In re Attorney Gen. Law Enforcement Directive Nos. 2020-5 & 2020-6

• Decision Date: 07 June 2021
• Docket Number: A-26/27/28/29/30 September Term 2020,085017
• Citation: 252 A.3d 135,246 N.J. 462
• Parties: IN RE ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NOS. 2020-5 AND 2020-6
• Court: New Jersey Supreme Court

246 N.J. 462

252 A.3d 135

IN RE ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NOS. 2020-5 AND 2020-6

A-26/27/28/29/30 September Term 2020

085017

Supreme Court of New Jersey.

Argued March 2, 2021

Decided June 7, 2021

Kevin D. Jarvis, Moorestown, argued the cause for appellant New Jersey Law Enforcement Superior Officers Association (O'Brien, Belland & Bushinsky, attorneys; Kevin D. Jarvis and Matthew B. Madsen, on the briefs).

James M. Mets argued the cause for appellant State Troopers Fraternal Association of New Jersey (Mets Schiro & McGovern and Markman & Cannan, attorneys; James M. Mets and Robert R. Cannan, Bloomfield, of counsel and on the briefs, and Brian J. Manetta, Iselin, on the briefs).

Katherine Hartman, Moorestown, argued the cause for appellants State Troopers Non-Commissioned Officers Association of New Jersey and State Troopers Superior Officers Association of New Jersey, and their current respective presidents, Pete J. Stilianessis and Richard Roberts (Attorneys Hartman, Chartered, Law Offices of Robert A. Ebberup, Law Office of D. John McAusland, and Loccke, Correia & Bukosky, attorneys; Katherine D. Hartman, Mark A. Gulbranson, Jr., Robert A. Ebberup, Toms River, D. John McAusland, Englewood Cliffs, and Michael A. Bukosky, on the briefs).

Matthew Areman argued the cause for appellants New Jersey State Policemen's Benevolent Association and New Jersey State Lodge of the Fraternal Order of Police and their current respective presidents, Patrick Colligan and Robert W. Fox (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; and Markowitz & Richman, attorneys; Paul L. Kleinbaum, Newark, Craig A. Long, and Matthew Areman, on the briefs).

Frank M. Crivelli, Hamilton, argued the cause for appellants Policemen's Benevolent Association Local Number 105, Policemen's Benevolent Association Local Number 383, Policemen's Benevolent Association Local 383A, Policemen's Benevolent Association Local 383B, and the New Jersey Law Enforcement Supervisors Association (Crivelli & Barbati, attorneys; Frank M. Crivelli, on the briefs).

Jeremy Feigenbaum, State Solicitor, argued the cause for respondent Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Jeremy Feigenbaum and Jane C. Schuster, Assistant Attorney General, of counsel and on the briefs, and Christopher Weber, Sean P. Havern, Patrick Jhoo, Brandon C. Simmons, Emily K. Wanger, and Emily Marie Bisnauth, Deputy Attorneys General, on the briefs).

Vito A. Gagliardi, Jr., Morristown, argued the cause for amicus curiae New Jersey State Association of Chiefs of Police (Porzio Bromberg & Newman, attorneys; Vito A. Gagliardi, Jr., of counsel and on the brief, and David L. Disler and Thomas J. Reilly, Morristown, on the brief).

Joseph E. Krakora, Public Defender, argued the cause for amici curiae Public Defender of New Jersey and Association of Criminal Defense Lawyers of New Jersey (Joseph E. Krakora, Public Defender, attorney; and Gibbons, attorneys; Joseph E. Krakora and Lawrence S. Lustberg, Newark, on the brief).

Alexander Shalom, Newark, argued the cause for amici curiae American Civil Liberties Union of New Jersey, Bayard Rustin Center for Social Justice, Cherry Hill Women's Center, Ethical Culture Society of Bergen County, Fair Share Housing Center, Faith in New Jersey, Housing and Community Development Network of New Jersey, Latino Action Network, LatinoJustice PRLDEF, Legal Advocacy Project of UU FaithAction of New Jersey, Libertarians for Transparent Government, NAACP Newark, National Association for the Advancement of Colored People New Jersey State Conference, National Organization for Women of New Jersey, Newark Communities for Accountable Policing, New Jersey Alliance for Immigrant Justice, New Jersey Clergy Coalition for Justice, New Jersey Coalition Against Sexual Assault, New Jersey Institute for Social Justice, New Jersey Prison Justice Watch, Partners for Women and Justice, People's Organization for Progress, Salvation and Social Justice, Service Employees International Union Local 32BJ, SPAN Parent Advocacy Network, Volunteer Lawyers for Justice, Women Who Never Give Up, Inc. (American Civil Liberties Union of New Jersey Foundation; attorneys; Alexander Shalom, Jeanne LoCicero, Karen Thompson, Newark, and Molly K.C. Linhorst, on the brief).

CJ Griffin argued the cause for amici curiae National Coalition of Latino Officers and Law Enforcement Action Partnership (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).

Bruce S. Rosen, Florham Park, submitted a brief on behalf of amicus curiae Reporters Committee for Freedom of the Press (McCusker, Anselmi, Rosen & Carvelli; attorneys; Bruce S. Rosen, on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

In June 2020, weeks after George Floyd was killed at the hands of a Minneapolis Police Officer, the Attorney General for New Jersey issued two Directives. They call for the release of the names of law enforcement officers who commit disciplinary violations that result in the imposition of "major discipline" -- termination, demotion, or a suspension of more than five days. A summary of the misconduct and the sanction imposed must also be disclosed.

One Directive applies to all law enforcement agencies in the State, including local police departments; the other applies to the State Police and other agencies within the Department of Law and Public Safety (Department). Both Directives encompass all findings of major discipline after January 1, 2020. In addition, for the State Police and other agencies within the Department, officers subjected to major discipline dating back twenty years would be identified publicly.

The Directives mark a sharp change in practice. Previously, the Attorney General fought to shield the identities of law enforcement officers disciplined for serious misconduct.

Five groups representing state and local officers challenged the Directives on multiple grounds. In a comprehensive opinion, the Appellate Division rejected their facial challenge to the Directives. In re Att'y Gen. L. Enf't Directive Nos. 2020-5 & 2020-6, 465 N.J. Super. 111, 162, 240 A.3d 419 (App. Div. 2020). We do as well.

We find that the Attorney General had the authority to issue the Directives. In evaluating them, appellate review of final agency decisions, which the Directives represent, is limited to whether an action is arbitrary, capricious, unreasonable, or contrary to public policy. See In re State & Sch. Emps.’ Health Benefits Comm'ns’ Implementation of Yucht, 233 N.J. 267, 279, 184 A.3d 475 (2018).

The challengers present a number of concerns; yet, in our view, the Directives satisfy the deferential standard of review. They are designed to enhance public trust and confidence in law enforcement, to deter misconduct, to improve transparency and accountability in the disciplinary process, and to identify repeat offenders who may try to move from one sensitive position to another. In short, the Directives are consistent with legislative policies and rest on a reasonable basis.

We do not find merit in the bulk of the remaining challenges. One claim, however, requires more careful attention. Going forward, officers can expect that their names will be disclosed if they commit acts that result in major discipline. Officers subjected to that level of discipline for the past twenty years, however, present a straightforward argument: they say they were promised that their names would not be released, and that they relied on that promise in resolving disciplinary accusations. The officers present a number of certifications in support of that claim, including one from the former Superintendent of the State Police. In essence, they ask the State to stand by promises they claim were made throughout the prior twenty years.

To resolve that serious issue, a judge will need to hear and evaluate testimony and decide if the elements of the doctrine of promissory estoppel have been met. To establish an orderly process for potentially hundreds of future proceedings, we offer guidance for disciplinary cases resolved up to twenty years before the Directives were issued.

A single trial judge will be designated to hear testimony that could apply to all of the challenges. The judge's ruling might resolve the claim as a whole; if not, the record created at the hearing can be used in individual as-applied challenges that State Troopers and others can pursue afterward. A similar process can be used in the event local officials choose to release historical incidents of serious misconduct.

To be clear, that process will apply only to disciplinary matters settled before the Directives were announced. The Attorney General had the right to change course and direct that details of future serious disciplinary matters -- including the names of the officers disciplined -- will be revealed to the public. That practice is routine in other professions and shines light on both the overall disciplinary process and individual wrongdoing. The identities of officers subject to major discipline since the Directives were issued in June 2020 may be disclosed; going forward, future disciplinary sanctions can be disclosed in the same manner.

We therefore modify and affirm the judgment of the Appellate Division and remand for further proceedings consistent with this opinion.

I.

George Floyd's death on May 25, 2020 prompted nationwide protests and calls for greater accountability of police officers. Several weeks later, New Jersey Attorney General Gurbir S. Grewal issued two directives that require the release of the names of law enforcement officers who receive, and have received, major discipline. See Attorney General, Directive Requiring Public Disclosure of the Identities of Officers Who Commit Serious Disciplinary Violations (June 15, 2020) (Directive 2020-5); Attorney General, Directive Requiring Public Disclosure of the Identities of Department's Officers Who Committed Serious Disciplinary Violations Since 20...