In re Attorney Gen. Law Enforcement Directive Nos. 2020-5 & 2020-6, DOCKET NOS. A-3950-19T4

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtACCURSO, J.A.D.
Citation465 N.J.Super. 111,240 A.3d 419
Docket NumberA-3975-19T4,DOCKET NOS. A-3950-19T4,A-4002-19T4,A-3985-19T4,A-3987-19T4
Decision Date16 October 2020
Parties IN RE ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NOS. 2020-5 AND 2020-6

465 N.J.Super. 111
240 A.3d 419

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

DOCKET NOS. A-3950-19T4
A-3975-19T4
A-3985-19T4
A-3987-19T4
A-4002-19T4

Superior Court of New Jersey, Appellate Division.

Argued September 16, 2020
Decided October 16, 2020


James M. Mets and Robert R. Cannan, Bloomfield, argued the cause for appellant in A-3950-19 (Mets Schiro & McGovern, LLP and Markman & Cannan, LLC, attorneys; James M. Mets and Robert R. Cannan, of counsel and on the briefs; Brian J. Manetta, Iselin, on the brief).

Carl J. Soranno and Jay Sabin, Roseland, argued the cause for intervenors-appellants in A-3950-19 and A-3975-19 (Brach Eichler, LLC, attorneys; Anthony M. Rainone and Carl J. Soranno, of counsel and on the briefs; Jay Sabin, on the briefs).

D. John McAusland, Englewood Cliffs, argued the cause for appellants in A-3975-19 (Attorneys Hartman, Chartered, Law Offices of Robert A. Ebberup, LLC, Law Office of D. John McAusland and Loccke, Correia & Bukosky, attorneys; Mark A. Gulbranson, Jr., Katherine D. Hartman, Moorestown, Robert A. Ebberup, Toms River, D. John McAusland and Michael A. Bukosky, on the briefs).

Frank M. Crivelli argued the cause for appellants in A-3985-19 (Crivelli & Barbati, LLC, attorneys; Frank M. Crivelli, on the briefs).

Kevin D. Jarvis, Moorestown, argued the cause for appellant in A-3987-19 (O'Brien, Belland & Bushinsky, LLC, attorneys; Kevin D. Jarvis and Matthew B. Madsen, on the briefs).

Paul L. Kleinbaum, Newark, and Matthew Areman argued the cause for appellants in A-4002-19 (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, and Markowitz & Richman, attorneys; Paul L. Kleinbaum and Matthew Areman, of counsel and on the briefs; Craig A. Long, on the briefs).

Jeremy M. Feigenbaum argued the cause for respondents in all appeals (Jeremy M. Feigenbaum, State Solicitor, and Jane C. Schuster, Assistant Attorney General, of counsel and on the brief; Emily Marie Bisnauth, Christopher Weber, Dominic L. Giova, Sean P. Havern and Brandon C. Simmons, Deputy Attorneys General, on the brief).

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

Alexander R. Shalom 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, Faith in New Jersey, Latino Action Network, LatinoJustice PRLDEF, Legal Advocacy Project of UU FaithAction New Jersey, Libertarians for Transparent Government, National Association for the Advancement of Colored People New Jersey State Conference, NAACP Newark, National Organization for Women of New Jersey, Newark Communities for Accountable Policing, New Jersey Alliance for Immigrant Justice, New Jersey Campaign for Alternatives to Isolated Confinement, New Jersey Clergy Coalition for Justice, New Jersey Institute for Social Justice, Partners for Women and Justice, People's Organization for Progress, Salvation and Social Justice, Service Employees International Union 32BJ, SPAN Parent Advocacy Network, Volunteer Lawyers for Justice, and Women Who Never Give Up (Jeanne LoCicero, Alexander Shalom, Karen Thompson 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, P.C., attorneys; CJ Griffin, of counsel and on the brief).

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

Before Judges Ostrer, Accurso and Vernoia.

240 A.3d 427

The opinion of the court was delivered by

ACCURSO, J.A.D.

465 N.J.Super. 124

Responding to state and national demands for accountability and reform of law enforcement following the death of George Floyd at the hands of Minneapolis police, Attorney General Gurbir S. Grewal announced in June that he would end New Jersey's decades-long practice of shielding the identities of law enforcement officers receiving major discipline for misconduct. Determining he could best improve the public's trust in state and local police by instilling greater accountability in the processes that govern officer misconduct, the Attorney General issued two directives, Law Enforcement Directive Numbers 2020-5 and 2020-6, amending the statewide rules for internal affairs investigations, known as the Internal Affairs Policy and Procedures (IAPP), applicable to every law enforcement agency in New Jersey by virtue of N.J.S.A. 40A:14-181, and imposing additional requirements on the law enforcement agencies housed within the Department of Law and Public Safety.

Directive 2020-5 amends the IAPP to require every law enforcement agency in the State to publish a synopsis of all complaints in which an officer received final discipline of termination, demotion, or a suspension of more than five days, including the name of the officer, a summary of the misconduct, and the sanction imposed. Initial reports, covering all discipline imposed during this calendar year, are due by December 31, 2020. Subsequent reports must be published at least annually thereafter. The Directive further permits, but does not require, county and municipal agencies to release similar information about earlier incidents of officer misconduct resulting in the same sanctions.

Directive 2020-6 orders all law enforcement agencies within the Department of Law and Public Safety, which the Attorney General heads, the Division of State Police and the Division of Criminal Justice, as well as the Juvenile Justice Commission, which is in but not of the Department, to publish no later than July 15, 2020, the same information required by Directive 2020-5 from January 1, 2000 to the present. The Directive orders the three agencies to

465 N.J.Super. 125

provide notice to each officer it intends to identify at least seven days prior to publication, whenever possible making reasonable efforts. Both Directives provide they were issued pursuant to the Attorney General's authority to ensure the uniform and efficient enforcement of the laws and administration of criminal justice throughout the State, and specific to 2020-6, his authority to supervise the operations of the Department of Law and Public Safety, and create no substantive right of enforcement in any third party.

These five consolidated appeals present a broad-based facial challenge to the Directives by petitioners State Troopers Fraternal Association of New Jersey (A-3950-19), and intervenors Association of Former New Jersey State Troopers, The New Jersey Former Troopers Heritage Foundation, Inc., and Former Trooper Members and FTA Members No. 1 & 2 (A-3950-19 and A-3975-19); 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 (A-3975-19); Policemen's Benevolent Association Local Number 105, PBA Local Number 383, PBA Local Number 383A, PBA Local Number 383B, and The New Jersey Law Enforcement Supervisors Association (A-3985-19);

240 A.3d 428

New Jersey Superior Officers Law Enforcement Association (A-3987-19); and 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 (A-4002-19).

Petitioners and intervenors, representing a broad swath of the State's 36,000 active law enforcement officers as well as some retired officers, contend the Attorney General lacks the authority to issue the Directives because they conflict with a provision of the Open Public Records Act, N.J.S.A. 47:1A-10 (section 10), a regulation promulgated by the Department of Law and Public Safety, N.J.A.C. 13:1E-3.2(a)(4), and various Executive Orders, most notably Executive Order 11 (Byrne), all of which protect the confidentiality

465 N.J.Super. 126

of personnel records of public employees. Petitioners also maintain the Attorney General promulgated the Directives in violation of the Administrative Procedures Act and acted outside his authority by giving them retroactive application; that the Directives violate the equal protection rights of affected officers; violate the due process rights of affected officers; violate officers' constitutional rights to collective negotiations and against the impairment of contracts; violate the doctrines of promissory and equitable estoppel; and, finally, that the Directives are arbitrary, capricious and unreasonable and against public policy.

We granted several petitioners leave to file emergent applications to stay implementation of the Directives pending their appeal. We subsequently...

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7 practice notes
  • In re Attorney Gen. Law Enforcement Directive Nos. 2020-5 & 2020-6, A-26/27/28/29/30 September Term 2020
    • United States
    • United States State Supreme Court (New Jersey)
    • June 7, 2021
    ...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 evalu......
  • Gannett Satellite Info. Network, LLC v. Twp. of Neptune, DOCKET NO. A-4006-18
    • United States
    • New Jersey Superior Court – Appellate Division
    • April 8, 2021
    ...a panel of this court rendered its decision in In re Attorney General Law Enforcement Directive Numbers 2020-5 and 2020-6, 465 N.J. Super. 111, 240 A.3d 419 (App. Div.), certif. granted, 244 N.J. 447, 241 A.3d 579 (2020). In that case, several law enforcement agencies challenged the Attorne......
  • Nolan v. Grewal, A-4614-19
    • United States
    • New Jersey Superior Court – Appellate Division
    • January 26, 2022
    ...reports on officer discipline and make public disciplined officers' names. In re Att'y Gen. Law Enf't Directive Nos. 2020-5 & 2020-6, 465 N.J.Super. 111, 124 (App. Div. 2020), aff'd, 246 N.J. 462 (2021). Noting a "long-standing view that the Attorney General's law enforcement directives and......
  • In re Perez, A-3769-19
    • United States
    • New Jersey Superior Court – Appellate Division
    • February 15, 2022
    ...are held to higher standards of conduct than other public employees." In re Att'y Gen. L. Enf't Directive Nos. 2020-5 & 2020-6, 465 N.J.Super. 111, 147 (App. Div. 2020), aff'd as modified, 246 N.J. 462 (2021) (citing In re Phillips, 117 N.J. 567, 577 (1990)). Consequently, their performance......
  • Request a trial to view additional results
7 cases
  • In re Attorney Gen. Law Enforcement Directive Nos. 2020-5 & 2020-6, A-26/27/28/29/30 September Term 2020
    • United States
    • United States State Supreme Court (New Jersey)
    • June 7, 2021
    ...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 evalu......
  • Gannett Satellite Info. Network, LLC v. Twp. of Neptune, DOCKET NO. A-4006-18
    • United States
    • New Jersey Superior Court – Appellate Division
    • April 8, 2021
    ...a panel of this court rendered its decision in In re Attorney General Law Enforcement Directive Numbers 2020-5 and 2020-6, 465 N.J. Super. 111, 240 A.3d 419 (App. Div.), certif. granted, 244 N.J. 447, 241 A.3d 579 (2020). In that case, several law enforcement agencies challenged the Attorne......
  • Nolan v. Grewal, A-4614-19
    • United States
    • New Jersey Superior Court – Appellate Division
    • January 26, 2022
    ...reports on officer discipline and make public disciplined officers' names. In re Att'y Gen. Law Enf't Directive Nos. 2020-5 & 2020-6, 465 N.J.Super. 111, 124 (App. Div. 2020), aff'd, 246 N.J. 462 (2021). Noting a "long-standing view that the Attorney General's law enforcement directives and......
  • In re Perez, A-3769-19
    • United States
    • New Jersey Superior Court – Appellate Division
    • February 15, 2022
    ...are held to higher standards of conduct than other public employees." In re Att'y Gen. L. Enf't Directive Nos. 2020-5 & 2020-6, 465 N.J.Super. 111, 147 (App. Div. 2020), aff'd as modified, 246 N.J. 462 (2021) (citing In re Phillips, 117 N.J. 567, 577 (1990)). Consequently, their performance......
  • Request a trial to view additional results

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