The Appellate Division of the Superior Court issued a decision today on April 7, 2011, in State v. Bradley, which can be found on-line at http://www.judiciary.state.nj.us/opinions/a0430-09.pdf

The decision is significant, in that it lays down a categorical rule that no pro se (i.e. a litigant proceeding without an attorney) complainant is permitted to appeal from a municipal court’s dismissal of his or her complaint for want of probable cause no matter how erroneous the probable cause determination. Further, given the text of Court Rule 3:23-9(d), even if the pro se complainant, after dismissal, were to hire an attorney to perfect the appeal, the county prosecutor could simply refuse to give “assent” to the attorney being a "prosecuting attorney" thus defeating the appeal.

This holding undermines the “citizen complaint” procedure contained in Court Rule 7:2-2(a)(1) because it leaves the citizen complainant with no recourse when a judge or municipal court administrator, for perhaps corrupt or other improper reasons (e.g. a municipal judge who seeks to protect a police officer, employed by the same municipality, from having to defend against a meritorious assault charge) makes a finding of no probable cause.

I think that it is important that ordinary citizens retain the ability to directly invoke the criminal process without having to first obtain permission from a governmental agent or licensee. As it is, complaints filed in municipal court by police officers, code enforcement officers and other government officials are presumed to be backed by probable cause and no independent probable cause is required (see, Court Rule 7:2-2(a)(2) & (3)). Yet, when a private citizen files a complaint a probable cause determination is always required and, according to the Bradley decision, the citizen complainant is left with no remedy if the court improperly dismisses his or her complaint after finding a lack of probable cause.

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