LOPRESTI v. TOWNSHIP OF OLD BRIDGE

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1664-22
PETER LOPRESTI,
Plaintiff-Respondent,
v.
TOWNSHIP OF OLD BRIDGE,
Defendant-Appellant.
____________________________
Argued September 28, 2023 – Decided October 20, 2023
Before Judges Mayer, Enright and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-3227-22.
Robert J. Merryman argued the cause for appellant
(Apruzzese, McDermott, Mastro & Murphy, attorneys;
Robert Merryman, of counsel and on the briefs; Boris
Shapiro, on the briefs).
Nicholas P. Milewski argued the cause for respondent
(Mets, Schiro & McGovern, LLP, attorneys; Leonard
C. Schiro, of counsel and on the brief; Nicholas P.
Milewski, on the brief).

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
PER CURIAM
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Defendant Township of Old Bridge (Township) appeals from a February
2, 2023 "Order For Judgment" (judgment). The judgment: (1) reversed and
vacated plaintiff's Peter Lopresti's "termination and dismissal of . . . employment
from the Township of Old Bridge Police Department (OBPD) . . . and the
Departmental Hearing Decision and disciplinary conviction on which the
removal action was predicated . . . " in their entirety; (2) "restored [plaintiff] to
his office and employment as Captain in the [OBPD] and to all his rights
pertaining thereto"; and (3) allowed plaintiff "to recover his salary from the date
of his dismissal on June 27, 2022." We are satisfied the judge erred by applying
the "exclusionary rule" in this civil proceeding and mistakenly characterizing
the disciplinary hearing as quasi-criminal. Thus, we remand to the trial court
for a new de novo review hearing.
I.
We recite the facts from the record before the trial court. "Plaintiff was
a Captain with the OBPD." He "was charged with violations of the OBPD
Rules and Regulations and the OBPD Policy concerning harassment in the
workplace." "The charges arose out of a recorded conversation," between
plaintiff and other police officers while on duty. The conversation included a
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number of plaintiff's "sexist, harassing and discriminatory comments." Lt.
Robert Schlueter recorded the conversation. (Schlueter recording).
At the disciplinary hearing, the Township introduced evidence, including
the Schlueter recording, and presented witness testimony. Plaintiff did not
testify or present any witnesses. The hearing officer concluded the Township
proved the charges against plaintiff, warranting plaintiff's termination.
Plaintiff appealed the hearing officer's decision to the Superior Court.
N.J.S.A. 40A:14-150. The judge conducted his de novo review and
determined:
[T]he [Schlueter] recording is declared to be
inadmissible ab initio as it relates to the disciplinary
actions taken against [plaintiff] . . . . There being no
other independent evidence in the record to support the
charges made against [plaintiff], those charges and his
ensuing conviction must be dismissed and vacated in
their entirety.
On the Township's motion, we granted a stay of the judgment pending
appeal.
II.
This appeal involves the Township's challenge to the judge's de novo
review under N.J.S.A. 40A:14-150. The statute, in pertinent part, provides:
[a]ny member or officer of a police department or force
. . . who has been tried and convicted upon any charge
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or charges, may obtain a review thereof by the Superior
Court . . . . The court shall hear the cause de novo on
the record below and may either affirm, reverse or
modify such conviction.
. . . .
Either party may supplement the record with additional
testimony subject to the rules of evidence.
[N.J.S.A. 40A:14-150.]
Our Supreme Court has explained the:
de novo hearing provides a reviewing court with the
opportunity to consider the matter "anew, afresh [and]
for a second time." Romanowski v. Brick Township,
185 N.J. Super. 197, 204 (Law Div. 1982), aff'd o.b.,
192 N.J. Super. 79 (App. Div. 1983). In a de novo
proceeding, a reviewing court does not use an "abuse of
discretion" standard, but makes its own findings of fact.
Romanowski, 185 N.J. Super. at 204; see Henry v.
Rahway State Prison, 81 N.J. 571, 579 (1980).
Conducting the review on the record and without the
benefit of live testimony does not alter the standard.
Rather, it is wholly consistent with the broad grant of
power conferred upon the reviewing court to reverse,
affirm or modify the disciplinary conviction. Evesham
Township Board of Adjustment v. Evesham Township
Council, 86 N.J. 295, 300 (1981). (de novo review on
the record of board of adjustment decision is not bound
by "abuse of discretion" test).
. . . .
On reviewing the record de novo, the court must only
make reasonable conclusions based on a thorough
review of the record. . . . To require a reviewing court
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to defer to the original findings would conflict with the
fundamental purpose of a de novo proceeding under
N.J.S.A. 40A:14-150: to ensure that a neutral, unbiased
forum will review disciplinary convictions.
[In re Phillips, 117 N.J. 567, 578-80 (1990).]
The Court further explained:
[a]n appellate court plays a limited role in reviewing
the de novo proceeding. In State v. Johnson, 42 N.J.
146 (1964) [,] we explained that the court's "function
on appeal is not to make new factual findings but
simply to decide whether there was adequate evidence
before the []Court to justify its finding of guilt." Id. at
161 (quoting State v. Dantonio, 18 N.J. 570, 575
(1955)). Thus unless the appellate tribunal finds that
the decision below was "arbitrary, capricious or
unreasonable" or "[un]supported by substantial credible
evidence in the record as a whole," the de novo findings
should not be disturbed. See Henry, 81 N.J. at 580;
Campbell v. Department of Civil Serv., 39 N.J. 556,
562 (1963).
[Id. at 579.]
III.
The Township argues the judge erred by excluding the Schlueter recording
as part of his review. We agree because the judge erred in applying the
"exclusionary rule" in this civil proceeding, and mistakenly characterizing the
disciplinary hearing as quasi-criminal.
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"Evidence illegally obtained [even] in violation of the Constitution is
generally deemed inadmissible [but] only in a criminal prosecution . . . ."
Tartaglia v. Paine Webber, 350 N.J. Super. 142, 148 (App. Div. 2002) (citations
omitted) (emphasis added).
"The exclusionary rule does not apply to civil actions." In re Civil
Commitment of J.M.B., 395 N.J. Super. 69, 82, 95 (App. Div. 2007), aff'd, 197
N.J. 563 (2009) (photographs "seized without a warrant" were "suppressed in
the criminal proceeding [but] could be considered in th[e] civil proceeding since
the exclusion rule does not apply to civil actions"). Further, in Mercer v.
Parsons, 95 N.J.L. 224 (E. & A. 1920), the "wife's illegal interception of
husband's mail did not preclude its admission into evidence" and, in DelPresto
v. DelPresto, 97 N.J. Super. 446 (App. Div. 1967), we "revers[ed] suppression
of evidence obtained by illegal entry into husband's paramour's house in [a]
matrimonial proceeding." See Tartaglia, 350 N.J. Super at 148-49.
Plaintiff asserts the judge's decision to exclude the Schlueter recording is
supportable because the judge determined the recording was done in violation
of: (1) the OBPD Rules and Regulations; (2) Township's Employee Handbook;
(3) plaintiff's right to privacy; and (4) plaintiff's constitutional rights and
protection against unlawful search and seizure. However, in light of the
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controlling law, and because this was a civil proceeding, plaintiff's asserted
violations do not compel exclusion of the Schlueter recording. Moreover, in an
effort to overcome the inapplicability of the exclusionary rule in a civil
proceeding, plaintiff argues that the judge did not actually invoke the rule but
merely used it an as analogy to exclude the Schlueter recording. However,
plaintiff's argument on this point ignores the actual substance of the judge's
ruling.
Here, the judge erred by invoking the exclusionary rule in this civil
proceeding. See In re J.M.B., 395 N.J. Super. at 95; Tartaglia, 350 N.J. Super.
at 148. "Departmental disciplinary proceedings are civil in nature . . . ." Sabia
v. Elizabeth, 132 N.J. Super. 6, 14 (App. Div. 1974).
In rendering his ruling, the judge understood the rule's limited application
by noting that "this matter did not involve . . . the potential for application in a
criminal prosecution . . . ." (emphasis in original). Therefore, the judge's
analysis should have ended there because "[t]he exclusionary rule does not apply
to civil actions." In re J.M.B., 395 N.J. Super. at 95.
However, the judge continued his analysis and mistakenly characterized
this civil disciplinary proceeding as "the prosecution of a police officer in a
quasi-criminal . . . disciplinary proceeding." Based on that characterization, the
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judge applied the exclusionary rule to bar the Schlueter recording. However, "a
departmental disciplinary proceeding is in no way a criminal or quasi-criminal
proceeding . . . ." Sabia, 132 N.J. Super. at 14. Thus, the exclusionary rule
should not have been invoked by the judge.
Therefore, we are satisfied that the judge erred in applying the
exclusionary rule to this civil proceeding and in mistakenly characterizing the
disciplinary proceeding as a quasi-criminal proceeding. We remand the matter
for a new de novo review under N.J.S.A. 40A:14-150.
IV.
We turn to the Township's argument that the judge erred by sua sponte
raising the admissibility of the Schlueter recording. First, a court's decision to
decide an issue sua sponte1 must meet the requirements of due process. See
Klier v. Sordoni Skanska Const. Co., 337 N.J. Super. 76, 84-85 (App. Div.
2001). "The minimum requirements of due process . . . are notice and the
opportunity to be heard." Doe v. Poritz, 142 N.J. 1, 106 (1995). Here, we need
not address the propriety of the judge raising the applicability of the
exclusionary rule, sua sponte, because the rule has no application in this civil
1 Sua sponte is defined as "[o]f his own or its own will or motion; voluntarily;
without prompting or suggestion." Black's Law Dictionary 1424 (6th ed. 1990).
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proceeding. We simply note that if a judge decides to dispose of an issue sua
sponte, the judge must provide the appropriate advance notice and opportunity
to be heard.
Second, parties are "entitled to be heard" regarding "the propriety of
taking judicial notice and the nature of the matter noticed." N.J.R.E. 201(e).
The rule allows for a hearing even "[i]f the court takes judicial notice before
notifying a party . . . ." N.J.R.E. 201(e). Here, the judge took judicial notice of
Schlueter's separate Law Division action filed against the Township and inferred
Schlueter's motivation in making the recording was to bolster that suit. On
remand, if there is a request to take judicial notice of a matter, the judge must:
(1) notify the parties; (2) explain "the nature of the matter noticed"; and (3)
allow the parties an opportunity to be heard. N.J.R.E. 201(e).
Lastly, we direct that the new de novo review be considered by a different
judge. Although the judge here issued a thoughtful opinion explaining his
decision, "out of an abundance of caution," we direct that a different judge be
assigned to the new de novo review to avoid any claim of impartiality based on
the reviewing judge's original findings and legal conclusions. See Graziano v.
Grant, 326 N.J. Super. 328, 349 (App. Div. 1999) (stating the power to remand
to a different judge "may be exercised when there is a concern that the trial judge
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has a potential commitment to [the judge's] prior findings."); see also Luedtke
v. Shobert, 342 N.J. Super. 202, 219 (App. Div. 2001) (recognizing "time and
effort the court put into the case" but expressing concern that judge would be in
"untenable position" on remand). However, we take no position on the outcome
of this matter on remand.
Vacated and remanded for further proceedings consistent with our
opinion. We do not retain jurisdiction.