This is a followup to

No probable cause found in NJ for citizen complaint of official misconduct by chairman of Port Authority. Judge ruled complainant has no standing

I forget the exact terminology, but the judge essentially said that the citizen complainant's "proximity" to the crime was too far removed to be substantially injured by it. He therefore had no standing to bring forth the complaint, forcing a determination of no probable cause.

Here is the beginning of the NJ Official Misconduct statute:

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

and here is the the Citizen's Complaint rule (7.2.a.1, on page 4 of this document):

7:2-2. Issuance of Complaint-Warrant (CDR-2) or Summons

(a) Authorization for Process

(1) Citizen Complaint. A Complaint-Warrant (CDR-2) or a summons charging any offense made by a private citizen may be issued only by a judge or, if authorized by the judge, by a municipal court administrator or deputy court administrator of a court with jurisdiction in the municipality where the offense is alleged to have been committed within the statutory time limitation. The complaint-warrant (CDR-2) or summons may be issued only if it appears to the judicial officer from the complaint, affidavit, certification or testimony that there is probable cause to believe that an offense was committed, the defendant committed it, and a Complaint-Warrant (CDR-2) or summons can be issued. The judicial officer's finding of probable cause shall be noted on the face of the summons or warrant and shall be confirmed by the judicial officer's signature issuing the Complaint-Warrant (CDR-2) or summons. If, however, the municipal court administrator or deputy court administrator finds that no probable cause exists to issue a Complaint-Warrant (CDR-2) or summons, or that the applicable statutory time limitation to issue the Complaint-Warrant (CDR-2) or summons has expired, that finding shall be reviewed by the judge. A judge finding no probable cause to believe that an offense occurred or that the statutory time limitation to issue a Complaint-Warrant (CDR-2) or summons has expired shall dismiss the complaint.

As best I understand it, proximity does not seem to be addressed in the Citizen's Complaint rule at all.

Regarding the Official Misconduct statute, it seems to say that the misconduct itself is the crime, not the criminal actions underneath it. This would imply that all citizens are equally injured by the misconduct, so long as they were under the official’s jurisdiction. In the case of the state Port Authority, this means every New Jersey citizen.

If, alternatively, the specific crimes underlying the misconduct is what's most important, then only a select few citizens would be substantially injured by it. The crime was mainly the extortion of United Airlines for a custom weekly flight in exchange for a new hangar at Newark International Airport; implying a very small percentage of NJ citizens were personally injured.

Two questions:

  • Does the official misconduct statute refer to the underlying criminal activities or simply "the act of misconduct"? (This is somewhat answered in the original question)
  • Given the context of a probable cause determination as brought forth by a citizen complaint.... Where in these two rules (or elsewhere) is "proximity" defined as a characteristic that should be a deciding factor for standing?

Note that Common Law was abolished in New Jersey in 1979.

  • 1
    Common law for crimes were abolished, not for torts. This distinction is vital: crimes are when the state sues you, torts are when (like in this case) one person sues another. So all common laws remain in this case, and have their full application. Apr 28, 2017 at 10:08
  • Followup: law.stackexchange.com/questions/18832/… May 7, 2017 at 13:49

1 Answer 1


Your questions are premised on two assumptions:

  1. "all citizens are equally injured by the misconduct, so long as they were under the official’s jurisdiction", and

  2. "Common Law was abolished in New Jersey in 1979"

These are both false!

False assumption 1: equal damage

The onus is on the plaintiff or complainant to prove to the court that they have standing to bring their claim. That is that they have (or will be) sufficiently damaged by the wrongful act that the court should spend its time hearing their claim.

We will use the referenced case as an example, as I understand it the official corruptly received a benefit in the form of the creation of a new air route in order to permit United Airlines to build a hanger at Newark Airport.

It should be obvious on the face of it that United Airlines and Newark Airport were both affected more than "all citizens". The Architects, Engineers and Construction workers who were delayed in working on the hanger were also more affected. All of these people word have a greater chance of having standing then a generic citizen.

Now, some citizens of New Jersey, specifically those who took advantage of the new air route (including but not limited to the corrupt official) benefited from the misconduct: they would not have standing as they were not damaged.

That is not to say that a broad class of people who are each individually affected slightly but as a group are substantially affected cannot have standing. KELSEY CASCADIA ROSE JULIANA et al v UNITED STATES OF AMERICA, et al being a case on point.

Common law was not abolished in New Jersey: common law crimes were

Common law is still going strong in New Jersey: I can sue for the tort of negligence, trespass and deceit, I can seek equitable remedies like an injunction and estoppel and I can also sue for breach of contract.

However, I cannot be prosecuted for the common law crime of murder which was inherited from the English common law crime: I have to be prosecuted for the statutory crime of murder detailed in NJ Rev Stat § 2C:11-3 (2013) and the case law that it has generated.

In ye olden days, there was no Act of Parliament that made murder a crime: it was a crime under the common law of England which became the common law of New Jersey (I know that the US Constitution specifically preserved common law and I would not be surprised if New Jersey's did as well). This common law crime can trace its roots back to the thirteenth century and even earlier into Anglo-Saxon law - the King didn't make it illegal, it just was, and the courts decided what the punishment should be (death usually).

In 1979, the New Jersey legislature decided to codify their crimes and as a starting point they abolished all the common law crimes (not just murder) and wrote down, nice and succinctly, what a murder is , what defenses there are for doing it and what the punishment should be. Now doubt this was informed by the 700 years of common law history about that crime and the current state of case law around it but it probably also simplified and streamlined the law (we hope).

The abolition of common law crimes has zero impact on the common law of standing.

  • Thank you for your persistence. It seems in this particular case, standing is derived exclusively from the judge's interpretation of the official misconduct statute; not common law. It seems reasonable to interpret the complainant as having standing via the "chilling effect" doctrine: "the harm involved has some reasonable relation to their situation, and the continued existence of the harm may affect others who might not be able to ask a court for relief." The degradation of democracy, and law and order in NJ. The growing separation of justice systems for the powerful and the less powerful. Apr 28, 2017 at 23:34
  • I hope that this is a reasonable interpretation. If so, it seems that this is as close as I'm going to get to a true and complete answer. Apr 28, 2017 at 23:36
  • 1
    @aliteralmind the judge's reasons will be in the judgement and, even if not stated, will be based on their understanding of the statute and it's place in the law of standing - there is no sharp dividing line between statute and case law.
    – Dale M
    Apr 29, 2017 at 3:02

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