Council On Local Mandates

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PROCEDURAL HISTORY

Complaint filed. On December 6, 2016, via email, a Complaint was filed by Angelo J. Genova, Esq., on behalf of the New Jersey Association of Counties, in which it is alleged that certain secions of the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 et seq., (the "Act" or "Criminal Justice Reform") constitute an unfunded mandate, and are therefore unconstitutional. Specifically, N.J.S.A. 2A:162-22, the mandatory trial requirements, are unfunded mandates as they will force counties to expend monies in which a reciprocal funding source is not provided for in the Act. These provisions do not authorize resources, other than property tax, to offset the additional direct expenditures required for their implementation. A summary of the New Jersey Association of Counties Complaint may be viewed under Pleading Summaries.

To view the full version of the New Jersey Association of Counties Complaint, please click here.

Council Publication. Because of the identity of the issue raised, the Council ordered that the complaint should be served on the Attorney General, the Department of Law & Public Safety, and the officials listed in Council Rule 9a. The Council also determined that the Attorney General would be directed to file an Answer to the Complaint, and that any other official served with the Complaint that chose to do so might file an Answer, as Respondent.

Claimant, New Jersey Association of Counties submits their Request for Injunctive Relief. On December 13, 2016, via overnight mail, Angelo J. Genova, Esq., filed on behalf of the New Jersey Association of Counties a letter brief requesting injunctive relief, and the certification of service for Anthony M. Anastasio, Esq.,. A summary of this brief may be viewed under Pleading Summaries.

To view the full version of Claimant's request for injunctive relief, please click here.

American Civil Liberties Union of New Jersey submits their notification to Request to Appear as Amicus Curiae. On December 21, 2016, via email, the American Civil Liberties Union of New Jersey notified the Council that they intend to file a Request to Appear as Amicus Curiae in this matter. This notification was made by Alexander Shalom, Esq., on behalf of the American Civil Liberties Union of New Jersey. A summary of this brief may be viewed under Pleading Summaries.

To view the full version of the Request to Appear as Amicus Curiae by the American Civil Liberties Union of New Jersey, please click here.

Respondent, State of New Jersey, Department of Law & Public Safety submits Answer and Motion to Dismiss. On December 22, 2016, an Answer and Motion to Dismiss the Complaint was filed on behalf of Respondent, State of New Jersey, Department of Law and Public Safety, via email. A summary of that pleading may be viewed under Pleading Summaries.

To view the full version of the Respondent's Answer and Motion to Dismiss, please click here.

Claimant, New Jersey Association of Counties submits their brief in Opposition to the State of New Jersey's Motion to Dismiss. On January 20, 2017, a Brief in Opposition to the State of New Jersey's Motion to Dismiss was filed by Angelo J. Genova, Esq., on behalf of the New Jersey Association of Counties, via email and hand delivery. A summary of that brief may be viewed under Pleading Summaries.

To view the full version of the Claimant's Brief in Opposition of the Motion to Dismiss, please click here.

First Indemnity of America Insurance Company submits their notification to Request to Appear as Amicus Curiae. On January 24, 2017, via email, the First Indemnity of America Insurance Company and various bonding agents (collectively the "Bail Parties") notified the Council that they intend to file a Request to Appear as Amicus Curiae in this matter. This notification was made by Douglas Motzenbecker, Esq., on behalf of the First Indemnity of America Insurance Company and various bonding agents (collectively the "Bail Parties"). A summary of that brief may be viewed under Pleading Summaries.

To view the full version of the Request to Appear as Amicus Curiae by the First Indemnity of America Insurance Company and various bonding agents (collectively the "Bail Parties"), please click here.

New Jersey State Bar Association submits their notification to Request to Appear as Amicus Curiae. On January 27, 2017, via email, the New Jersey State Bar Association notified the Council that they intend to file a Request to Appear as Amicus Curiae in this matter. This notification was made by Sharon A. Balsamo, Esq., on behalf of the New Jersey State Bar Association. A summary of that brief may be viewed under Pleading Summaries.

To view the full version of the Request to Appear as Amicus Curiae by the New Jersey State Bar Association, please click here.

Respondents, State of New Jersey and Administrative Office of the Courts, submit letter brief in Response to Claimant's brief in Opposition to their Motion to Dismiss. On January 31, 2017, a Letter Brief in Response to Claimant's Brief in Opposition to the State's Motion to Dismiss the Complaint was filed on behalf of Respondents, State of New Jersey and the Administrative Office of the Courts, via email. A summary of that pleading may be viewed under Pleading Summaries.

To view the full version of the Respondent's Answer and Motion to Dismiss, please click here.

Amicus Curiae, First Indemnity of America Insurance Company submits Letter Memorandum in Support of their position. On February 6, 2017, via email, an Letter of Memorandum in Support of their position was filed on behalf of Amicus Curiae the First Indemnity of America Insurance Company and various bonding agents (collectively the "Bail Parties"). This notification was made by Douglas Motzenbecker, Esq., on behalf of the First Indemnity of America Insurance Company and various bonding agents (collectively the "Bail Parties"). A summary of that brief may be viewed under Pleading Summaries.

To view the full version of the Letter of Memorandum from Amicus Curiae the First Indemnity of America Insurance Company and various bonding agents (collectively the "Bail Parties"), please click here.

Council issues Notice of Hearing. On February 6, 2017, via email, the Council informed all interested parties in their Notice of Hearing in the NJAC matter (COLM-0004-16), of the date, time and location of the scheduled hearing (see below).

Date/Time of Hearing: February 15, 2017, at 10:30 a.m.

Place of Hearing: Committee Room 16, 4th floor, State House Annex 125 West State Street #2 Trenton, NJ 08608

Purpose of Hearing: To hear oral argument of Claimant New Jersey Association of Counties, Respondents State of New Jersey and Administrative Office of the Courts, and Amicus Curiae (New Jersey State Bar Association, American Civil Liberties Union of New Jersey, and the First Indemnity of America Insurance Company) on the State's Motion to Dismiss.

Council issues Order on their position after hearing the oral arguments in the New Jersey Association of Counties matter. On February 15, 2017, the Council decided that the Complaint supplemented by certifications seeking a declaration that portions of the New Jersey Criminal Justice Reform Act are impermissible, unfunded mandates; and the Council having previously denied a preliminary injunction by order dated December 27, 2016; and the Council now having considered the papers filed and having heard extensive oral argument from the parties and all amici on Respondents' motion to dismiss the Complaint; ORDERED that Respondents' motion to dismiss the complaint of the New Jersey Association of Counties, is hereby GRANTED on the grounds that the provisions of the law at issue here implement provisions of the Constitution and are therefore outside the Council's purview. A formal majority opinion and any dissenting opinion(s) shall be submitted as soon as practicable.

Council issues written opinion and syllabus in the New Jersey Association of Counties matter. On May 2, 2017, via email, the Council issued their written opinion and syllabus in the New Jersey Association of Counties matter to all interested parties.

To view the full version of the written opinion and syllabus, please click here.

PLEADING SUMMARIES.

This portion of the site reproduces summaries, written by parties and amici, of their pleadings, as they are filed with the Council, beginning with the filed Complaints. The summaries do not represent the views of the Council; they are provided to facilitate understanding of the positions reflected in the pleadings.

Complete copies of all filed pleadings may be obtained by contacting the Council office as described under Address & Telephone.

Claimant New Jersey Association of Counties Summary of Complaint:

The above summary is a quotation from the Complaint filed by Angelo J. Genova, Esq., on behalf of the New Jersey Association of Counties, on December 6, 2016.

Claimant New Jersey Association of Counties Request for Injunctive Relief:

The New Jersey Association of Counties ("NJAC") submits that certain sections of the Criminal Justice Reform Act, N.J.S.A. 2a:162-15 et seq., (the "Act" or "Criminal Justice Reform") constitute an unfunded mandate, and are therefore unconstitutional. Specifically, N.J.S.A. 2a:162-16(b)(1), the forty-eight (48) hour risk assessment period, and N.J.S.A. 2A:162-22, the speedy trial requirements, are unfunded mandates because they will force counties to expend monies and a reciprocal funding source is not provided for in the Act. That is, these provisions do not authorize resources, other than the property tax, to offset the additional direct expenditures required for their implementation. For the reasons set forth below, NJAC's membership will suffer significant financial hardship from compliance with the Act. Moreover, there is a substantial likelihood that the Act is an impermissible unfunded State mandate. Accordingly, NJAC seeks preliminary injunctive relief in this matter.

The right to bail has been a part of New Jersey's criminal justice system for decades. No one will be harmed by its continuation until this matter is resolved. On the other hand, if preliminary injunctive relief is denied, NJAC's membership -- the twenty-one (21) counties in the State of New Jersey -- will be forced to spend tens of millions of dollars of taxpayer money to comply with the Act. Once spent, these funds cannot be returned to the taxpayers. The balancing of the hardships and consideration of the public interest therefore favors NJAC's membership in this matter. Accordingly, notwithstanding the fact that NJAC sets forth a meritorious claim in this matter, NJAC respectfully submits that the Council should at least order preliminary injunctive relief to maintain the status quo until these issues can be resolved. For these reasons, NJAC respectfully requests that the Council enjoin enforcement of the relevant provisions of the Act pending the disposition of this matter.

The above summary is a quotation from the Claimants Request for Injunctive Relief filed by Angelo J. Genova, Esq., on behalf of the New Jersey Association of Counties, on December 19, 2016.

American Civil Liberties Union of New Jersey Request to Appear as Amicus Curiae:

"In the summer of 2014, the New Jersey Legislature passed and the Governor signed landmark legislation designed to reform New Jersey's broken system of pretrial release and to give meaning to constitutional speedy trial protections. These comprehensive reforms, collectively referred to as the Criminal Justice Reform Act (CJRA), implemented constitutional provisions. Specifically, it implemented Article I, paragraph 10, that existed at the time the CJRA was passed, and Article I, paragraph 11, that was amended as part of the Legislature's overall justice reform package and was adopted by the voters months after the CJRA was passed. The Legislature made clear that CJRA would not take effect unless and until the constitutional amendment was adopted.

Because the legislation implemented constitutional provisions - Article I, paragraph 11 and Article I, paragraph 10 of the New Jersey Constitution - it is not an unfunded mandate and is immune from consideration by the Council on Local Mandates (Council) (Point 1). However, even if the Council determined that the CJRA did not implement constitutional provisions, it would still not be an unfunded mandate. (Point II). In support of its Complaint, the NJAC speculates that there will be costs to counties associated with implementing the CJRA. However, absent actual (rather than speculative) evidence that there are required costs to counties, the law does not create an unfunded mandate (Point II, A). Moreover, while some counties may choose to implement the CJRA is a way that costs money, they need not do so. Where a county opts to utilize a method of implementation with a price tag when it need not do so, no unfunded mandate exists (Point II, B). Finally, the NJAC fails to acknowledge the significant savings that counties will enjoy when they implement CJRA. Where a county may enjoy a net savings, no unfunded mandate exists (Point II, C)."

The above is the certification of service and pleading summary submitted by Alexander Shalom, Esq., on behalf of the American Civil Liberties Union of New Jersey's Request to Appear as Amicus Curiae, on December 21, 2016.

Respondent, State of New Jersey, Department of Law and Public Safety Summary of Answer and Motion to Dismiss the Complaint:

Complainants Cape May County, Monmouth County, Morris County, Union County, and Warren County (collectively represented by the New Jersey Association of Counties ("NJAC") and hereinafter referred to as "Complainants") have filed suit with the Council on Local Mandates ("the Council") challenging the constitutionality of two provisions of the 2014 Bail Reform Act, P.L. 2014, c. 31 (codified at N.J.S.A. 2A:162-16 et seq. and hereinafter "Bail Reform Act"), which was passed in concert with a constitutional amendment replacing the State constitutional right to bail pursuant to Art. I, ¶11 with a new system of pretrial release and detention for defendants charged with committing a crime.

The Complainants allege that the requirement for a judge to make a pretrial release decision for a defendant issued a complaint-warrant within 48 hours of the defendant's commitment to jail (hereinafter "pretrial release decision") and the conditions provididng that a defendant denied pretrial release be released from jail if not indicted within 90 days, tried within 180 days and that generally requires prosecuters to be ready for trial within two (2) years of a defendant's intial commitment to jail (hereinafter "pretrial detention period") are unconstitutional unfunded mandates.

In November 2014, a constitutional amendment approved by nearly two-thirds of New Jersey voters set the stage for reforming the manner in which courts decide whether, and under what conditions, criminal defendants can be released from custody prior to trial. To implement the contemplated constitutional revision, the Legislature overwhemingly passed, the Governor signed, a comprehensive law reforming the monetary bail system in New Jersey.

Contrary to our old system of monetary bail which guaranteed bail, regardless of risk, to all defendants except those accused of capital offenses, the constitutional amendment, and the enabling law enacted by the Legislature and signed by the Governor, opted instead for a "risk-based" system. Courts will now assess a defendant's likelihood of fleeing justice, committing new crimes if released from custody or detained until trial. The constitutional amendment granted the Legislature the power to establish by law procedures, terms, and conditions related to pretrail release or the denial thereof.

A critical component of the Bail Reform Act is the efficient processing and review of cases so that a court can determine whether or not a defendant should be detained pending trial. The Legislature determined that a judge must make that pretrial release decision within forty-eight (48) hours after a person is arrested. In those instances when a defendant is denied pretrial release, the Bail Reform Act requires the release of detained defendants if not indicted or brought to trial within the time frame specified by law. These provisions implement the bail reform amendment now memorialized in the Constitution and the Legislature's authority to enact such laws was expressly authorized by the constitutional amendment approved by the voters.

Art. VIII, §2, ¶5 of the New Jersey Constitution provides that certain categories of laws "shall not be considered unfunded mandates [,]" including "those which implement the provisions of this Constitution [.]" N.J. Const. Art. VIII, §2, ¶5 (c)(5). Thus, although the Constitution affords the Council broad authority to review laws enacted by our Legislature, because the provisions at issue here implement Art. I, ¶11 of the New Jersey Constitution, they are beyond the purview of the Council and are not properly subject to challenge as unfunded mandates.

The Complainants' request for injunctive relief also must be denied because the challenged provisions are exempt from the Council's review and cannot be deemed unfunded mandates according to the terms of the Constitution. Even if the Council were to determine that the State Constitution does not bar its review of these provisions, the request for injunctive relief still would be inappropriate because the Complainants fail to meet the standard necessaryy for the issuance of such extraordinary relief.

The above summary is a quotation from the Answer and Motion to Dismiss the Complaint filed by Joseph C. Fanaroff, Deputy Attorney General, on behalf of the State of New Jersey, Department of Law and Public Safety, on December 22, 2016.

Claimant, New Jersey Association of Counties Letter Brief in Opposition of Motion to Dismiss:

"For decades, local governments were burdened by State laws that, while well-intentioned, were adopted by State legislators and officials in Trenton without due regard to funding sources. Without adequate funding for State mandates, this practice resulted in a rise in local property taxex which increasingly burdened New Jersey's property owners. The practice became so prevalent that the public responded by amending New Jersey's Constitution in 1995 to reverse the ongoing trend of unsustainable property taxes. This constitutional amendment created the Council on Local Mandates ("Council") to provide an essential check and balance on State government. The Council has the power to invalidate new State legislation and regulations that impose mandates upon local governments without providing funding beyond the local property tax.

The Criminal Justice Reform Act, N.J.S.A. 2a:162-15 et seq., (the "Act" or "Criminal Justice Reform Act") is precisely such a law. Specifically, N.J.S.A. 2a:162-16(b)(1), the Act's forty-eight (48) hour risk assessment period, and N.J.S.A. 2a:162-22, the Act's speedy trial requirements are unfunded State mandates because they will force counties to spend large sums of money without a reciprocal funding source. That is, these provisions of the law do not authorize resources, other than the local property tax, to offset the direct county expenditures required for their implementation. Ironically, while the State argues that Criminal Justice Reform does not impose required expenditures on counties, the new law provides substantial additional funding for the judiciary. Moreover, recent legislation provides for the appointment of twenty (20) new judges to meet the increased demands on the criminal justice system created by the Act. It is incredible that despite these indisputable facts, the State maintains that there is no financial burden on counties, which serve a crucial role in the criminal justice system through their funding of county prosecuters, sheriffs, wardens and court facilities.

NJAC's primary purpose is to advocate the best interests of New Jersey's twenty-one (21) counties, and by extension, the well-being of county taxpayers. The biggest challenges currently facing NJAC's membership stem from the counties' ongoing struggle to reduce and streamline costs so that they can effectively fulfill their duties while maintaining compliance with various spending caps imposed by the New Jersey Legislature. NJAC supports fiscal reform efforts that ensure efficient administration of county government and reduce the financial burdens on county taxpayers.

NJAC also supports criminal justice reform as sound public policy. NJAC fully appreciates the need to continually develop a more equitable system of criminal justice in New Jersey. However, when considering the need for criminal justice reform alongside the clear need and public policy of reducing New Jersey's skyrocketing property taxes, the Act goes well beyond what was presented to New Jerysey voters and taxpayers when the constitutional amendment eliminating the right to bail was submitted for public approval. That is, the Act imposes potentially limitless new costs upon county governments and taxpayers at a time when the public is desperately seeking solutions to the problem of ever-increaasing property taxes.

Considering the standard to be applied on a motion to dismiss, NJAC is not required to prove the content of its Complaint at this time, and the Council must view all evidence in the record in a light most favorable to NJAC. In NJAC's Complaint and affidavits submitted in support of its application for preliminary injunctive relief, NJAC set forth a valid cause of action and presented facts establishing the immense cost of Criminal Justice Reform. These facts, which the State disputes, clearly militate against summary disposition at the intitial pleading stage and require a plenary hearing. The State, on the other hand, has only offered conjecture and argument regarding the purported positive fiscal outcome of Criminal Justice Reform.

Furthermore, due to the magnitude of the actual and potential costs that will be imposed on county taxpayers by Criminal Justice Reform and the rules of constitutional and statutory construction, the Act cannot be deemed to implement the New Jersey Constitution within the meaing of the exemption set forth in N.J. Const., Art. VIII, §2, ¶ 5(c)(5) and N.J.S.A. 52:13H-3(e). To the contrary, given the significance of this matter, the broad application of the exemption to the legal definition of an "unfunded mandate" urged by the State would eviscerate the general constitutional prohibition and public policy against unfunded State mandates. The Council would thereby limit its ability to address matters of such size and scope in the future, depriving county taxpayers of an essential check and balance on immense, forced local spending.

For these reasosn, and given the significant factual allegations contained in the record, the Council should deny the State's Motion to Dismiss NJAC's Complaint, and permit the matter to proceed so that NJAC is afforded the right to prove that the Act constitutes an unfunded mandate through a plenary hearing."

The above summary is a quotation from the Claimant's letter brief in Opposition to the State's Motion to Dismiss filed by Angelo J. Genova, Esq., on behalf of the New Jersey Association of Counties on January 20, 2017.

First Indemnity of America Insurance Company's Request to Appear as Amicus Curiae:

"In brief, the Bail Parties submit that the Criminal Justice Reform Act of 2014 (the "Act"), P.L. 2014, C. 31, constitutes an unfunded mandate and is therefore unconstitutional for this reason and others (which the Bail Parties are litigating seperately in the Superior Court)."

The above is a quotation from the Amici's letter brief submitted by Douglas Motzenbecker, Esq., on behalf of the First Indemnity of America Insurance Company's Request to Appear as Amicus Curiae, on January 24, 2017.

New Jersey State Bar Association's Request to Appear as Amicus Curiae:

"The NJSBA and its members, including leading criminal law practitioners have a significant, meaningful and informed perspective on the issues presented in this matter. For more than two years, the association has brought its expertise to bear on all aspects of constitutional amendment mandating the pretrial release of certain defendants, and the Criminal Justice Reform Act implementing the amendment. Indeed, the association notes, with due respect to the Council's authority, if it were to declare the Act expired now, at this late point in implementation, the impact on the orderly workings of the state judiciary and legal community would be devastating and would likely pose grave consequences for NJSBA member-attorneys' ability to properly represent their clients and defend their constitutional rights.

While the NJSBA was supportive of the substantive changes presented by the constitutional amendment and implementing Act, it repeatedly expressed concerns to the Legislature, the Administrative Office of the Courts and the Supreme Court about the method of funding those changes provided for in the Act. Even now, the association continues to voice concerns about the funding mechanism for implementation of the pretrial release and speedy trial provisions of the Constitution; however, there can be no question that funding is, indeed provided.

Given its vigorous involvement in the reforms at issue, the NJSBA submits that it has a unique expertise and knowledge about the purposes and provisions of the bill. As such, it can credibly offer insight and guidance to the Council on the pending matter.

For the reasons explained below, the NJSBA believes this matter is beyond the jurisdictional purview of the Council, and, in any event, that the Act does not represent an unfunded mandate. The NJSBA, therefore, respectfully requests the Council dismiss the Complaint and decline to declare the Act expired, in whole or part."

The above is a quotation from the Amici's letter brief submitted by Sharon A. Balsamo, Esq., on behalf of the New Jersey State Bar Association's Request to Appear as Amicus Curiae, on January 30, 2017.

Respondents, State of New Jersey and Administrative Office of the Courts Letter Brief in Response to Claimant's Brief in Opposition to their Motion to Dismiss:

"Respondents State of New Jersey and Administrative Office of the Courts (collectively, "Respondents") submit this reply letter brief in response to the letter brief filed by the New Jersey Association of Counties on behalf of Complainants Cape May County, Monmouth County, Morris County, Union County, and Warren County (collectively, "Complainants") in opposition to the Respondents' motion to dismiss the complaint. The Complainants' cause of action cannot be heard by the Council because the law at issue implements a constitutional provision and is therefore outside the Council's purview.

In the matter before the Council the challenged law inarguably implements the provisions of Article I, paragraph 11 of the Constitution authorizing pretrial release and the denial thereof, as it establishes the procedures, terms and conditions of pretrial release and for detention of defendants as to whom "no amount of monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person's appearance in court when required, or protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process." N.J. Const. Art. I, ¶11.

Although the unfunded mandate provision of the Constitution does not require the Legislature to specifically "label" a law it passes to qualify under the categorical exemption for laws which implement the provisions of this Constitution, the Legislature could not have made that statement any more clearly here. The bill that would ultimately become the bail reform act and the constitutional amendment were moved through the Legislature contemporaneously. The law itself established the express requirement that it would take effect only when "a constitutional amendment to Article I, ¶11 of the New Jersey Constitution authorizing the courts to deny pretrial release of certain defendants" (P.L. 2014, c. 31, §21) would take effect; without such an amendment, the bail system would have remained unchanged and the bail reform act would remain dormant. Even without considering the manifest substantive and functional congruence of the provisions of the bail reform act with the requirements of Art. I, ¶11, no clearer expression of the Legislature's intent that the bail reform act implements the constitutional amendment could have been provided. Accordingly, the Defendants' motion to dismiss must be granted.

Complainants' request for a plenary hearing and fact-finding is also unavailing. The question before the Council is one of law - whether the bail reform act implements a constitutional provision - not fact, and the Council has before it all information necessary to render a decision on the Respondents' motion."

The above summary is a quotation from the Letter Brief in Response to Claimants' Brief in Oppostion to the Motion to Dismiss the Complaint filed by Joseph C. Fanaroff, Deputy Attorney General, on behalf of Respondents' the State of New Jersey and the Administrative Office of the Courts, on January 31, 2017.

Amicus Curiae, First Indemnity of America Insurance Company submits Letter Memorandum in Support of their position:

"The Bail Parties respectfully submit this Letter Memorandum in support of their position that the Criminal Justice Reform Act of 2014 (the "Act"), P.L. 2014, C. 31 constitutes an unfunded mandate and is therefore unconstitutional for this reason and others (which the Bail Parties are litigating seperately in the Superior Court). For the reasons set forth below, the Bail Parties respectfully submit that the Council should deny the motion to dismiss filed by defendant, the State of New Jersey (the "State")."

The above is a quotation from the Amici's letter memorandum submitted by Douglas Motzenbecker, Esq., on behalf of the First Indemnity of America Insurance Company's Request to Appear as Amicus Curiae, on February 6, 2017.