Law of the Case Doctrine Does Not Extend From One Party to Another Party Not in Privity

State v. K.P.S., 221 N.J. 266 (2015).  Two defendants who had been charged in the same indictment with many of the same crimes sought to suppress certain evidence.  The Law Division denied their application.  Both defendants were found guilty.  Both appealed the ruling on the suppression motion.  The two appeals were heard by different panels.  The panel that heard the first defendant’s appeal affirmed the Law Division’s refusal to suppress the evidence.  When the appeal of the second defendant, K.P.S., came before the second Appellate Division panel, those judges affirmed the ruling below on the ground that the decision of the first panel was the law of the case.  The second panel declined to address the issue on its merits because the appeal involved “the same trial court decision issued after the same evidentiary hearing, and the controlling law has not changed.”

The Supreme Court granted the petition of K.P.S. for certification.  Applying the de novo standard of review to the purely legal issue of whether law of the case applied, the Court  reversed in a unanimous opinion by Justice Albin.

After offering a useful overview of the law of the case doctrine, which applies only to decisions in “the same case,” Justice Albin observed that the doctrine is based on “principles similar to collateral estoppel.”  A “fundamental tenet of collateral estoppel is that the doctrine cannot be used against a party unless that party either participated in or was in privity with a party to the earlier proceeding.”

The Court applied that same principle to law of the case.  K.P.S. was not a party to the first appeal, and his co-defendant was not his “proxy” (that is, there was no privity).  Thus, the Court concluded that “co-defendants arguing their appeals with different docket numbers before different appellate panels are not involved in the same case for purposes of the law-of-the-case doctrine.”  Justice Albin was careful to note that, “[t]o be sure, an appellate panel may look to the reasoning of a coordinate panel’s opinion in the case of a co-defendant, but it is not compelled to follow that decision.”  A contrary ruling would have deprived K.P.S. of his right, created by the New Jersey Constitution, to appeal his conviction.  The United States Constitution does not create any such right to appeal.

Justice Albin acknowledged that a number of federal Circuit Court cases, “under the law-of-the-case doctrine, have bound the panel in a defendant’s appeal to the result reached in a co-defendant’s earlier appeal.”  But he noted “the absence of any real analysis justifying the application of law of the case” in those decisions.  Besides, New Jersey’s Constitution can provide greater due process protections than does the United States Constitution, and New Jersey’s Court Rules contemplate that one Appellate Division panel may disagree with another, a split in authority that justifies Supreme Court review.

Justice Albin closed by “stat[ing] the obvious.  The better practice is that when co-defendants are tried together, their appeals should be heard together to avoid the potential for divergent outcomes by different appellate panels considering the same legal issue.  This approach is consistent with principles of sound case management and the efficient and fair administration of justice, and is routinely followed in our court system.”

Indeed, one question contained in both the Civil and Criminal Case Information Statements that comprise part of the process of initiating an appeal in the Appellate Division requires that an appellant identify any other case “now pending or about to be brought” that “arises from substantially the same case or controversy” or “involves an issue that is substantially the same, similar, or related” to that of the appeal being filed.  It is not clear from the Court’s opinion in this case how that process did not identify the two separate appeals here, so as to have ensured that they were handled together.

 

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