A civil rights lawsuit filed in state Superior Court brings due process and equal protection claims against New Jersey’s commissioner of banking and insurance over her decision to overrule an administrative law judge in an evidence dispute.
Marlene Caride, commissioner of the Department of Banking and Insurance, was sued in state Superior Court by John Savadjian, whose license to sell insurance is on the line in a case accusing him of misconduct while working for Prudential.
An administrative law judge who is hearing Savadjian’s licensure case, Barry Moscowitz, ruled in August that electronic evidence the state sought to admit in that case was not properly authenticated because a Prudential employee failed to properly explain how the evidence was collected. But Caride overruled the administrative law judge on Oct. 16, finding Moscowitz misapplied a rule of evidence, and called for continued proceedings consistent with her decision.
Savadjian filed the civil suit against Caride on Oct. 23. The suit seeks damages for violations of Savadjian’s due process and equal protection rights. It says Caride exceeded her recognized authority and usurped the powers of the administrative law judge.
“Defendant acted as the investigator, prosecutor, and gatekeeper of evidence, without the authority to do so. Through her conduct, Defendant rendered the OAL proceeding pertaining to the allegations against Plaintiff a sham,” said the suit, filed by Matthew Adams of Fox Rothschild in Morristown.
Savadjian also moved before the Appellate Division on Nov. 5 for leave to file an interlocutory appeal of Caride’s ruling.
Savadjian faces allegations he transferred “orphan” accounts to his book of business without authorization from his superiors or the consent of the policyholders. The state also accuses Savadjian of forging signatures of policyholders and misrepresenting his identity to Prudential’s customer service office over the phone. The state claims the alleged misconduct took place while Savadjian was working as an agent in a Prudential office in Oradell.
Lawyers for the Department of Banking and Insurance presented recordings to Moscowitz of 60 phone calls Savadjian allegedly made while at Prudential as evidence of his alleged misdeeds. The state also presented a spreadsheet of metadata collected from those calls and a report summarizing the findings from the calls.
But Moscowitz said the audio recordings could not be admitted because Charles Shanley, a director in Prudential’s corporate investigation division whose testimony was presented to authenticate the evidence, apparently knew very little about the program used to collect and store the recordings. Another Prudential employee, Thomas Schreck, director of corporate investigations, had been expected to authenticate the evidence. But he was suspended from his job at Prudential a week before he was set to testify in November 2016 , the state said in court papers.
Caride said in her decision that Moscowitz wrongly held the Department of Banking and Insurance to the residuum rule when he rejected the audio evidence in the Savadjian case. That rule, derived from the 1972 Supreme Court ruling in Weston v. State, says that for a court to sustain an administrative decision affecting the substantial rights of a party, there must be a residuum of legal and competent evidence in the record to support it.
Caride said the requirement for a residuum of evidence was improper because the residuum rule only applies to evidence which is inadmissible under the rules of evidence, but is allowed into evidence in an administrative proceeding in which the strict rules of evidence do not apply.
“As no ultimate finding of facts are ripe to be made at this time, the ALJ’s finding constitutes a misapplication of the residuum rule,” Caride wrote.
But Savadjian’s petition to the Appellate Division said Caride’s order “impermissibly usurps the power of the ALJ as the exclusive gatekeeper of evidence.”
The civil suit states that Caride’s conduct was malicious or reckless, callous and indifferent to Savadjian’s rights and that her indifference to his rights “shocks the conscience.”
Matthew Adams of Fox Rothschild, the lawyer for Savadjian, said his client filed the civil suit because he cannot seek individual damages in the administrative case.
“The key takeaway is, why is it that we even bother with these OAL proceedings if issues of credibility and admission of evidence can be dispensed with by the commissioner in aid of supporting a predetermined outcome before her agency. There’s something fundamentally offensive to due process about that outcome,” Adams said.
Caride is an attorney who practiced in the Union City firm of Gonzales and Caride before she was appointed to her post by Gov. Phil Murphy in January. She previously represented the 36th District in the Assembly from 2012 to 2018.
Lee Moore, a spokesman for the attorney general, which represents Caride and the Department of Banking and Insurance in the civil and administrative cases, declined to comment.