When prosecutors target people instead of crimes, they take the risk that a selective prosecution defense could be made during the criminal case. They also take the risk that a malicious prosecution case, a civil tort, can be filed against them when the matter is concluded.
The terms “malicious prosecution” and “abuse of power” have been used by many to describe the criminal charges against George Norcross, as well as the most recent investigation by the Office of the Comptroller. While the actions certainly appear politically motivated, to obtain legal recourse, Norcross would have to prove several key elements.
Malicious Prosecution
Malicious prosecution provides recourse for individuals who are brought to court under false charges. It exists because being falsely accused of a crime in the public arena of the courts can have a devastating effect on a person’s personal and professional life, even if they are ultimately found not guilty or the charges are otherwise dismissed.
In February, Superior Court Judge Peter Warshaw ruled that the allegations against George Norcross did not constitute extortion or criminal coercion as a matter of law. Judge Warsaw also found that no racketeering enterprise was established, and that the statute of limitations had expired on many of the charges. (You can find a more detailed discussion here.)
In light of the criminal charges and the subsequent dismissal, Norcross could pursue a malicious prosecution suit. To be successful, he would also need to show that the criminal proceedings were initiated without probable cause and with malicious intent, which are key elements of a wrongful or malicious prosecution claims.
To successfully sue for malicious prosecution in New Jersey, you must generally prove the following:
- Lack of Probable Cause:The criminal proceeding was initiated without a reasonable basis or sufficient evidence.
- Malicious Motive:The prosecution was driven by a desire to harm the defendant, rather than to serve the interests of justice.
- Termination in Your Favor:The criminal proceeding was concluded in a way that shows the defendant was innocent, such as acquittal or dismissal.
- Harm:The defendant suffered damages as a result of the malicious prosecution, such as emotional distress, reputational damage, lost income, and legal expenses.
While it can be difficult to prove lack of probable cause and malicious motive, Norcross can find support in Judge Warshaw’s lengthy opinion, which found that even if taking all of the factual allegations as true, no crimes were committed. The fact that federal prosecutors declined to bring charges also raises questions about Attorney General Platkin’s motivation to move forward, seemingly at all costs.
Abuse of Process
Abuse of process is a different legal claim. It involves misuse of the legal process for an ulterior purpose. Unlike malicious prosecution, an abuse of process claim does not require the underlying legal proceedings to have been completed and ended in dismissal, acquittal, or another favorable outcome. Under New Jersey law, establishing an abuse of process claim requires proof of the following:
- Improper Purpose: The defendant used the legal process with an ulterior motive or an improper purpose, such as to coerce a collateral act from the opposing party or for harassment.
- Definite Act: The defendant committed a definite act or threat that was not authorized by the process and went beyond the normal, legitimate prosecution of the proceeding.
Examples of abuse of process include initiating legal proceedings without a valid legal or factual basis; filing repeated meritless motions or claims to harass or burden the opposing party; and presenting false evidence or testimony with the intention to mislead the court.
Again, Norcross could certainly make an argument that the investigation is “politically motivated” rather than legally warranted. With respect to the more recent OSC report, Norcross could maintain that the investigation lacks a valid legal basis, and the Comptroller abused his official powers and procedures for improper purposes. The investigation only focuses on a few of the HIFs, notably those involving the firm Norcross founded, Conner Strong & Buckelew. Does that mean the others can continue to operate?
As Norcross has noted, it is also significant that the same “violations” were reviewed by a former comptroller and found to be in compliance with state and federal regulations. The Comptroller also seems to be trying to circumvent the role of regulatory agencies and the New Jersey Legislature. If the true concern is increasing oversight over HIFs, why is the focus exclusively on CSB and referring the matter to the Attorney General’s Office? Notably, the only entity that didn’t get a referral was the Legislature, which would be in the best position to tighten the laws regarding HIFs and increase transparency.
Both Attorney General Platkin and Acting Comptroller Kevin Walsh will soon be out of office, with Gov. Phil Murphy’s term ending in January. Whether their attempts to make a name for themselves at the expense of George Norcross rise to the level of malicious prosecution or abuse of process is a matter for the courts; but, if Norcross can overcome the immunities that protect Platkin and Walsh, there may be a case to be made.
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