which he was convicted.”
The trial judge found that
On appeal, the State argues the Third Circuit‘s conclusion that the evidence was insufficient to sustain plaintiff‘s murder convictions did not equate with a determination there was clear and convincing evidence that plaintiff did not commit the crimes charged, as required by
In the first instance, the decision by the Court of Appeаls did not satisfy plaintiff‘s burden under
The Legislature‘s stated “intent” is to provide redress for “those innocent persons who can demonstrate by clear and convincing evidence that they were mistakenly convicted and imprisoned.”
The burden of proof the Legislature elected for this cause of action is clear and convincing evidence, the “intermediate standard” between a preponderance of the evidence and proof beyond a reasonable doubt. 2 McCormick on Evidence § 340 (Brown ed., 7th ed. 2013). “[A]dopting a ‘standard of proof is more than an empty semantic exercise.‘” Addington v. Texas, 441 U.S. 418, 425 (1979) (citation omitted). “The function of a standard of proof . . . is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.‘” Id. at 423-24 (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)).
Like plaintiffs in other actions where such proof is required,6 plaintiff was required to satisfy each of the elements
of his cause of action by presenting evidence that met the standard defined in our Model Jury Charge:
Clear and convincing evidence is evidence that produces in your minds a firm belief or conviction that the allegations sought to be proved by the evidence are true. It is evidence so clear, direct, weighty in terms of quality, and convincing as to cause you to come to a clear conviction of the truth of the precise facts in issue.
The clear and convincing standard of proof requires that the result shall not be reached by a mere balancing of doubts or probabilities, but rather by clear evidence which causes you to be convinced that the allegations sought to be proved are true.
[Model Jury Chаrge (Civil), 1.19, “Burden of Proof - Clear and Convincing Evidence” (2011).]
Plaintiff‘s only support for his claim that he did not commit the crimes in question is the opinion by the Court of Appeals that
Even when habeas relief is granted because the State failed to meet its much higher burden to prove guilt beyond a reasonable doubt, the order does not prove the petitioner is innocent7 or restore the petitioner to a presumption of innocence that is transferable to the civil action.8 Unless the habeas court makes
a finding that a claimant was actually innocent, its findings have limited probative value.9
A review of the Court of Appeals’ decision reveals it falls short оf providing clear and convincing evidence that plaintiff did not commit the murders. The State‘s theory regarding the murders was that plaintiff was one of two accomplices to the actual statute requires both legal innocence and actual innocence, which means “a defendant did not commit the crime for which he or she is charged.” Id. at 653. The court observed that the presumption of innocence pertains only to legal, not actual, innocence, and has no bearing on the requirement that the plaintiff prove actual innocence. Ibid.
Although the Court of Appeals commented on the lack of evidence to prove essential elements of the murder charges as well as certain concessions made by the prosecutor during the trial, it is clear the court‘s conclusion that a writ of habeas corpus must be issued was based on reasoning that the evidence failed to prove plaintiff‘s guilt beyond a reasonable doubt and did not include any declaration that he was factually innocent. In short, it can be characterized as a finding of legal innocence but not actual innocence. This was an insufficient basis upon which to award summary judgment to plaintiff.
For guidance in the event that plaintiff proves the elements of his claim by clear and convincing evidence on remand, we address plaintiff‘s argument regarding the calculation of damages. The damages provision of the Act applicable to plaintiff‘s claim provided:
Damages awarded under this act shall not exceed twice the amount of the claimant‘s income in the year prior to his incarceration or $20,000.00 for each year of incarceration, whichever is greater.
[L. 1997, c. 227, § 5(a).]
To arrive at the damages awarded plaintiff, the trial court determined that plaintiff served approximately three years of his twelve-year drug conspiracy sentence and multiplied $20,000 by 17.2 years.10 Plaintiff does not dispute the court‘s calculation of “net” damages by reducing 20.6 years to 17.2 years. He argues the trial court erred in multiplying the number of years of incarceration by $20,000 rather than by the amount he earned in the year prior to his incarceration. We disagree.
Plaintiff concedes the language of the damages provision in the 1997 version оf the Act is ambiguous, and argues it should be
Damages awarded under this act shall not exceed twice the amount of the claimant‘s income in the year prior to his incarceration for each year of incarceration or $20,000.00 for each year of incarceration, whichever is greater.
To support this interpretation, plaintiff presented an expert opinion from an English professor, who offered an interpretation of the statute based upon grammatical principles. “[P]unctuation, though important, is not decisive of legislative intent.” Perez, supra, 218 N.J. at 215. Moreover, this opinion was entitled to no deference either in the trial court or on appeal. The purpose of expert testimony is to assist the trier of fact rеgarding the significance of evidence.
Turning to principles of statutory construction, “the doctrine of the last antecedent . . . holds that, unless a contrary intention otherwise appears, a qualifying phrase within a statute refers to the last antecedent phrase.”11 State v. Gelman, 195 N.J. 475, 484 (2008); see also Singer & Singer, supra, § 47.33 at 494. (“Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent.“). Because the Legislature did not separate the qualifying phrase “for each year of incarceration” from $20,000 with a comma, the doctrine of last antecedent provides support for the interpretation that “for each year of incarceration” applies only to $20,000. Cf. Gudgeon v. Cty. of Ocean, 135 N.J. Super. 13, 17 (App. Div. 1975) (noting that where a comma sets off a modifying phrase from previous phrases, the modifying phrase applies to all previous phrases).
But, more persuasive is the Legislature‘s own understanding of the damages provision, as clearly set forth in the legislative history for the 2013 amendments. Although the amendment itself does not govern plaintiff‘s claim, the Legislature‘s statements
In 2013, the Legislature adopted several amendments to the Act, including amendments to
Damages awarded under this act shall not exceed the greater of:
(a) twice the amount of the claimant‘s income in the year prior to his incarceration; or
(b) $50,000 for each year of incarceration.
[
N.J.S.A. 52:4C-5(a)(1) .]
The Sеnate Judiciary Committee Statement clarifies that this amendment did not change the way in which the ceiling for damages is determined:
As to damages for eligible claimants, under current law, damages cannot exceed twice the amount of the claimant‘s income in the year prior to the claimant‘s incarceration or $20,000 for each year of incarceration, whichever is greater. The bill does not alter this measurement between the greater of income in the year prior to the claimant‘s incarceration or the total per year amount for each year of incarceration, but this latter amount would be calculated at $50,000 per year instead of the current $20,000 per year.
[S. Judiciary Comm., Statement to S. 1219 (June 21, 2012) (emphasis added).]
The legislative history thus presents compelling support for the conclusion that the Legislature never intended an award of damages to be based on the calculation urged by plaintiff. We conclude that, even as originally drafted, the damages provision defined two caps to a claimant‘s recovery. Under one scenario, he would rеceive twice the amount he earned in the year prior to his incarceration. The other scenario allowed recovery of an amount calculated by multiplying the years of incarceration by $20,000. The successful claimant is entitled to the greater amount arrived at by either calculation. Therefore, in the event plaintiff is awarded damages following the remand, his recovery will be calculated accordingly.
VI.
Finally, we turn to plaintiff‘s challenge to the calculation of the attorney fee award, an issue that need only be addressed
New Jersey follows the “American Rule,” which requires litigants to bear their own litigation costs, regardless of who prevails. Innes v. Marzano-Lesnevich, 224 N.J. 584, 592 (2016). Nonetheless, “a prevailing party can recover those fees if they are expressly provided for by statute, court rule, or contract.” Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 440 (2001). The provision of the Act applicable to plaintiff‘s claim13 stated:
In addition to the damages awarded pursuant to subsection a., the claimant shall be entitled to receive reasonable attorney fees.
[L. 1997, c. 227, § 5(b).]
In the first instance, the statute is not silent on this issue. Any attorney fee award is made “[i]n addition to the damages awarded pursuant to subsection a.” The argument that such fees must include fees for services related to the criminal prosecution conflates the concepts of damages and an award for “reasonable attorney fees.”
We are satisfied that if the Legislature intended to compensate a successful complainant for fees related to the underlying criminal prosecution, it would have stated so as a component of recoverable damages in subsection (a) or stated explicitly that “reasonable attorney fees” had a different meaning
“The Legislature is presumed to be familiar with its own enactments, with judicial declarations relating to them, and to have passed or preserved cognate laws with the intention that they be construed to serve a useful and consistent purpose.” In re Petition for Referendum on City of Trenton Ordinance 09-02, 201 N.J. 349, 359 (2010) (citation omitted). In light of this principle, we note thаt, in 2013, the Legislature amended the Public Defender Act,
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Notes
Some statutes require a specific judicial finding or order as a pre-requisite to pursuing a claim. See, e.g.,
Another amendment reflected a legislative intent to limit damages. The original language in the statement of legislative findings stated it was the Legislature‘s intent to provide “an available avenue of redress over and above the existing tort remedies to seek compensation for damages.” L. 1997, c. 227, § 1 (emphasis added). In 2013,
Subsection (b) was amended in 2013 to state:
In addition to the damages awarded pursuant to subsection a., the claimant shall be entitled to receive reasonable attorney fees and costs related to the litigation. A claimant may also be awarded other non-monetary relief as sought in the complaint including, but not limited to vocational training, tuition assistance, counseling, housing assistance, and health insurance coverage as appropriate.
[L. 2013, c. 171, § 4 (codified at