by: Peter J. Gallagher (@pjsgallagher)
Anyone who has watched Law & Order or any other police procedural probably knows the Miranda warnings by heart, including the part about the perpetrators having the right to an attorney and the right to have an attorney appointed to represent them if they cannot afford one. But, did you ever stop to consider whether an indigent corporation that is charged with a crime has the right to have counsel appointed to represent it? Probably not, right? (For me, it is hard to imagine Detective Lennie Briscoe (played by the great Jerry Orbach) slapping the cuffs on Enron and wise-cracking about their misuse of special purpose entities and mark-to-market accounting.) However, this question was recently addressed by the Appellate Division in an interesting opinion that offered a primer on both the history of the right to counsel under New Jersey Law and the public defender program before answering the question.
In State v. Western World, Inc., the defendant, Western World, Inc., was a corporation that operated “Wild West City,” which is, as the name suggests, a western heritage theme park. Western World was indicted in connection with a shooting that occurred during the reenactment of a gunfight. The indictment originally named Western World along with its president, one of its employees, and the entity that owned the land on which the theme park operated. In exchange for the dismissal of the indictment as to these other defendants, Western World agreed to plead guilty as an accomplice to one count of the indictment (third-degree unlawful possession of a handgun). As part of the plea agreement, Western World waived its right to appeal, except as to the “limited question of whether a carry permit was required by the actors under the facts of [the] case.” Western World was subsequently sentenced to one year of probation and required to pay a $7,500 fine. Western World was represented by private counsel throughout this process.
Approximately one month after Western World entered its guilty plea, its counsel wrote to the regional office of the Office of the Public Defender (“OPD”), indicating that Western World wanted to appeal the issue reserved for appeal as part of its plea agreement and also appeal the fine imposed upon it at sentencing. Counsel indicated that he would not be representing Western World because he had not been paid. He further indicated that the judge that accepted Western World’s plea indicated that it would be entitled to a public defender if it could not afford one, but that Western World had been “turned away by the Public Defender’s Office.”
After reviewing Western World’s finances, the OPD apparently agreed to accept the representation and filed a notice of appeal on behalf of Western World. However, shortly thereafter, the OPD filed a motion to be relieved as counsel, arguing that the Public Defender Act (“PDA”) gave it discretion about how to allocate its limited resources. The OPD also questioned the value of the appeal because, among other things, the probationary term of the sentence was about to expire. Western World opposed the motion pro se, but the Appellate Division then appointed eminently competent counsel to represent Western World in light of the prohibition against entities representing themselves pro se in New Jersey courts.
At oral argument on the motion, the OPD “expanded upon its requested relief,” arguing that “because no liberty interest [was] at stake, it [had] no obligation to represent a corporate defendant under any circumstances.” This set the stage for the Appellate Division’s consideration of that issue. The Appellate Division noted that it had “succinctly framed” this issue 20 years earlier in its In re CLM Construction Co. decision, but had not resolved it then. In Western World, it had the opportunity to revisit the issue and do just that.
The Appellate Division then embarked on a history of the right to counsel in the federal courts and in New Jersey. Of note, the Appellate Division observed that, as is the case with many other constitutional protections, New Jersey takes a more expansive view of the right to counsel than the federal courts. Nonetheless, despite New Jersey’s long history of assigning counsel to represent indigent defendants – in fact, it was the first state to require it – there were no decisions, reported or otherwise, in which a New Jersey court appointed counsel at public expense to represent an indigent corporation.
The Appellate Division then turned to the PDA, which mandates that: “[i]t shall be the duty of [OPD] to provide for the legal representation of any indigent defendant who is formally charged with the commission of an indictable offense.” The PDA defines “indigent defendant” as “a person who is formally charged with the commission of an indictable offence and who does not have the present financial ability to secure competent legal representation.” The PDA does not, however, define “person.”
Western World argued that, because the statute does not define “person,” the Appellate Division should apply the default definitions contained in N.J.S.A. 1:1-2, which define “person” as including “corporations . . . unless restricted by the context to an individual as distinguished from a corporate entity.” Therefore, Western World’s argument was straight forward — the PDA requires the OPD to defend any “indigent defendant,” an “indigent defendant” is a “person,” and a “person” is a corporation, therefore the OPD was required to defend corporations.
The Appellate Division disagreed with this approach. It observed that it could only adopt the fallback definitions contained in N.J.S.A. 1:1-2 if those definitions did not lead to a result contrary to the Legislature’s intent when it enacted the PDA. Accordingly, the Appellate Division reviewed the legislative history of the PDA to see whether using those definitions would do just that. Unfortunately, when it did that, it concluded that the history of the PDA revealed that it was never intended to cover indigent corporations. Specifically, the Appellate Division concluded that the legislative history of the PDA revealed that the act was initially enacted to protect natural persons, not corporations. Moreover, when it was amended over the years – for example, to require that the OPD represent juveniles faced with charges that may result in “institutional commitment” – it always did so for the benefit of natural persons, never corporations. Accordingly, the Appellate Division held that applying the default definitions contained in N.J.S.A. 1:1-2, as urged by Western World, would result in a conclusion that was contrary to the PDA, and therefore could not be adopted.
The Appellate Division further noted that its conclusion in Western World was consistent with decisions from other jurisdictions, and was also consistent with statutes in certain other states, which limited representation by public defenders to only natural persons.
But, all was not lost for Western World and future indigent corporate defendants. The Appellate Division reiterated that, under the United States Constitution and the New Jersey Constitution, corporations were entitled to the assistance of counsel (just not public defenders). The Appellate Division also reiterated that New Jersey precedent required the appointment of counsel whenever a defendant was charged with a crime or faces a consequence of magnitude. Therefore, the Appellate Division instructed the Clerk’s Office to “work with the vicinage Criminal Division Manager to designate counsel to represent [Western World] hereafter.” So, Western World will have counsel, just not anyone from the OPD
[NOTE: Just to avoid any confusion caused by the headline to this post, in Western World, the Appellate Division did not announce for the first time that corporations were people. It did, however, observe that it had already held as much in CLM Construction when it concluded that “a corporation is a person.”]