Opinion
DOCKET NO. A-1846-13T3
04-21-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. CHRIS W. MEIER, Defendant-Respondent.
Jeffrey L. Weinstein, Assistant Prosecutor, argued the cause for appellant (Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney; Mr. Weinstein, of counsel and on the brief). Thomas J. Chaves argued the cause for appellant.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 13-05-0205.
Jeffrey L. Weinstein, Assistant Prosecutor, argued the cause for appellant (Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney; Mr. Weinstein, of counsel and on the brief).
Thomas J. Chaves argued the cause for appellant. PER CURIAM
By leave granted, the State appeals from an October 16, 2013 order dismissing count two of Indictment No. 13-05-0205, charging defendant Chris W. Meier with violating N.J.S.A. 2C:27- 3(a)(2), by directly or indirectly threatening harm to a public servant "acting in the capacity of a court appointed arbitrator," with the purpose to influence a decision in a judicial or administrative proceeding. We affirm.
I
By way of background, N.J.S.A. 2C:27-3 prohibits efforts to intimidate public servants in an attempt to influence them in the conduct of their public duties:
a. Offenses defined. A person commits an offense if he directly or indirectly:
. . . .
(2) Threatens harm to any public servant with purpose to influence a decision, opinion, recommendation, vote or exercise of discretion in a judicial or administrative proceeding.
[N.J.S.A. 2C:27-3(a)(2).]
The term "public servant" is defined at N.J.S.A. 2C:27-1(g) as "any officer or employee of government, including legislators and judges, and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the term does not include witnesses."
The definition of "official proceeding" includes an arbitration:
"Official proceeding" means a proceeding heard or which may be heard before any legislative, judicial, administrative or
other governmental agency, arbitration proceeding, or official authorized to take evidence under oath, including any arbitrator, referee, hearing examiner, commissioner, notary or other person taking testimony or deposition in connection with any such proceeding;
[N.J.S.A. 2C:27-1(d).]
Defendant does not contest that a court-appointed arbitrator would be deemed a public servant under the statute. For purposes of this opinion, we assume that a court-appointed arbitrator would come within the definition of a public servant, based on the language of N.J.S.A. 2C:27-1(d), which includes an arbitration in the definition of an official proceeding. However, it is equally clear that an arbitrator may serve in a private capacity, by contract with parties who are not involved in court proceedings or who have not obtained the court's imprimatur for their arbitration. See State v. Mason, 355 N.J. Super. 296, 304-05 (App. Div. 2002) (holding that because education may be a private function or a public function, the administrator of a private school was not a public servant under N.J.S.A. 2C:27-1(g)).
II
The appeal arose in this context. Defendant and his wife obtained a final judgment of divorce in December 2010. The judgment incorporated the parties' property settlement agreement. However, after the divorce was finalized, they had a continuing dispute over several financial issues. Through their attorneys, they agreed to submit their disputes to John Thatcher, Esq., for binding arbitration. The parties' attorneys signed a consent order that was evidently intended to be submitted to Judge Rahill, the judge assigned to their matrimonial case. However, there is no dispute on this record that the consent order was never signed by Judge Rahill or by any other judge.
After oral argument of this appeal, the parties sought and were granted our permission to supplement the record with additional documents that shed some further light on the procedural history. On February 28, 2011, defendant's divorce attorney, Stephanie P. Tettemer, Esq., sent a letter to the Warren County Clerk's Office enclosing the consent order by which the parties had agreed to arbitration. However, on March 15, 2011, defendant's wife's attorney, Sieglinde K. Rath, Esq., sent Thatcher a letter, with a copy to her adversary, stating that Judge Rahill had declined to execute the consent order "without having an Agreement to Arbitrate attached which addresses the issues to be arbitrated, procedure, payment for same and appeal process, if any." Rath asked Thatcher to provide the attorneys "the standard form Matrimonial Arbitration Agreement" (Arbitration Agreement) for review and execution.
On March 22, 2011, Thatcher sent a copy of the Arbitration Agreement to both attorneys to review with their clients. Thereafter, it appears that the parties, but not Thatcher, signed the Arbitration Agreement. The copy of the agreement provided to us has the attorneys' signatures but not Thatcher's signature. There is no evidence that either Rath or Tettemer ever submitted the Arbitration Agreement to Judge Rahill.
In his supplemental materials, defendant's appellate counsel submitted a certification attesting that he had made an inquiry of the Clerk's Office at the Warren County Courthouse and was advised that the court's file contained Tettemer's February 28, 2011 letter, but that "there is no Consent Order signed by Judge Rahill or any other Judge in the [court's] file." Hence, not only does the record contain no evidence that Judge Rahill signed an order appointing Thatcher as an arbitrator, but the only available evidence indicates that she affirmatively refused to do so.
Nonetheless, on October 24, 2011, Thatcher wrote to Judge Rahill asking to be relieved as the arbitrator on the case for various reasons, including his receipt of threatening letters from Chris Meier. Thatcher's letter included an unsigned copy of the consent order. His letter was answered by a judge other than Judge Rahill. The second judge wrote to Thatcher on October 28, 2011, with copies to the parties' attorneys, indicating that absent consent of the parties, Thatcher should file a motion seeking relief. Instead of filing a motion, Thatcher continued as arbitrator and eventually conducted the arbitration in 2013.
Contrary to the State's argument on this appeal, nothing in the second judge's letter suggests that he had reviewed the divorce file or that he was confirming that a consent order had been signed. The letter simply, and correctly, observed that if Thatcher wanted relief from the court, he needed to file a motion.
As Thatcher was about to issue a written arbitration award, defendant allegedly sent him a threatening email, followed by two phone calls in which he made statements that Thatcher construed as threats of violence. Alarmed, Thatcher called the Hunterdon County Prosecutor, with whom he had a personal friendship. The Prosecutor arranged for a detective to immediately interview Thatcher. Thereafter, defendant was indicted for terroristic threats (count one) and threatening a public official (count two).
According to Thatcher, during one of the telephone calls, defendant was "shrieking" that he (defendant) was "off" his medication, that he was "snapping," that if he "went down" he was taking Thatcher down with him, and whatever happened would be reported on "CNN."
In support of count two, the State presented testimony from the Hunterdon County prosecutor's detective who had interviewed Thatcher. The detective told the grand jury that Thatcher made a sworn complaint attesting that he was appointed as an arbitrator by a court order, and that defendant had made threats against him. Thus, the prosecutor's office obtained the indictment on the basis of the factual representation that a judge had signed an order appointing Thatcher as an arbitrator. That was also what the indictment charged defendant with: threatening a "court appointed" arbitrator.
Defendant moved to dismiss the indictment contending, among other things, that because Thatcher had never been appointed by court order, he was simply a privately-retained arbitrator and was not a public servant. At the motion hearing, the prosecutor's office conceded that no judge had signed an order appointing Thatcher as an arbitrator in the matrimonial case. In a written opinion, Judge Stephen B. Rubin determined that Thatcher was not a public servant. The judge concluded as follows:
Here, the State contends that Mr. Thatcher was a public servant because he arbitrated the post-divorce issue of the defendant's ex-wife's 401k. In support of that conclusion, the State relies on what was believed to be a signed court order appointing Mr. Thatcher as arbitrator. I have reviewed Mr. Thatcher's file and am
unable to find a consent order signed by the court. The signed Agreement was among three private parties, and those three parties agreed that Mr. Thatcher would arbitrate the dispute. Absent a signed court order, Mr. Thatcher was not "cloaked" in the authority of the government to enforce its statutes. Therefore, the court has no alternative but to dismiss Count Two of the indictment.
III
While conceding that there was no signed court order appointing Thatcher as an arbitrator, the State argues that it presented the grand jury with a "prima facie case" that he was court-appointed and therefore that he was a public servant. The State also argues that evidence that Thatcher and the parties believed that he was court-appointed, and hence was carrying out a "governmental function," was sufficient to support the indictment. In the circumstances of this case, we cannot agree.
To survive a motion to dismiss an indictment "the State must introduce sufficient evidence before the grand jury to establish a prima facie case that defendant has committed a crime." State v. Saavedra, 433 N.J. Super. 501, 507-08 (App. Div. 2013). "[E]ven if an indictment appears sufficient on its face, it cannot stand if the State failed to present the grand jury with at least 'some evidence' as to each element of its prima facie case." State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997). We review Judge Rubin's decision for abuse of discretion, bearing in mind that a trial court's power to dismiss an indictment may not be exercised except on the clearest and plainest ground. State v. Hogan, 144 N.J. 216, 228 (1996); Mason, supra, 355 N.J. Super. at 299.
In conducting our review, we also consider the following cautionary language concerning the State's obligation in presenting its case to the grand jury:
[I]n establishing its prima facie case against the accused, the State may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a "half-truth." Although the grand jury is not the final adjudicator of guilt and innocence, the presence of the right to indictment in the State Constitution indicates that the grand jury was intended to be more than a rubber stamp of the prosecutor's office. Our State Constitution envisions a grand jury that protects persons who are victims of personal animus, partisanship, or inappropriate zeal on the part of a prosecutor.
In order to perform that vital protective function, the grand jury cannot be denied access to evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused. If evidence of that character is withheld from the grand jury, the prosecutor, in essence, presents a distorted version of the facts, and interferes with the grand jury's decision-making function. cf. State v. Marshall, 123 N.J. 1, 152 (1991) ("The primary duty of a prosecutor is
not to obtain convictions but to see that justice is done.").
[Hogan, supra, 144 N.J. at 236 (additional citations omitted).]
Hogan addressed the prosecutor's duty to present clearly exculpatory evidence to the Grand Jury. We find its principles applicable here, at least by analogy. Based on the record presented to us, we conclude that the State's presentation to the grand jury with respect to Thatcher's status as a public servant rested exclusively on Thatcher's statement that he was a court-appointed arbitrator. The State presented no other theory, and no other evidence, on which the grand jury could determine whether there was a prima facie case of a violation of N.J.S.A. 2C:27-3(a)(2). We conclude that, when the State learned that the key evidence on which it had obtained the indictment on count two was palpably false, it should have withdrawn that count of the indictment, re-evaluated whether it had sufficient other evidence on which to proceed before the grand jury and, if so, re-presented the case.
In so noting, we are not implicitly accusing Thatcher of any wrong-doing. He apparently believed that the judge had signed the order appointing him, although he obviously did not have a copy of the signed order in his file. In his statement to the detective, Thatcher indicated that he was "not out to make trouble for [defendant]" but made a complaint because he was concerned for his own safety.
--------
We reach this conclusion for two reasons. First, the prosecutor's duty is to do justice, and proceeding with an indictment while admitting that the key evidence presented to the grand jury in support of that indictment was false, is inconsistent with the prosecutor's duty. See Hogan, supra, 144 N.J. at 236. Second, considering the theory on which the State presented count two to the grand jury, absent proof that Thatcher was court-appointed there was no evidence of an essential element of N.J.S.A. 2C:27-3(a)(2), i.e., proof that Thatcher was a public servant. See Schenkolewski, supra, 301 N.J. Super. at 137. Consequently, we find no abuse of Judge Rubin's discretion in dismissing count two of the indictment.
We note that in the second point of its brief, the State relies on the following language from the statute, which provides:
It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way, whether because he had not yet assumed office or lacked jurisdiction, or for any other reason.
[N.J.S.A. 2C:27-3.]
The State did not present that argument to the trial court. Nor did the State present evidence to the grand jury that would be relevant to an argument based on that theory. We decline to consider the issue for the first time on appeal. See Nieder v. Royal Indem. Ins. Co., Inc., 62 N.J. 229, 234 (1973).
In conclusion, we affirm the order on appeal, insofar as it dismissed count two of the indictment.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION