The New Jersey Supreme Court continued in relevant part: The MCPO defendants appealed and the Appellate Division concluded that the Attorney General properly differentiated between law enforcement and administrative functions with respect to the original complaint but erred when not consistently applying that approach to the subsequent complaints. The appellate court found that compliance with the Directive was an administrative function not subject to defense and indemnification. The Appellate Division remanded the matter to the Law Division to determine the reimbursement due for the portion of costs associated with defense of claims for which the Attorney General inconsistently denied coverage.
All claims related to the MCPO defendants’ acts or alleged omissions associated with duties imposed by the Directive constitute state prosecutorial functions. The Department’s parsing of the pleadings in this matter led to crabbed determinations about the scope of law enforcement activity that are inconsistent with the letter and purpose of Wright. The Court finds the Department’s four determinations — which reflect shifting and conflicting positions — to be arbitrary and unreasonable.
In Wright, the Court determined that county prosecutors occupy a “hybrid” role, serving both the county and the State, and undertook the task of clarifying when the State must defend and indemnify county prosecutors and their employees. The Wright Court held that the State could be held vicariously liable for the tortious conduct of county prosecutors and their subordinates during their investigation and enforcement of the State’s criminal laws, and further that the State should be obligated to pay their defense costs and to indemnify them if their alleged misconduct involved a State law enforcement function.
After the Complaint and the First Amended Complaint were filed, the MCPO defendants sent written requests to the Office of the Attorney General requesting representation and indemnification for any and all allegations against them pursuant to Wright. In the first letter-decision, the Attorney General agreed to defend and indemnify the MCPO defendants for allegations perceived to concern the MCPO’s law enforcement functions, but declined to defend them for allegations that were determined not to relate to the detection, investigation, arrest, or prosecution of criminal defendants and, thus, to constitute merely administrative functions. In the second letter, which addressed the Amended Complaint, the Attorney General declined entirely to represent and indemnify the MCPO defendants, despite the inclusion of several claims that the Attorney General’s first letter-determination had already agreed to defend and indemnify. The Attorney General also declined to defend and indemnify the MCPO defendants with respect to the Second Amended Complaint and the Third Amended Complaint because the claims asserted therein pertained to administrative functions.
This opinion shows that the Attorney General’s purpose in issuing Directives is not just to guide law enforcement personnel. The Directives also insulate the Attorney General’s Office from civil liability.