State v. Saavedra

• Citation: 222 N.J. 39,117 A.3d 1169
• Decision Date: 23 June 2015
• Docket Number: A-68 September Term 2013, 073793
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. Ivonne SAAVEDRA, Defendant–Appellant.
• Court: United States State Supreme Court (New Jersey)

222 N.J. 39

117 A.3d 1169

STATE of New Jersey, Plaintiff–Respondent

v.Ivonne SAAVEDRA, Defendant–Appellant.

A-68 September Term 2013, 073793

Supreme Court of New Jersey.

Argued Nov. 10, 2014.

Decided June 23, 2015.

Mario M. Blanch argued the cause for appellant (Mr. Blanch, attorney; Mr. Blanch and Valerie Steiner, on the brief).

Stephanie Davis Elson, Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney).

Neil M. Mullin argued the cause for amicus curiae National Employment Lawyers Association/New Jersey (Smith Mullin, attorneys; Mr. Mullin and Nancy Erika Smith, Montclair, on the brief).

Brian J. Uzdavinis, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (John J. Hoffman, Acting Attorney General).

Cynthia J. Jahn, General Counsel, argued the cause for amicus curiae New Jersey School Boards Association (Ms. Jahn and Donna M. Kaye, Trenton, on the brief).

Mitchell L. Pascual argued the cause for amicus curiae North Bergen Board of Education (Chasan Leyner & Lamparello, attorneys; Mr. Pascual, Michael D. Witt, Secaucus, and Reka Bala, on the brief).

Opinion

Justice PATTERSON delivered the opinion of the Court.

In this appeal, we review the trial court's denial of defendant Ivonne Saavedra's motion to dismiss her indictment for official misconduct and theft by unlawful taking of public documents. We also consider defendant's constitutional and public policy challenges to the official misconduct and theft statutes as they apply to her case.

Defendant, an employee of the North Bergen Board of Education (Board), filed an action asserting statutory and common law employment discrimination claims against the Board. In the course of discovery in that action, defendant's counsel produced several hundred documents that allegedly had been removed or copied from the Board's files, and were in defendant's possession. According to the Board, the documents taken from its files included original and photocopied versions of highly confidential student educational and medical records that were protected by federal and state privacy laws. The Board reported the alleged theft of its documents to the county prosecutor.

The State presented the matter to a grand jury. A Board attorney testified before the grand jury about defendant's position with the Board, the Board's discovery through the civil litigation that defendant had possession of original and copied documents from its files, and the privacy implications of defendant's alleged appropriation of the documents. The grand jury indicted defendant for official misconduct and theft by unlawful taking.

Defendant moved to dismiss the indictment. She argued that the State failed to present evidence sufficient to support the indictment and withheld from the grand jury exculpatory evidence about defendant's motive in taking the documents. She also contended that because the documents were taken for use in her employment discrimination litigation, this Court's decision in Quinlan v. Curtiss–Wright Corp., 204 N.J. 239, 8 A. 3d 209 (2010), immunized her conduct as a matter of public policy and prohibited the State from prosecuting her. The trial court denied the motion, and the Appellate Division affirmed the trial court's determination.

We affirm the judgment of the Appellate Division. We hold that the trial court properly denied defendant's motion to dismiss her indictment. We conclude that the State presented to the grand jury a prima facie showing with respect to the elements of each offense charged in the indictment and that the State did not withhold from the grand jury exculpatory information or a charge regarding a defense that it was compelled by law to present. We further hold that defendant's indictment does not violate due process standards or New Jersey public policy by conflicting with this Court's decision in Quinlan. The Quinlan case, arising from a plaintiff employee's claim that her employment was terminated after she took documents belonging to her employer and used them in her employment discrimination litigation, concerned the legal standard that governs certain retaliation claims under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5–1 to –42. Quinlan does not govern the application of the criminal laws at issue in this appeal.

Our decision does not preclude defendant from asserting, as an affirmative defense before the petit jury at trial, that she has a claim of right or other justification based on New Jersey's policy against employment discrimination, because she removed the documents from her employer's premises in order to use them to prosecute her civil claim. The trial court will be in a position to evaluate any such assertion in the setting of a full record regarding defendant's conduct, the content of the documents, the Board's policies regarding the records, and the impact of federal and state privacy laws.

I.

In 1998, defendant was employed by the Board as a clerk. For the first ten years of her employment, she was assigned to the Board's payroll department. In 2008, defendant was transferred to Lincoln School, where she was assigned to support the child study team, a group composed of professionals evaluating the individual needs of children with learning disabilities. At some point during defendant's employment, her son, Jeffrey Saavedra, became a part-time employee of the Board.

The Board represents that its handling of student records to which defendant had access is governed by the federal Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C.A. § 1232g, as well as the state pupil records statute, N.J.S.A. 18A:36–19, and implementing regulations codified at N.J.A.C. 6A:32–7.1 to –7.8. The Board states that FERPA and its New Jersey counterpart impose strict confidentiality requirements barring disclosure of a broad range of student records, including records of services provided to students with disabilities. Tracking the language of N.J.A.C. 6A:32–7.5(e)(7), the Board promulgated a privacy policy governing defendant and other support staff:

Secretarial and clerical personnel under the direct supervision of certified school personnel shall be permitted access to those portions of [a pupil's record] to the extent that is necessary for the entry and recording of data and the conducting of routine clerical tasks. Access shall be limited only to those pupil files which such staff are directed to enter or record information and shall cease when the specific assigned task is completed.

Further, the Board's Code of Ethics requires staff to “[k]eep the trust under which confidential information may be given,” and to “[p]rotect and care for district property.” The State maintains that by virtue of the Board's internal policies, guidelines and regulations, Board employees including defendant were made aware that student records were highly confidential and that the disclosure of such records was strictly prohibited.

On November 25, 2009, defendant and her son filed an action in the Law Division against the Board and three individual defendants. In their complaint, defendant and her son alleged that during the course of her employment, she had complained about the Board's alleged “violations of the law and public policy,” including “[p]ay irregularities,” improper administration of employee vacation and family leave, violations of unspecified “child study regulations” and “unsafe conditions” at a Board facility.¹ The complaint included allegations that in retaliation for her complaints, and because of her race, ethnicity, national origin and gender, the Board and its employees denied benefits to defendant and her son, compelled them to work in an unsafe and hostile environment, and terminated the employment of defendant's son and his girlfriend. They premised their claims on the LAD, the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19–1 to –8, the federal Civil Rights Act, 42 U.S.C.A. § 1983, the New Jersey Civil Rights Act, N.J.S.A. 10:6–1 to –2, the federal Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201 –19, the New Jersey State Wage and Hour Law, N.J.S.A. 34:11–56ato –56a38, the federal Family and Medical Leave Act, 29 U.S.C.A. §§ 2612 –54, and the New Jersey Family Leave Act, N.J.S.A. 34:11B–1 to –16. They also asserted common law theories based on violations of public policy, conspiracy to violate civil rights, and intentional infliction of emotional distress. Defendant and her son sought compensatory and punitive damages, injunctive relief and attorneys' fees against the Board and the individuals.

It is undisputed that, without the Board's permission, defendant removed documents from the Board's office. The State contends that the documents consisted of three hundred and sixty-seven confidential student records. It alleges that in the case of sixty-nine of the documents, defendant did not photocopy documents and leave the files intact, but instead removed the original file copies from the premises. The record does not disclose the time period during which defendant collected the records.

By letter dated June 22, 2011, approximately a year and a half after defendant's employment discrimination complaint was filed, defendant's counsel in that matter provided copies of the confidential documents to the Board's counsel “in response to [the Board's] requests for all documents in [defendant's] possession which may include confidential and/or privileged information.”² Counsel for the Board in the employment discrimination matter contacted Jack Gillman (Gillman), the attorney for the Special Services Division of the Board, and alerted him to defendant's production of the Board's documents in her civil case. Gillman then contacted the county prosecutor's office and notified it of the Board's allegation that defendant had taken confidential documents belonging to the Board for use in her civil case. The county prosecutor determined to...