                                                    SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                   State v. Ivonne Saavedra (A-68-13) (073793)

Argued November 10, 2014 -- Decided June 23, 2015

PATTERSON, J., writing for a majority of the Court.

         In this appeal, the Court considers defendant’s constitutional and public policy challenges to the official
misconduct and theft statutes as they apply to her indictment. Among other challenges, defendant argues that this
Court’s decision in Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010), immunized her conduct and prohibited
her prosecution because the public documents at issue were taken for use in employment discrimination litigation.

         Defendant, an employee of the North Bergen Board of Education (Board), filed an action asserting
statutory and common law employment discrimination claims against the Board. In discovery, defendant’s counsel
produced several hundred documents that allegedly had been removed or copied from Board files. According to the
Board, the documents included highly confidential student educational and medical records that were protected by
federal and state privacy laws. The Board reported the alleged theft of its documents to the county prosecutor.

          The State presented the matter to a grand jury, where a Board attorney testified about defendant’s position
with the Board, the Board’s discovery through the civil litigation that defendant possessed documents from its files,
and the privacy implications of the alleged appropriation of the documents. The grand jury indicted defendant for
official misconduct and theft by unlawful taking of public documents. Defendant moved to dismiss the indictment,
arguing that the State failed to present evidence sufficient to support the indictment and withheld exculpatory
evidence about her motive. She also contended that her removal of documents for use in her employment
discrimination claim was sanctioned by this Court’s decision in Quinlan. The trial court denied the motion.

         The Appellate Division granted defendant’s motion for leave to appeal, and, in a published decision, the
panel affirmed the trial court’s denial of defendant’s motion to dismiss the indictment. 433 N.J. Super. 501, 507
(App. Div. 2013). One member of the panel dissented, reasoning that defendant’s taking of the documents was
protected activity under the Law Against Discrimination, the Conscientious Employee Protection Act, and Quinlan.

         The Court granted defendant’s motion for leave to appeal. 217 N.J. 289 (2014).

HELD: The trial court properly denied defendant’s motion to dismiss her indictment. The State presented to the grand
jury a prima facie showing with respect to the elements of each offense charged in the indictment and the State did not
withhold from the grand jury exculpatory information or a charge regarding a defense that it was compelled by law to
present. Defendant’s indictment does not violate due process standards or New Jersey public policy by conflicting with
this Court’s decision in Quinlan, which does not govern the application of the criminal laws at issue in this appeal.

1. The Court first considers whether the trial court properly exercised its discretion in holding that the State
presented a prima facie showing on the elements of the charged offenses and that the State did not withhold
exculpatory evidence that it had a duty to present. A trial court deciding a motion to dismiss an indictment
determines whether, viewing the evidence and the rational inferences drawn therefrom in the light most favorable to
the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it. A court
should not disturb an indictment if there is some evidence establishing each element of the crime. (pp. 16-18)

2. The first offense for which defendant was indicted is official misconduct. To establish a prima facie case of that
offense, the State was required to present evidence that: (1) defendant was a “public servant” (2) who, with the
purpose to obtain a benefit or deprive another of a benefit, (3) committed an act relating to but constituting an
unauthorized exercise of her office, (4) knowing that such act was unauthorized or that she was committing such act
in an unauthorized manner. N.J.S.A. 2C:30-2(a). Before the grand jury, the State presented evidence (1) of
defendant’s employment by the Board as a clerk; (2) that defendant removed documents from the Board’s files in
order to use them in her discrimination litigation against the Board; (3) that defendant obtained the documents from
the Board’s files through her employment, and that Board policy did not permit her to have them in her possession;
and (4) that through the Board’s internal confidentiality policies, employees are trained and informed that the
documents at issue are highly confidential and must not be tampered with. Thus, the State met its burden to present
prima facie evidence on all four elements of official misconduct in violation of N.J.S.A. 2C:30-2(a). (pp. 18-25)

3. The second offense for which defendant was indicted is theft by unlawful taking of movable property. “A person
is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with
purpose to deprive him thereof.” N.J.S.A. 2C:20-3(a). The offense of theft constitutes a crime of the third degree if
“[i]t is of a public record, writing or instrument kept, filed or deposited according to law with or in the keeping of
any public office or public servant.” N.J.S.A. 2C:20-2(b)(2)(g). Before the grand jury, the State presented evidence
that (1) defendant collected several hundred confidential records from her employer, in contravention of the
employer’s policy; (2) a significant portion of those documents were the Board’s “original” copies, the removal of
which left the Board without the document in its files; and (3) the documents constituted public records, writings or
instruments kept according to law with or in the keeping of any public office or public servant. Accordingly, the
State met its burden of presenting a prima facie case with respect to each element of both offenses. (pp. 25-27)

4. The Court next considers whether the trial court abused its discretion in deciding that the State did not withhold
clearly exculpatory evidence that would negate defendant’s guilt as to one or both offenses, and whether the State
properly did not charge the grand jury as to a defense. Defendant contends that the State withheld evidence that she
collected her employer’s documents for purposes of her employment discrimination case. However, the State
presented testimony that defendant had an “outstanding” lawsuit against the Board, and the prosecutor had no
obligation to suggest that defendant thought that because she maintained an employment discrimination claim, her
conduct was sanctioned by law. Moreover, the State was not obligated to charge the grand jury regarding a potential
defense based on justification. It is only when the facts known to the prosecutor clearly indicate or clearly establish
the appropriateness of an instruction that the duty of the prosecution arises. (pp. 27-32)

5. The Court next considers defendant’s constitutional and public policy arguments, which are founded upon her
interpretation of this Court’s decision in Quinlan. To defendant, Quinlan stands for the proposition that an employee
has a legally recognized right to take confidential employer documents for use in employment discrimination
litigation, and, accordingly, criminal prosecution for that act is barred by due process principles and public policy.
However, the Court’s decision in 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, 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 compels the dismissal of defendant’s indictment. (pp. 33-45)

6. Notwithstanding the inapplicability of Quinlan to criminal proceedings, defendant 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. The trial court will be in a position
to evaluate any such assertion in the setting of a full record regarding defendant’s conduct, the content of the
documents, the Board’s policies regarding the records, and the impact of federal and state privacy laws. (pp. 45-49)

         The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court
for proceedings consistent with this opinion.

         ALBIN, J., DISSENTING, expresses the view that defendant’s motive for removing the documents was
not disclosed to the grand jury, and that the prosecutor suppressed relevant information sought by the grand jury,
thereby denying defendant her right to a fair grand jury presentation. Justice Albin also would require the grand jury
to be charged on a claim-of-right defense provided evidence suggests that defendant took the documents under a
lawful claim of right for the purpose of pursuing a LAD and CEPA action.

        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.

                                                            2
                                     SUPREME COURT OF NEW JERSEY
                                       A-68 September Term 2013
                                                073793

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

IVONNE SAAVEDRA,

    Defendant-Appellant.


         Argued November 10, 2014 – Decided June 23, 2015

         On appeal from the Superior Court, Appellate
         Division, whose opinion is reported at 433
         N.J. Super. 501 (App. Div. 2013).

         Mario M. Blanch argued the cause for
         appellant (Mr. Blanch, attorney; Mr. Blanch
         and Valerie Steiner, on the brief).

         Stephanie Davis Elson, Assistant Prosecutor,
         argued the cause for respondent (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).


                               1
          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).

    JUSTICE PATTERSON delivered the opinion of the Court.

    In this appeal, we review the trial court’s denial of

defendant Ivonne Saavedra’s motion to dismiss her indictment for

official misconduct and theft by unlawful taking of public

documents.    We also consider defendant’s constitutional and

public policy challenges to the official misconduct and theft

statutes as they apply to her case.

    Defendant, an employee of the North Bergen Board of

Education (Board), filed an action asserting statutory and

common law employment discrimination claims against the Board.

In the course of discovery in that action, defendant’s counsel

produced several hundred documents that allegedly had been

removed or copied from the Board’s files, and were in

defendant’s possession.    According to the Board, the documents

taken from its files included original and photocopied versions

of highly confidential student educational and medical records

that were protected by federal and state privacy laws.    The

Board reported the alleged theft of its documents to the county

prosecutor.

    The State presented the matter to a grand jury.      A Board

attorney testified before the grand jury about defendant’s

                                  2
position with the Board, the Board’s discovery through the civil

litigation that defendant had possession of original and copied

documents from its files, and the privacy implications of

defendant’s alleged appropriation of the documents.     The grand

jury indicted defendant for official misconduct and theft by

unlawful taking.

    Defendant moved to dismiss the indictment.      She argued that

the State failed to present evidence sufficient to support the

indictment and withheld from the grand jury exculpatory evidence

about defendant’s motive in taking the documents.    She also

contended that because the documents were taken for use in her

employment discrimination litigation, this Court’s decision in

Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010), immunized

her conduct as a matter of public policy and prohibited the

State from prosecuting her.   The trial court denied the motion,

and the Appellate Division affirmed the trial court’s

determination.

    We affirm the judgment of the Appellate Division.      We hold

that the trial court properly denied defendant’s motion to

dismiss her indictment.   We conclude that the State presented to

the grand jury a prima facie showing with respect to the

elements of each offense charged in the indictment and that the

State did not withhold from the grand jury exculpatory

information or a charge regarding a defense that it was

                                3
compelled by law to present.   We further hold that defendant’s

indictment does not violate due process standards or New Jersey

public policy by conflicting with this Court’s decision in

Quinlan.   The Quinlan case, arising from a plaintiff employee’s

claim that her employment was terminated after she took

documents belonging to her employer and used them in her

employment discrimination litigation, concerned the legal

standard that governs certain retaliation claims under the New

Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42.

Quinlan does not govern the application of the criminal laws at

issue in this appeal.

    Our decision does not preclude defendant from asserting, as

an affirmative defense before the petit jury at trial, that she

has a claim of right or other justification based on New

Jersey’s policy against employment discrimination, because she

removed the documents from her employer’s premises in order to

use them to prosecute her civil claim.   The trial court will be

in a position to evaluate any such assertion in the setting of a

full record regarding defendant’s conduct, the content of the

documents, the Board’s policies regarding the records, and the

impact of federal and state privacy laws.

                                I.

    In 1998, defendant was employed by the Board as a clerk.

For the first ten years of her employment, she was assigned to

                                4
the Board’s payroll department.   In 2008, defendant was

transferred to Lincoln School, where she was assigned to support

the child study team, a group composed of professionals

evaluating the individual needs of children with learning

disabilities.   At some point during defendant’s employment, her

son, Jeffrey Saavedra, became a part-time employee of the Board.

    The Board represents that its handling of student records

to which defendant had access is governed by the federal Family

Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C.A.

§ 1232g, as well as the state pupil records statute, N.J.S.A.

18A:36-19, and implementing regulations codified at N.J.A.C.

6A:32-7.1 to -7.8.   The Board states that FERPA and its New

Jersey counterpart impose strict confidentiality requirements

barring disclosure of a broad range of student records,

including records of services provided to students with

disabilities.   Tracking the language of N.J.A.C. 6A:32-

7.5(e)(7), the Board promulgated a privacy policy governing

defendant and other support staff:

         Secretarial and clerical personnel under the
         direct   supervision   of   certified   school
         personnel shall be permitted access to those
         portions of [a pupil’s record] to the extent
         that is necessary for the entry and recording
         of data and the conducting of routine clerical
         tasks. Access shall be limited only to those
         pupil files which such staff are directed to
         enter or record information and shall cease
         when the specific assigned task is completed.


                                  5
Further, the Board’s Code of Ethics requires staff to “[k]eep

the trust under which confidential information may be given,”

and to “[p]rotect and care for district property.”    The State

maintains that by virtue of the Board’s internal policies,

guidelines and regulations, Board employees including defendant

were made aware that student records were highly confidential

and that the disclosure of such records was strictly prohibited.

     On November 25, 2009, defendant and her son filed an action

in the Law Division against the Board and three individual

defendants.   In their complaint, defendant and her son alleged

that during the course of her employment, she had complained

about the Board’s alleged “violations of the law and public

policy,” including “[p]ay irregularities,” improper

administration of employee vacation and family leave, violations

of unspecified “child study regulations” and “unsafe conditions”

at a Board facility.1   The complaint included allegations that in


1 In particular, defendant alleged that the Board and the
individual defendants denied her overtime; forced her to
“repeatedly go into [] dusty and musty rooms which caused asthma
attacks”; “[o]verload[ed]” her with work; denied her “paid time
off to attend a volunteer DARE session”; “[v]erbally abus[ed]
and harass[ed]” her; “[f]alsif[ied] work assignments”; refused
to allow her to eat lunch with her son, Jeffrey; harassed her
“regarding parking spaces”; “[f]alsif[ied] the dates on [her]
weekly assignments”; “[f]orc[ed] [her] to clean the kitchen”;
made her commence work early without overtime; denied her
“vacation or change of vacation days”; gave her “adverse work
assignments”; denied her the “flexibility afforded to other
employees”; “[b]lam[ed] [her] for any mistakes in the office”;
denied her the opportunity to take breaks; “[b]erated [her] for
                                 6
retaliation for her complaints, and because of her race,

ethnicity, national origin and gender, the Board and its

employees denied benefits to defendant and her son, compelled

them to work in an unsafe and hostile environment, and

terminated the employment of defendant’s son and his girlfriend.

They premised their claims on the LAD, the Conscientious

Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, the

federal Civil Rights Act, 42 U.S.C.A. § 1983, the New Jersey

Civil Rights Act, N.J.S.A. 10:6-1 to -2, the federal Fair Labor

Standards Act of 1938, 29 U.S.C.A. §§ 201-19, the New Jersey

State Wage and Hour Law, N.J.S.A. 34:11-56a to -56a38, the

federal Family and Medical Leave Act, 29 U.S.C.A. §§ 2612-54,

and the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 to -16.

They also asserted common law theories based on violations of

public policy, conspiracy to violate civil rights, and

intentional infliction of emotional distress.   Defendant and her

son sought compensatory and punitive damages, injunctive relief

and attorneys’ fees against the Board and the individuals.




taking vacation time to visit her ailing [mother] in the
hospital”; did not allow Jeffrey to eat lunch in the kitchen;
did not allow Jeffrey “to do night summer hours”; and “advised
Jeffrey, when he attempted to explain his case, that they were
calling the police to remove him.” Defendant further alleges
that one of the individual defendants “menac[ed] Jeffrey with
her car.”
                                7
     It is undisputed that, without the Board’s permission,

defendant removed documents from the Board’s office.      The State

contends that the documents consisted of three hundred and

sixty-seven confidential student records.   It alleges that in

the case of sixty-nine of the documents, defendant did not

photocopy documents and leave the files intact, but instead

removed the original file copies from the premises.      The record

does not disclose the time period during which defendant

collected the records.

     By letter dated June 22, 2011, approximately a year and a

half after defendant’s employment discrimination complaint was

filed, defendant’s counsel in that matter provided copies of the

confidential documents to the Board’s counsel “in response to

[the Board’s] requests for all documents in [defendant’s]

possession which may include confidential and/or privileged

information.”2   Counsel for the Board in the employment

discrimination matter contacted Jack Gillman (Gillman), the

attorney for the Special Services Division of the Board, and

alerted him to defendant’s production of the Board’s documents

in her civil case.   Gillman then contacted the county

prosecutor’s office and notified it of the Board’s allegation

that defendant had taken confidential documents belonging to the


2 The record does not reveal what prompted counsel for the Board
to request that defendant’s counsel produce the documents.
                                 8
Board for use in her civil case.     The county prosecutor

determined to pursue charges against defendant.

    On April 24, 2012, the State presented evidence in

defendant’s case to a grand jury.    Gillman, the State’s sole

witness, testified about defendant’s employment with the Board.

He explained that the Board learned that defendant had

confidential Board documents when the Board’s attorney in

defendant’s civil lawsuit received certain documents in

discovery and questioned Gillman about them.     Gillman stated

that he told the Board’s attorney that “the information in those

documents was highly confidential, very sensitive, and we needed

to act on that immediately.”

    Before the grand jury, Gillman specifically discussed five

of the documents taken by defendant.    He identified one as a

bank statement that revealed an account number and balance,

which had been submitted by the parent of a student in order to

prove the child’s residency in North Bergen.     Gillman described

a second document as an appointment schedule for the school

psychiatrist that revealed the names of students being treated

by the psychiatrist, and a reference to one student’s

medication.   He identified a third document taken by defendant

as a consent form, signed by a student’s parent, by which the

parent agreed to the release of information to secure Medicaid

reimbursement for special education services.     Gillman

                                 9
identified two other documents as letters from parents of

students receiving services and testified about the private

information in the letters concerning the students, their

families and the services that they received.     With respect to

each example, Gillman stated that defendant was not permitted to

have the document outside the scope of her employment.       Gillman

generally described the Board policies barring employees from

disclosing confidential documents, but the State did not present

those policies in written form to the grand jury.

    At the close of his examination of Gillman, the prosecutor

asked the grand jurors whether they had questions for the

witness.     A grand juror asked, “[w]hen did she take out these

documents?    What’s she going to do with them?   The documents,

what she do with them?”     The prosecutor replied that he did not

believe that Gillman could “speculate as to what [defendant] was

going to do with the actual documents.”     Later in the

proceeding, as the prosecutor discussed the elements of the

offenses of official misconduct and theft, a grand juror

interposed a question:     “[w]hat -- I’m just curious.    I thought

I heard someone either say that she was going to sue the Board.”

The prosecutor replied, “[y]es, ma’am.”    The grand juror stated,

“[b]ut how is that relevant -- or was she -- I was just wanting

to see how it was --.”     Following an off-the-record discussion



                                  10
among the grand jurors, the prosecutor stated, “I believe you

answered your own question.”

    The grand jury returned a two-count indictment, charging

defendant with second-degree official misconduct, N.J.S.A.

2C:30-2(a), and third-degree theft by unlawful taking of public

documents, N.J.S.A. 2C:20-3(a) and N.J.S.A. 2C:20-2(b)(2)(g).

On an unspecified date following her indictment, defendant

voluntarily dismissed her employment discrimination action.     On

appeal, defendant’s counsel represented that defendant dismissed

the discrimination action because the attorney representing her

in that action did not want to proceed with it.

    Defendant moved to dismiss the indictment.    She contended

that her removal of documents from the Board’s files for use in

her employment discrimination claim was sanctioned by this

Court’s decision in Quinlan, and that a decision upholding the

indictment would chill the pursuit of discrimination claims.

The State argued that Quinlan was irrelevant to a criminal

prosecution, that the indictment was not manifestly deficient or

palpably defective, and that the State had not failed to present

exculpatory evidence that squarely refuted an element of either

of the charged offenses.

    The trial court denied the motion to dismiss the

indictment.   It reasoned that defendant had served as a

fiduciary for the public in her handling of student documents,

                                11
and that the State had presented a prima facie showing as to the

elements of each offense.   Although the trial court stated that

it considered defendant’s reliance on Quinlan to be misplaced,

it nonetheless analyzed the indictment in accordance with the

standard set forth in that decision and found that defendant’s

collection of the documents was not excused by that standard.

    An Appellate Division panel granted defendant’s motion for

leave to appeal.   The panel affirmed the trial court’s denial of

defendant’s motion to dismiss the indictment.   State v.

Saavedra, 433 N.J. Super. 501, 507 (App. Div. 2013).   It agreed

with the trial court that the State presented sufficient

evidence to the grand jury to establish a prima facie case with

respect to the elements of official misconduct and theft.    Id.

at 507-08.   The panel rejected plaintiff’s argument that the

State had an obligation to present exculpatory evidence

regarding defendant’s intent to use the documents in her civil

suit, reasoning that evidence about that lawsuit would not be

clearly exculpatory in the criminal case.   Id. at 522-24.

Noting that the disputed student records contained no “smoking

gun” evidence against the Board, the Appellate Division panel

stated that Board documents could have been obtained through

normal discovery procedures.   Id. at 526-27.   The panel rejected

defendant’s argument that was premised on Quinlan, reasoning

that the standard of Quinlan is limited to civil cases.    Id. at

                                12
507-08, 516.   It noted that defendant may assert, before the

petit jury at trial, her claim that she had made an “honest

error” and that she had a claim of right to the documents.      Id.

at 520-21.

     One member of the Appellate Division panel dissented,

reasoning that defendant’s taking of the documents was protected

activity under the LAD, CEPA, and Quinlan.     Id. at 531

(Simonelli, J.A.D., dissenting).     The dissenting judge opined

that, as applied to this case, the official misconduct and theft

statutes failed to put a reasonable person on notice that an

employee’s collection of documents from her employer for use in

discrimination litigation could subject the employee to criminal

prosecution, and that in light of Quinlan, defendant’s

indictment violated standards of fundamental fairness.      Id. at

535-36.

     We granted defendant’s motion for leave to appeal.     217

N.J. 289 (2014).   We also entered a stay of defendant’s trial

pending resolution of her appeal.

                                II.

     Defendant urges the Court to reverse the Appellate Division

panel’s judgment and dismiss the indictment.    Defendant argues

that the State failed to present a prima facie case to the grand

jury.   She contends that the panel’s decision contravenes the

anti-discrimination policies of the LAD, CEPA, and the Court’s

                                13
decision in Quinlan, and that it authorizes employers to

circumvent the Quinlan balancing test by reporting an employee’s

collection of documents as a theft to a prosecutor.     Finally,

defendant asserts that the official misconduct and theft

statutes are constitutionally infirm as applied to her case

because they violate due process and fundamental fairness

standards, and because they are too vague to give a reasonable

person notice as to the conduct that the laws prohibit.

    The State argues that the Appellate Division panel properly

resolved the issues before it.   Noting that defendant does not

challenge the adequacy of the evidence presented to the grand

jury on the charge of theft, the State contends that it

presented sufficient evidence to support the grand jury’s return

of an indictment on both charges.     It asserts that the balancing

test of Quinlan is inapplicable to criminal cases and that even

under that test, defendant has failed to demonstrate that the

documents taken were relevant to her civil case.    The State

disputes defendant’s contention that the official misconduct and

theft statutes violate fundamental fairness and vagueness

standards as applied to this case, arguing that it is not

inherently unfair to prosecute a public employee for the

wholesale removal of confidential documents from her employer’s

files, and that a person of ordinary intelligence is on notice

that such conduct is unlawful.

                                 14
    Amicus curiae National Employment Lawyers Association/New

Jersey (NELA) argues that the Appellate Division’s decision has

a chilling effect on whistleblowers, as well as their attorneys,

who could be exposed to charges of receiving stolen property.

NELA contends that the panel’s decision undermines the policies

of the LAD and CEPA.   It argues that the official misconduct and

theft by unlawful taking statutes violate due process norms and

are unconstitutionally vague.

    Appearing as amicus curiae, the Board supports the State’s

argument that Quinlan is irrelevant to this case.   It

characterizes the records at issue in this case as uniquely

entitled to protection from theft, by virtue of the strict

confidentiality provisions of FERPA and its New Jersey

counterpart.   The Board argues that defendant violated its

internal confidentiality policies, which restrict employees’

access to and use of student records.

    Amicus curiae New Jersey School Boards Association (NJSBA)

similarly relies on the special status of student records under

FERPA and analogous state laws.    NJSBA submits that federal and

state laws protect the privacy of students provided with

services under the Individuals with Disabilities Education Act.

See 20 U.S.C.A. § 1417(c).   NJSBA identifies sensitive

information that is included in student records, particularly

the records of students receiving special services, and argues

                                  15
that the removal of such records from the Board’s files

imperiled federal funding on which the North Bergen schools

rely.

    Amicus curiae Attorney General of New Jersey addresses

defendant’s constitutional arguments.      The Attorney General

contends that New Jersey’s official misconduct and theft

statutes are not unconstitutionally vague and that the LAD,

CEPA, and this Court’s decision in Quinlan do not justify or

condone the appropriation of employer documents for use in anti-

discrimination litigation.   The Attorney General argues that, at

most, Quinlan may provide to defendant a claim of right or other

justification defense at trial.

                                III.

    The trial court’s decision denying defendant’s motion to

dismiss her indictment is reviewed for abuse of discretion.

State v. Hogan, 144 N.J. 216, 229 (1996) (citing State v.

Weleck, 10 N.J. 355, 364 (1952)).      “A trial court’s exercise of

this discretionary power will not be disturbed on appeal ‘unless

it has been clearly abused.’”     State v. Warmbrun, 277 N.J.

Super. 51, 60 (App. Div. 1994) (quoting Weleck, supra, 10 N.J.

at 364), certif. denied, 140 N.J. 277 (1995).      Accordingly, we

first consider whether the trial court properly exercised its

discretion when it held that the State presented a prima facie

showing on the elements of the official misconduct and theft

                                  16
offenses charged and that the State did not withhold from the

grand jury exculpatory evidence that it had a duty to present.

                                 A.

       The grand jury determination under review serves a crucial

function in our criminal justice system.    The New Jersey

Constitution guarantees that a defendant will not be compelled

to stand trial unless the State has presented the matter to a

grand jury and the grand jury has returned an indictment.    State

v. Morrison, 188 N.J. 2, 12 (2006) (citing N.J. Const. art. I, ¶

8)).    The grand jury “is an accusative rather than an

adjudicative body,” whose task is to “‘assess whether there is

adequate basis for bringing a criminal charge.’”    Hogan, supra,

144 N.J. at 229-30 (quoting United States v. Williams, 504 U.S.

36, 51, 112 S. Ct. 1735, 1744, 118 L. Ed 2d 352, 368 (1992)).

“To fulfill its ‘constitutional role of standing between

citizens and the State,’ the grand jury is asked to determine

whether ‘a basis exists for subjecting the accused to a trial.’”

Id. at 227 (quoting State v. Del Fino, 100 N.J. 154, 164 (1985);

Trap Rock Indus., Inc. v. Kohl, 59 N.J. 471, 487 (1971), cert.

denied, 405 U.S. 1065, 92 S. Ct. 1500, 31 L. Ed. 2d 796 (1972)).

“The absence of any evidence to support the charges would render

the indictment ‘palpably defective’ and subject to dismissal.”

Morrison, supra, 188 N.J. at 12 (citing Hogan, supra, 144 N.J.

at 228-29).

                                 17
    A trial court deciding a motion to dismiss an indictment

determines “whether, viewing the evidence and the rational

inferences drawn from that evidence in the light most favorable

to the State, a grand jury could reasonably believe that a crime

occurred and that the defendant committed it.”   Id. at 13

(citing State v. Reyes, 50 N.J. 454, 459 (1967)).   A court

“should not disturb an indictment if there is some evidence

establishing each element of the crime to make out a prima facie

case.”   Id. at 12 (citing Hogan, supra, 144 N.J. at 236; State

v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987)).

    Our inquiry in this appeal is thus a narrow one.     With the

evidence and the rational inferences from that evidence viewed

in the light most favorable to the State, we determine whether

the trial court abused its discretion when it found that the

State presented evidence sufficient to establish a prima facie

case on the elements of the relevant offenses, and that it did

not withhold exculpatory evidence from the grand jury or fail to

present to the grand jury a defense of justification that should

have been presented.

                                B.

    The first offense for which defendant was indicted is

official misconduct.   N.J.S.A. 2C:30-2.   The statute provides:

          A public servant is guilty of official
          misconduct when, with purpose to obtain a


                                18
          benefit for himself or another or to injure or
          to deprive another of a benefit:

               a. He commits an act relating to his
               office but constituting an unauthorized
               exercise of his official functions,
               knowing that such act is unauthorized or
               he is committing such act in an
               unauthorized manner; or

               b. He knowingly refrains from performing
               a duty which is imposed upon him by law
               or is clearly inherent in the nature of
               his office.

          [N.J.S.A. 2C:30-2.]

New Jersey’s official misconduct statute, enacted as part of the

Code of Criminal Justice (Code) in 1979, is based on a New York

statute, and was intended “‘to consolidate the law as to

malfeasance [subsection (a)] and non-feasance [subsection (b)]

by public servants.’”   State v. Hinds, 143 N.J. 540, 545 (1996)

(quoting Cannel, New Jersey Criminal Code Annotated, comment 1

on N.J.S.A. 2C:30-2 (1996-1997)).

     The State alleged before the grand jury that defendant

violated subsection (a) of the official misconduct statute.

N.J.S.A. 2C:30-2(a).3   To establish a prima facie case with

respect to that offense, the State was required to present


3 Official misconduct is a second-degree crime unless the value
of the benefit obtained or deprived is “$200 or less,” in which
case it is a third-degree crime. N.J.S.A. 2C:30-2; State v.
Phelps, 187 N.J. Super. 364, 373 (App. Div. 1983), aff’d, 96
N.J. 500 (1984). Defendant was indicted for official misconduct
in the second degree.


                                19
evidence that:   (1) defendant was a “public servant” within the

meaning of the statute (2) who, with the purpose to obtain a

benefit or deprive another of a benefit, (3) committed an act

relating to but constituting an unauthorized exercise of her

office, (4) knowing that such act was unauthorized or that she

was committing such act in an unauthorized manner.    State v.

Thompson, 402 N.J. Super. 177, 191-92 (App. Div. 2008) (citing

State v. Bullock, 136 N.J. 149, 153 (1994); State v.

Schenkolewski, 301 N.J. Super. 115, 143 (App. Div.), certif.

denied, 151 N.J. 77 (1997)); see also Hinds, supra, 143 N.J. at

545 (observing commentary of New Jersey Criminal Law Revision

Commission as to elements of subsection (a) (quoting Cannel,

supra, comment 2 to N.J.S.A. 2C:30-2)).

    The Legislature broadly defined a “public servant” as “any

officer or employee of government, including legislators and

judges, and any person participating as juror, advisor,

consultant or otherwise, in performing a governmental function,

but the term does not include witnesses.”   N.J.S.A. 2C:27-1(g).

Construing that expansive statutory language, our courts have

applied N.J.S.A. 2C:30-2 to defendants serving in a range of

official roles, including administrative positions.    See, e.g.,

State v. Perez, 185 N.J. 204, 205-07 (2005) (holding head clerk

at motor vehicle agency is “public servant” notwithstanding her

employer’s status as private company managing agency under

                                20
contract with State); Bullock, supra, 136 N.J. at 156 (holding

police officer who was suspended from duty is “public servant”);

State v. Parker, 124 N.J. 628, 641 (1991) (holding teacher is

“public servant”); State v. Quezada, 402 N.J. Super. 277, 283-84

(App. Div. 2008) (finding that volunteer firefighter is “public

servant” in setting of case).

    With respect to that first element of the offense of

official misconduct under N.J.S.A. 2C:30-2(a), the State

presented evidence of defendant’s employment by the Board as a

clerk, first in the payroll department and then supporting the

Special Services Division of the Board.    Defendant does not

dispute that she is an “officer or employee of government” as

defined in N.J.S.A. 2C:27-1(g).    She argues, instead, that only

employees who exercise public authority should be subject to

prosecution for official misconduct.    However, neither the

statutory text nor our case law supports this narrow view of the

“public servant” element of the offense.    See N.J.S.A. 2C:30-

2(a); N.J.S.A. 2C:27-1(g); Perez, supra, 185 N.J. at 206 (noting

broad definition of “public servant” in official misconduct

statute); see also Quezada, supra, 402 N.J. Super. at 283-84

(finding element proven when defendant served governmental

function).   In this case, the State presented to the grand jury

a prima facie showing with respect to the first element of the

offense of official misconduct.

                                  21
    Next, the State had the burden to present to the grand jury

a prima facie showing that defendant acted “with purpose to

obtain a benefit for himself or another or to injure or deprive

another of a benefit” as an element of an official misconduct

offense under N.J.S.A. 2C:30-2.    The Legislature defined a

“benefit” as “gain or advantage, or anything regarded by the

beneficiary as gain or advantage.”     N.J.S.A. 2C:27-1(a).   That

definition includes pecuniary benefit, defined as a “benefit in

the form of money, property, commercial interests or anything

else the primary significance of which is economic gain.”

N.J.S.A. 2C:27-1(f).   It has also been held to encompass a

variety of non-pecuniary benefits.     See, e.g., Parker, supra,

124 N.J. at 641 (holding defendant’s personal gratification

derived from exposing students to sexually explicit material and

discussion is benefit); State v. Stevens, 115 N.J. 289, 306-07

(1989) (holding illegal strip search to satisfy sexual desire is

benefit); Quezada, supra, 402 N.J. Super. at 285 (holding “joy

of responding to fires as a volunteer firefighter” is benefit).

    Before the grand jury, the State presented evidence that

defendant removed documents from the Board’s files in order to

use them in her discrimination litigation against the Board.

Gillman testified that some of the documents removed from the

Board’s files were its originals and that the Board was

potentially exposed to sanctions under federal and state privacy

                                  22
laws by virtue of her conduct.   Defendant contends that the

purpose of her conduct was nothing more than to proceed with her

lawsuit and that the State presented no evidence that she

actually derived a financial benefit or personal gratification

from her conduct.

    The official misconduct statute does not require that the

defendant actually gain a benefit.    It merely requires that he

or she act “with purpose to obtain a benefit for himself” or

herself, whether or not that purpose was ultimately achieved.

See N.J.S.A. 2C:30-2; see also ibid. (referring in grading

provision to “benefit obtained or sought to be obtained”).     If,

as the State and defendant agree, defendant took her employer’s

documents for use in her employment discrimination claims, the

trial court properly concluded that she acted with a “purpose”

to “obtain a benefit” for herself.    Ibid.   Thus, considering the

evidence and the rational inferences from that evidence in the

light most favorable to the State, the State has presented a

prima facie showing with respect to the second element of

official misconduct.

    Third, the State was required to present prima facie

evidence that the defendant has committed “an act relating to

[her] office but constituting an unauthorized exercise of [her]

official functions.”   N.J.S.A. 2C:30-2(a).   That standard

distinguishes between conduct that relates to the public

                                 23
servant’s office and a public servant’s purely private

misconduct.    See Hinds, supra, 143 N.J. at 549 (observing “not

every offense committed by a public official involves official

misconduct”).    For example, this Court has noted that an act

“sufficiently relates” to law enforcement officers’ public

office when they “commit an act of malfeasance because of the

office they hold or because of the opportunity afforded by that

office . . . .”    Bullock, supra, 136 N.J. at 157; see also State

v. Kueny, 411 N.J. Super. 392, 407-08 (App. Div. 2010) (holding

“misconduct must somehow relate to the wrongdoer’s public

office” and off-duty officer’s illegal use of another’s ATM card

“does not constitute misconduct in office”).

    Addressing that element, Gillman testified that the

documents taken originated in the Board’s files and were

obtained by defendant through her employment.    He also told the

grand jury that the documents contained highly confidential and

private information about students, that defendant was not given

permission to have them in her personal possession, and that

defendant’s conduct violated the Board’s confidentiality

policies.     That testimony gave rise to a prima facie showing

that defendant’s conduct directly related to her public

employment, and that the manner in which she allegedly handled

the Board’s documents was unauthorized by her employer.



                                  24
    Finally, the State was required to present a prima facie

showing that defendant knew “that such act [was] unauthorized or

[she was] committing such act in an unauthorized way.”       N.J.S.A.

2C:30-2(a).    As this Court noted, the New Jersey Criminal Law

Revision Commission envisioned that “‘the public servant must

know that such act is unauthorized . . . because it is declared

to be such by statute, ordinance, rule, regulation or

otherwise.’”   Hinds, supra, 143 N.J. at 545 (quoting Cannel,

supra, comment 2 on N.J.S.A. 2C:30-2).    In that regard, Gillman

testified that by virtue of the Board’s internal confidentiality

policies, employees are trained and informed that the documents

at issue are highly confidential and must not be tampered with.

His testimony and the rational inferences from that testimony,

viewed in the light most favorable to the State, serves as a

prima facie showing on this final element of the offense of

official misconduct.    Thus, the State met its burden to present

prima facie evidence on all four of the elements of official

misconduct in violation of N.J.S.A. 2C:30-2(a).

    N.J.S.A. 2C:20-3(a) defines the second offense in the

indictment returned by the grand jury, theft by unlawful taking

of movable property:    “A person is guilty of theft if he

unlawfully takes, or exercises unlawful control over, movable

property of another with purpose to deprive him thereof.”



                                 25
The offense of theft “constitutes a crime of the third degree if

. . . [i]t is of a public record, writing or instrument kept,

filed or deposited according to law with or in the keeping of

any public office or public servant.”   N.J.S.A. 2C:20-

2(b)(2)(g).   Pursuant to that provision, defendant was indicted

for theft in the third degree.

      Gillman testified that defendant collected several hundred

confidential records from her employer, in contravention of the

employer’s policy.   The State, therefore, presented a prima

facie case regarding the element of the offense that defendant

“unlawfully takes, or exercises unlawful control over, movable

property of another.”   N.J.S.A. 2C:20-3(a).    Moreover, Gillman

told the grand jury that a significant portion of those

documents were the Board’s “original” copies.    Gillman explained

that some of the documents that he characterized as “originals”

bore “an ink signature,” and others were photocopies that served

as the Board’s sole file copy, the removal of which left the

Board without the document in its files.   Thus, the State

presented prima facie evidence that defendant took the documents

“with purpose to deprive” the Board of them.    Finally, the State

presented evidence that the documents constituted “public

record[s], writing[s] or instrument[s] kept . . . according to

law with or in the keeping of any public office or public



                                 26
servant,” thus satisfying the “public record” element of

N.J.S.A. 2C:20-3 for the third-degree offense.

    Accordingly, we concur with the trial court and the

Appellate Division that the State met its burden of presenting a

prima facie case with respect to each element of both offenses

for which the grand jury indicted defendant.

                                  C.

    We also consider whether the trial court abused its

discretion when it decided that the State did not withhold from

the grand jury clearly exculpatory evidence that would negate

defendant’s guilt as to one or both offenses, see Hogan, supra,

144 N.J. at 237, and whether the State properly did not charge

the grand jury as to a defense, see State v. John Hogan, 336

N.J. Super. 319, 341-42 (App. Div.), certif. denied, 167 N.J.

635 (2001).

    The prosecutor’s duty to present exculpatory evidence to a

grand jury is very closely circumscribed.      The State is required

to present such evidence “in the rare case in which . . .

evidence . . . both directly negates the guilt of the accused

and is clearly exculpatory;” the evidence must “squarely

refute[] an element of the crime.”     Hogan, supra, 144 N.J. at

237 (emphasis in original).     “[T]he prosecutor need not

construct a case for the accused or search for evidence that

would exculpate the accused.”    Id. at 238.   It is “[o]nly when

                                  27
the prosecuting attorney has actual knowledge of clearly

exculpatory evidence that directly negates guilt must such

evidence be presented to the grand jury.”    Ibid.   As the Court

observed:

            Ascertaining the exculpatory value of evidence
            at such an early stage of the proceedings can
            be difficult, see, e.g., Wayne R. L[a]Fave and
            Jerold H. Israel, Criminal Procedure §
            15.4(d), at 318 (1984), and courts should act
            with substantial caution before concluding
            that a prosecutor’s decision in that regard
            was erroneous. We emphasize that only in the
            exceptional case will a prosecutor’s failure
            to present exculpatory evidence to a grand
            jury constitute grounds for challenging an
            indictment.

            [Id. at 238-39.]

    In this case, defendant contends that the State improperly

withheld from the grand jury evidence that she collected her

employer’s documents for purposes of her employment

discrimination case.    Although defendant’s civil litigation was

not emphasized in the presentation to the grand jury, Gillman

testified that defendant had an “outstanding” lawsuit against

the Board, and that he learned about the disputed documents

after they were provided by defendant’s attorney to the Board’s

counsel in that lawsuit.    The prosecutor had no obligation to

suggest to the grand jury that defendant thought that because

she maintained an employment discrimination claim, her conduct




                                 28
was sanctioned by law.4   Neither official misconduct nor theft by

unlawful taking includes an element that would be “squarely

refuted” by proof that defendant intended to use the documents

to support her employment discrimination claim.    This is not the

“exceptional” case in which clearly exculpatory evidence was

known to the prosecutor and improperly withheld.   See Hogan, 144

N.J. at 238-39.

     Our dissenting colleague concurs with our conclusion that

the prosecutor did not withhold exculpatory evidence in

violation of Hogan, supra, 144 N.J. at 238-39, but contends

instead that “[b]y suppressing a grand juror’s legitimate

questions and rationing the evidence, the prosecutor allowed a

distorted picture of Saavedra’s motives.”   Post at ___ (slip op.

at 6).   We agree with the Appellate Division that the grand jury

was not misled by the prosecutor’s response to one juror’s

inquiry about defendant’s employment discrimination case.     The

prosecutor did not block the grand juror’s questions, but

cautioned his witness, who had already provided the grand jury

with the limited information available to him about the nexus




4 Although defendant cited Quinlan in her motion to dismiss her
indictment before the trial court and on appeal, the record
contains no assertion on her behalf that when she took the
documents from her employer, she understood Quinlan to authorize
her conduct. Indeed, it is unclear whether defendant collected
the documents from the Board before or after this Court decided
Quinlan.
                                29
between the documents and defendant’s lawsuit, from speculating

about defendant’s motive.

    The grand juror’s initial questions -- when defendant took

the documents, and what she was going to do with them -- were

posed to the State’s sole witness, Board attorney Gillman.

There is no indication that Gillman had information about the

timing of defendant’s removal of the documents, the subject of

the first question.   As to the grand juror’s second question --

what defendant intended to do with the documents -- the grand

jury was directly informed about the relationship between

defendant’s litigation and the documents at issue.    When the

grand juror asked his or her question, Gillman had already

testified that defendant had sued the Board, and that “there is

a lawsuit outstanding.”     Gilman added that he learned about the

documents after they were produced to the Board’s counsel in the

discovery phase of defendant’s lawsuit.     Indeed, a subsequent

question by a grand juror, who noted the testimony that

defendant had sued the Board and asked how that testimony was

relevant, confirms that juror’s awareness that defendant had a

civil claim.   In short, contrary to the dissent’s contention,

the nexus between defendant’s civil litigation and the documents

was disclosed to the grand jury.

    It would have been the better practice for the prosecutor

to direct Gillman to reiterate his testimony that the documents

                                  30
had been produced in defendant’s employment discrimination

action in order to emphasize the connection between the

documents and defendant’s lawsuit.   However, the prosecutor was

correct to caution Gillman not to speculate on defendant’s

intent.   We cannot conclude on this record that the State’s

handling of the grand juror’s inquiry was misleading or

otherwise improper.

    Moreover, contrary to the contention of our dissenting

colleague, the State was not obligated to charge the grand jury

regarding the legal standard that governed a potential defense

based on justification.   The Appellate Division, in John Hogan,

supra, correctly observed that “a prosecutor’s obligation to

instruct the grand jury on possible defenses is a corollary to

his responsibility to present exculpatory evidence.”   336 N.J.

Super. at 341.   However, the panel further opined:

          By its very nature, the grand jury does not
          consider a full and complete adversarial
          presentation, “and the instructions are not
          made after consideration [and with the
          benefit] of the views of the defense.” State
          v. Schmidt, 213 N.J. Super. 576, 584 (App.
          Div. 1986), rev’d on other grounds, 110 N.J.
          258 (1988).     We do not believe that the
          prosecutor has the obligation on his own
          meticulously to sift through the entire record
          of investigative files to see if some
          combination of facts and inferences might
          rationally sustain a defense of justification.
          Cf. State v. Choice, 98 N.J. 295, 299 (1985).

          [Id. at 343 (alterations in original).]


                                31
    Consequently, “it is only when the facts known to the

prosecutor clearly indicate or clearly establish the

appropriateness of an instruction that the duty of the

prosecution arises.”   Id. at 343-44 (citing Choice, supra, 98

N.J. at 299; State v. Bell, 589 P.2d 517, 518 (Haw. 1978), rev’d

on other grounds, State v. Chong, 949 P.2d 122 (Haw. 1997)); see

also Pressler & Verniero, Current N.J. Court Rules, comment

3.4.2. to R. 3:10-2 (2015).

    The principle stated by the Appellate Division in John

Hogan applies here.    In her motion to dismiss the indictment,

defendant presented no facts that clearly warranted an

instruction on the issue of justification.    She argued only that

she removed the documents for a lawful use sanctioned by Quinlan

-- the prosecution of her civil lawsuit.     There is nothing in

the record of the grand jury proceeding, or in the record before

this Court, that suggests that defendant was motivated by

Quinlan when she took the Board’s documents from its premises.

Indeed, it is unclear that Quinlan had even been decided when

defendant’s alleged misconduct took place.    Moreover,

notwithstanding the fact that defendant’s lawsuit was focused on

her compensation and working conditions, she allegedly removed

confidential student records from the Board’s files.      The

prosecutor had no duty to present to the grand jury a charge of

justification based on Quinlan.

                                  32
    In sum, we agree with the Appellate Division that the trial

court did not abuse its discretion when it concluded that the

State met its burden in the presentation of evidence to the

grand jury, that the State did not withhold clearly exculpatory

evidence from the grand jury, and that the State did not fail to

charge the grand jury as to a justification defense.

                                 IV.

    We next consider defendant’s constitutional and public

policy arguments.   Defendant contends that the trial court’s

denial of her motion to dismiss her indictment violates

principles of due process in two respects:   her prosecution

contravenes the doctrine of fundamental fairness, and as applied

to her case, the official misconduct and theft by unlawful

taking statutes are unconstitutionally vague.   Defendant also

contends that her indictment should be dismissed as inconsistent

with New Jersey’s public policy against employment

discrimination.

                                 A.

    The doctrine of fundamental fairness “‘serves to protect

citizens generally against unjust and arbitrary governmental

action, and specifically against governmental procedures that

tend to operate arbitrarily.’”   Doe v. Poritz, 142 N.J. 1, 108

(1995) (emphasis in original) (quoting State v. Ramseur, 106

N.J. 123, 377 (1987) (Handler, J., dissenting)).     This Court has

                                 33
described this doctrine as “‘an integral part of due process’”

that “‘is often extrapolated from or implied in other

constitutional guarantees.’”   State v. Miller, 216 N.J. 40, 71

(2013) (quoting Oberhand v. Dir., Div. of Taxation, 193 N.J.

558, 578 (2008)); see also State v. Abbati, 99 N.J. 418, 429

(1985) (explaining underpinnings of doctrine).

     The doctrine is applied “‘sparingly’” and only where the

“interests involved are especially compelling”; if a defendant

would be subject “‘to oppression, harassment, or egregious

deprivation,’” it is be applied.     Doe, supra, 142 N.J. at 108

(quoting State v. Yoskowitz, 116 N.J. 679, 712 (1989)

(Garibaldi, J., concurring and dissenting)).    It can be applied

“at various stages of the criminal justice process even when

such procedures were not constitutionally compelled.”     Ibid.

(citations omitted).5   The doctrine’s “primary considerations

should be fairness and fulfillment of reasonable expectations in

the light of the constitutional and common law goals.”




5 Our courts have occasionally applied the doctrine of
fundamental fairness to dismiss an indictment, typically in
settings in which the indictment follows multiple mistrials or
the State attempts to prosecute a defendant several times for
the same conduct. See, e.g., Abbati, supra, 99 N.J. at 435;
State v. Simmons, 331 N.J. Super. 512, 522-24 (App. Div. 2000);
State v. Dunns, 266 N.J. Super. 349, 378-79 (App. Div.), certif.
denied, 134 N.J. 567 (1993).


                                34
Yoskowitz, supra, 116 N.J. at 706 (emphasis omitted) (quoting

State v. Currie, 41 N.J. 531, 539 (1964)).

    Defendant’s as-applied vagueness challenge to the official

misconduct and theft by unlawful taking statutes requires the

Court to determine whether either statute fails “to give

[defendant] ‘fair warning’ that his or her conduct is

prohibited.”   Jenkins v. N.J. Dep’t of Corr., 412 N.J. Super.

243, 257 (App. Div. 2010); see also State v. Lisa, 391 N.J.

Super. 556, 578 (App. Div. 2007), aff’d, 194 N.J. 409, 412

(2008).    “Vagueness ‘is essentially a procedural due process

concept grounded in notions of fair play.”    State v. Lee, 96

N.J. 156, 165 (1984) (quoting State v. Lashinsky, 81 N.J. 1, 17

(1979)).   Here, relying on the opinion of the dissenting

Appellate Division judge, defendant argues that, although the

official misconduct and theft by unlawful taking statutes are

constitutionally precise in other settings, those statutes are

impermissibly vague in her case because they conflict with the

anti-discrimination policies promoted by Quinlan.    See Saavedra,

supra, 433 N.J. Super. at 536-37 (Simonelli, J., dissenting).

    Defendant’s public policy argument substantially restates

her constitutional contentions.    She contends that her

indictment should be dismissed as a matter of public policy

because in Quinlan, this Court “legalized the right of employees

to take confidential documents as a protective measure under the

                                  35
Law Against Discrimination.”    She and NELA argue that her

prosecution chills the assertion of LAD and CEPA claims.

    Defendant’s constitutional and policy arguments are thus

founded upon her interpretation of this Court’s decision in

Quinlan.   To defendant, Quinlan stands for the proposition that

an employee has a legally recognized right to take confidential

employer documents for use in employment discrimination

litigation, and, accordingly, criminal prosecution for that act

is barred by due process principles and public policy.

                                  B.

    Given her invocation of her employment discrimination

lawsuit and this Court’s opinion in Quinlan in support of her

constitutional and public policy arguments, defendant’s civil

lawsuit is a pivotal issue in her criminal appeal.

    Had she chosen to invoke it, the discovery process

prescribed by our court rules would have afforded to defendant a

fair opportunity to seek documents in support of her case.     In

her employment discrimination litigation, defendant was

permitted “discovery regarding any matter, not privileged, which

is relevant to the subject matter involved in [her] pending

action, whether it relates to the claim or defense of the party

seeking discovery or to the claim or defense of any other

party.”    R. 4:10-2(a).   That rule exists to “advance ‘the public

policies of expeditious handling of cases, avoid[] stale

                                  36
evidence, and provid[e] uniformity, predictability and security

in the conduct of litigation.’”    Pressler & Verniero, supra,

comment 1 on R. 4:10-2 (quoting Zaccardi v. Becker, 88 N.J. 245,

252 (1982)).

    Even before filing her complaint, defendant had the right

to file a verified petition seeking to “preserve any evidence or

to inspect documents or property or copy documents pursuant to

[Rule] 4:18-1”; upon an appropriate showing, a court order could

have been entered compelling the Board to preserve evidence.     R.

4:11-1(a), (c); see Gilleski v. Cmty. Med. Ctr., 336 N.J. Super.

646, 655 (App. Div. 2001) (holding “any person desiring to

preserve evidence prior to institution of an action may seek

such relief by verified petition pursuant to [Rule] 4:11-1(a)”).

The rule is “intended for cases in which there exist[s] a

genuine risk that testimony w[ill] be lost or evidence destroyed

before suit c[an] be filed and in which an obstacle beyond the

litigant’s control prevents suit from being filed immediately.”

In re Hall ex rel. Hall, 147 N.J. 379, 385 (1997).     Accordingly,

had defendant been able to substantiate her contention that the

Board might discard or destroy evidence before she filed suit,

she could have obtained relief on an emergent basis.

    After her complaint was filed, defendant had access to such

discovery methods as demands for the production of documents, R.

4:18-1, interrogatories, R. 4:17-1 to -8, and deposition notices

                                  37
served upon organizations, R. 4:14-2, among many others.      Had

defendant’s requests for discovery been unreasonably opposed,

she could have filed motions to compel discovery, obtain court-

ordered production of documents and impose sanctions.    See R.

4:23-1, -2, -5.   In the event that a party is found to have

committed spoliation of evidence, a range of sanctions is

available under both our common law and Court Rules.    See

Jerista v. Murray, 185 N.J. 175, 201-02 (2005); see also

Pressler & Verniero, supra, comment 3 on R. 4:23-2 (explaining

range of consequences for spoliation including discovery

sanctions under Rule 4:23-2(b)).

    Had defendant sought the documents at issue pursuant to our

court rules, the Law Division judge handling her application

would have been in a position to make two important

determinations.   First, the judge could have reviewed the

discovery sought against the backdrop of the statutory and

common law claims that defendant asserted and ascertained the

relevance of that discovery to defendant’s case.    With a full

record, which is unavailable on this appeal, the judge could

have assessed the relevance of documents from the Board’s

student files to defendant’s claims.

    Second, student privacy concerns raised by the disclosure

of the documents could have been addressed by a trial judge

equipped to impose a range of available remedies.   If, as the

                                38
Board and NJSBA contend, the disclosure of the records at issue

implicated the individual privacy rights of students and

parents, violating federal and state privacy laws and imperiling

the North Bergen schools’ federal funding, the Law Division

judge could have addressed those issues.   The judge could have

denied the proposed discovery, limited that discovery by

redaction of private information, or imposed a protective order

restricting access to the documents.   See R. 4:10-2, -3.

    Thus, our court rules provided defendant the opportunity to

obtain from the Board relevant documents in support of her civil

claim, subject to procedural safeguards and judicial oversight.

                                C.

    This Court’s decision in Quinlan did not endorse self-help

as an alternative to the legal process in employment

discrimination litigation.   Nor did Quinlan bar prosecutions

arising from an employee’s removal of documents from an

employer’s files for use in a discrimination case, or otherwise

address any issue of criminal law.   Instead, the Court analyzed

one aspect of the substantive legal standard governing LAD

retaliation claims under N.J.S.A. 10:5-12(d):   whether an

employee’s conduct in taking documents from his or her employer

for use in a discrimination claim -- and in using those

documents in pursuit of that claim -- is protected activity for

purposes of the employee’s claim when the employer takes adverse

                                39
employment action against the employee.    See Quinlan, supra, 204

N.J. at 267-69.

       Quinlan arose from a discrimination claim asserted by a

human resources executive, who contended that her employer

discriminated against her on the basis of her gender.      Id. at

246-49.    Without advising her attorney and in an alleged

violation of the employer’s confidentiality policy, the

plaintiff-employee reviewed and copied files, some containing

other employees’ personal and financial information.    Id. at

246-48.6   Most of the documents were eventually produced in

discovery to the defendant employer.    Id. at 248.   Thereafter,

the plaintiff-employee copied and supplied to her attorneys her

supervisor’s performance evaluation, and her counsel used that

evaluation at the deposition of the supervisor.    Ibid.

       Quinlan’s employer terminated her employment, and she

amended her complaint to assert a retaliation claim under the

LAD.   Id. at 248-49.   The trial court held that Quinlan could

recover on her LAD retaliation claims if her employment was

terminated because her counsel used the performance evaluation

to prosecute her lawsuit, and a jury returned a verdict in her




6 The Court’s opinion in Quinlan cites no evidence that the
plaintiff in that case removed her employer’s original file
documents. The documents taken by the plaintiff in that case
were apparently photocopied, and the originals remained on the
employer’s premises. Id. at 248-49.
                                 40
favor.    Id. at 250-51.   The Appellate Division reversed and

remanded for a new trial.    Id. at 255.

    This Court reversed the judgment of the Appellate Division.

The majority premised its holding on a portion of the LAD’s

anti-retaliation provision, which prohibits retaliation against

a plaintiff because he or she “has . . . assisted in any

proceeding” under the LAD.    Id. at 258-60 (citing N.J.S.A. 10:5-

12(d)).    It acknowledged an employee’s duty to safeguard

confidential information that he or she gains through the

employment relationship and to refrain from sharing that

information with third parties.     Id. at 260-61.   It held,

however, that the employer’s interest must be balanced against

the employee’s right to be free from unlawful discrimination.

Id. at 261.

    In so holding, the Court expanded upon the standard set

forth by a federal Court of Appeals applying Title VII, 42

U.S.C.A. § 2000e-3(a), in Niswander v. Cincinnati Ins. Co., 529

F.3d 714, 719-20 (6th Cir. 2008).      Quinlan, supra, 204 N.J. at

267-71.    It adopted “a flexible, totality of the circumstances

approach” for courts to consider in assessing an employee’s

conduct for purposes of his or her LAD retaliation claim.        Id.

at 269.    Under that standard, a court evaluates a number of

factors:   how the employee gained “possession of, or access to,

the document”; “what the employee did with the document”; “the

                                  41
nature and content of the particular document”; whether the

employee violated “a clearly identified company policy on

privacy or confidentiality”; “the circumstances relating to the

disclosure of the document”; “the strength of the employee’s

expressed reason for copying the document”; the broad remedial

purposes of our laws against discrimination; and “the effect, if

any, that either protecting the document or permitting it to be

used will have upon the balance of employers’ and employees’

legitimate rights.”    Id. at 269-71.

       The Court acknowledged employers’ concerns that by virtue

of its holding, “employers will be powerless to discipline

employees who take documents when they are not privileged to do

so.”   Id. at 272.   Dismissing those concerns, the Court

cautioned:

           On the contrary, employees may still be
           disciplined for that behavior and even under
           the   best   of   circumstances,   run   the
           significant risk that the conduct in which
           they engage will not be found by a court to
           fall within the protection our test creates.
           The risk of self-help is high and the risk
           that a jury will reject a plaintiff’s
           argument that he or she was fired for using
           the document, rather than for finding it and
           taking it in the first place, will serve as
           an important limitation upon any realization
           of the fears that the employers have
           expressed to the Court.

           [Ibid.]




                                 42
    The Court reinstated Quinlan’s LAD retaliation verdict, and

further held that the jury’s award of punitive damages was

supported by the evidence.     Id. at 273-75.

    Thus, the balancing test of Quinlan may be an important

measure in cases involving the retaliation provision of the LAD,

N.J.S.A. 10:5-12(d), when the employee’s conduct in taking or

using confidential documents allegedly provoked the employer to

take retaliatory action.     Id. at 269.   The Court never

suggested, however, that its ruling in Quinlan extends to any

question of criminal law.    It expressly recognized that

“employers legitimately expect[] that they will not be required

to tolerate acts amounting to self-help or thievery.”        Id. at

245-46.   In short, 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, the fundamental fairness doctrine, premised

upon the reasonable expectations of those who are subject to the

law with respect to the legality of their conduct, cannot render

the official misconduct and theft by unlawful taking statutes

unconstitutional as applied to defendant.       Nor are those laws

unconstitutionally vague as they pertain to defendant.       Each

statute defines the conduct that it proscribes and provides

ample notice of its terms.    We concur with the Appellate

                                  43
Division majority that, as applied in this case, the official

misconduct and theft by unlawful taking statutes meet due

process standards.

    Finally, defendant’s indictment is not defective on the

ground that it violates public policy.    New Jersey has long-

expressed a strong public policy against discrimination.

Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 600 (1993) (citing

Fuchilla v. Layman, 109 N.J. 319, 335, cert. denied, 488 U.S.

826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988)).    That policy is

reflected in the Legislature’s recognition of the causes of

action codified in the LAD and CEPA.     N.J.S.A. 10:5-12; N.J.S.A.

34:19-3; see also Battaglia v. United Parcel Serv., Inc., 214

N.J. 518, 549, 555 (2013) (noting both LAD and CEPA promote

strong state public policies).

    In the setting of civil litigation, New Jersey’s anti-

discrimination policy is promoted by the assertion of statutory

and common law anti-discrimination claims, by the vigorous

pursuit of relevant information in discovery, and by the

presentation of evidence at trial.    To date, the Legislature has

not determined that in order to effect the State’s anti-

discrimination policy, employment discrimination litigants

should be immunized from prosecution for surreptitiously taking

employer documents to support their claims.    Such litigants

remain subject to our criminal laws.

                                 44
    Accordingly, no constitutional argument or consideration of

public policy compels the dismissal of defendant’s indictment.

The trial court did not abuse its discretion when it declined to

dismiss the indictment on those grounds.

                               IV.

    Notwithstanding the inapplicability of Quinlan to criminal

proceedings, defendant 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.

    Our Code recognizes justification as an affirmative defense

“[i]n any prosecution based on conduct which is justifiable

under this chapter.”   N.J.S.A. 2C:3-1(a).   N.J.S.A. 2C:3-2(b)

generally addresses the defenses based on justification:

          Conduct which would otherwise be an offense is
          justifiable by reason of any defense of
          justification provided by law for which
          neither the code nor other statutory law
          defining the offense provides exceptions or
          defenses dealing with the specific situation
          involved and a legislative purpose to exclude
          the justification claimed does not otherwise
          plainly appear.

          [N.J.S.A. 2C:3-2(b).]

    Distinct from the general justification provision, as a

form of justification in prosecutions for theft, “New Jersey has

long recognized a claim[]of[]right defense.”   State v. Mejia,

                                  45
141 N.J. 475, 497 (1995) (citing State v. Mayberry, 52 N.J. 413,

431 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L.

Ed. 2d 593 (1969)), overruled on other grounds, State v. Cooper,

151 N.J. 326, 378 (1997).   The Legislature codified the defense

in N.J.S.A. 2C:20-2(c), which mirrors the language of the Model

Penal Code § 223.1.   See Model Penal Code and Commentaries, §

223.1(3) & comment 4, at 126, 151 & n.79 (1980).7   Our Code

provides:

            (c) Claim of right.   It is an affirmative
            defense to prosecution for theft that the
            actor:

                (1)   Was unaware that the property or
                service was that of another;

                (2) Acted under an honest claim of right
                to the property or service involved or
                that he had a right to acquire or dispose
                of it as he did; or

                (3) Took property exposed for sale,
                intending to purchase and pay for it
                promptly, or reasonably believing that
                the owner, if present, would have
                consented.

            [N.J.S.A. 2C:20-2(c)(1)-(3); see also Mejia,
            supra, 141 N.J. at 497-98.]

     “‘[T]he Code adopts the position that a genuine belief in

one’s legal right shall in all cases be a defense to theft’ when


7 “When a provision of the Code is modeled after the [Model Penal
Code], it is appropriate to consider the [Model Penal Code] and
any commentary to interpret the intent of the statutory
language.” State v. Robinson, 217 N.J. 594, 606 (2014)
(citation omitted).
                                 46
credible evidence supports the defense.”       Mejia, supra, 141 N.J.

at 497 (quoting II New Jersey Code: The Final Report of the New

Jersey Law Commission § 2C:20-2, commentary at 221-22 (1971));

accord Model Penal Code, supra, comment 4(b) to § 223.1, at 157

(“[A] genuine belief in one’s legal right should in all cases be

a defense to theft.”).     The defense is not restricted to cases

in which the defendant asserts a belief that the property at

issue is his or her own.    State v. Ippolito, 287 N.J. Super.

375, 381 (App. Div.) (citing Mejia, supra, 141 N.J. at 496),

certif. denied, 144 N.J. 585 (1996); see also Mejia, supra, 141

N.J. at 497 (“[D]efendant entitled to defense because he

honestly but incorrectly believed he was assisting rightful

owner in removing television set.” (citing State v. Taplin, 230

N.J. Super. 95, 100 (1988)).    Subsection (c)(2) applies where

“the defendant may know that the property belongs to another but

where he believes that he is nevertheless entitled to behave the

way he does.”   Model Penal Code, supra, comment 1 to § 223.1, at

155.   The “claim of right defense is not premised on a failure

of proof, but on justification.”       Mejia, supra, 141 N.J. at 496

(citation omitted).   Thus, as a justification, it “goes beyond

merely negating an element of a theft . . . charge.”      Ippolito,




                                  47
supra, 287 N.J. Super. at 381 (citing Mejia, supra, 141 N.J. at

496).8

     We concur with the Appellate Division majority in this case

that, if warranted by the evidence at trial, a jury charge with

respect to a justification based on a claim of right would be

appropriate in this case.   Saavedra, supra, 433 N.J. Super. at

520-21 (quoting Model Jury Charge (Criminal), “Claim of Right

Defense to Theft Offenses” (Nov. 4, 1996)).   Subject to the

trial court’s ruling on a full record, the evidence may also

warrant a jury charge with respect to justification as a defense

to a charge of official misconduct under N.J.S.A. 2C:30-2.

     Although the Quinlan balancing test for LAD retaliation

cases does not govern the availability of a claim of right or

other justification in a criminal prosecution, evidence that

would be relevant to that test in a civil case may be considered

if a jury evaluates defendant’s claim of right defense or other

defense of justification.   See Quinlan, 204 N.J. at 268-71.


8 Although the defense of justification under N.J.S.A. 2C:3-1(a)
may be asserted as to both charges against defendant if the
record supports it, the specific claim of right affirmative
defense authorized by N.J.S.A. 2C:20-2 expressly relates to a
“prosecution for theft.” N.J.S.A. 2C:20-2. Given the limited
record before the Court, we make no determination as to whether
a jury’s finding that defendant acted with a “claim of right”
under N.J.S.A. 2C:20-2 would affect not only the charge of theft
by unlawful taking of public documents under N.J.S.A. 2C:20-3
and N.J.S.A. 2C:20-2(b)(2)(g), but the charge of official
misconduct under N.J.S.A. 2C:30-2(a) as well by virtue of the
nexus between the official misconduct and theft charges.
                                48
Should this matter proceed to trial, the jury may consider such

issues as the contents of the documents, the presence or absence

of confidentiality policies, the privacy interests at stake, the

circumstances under which defendant gained access to the

documents, the extent to which she disclosed them, and her

reasons for taking an original or copying a document rather than

simply seeking it in discovery.    Ibid.   With a complete factual

record, the trial court will be in a position to instruct the

jury regarding a claim of right or other justification as a

defense to the State’s allegations.

    Contrary to the suggestion of the dissent, our discussion

of factors that may be considered if a claim of right defense is

submitted to a petit jury in this case does not constitute an

effort to “clarify[]” the test set forth in Quinlan.    Post at __

(slip op. at 7-9).   In this appeal, we review a motion to

dismiss a criminal indictment, not a cause of action premised

upon the LAD or CEPA.   The import of Quinlan in employment

discrimination litigation is not before the Court.     Accordingly,

we do not respond to our dissenting colleague’s comments about

the holding of Quinlan, and confine our analysis to the issues

of this case.

                                  V.

    The judgment of the Appellate Division is affirmed, and the

matter is remanded to the trial court.

                                  49
     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.




                               50
                                         SUPREME COURT OF NEW JERSEY
                                           A-68 September Term 2013
                                                    073793

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

          v.

IVONNE SAAVEDRA,

    Defendant-Appellant.

    JUSTICE ALBIN, dissenting.

    A grand jury was impanelled to determine whether to return

criminal charges against Ivonne Saavedra for the unlawful taking

of documents from her employer, the North Bergen Board of

Education.     That Saavedra removed confidential documents from

the Board’s office was made clear to the grand jury.    Saavedra’s

motive for removing those documents, however, was not disclosed

to the grand jury because the prosecutor blocked a grand juror’s

highly relevant questions posed to a witness.     As a result, the

grand jury was not told that Saavedra gave those documents to

her attorney for the purpose of pursuing against the Board an

employment discrimination lawsuit based on our Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1

to -8.   Nor was the grand jury told that Saavedra’s attorney --

after he filed the lawsuit -- provided the documents to the


                                   1
Board’s attorney in response to a discovery request.     The

prosecutor led the grand jury to believe that Saavedra had

spirited away the documents for some nefarious reason, and that

the Board learned of the “theft” through its own investigation.

    I cannot agree with the majority that Saavedra suffered no

harm as a result of the prosecutor’s suppression of relevant

information sought by the grand jury.     The grand jury was

entitled to answers to critical questions posed to a witness.

The prosecutor subverted the grand jury’s independence and, in

doing so, denied Saavedra her right to a fair grand jury

presentation.   Unlike the majority, I would dismiss the

indictment and require the prosecutor to re-present the matter

to a new grand jury.

    In addition, the majority concedes that a claim-of-right

defense is available to Saavedra.     A jury must decide whether

Saavedra’s taking of confidential documents for the purpose of

pursuing a LAD or CEPA action falls within the realm of that

defense.   The grand jury, however, was never charged on that

defense.   Of equal concern is that the state of our law

concerning the claim-of-right defense at the time of Saavedra’s

alleged offense was hopelessly confusing as a result of this

Court’s decision in Quinlan v. Curtiss-Wright Corp., 204 N.J.

239, 269-71 (2010).    The majority’s decision makes an attempt

but does not succeed in clarifying Quinlan’s amorphous test.       In

                                  2
the end, a reasonable person will not know in advance the line

separating lawful from unlawful conduct.

    I therefore respectfully dissent.

                                  I.

                                  A.

    In November 2009, Saavedra filed a civil action against her

employer, the North Bergen Board of Education, alleging

violations of LAD and CEPA.    In connection with the filing of

this employment-discrimination lawsuit, Saavedra removed

confidential documents from the Board’s office without

permission.     Approximately a year and a half after the filing of

Saavedra’s lawsuit, her counsel provided the confidential

documents to the Board’s litigation attorney “in response to

[the Board’s] requests for all documents in [defendant’s]

possession which may include confidential and/or privileged

information.”    The Board’s litigation attorney alerted the

Board’s general counsel, Jack Gillman, about the documents

received in discovery.    Gillman then contacted the Hudson County

Prosecutor’s Office concerning the documents received during

civil discovery.

    Gillman was the only witness called by the prosecutor to

testify before the grand jury.    In response to questioning by

the prosecutor, Gillman testified that Saavedra had 367 Board

documents in her possession, of which at least 69 were

                                   3
originals.     He explained the highly confidential nature of some

of the documents.     He also testified that she was not permitted

to take any of those documents from the Board’s office.

    After the prosecutor completed his questioning, a grand

juror asked:    “When did she take out these documents?    What’s

she going to do with them?     The documents, what she do with

them?”     The prosecutor responded:   “I don’t believe Mr. Gillman

can speculate as to what she was going to do with the actual

documents.”

    However, Gillman did not have to speculate about what

Saavedra had done with the documents.      He knew, and so did the

prosecutor.     Gillman told the grand jury earlier that Saavedra

had a lawsuit against the Board, and cryptically stated that

“[a]nother attorney . . . had received [highly confidential,

very sensitive] documents in discovery.”      But Gillman did not

tell the grand jury that Saavedra gave the documents to the

Board in discovery.     The grand juror’s perceptive question would

have disclosed that Saavedra’s motive was not that of a burglar

but that of a plaintiff pursuing an employment discrimination

lawsuit.     Saavedra was not hiding the documents or concealing

the truth.     The prosecutor had no authority to censor

information flowing to the grand jury -- no authority to sustain

his own objection to a legitimate and relevant question posed by

a grand juror.     Even if the information possessed by Gillman

                                   4
could be classified as hearsay, it was admissible before the

grand jury.    See State v. Thrunk, 157 N.J. Super. 265, 278 (App.

Div. 1978) (noting that hearsay evidence is admissible before

grand jury).

                                  B.

    “The grand jury is a judicial, investigative body, serving

a judicial function; it is an arm of the court, not a law

enforcement agency or an alter ego of the prosecutor’s office.”

In re Grand Jury Appearance Request by Loigman, 183 N.J. 133,

141 (2005).    It is “a bulwark against hasty and ill-

conceived ‘prosecutions and continues to lend legitimacy to our

system of justice by infusing it with a democratic ethos.’”      Id.

at 139 (quoting State v. Fortin, 178 N.J. 540, 638 (2004)).

    The grand jury has “extraordinary powers,” including “the

power to investigate upon its own suggestion.”      Id. at 141-42

(internal citations and quotation marks omitted).      For example,

the grand jury “can direct the prosecutor to subpoena witnesses

and evidence.”   Id. at 142.    Grand jurors, moreover, “have the

right” to ask questions of witnesses.      State v. White, 326 N.J.

Super. 304, 314 (App. Div. 1999), certif. denied, 163 N.J. 397

(2000).   Indeed, the assignment judge instructs grand jurors

that they have that right.     Ibid.   “[L]egitimate inquiries of a

grand juror should not be frustrated under the guise of

screening” by a prosecutor.    Ibid.; see also 31 New Jersey

                                  5
Practice, Criminal Practice and Procedure § 10:20, at 469

(Leonard N. Arnold) (2011-12) (stating that prosecutor may

“screen questions that grand jurors wish to propound to

witnesses so long as this does not infringe on the grand jury’s

independence”).

    The bottom line is that a prosecutor cannot thwart a grand

jury’s effort to secure relevant evidence that will bear on its

charging decision.   The prosecutor’s role is to assist the grand

jury, and “‘to see that justice is done.’”     In re Loigman,

supra, 183 N.J. at 144 (quoting State v. Frost, 158 N.J. 76, 83

(1999)).   A prosecutor must scrupulously honor the grand jury’s

independence, particularly because the prosecutor operates in

that forum without the oversight of a judge or the check of a

defense attorney.    Id. at 144-45.

    This case does not implicate our jurisprudence on the

prosecutor’s affirmative duty to present exculpatory evidence --

a duty that attaches regardless of a grand juror’s inquiries.

State v. Hogan, 144 N.J. 216, 236 (1996).     This case simply

involves the fundamental right of a grand juror to ask questions

intended to elicit relevant information.     By suppressing a grand

juror’s legitimate questions and rationing the evidence, the

prosecutor allowed a distorted picture of Saavedra’s motives.

The grand jury had a right to the information it requested, and



                                 6
Saavedra had the “right to a fair grand jury presentation.”          See

In re Loigman, supra, 183 N.J. at 145.

    I would dismiss the indictment and allow the prosecutor to

present the matter again to a grand jury.

                                  II.

    I agree with the majority that Saavedra is entitled to

assert a claim-of-right defense -- a justification defense -- at

trial.   I also would require that the grand jury be charged on

such a defense, provided evidence suggests that Saavedra took

the documents under a lawful claim of right for the purpose of

pursuing a LAD and CEPA action.       See 31 Criminal Practice and

Procedure, supra, § 10:20, at 469 (noting prosecutor’s

obligation to charge on “the gist of [an] exonerating defense or

justification”).    Any reliance on a justification defense must

relate to the time Saavedra is alleged to have committed the

offense of theft.    See State v. Perez, 220 N.J. 423, 438 (2015)

(stating that Ex Post Facto Clause of the U.S. Constitution

prohibits law that “deprives one charged with crime of any

defense available . . . at the time when the act was committed”

(internal quotation marks omitted)).      We cannot apply

retroactively a newly minted justification defense that was not

on the books during the relevant time period if it disadvantages

Saavedra.   See State v. Natale, 184 N.J. 458, 491 (2005)

(stating that retrospective application of law that

                                  7
disadvantages defendant violates Ex Post Facto Clause).     A court

must identify the prevailing law governing Saavedra’s conduct at

the time she took the documents from the Board’s office.

    In Quinlan, supra, 204 N.J. at 269-71, the Court

articulated a seven-factor totality-of-the-circumstances test in

deciding whether the taking of an employer’s documents is

protected activity under LAD.   That test hardly places a

reasonable person on notice of the line demarcating lawful from

unlawful conduct.   The test asks the trier of fact to determine:

(1) how the employee came to possess the document; (2) “what the

employee did with the document”; (3) “the nature and content of

the particular document in order to weigh the strength of the

employer’s interest in keeping the document confidential”; (4)

whether the employee violated a “clearly identified company

policy” on confidentiality; (5) “the circumstances relating to

the disclosure of the document to balance its relevance against

considerations about whether its use or disclosure was unduly

disruptive to the employer’s ordinary business”; (6) “the

strength of the employee’s expressed reason for copying the

document”; and (7) how the court’s decision in the particular

case “bears upon” the “broad remedial purposes” of LAD and “the

effect, if any, that either protecting the documents by

precluding its use or permitting it to be used will have upon



                                 8
the balance of legitimate rights of both employers and

employees.”   Id. at 269-71.

    The Quinlan factors do not define a clear and

understandable claim-of-right defense in civil or criminal cases

because the standard is too amorphous, too wide open -- too

susceptible to various inconsistent outcomes.   Employees need

standards they can grasp at the time they make decisions rather

than later, when a court is passing judgment on their conduct.

    The majority holds that “the Quinlan balancing test for LAD

retaliation cases does not govern the availability of a claim of

right or other justification in a criminal prosecution.”   Ante

at ___ (slip op. at 48).   However, the majority’s valiant effort

to make the claim-of-right defense sufficiently clear -- to give

fair notice of the limits placed on an employee’s conduct --

also falls short.   The majority states that, in considering a

claim-of-right defense, “the jury may consider such issues as[:]

         [1] the contents of the documents,

         [2] the presence or absence of confidentiality
         policies,

         [3] the privacy interests at stake,

         [4] the circumstances under which defendant
         gained access to the documents,

         [5] the extent to which she disclosed them,
         and




                                 9
          [6] her reasons for taking an original or
          copying a document rather than simply seeking
          it in discovery.

          [Ante at ___ (slip op. at 48).]

    The majority’s approach suffers from the same shortcomings

as the Quinlan approach in a LAD case -- it does not give

reasonable and clear notice of what the law proscribes before an

employee acts.   The law should not place whistleblowers in a

position where they are playing Russian roulette with their

careers or their liberty.    Like the Quinlan standard, the

majority’s new approach is overly complicated and too open to

differing interpretations.

    Furthermore, the majority has not identified whether

reasonable persons in 2009 would have anticipated the standard

it now enunciates.

    To the extent there is any distance between the standards

set forth in Quinlan and here, it may be possible that an

employee taking confidential documents from an employer’s files

to pursue a LAD claim will win a multi-million dollar

discrimination lawsuit but serve time in prison for committing a

crime.   The potential for such discordant results will not bring

credit to our justice system.

                                III.

    At least going forward, I favor a much simpler approach to

claim-of-right defenses in both civil and criminal cases, the

                                 10
one I articulated in my dissent in Quinlan.   Under my template,

an employee would be permitted to take a confidential document

to an appropriate authority only if the document “clearly

indicates that the employer was engaged in illegal conduct.”

See Quinlan, supra, 204 N.J. at 282 (Albin, J., dissenting).

Moreover, an employee with a potential LAD or CEPA claim may

“have the right to preserve a document that he or she reasonably

believes an employer is about to destroy or alter.”   Ibid.    On

the other hand, when an employee has an ongoing lawsuit and no

reasonable fear that the employer will destroy relevant

evidence, the taking of confidential documents by an employee

cannot be justified.    Ibid.

                                IV.

    In summary, I would dismiss the indictment because the

prosecutor undermined the independence of the grand jury by

interfering with its ability to elicit relevant information

bearing on the decision whether to return an indictment.    If the

Quinlan standard was the reigning law for claim-of-right

defenses, then, like Judge Simonelli, the dissenting judge in

the Appellate Division, State v. Saavedra, 433 N.J. Super. 501,

536 (2013) (Simonelli, J.A.D., dissenting), I have doubts that

the law gave clear notice of the line demarcating criminal from

non-criminal conduct.   Last, if the documents taken by Saavedra



                                11
were irrelevant to her LAD action, then the claim-of-right

defense should not be available.

    Accordingly, I respectfully dissent.




                               12
                  SUPREME COURT OF NEW JERSEY

NO.       A-68                                   SEPTEMBER TERM 2013

ON APPEAL FROM             Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,

                 v.

IVONNE SAAVEDRA,

      Defendant-Appellant.




DECIDED                June 23, 2015
                  Chief Justice Rabner                      PRESIDING
OPINION BY                  Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY            Justice Albin


                                    AFFIRM AND
 CHECKLIST                                                DISSENT
                                     REMAND
 CHIEF JUSTICE RABNER                    X
 JUSTICE LaVECCHIA                       X
 JUSTICE ALBIN                                                  X
 JUSTICE PATTERSON                        X
 JUSTICE FERNANDEZ-VINA                   X
 JUSTICE SOLOMON                          X
 JUDGE CUFF (t/a)                         X
 TOTALS                                   6                     1
