                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION


                                SUPERIOR COURT OF NEW JERSEY
                                APPELLATE DIVISION
                                DOCKET NO. A-4816-14T2

PAUL KAMIENSKI,

     Plaintiff-Appellant/
     Cross-Respondent,              APPROVED FOR PUBLICATION

v.                                        August 16, 2017

                                       APPELLATE DIVISION
STATE OF NEW JERSEY,
DEPARTMENT OF THE
TREASURY,

     Defendant-Respondent/
     Cross-Appellant.

________________________________________________________________

         Argued November 29, 2016 – Decided August 16, 2017

         Before Judges Messano, Espinosa and Guadagno.

         On appeal from Superior Court of New Jersey,
         Law Division, Mercer County, Docket No. L-
         2106-10.

         Timothy J. McInnis (McInnis Law) of the New
         York bar, admitted pro hac vice, argued the
         cause for appellant/cross-respondent (Law
         Office of Jerome A. Ballarotto, and Mr.
         McInnis, attorneys; Mr. Ballarotto and Mr.
         McInnis, on the brief).

         Peter D. Wint, Assistant Attorney General,
         argued   the  cause   for  respondent/cross-
         appellant (Christopher S. Porrino, Attorney
         General, attorney; Melissa Dutton Schaffer,
         Assistant Attorney General, of counsel; Mr.
         Wint, on the briefs).
     The opinion of the court was delivered by

ESPINOSA, J.A.D.

     This case presents us with questions of first impression

regarding   the   interpretation   of    provisions     of    the   Mistaken

Imprisonment   Act   (Act),   N.J.S.A.   52:4C-1   to   -7,    relating      to

eligibility, the burden of proof, damages and "reasonable attorney

fees" recoverable under the Act.

     Plaintiff was charged in a single indictment and convicted

of two counts of purposeful murder, felony murder, conspiracy to

possess cocaine with intent to distribute and related offenses.

His convictions for murder and felony murder were set aside after

his petition for habeas corpus was granted.         His drug conspiracy

conviction remained undisturbed.         Plaintiff was released from

prison and commenced this action against defendant, State of New

Jersey, Department of the Treasury (State), under the Act, seeking

more than $6,000,000 in damages and $1 million in attorney fees.

Plaintiff's appeal from the $433,230 judgment in his favor and the

State's   cross-appeal   present   us    with   questions     of    statutory

interpretation, specifically (1) whether plaintiff was ineligible

under N.J.S.A. 52:4C-6 because he was not an "innocent person" due

to his drug conspiracy conviction, and (2) whether the decision

granting plaintiff's habeas corpus petition satisfied his burden

under N.J.S.A. 52:4C-3(b) to establish by clear and convincing

                                   2                                  A-4816-14T2
evidence "he did not commit the crime for which he was convicted"

as a matter of law.   Because we conclude a remand is necessary,

we also address how damages should be calculated under the Act

prior to its 2013 amendment1 and the reasonable attorney fees that

may be recovered under N.J.S.A. 52:4C-5(b) to provide guidance to

the trial court in the event such issues are reached on remand.

     To recover under the Act, a claimant must

          establish   the   following   by   clear   and
          convincing evidence:

               a. That he was convicted of a crime and
          subsequently   sentenced   to  a   term   of
          imprisonment, served all or any part of his
          sentence; and

               b. He did not commit the crime for which
          he was convicted; and

               c. He did not commit or suborn perjury,
          fabricate evidence, or by his own conduct
          cause or bring about his conviction. Neither
          a confession or admission later found to be
          false shall constitute committing or suborning
          perjury, fabricating evidence, or causing or
          bringing about his conviction under this
          subsection; and

               d. He did not plead guilty to the crime
          for which he was convicted.

          [N.J.S.A. 52:4C-3.]


1
    Because plaintiff was released from prison prior to the
amendment of the Act in 2013, the Act as adopted in 1997 applies.
N.J.S.A. 52:4C-7.   References to the Act as originally adopted
will be made to L. 1997, c. 227.


                                3                          A-4816-14T2
                                       I.

     In November 1988, a jury convicted plaintiff of conspiracy

to possess cocaine with intent to distribute, two counts of first-

degree murder, and one count of felony murder.                  The trial judge

entered a judgment of acquittal, notwithstanding the verdict, in

favor   of   plaintiff    on    the   murder    and    felony    murder   counts.

Following appeal, we reinstated the murder convictions.                   State v.

Kamienski, 254 N.J. Super. 75 (App. Div.), certif. denied, 130

N.J. 18 (1992).       Plaintiff was resentenced and received two life

sentences,    with     thirty    years       parole    ineligibility,      and     a

consecutive    flat      twelve-year     term     on    the     drug   conspiracy

conviction.

     Plaintiff filed a habeas corpus petition, challenging only

his murder convictions.         The United States District Court denied

his petition; the Court of Appeals for the Third Circuit reversed

and ordered his petition be granted, stating, "no reasonable juror

could conclude that the evidence admitted against [plaintiff] at

his trial established that he was guilty of murder or felony murder

beyond a reasonable doubt."            Kamienski v. Hendricks, 332 Fed.

Appx. 740, 740-41 (3rd Cir. 2009), cert. denied, 558 U.S. 1147,

130 S. Ct. 1168, 175 L. Ed. 2d 972 (2010).             Plaintiff was released

from prison in June 2009, after serving more than twenty years.

     Plaintiff filed a verified complaint for compensation under

                                         4                                 A-4816-14T2
the   Act,   seeking   $5,913,671.30            in    damages      and    $1,000,000      in

attorney fees and costs incurred in his initial defense on the

charges at trial and all subsequent proceedings.                            The damages

sought   represented        the    amount       of    the    adjusted      gross    income

plaintiff earned in the year prior to his incarceration ($143,307)

multiplied by the number of years he was incarcerated.

      The State moved to dismiss the complaint, arguing plaintiff's

drug conspiracy conviction rendered him ineligible for recovery

pursuant to N.J.S.A. 52:4C-6(a).                Plaintiff moved for declaratory

relief, asking the court to adopt his proposed interpretation of

the Act.      The trial judge denied both the State's motion and

plaintiff's motion for declaratory relief.                          The court denied

plaintiff's motion for reconsideration and determined further that

"reasonable attorney fees" under N.J.S.A. 52:4C-5(b) were limited

to fees incurred in the compensation action.

      Plaintiff     moved    for    summary          judgment,     contending      he   was

entitled     to   compensation      under       the    Act    as   a     matter    of   law.

Paragraph 4 of the Statement of Material Facts submitted pursuant

to Rule 4:46-2(a) states: "Plaintiff did not commit the murder

crimes for which he had been convicted."                     The only support in the

record cited for that statement is "March 4, 2011 hearing,"2 the


2
   Pursuant to Rule 4:46-2(a), plaintiff was required to support
this statement of material fact "with a citation to the portion

                                            5                                      A-4816-14T2
date of the trial court's decision denying the State's motion to

dismiss.   In opposition, the State admitted, "the United States

Court of Appeals for the Third Circuit determined that there was

insufficient evidence to support convictions of murder against the

plaintiff" and asserted he failed to establish, by clear and

convincing evidence, that he did not commit the murders.

     The   trial   court   granted    plaintiff's   motion   for   summary

judgment   and   awarded   him   $343,000.    Plaintiff's    request    for

reasonable attorney fees, initially denied without prejudice, was

later granted after a certification of services was submitted,

resulting in an award of $90,230.

                                     II.

     In his appeal, plaintiff argues the trial court erred in

interpreting how damages are to be calculated and the scope of

reasonable attorney fees under the Act, N.J.S.A. 52:4C-5(a)-(b).

In its cross-appeal, the State argues the trial court erred in

interpreting N.J.S.A. 52:4C-6(a), finding plaintiff was not barred

from recovery under the Act.          The State also argues the trial



of the motion record establishing the fact or demonstrating that
it is uncontroverted," and such "citation shall identify the
document and shall specify the pages and paragraphs or lines
thereof or the specific portions of exhibits relied on." Plainly,
plaintiff's citation did not comply with this rule, which alone,
provides grounds for denying summary judgment. Ibid.


                                      6                            A-4816-14T2
court erred in granting summary judgment to plaintiff, based upon

a misinterpretation of N.J.S.A. 52:4C-3(b).

      The interpretation of a statute is an issue of law, which we

review de novo.    D.W. v. R.W., 212 N.J. 232, 245-46 (2012).          Our

"fundamental   objective . . .    is   to   identify   and   promote   the

Legislature's intent."     Parsons ex rel. Parsons v. Mullica Twp.

Bd. of Educ., 226 N.J. 297, 307 (2016).          We look first to the

"plain language chosen by the Legislature."       State v. Gandhi, 201

N.J. 161, 176 (2010). "If the statutory language is clear and

unambiguous, and susceptible to only one interpretation, courts

should apply the statute as written without resort to extrinsic

interpretive aids."     In re Passaic Cty. Utils. Auth., 164 N.J.

270, 299 (2000).

      When, as here, statutory provisions are susceptible to more

than one interpretation, we look to extrinsic evidence to inform

our   analysis,    "including   legislative    history   and   committee

reports."   Parsons, supra, 226 N.J. at 308 (quoting State v.

Marquez, 202 N.J. 485, 500 (2010)); Wilson ex rel. Manzano v. City

of Jersey City, 209 N.J. 558, 572 (2012).        Extrinsic evidence is

also properly considered "if a literal reading of the statute

would yield an absurd result, particularly one at odds with the

overall statutory scheme."      Ibid.; see also DiProspero v. Penn,

183 N.J. 477, 493 (2005); e.g., Perez v. Zagami, LLC, 218 N.J.

                                   7                              A-4816-14T2
202, 214-16 (2014).

     We are mindful that the Act is both remedial legislation and,

in part, a waiver of sovereign immunity.         Mills v. N.J. Dep't of

the Treas., 435 N.J. Super. 69, 77 (App. Div.), certif. denied,

218 N.J. 273 (2014).       These dual attributes bring competing

standards into play for how the statute should be construed,

liberally or strictly.

     Other jurisdictions have not adopted a uniform approach in

reviewing their own wrongful incarceration statutes.         Many courts

have expressed the view that their statutes should be construed

liberally to effect their remedial purpose.         See, e.g., State v.

Hill, 125 So. 3d 1200, 1203 (La. Ct. App.) (interpreting La. Stat.

Ann. § 15:572.8 (2017)), writ denied, 129 So. 3d 536 (La. 2013);

Estate of Jerry Jacobs v. State, 775 S.E.2d 873, 876 (N.C. Ct.

App.) (interpreting N.C. Gen. Stat. §§ 148-82 to -84 (2016)),

review denied, 778 S.E.2d 93 (N.C. 2015); State v. Moore, 847

N.E.2d 452, 456 (Ohio Ct. App. 2006) (interpreting Ohio Rev. Code

Ann. § 2743.48 (LexisNexis 2017)); Wilhoit v. State, 226 P.3d 682,

686 (Okla. 2009) (interpreting Okla. Stat. tit. 51, § 154(B)

(2011));   State   v.   Oakley,   227   S.W.3d   58,   62   (Tex.     2007)

(interpreting Tex. Civ. Prac. & Rem. Code Ann. §§ 103.001-154

(West 2011)); Larson v. State, 375 P.3d 1096, 1103 (Wash. Ct.

App.) (interpreting Wash. Rev. Code Ann. §§ 4.100.010-.090 (West

                                   8                                A-4816-14T2
2017)), review denied, 385 P.3d 117 (Wash. 2016).

       Federal courts and courts from other jurisdictions have held

their wrongful incarceration statutes should be strictly construed

in favor of the State and against any waiver of sovereign immunity.

See, e.g., Sykes v. United States, 105 Fed. Cl. 231, 233 (Fed. Cl.

2012) (observing the federal unjust conviction and imprisonment

statutes, 28 U.S.C.A. §§ 1495, 2513, have "always been strictly

construed" (quoting Vincin v. United States, 468 F.2d 930, 933

(Ct. Cl. 1972))); Fessenden v. State, 52 So. 3d 1, 7 (Fla. Dist.

Ct. App. 2010) (interpreting Fla. Stat. §§ 961.01-.07 (2017));

Webb   v.   State,   795   N.Y.S.2d    636,   637   (N.Y.   App.   Div.   2005)

(interpreting N.Y. Ct. Cl. Act § 8-b (McKinney 2017)), appeal

denied, 845 N.E.2d 468 (N.Y. 2006).                 Hawaii's statute states

explicitly that it "shall be broadly construed in favor of the

State and against any waiver of sovereign immunity." Haw. Rev.

Stat. § 661B-6 (Supp. 2016).          Taking a more nuanced approach, the

California Court of Appeals stated the sections of its wrongful

incarceration statute should be "construed, not strictly, but

according to the fair import of their terms."               Ebberts v. State

Bd. of Control, 148 Cal. Rptr. 543, 546 (Cal. Ct. App. 1978)

(interpreting Cal. Penal Code §§ 4900-4906 (West 2017)).

       In interpreting the Act, we strive to discern the balance the

Legislature intended to strike between the liberal construction

                                        9                             A-4816-14T2
afforded remedial legislation "in favor of the persons intended

to be benefited thereby,"         Berg v. Christie, 225 N.J. 245, 259

(2016) (quoting Klumb v. Bd. of Educ. of Manalapan-Englishtown

Reg'l High Sch. Dist., 199 N.J. 14, 34 (2009)), and the more

limited    construction     appropriate     to        the   State's   voluntary

assumption of liability, cf. Davenport v. Borough of Closter, 294

N.J. Super. 635, 637 (App. Div. 1996) ("Under the [Tort Claims

Act, N.J.S.A. 59:1-1 to 12-3], immunity is the norm, unless

liability is provided for by the Act."); see also Deborah F.

Buckman,    Annotation,     Construction      and      Application    of     State

Statutes   Providing      Compensation     for   Wrongful      Conviction       and

Incarceration, 53 A.L.R.6th 305, 325-26 (2010) (noting statutes

attempt    to   balance    the   obligation      to    do   justice   with      the

responsibility to assure that public coffers are not overburdened

by baseless claims).

                                    III.

     We first consider the State's argument that plaintiff is not

eligible to recover under the Act.            The State moved to dismiss

plaintiff's complaint on the ground that he was ineligible to

pursue his claim pursuant to N.J.S.A. 52:4C-6(a), which states,

           A person serving a term of imprisonment for a
           crime other than a crime of which the person
           was mistakenly convicted shall not be eligible
           to file a claim for damages pursuant to the
           provisions of this act.

                                     10                                    A-4816-14T2
     The    State    concedes       the   language      of   this    provision      is

susceptible    to    more   than    one    interpretation      and    argues      this

provision must be read in light of the Legislature's stated purpose

to provide a remedy for "innocent persons":

            The Legislature finds and declares that
            innocent persons who have been convicted of
            crimes and subsequently imprisoned have been
            frustrated in seeking legal redress and that
            such persons should have an available avenue
            of redress to seek compensation for damages.
            The Legislature intends by enactment of the
            provisions of this act that those innocent
            persons who can demonstrate by clear and
            convincing evidence that they were mistakenly
            convicted and imprisoned be able to recover
            damages against the State.

            [N.J.S.A. 52:4C-1 (emphasis added).]

     The State contends a legislative intent to limit eligibility

to "truly faultless persons" is reflected in the other subsection

of the noneligibility provision.               N.J.S.A. 52:4C-6(b) bars a claim

for damages "if the sentence for the crime of which the person was

mistakenly convicted was served concurrently with the sentence for

the conviction of another crime."               (Emphasis added).

     "[W]hen      construing    a    statute,      we   consider     not   only    the

provision    in     question,   but       the    entire   legislative      scheme."

Gonzalez v. Bd. of Educ. of Elizabeth Sch. Dist., 325 N.J. Super.

244, 253 (App. Div. 1999), certif. denied, 163 N.J. 77 (2000).



                                          11                                 A-4816-14T2
     In    its     September      1996   Statement,    the    Senate   Judiciary

Committee noted amendments were adopted to "clarify[] that the

bill is intended to cover only persons mistakenly convicted."                   S.

Judiciary Comm., Statement to S. 1036 (Sept. 19, 1996).                        The

Statement       described   the    ineligibility      provision,    codified    in

N.J.S.A. 52:4C-6, stating:

            [A] person is not eligible to file a claim for
            damages under the act if he either: (1) is
            serving a term of imprisonment for a crime
            other than the crime of which he was
            mistakenly convicted; or (2) served a sentence
            for another crime concurrently with the
            sentence for the crime of which he was
            mistakenly convicted.

            [S. Judiciary Comm., Statement to S. 1036
            (Sept. 19, 1996) (emphasis added).]

     Neither here nor in any other provision does the Act limit

eligibility to "truly faultless persons" whose only conviction is

the one of which they are innocent.               A claimant must file suit

under     the    Act   "within     two    years   after      his   release   from

imprisonment, or after the grant of a pardon to him."                   N.J.S.A.

52:4C-4. The plain language bars persons who are currently serving

a term of imprisonment for another crime during that two-year

period and persons who served a term concurrently with the wrongful

conviction.

     The Act is silent regarding the specific circumstances here,

where a claimant was charged in a single indictment with multiple

                                         12                              A-4816-14T2
crimes, convicted of multiple crimes, sentenced to consecutive

terms and later had one of those convictions remain intact after

others were set aside.

     A variety of approaches have been adopted by other states in

setting the threshold for eligibility.             New York requires a

claimant to have all charges in the "accusatory instrument" be

reversed and dismissed on specified grounds.         N.Y. Ct. Cl. Act §

8-b(5)(c) (McKinney 2017); see Chalmers v. State, 668 N.Y.S.2d

227, 228 (N.Y. App. Div. 1998); Pough v. State, 582 N.Y.S.2d 590,

592 (N.Y. Ct. Cl. 1992), aff'd, 612 N.Y.S.2d 935 (N.Y. App. Div.

1994), appeal denied, 648 N.E.2d 793 (N.Y. 1995).               Similarly,

under the Vermont and Washington statutes, the claimant must prove

he or she "did not engage in any illegal conduct alleged in the

charging documents."     Vt. Stat. Ann. tit. 13, § 5574(a)(3) (West

2017); Wash. Rev. Code § 4.100.040(2)(a) (West 2017); see also

Ala. Code § 29-2-156 (2013) (plaintiff must be innocent of all

felonies for which he or she was convicted).

     Other states have required the claimant to provide proof of

innocence of "any other felony         arising out of or reasonably

connected to the facts supporting the indictment or complaint, or

any lesser included felony," Mass. Gen. Laws ch. 258D, § 1(C)(vi)

(2017);   "another   criminal    offense       arising   from   the    same

transaction,"   Mich.    Comp.   Laws.     §   691.1755(1)(b))    (2017);

                                  13                               A-4816-14T2
"multiple charges arising out of the same behavioral incident,"

Minn. Stat. § 590.11, subdiv. 5(a)(2) (2018);3 and lesser included

offenses, Okla. Stat. tit. 51, § 154(B)(2)(e)(2) (2011).

       Clearly, if our statute limited eligibility to persons who

were exonerated on all charges in the indictment, as New York,

Vermont and Washington do, plaintiff would not be eligible to

recover under the Act.    It is less certain whether his eligibility

would be affected by the standards employed in the other statutes

we have cited.     Pursuant to the plain language of N.J.S.A. 52:4C-

6, eligibility does not turn on proof of innocence on any charge

other than the one or ones for which a claimant has been wrongfully

convicted.     Rather, the disqualifying criteria relate to the

sentence(s) served by a claimant, and only address concurrent

terms and terms that are being served at the time the complaint

is filed.      Thus, if a claimant has served a sentence that is

concurrent to the sentence served for the wrongful conviction or

is   serving   a   sentence   for   another   offense   at   the   time    of

application, he is not eligible under the Act.



3
   Minnesota also requires claimants to show "the person was not
serving a term of imprisonment for another crime at the same time,
provided that if the person served additional time in prison due
to the conviction that is the basis of the claim, the person may
make a claim for that portion of time served in prison during
which the person was serving no other sentence." Minn. Stat. §
590.11, subdiv. 5(a)(4) (2011).

                                    14                              A-4816-14T2
     Although it may seem counterintuitive that the imposition of

a consecutive sentence inures to plaintiff's benefit, the absence

of any disqualifier in the Act based on defendant's guilt on

another   charged   offense   or   the   consecutive   sentence    imposed

supports the conclusion we reach that N.J.S.A. 52:4C-6 does not

bar him from seeking compensation under the Act.

                                   IV.

     To recover under the Act, plaintiff must "establish . . . by

clear and convincing evidence . . . [h]e did not commit the crime

for which he was convicted." N.J.S.A. 52:4C-3(b).              The State

contends the court erred when it granted plaintiff's motion for

summary judgment because the record lacks support for a finding

that plaintiff proved subsection (b) 4 by clear and convincing

evidence,5 and the trial court's conclusion to the contrary rested

upon a misinterpretation of N.J.S.A. 52:4C-3.          We agree.


4
   The State also contends "a question of material fact remains as
to whether [plaintiff's] conduct caused or brought about his murder
convictions" under subsection (c), since he "took steps to
facilitate a drug transaction" by introducing the victims to the
co-defendants, and "was convicted of drug related offenses, which
culminated in the homicides that gave rise to his murder
convictions".   This argument lacks sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
5
   Plaintiff argues the State abandoned this argument, based upon
a statement by the deputy attorney general that "the crux of this
case right now is the interpretative issue on all equated damages
provision." This statement was made during oral argument on three
motions: plaintiff's motion to strike the State's affirmative

                                   15                              A-4816-14T2
      When we review a summary judgment order, we view the evidence

"in the light most favorable to the non-moving party," Globe Motor

Co. v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-2(c)),

to determine "if there is a genuine issue as to any material fact

or whether the moving party is entitled to judgment as a matter

of law," Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (citing

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)).

To meet that standard, the movant must present evidence sufficient

to   satisfy   all   the    elements   of   his   claim,   measured    by   "the

evidential standard governing that cause of action."                  Bhagat v.

Bhagat, 217 N.J. 22, 40 (2014).         In this case, our review requires

us to interpret the elements of plaintiff's claim as set forth in

N.J.S.A. 52:4C-3.          Because this is a legal issue, we owe no

deference to the trial court's conclusions.            Murray v. Plainfield

Rescue Squad, 210 N.J. 581, 584 (2012).

      The trial judge found that N.J.S.A. 52:4C-3(b) did not require

plaintiff to "prove his innocence." Observing "the federal appeals

court said there was insufficient evidence to prove murder," she

reasoned that the legislature did not intend to "put the onus on


defenses; plaintiff's motion for declaratory relief, seeking a
declaration that plaintiff's interpretation of how damages are to
be calculated is correct; and the State's motion to dismiss for
failure to state a claim. We do not agree that this statement,
taken out of context, constitutes a waiver of this argument.


                                       16                               A-4816-14T2
him to prove his innocence."   She concluded plaintiff "has met the

requirements of the [Mistaken] Imprisonment Act and we are just

talking about the amount of the damages."

     On appeal, the State argues the Third Circuit's conclusion

that the evidence was insufficient to sustain plaintiff's murder

convictions did not equate with a determination there was clear

and convincing evidence that plaintiff did not commit the crimes

charged, as required by N.J.S.A. 52:4C-3(b).   Again, we agree.

     In the first instance, the decision by the Court of Appeals

did not satisfy plaintiff's burden under N.J.S.A. 52:4C-3(b) as a

matter of law.    And, even if that decision were considered as

support for plaintiff's claim, he has failed to show he is entitled

to summary judgment.

     The Legislature's stated "intent" is to provide redress for

"those innocent persons who can demonstrate by clear and convincing

evidence that they were mistakenly convicted and imprisoned."

N.J.S.A. 52:4C-1 (emphasis added).   From its first iteration, the

Act has required a claimant to establish "by clear and convincing

evidence" that "[h]e did not commit the crime for which he was

convicted."   L. 1997, c. 227, § 3(b).   The Legislature described

the burden of proof the claimant must satisfy as "substantial,"

and urged courts "in the interest of justice" to consider the

"difficulties of proof" in exercising discretion "regarding the

                                17                          A-4816-14T2
weight and admissibility of evidence submitted" by the claimant.

L. 1997, c. 227, § 1.          The plain language of the Act and its

legislative history thus both evince the Legislature's intent that

a claimant "prove" he did not commit the crime.

     The burden of proof the Legislature elected for this cause

of action is clear and convincing evidence, the "intermediate

standard" between a preponderance of the evidence and proof beyond

a reasonable doubt.    2 McCormick on Evidence § 340 (Brown ed., 7th

ed. 2013).   "[A]dopting a 'standard of proof is more than an empty

semantic exercise.'"      Addington v. Texas, 441 U.S. 418, 425, 99

S. Ct. 1804, 1809, 60 L. Ed. 2d 323, 330 (1979) (citation omitted).

"The function of a standard of proof . . . is to 'instruct the

factfinder concerning the degree of confidence our society thinks

he should have in the correctness of factual conclusions for a

particular type of adjudication.'"         Id. at 423-24 (quoting In re

Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 1076, 25 L. Ed. 2d

368, 379 (1970) (Harlan, J., concurring)).

     Like    plaintiffs   in    other    actions   where   such   proof    is

required,6 plaintiff was required to satisfy each of the elements


6
    See Bhagat, supra, 217 N.J. at 46-47 (holding clear and
convincing standard applies to father seeking to rebut a
presumption of a gift to an adult child and noting that standard
applies to: termination of parental rights, Santosky v. Kramer,
455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); N.J. Div.
of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986);

                                    18                              A-4816-14T2
of his cause of action by presenting evidence that met the standard

defined in our Model Jury Charge:

          Clear and convincing evidence is evidence that
          produces in your minds a firm belief or
          conviction that the allegations sought to be
          proved by the evidence are true.        It is
          evidence so clear, direct, weighty in terms
          of quality, and convincing as to cause you to
          come to a clear conviction of the truth of the
          precise facts in issue.

               The clear and convincing standard of
          proof requires that the result shall not be
          reached by a mere balancing of doubts or
          probabilities, but rather by clear evidence
          which causes you to be convinced that the
          allegations sought to be proved are true.

          [Model Jury Charge (Civil), 1.19, "Burden of
          Proof – Clear and Convincing Evidence"
          (2011).]

     Plaintiff's only support for his claim that he did not commit

the crimes in question is the opinion by the Court of Appeals that




involuntary commitment of a person to a psychiatric facility,
Addington, supra, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323;
commitment pursuant to the Sexually Violent Predator Act, In re
Commitment of W.Z., 173 N.J. 109 (2002); decision to withhold life
sustaining treatment from a person in a persistent vegetative
state, Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 284, 110
S. Ct. 2841, 2854, 111 L. Ed. 2d 224, 245-46 (1990); decision to
withhold life sustaining treatment from an incompetent nursing
home patient, In re Conroy, 98 N.J. 321, 382 (1985); in
disciplinary proceedings against an attorney or a doctor, In re
Rachmiel, 90 N.J. 646, 661 (1982); In re Polk License Revocation,
90 N.J. 550, 563 (1982); and to prove fraud, Fox v. Mercedes-Benz
Credit Corp., 281 N.J. Super. 476, 484 (App. Div. 1995)).

                               19                           A-4816-14T2
ordered the issuance of a writ of habeas corpus, which was relied

upon by the trial court in denying the State's motion to dismiss.

     Even when habeas relief is granted because the State failed

to meet its much higher burden to prove guilt beyond a reasonable

doubt, the order does not prove the petitioner is innocent 7 or

restore the petitioner to a presumption of innocence that is

transferable to the civil action.8   Unless the habeas court makes


7
   See, e.g., Doss v. State, 985 N.E.2d 1229, 1231-35 (Ohio 2012).
Although the Ohio statute required only proof by a preponderance
of the evidence, the Ohio Supreme Court held the fact the
plaintiff's conviction was vacated on the ground the state failed
to prove his guilt was insufficient to satisfy his burden "to
affirmatively establish his innocence."      Id. at 1234.    ("[A]
vacation of Doss's conviction does not prove his innocence."); see
also Fessenden, supra, 52 So. 3d at 7 ("[A]n order vacating a
conviction and sentence based on the legal ruling of this court
is not an order 'based upon exonerating evidence.'" (quoting Fla.
Stat. § 961.03 (2017))); Burrell v. State, 184 So. 3d 246, 254
(La. Ct. App.) ("Merely showing there is lack of credible evidence
to support a conviction is insufficient to meet the [plaintiff's]
burden" to prove "by clear and convincing scientific or non-
scientific evidence that he is factually innocent of the crime for
which he was convicted." (second quotation quoting La. Stat. Ann.
§ 15:572.8 (2017))), writ denied, 206 So. 3d 879 (La. 2016);
Piccarreto v. State, 534 N.Y.S.2d 31, 32 (N.Y. App. Div. 1988)
("[I]nability of the [state] to meet [its] burden in a criminal
trial" does not satisfy claimant's burden to "state facts in
sufficient detail to permit the court to find that he is likely
to succeed at trial in proving that [he or she] did not commit the
acts charged in the accusatory instrument.").
8
   See, for example, Hess v. State, 843 N.W.2d 648, 651-53 (Neb.
2014), where, after his murder conviction was reversed, the
plaintiff, who was required to prove he was innocent of the crime
by clear and convincing evidence, argued he could rely upon a
presumption of innocence and that the state was required to prove
his guilt. The court rejected this assertion, holding the Nebraska

                               20                          A-4816-14T2
a finding that a claimant was actually innocent, its findings have

limited probative value.9

     A review of the Court of Appeals' decision reveals it falls

short of providing clear and convincing evidence that plaintiff

did not commit the murders.     The State's theory regarding the

murders was that plaintiff was one of two accomplices to the actual



statute requires both legal innocence and actual innocence, which
means "a defendant did not commit the crime for which he or she
is charged." Id. at 653. The court observed that the presumption
of innocence pertains only to legal, not actual, innocence, and
has no bearing on the requirement that the plaintiff prove actual
innocence. Ibid.
9
   Some statutes require a specific judicial finding or order as
a pre-requisite to pursuing a claim.      See, e.g., Fla. Stat. §
961.02(4) (2017) (requiring an order issued by the original
sentencing court finding that the person did not commit "the act
nor the offense that served as the basis for the conviction and
incarceration and that the person did not aid, abet, or act as an
accomplice or accessory to a person who committed the act or
offense"); Haw. Rev. Stat. § 661B-1(b)(1) (Supp. 2016) (petitioner
must allege that either "(1)[t]he judgment of conviction was
reversed or vacated because the petitioner was actually innocent
of the crimes for which the petitioner was convicted, and the
court decision so states; or (2) [t]he petitioner was pardoned
because the petitioner was actually innocent of the crimes for
which the petitioner was convicted and the pardon so states"
(emphasis added)); Me. Stat. tit. 14, § 8241(2)(C) (2016) (claimant
must receive "a full and free pardon" with "a written finding by
the Governor . . . that the person is innocent of the crime for
which [he or she] was convicted"); Md. Code Ann., State Fin. &
Proc. § 10-501(b) (LexisNexis 2014) (claimant must have "received
from the Governor a full pardon stating that the individual's
conviction has been shown conclusively to be in error"); N.Y. Ct.
Cl. Act § 8-b(3)(b)(i) (McKinney 2017) (when a claim is based upon
the grant of a pardon, the pardon must be "upon the ground of
innocence").

                               21                           A-4816-14T2
shooter, co-defendant Joseph Marsieno.      The Court of Appeals noted

there was "overwhelming evidence" that plaintiff introduced the

victims to his co-defendants and "brokered a cocaine sale" between

them, and "more than sufficient evidence to allow the jury to

conclude   that   [plaintiff]   was    involved   in   disposing   of   the

[victims'] bodies and covering up their murders."              Kamienski,

supra, 332 Fed. Appx. at 748-49.           The Court of Appeals also

observed that the jury had rejected plaintiff's sworn denials of

involvement in the drug deal.         Id. at 748.      Relief was granted

because the State failed to identify "any direct or circumstantial

evidence that would allow a reasonable jury to conclude that

[plaintiff] knew of Marsieno's intent to rob and/or murder the

[victims] before Marsieno shot them."       Id. at 749.

     Although the Court of Appeals         commented on the lack of

evidence to prove essential elements of the murder charges as well

as certain concessions made by the prosecutor during the trial,

it is clear the court's conclusion that a writ of habeas corpus

must be issued was based on reasoning that the evidence failed to

prove plaintiff's guilt beyond a reasonable doubt and did not

include any declaration that he was factually innocent.         In short,

it can be characterized as a finding of legal innocence but not

actual innocence.    This was an insufficient basis upon which to

award summary judgment to plaintiff.

                                  22                               A-4816-14T2
                                 V.

      For guidance in the event that plaintiff proves the elements

of his claim by clear and convincing evidence on remand, we address

plaintiff's argument regarding the calculation of damages.         The

damages provision of the Act applicable to plaintiff's claim

provided:

            Damages awarded under this act shall not
            exceed twice the amount of the claimant's
            income in the year prior to his incarceration
            or $20,000.00 for each year of incarceration,
            whichever is greater.

            [L. 1997, c. 227, § 5(a).]

      To arrive at the damages awarded plaintiff, the trial court

determined that plaintiff served approximately three years of his

twelve-year drug conspiracy sentence and multiplied $20,000 by

17.2 years.10   Plaintiff does not dispute the court's calculation

of "net" damages by reducing 20.6 years to 17.2 years.      He argues

the trial court erred in multiplying the number of years of

incarceration by $20,000 rather than by the amount he earned in

the year prior to his incarceration.     We disagree.

      Plaintiff concedes the language of the damages provision in

the 1997 version of the Act is ambiguous, and argues it should be




10
     The award of $343,000 appears to be a mathematical error.

                                 23                           A-4816-14T2
interpreted as if L. 1997, c. 227, § 5(a) included the underlined

language:

            Damages awarded under this act shall not
            exceed twice the amount of the claimant's
            income in the year prior to his incarceration
            for each year of incarceration or $20,000.00
            for each year of incarceration, whichever is
            greater.

     To support this interpretation, plaintiff presented an expert

opinion from an English professor, who offered an interpretation

of the statute based upon grammatical principles.   "[P]unctuation,

though important, is not decisive of legislative intent."     Perez,

supra, 218 N.J. at 215.     Moreover, this opinion was entitled to

no deference either in the trial court or on appeal.    The purpose

of expert testimony is to assist the trier of fact regarding the

significance of evidence.    N.J.R.E. 702.   An expert's opinion on

a question of law is neither appropriate nor probative.     Boddy v.

Cigna Prop. & Cas. Cos., 334 N.J. Super. 649, 659 (App. Div. 2000);

Healy v. Fairleigh Dickinson Univ., 287 N.J. Super. 407, 413 (App.

Div.), certif. denied, 145 N.J. 372, cert. denied, 519 U.S. 1007,

117 S. Ct. 510, 136 L. Ed. 2d 399 (1996); see also L & L Oil Serv.,

Inc. v. Dir., Div. of Taxation, 340 N.J. Super. 173, 182 (App.

Div. 2001).    It is the exclusive province of the court to decide

questions of law, Russo v. Bd. of Trs., Police & Firemen's Ret.




                                 24                          A-4816-14T2
Sys., 206 N.J. 14, 27 (2011), such as the interpretation of a

statute.

     Turning   to   principles   of   statutory   construction,   "the

doctrine of the last antecedent . . . holds that, unless a contrary

intention otherwise appears, a qualifying phrase within a statute

refers to the last antecedent phrase."11   State v. Gelman, 195 N.J.

475, 484 (2008); see also Singer & Singer, supra, § 47.33 at 494.

("Referential and qualifying words and phrases, where no contrary

intention appears, refer solely to the last antecedent."). Because

the Legislature did not separate the qualifying phrase "for each

year of incarceration" from $20,000 with a comma, the doctrine of

last antecedent provides support for the interpretation that "for

each year of incarceration" applies only to $20,000.      Cf. Gudgeon

v. Cty. of Ocean, 135 N.J. Super. 13, 17 (App. Div. 1975) (noting

that where a comma sets off a modifying phrase from previous

phrases, the modifying phrase applies to all previous phrases).

     But, more persuasive is the Legislature's own understanding

of the damages provision, as clearly set forth in the legislative

history for the 2013 amendments.      Although the amendment itself

does not govern plaintiff's claim, the Legislature's statements


11
   "The last antecedent is 'the last word, phrase, or clause that
can be made an antecedent without impairing the meaning of the
sentence.'" 2A Norman J. Singer & Shambie Singer, Statutes and
Statutory Construction § 47.33 at 494-97 (7th ed., rev. 2014).

                                 25                           A-4816-14T2
about the amendment and comparison to the corresponding language

in the Act as originally adopted provide invaluable insight into

the Legislature's intent.      Our Supreme Court has recognized the

usefulness of an amendment that clarifies, rather than modifies,

a statute as a "tool to determine the intent behind the original

enactment."    State v. Schubert, 212 N.J. 295, 314 (2012); e.g.,

D.W., supra, 212 N.J. at 250 (considering "[b]oth the plain

language and historical evolution of" the New Jersey Parentage

Act, N.J.S.A. 9:17-38 to -59, to glean legislative intent); see

also Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380-81, 89 S. Ct.

1794, 1801, 23 L. Ed. 2d 371, 383 (1969) ("Subsequent legislation

declaring the intent of an earlier statute is entitled to great

weight in statutory construction.").

     In 2013, the Legislature adopted several amendments to the

Act, including amendments to N.J.S.A. 52:4C-5, the provision that

defines   damages. 12   See   L.   2013,   c.   171.   Pertinent   to   our




12
    Another amendment reflected a legislative intent to limit
damages. The original language in the statement of legislative
findings stated it was the Legislature's intent to provide "an
available avenue of redress over and above the existing tort
remedies to seek compensation for damages." L. 1997, c. 227, § 1
(emphasis added). In 2013, N.J.S.A. 52:4C-1 was amended to delete
the underlined language. See L. 2013, c. 171, § 1. A corresponding
amendment was made to N.J.S.A. 52:4C-2, stating any award of
damages in an action against the State, any


                                    26                             A-4816-14T2
consideration is the restructured definition of the ceiling for

damages:

           Damages awarded under     this   act   shall   not
           exceed the greater of:

                (a) twice the amount of the claimant's
           income in the year prior to his incarceration;
           or

                (b)   $50,000    for    each      year    of
           incarceration.

           [N.J.S.A. 52:4C-5(a)(1).]

     The Senate Judiciary Committee Statement clarifies that this

amendment did not change the way in which the ceiling for damages

is determined:

           As to damages for eligible claimants, under
           current law, damages cannot exceed twice the
           amount of the claimant's income in the year
           prior to the claimant's incarceration or
           $20,000 for each year of incarceration,
           whichever is greater. The bill does not alter
           this measurement between the greater of income
           in   the  year   prior   to   the   claimant's
           incarceration or the total per year amount for
           each year of incarceration, but this latter
           amount would be calculated at $50,000 per year
           instead of the current $20,000 per year.

           [S. Judiciary Comm., Statement to S. 1219
           (June 21, 2012) (emphasis added).]




political subdivision or employee of the same regarding "the same
subject matter shall be offset by any award of damages under [the]
act." L. 2013, c. 171, § 2.


                                27                              A-4816-14T2
The   Senate   Budget   and   Appropriations   Committee,   the   Assembly

Judiciary Committee and the Assembly Appropriations Committee all

issued statements regarding the amendment that used identical

language in describing the change made by the amendment.               See S.

Budget and Appropriations Comm., Statement to S. 1219 (Oct. 1,

2012); Assemb. Judiciary Comm., Statement to S. 1219 (Dec. 10,

2012); Assemb. Appropriations Comm., Statement to S. 1219 (Feb.

7, 2013).

      The legislative history thus presents compelling support for

the conclusion that the Legislature never intended an award of

damages to be based on the calculation urged by plaintiff.                    We

conclude that, even as originally drafted, the damages provision

defined two caps to a claimant's recovery.          Under one scenario,

he would receive twice the amount he earned in the year prior to

his incarceration.       The other scenario allowed recovery of an

amount calculated by multiplying the years of incarceration by

$20,000. The successful claimant is entitled to the greater amount

arrived   at   by   either    calculation.     Therefore,   in   the     event

plaintiff is awarded damages following the remand, his recovery

will be calculated accordingly.

                                    VI.

      Finally, we turn to plaintiff's challenge to the calculation

of the attorney fee award, an issue that need only be addressed

                                    28                                 A-4816-14T2
in the event plaintiff prevails on remand.           Plaintiff sought $1

million in fees, an amount that included all fees incurred from

the trial, direct appeal, habeas corpus petition and appeal, as

well as the instant litigation.        The trial court determined he was

entitled only to reasonable attorney fees incurred in the instant

litigation.

       New   Jersey   follows   the   "American   Rule,"   which   requires

litigants to bear their own litigation costs, regardless of who

prevails.     Innes v. Marzano-Lesnevich, 224 N.J. 584, 592 (2016).

Nonetheless, "a prevailing party can recover those fees if they

are expressly provided for by statute, court rule, or contract."

Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 440 (2001).

       The provision of the Act applicable to plaintiff's claim13

stated:



13
     Subsection (b) was amended in 2013 to state:

             In addition to the damages awarded pursuant
             to subsection a., the claimant shall be
             entitled to receive reasonable attorney fees
             and costs related to the litigation. A
             claimant may also be awarded other non-
             monetary relief as sought in the complaint
             including, but not limited to vocational
             training, tuition assistance, counseling,
             housing assistance, and health insurance
             coverage as appropriate.

             [L. 2013, c. 171, § 4 (codified at N.J.S.A.
             52:4C-5(b)).]

                                      29                            A-4816-14T2
           In addition to the damages awarded pursuant
           to subsection a., the claimant shall be
           entitled to receive reasonable attorney fees.

           [L. 1997, c. 227, § 5(b).]

     Plaintiff     argues    the     statute      is   silent   as    to   whether

"reasonable attorney fees" are limited to the fees incurred in the

civil action or extends to all fees related to the criminal

prosecution.     He contends the Legislature did not anticipate that

an exonerated person would have the resources to pay for his own

defense from trial through applications for post-conviction relief

and that, if it had, it would have intended to include all fees

in order to "compensate" such persons "for the damages they

suffered because of their wrongful imprisonment."                We disagree.

     In the first instance, the statute is not silent on this

issue.    Any attorney fee award is made "[i]n addition to the

damages awarded pursuant to subsection a."              The argument that such

fees must include fees for services related to the criminal

prosecution conflates the concepts of damages and an award for

"reasonable attorney fees."

     We   are    satisfied    that    if    the    Legislature       intended     to

compensate   a   successful    complainant        for   fees    related    to   the

underlying criminal prosecution, it would have stated so as a

component of recoverable damages in subsection (a) or stated

explicitly that "reasonable attorney fees" had a different meaning

                                       30                                  A-4816-14T2
than it has historically employed in other statutes with fee-

shifting provisions.14

       "The Legislature is presumed to be familiar with its own

enactments, with judicial declarations relating to them, and to

have passed or preserved cognate laws with the intention that they

be construed to serve a useful and consistent purpose."                            In re

Petition for Referendum on City of Trenton Ordinance 09-02, 201

N.J.   349,    359    (2010)   (citation       omitted).         In   light   of    this

principle, we note that, in 2013, the Legislature amended the

Public   Defender      Act,    N.J.S.A.        2A:158A-1    to    -25,   to   provide

additional relief to a defendant who is awarded damages under the

Mistaken Imprisonment Act "on grounds that the defendant did not

commit the crime for which he was convicted and imprisoned."                         The

amendment required the Public Defender to "discharge any lien for

services rendered concerning that crime."                  N.J.S.A. 2A:158A-17(b)

(emphasis added). Although there were amendments to the Act as

well   in     2013,   there    was   no    corresponding          clarification       or

modification to the Act to state that "reasonable attorney fees"

included fees for services concerning the criminal prosecution.



14
  See, e.g., the Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14, the New Jersey Consumer Fraud Act (CFA),
N.J.S.A. 56:8-1 to -206, and the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49.


                                          31                                  A-4816-14T2
     Therefore, in the absence of any legislative language to the

contrary, we conclude that "reasonable attorney fees" recoverable

under the Act are limited to those incurred in the successful

pursuit of the civil claim.

     Reversed and remanded.   We do not retain jurisdiction.




                               32                          A-4816-14T2
