NJ State PBA Legal Corner
By Robert A. Fagella, Esq. and Paul L. Kleinbaum, Esq.
The State PBA has participated in many cases in which it is not a direct party. It participates as an amicus curiae – friend of the court— on issues which are of great concern to law enforcement officers and will have a statewide impact.
Our firm has filed amicus briefs and argued orally in cases involving issues such as collective bargaining and interest arbitration, pensions, disciplinary cases, OPRA and attorney general guidelines and directives, just to name a few. Recently, the NJ State PBA filed motions to intervene as amicus curiae in two cases challenging the constitutionality of state laws—specifically, Daniel’s Law and the 180-day rule. The PBA was instrumental in the passage of both laws.
Daniel’s Law was enacted in the aftermath of the murder of federal Judge Esther Salas’ son, Daniel, and the critical wounding of her husband at their home by a disgruntled former litigant. The law generally allows active and retired judges, prosecutors and law enforcement officers to take steps to prevent the disclosure of certain personal information, such as home addresses and unlisted telephone numbers. The law was initially passed in 2020 and has been amended on two occasions.
In Kratovil v. City of New Brunswick and Anthony Caputo, an editor of the online publication New Brunswick Today (NBT) filed a lawsuit after he was advised that he may be subject to civil and criminal penalties if he disclosed the home address of the city’s police director, who also serves on the Parking Authority. The editor alleged that the police director did not live in New Brunswick, but instead lived in Cape May County. After the editor disclosed the town and the street name where the police director allegedly lived in Cape May, the police director sent him a letter advising him that he would be subject to civil and criminal penalties if he disclosed his street address.
The NBT editor, represented by the ACLU, filed a lawsuit against the police director and the city asserting that Daniel’s Law was unconstitutional because it operated as a prior restraint to prevent the editor’s disclosures, which are protected by the First Amendment right to free speech. As part of his lawsuit, the editor filed an order to show cause seeking temporary restraints to prevent the imposition of any civil or criminal penalties.
Because of the important interests involved in this lawsuit, the State PBA filed a motion to intervene as amicus curiae to argue that Daniel’s Law is constitutional. The New Jersey State Association of Chiefs of Police, the NJ FOP and the NJ State Troopers Fraternal Association (STFA) also filed amicus motions. The matter has not yet been heard by the court but is scheduled to be argued before this edition of NJ Cops Magazine goes to press.
The 180-Day Rule refers to the law that generally requires law enforcement officers who are terminated to be placed back on the payroll if their appeals are not resolved within 180 days and any delays are not caused by the officer or his or her attorney.
If an officer is placed back on the payroll, the officer will continue to be paid until the appeal is resolved. However, if the termination is upheld, the officer must repay his or her employer, and the employer has the ability to enforce the reimbursement obligation through a lien. The 180-Day Rule is codified in state law, N.J.S.A. 40A:14-200, et seq. It applies in both NJ Civil Service and non-Civil Service jurisdictions.
The 180-Day Rule was enacted in 2009. At the time, appeals involving terminations were taking far too long to complete, sometimes more than a year. The law is intended to expedite the process so that officers who are terminated are not left without an income if the appeals exceed 180 days. The law has greatly reduced delays in termination hearings.
In cases arising out of Vineland, three officers were terminated, and their appeals were not completed within the 180-day time period. Because the appeals were not completed within the statutory time period, all three officers applied to the NJ Civil Service Commission to request that they be reinstated to the payroll. The civil service commission agreed and ordered the city to begin paying them until the completion of their appeals.
The city did not have the right to appeal the commission’s decisions because they were not final decisions. Any appeal at this interim stage of the process is discretionary. Accordingly, the city filed a motion requesting permission to appeal in the appellate division, asking the court to hear its appeal at this interim stage of the litigation. The basis for the city’s motion is that the statute codifying the 180-Day Rule is an unconstitutional violation of the gift clauses of the New Jersey Constitution.
On behalf of the State PBA, we filed motions to intervene as amicus in the three cases and argued that the statute is constitutional and not a violation of the gift clause and that the appellate court should deny the city’s motions.
Will the attorney general defend both laws?
In cases in which the constitutionality of a state law is challenged, the attorney general must be notified so that the AG has the opportunity to defend the law. The AG has been notified of both cases. As of the writing of this article, we are waiting to hear if the AG will intervene to defend both laws.
The importance of these laws cannot be overstated. They provide significant protections for law enforcement officers. The NJ State PBA can be of assistance to the court in resolving these issues, and we expect that the courts in both cases will grant the State PBA’s motions. We will keep the State PBA and the membership advised of developments in both cases.