Alan Schorr’s Employment Case of The Week ending June 26, 2015
State v. Saavedra, 222 N.J. 39, 2015 N.J. LEXIS 641 (NJ Supreme Court June 23, 2015)
On December 27, 2013, I wrote about this case when the Appellate Division decision created significant apprehension within the plaintiff’s employment bar. (See original article here). The bar’s worst fears were realized this week when the Supreme Court affirmed the Appellate Division 6-1. In doing so, the Supreme Court held that an employee can be criminally prosecuted for removing documents from an employer’s possession, even if those documents are evidence of the employer’s unlawful behavior and even if the sole reason for removal was to ask an attorney if the employee has a cause of action.
Ivonne Saavedra was a clerk for the North Bergen Board of Education. In November 2009, Ms. Saavedra and her son sued the Board and various individuals under numerous causes of action, including CEPA and NJLAD. During discovery in the civil case, Saavedra’s attorney produced hundreds of documents owned by the Board. The Board’s attorney brought the matter to the Hudson County Prosecutor, who determined that the matter should be presented to a grand jury. The Board’s general counsel was the only witness before the grand jury, and he testified that Ms. Saavedra had taken highly confidential and very sensitive documents. The grand jury was never told that Ms. Saavedra had taken the documents in order to prove unlawful acts by the employer. The grand jury indicted her for official misconduct and theft of movable property, and she moved to dismiss the indictment.
At the motion hearing, Saavedra’s criminal defense counsel argued that she had taken the documents for a lawful use. Citing the case of Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010), defense counsel argued that it is legal to take confidential documents to prove discrimination and that preventing defendant from taking confidential documents would have a chilling effect in future LAD cases. The State maintained that Quinlan did not create a bright-line rule permitting a public servant to take highly confidential documents (such as student medical and educational records). The motion judge, Lisa Rose of Hudson County, concluded that Ms. Saavedra failed to meet her heavy burden of demonstrating that the State had not made a prima facie showing that a crime had been committed. The judge also ruled that Quinlan did not hold that removal of documents from an employer for use in a LAD suit is per se lawful. Ms. Saavedra filed an interlocutory appeal which was accepted by the Appellate Division.
The majority found that Quinlan was distinguishable in that the employer in Quinlan was a private employer. The majority rejected Ms. Saavedra’s argument that the State should be prevented from introducing evidence that she had unlawfully taken the documents. The majority ruled that, while Saavedra could use her belief that it was lawful to remove the documents as an affirmative defense at trial, the Court would not reverse the indictment. There was a dissent at the Appellate Division and Ms. Saavedra appealed to the Supreme Court as of right.
The Supreme Court affirmed that the State had established a prima facie showing for the causes of action for official misconduct and theft of movable property. The Court also held that the prosecutor did not have an obligation to present exculpatory evidence that the documents were taken for use in a discrimination lawsuit. With regard to the Quinlan defense, the Court held that Quinlan did not endorse self-help as an alternative to the legal process in employment discrimination litigation. Nor did Quinlan address any issue of criminal law. Indeed, the Court held that nothing in Quinlan states or implies that the anti-discrimination policy of the LAD immunizes from prosecution an employee who takes his or her employer's documents for use in a discrimination case. Accordingly, no constitutional argument or consideration of public policy compelled the dismissal of defendant's indictment.
Having held that the defendant is not immunized, the Court did hold that Ms. Saavedra may assert that her intent to use the documents at issue in support of her employment discrimination claim gives rise to a "claim of right" defense or other justification, if the evidence at trial supports such an assertion.
Justice Barry T. Albin, the lone dissenter, wrote that he believed that the prosecutor erred in not presenting the evidence of Ms. Saavedra’s “claim of right” defense. He would have remanded for a new presentation to the grand jury.
Attorneys representing employees who need employer documents to prove their case must be extremely careful to properly counsel clients. Rather than removing documents, clients should be counseled to describe the documents as thoroughly as possible so that such documents can be requested during discovery with great specificity. Ultimately, whistle blowers may have civil protection for taking documents, but they risk criminal prosecution. That may seem paradoxical or contradictory, but it is the law.
Counsel for criminal defense/Appellant: Mario M. Blanch.
Counsel for prosecution/Respondent: Stephanie Davis Elson, Assistant Prosecutor, argued the cause (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, 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, 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, and Reka Bala, on the brief).
Judges: JUSTICE PATTERSON delivered the opinion of the Court. CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON's opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
And in light of last week's Supreme Court rulings in King v. Burwell and Obergefell v. Hodges, I wanted to share this video of Coheed & Cambria singing some of their favorite lines in Justice Scalia's dissents: