NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiff Peter F. Ryerson (Ryerson) appeals from an order entered by the Law Division on September 10, 2010, granting summary judgment in favor of defendant State of New Jersey. For the reasons that follow, we vacate the September 10, 2010, order and remand the matter to the trial court for entry of a judgment dismissing the complaint with prejudice.
This matter arises from the following facts. In 1998, Governor Christine Todd Whitman appointed Ryerson as Superintendent of Elections and Commissioner of Registration for the County of Passaic (County). In 2001, Laurence Russo (Russo), the former Deputy Superintendent of Elections and Deputy Commissioner of Registration for Passaic County, and William Villari (Villari), a former investigator in the Office of the Commissioner of Elections for Passaic County, each brought suit in the United States District Court for the District of New Jersey, asserting claims against Ryerson, the County, certain State personnel, departments and agencies.
In their federal lawsuits, Russo and Villari alleged that Ryerson had engaged in certain acts of sexual harassment, created a hostile work environment and took various retaliatory acts in violation of federal and state law. The District Court consolidated the actions, and Ryerson retained his own attorney to defend himself in those matters. In February 2006, the District Court granted a motion for summary judgment by the State defendants, granted in part and denied in part a motion for summary judgment by the County, and denied Ryerson's motion for summary judgment.
On May 31, 2006, the County and the County's Board of Chosen Freeholders filed an action in the Law Division against the State seeking contribution and indemnification for any amounts, including attorneys' fees and costs, they would be required to pay as a result of the Russo/Villari lawsuits. In August 2006, Ryerson intervened in the Law Division action and filed a complaint against the State seeking contribution and indemnification for any amounts, including attorneys' fees and costs, he would be required to pay as a result of the Russell/Villari lawsuits.
On January 26, 2007, Ryerson's attorney submitted to the Attorney General of New Jersey a request for reimbursement for the attorneys' fees and costs he had incurred in the federal actions. By letter dated March 13, 2007, Assistant Attorney General Stephanie A. Brand (Brand) advised Ryerson's attorney that his request was denied. Brand stated that the request was untimely; Ryerson was not an employee of the State for purposes of the Russo/Villani litigation; and his alleged conduct may amount to willful misconduct for which a defense and indemnification was not appropriate. Brand's letter stated that this was the Attorney General's final determination and any review of the decision must be by appeal to this court.
On May 4, 2007, Ryerson filed a notice of appeal seeking review of the Attorney General's March 13, 2007, determination. On June 13, 2007, the Attorney General filed a motion to dismiss the appeal because it had been brought beyond the time prescribed by Rule 2:4-1(b). Ryerson filed a cross-motion pursuant to Rule 2:4-4 seeking an extension of time within which an appeal may be taken.
By orders dated July 17, 2007, we denied Ryerson's cross-motion and granted the State's motion to dismiss the appeal. Ryerson sought review of our orders by filing a petition for certification with the Supreme Court of New Jersey. The Supreme Court entered an order on October 31, 2007, denying the petition. Cnty. of Passaic v. State of New Jersey, 192 N.J. 599 (2007).
In July 2008, the County, State and Ryerson executed and filed a voluntary stipulation dismissing the Law Division action without prejudice in light of the pending litigation in the Federal District Court. On March 9, 2009, a consent order and judgment was filed in the District Court resolving the Russo/Villani lawsuits. The judgment provided for payment of $760,000 to Russo and Villani in settlement of their claims, including the claims for counsel fees and costs, with the County responsible for paying $740,000 and Ryerson responsible for the balance.
Thereafter, on March 3, 2009, Ryerson commenced this action against the State in the Law Division. In his complaint, Ryerson alleged that he was a State employee acting in his official capacity with regard to the actions at issue in the Russo/Villani litigation. He alleged that he was entitled to indemnification and the cost of legal representation in those lawsuits. The State filed an answer denying liability. In June 2010, the State moved for summary judgment, and Ryerson filed a cross-motion seeking the same relief.
The trial court considered the motions on September 10, 2010. After hearing the arguments of counsel, the court placed its decision on the record. The court determined that, like a County prosecutor, a County Superintendent of Elections enjoys a "hybrid status" as a employee of both the County and the State. The court found that Ryerson was not entitled to defense and indemnification from the State pursuant to N.J.S.A. 59:10A-1 because the conduct at issue in the Russo/Villani litigation involved the performance of County rather than State functions. The court accordingly denied Ryerson's motion and granted the State's motion for summary judgment and entered an order dated September 10, 2010, memorializing its decisions. This appeal followed.
Ryerson argues that the trial court erred by granting the State's motion for summary judgment because there were genuine issues of material fact as to whether he was a State employee and whether the acts or omissions at issue in the Russo/Villani litigation occurred within the scope of his employment. In responding to these arguments, the State contends, among other things, that the trial court should have dismissed Ryerson's complaint for lack of jurisdiction.
N.J.S.A. 59:10A-1 provides that, except as otherwise provided in N.J.S.A. 59:10A-2,
the Attorney General shall, upon a request of an employee or former employee of the State, provide for the defense of any action brought against such State employee or former State employee on account of an act or omission in the scope of his employment.
N.J.S.A. 59:10A-2 states that:
[t]he Attorney General may refuse to provide for the defense of an action . . . if [the Attorney General] determines that:
a. the act or omission was not within the scope of employment; or
b. the act or the failure to act was because of actual fraud, willful misconduct or actual malice; or
c. the defense of the action or proceeding by the Attorney General would create a conflict of interest between the State and the employee or former employee.
In Prado v. State, 186 N.J. 413 (2006), certain State employees brought suit in the Law Division against a co-worker who allegedly violated their rights under the Law Against Discrimination, N.J.S.A. 10:5-1 to -42 and the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8. Id. at 418. The employee asked the Attorney General to defend him in the litigation pursuant to N.J.S.A. 59:10A-1, but the Attorney General declined to do so on the ground that the employee had acted outside the scope of his employment and engaged in willful misconduct. Id. at 415-16.
The employee filed a motion in the trial court seeking to compel the Attorney General to provide him with a defense and indemnification. Id. at 419. The trial court ordered the State to provide a defense but declined to order indemnification until "`all the facts are in.'" Id. at 419. The State moved for reconsideration, arguing that the Attorney General's decision was a final agency determination reviewable only by the Appellate Division pursuant to Rule 2:2-3(a)(2). Ibid. The trial court denied the motion. Ibid. We granted the State's motion for leave to appeal and affirmed the trial court's orders. Ibid. (citing Prado v. State, 376 N.J.Super. 231, 237 (App. Div. 2005)).
The Supreme Court reversed. Id. at 429. The Court held that the Appellate Division had exclusive authority under Rule 2:2-3(a)(2) to review the Attorney General's decision because it was a final determination of a State agency or officer. Id. at 422-23. The Court determined that there was no reason to carve out an exemption to the Appellate Division's exclusive jurisdiction to allow the Law Division to review these decisions. Id. at 423.
The Court stated that, while the underlying civil action was pending in the Law Division, a decision of the Attorney General refusing to provide a defense is ordinarily made in the early stages of litigation and, at that point, "the Law Division is no better suited than the Appellate Division to decide the issue." Ibid. The Court also stated that any appeal from the Attorney General's decision could be resolved by the Appellate Division expeditiously. Id. at 423-24.
The Court added, however, that there may be instances in which a trial court might be in a better position than the Appellate Division to determine the reasonableness of the Attorney General's decision to refuse to provide an employee a defense and indemnification. Id. at 424. The Court noted that "there may be circumstances when the underlying action has been ongoing for a significant period by the time the issue of representation arises." Ibid. The Court stated that, in such cases, the Appellate Division retained the discretion to remand the matter to the trial court for a determination. Ibid.
As noted previously, in this matter, Ryerson submitted a request to the Attorney General for defense and indemnification in the Russo/Villani case and on March 13, 2007, an Assistant Attorney General rendered a final determination on behalf of the Attorney General denying his request. In that decision, the Assistant Attorney General informed Ryerson that any further review of the decision must be by appeal to this court.
Ryerson filed a notice of appeal on May 4, 2007 seeking review of the Attorney General's decision. We granted the Attorney General's motion to dismiss the appeal because it had been filed beyond the time prescribed by Rule 2:4-1(b). We also denied Ryerson's motion pursuant to Rule 2:4-4(a) to extend the time within which the notice of appeal could be filed.
Ryerson's failure to file a timely appeal from the Attorney General's March 13, 2007, decision precludes him from seeking review by this court of the Attorney General's refusal to provide him with a defense and indemnification in the Russo/Villari litigation. Moreover, Ryerson cannot circumvent our exclusive jurisdiction under Rule 2:2-3(a)(2), or our decision dismissing his previously filed appeal, by instituting this action in the Law Division. Equitable Life Mort. v. N.J. Div. of Taxation, 151 N.J.Super. 232, 237 (App. Div.), certif. denied, 75 N.J. 535 (1977).
Ryerson argues, however, that the Law Division properly exercised jurisdiction in this matter. He contends that this matter is not an appeal from an administrative agency decision but rather an independent cause of action that arose after the Attorney General wrongfully refused to provide him with a defense, leaving him with no alternative but to seek indemnification, contribution and reimbursement. In our view, these contentions are entirely without merit.
We therefore conclude that the Law Division did not have jurisdiction to entertain Ryerson's complaint in this case. Accordingly, we vacate the trial court's September 10, 2010 order and remand the matter to the Law Division for entry of an order dismissing the complaint with prejudice.
