In re Attorney General Law Enforcement Directive Nos. 2020-5 and 2020-6, ___ N.J. ___ (2021). As discussed in more detail here, the Appellate Division upheld the power of the Attorney General to require every law enforcement agency in New Jersey to publish a synopsis of all complaints against law enforcement officers that resulted in termination, demotion, or a suspension of more than five days. The Attorney General did that through two directives.
Police groups challenged those directives on various grounds. They contended that the Attorney General lacked the power to issue the directives, and that the directives violated public policy and various constitutional rights (including due process, equal protection, ex post facto laws, and non-impairment of contracts). The police groups also asserted that promissory estoppel and equitable estoppel barred the directives.
The Appellate Division rebuffed all those arguments. But the panel stayed the effective date of its decision to allow the police groups to seek Supreme Court review. They did so, the Court granted review, and today the Court affirmed, as modified in one respect, the opinion of the Appellate Division.
Chief Justice Rabner wrote the opinion for a unanimous Court, which applied the “deferential standard of review” of whether the directives were arbitrary, capricious, unreasonable, or contrary to public policy. The bottom line was this: “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.”
The Court’s 60-page opinion went through a number of arguments in detail, including the Attorney General’s power to issue the directives, the alleged violation of the Open Public Records Act that the directives assertedly constituted, the application of the arbitrary, capricious, and unreasonable standard of review, and the ex post facto argument. As to other contentions, including substantive and procedural due process, equal protection, a claimed violation of the Administrative Procedure Act, and the constitutional right to contract and to engage in collective negotiations, the Court affirmed the Appellate Division “largely for the reasons stated in Judge Accurso’s thoughtful opinion.”
The one aspect that caused the Court to modify the ruling of the Appellate Division involved the claims of promissory and/or equitable estoppel. Chief Justice Rabner observed that estoppel principles “must be evaluated with care when a party seeks to apply them against the government.” Certifications submitted by the police groups “suggest[ed] that officers who agreed to major discipline received assurances of confidentiality. ” The directives, on their face, would undo those assurances. The Appellate Division had noted that officers in that circumstance could file as-applied challenges individually, and the Attorney General asked the Supreme Court to provide guidance for such challenges.
By separate order, the Court is appointing a single judge to handle such challenges. At a “broad-ranging evidentiary hearing,” the judge “should explore the practice of the State Police relating to disciplinary matters, and the question of confidentiality,in particular, before the Directives were issued. All parties and amici shall receive notice of the hearing and have the opportunity to participate. Both sides may present witnesses and documentary evidence; they may also probe the role of counsel from the Department of Law and Public Safety.
“The judge shall make appropriate findings. If there is sufficient credible evidence, the court, in its discretion, may resolve the issue of confidentiality on a broad scale. In other words, if the court finds that promises of confidentiality were made and relied on consistent with the appropriate legal standards, [Citations], it could bar the release of names of law enforcement officers subject to Directive 2020-6 for disciplinary matters settled before June 19, 2020. If the record does not support such a conclusion for the entire group of officers, the court’s more limited findings may be incorporated and made part of the record in individual challenges that will likely follow.
“Depending on the outcome of the above hearing, State Troopers and law enforcement officers in the Division of Criminal Justice and the Juvenile Justice Commission (“Troopers”) are to file any as-applied challenges afterward in the Superior Court in the nature of actions in lieu of prerogative writs.” Chief Justice Rabner proceeded to outline more specifics about this new process. He was careful to state, however, that the Supreme Court would not retain jurisdiction, and that the outcome of the hearing would be subject to “the ordinary rules of appellate procedure.”
This appears to be a wise and balanced decision by the Court. The directives deserved approval overall, and the Court’s approach to the estoppel issues preserves the rights of officers who can demonstrate promissory or equitable estoppel.