State v. Womack

• Decision Date: 25 July 1996
• Citation: 145 N.J. 576,679 A.2d 606
• Parties: STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Eric WOMACK, Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Supreme Court

Page 576

145 N.J. 576

679 A.2d 606

STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Eric WOMACK, Defendant-Appellant and Cross-Respondent.

Supreme Court of New Jersey.

Argued March 25, 1996.

Decided July 25, 1996.

Steven H. Gifis, for appellant and cross-respondent (Mr. Gifis, attorney; Mr. Gifis and Susan J. Abraham, Hoboken, on the brief).

Jane Deaterly Plaisted, Assistant Prosecutor, for respondent and cross-appellant (Clifford J. Minor, Essex County Prosecutor, attorney).

Bennett A. Barlyn, Deputy Attorney General, for amicus curiae, Attorney General of New Jersey (Deborah T. Poritz, Attorney General, attorney).

The opinion of the Court was delivered by

HANDLER, J.

The Enforcement Bureau of the Division of Consumer Affairs, acting on a complaint it had received, sent an agent to defendant's business to investigate whether defendant was holding himself out as a medical doctor and practicing medicine without a license. Based on the evidence obtained by the investigator, the Attorney General filed a civil action seeking to enjoin defendant's activities and to impose a civil sanction. The Division of Consumer Affairs also filed a criminal complaint.

This appeal presents two issues: (1) whether a civil fine that specifically imposes a "penalty" and also assesses an amount for reimbursing the government for its costs constitutes punishment under the Double Jeopardy Clauses of the New Jersey and the United States Constitutions; and (2) whether the failure of the prosecutor to disclose to the grand jury exculpatory information warrants dismissal of all or part of the criminal indictment.

I

On May 18, 1993, based on a complaint, an undercover investigator employed by the Enforcement Bureau of the Division of Consumer Affairs, visited the "Christian Health Institute and Wellness Center" to undertake an investigation of defendant Eric Womack. The agent professed to be a patient. After signing a disclaimer and an authorization form, and submitting urine, hair, and saliva samples, the agent was led into an examination room where he met defendant. The investigator informed defendant, who introduced himself as "an N.D.," a Naturopathic Doctor, that he had rectal bleeding.

Defendant examined and diagnosed the investigator. He poked the agent in the stomach with a pencil and simultaneously pushed down on the agent's outstretched arms. He shined a light in the investigator's eyes and electrically shocked his stomach. Using an instrument that looked and operated exactly like a ball point pen, defendant stung the agent's hand. From those tests, defendant concluded that the investigator had a clogged colon, weak kidneys, and aluminum in his body. Defendant warned the investigator that those conditions could lead to rectal cancer, and he advised him to schedule another visit. Defendant charged the investigator $300 for this visit.

During the follow-up visit, defendant advised the investigator that he needed to watch his diet if he hoped to unclog his colon and stop the rectal bleeding. Specifically, defendant recommended that the agent stop ingesting toxins and take certain vitamins and dietary supplements. The investigator purchased three of the $265 worth of recommended dietary products: "Temple Inner Cleanser," "Swedish Elixir," and "Agape Formula # 1."

Based on the investigator's report, the Attorney General's office filed a civil complaint in the Superior Court, Chancery Division, charging Eric Womack with the unlicensed practice of medicine in violation of the Medical Practices Act, N.J.S.A. 45:9-18 and -22. Two days after the Attorney General filed the civil complaint, the Division of Consumer Affairs filed a criminal complaint also charging defendant with the unauthorized practice of medicine based on the same conduct.

The Attorney General sought and obtained in the civil action an injunction against defendant, pursuant to N.J.S.A. 45:1-25, whereby defendant was permitted to continue operating the Wellness Center so long as he abided by certain restrictions and not practice medicine. On November 16, 1993, the civil action was settled through a consent order entered by the Superior Court, Chancery Division, and pursuant to which defendant agreed to abide by the conditions of the permanent injunction. Furthermore, defendant agreed to "pay to the State of New Jersey the sum of $5,000.00 in civil penalties and $3,554.07 in investigative costs, plus interest...."

One week after the civil action was settled, the Essex County prosecutor took defendant's criminal case to a grand jury. The Enforcement Bureau investigator was the only witness called to testify, but his testimony was sufficient. On December 2, 1993, the grand jury returned an indictment charging defendant with one count of practicing medicine without a license in the third degree. N.J.S.A. 2C:21-20.

Prior to trial on the criminal indictment, defendant moved to dismiss the indictment. He asserted that the prosecution was violative of the Double Jeopardy Clause and he also alleged that the prosecutor's actions before the grand jury amounted to misconduct because the prosecutor misled the grand jury and failed to disclose certain information helpful to defendant. The Superior Court, Law Division agreed in part and dismissed the criminal indictment against defendant on double jeopardy grounds. The Appellate Division reversed finding no double jeopardy bar to the prosecution, but it dismissed without prejudice part of the indictment because of the State's misconduct in failing to disclose to the grand jury information that directly refuted the investigator's testimony. Defendant appealed and the State cross-appealed from the Appellate Division's ruling. This Court granted the petition, 142 N.J. 515, 665 A.2d 1108 (1995), and the cross-petition, 143 N.J. 330, 670 A.2d 1070 (1996), for certification.

II

The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution protects against three harms: re-prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969). Although the language of the New Jersey Constitution simply provides that "No person shall, after acquittal, be tried for the same offense," N.J. Const. art. I, p 11, this protection is at a minimum co-extensive with that of the United States Constitution. State v. Churchdale Leasing, Inc., 115 N.J. 83, 107-08, 557 A.2d 277 (1989).

The protection against multiple punishments may be implicated by a civil penalty following a criminal penalty if the civil sanction is levied in a separate proceeding, is based on the same conduct, and is punitive in nature. In weighing whether a civil fine is punitive, courts are directed to examine whether the fine can "fairly be characterized as remedial" or whether the fine serves "as a deterrent or retribution." United States v. Halper, 490 U.S. 435, 449, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487, 502 (1989). In making that determination, courts must examine the "purposes actually served by the sanction in question." Id. at 447 n. 7, 109 S.Ct. at 1901 n. 7, 104 L.Ed.2d at 501 n. 7. They must also consider its impact. Doe v. Poritz, 142 N.J. 1, 46, 662 A.2d 367 (1995).

The purposes served by the civil sanction can be determined directly or indirectly. Sometimes, the purposes of the civil sanction can be determined indirectly by simply examining the fine levied. A fine that is overwhelmingly disproportionate to the damages the defendant has caused and the costs the State has incurred in prosecuting the action can be understood only as serving the punitive goals of deterrence and retribution. Halper, supra, 490 U.S. at 449, 109 S.Ct. at 1902, 104 L.Ed.2d at 502; Merin v. Maglaki, 126 N.J. 430, 440-46, 599 A.2d 1256 (1992). In other circumstances, however, the purposes of the civil sanction may be understood by the language and terms of the sanction itself and the expressed or revealed intentions of the parties in imposing the fine. A civil sanction that is imposed for punitive purposes, understood by the parties as being punitive, and is clear on its face that it is punitive, will be considered to be punitive even when the fine is not grossly disproportionate to the damages caused. See Poritz, supra, 142 N.J. at 54, 662 A.2d 367 ("[T]he purpose and the intent of the civil sanction is the touchstone that determines the sanction's characterization as either remedial or punitive, rather than simply its impact."); cf. Halper, supra, 490 U.S. at 448 n. 8, 109 S.Ct. at 1902 n. 8, 104 L.Ed.2d at 501 n. 8 ("As the name indicates, punitive damages, available in civil cases, serve punitive goals."); Poritz, supra, 142 N.J. at 46, 662 A.2d 367 (finding that a law is held to impose punishment if either the legislature intended it to impose punishment or the impact of the legislative sanction is punitive).

A plain reading of the civil consent decree indicates that the civil fine may have been intended to be punitive. The civil fine assessed against Womack differentiated between penalties and costs. It included an amount of "civil penalties" and an amount of "investigative costs." A rational understanding of the phrase "civil penalties," when contrasted with the term "investigative costs," is that the sanction is an amount levied as a punitive fine separate from that necessary to reimburse the State.

Furthermore, the record indicates that the State understood, and therefore intended, the fine to be punitive. Although the prosecutor's concession at oral argument below that the fine was punitive is not dispositive of the issue, the concession indicates that, at the very least, the prosecutor understood the sanction to have a punitive purpose.

On the other hand, the amount of the fine indicates that the purpose may have been merely remedial. Its impact,...