State v. Storm

• Citation: 141 N.J. 245,661 A.2d 790
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Richard STORM, Defendant-Respondent.
• Decision Date: 17 July 1995
• Court: United States State Supreme Court (New Jersey)

Page 245

141 N.J. 245

661 A.2d 790

STATE of New Jersey, Plaintiff-Appellant, v. Richard STORM, Defendant-Respondent.

Supreme Court of New Jersey.

Argued May 1, 1995.

Decided July 17, 1995.

Simon Louis Rosenbach, Asst. Prosecutor, argued the cause, for appellant (Robert W. Gluck, Middlesex County Prosecutor, attorney).

Richard S. Lehrich, Cranford, argued the cause, for respondent.

Anne C. Paskow, Asst. Atty. Gen., argued the cause, for amicus curiae Atty. Gen. (Deborah T. Poritz, Atty. Gen., attorney).

James A. Carey, Manasquah, argued the cause, for amicus curiae The Monmouth County Mun. Prosecutors Ass'n (Carey and Graham, attorneys).

Carl J. Herman, Livingston, argued the cause, for amicus curiae Ass'n of Criminal Defense Lawyers.

Edward G. Sponzilli, Hackensack, submitted a brief on behalf of amicus curiae Rutgers, The State University of New Jersey (Dunn, Pashman, Sponzilli & Finnerty, attorneys).

The opinion of the Court was delivered by POLLOCK, J.

At issue is whether Rule 7:4-4(b) permits private counsel for a complainant to prosecute a complaint in the municipal court. The Woodbridge Municipal Court permitted Robert Hedesh, Esq., private counsel for complainant, Pamela Young, to prosecute complaints against defendant, Richard Storm, for stalking, contrary to N.J.S.A. 2C:12-10b, and harassment, contrary to N.J.S.A. 2C:33-4. After the Law Division denied Storm's motion for leave to appeal, the Appellate Division granted leave and reversed. It held that Hedesh had a conflict of interest that impinged on Storm's right to a fair trial. 278 N.J.Super. 287, 650 A.2d 1031 (1994).

We granted the Middlesex County Prosecutor's motion for leave to appeal, 139 N.J. 437, 655 A.2d 440 (1995), and affirm. We hold that whenever an attorney for a private party applies to prosecute a complaint in the municipal court, the court should determine whether to permit the attorney to proceed. We hold further that Hedesh should not be allowed to prosecute Storm.

I

This case arises from the volatile relationship between Young and Storm. The record, although sparse, reveals the following facts. Young filed three complaints in the Woodbridge Municipal Court against Storm: two for stalking and one for harassment. After downgrading the stalking charges to harassment and disorderly-persons offenses, the Middlesex County Prosecutor remanded the charges to the municipal court. The maximum sentence for each offense is six months, N.J.S.A. 2C:43-8, and a fine of $1,000, N.J.S.A. 2C:43-3.

Since the occurrence of the events that gave rise to this appeal, the hostility between Storm and Young has spread to the Law Division. At the time of oral argument in the Appellate Division, Storm had been indicted for stalking Young. 278 N.J.Super. at 290, 650 A.2d 1031. Since then, the Law Division has dismissed the indictment on the motion of the Middlesex County Prosecutor. More recently, a Morris County Grand Jury has indicted Young for attempting to murder and conspiring to murder Storm.

Like virtually all other municipalities, Woodbridge employs a prosecutor. The Woodbridge prosecutor does not prosecute private complaints. Here, for example, the prosecutor requested Hedesh to prosecute the complaints against Storm.

While the Municipal Court charges were pending against him, Storm filed a complaint against Young in the Special Civil Part of the Superior Court. The complaint alleged that Young intentionally had issued to Storm a bad check for vacation expenses. Hedesh represented Young in defending the complaint.

In the municipal court, Storm's attorney, Richard Lehrich, moved to disqualify Hedesh as prosecutor. Lehrich argued that Hedesh's representation of Young in the civil action prevented him from acting as an impartial prosecutor. The municipal court denied the motion and ordered that Hedesh could prosecute the municipal court complaints.

The Appellate Division reversed and directed the municipal court to order the municipal prosecutor to prosecute the complaints. The court held:

R. 7:4-4(b) is to be utilized to permit private counsel to prosecute only as a last resort and only in those circumstances where a full disclosure of possible conflicts does not disclose so direct and serious a conflict as to violate due process or otherwise preclude the defendant from receiving a fair trial.

[278 N.J.Super. at 294-95, 650 A.2d 1031.]

II

Rule 7:4-4(b) states:

Appearance of Prosecution. Whenever in his or her judgment the interests of justice so require, or upon the request of the court, the Attorney General, county prosecutor, municipal court prosecutor, or municipal attorney, as the case may be, may appear in any court on behalf of the State, or of the municipality, and conduct the prosecution of any action, but if the Attorney General, county or municipal court prosecutor or municipal attorney does not appear, any attorney may appear on behalf of any complaining witness and prosecute the action for and on behalf of the State or the municipality.

[Emphasis added.]

The rule perpetuates the practice of private prosecution, which traces its origins to ancient England. Private prosecution derives from the practice of trial by combat, which evolved into the prosecution of criminal charges by private parties. Sir James Stephen, A History of the Criminal Law of England 245 (1883). By the early nineteenth century, Britain's system of private prosecution was in retreat. See Andrew Sidman, Comment, The Outmoded Concept of Private Prosecution, 25 Am.U.L.Rev. 754, 760 (1976); Judson Hand, Note, Primitive Justice: Private Prosecutions in Municipal Court Under New Jersey Rule 7:4-4(b), 44 Rutgers L.Rev. 205, 212 (1991). In 1879, Parliament created the Office of Public Prosecutions, which prosecuted serious crimes. Twenty-nine years later, Parliament enacted the Prosecution of Offenses Act, which allows the Director of Public Prosecutions to supersede a private prosecution. Hand, supra, 44 Rutgers L.Rev. at 212. Although uncommon in England today, private prosecution survives. Id.

English justice became the dominant influence in the development of New Jersey's criminal justice system. See Newman & Doty, Bench and Bar, in I The Story of New Jersey 363 (William Starr Meyers ed.1945) (relating history of judicial development in New Jersey). By the eighteenth century, New Jersey had established an extensive system of public prosecution. Even so, in the last century, the former New Jersey Supreme Court described private prosecution as "the settled practice in this State...." Gardner v. State, 55 N.J.L. 17, 33, 26 A. 30 (1892). Notwithstanding the reforms of the judicial and criminal justice systems in the 1947 Constitution, the practice of private prosecution has survived.

Both this Court and the Legislature continue to recognize the role of private prosecutors. In addition to the recognition of private prosecutors in municipal courts contained in Rule 7:4-4(b), Rule 3:23-9(d) of the Rules Governing Criminal Practice defines a prosecuting attorney: "With the consent of the court, the attorney for a complaining witness or other person interested in the prosecution may be permitted to act for the prosecuting attorney."

In addition, N.J.S.A. 19:34-63, relating to election law, provides in part: "Any citizen may employ an attorney to assist the prosecutor of the pleas to perform his duties under this title, and such attorney shall be recognized by the prosecutor of the pleas and the court as associate counsel in the proceedings."

III

Our evaluation of private prosecutions begins with the role of municipal courts. As the late Chief Justice Vanderbilt once wrote:

On them rests the primary responsibility for the maintenance of peace in the various communities of the state, for safety on our streets and highways, and most important of all, for the development of respect for law on the part of our citizenry, on which in the last analysis all of our democratic institutions depend.

[Arthur T. Vanderbilt, The Municipal Court--The Most Important Court in New Jersey, 10 Rutgers L.Rev. 647, 650 (1956).]

Apart from cases involving motor vehicles, municipal courts decide such matters as violations of health or zoning ordinances, disorderly-persons offenses, and various quasi-criminal cases. The volume is high. In 1994, for example, municipal courts disposed of 5.6 million cases. Because of the heavy caseload, municipal prosecutors cannot prosecute every complaint. "The general rule is that the prosecutor's involvement is limited to those complaints signed by police officers." Supreme Court Task Force on the Improvement of Municipal Courts, Report to the 1985 Judicial Conference 112-13 (1985) (hereinafter "Report").

By permitting private citizens, acting either pro se or through private counsel, to appear in municipal court, Rule 7:4-4(b) facilitates access to municipal courts. Although the practice of private prosecution in municipal courts remains useful, the question is whether the benefits of the practice outweigh its burdens.

Over the centuries, perceptions of justice have evolved. Trial by combat has yielded to trial in court. Central to a judicial proceeding is the right to a fair trial before an impartial judge. In criminal or quasi-criminal cases, the need for impartiality extends beyond the judge to the prosecutor.

The challenge is to respect the defendant's right to a fair trial while preserving the contribution of private prosecutors to the disposition of complaints in the municipal courts. See John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors, 47 Ark.L.Rev. 511, 594-601 (1994) (concluding that private prosecution is unethical and violates defendant's constitutional rights); Joan Meier, The Right to a Disinterested Prosecutor of Criminal Contempt, 70 Wash.U.L.Q. 85, 128 (1992) (arguing that states should be free to adopt their own policies on whether disinterested prosecutor of contempt is required);...