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This question is a followup to:

In reference to a citizen's complaint of official misconduct, in what rule is "proximity" to the crime specified?

Which itself is a followup to this question:

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


Here is the exchange between the judge and the complainant, which occurred Tuesday, May 2:

https://youtu.be/qTPue6ahvs4

For the second time, the judge determined no probable cause due to the complainant's lack of standing. But this time, the judge explicitly confirmed where this decision came from:

Here is the Citizen's Complaint rule from the RULES GOVERNING THE COURTS OF THE STATE OF NEW JERSEY (7.2-2.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.

Although there is nothing in this rule that relates to standing, the judge said there is "a rule at the beginning of the rules that says that all rules going forward can be relaxed.":

1:1-2. Construction and Relaxation...

(a) The rules in Part I through Part VIII, inclusive, shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice. In the absence of rule, the court may proceed in any manner compatible with these purposes and, in civil cases, consistent with the case management/trial management guidelines set forth in Appendix XX of these rules.

The judge stated that this super-rule provides him the discretion to consider standing. He said, "other judges may not read this into the rule, but I do." The complainant, who is a lawyer, argued that "relaxing a rule" does not allow for the creation of a new criterion; its purpose is only to "militate towards justice," meaning it should only make the rules less restrictive, making it easier for a complaint to be filed.

Another important aspect of this second determination:

The criminal was the chairman of the state Port Authority, who pled guilty in federal court In March, 2017 to bribery and extortion. He was sentenced to a year of house arrest in his vacation home--the same one he extorted United Airlines to fly him to.

The complainant says "this is not justice," and filed a state charge of official misconduct, a crime carrying a mandatory minimum five-year sentence. The judge ruled in the first determination that the complainant did not have standing because he "was so far removed from the crime" that he was not substantially injured by it. The complainant argued all citizens in the state are equally injured by official misconduct.

However, after the first determination, the complainant remembered he purchased a $5,000 Port Authority bond in 2014, three years after the crime took place, but two full years before any details about it were made public. Despite ownership of the bond, the judge once again ruled no standing.


As a non-lawyer, I hear these two law experts saying exactly opposite things:

Does the super-rule's "relaxation" clause allow this standing criterion to be added to the sub-rule?

The judge's ruling says it does. He said that he is not a "robot" and the super-rule gives him this discretion. The complainant argued that "there is no discretion where the conditions are met" and that the relaxation clause does not allow for the creation of a new criterion; it should only make the rule less restrictive.

Does the bond give the complainant standing?

The judge's ruling says it does not. The complainant says his ownership of the bond "as a matter of law, undeniably" gives him standing, The bond is worth a substantial amount of money and was clearly purchased before the public knew anything about the crime.

Thanks.

  • As an aside, the analysis is very New Jersey specific. Only a minority of U.S. states allow citizens to initiate a criminal justice prosecution at all. Even in states where they are permitted, they are vanishingly rare (ca. 1% or less) of all prosecutions. As a result, there is little authoritative guidance on the question, especially in edge cases, and legal experts differ on much more heavily litigated issues all of the time, it's what lawyers do. – ohwilleke May 7 '17 at 22:27
  • @ohwilleke I didn't know that. Seems like Jersey has the right idea in that sense. The more important aspect of this question I would think is a more generic one: does a super rule allow the addition of criteria in a sub-rule...in the "rules governing the courts"? – aliteralmind May 7 '17 at 22:33
  • Seems to be 2 questions in one, and totally unrelated. The second question appears to be rather trivial. "Of course not - the bond didn't lose a single dollar in value". Suggest removing the second part. – MSalters May 7 '17 at 23:05
  • @MSalters here's the screenshot of the bond. I would appreciate your explaining why this is trivial. It was the foundation of why he went in the second time. The bond is indeed worth less than it was. – aliteralmind May 7 '17 at 23:15
  • 1
    @aliteralmind It wouldn't be unusual for a bond to contain covenants that the bond issuer must follow that are owed to bondholders. If a covenant in the bond were breached, the impairment of this contract interest by a criminal act might give rise to standing. So, I wouldn't say that it is trivial. – ohwilleke May 8 '17 at 23:26

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