In State v. Anthony (A-11-17/079344)(Decided March 13, 2019), the Supreme Court of New Jersey clarified the process law enforcement officers must follow when they ask eyewitnesses to try to identify a suspect. In doing so, the state’s highest court mandated several new safeguards for the admission of eyewitness identification evidence.

New Jersey Law Governing Witness Identification

The State of New Jersey has procedures in place governing the admission of eyewitness identification evidence. In State v. Delgado, 188 N.J. 48 (2006), the court required “that, as a condition to the admissibility of an out-of-court identification, law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results.” Delgado encouraged but did not mandate the use of tape recorders to preserve identification procedures.

In State v. Henderson, 208 N.J. 208 (2011), the New Jersey Supreme Court again revised the legal framework for the admission of eyewitness identification evidence. It held that when defendants can show some evidence of suggestiveness tied to a system variable, they are entitled to explore all relevant system and estimator variables at a pretrial hearing to try to challenge the admissibility of the identification. “System variables” are those that are within the control of law enforcement, such as lineup procedures and feedback, while “estimator variables” are those that the legal system does not control, like lighting conditions, stress, and memory decay.

In Henderson, the New Jersey Supreme Court not only affirmed Delgado, but added additional safeguards. To guard against confirmatory feedback, the court required law enforcement to record a witness’ statement of confidence “in the witness’ own words before any possible feedback.” Henderson added that “if an eyewitness’ confidence was not properly recorded soon after an identification procedure, and evidence revealed that the witness received confirmatory feedback,” trial judges could bar any testimony at trial about the witness’ level of confidence.

In response to Delgado and Henderson, the Criminal Practice Committee proposed a court rule on recording requirements for identification procedures, which the Court adopted in 2012. Rule 3:11 provides that “[a]n out-of-court identification resulting from a photo array, live lineup, or showup identification procedure conducted by a law enforcement officer shall not be admissible unless a record of the identification procedure is made.” In addition to mandating the form and contents of the record, the rule also identifies the remedies available if the record “is lacking in important details . . . and if it was feasible [for law enforcement] to obtain and preserve those details.” The trial “court may, in its sound discretion and consistent with appropriate case law, declare the identification inadmissible, redact portions of the identification testimony, and/or fashion an appropriate jury charge to be used in evaluating the reliability of the identification.”

Facts of State v. Anthony

Eugene Roberts pulled into the driveway of his home in Newark. As Roberts got out of his car, three men approached him. One of the men pointed a revolver at Roberts’ torso and demanded money. Another man, later identified as defendant Ibnmauric Anthony, asked for Roberts’ car keys. The man searched the car as Roberts watched and then tossed the keys to the ground before all three walked away. Roberts called the police and gave a statement.

Two days later, Roberts returned to the police station to look at a photo array. Detective Karima Hannibal administered the array. She was not involved in the case and did not know the suspect’s identity. Detective Hannibal read a series of instructions to Roberts, showed him the array, and recorded his response. She used three pre-printed Newark Police Department forms to document the identification procedure.

A grand jury indicted Anthony, who moved to suppress the out-of-court identification and asked for a pretrial hearing under United States v. Wade, 388 U.S. 218 (1967) and Henderson. Anthony argued that it was improper for law enforcement officers not to memorialize or record the dialogue during the viewing of the photo array because there was no way to know if any impermissibly suggestive behavior took place.

The trial court denied the defendant’s motion and request for a pretrial hearing. Trial began, and the case rested on Roberts’ identification. To instruct the jury, the trial court used the model jury charge for eyewitness identification, Model Jury Charges (Criminal), “Identification: In-Court and Out-of-Court Identifications” (Identification Charge). Anthony did not object or ask for a supplemental charge about the administration or recording of the photo array. The jury convicted defendant on all counts.

The Appellate Division affirmed Anthony’s conviction. The panel found that “the failure to record Roberts’ actual words” of confidence was not “a sufficient violation (if a violation at all) of Delgado and Rule 3:11 to warrant exclusion of the evidence.” The Appellate Division also rejected Anthony’s belated challenge that it was plain error for the court not to instruct the jury about that circumstance.

NJ Supreme Court’s Decision in State v. Anthony

The New Jersey Supreme Court remanded the case back to the trial court to determine if a new trial is warranted. “Because Rule 3:11 was not fully followed, and because the record does not reveal whether the shortcomings were technical or substantive, the Court remands for a full hearing consistent with Wade and Henderson,” the court ruled.

In reaching its decision, the court made several changes to the way eyewitness identifications must be conducted in New Jersey. To more clearly state the order of preference for preserving an identification procedure, the court held that Rule 3:11(b) should be revised accordingly:

Officers are to record all identification procedures electronically in video or audio format. Preferably, an audio-visual record should be created. If it is not feasible to make an electronic recording, officers are to contemporaneously record the identification procedure in writing and include a verbatim account of all exchanges between an officer and a witness. If a contemporaneous, verbatim written account cannot be made, officers are to prepare a detailed summary of the identification as soon as practicable. The Court relies on its supervisory powers to require, further, that when it is not feasible to make an electronic recording of an identification procedure, law enforcement officers must document the reasons for not having done so. The same requirement applies when officers cannot prepare a contemporaneous, verbatim written account.

The New Jersey Supreme Court also modified the framework first outlined in Henderson. Under the new framework, a defendant will be entitled to a pretrial hearing on the admissibility of identification evidence if Delgado and Rule 3:11 are not followed and no electronic or contemporaneous, verbatim written recording of the identification procedure is prepared. In such cases, defendants will not need to offer proof of suggestive behavior tied to a system variable to get a pretrial hearing.

The New Jersey Supreme Court next turned to the appropriate jury charge for a violation of Rule 3:11. It noted that the Identification Charge includes the following language on pre-identification instructions: “If you find that the police [did/did not] give this instruction to the witness, you may take this factor into account when evaluating the identification evidence.” The court went on to hold that similar language can be used to instruct a jury about the failure to preserve an identification procedure. As the court explained:

In such cases, jurors should be told that officers are required to record identification procedures electronically; if that is not feasible, they are required to prepare a contemporaneous, verbatim written account of the procedure. If the police did not follow that practice, and, for example, did not capture the dialogue between the witness and the officer, or record a statement of confidence in the witness’ own words, the jury may take that into account when it evaluates the identification evidence.

Finally, turning to the facts of the case, the New Jersey Supreme concluded that the officers did not comply with Rule 3:11 or Delgado in full. “Under the circumstances, perhaps the best option was one not available at the time: a hearing to assess the reliability of the identification even though defendant could not present evidence of suggestiveness,” the court noted. “A hearing would have benefitted not only defendant but also the trial court, by enabling it to fulfill its gatekeeping role.”

The New Jersey Supreme Court remanded to the trial court for such a hearing. “At this time, without a more complete record, the Court does not find that the absence of a supplemental charge was plain error,” the court held. It further noted that the defendant would have the opportunity to challenge the verdict on remand.

“If damaging evidence about feedback, witness confidence, or some other factor that affects memory is developed at the hearing, he may have a strong case and be entitled to a new trial,” the court wrote. “On the other hand, if it turns out that the police essentially tracked Roberts’ full statement of confidence on the photo display report form and offered no confirmatory feedback, defendant would be hard-pressed to show that a technical violation of Rule 3:11(d) was ‘clearly capable of producing an unjust result.’”

In Joshua Haines v. Jacob W. Taft, (A-13/14-17) (Decided March 26, 2019), the Supreme Court of New Jersey held that that plaintiffs who elected limited $15,000 personal injury protection (PIP) coverage can’t seek economic damages for the difference between their reduced limit and the amount of their unpaid medical bills, totaled up to the presumptive PIP limit of $250,000. 

Facts of Joshua Haines v. Jacob W. Taft

Each plaintiff in the consolidated appeal was injured in a car accident. Each was insured under a standard policy with insurance that provided for $15,000 in PIP coverage instead of the default amount of $250,000. Neither plaintiff was able to sustain a claim for bodily injury (noneconomic loss) due to each policy’s limitation-on-lawsuit option. Each was suing for outstanding medical provider charges in excess of their elected PIP coverage ($28,000 and $10,000, respectively).

Each plaintiff filed a personal injury claim, and each defendant moved to preclude plaintiff from presenting evidence of medical expenses that exceeded their $15,000 PIP limits. Defendants relied on N.J.S.A. 39:6A-12 (Section 12), which addresses the inadmissibility of evidence of losses collectible under personal injury protection, as well as Roig v. Kelsey, 135 N.J. 500 (1994). In Roig, the Court held that the public policies underlying the no-fault system required that Section 12 be construed to prohibit injured parties from recovering medical deductibles and copayments from a tortfeasor.

In opposition to the motion, plaintiff Joshua Haines maintained that medical bills exceeding PIP coverage constitute “economic loss” as that term presently is defined in N.J.S.A. 39:6A-2(k) and that evidence of such medical bills should thus be admissible. Similarly, plaintiff Tuwona Little distinguished the present case from Roig, stating that, in amending the definition of economic loss to include “medical expenses” after Roig, the Legislature “clearly evinced its intention to allow recovery [in tort] for medical expenses.”

The trial courts ruled against plaintiffs in each case and prohibited them from admitting evidence of their medical expenses that exceeded their $15,000 PIP limits. After consolidating the cases on appeal, the Appellate Division reversed both trial court orders.

Majority Decision in Joshua Haines v. Jacob W. Taft

The New Jersey Supreme Court reversed by a vote of 3-2, concluding that the Appellate Division’s decision is “at odds with the overall intent of the legislative scheme for no-fault insurance.” Justice LaVecchia wrote the majority opinion, in which Chief Justice Rabner and Justice Solomon joined.

The Court reasoned that in the absence of “greater clarity of statutory language,” any other result would create “too large of a shift from the historical priorities and purposes of the statute.” As Justice LaVecchia explained:

We cannot conclude that there is evidence of a clear intention on the part of the Legislature to deviate from the carefully constructed no-fault first-party PIP system of regulated coverage of contained medical expenses and return to fault-based suits consisting solely of economic damages claims for medical expenses in excess of an elected lesser amount of available PIP coverage. Unless the Legislature makes such an intent clearly known, we will not assume that such a change was intended by the Legislature through its amendments to the no-fault system in the Automobile Insurance Cost Reduction Act (AICRA).

The majority further found that interpreting Section 12 to allow the admission of evidence of medical expenses falling between the insured’s PIP policy limit and the presumptive PIP amount of $250,000 transgresses the overall legislative design of the No-Fault Law to “reduc[e] court congestion[,] . . . lower[] the cost of automobile insurance[,]” and most importantly, avoid fault-based suits in a no-fault system, as acknowledged in Roig.

Finally, the court invited the Legislature to intervene to clarify its intent. “Should the Legislature disagree with our restrained interpretation of its statutory scheme, we invite the Legislature to make its intention to introduce fault-based suits into the no-fault medical reimbursement scheme more explicit,” Justice LaVecchia wrote.

Dissent in Joshua Haines v. Jacob W. Taft

Justice Albin authored a dissent, which was joined by Judge Fuentes (temporarily assigned). Justice Albin argued that N.J.S.A. 39:6A-12 is intended to prevent a double recovery of damages, not to deny an automobile accident victim a just recovery of damages. He further maintained that the majority’s interpretation is at odds with the plain wording of N.J.S.A. 39:6A-12, the legislative history of the No Fault Act, and public policy. Justice Albin also argued that the majority’s decision “will have a devastating impact on low-income insureds who must settle for less PIP coverage options because they cannot afford the highest coverage.” 

In State v. Hester, A-91-16/079228 (Decided May 30, 2018),the Supreme Court of New Jersey struck down 2014 amendments to the Violent Predator Incapacitation Act (VPIA), which is part of Megan’s Law. The state’s highest court found that the amendments violated the Ex Post Facto Clauses of the U.S. and New Jersey Constitutions because they enhanced the punishments for defendants’ violations of the terms of their supervised release,

Legal Background of State v. Hester

The U.S. Constitution and the New Jersey Constitutions prohibit the State from passing an “ex post facto law.” An ex post facto law is one that applies to events occurring before its enactment and disadvantages the offender affected by it. A retroactive law that merely effects a procedural change to a statutory scheme will fall outside of the constitutional prohibition. Meanwhile, a law that retroactively imposes additional punishment to an already completed crime disadvantages a defendant, and therefore is a prohibited ex post facto law.

Facts of State v. Hester

Under the Violent Predator Incapacitation Act (VPIA), a defendant convicted of certain sex offenses is required to serve a special sentence of community supervision for life (CSL). As a result of their sex-offense convictions, Defendants Melvin Hester, Mark Warner, Anthony McKinney, and Linwood Roundtree were required to serve a special sentence of community supervision for life after completion of their prison terms.  The commission of their offenses, the judgments of their convictions, and the commencement of their sentences all preceded amendments to the VPIA that took effect on July 1, 2014 (2014 Amendment).

Prior to the 2014 Amendment, a violation of the terms of CSL was punishable as a

fourth-degree crime.  The 2014 Amendment increased a CSL violation to a third-degree crime punishable by a presumptive term of imprisonment, and such a violation converted CSL to parole supervision for life (PSL). Unlike CSL, PSL authorizes the New Jersey Parole Board to revoke an offender’s supervised release for a PSL violation and to return the offender to prison. 

After enactment of the 2014 Amendment, all four defendants allegedly violated the terms of their CSL.  They were indicted for committing third-degree offenses and faced the increased penalties provided by that Amendment.  The trial courts presiding over defendants’ cases concluded that the 2014 Amendment’s enhanced penalties, as applied to defendants, violated the Ex Post Facto Clauses of the United States and New Jersey Constitutions and dismissed the indictments. The Appellate Division affirmed.

New Jersey Supreme Court’s Decision in State v. Hester

The New Jersey Supreme Court affirmed the dismissal of the indictments against the defendants. It agreed that the Federal and State Ex Post Facto Clauses bar the retroactive application of the 2014 Amendment to defendants’ CSL violations.

“The 2014 Amendment retroactively increased the punishment for defendants’ earlier committed sex offenses by enhancing the penalties for violations of the terms of their supervised release,” the court explained. “The Amendment, therefore, is an ex post facto law that violates our Federal and State Constitutions as applied to defendants.”

In reaching its decision, the New Jersey Supreme Court highlighted that the present case was not substantively different from State v. Perez, 220 N.J. 423 (2015), where the court held that the 2003 Amendment to N.J.S.A. 2C:43-6.4, which retroactively altered a defendant’s status from CSL to PSL, exposed a defendant to an increased punishment for a violation of supervised release, and therefore contravened the Federal and State Ex Post Facto Clauses. 

“In effect, the 2014 Amendment materially altered defendants’ prior sentences to their disadvantage – increasing to a third-degree crime a violation of the terms of their supervised release and converting their CSL to PSL, thus empowering the Parole Board to return them to prison for a violation, such as failing to report a change of address,” the court wrote. “The 2014 Amendment effected not a simple procedural change but rather one that offends the very principles animating the Ex Post Facto Clauses of our Federal and State Constitutions.”

In Alexandra Rodriguez v. Wal-Mart Stores, Inc., No. A-2/3-17/079470 (March 4, 2019), the New Jersey Supreme Court held that the admissibility of medical expert testimony using terms such as “somatization” and “symptom magnification” must be determined by trial courts on a case-by-case basis, consistent with the New Jersey Rules of Evidence (N.J.R.E.). The decision struck down the Appellate Division’s bright-line rule barring such testimony.

Facts of Alexandra Rodriguez v. Wal-Mart Stores, Inc.

While shopping in a store owned and operated by defendant Wal-Mart Stores, Inc., plaintiff Alexandra Rodriguez was struck by a falling clothing display rack. She later brought a negligence suit against Wal-Mart. After nerve decompression surgery failed to relieve her symptoms, Dr. Phillip Getson diagnosed Rodriguez with Chronic Regional Pain Syndrome (CRPS).

In her injury suit, Rodriguez asserted that Wal-Mart’s negligence caused her pain and CRPS. Dr. Getson and Robert Knobler, M.D., Ph.D., a neurologist, testified as expert witnesses on the plaintiff’s behalf. Plaintiff’s counsel asked Dr. Getson whether he believed plaintiff was “somaticizing” in light of her history of depression and whether her history of “psychiatric familial issues” could have caused her CRPS. Dr. Getson concluded that her psychological issues had nothing to do with her CRPS diagnosis. Dr. Knobler opined that if plaintiff’s CRPS were “psychologically caused, it would have manifested itself much earlier” than it did.

Dr. Benjamin Mark, a board-certified neurologist and internist who examined Rodriguez in his office prior to trial, took the stand as Wal-Mart’s first medical expert witness. Dr. Mark opined that he could not find “anything objective aside from [her] subjective complaints of pains,” adding that her symptoms “[did] not make clinical sense neurologically.” The trial court allowed Dr. Mark to testify about somatization and, subject to the judge’s limiting instruction, about symptom magnification.

At the close of the parties’ evidence, the court reminded the jury that only they determine the existence of facts upon which an expert relies and an expert’s credibility. The jury unanimously determined that plaintiff failed to prove by a preponderance of the evidence that Wal-Mart was negligent and thus liable for her injuries.

The Appellate Division reversed the jury verdict and remanded the case for a new trial. The appeals court held that expert testimony from a doctor, presented as a medical opinion, that “characterizes a plaintiff as a ‘malingerer’ or a ‘symptom magnifier,’ or some other negative term impugning the plaintiff’s believability” is “categorically disallowed” at a civil jury trial under N.J.R.E. 403. The Appellate Division also found the trial court’s limiting instruction insufficient to “ameliorate the undue harm of admitting the expert opinion. With respect to Dr. Mark, the appellate court concluded that he was not qualified to testify about “symptom magnification and related concepts” because he “lacked appropriate qualifications.”

New Jersey Supreme Court’s Decision in Alexandra Rodriguez v. Wal-Mart Stores, Inc.

The New Jersey Supreme Court reversed. It held that the admissibility of medical expert testimony utilizing terms such as “somatization” and “symptom magnification” must be determined by trial courts on a case-by-case basis, consistent with N.J.R.E. 403.

As explained by the court, N.J.R.E. 401 defines relevant evidence as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” Relevant evidence is inadmissible under N.J.R.E. 403 when its probative value is so significantly outweighed by its inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case.

In this case, the New Jersey Supreme Court found that there was no abuse of discretion in the trial court’s allowing the use of the terms “somatization” and “symptom magnification.” With respect to relevancy, the court explained that Dr. Mark’s testimony on “somatization” and “symptom magnification” was relevant because “somatization” was first described in detailed testimony by plaintiff’s medical expert, because Dr. Mark’s testimony challenged plaintiff’s theory of causation in this negligence action, and because CRPS is a diagnosis of exclusion that required Rodriguez’s physicians to rule out all of her previous mental health issues and accidents as possible factors prior to reaching a CRPS diagnosis. As Justice Lee Solomon explained:

In light of her previous accidents, her “multiple surgeries” to treat her chronic abdominal pain and obstetric/gynecological issues, her “intractable disabling pains involving her lower back and her right leg,” her struggles with depression, and her lengthy psychiatric history, Dr. Mark offered “somatization” as a possible explanation. Importantly, Dr. Mark defined “somatization” as “a process where individuals describe experiencing symptoms of various types that are not accompanied by objective findings and interpretations.” He did not use the far more descriptive definition of “somatization” found in Stedman’s Medical Dictionary — “a wish for material gain associated with a legal action following an injury” — which would have implied that plaintiff was dishonest. Under these circumstances, we conclude that Dr. Mark’s testimony about plaintiff’s possible “somatization” was probative, and not so “inherently inflammatory . . . as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case.”

With respect to the term “malingering,” the New Jersey Supreme Court acknowledged that the term raises heightened concerns since it may implicate credibility. However, it reversed the Appellate Division’s bright-line rule rejecting the use of “malingering” expert testimony in civil jury trials. Rather, it held that a medical expert’s use of the term must be carefully scrutinized, applying an N.J.R.E. 403 balancing test, reviewed on appeal under an abuse of discretion standard.

In State v. Chisum (decided February 5, 2019) the Supreme Court of New Jersey held that police officers lacked a reasonable suspicion to justify detaining 10 party guests in a motel room after concluding their investigation of a noise complaint. Accordingly, the weapons they discovered during the investigatory detention were illegally seized and must be suppressed.

Facts of State v. Chisum 

Shortly before midnight on February 7, 2014, two Neptune police officers, Officer Harris and Officer Sibole, responded to a noise complaint at a motel room at the Crystal Inn Motel. The officers decided not to issue a summons when the renter of the room immediately complied with their request to turn down the music. The police nevertheless conducted an investigatory detention on a group of ten people and ran warrant checks on them. More than twenty minutes into the detention, police arrested defendant Deyvon Chisum for an outstanding warrant and discovered a concealed firearm on him. They then conducted pat-down searches on the remaining occupants and found a firearm on defendant Keshown Woodard. The handgun was seized, and Woodard was placed under arrest. Chisum and Woodard were indicted for weapons offenses.

The trial court denied defendants’ motions to suppress the evidence. It determined that the police entered the motel room lawfully, Chisum was properly arrested because he had an outstanding warrant, and the seizure of the firearm he possessed was obtained through a lawful search incident to arrest. The trial court also found that the police were justified in conducting pat-down searches of the remaining occupants in the room for the officers’ safety. Chisum pled guilty to one weapons charge; Woodard pled guilty to one weapons offense and to a drug possession offense arising from an unrelated indictment. The Appellate Division panel affirmed. 

Court’s Decision in State v. Chisum 

The Supreme Court of New Jersey reversed. “Once the renter of the motel room lowered the volume of the music and the police declined to issue summonses, the police no longer had any reasonable suspicion that would justify the continued detention of the room’s occupants. Once the noise was abated, the police no longer had an independent basis to detain the occupants, or a basis to run warrant checks on them,” Justice Faustino Fernandez-Vina wrote. “Such action was unlawful. And because the detention and warrant checks were unlawful, the subsequent pat-down of Woodard was also improper.”

In reaching its decision, the court explained that an investigative detention (also known as a Terry stop) that is premised on less than reasonable and articulable suspicion is an unlawful seizure. In addition,  evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule.

“[P]olice officers are required to use the least intrusive means necessary in effectuating the purpose of an investigative detention, and such a detention cannot last any longer than necessary to effectuate the purpose of the stop,” Fernandez-Vina explained. “The police officers in this instance clearly did not use the least intrusive means necessary to carry out their investigative detention.”

The court emphasized in State v. Chisum that just because a location to which police officers are dispatched is a high-crime area does not mean that the residents in that area have lesser constitutional protection from random stops. It further highlighted that Crystal Inn’s reputation as a place where previous criminal activity transpired was unconnected to the circumstances surrounding the specific noise complaint on the night in question.

While New Jersey Supreme Court acknowledged that the importance of police officer safety, it found that it is “insufficient justification for police officers to detain ten occupants of a motel room and run warrant checks on each of them simply because citizens violated a noise ordinance and then promptly abated the noise upon police arrival.” Because the investigative detention was based on less than reasonable suspicion, the seizure of the weapon on Chisum was unlawful and subject to the exclusionary rule. The court further held that the subsequent need to pat-down Woodard was also unnecessary, and the firearm found on him was also subject to the exclusionary rule. The court remanded the cases back the trial court for the withdrawal of defendants’ guilty pleas and further proceedings.

New Jersey’s ban on restaurants advertising “bring your own beer” (BYOB) is unconstitutional, according to a recent federal court decision. In GJJM Enterprises v. City of Atlantic City, Judge Joseph Rodriguez of the District of New Jersey ruled that the ban “places a content-based restriction on speech that fails strict scrutiny because it is not supported by a compelling government interest nor is it the least restrictive means of achieving the government’s stated purpose.” 

NJ Law Governing BYOB

N.J.S.A. 2C:33-27governs the consumption of alcohol at restaurants without a license to sell alcoholic beverages. It provides in part: 

No person who owns or operates a restaurant, dining room or other public place where food or liquid refreshments are sold or served to the general public, and for which premises a license or permit authorizing the sale of alcoholic beverages for on-premises consumption has not been issued: 

(1) Shall allow the consumption of alcoholic beverages, other than wine or a malt alcoholic beverage, in a portion of the premises which is open to the public; or 

(2) Shall charge any admission fee or cover, corkage or service charge or advertise inside or outside of such premises that patrons may bring and consume their own wine or malt alcoholic beverages in a portion of the premises which is open to the public. 

(3) Shall allow the consumption of wine or malt alcoholic beverages at times or by persons to whom the service or consumption or alcoholic beverages on licensed premises is prohibited by State or municipal law or regulation. 

Accordingly, the statute prohibits restaurants from notifying customers that their establishments are BYOB, even though it is lawful for patrons to bring and consume their own beer or wine on the premises. Individuals who advertise that customers may BYOB to their restaurants face a disorderly persons offense. 

Facts of the Case

Plaintiff GJJM Enterprises, LLC (GJJM) operates a nightclub called Stiletto (Club) adjacent to the Atlantic City boardwalk. The Club features non-alcoholic beverages and live entertainment and frequently hosts tourists, convention groups, and bachelor parties. GJJM allows customers to bring their own beer and wine to the Club; because it does not have a liquor license, it does not allow customers to consume liquor or mixed drinks in the Club. It also may not advertise that customers can BYOB.

In 2017, GJJM sued to overturn the ban. GJJM contended that the fear of prosecution under New Jersey’s ban on BYOB advertising has prevented it from notifying its patrons–either through radio, print, television, and online ads or by signage–that they are permitted to bring their own beer or wine into the Club. 

Court’s Decision 

The court concluded that New Jersey’s ban on BYOB advertising runs afoul of the First Amendment. “The Court finds the State’s BYOB advertising ban – specifically, the language of the statue that reads ‘or advertise outside or inside the premises’ – to be unconstitutional,” Judge Rodriguez wrote.

In reaching its decision, the court analyzed the statute under both strict and intermediate scrutiny, and concluded it passed neither standard. The court concluded that the statute should be subject to strict scrutiny, citing Reed v. Town of Gilbert, Ariz., __U.S. __, 135 S. Ct. 2218, 2226 (2015). Reedheld that “[c]ontent-based laws– those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”

Judge Rodriguez explained, “[a]s in Reed, here the BYOB advertising ban ‘on its face’ draws distinctions based on the message the speaker conveys . . . The ban is therefore presumptively unconstitutional and subject to strict scrutiny.” The court further noted that the ban does not leave any alternative channels of communication available, but completely prohibits truthful, non-misleading commercial speech about a lawful product. 

According to the court, “State Defendants presented no compelling government interest for banning BYOB advertising, while permitting liquor stores and restaurants with liquor licenses to advertise on-site alcohol sales.” While the court acknowledged that New Jersey has a strong interest in regulating alcoholic beverages to protect the health, safety, and welfare of its residents, it noted that the Supreme Court has made clear—specifically with respect to the advertisement of alcoholic beverages—that banning speech is different from and more intrusive than banning conduct. 

The ban also failed the more lenient commercial speech standard set forth in 44 Liquor Mart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996). It again found the statute unconstitutional. “Allowing BYOB advertising would concern a lawful activity and not be misleading,” Judge Rodriguez concluded. “The State has neither asserted a substantial interest in regulating the speech at issue, nor shown that the regulation directly advances the governmental interest asserted, and is not more extensive than necessary to serve that interest.” He added, “[w]hile the State may, and does, regulate conduct regarding alcoholic beverages, it has not shown that regulating the speech concerning that conduct furthers a governmental interest sufficient to override the constitutional rights at stake in this case.” 

Judge Rodriguezdirected the parties to provide the court with a proposed permanent injunction striking the language of the statue that reads, “or advertise outside or inside the premises” to reflect the court’s decisions.

For more information about GJJM Enterprises v. City of Atlantic Cityor the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

The Supreme Court of New Jersey ruled in Josh Finkelman v. National Football League  (NJ, 2019) that the National Football League (NFL) did not run afoul of the New Jersey Ticket Law when distributing tickets to the 2014 Super Bowl. According to the unanimous court,

New Jersey Ticket Resale Law

At the time of the suit, N.J.S.A. 56:8-35.1 regulated ticket sales to sports and entertainment events. Section 35.1 provides:

It shall be an unlawful practice for a person, who has access to tickets to an event prior to the tickets’ release for sale to the general public, to withhold those tickets from sale to the general public in an amount exceeding 5% of all available seating for the event.

While the consumer protection law was in force when the Super Bowl was held in New Jersey on February 2, 2014, the New Jersey Legislature subsequently repealed it, effective February 1, 2019.

Facts of Josh Finkelman v. National Football League

The NFL, following its established practice for Super Bowl games, sold one percent of the tickets to the 2014 Super Bowl to members of the public who had won the right to purchase those tickets in an NFL-sponsored lottery. The NFL gave the remaining ninety-nine percent of the tickets to teams, broadcast networks, corporate sponsors, and other individuals and entities.

Plaintiff Josh Finkelman filed a federal lawsuit alleging that the NFL’s allocation of the 2014 Super Bowl tickets constituted “withhold[ing]” of an excessive percentage of those tickets contrary to section 35.1. In his individual capacity and as the representative of a proposed class of individuals who either bought 2014 Super Bowl tickets at premium prices on the secondary market or could not afford to do so, Finkelman seeks various remedies including treble damages under the Consumer Fraud Act (CFA). The United States District Court for the District of New Jersey dismissed the action, and the plaintiff appealed.

The Third Circuit asked the New Jersey Supreme Court to clarify section 35.1. It accepted and reformulated the certified question as follows:

1) Is the term “person[] who has access to tickets to an event prior to the tickets’ release for sale to the general public,” as that term is used in [section 35.1], limited to ticket brokers and resellers?

2) Are tickets to an event that are sold to winners of a lottery “release[d] for sale to the general public” within the meaning of [section 35.1], and, if so, are tickets distributed to selected entities “[withheld] . . . from sale to the general public” within the meaning of [section 35.1]?

NJ Supreme Court’s Decision in Josh Finkelman v. National Football League

In response to the first question, the New Jersey Supreme Court construed the term “person” in section 35.1 to include not only ticket brokers and resellers, but also other individuals and entities with “access to tickets to an event prior to the tickets’ release for sale to the general public.” N.J.S.A. 56:8-35.1.

Accordingly, the court determined that the sale of tickets to winners of the NFL’s ticket lottery to constitute a “release for sale to the general public” within the meaning of section 35.1.

As for the second question, the court concluded that the Super Bowl tickets sold to lottery winners were the only 2014 Super Bowl tickets designated by the NFL for “release for sale to the general public” within the meaning of section 35.1.

“The tickets at the heart of plaintiff’s action were part of the ninety-nine percent of tickets reserved long before the 2014 Super Bowl for specific entities with ties to the NFL,” Justice Anne Patterson wrote. “Those tickets were never destined to be part of a public sale.”

In reaching its decision, the court rejected the plaintiff’s argument that the Legislature enacted section 35.1 to ensure that ninety-five percent of all seats for an event would be available to the general public for purchase.

“The Legislature sought to impose a more modest constraint on the sale of tickets to sports and entertainment events,” Justice Patterson wrote. “We do not consider the NFL’s distribution of other tickets to the 2014 Super Bowl to its teams, other selected individuals, and entities to constitute the unlawful withholding.”

A New York federal judge recently gave sanctuary cities a significant legal victory. U.S. District Judge Edgardo Ramos of Manhattan issued a permanent injunctionprohibiting the Department of Justice (DOJ) from imposing immigration-related conditions on Edward Byrne Memorial Assistance Grant (Byrne-JAG) public safety funds distributed in New Jersey, as well as New York City, the state of New York, Connecticut, Virginia, Washington, Rhode Island, and Massachusetts.

Facts of the Case

The plaintiffs all received funding for criminal justice initiatives through the Byrne JAG program. Under the program, states and localities may apply for funds to support criminal justice programs in a variety of categories, including law enforcement, prosecution, crime prevention, corrections, drug treatment, technology, victim and witness services, and mental health. The funds are disbursed according to a formula based on the particular jurisdiction’s population and violent crime statistics. 

In 2017, the DOJ imposed three immigration-related grant conditions that grantees must comply with in order to receive funding. According to the DOJ press release announcing the change, the conditions were intended to “encourage . . . ‘sanctuary’ jurisdictions to change their policies and partner with federal law enforcement to remove criminals.”

The first condition requires grantees, upon request, to give advance notice to the Department of Homeland Security (DHS) of the scheduled release date and time of aliens housed in state or local correctional facilities. The second condition requires grantees to give federal agents access to aliens in state or local correctional facilities in order to question them about their immigration status (the “Access Condition”). The third condition requires grantees to certify their compliance with 8 U.S.C. § 1373, which prohibits states and localities from restricting their officials from communicating with immigration authorities regarding anyone’s citizenship or immigration status (the “Compliance Condition”). 

Under the DOJ policy, grantees are also required to monitor any subgrantees’ compliance with the three conditions, and to notify DOJ if they become aware of “credible evidence” of a violation of the Compliance Condition. Grantees must also certify their compliance with the three conditions, which carries the risk of criminal prosecution, civil penalties, and administrative remedies. 

Court’s Decision

Judge Ramos granted a permanent injunction against the parties before the Court and their political subdivisions as to the three immigration-related grant conditions. “Consistent with every other court that has considered these issues,” Ramos wrote, “the court concludes that defendants did not have lawful authority to impose these conditions.”

In reaching this determination, Judge Ramos relied on the U.S. Supreme Court’s sports gambling decision in Murphy v. National Collegiate Athletic Association. “It necessarily follows that [8 U.S. Code Section 1373] is unconstitutional under the anticommandeering principles of the Tenth Amendment,” Judge Ramos wrote. “Section 1373’s prohibition on states and localities from restricting their officials from communicating with immigration authorities constitutes a ‘direct order’ to states and localities in violation of the anticommandeering rule.”

Judge Ramos also determined that the three immigration-related conditions violated the separation of powers. “This case is fundamentally about the separation of powers among the branches of our government and the interplay of dual sovereign authorities in our federalist system,” he wrote.Judge Ramos further explained:

Congress has neither conditioned Byrne JAG funds on the three conditions here nor delegated the authority to impose these conditions to the executive branch. The Byrne JAG statute provides ‘a firm commitment’ of funding according to statutorily prescribed criteria, and the executive branch does not have ‘the seemingly limitless power to withhold funds’ from grantees who refuse to accept its unilaterally imposed conditions.

Judge Ramos also agreed that “complying with the unlawful conditions would undermine trust between immigrant communities and local government, which would discourage individuals from reporting crimes, cooperating with investigations, and obtaining medical services, thereby harming public safety and welfare.”

For more information about the court’s decision regarding sanctuary cities or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

The U.S. Supreme Court recently heard oral arguments in Timbs v. Indiana, regardingwhether the Excessive Fines Clause of the Eighth Amendment applies against the states. That clause remains one of the few provisions of the Bill of Rights that has not yet been ruled applicable to the states through the doctrine of incorporation. 

Civil Asset Forfeiture

As Petitioner Tyson Timbs noted in his petition for certiorari, fines and forfeitures have grown significantly at the state and local levels. In basic terms, civil asset forfeiture is a legal tool that allows law enforcement officials to seize property that is alleged to have played a role in criminal activity. To seize property, the owner of the property does not need to be convicted of a crime. Rather, civil asset forfeiture proceedings charge the property itselfwith being involved in a crime.

Civil asset forfeiture proceedings are proceedings in rem, literally, “against a thing,” rather than the typical adversarial legal proceeding in which the two parties are human beings or, at least, an office staffed by human beings, such as an attorney general’s office.  This leads to curious case titles like, “State of New Jersey v. $4194.00 in U.S. Currency” (A-4340-11 (App. Div. 2014)) and “United States v. 1855.6 Pounds of American Paddlefish Meat and 982.34 Pounds of American Paddlefish Caviar,” filed recentlyin Indiana.  

Because forfeitures are civil actions, the government bears the burden of proving its case by a preponderance of the evidence rather than “beyond a reasonable doubt,” as the standard would be for a criminal trial.  This means that if the government shows it is more likely than not that there exists some nexus between the property—any property of any value—and the crime, the government may seize the property.

The stated goal of civil asset forfeiture is to punish criminals by forcing them to forfeit the fruits of their crimes. Thereafter, the proceeds can be used to fund further law enforcement activities. However, in recent years, civil asset forfeiture has come under fire for being used as a way for local governments to generate revenue, and the topic has arisen in popular culture, including a segment on “Last Week Tonight with John Oliver.”

Eighth Amendment’s Excessive Fines Clause

The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” While the Supreme Court has previously held the Eighth Amendment’s ban on excessive bail and cruel and unusual punishment applies to the states, it has not addressed excessive fines. 

The Court has, however, addressed federal fines. In Austin v. United States, the Supreme Court held that federal in remforfeitures that are punitive in nature are “subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.” Later, in United States v. Bajakajian, the Court held thata forfeiture of a large amount of currency ran afoul of the Eight Amendment because it was “grossly disproportional to the gravity of [the] offense.”

Facts of Timbs v. Indiana

Tyson Timbs is an Indiana man who was forced to forfeit his $42,000 Land Rover after being convicted on state drug charges in Indiana. On two occasions, Timbs sold heroin to undercover police officers as a means of funding his own drug habit. Police arrested Timbs while he was driving to a third drug deal, and he ultimately pleaded guilty. He was sentenced to home detention and probation. 

Several months after Timb’s arrest, a private law firm filed a case to forfeit his vehicle on behalf of the State. The trial court held an evidentiary hearing on the State’s forfeiture request and ultimately determined that forfeiture would be “grossly disproportional to the gravity of [Petitioner’s] offense” and thus unconstitutional under the Eighth Amendment’s Excessive Fines Clause. “While the negative impact on our society of trafficking in illegal drugs is substantial,” the court acknowledged, “a forfeiture of approximately four (4) times the maximum monetary fine is disproportional to [Petitioner’s] illegal conduct.” 

A divided panel of the Indiana Court of Appeals affirmed, agreeing that the forfeiture of Petitioner’s vehicle would be unconstitutionally excessive. The Indiana Supreme Court reversed. That Court held that the U.S. Supreme Court has never expressly found that the excessive fines clause of the Eighth Amendment applies to the states, and principles of federalism precluded the imposition of “federal obligations on the State that the federal government itself has not mandated.”

Issues Before the Supreme Court

The Indiana Supreme Court’s decision is at odds with two federal circuit courts of appeal and at least 14 state high courts that apply the Excessive Fines Clause to the states. The Supreme Court must now resolve the split among these courts. 

Given that the rest of the Eight Amendment has been incorporated, the Supreme Court is likely to apply the Excessive Fines Clause to the states. The justices’ questioning during oral arguments suggested as much. When counsel for Indiana Solicitor General Thomas Fisher took the podium, Justice Neil Gorsuch said, “We all agree that the Excessive Fines Clause is incorporated against the states…can we at least get the theoretical question off the table?” Justice Brett Kavanaugh added, “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”

The more contentious questions will likely be the extent to which the Excessive Fine Clause applies to asset forfeiture, and what rises to the level of “excessive.” One of the highlights of oral argument was when Justice Stephen Breyer asked Indiana solicitor general Thomas Fisher whether Indiana could seize “a Bugatti” or other high-end car from a person convicted of speeding five miles over the limit.  Fisher replied that it could, because in remforfeitures “have always been harsh.” Justice Breyer was incredulous.  

As Justice Elena Kagan put it, “it just seems as though there are two questions. And one question is incorporating the right, and the other question is the scope of the right to be incorporated.”  Certainly, Justice Breyer believes the scope of “excessive” should be widened beyond the State of Indiana’s understanding.  Where the rest of the Court will fall, or whether the justices will tackle the scope question at all, will be revealed when theCourt releases its opinion in Timbs v. Indiana,before the end of the term in June 2019. We encourage you to check back for updates. 

For more information about the caseor the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

Morris County is asking the U.S. Supreme Court to determine whether excluding religious institutions from receiving taxpayer funds as part of a historic preservation program conflicts with the Supreme Court’s decision in Trinity Lutheran v. Comer and the First Amendment’s Free Exercise Clause. 

Facts of the Case

In 2002, the voters of Morris County authorized the County Freeholder Board to permit historic preservation funding under a trust funded by a county property tax.

From 2012 to 2015, the Freeholder Board approved a total of $11,112,370 in grants from the trust fund, over $4.5 million of which went to 12 churches.  All 12 churches “have active congregations” and all “have conducted regular worship services in one or more of the structures” for which grant funds have been or will be used.  Moreover, several successful applicants specifically stated that the funds would be used for religious purposes.  For example, one successful application explained that a grant would “historically preserve the building allowing its continued use by our congregation for worship services as well as by the community.”  Applicants were also determined to have used the funds to restore religious imagery or provide roofing repairs in places of worship.

In 2015, the Freedom From Religion Foundation (“FFRF”) filed suit, alleging that the grants to local churches violated theState’s Religious Aid Clause.  New Jersey’s Religious Aid Clause provides that no person shall be obliged “to pay tithes, taxes or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform.”

New Jersey Supreme Court Decision

Relying on the plain language of the Religious Aid Clause, the New Jersey Supreme Court determined the clause “bars the use of taxpayer funds to repair and restore churches,” therefore, Morris County’s program violated this longstanding provision.  Writing on behalf of the Court, Chief Justice Stuart Rabner further explained that the Religious Aid Clause does not ask about the governing body’s intent (i.e., whether funds could be used to repair churches for historic purposes).  Thus, Justice Rabner provided, “there is no exception for historic preservation.”

The Court further held that the Religious Aid Clause does not conflict with the Free Exercise Clause or Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct. 2012 (2017), because the churches would not be denied a grant simply due to their religious status.  Rather, the churches would be denied the government benefit because the funds awarded would be used for religious purposes.  As mentioned above, several successful applicants used the funds to repair roofing in areas of worship and to restore religious imagery.  The Court distinguished these types of uses from playground resurfacing, which was held in Trinity Lutheranto be a permissible use.

Justice Lee Solomonwrote a separate concurring opinion arguing that the Religious Aid Clause can’t categorically bar churches with active congregations from receiving funds that promote a substantial government purpose, such as historic preservation.  According to Justice Solomon, such a blanket exclusion violates the Free Exercise Clause and Trinity Lutheran.  He further argued that had Morris County’s program been applied in a fundamentally neutral manner, the Religious Aid Clause could not bar funding to an otherwise qualified religious institution.

Petition to the U.S. Supreme Court

The petition for certiorari, which was filed on behalf of Morris County and several religious institutions, presents the following questions:

1. Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran; and
2. Whether the categorical exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status. 

As highlighted in the petition, the lower courts are split on the issue.  In addition to the Supreme Court of New Jersey, the Massachusetts Supreme Judicial Court has also upheld religious exclusions from historic grant programs, concluding that using funds to repair or restore the exterior of a house of worship is a religious use.  The Supreme Court of Vermont and the United States Court of Appeals for the Sixth Circuit have held that such an exclusion would conflict with Trinity Lutheran and violate the Free Exercise Clause by denying a public benefit to an otherwise eligible entity because it is religious.

What’s Next?

The U.S. Supreme Court must now decide whether to grant the petition. While the Justices grant a very small percentage of petitions, the Court did acknowledge in Trinity Lutheran that issues were left open.

For more information about the Freedom from Religion Foundation v. Morris County Board of Chosen Freeholders or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.