Perez v. Zagami, LLC, 218 N.J. 202 (2014), and Cottrell v. Zagami, LLC, 218 N.J. 217 (2014). In these two cases, the Supreme Court addressed the question of whether the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c) (“CRA”), permits a cause of action against a person who did not act “under color of law.” In Perez, the main opinion, the Court, speaking through Justice LaVecchia, concluded that no such cause of action is permitted to a private party, though the Attorney General is empowered to bring such a claim. Cottrell, a per curiam (actually spelled “per curium” in this opinion) applied that holding to the facts of that case.
The facts were a bit convoluted, but this appeal ultimately arose out of an attempt by plaintiff Perez to assert a CRA claim against a law firm that had represented defendant Zagami in a prior defamation action between Perez and Zagami. The Law Division determined that N.J.S.A. 10:6-2(c) was modeled on the federal Civil Rights Act, 42 U.S.C. §1983, and that therefore the CRA permitted private actions only against persons acting under color of law. The Appellate Division reversed, relying on its view of the structure of N.J.S.A. 10:6-2(c). The Supreme Court granted certification and, applying the de novo standard of review applicable to questions of statutory interpretation, reversed the Appellate Division, agreeing instead with the result that the Law Division had reached.
The language of N.J.S.A. 10:6-2(c) was critical. That section reads: “Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyhment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.”
The argument that the CRA allows a private suit even absent “color of law” rested in part on the presence of a comma before “or whose exercise” and the absence of a comma before “by a person acting under color of law.” That punctuation, it was argued, creates two distinct provisions– an “interference clause,” as to which action under color of law is required, and a “deprivation clause,” where it is not.
Justice LaVecchia did not agree. “Punctuation, though important, is not necessarily controlling in the search for legislative intent.” Plaintiff’s view “brings about illogical results.” Viewing subsection (c) against subsections (a) and (b), which clearly expressed the Legislature’s intention to make some or all claims under those subsections available against private parties not acting under color of law, the Court found that subsection (c) expressed no such intent. “[A]n interpretation of subsection (c) based solely on punctuation requires acceptance of a reading that is utterly at odds with the clarity of expression used by the Legislature in subsections (a) and (b).” The Court did not believe that “the Legislature intended to work such a radical change through the ambiguous placement of a comma.” Moreover, given the contrast with subsections (a) and (b), plaintiff’s proposed result violated the settled principle that statutory sections are to be read together as a “cohesive whole.”
Because the statutory language was not sufficiently clear to dictate a single result, Justice LaVecchia turned to legislative history. That history confirmed the Court’s view that private parties cannot bring claims based on N.J.S.A. 10:6-2(c) against persons not acting under color of law.
This is not the first recent case where a comma played a key role. Nor, doubtless, will it be the last.