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N.J. Supreme Court Judge Can Be Sued Personally for Alleged Civil Rights Breach
Judge allegedly used his authority to intervene in investigations into whether his son was bullied by a classmate
New Jersey Law Journal
August 19, 2008
New Jersey Supreme Court Justice Roberto Rivera-Soto failed on Wednesday to escape a suit alleging he trampled the civil rights of a former high school classmate of his son.
Linda Feinberg, the Mercer County Assignment Judge, ruled there is enough evidence to sustain an allegation that Rivera-Soto used the authority of his position to intervene in school and municipal court investigations of whether Conor Larkin bullied the jurist's son Christian when they were Haddonfield High School classmates in 2006.
At the same time, Feinberg dismissed all of Larkin's claims against the state and against the judiciary, ruling that since the accusations against Rivera-Soto had to do with actions he allegedly took as a private individual, not in his capacity as a judge, the state can't be liable. She also said the state and Rivera-Soto in his official capacity are immune under the state Civil Rights Act of 2004.
The suit followed Rivera-Soto's censure by his Supreme Court colleagues last year for having ex-parte contacts with two judges and handing his business card to officials involved in a municipal court juvenile delinquency case he lodged against Larkin.
Rivera-Soto said later that he pursued the case because school officials failed to take the bullying seriously. He denied using his position as leverage and said he was doing what any parent would do: preventing harm to his child.
But Larkin's suit alleges that Rivera-Soto's actions, including putting pressure on school authorities to impose punishment, caused the teenager emotional distress, violated his right to due process under the state Civil Rights Act and violated his constitutional right to a public education.
"Although these allegations do not involve Rivera-Soto's official duties, responsibilities, or tasks as an Associate Justice, these allegations are sufficient in attempt to establish Rivera-Soto acted under color of law for purposes of an NJCRA claim," Feinberg wrote in Larkin v. Rivera-Soto, Mer-L-0896-08.
Officials who abuse the positions given to them by the state or who purport to act according to official power are said to have acted under color of state law, and therefore can be held liable under the Civil Rights Act, Feinberg explained.
While the Advisory Committee on Judicial Conduct didn't find, conclusively, that Rivera-Soto acted under the color of state law in his pursuit of Larkin, the ACJC report has "probative value" in determining that further discovery should proceed, Feinberg said.
Larkin can obtain discovery beyond the judiciary ethics inquiry regarding his conversations with school authorities. That would be to "determine if Rivera-Soto, as plaintiff aptly put it, tried to "bully" the school administrators into punishing or suspending the plaintiff and thereby infringing on his constitutional right," Feinberg said.
In addition to dismissing claims against the state, Feinberg also dismissed a number of counts against Rivera-Soto in his personal capacity. One count said he was liable for the malicious abuse of process, another said his action against Larkin was age discrimination and another said he committed a prima facie tort.
Rivera-Soto's lawyer, Bruce McMoran of McMoran, O'Connor & Bramley in Manasquan, N.J., says the dismissal of these counts reduces Larkin's chances of ultimately prevailing.
McMoran says the state has not been paying Rivera-Soto's fees and that he would have to pay any award, if Feinberg's ruling against the state holds up on appeal.
Larkin's lawyer, Clifford Van Syoc, who has a firm in Cherry Hill, N.J., says, "at least the taxpayers wont be paying for his conduct." As for the claims Feinberg preserved, at least pending discovery, he says, "it's a start."
Van Syoc says he is considering an interlocutory appeal of the dismissal of the claim against the state under the Civil Rights Act, a statute he calls complex and likely to be the subject of more interpretation.
The suit included a claim that the state and Rivera-Soto, in his official capacity as a Supreme Court justice, were liable under the state Civil Rights Act.
But Feinberg ruled that while the 4-year-old statute does not expressly grant such immunity, the legislative history shows that it was intended to be the analog of 42 U.S.C. 1983. Therefore, the plain language of the federal law and judicial interpretations of it are applicable to the state statute, she said.
Under the federal law, civil rights suits can be brought against "persons" but not against their office, which means there is no cause of action against the state for acts committed by Rivera-Soto, Feinberg said.
Douglas Eakeley, whom the state called in to defend Rivera-Soto in his official capacity, says it's an important ruling because it is the first by a New Jersey judge to make the 2004 state act conform on this issue to what he calls its "template," the federal law.
"Because the statute authorizes suits only against persons acting under color of law, and the state is not defined as a person in the statute, the claim falls," says Eakeley, of Roseland, N.J.'s Lowenstein Sandler.
Larkin also failed to sustain a claim of negligent supervision, namely that Rivera-Soto wouldn't have interfered in Larkin's case if the state had trained him properly in judicial ethics. Feinberg said negligent supervision claims are valid only when there is a failure to train an employee for foreseeable dangers, like an accidental shooting by a police officer given faulty firearm-safety training.
"In this case, the State did not owe a duty of care to plaintiff because it was not reasonably foreseeable Rivera-Soto would allegedly engage in unlawful behavior directed at plaintiff," Feinberg said.
Filing a complaint with the police and complaining to school authorities are too far removed from the official duties of a Supreme Court justice to create a supervision duty, she said.
She also concluded the alleged acts were clearly outside the scope of Rivera-Soto's employment, which made the doctrine of respondeat superior inapplicable.
