State of New Jersey
Council on Local Mandates
In
re Complaint Filed by The New Jersey Association of Counties
Re:
N.J.S.A. 2A:162-16(b)(1) and N.J.S.A. 2A:162-22
Sections
of The Criminal Justice Reform Act
COLM-0004-15
Decided:
April 26, 2017
Angelo
J. Genova argued the cause for the Claimant, New Jersey Association of Counties
(Genova Burns, attorneys; Mr. Genova, Anthony M. Anastasio and Celia S. Bosco on
the briefs).
Joseph
C. Fanaroff, Assistant Attorney General, argued the cause for the Respondent, State
of New Jersey and Administrative Office of the Courts; Mr. Fanaroff on the
briefs.
Alexander
Shalom argued the cause for amicus curiae, American Civil Liberties Union of
New Jersey; (Mr. Shalom, Edward Barocas and Jeanne LoCicero on the brief).
Thomas
H. Prol argued the cause for amicus curiae New Jersey State Bar Association;
Mr. Prol on the brief.
Douglas
E. Motzenbecker argued the cause for amici First Indemnity of America Insurance
Company and various bail bonding agents (Gordon & Rees, attorneys; Mr.
Motzenbecker and Samuel M. Silver on the briefs).
Introduction
Following a ballot question that was approved in the
November 2014 general election, the New Jersey Constitution was amended (the
Amendment) to substantially eliminate bail for defendants awaiting trial; the
Amendment instead substituted a risk-based provision. The Amendment, which became effective on
January 1, 2017, reads:
All
persons shall, before conviction be eligible for pretrial release. Pretrial release may be denied to a person if
the court finds that no amount of monetary bail, non-monetary conditions of
pretrial release, or combinations 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. It shall be lawful for the Legislature to
establish by law procedures, terms, and conditions applicable to pretrial
release and the denial thereof authorized under this provision.
[N.J.
Const. art. I, §11.]
The Claimant, New Jersey Association of Counties (the NJAC),
filed a complaint with the Council on Local Mandates (the Council) seeking a
declaration by the Council that the requirements set forth in N.J.S.A.
2A:162-16(b)(1), the risk assessment timeframe, and N.J.S.A. 2A:162-22,
the speedy trial timeframes, sections of the Criminal Justice Reform Act (the
CJRA), should be found to be unfunded mandates and in violation of article
VIII, section II, paragraph 5 of the New Jersey Constitution, as implemented by
the Local Mandates Act, N.J.S.A. 52:13H-1 to -22 (the LMA). The NJAC claims that the CJRA is an unfunded
mandate as applied to the counties as it will force counties to expend monies
for which a reciprocal funding source has not been created. Put another way,
the NJAC asserts that because neither the CJRA nor any other legislative
enactment authorizes resources to offset the additional direct expenses the counties
will incur to implement the CJRA, the expenses must be paid by property taxes;
accordingly, the NJAC submits that the CJRA is an unfunded mandate and should
cease to be mandatory in its effect. The
First Indemnity Insurance Company and various bail bonding agents (the bail
bonding amici) support the NJAC’s position.
In its complaint, the NJAC also sought preliminary
injunctive relief, enjoining the State from enforcing the risk assessment
timeframe requirement of N.J.S.A. 2A:162-16 (b)(1) and the speedy trial
requirements of N.J.S.A. 2A:162-22 pending disposition of the complaint. By order of December 27, 2016, the Council denied
that request.
The State filed a motion to dismiss the
complaint. The primary point raised by
the State is that the complaint must be dismissed because the CJRA calls into
effect article VIII, section 2, paragraph 5(c)(5), a provision of the New Jersey
Constitution, and N.J.S.A. 13H-3e, which preclude a law that implements
a provision of the New Jersey Constitution from being considered an unfunded
mandate. The New Jersey State Bar
Association and the American Civil Liberties Union of New Jersey (the ACLU)
support the State’s position. Following
oral argument on February 15, 2017, the Council voted 4-3 to grant the State’s
motion to dismiss the complaint. This
written decision is issued in accordance with N.J.S.A. 52:13H-15,
requiring rulings by the Council to be in writing and to set forth the reasons
for its determinations.
The Council’s Authority
In addressing the
parties’ arguments, the Council is guided by the constitutional amendment that
governs its decisions concerning allegations of unfunded mandates, article
VIII, section II, paragraph 5 of the New Jersey Constitution, which states:
any provision of law enacted on or after
July 1, 1996, and with respect to any rule or regulation issued pursuant to law
originally adopted after July 1, 1996, except as otherwise provided herein, any
provision of such law, or of such rule or regulation issued pursuant to a law,
which is determined in accordance with this paragraph to be an unfunded mandate
upon . . . counties . . . because it does not authorize resources, other than
the property tax, to offset the direct expenditures required for the
implementation of the law or rule or regulation, shall, upon such determination
cease to be mandatory in its effect and expire.
This constitutional
provision was codified in N.J.S.A. 52:13H-1 to -22. Specifically, N.J.S.A. 52:13H-2 states
that “any provision of a law enacted after January 17, 1996, that is determined
to be an unfunded mandate upon . . . counties . . . because it does not
authorize resources to offset the additional direct expenditures required for
the implementation of the law . . . shall cease to be mandatory in its effect
and shall expire.”
A determination
that a regulation is an unfunded mandate under the provisions of Article VIII,
§2, ¶5 of the New Jersey Constitution requires that the claimant prove 1) a
mandate on the government unit; 2) direct expenditures are required for
implementation of the mandate; and 3) the regulation does not authorize
resources to offset the required direct expenditures. In re Complaint filed by Ocean Township
(Monmouth County) and Frankford Township, Aug. 2, 2002 at 5.
Nonetheless, even
assuming that a claimant could establish these criteria, both the New Jersey
Constitution and the LMA create exemptions to the law being classified as an
unfunded mandate. At issue here is the
exemption that removes a law that may otherwise qualify as an unfunded mandate
from being considered an unfunded mandate if that law implements a provision of
the New Jersey Constitution. In pertinent
part, the exemption, which the Council will refer to as the 5(c)(5) exemption, reads
as follows: “(c) Notwithstanding anything in this paragraph to the contrary,
the following categories of laws . . . shall not be considered unfunded
mandates: (5) those which implement the provisions of this Constitution[.]” N.J.
Const. art. VIII, §II, ¶5(c)(5). The
LMA contains similar language: “3. Notwithstanding the provisions of any other
law to the contrary, the following categories of laws . . . shall not be
unfunded mandates: e. those which implement the provisions of the New Jersey
Constitution[.]” N.J.S.A. 52:13H-3e.
Thus, the
principal issue addressed by the parties and the Council is whether under this
exemption the CJRA implements provisions of the New Jersey Constitution. The Council, having determined that the CJRA does
indeed implement the provisions of the New Jersey Constitution, dismissed the
complaint.
The
Motion Standard
The issue comes before the Council on the State’s
motion to dismiss. While the Council has
not promulgated a rule regarding motions to dismiss, the Council has generally been
guided by the New Jersey Rules of Court and New Jersey Court decisions. In re
Complaints Filed by the Highland Park Board of Education and the Borough of
Highland Park (Highland Park I), Aug. 5, 1999 at 12-13. The State’s
motion, made prior to a testimonial hearing, essentially calls for summary
disposition. Summary disposition is
warranted when there is no genuine issue of material fact and the moving party
is entitled to prevail as a matter of law.
R.4:46-2; Brill v. Guardian Life Ins. Co., 142 N.J.
520, 540 (1995); N.J.A.C. 1:1-12.5 (b) (substantially same standard in
Administrative Law proceedings). New
Jersey Court Rules also allow for disposition based solely on the allegations
in the complaint when there is a failure to state a claim upon which relief can
be granted. R.4:6-2e. Under that rule, however, the motion is treated as
a motion for summary judgment when matters outside the pleadings are presented
with or in opposition to the motion. Ibid. Such is the case here, where the record
contains multiple affidavits of county officials attesting to the anticipated
costs the counties will incur by the implementation of the CJRA.
Once a moving party presents sufficient evidence in
support of the motion, the opposition must show by competent evidence that a
genuine issue of fact exists. Globe
Motor Co. v. Igdalev, 225 N.J. 469, 479-80 (2016); the motion court
must draw all legitimate inference in favor of the non-moving party. R.4:46-2(c). In other words, the court, or in this case
the Council, must accept as true all of the evidence that supports the position
of the party defending against the motion.
Brill, supra, 142 N.J. at 535.
In Highland Park I, while recognizing the need
for a mechanism such as a motion to dismiss to eliminate “needless delay and
expense” that occur in awaiting and conducting a trial, the Council also
recognized that because its rulings are not subject to judicial review, see
N.J. Const. art. VIII, §II, ¶5(b); N.J.S.A. 52:13H-18, the
Council must use great caution in deciding to dismiss a complaint on a
pre-hearing motion. Highland Park I,
at 12-13. Here, because no material
facts are in dispute on the narrow question of whether the CJRA implements a
provision of the New Jersey Constitution, summary disposition is
warranted.
The CJRA
The pertinent provisions of the CJRA are as follows,
beginning with the purposes of the enactment.
C.2A: 162-15 Liberal construction.
1.
The provisions of sections 1 through 11
of [the CJRA] shall be liberally construed to effectuate the purpose of
primarily relying upon pretrial release by non-monetary means to reasonably
assure an eligible defendant’s appearance in court when required, the
protection of the safety of any other person or the community, . . . and that
the . . . defendant will comply with all conditions of release, while authorizing
the court, upon motion of a prosecutor, to order pretrial detention . . .
[under certain circumstances]. Monetary
bail may be set . . . only when it is determined that no other conditions of
release will reasonably assure the . . . defendant’s appearance in court when
required.
The laws that the NJAC challenge as unfunded mandates,
N.J.S.A. 2A:162-16(b)(1), the risk assessment timeframe, and N.J.S.A.
2A:162-22, the speedy trial timeframes, concern the preparation of pretrial
release risk assessments and the time frames within which certain actions
concerning a defendant’s release must be taken.
Those provisions are as follows:
C.2A:162-16 Detaining eligible
defendant during preparation of risk assessment prior to trial.
2.a. An eligible defendant . . . shall be
temporarily detained to allow the Pretrial Services Program to prepare a risk
assessment with recommendations on conditions for release . . ..
b. (1) Except as otherwise provided .
. . the court shall make a pretrial release decision for the eligible defendant
without unnecessary delay, but in no case later than 48 hours after the
eligible defendant’s commitment to jail.
The court shall consider the Pretrial Services Program’s risk assessment
and recommendations on conditions of release before making a pretrial release
decision . . ..
C. 2A:162-22 Eligible defendant
subject to pretrial detention, release; conditions.
8. a. (1) (a) The
. . . defendant shall not remain detained in jail for more than 90 days, not
counting excludible time for reasonable delays as set forth [in other sections
of this enactment] prior to return of an indictment.
(2) (a) An
eligible defendant who has been indicted shall not remain detained in jail for
more than 180 days on that charge following the return or unsealing of the
indictment, whichever is later, not counting excludible time for reasonable
delays . . . before commencement of the trial. . .. Notwithstanding any other
provision of this section, an eligible defendant shall be released from jail .
. . after a release hearing if, two years after the court’s issuance of the
pretrial detention order for the eligible defendant, excluding delays
attributable to the . . . defendant, the prosecutor is not ready to proceed [to
trial.]
The NJAC also challenges the CJRA’s funding
source. That provision reads, in part,
as follows:
C.2B:1-9 “21st
Century Improvement Fund.”
14. a. There is
established in the General Fund a dedicated, non-lapsing fund to be known as
the “21st Century Improvement Fund,” which shall be [funded in a sum
derived from filing fees.] Monies
credited to the fund shall be appropriated annually and used exclusively for
the purposes of funding:
(1) the . . .
Statewide Pretrial Services Program;
(2) a . . .
Statewide digital e-court information system;
(3) [providing]
the poor [with] legal assistance in civil matters by Legal Services of New
Jersey . . ..
b. Any amount
remaining in the fund after the appropriation of funds . . . shall be retained
by the Judiciary for . . . the Pretrial Services Program or for court
information technology. The monies . . .
shall not be used for any purpose other than those purposes set forth [in this
and other provisions of this enactment].
The final provision of the CJRA that is relevant to
the NJAC’s challenge is the CJRA’s effective date, which is related to the passage
of the Amendment. That provision reads:
21. a. Sections 1
through 11 and section 20 of this act shall take effect on the same day that a
constitutional amendment to Article 1, paragraph 11 of the New Jersey
constitution authorizing the courts to deny pretrial release of certain
defendants takes effect; [other sections not at issue here] shall take effect
immediately.
The Arguments
The NJAC filed its complaint on December 6, 2016. It alleged that specific provisions of the CJRA,
specifically N.J.S.A. 2A:162-16(b)(1), the 48-hour risk assessment
period, and N.J.S.A. 162-22, the mandatory trial and release provisions,
would “force counties to expend monies [for] which a reciprocal funding source
is not provided in the Act.”
Accordingly, it claimed that the above stated sections of the CJRA constitute
an unfunded mandate as they fail to “authorize resources, other than the
property tax, to offset the additional direct expenditures required for their
implementation.”
In its complaint and accompanying brief, the NJAC
asserts that compliance with the CJRA will result in millions of dollars in
unfunded mandates to New Jersey’s counties. Those mandates include the Pretrial
Services Program (the PSP), N.J.S.A. 2A:162-25, which calls for a risk
assessment on each defendant. Further,
under the CJRA, a defendant must remain in jail while the assessment is being
conducted; and unless the prosecutor files a motion for pretrial detention, the
CJRA requires the court to consider the risk assessment, recommendations, and
other information, and make a pretrial release decision without unnecessary
delay, but no later than 48 hours after a defendant is jailed. The CJRA further limits the duration of time
prior to disposition that a defendant may remain in jail prior to trial: not
more than 90 days prior to return of an indictment, N.J.S.A. 162-22(a);
and not more than 180 days following return or unsealing of the indictment,
whichever is later, subject to reasonable delays, N.J.S.A.
162-22(b). And a defendant must be
released if the prosecutor is not ready to proceed to trial in two years,
subject to delays attributable to the defendant. N.J.S.A. 162-22(c).
The NJAC claims that these procedures will force
county facilities to open on weekends, resulting in additional ongoing costs
for security at those facilities; and will require county sheriffs to hire
additional officers and pay officers overtime.
In addition, to accommodate staff for the PSP, counties will have to
improve existing facilities.
It is further asserted that due to the timeframes
requiring county prosecutors to be ready to go to trial within two years and
the other “speedy trial” requirements under the CJRA, the county prosecutors must
hire additional assistant prosecutors, investigators, and staff, and hiring the
additional staff will further burden the counties, necessitating expensive
improvements to county facilities.
According to the NJAC, the projected costs for compliance with the CJRA
by county prosecutors will be $1,279,876; by county sheriffs, $873,547; and for
county jail facilities, $919,160. The NJAC
argues that these are direct expenditures that are required for the implementation
of the CJRA, which can be offset only with property taxes.
Compounding the counties’ financial situation, and notwithstanding
the additional anticipated costs the counties will incur to allow the
prosecutors and sheriffs to perform their statutory and constitutional
obligations, the NJAC points out that state law limits its request for annual
funding, currently to two percent. See, inter alia, N.J.S.A.
40A:4-45.45b.
The NJAC also asserts that the CJRA will result in
“potential hidden costs” that are not immediately quantifiable. For example, it is submitted that in many
municipalities, municipal police departments temporally detain arrestees at the
police station to provide them with an opportunity to post bail on
complaint-warrants before being transferred to county jails. Because this alternative is no longer
available, the NJAC submits this could potentially increase the number of
inmates processed at county jails, increasing costs. And too, the NJAC points to the State
Attorney Generals Criminal Justice Reform Study, which found it “not possible
in this report to project monetary amounts relating to costs or savings
associated with implementing” the CJRA.
The NJAC further argues that the Legislature has not
created a funding source for the operating and capital improvement costs the
counties will incur for compliance with the CJRA. The argument is that while the 21st
Century Improvement Fund may authorize resources for the Judiciary to comply
with the CJRA, it does not authorize the resources the counties will need as a
result of the direct expenditures required for implementation of the PSP and
the speedy trial provisions of the CJRA.
Finally, the NJAC argues that the ballot question for
approval of the Amendment, and its interpretive statement, addressed only the
elimination of the right to bail, and, consequently, the Amendment does not
authorize a process which imposes on county governments the costs associated
with an accelerated release or trial process for detained defendants.
According to the NJAC, all of the above stated issues require
a plenary hearing before the Council acts on the State’s motion.
The State, in its
brief in support of its motion to dismiss, and in its reply to the NJAC’s brief
in support of its complaint, makes a number of arguments, but focuses on the
5(c)(5) exemption of the Amendment. The
State argues that, as a matter of law, the CJRA falls within this
exception. The State submits that even
though the Legislature did not explicitly label the CJRA as a law that
implements the provisions of the New Jersey Constitution, the CJRA clearly does
so for a number of reasons. For example,
the bill that resulted in the Amendment, and the concomitant CJRA, were moved through
the Legislature contemporaneously; and, significantly, the CJRA expressly
states that it would take effect only upon passage of the Amendment.
The Bar
Association joins in the State’s position.
The Bar Association points to the plain language embodied in article I,
paragraph 11 of the Amendment, which expressly gives the Legislature the
authority to provide implementing legislation: “It shall be lawful for the
Legislature to establish by law procedures, terms, and conditions applicable to
pretrial release and the denial thereof authorized under this provision.” N.J.
Const., art. I, §11. And further, the Bar Association argues that the
effective date language of the CJRA, which states: “Sections 1 through 11 and
section 20 of this act shall take effect on the same day that a constitutional
amendment to Article 1, paragraph 11 of the New Jersey constitution authorizing
the courts to deny pretrial release of certain defendants takes effect,” L.
2014, c. 31, s. 21, creates a direct connection between the Amendment and the
challenged statutes.
Finally, the Bar
Association takes the position that the Legislature did, in fact, create a
funding source for the implementation of the CJRA, pointing to the 21st
Century Improvement Fund; and that the adequacy of the fund is an issue for the
courts, not the Council.
The ACLU also
sides with the State, making similar arguments.
It submits that the “question is . . . whether the challenged statute implements a
constitutional provision.”; and the answer to that question is yes. The ACLU also asserts that the costs
projected by the NJAC are speculative and should be rejected.
The NJAC rejects
the argument that the CJRA implements the New Jersey Constitution. It claims that exemption 5(c)(5), under the
circumstances here, would undermine the public policy that underpins the reason
for the unfunded mandate amendment and its statutory counterpart; that policy
being to prevent state government “from forcing local governments and boards of
education to implement many new or expanded programs, unless those programs are
accompanied by the means to pay for them.” In re Highland Park Board of Education,
Aug. 5, 1999 (citing Senate Committee Substitute for Senate Concurrent
Resolution No. 87, May 15, 1995). According to the NJAC, the 5(c)(5) exemption
is so “broadly-worded” that it has the potential to “swallow the entire rule
against unfunded mandates.” The NJAC claims that the Council has narrowly
applied the 5(c)(5) exemption in the past, citing to In re Monmouth-Ocean
Educational Services Comm’n, Aug. 20, 2004, and other prior Council decisions. The NJAC asserts that when construing the
exemption in light of the public policy of eliminating unfunded mandates, the
language of the Amendment must be balanced against all other provisions of the
New Jersey Constitution that address the same or similar subject matter. And when doing so, the exemption should not
apply to the risk assessment and speedy trial provisions of the challenged
statutes, as such a construction would be contrary to the underlying public
policy of precluding unfunded mandates.
The bail bonding
amici join in the position of the NJAC for substantially the same reasons. They further assert that the public question and
its interpretive statement were “wholly inadequate and materially misleading and
did not encompass the pretrial risk assessments or the speedy trial provisions.” The challenged provisions, according to the
bail bonding amici, present no more than a tenuous constitutional nexus and do
not fall within the bounds of the 5(c)(5) exemption.
Decision
The State moves to dismiss the complaint on summary
disposition. The Council will treat this
as a motion for summary judgment because matters outside the pleadings,
multiple affidavits asserting anticipated costs to implement the Amendment,
have been presented in opposition to the motion. As noted previously, under the summary
judgment rules, once a moving party presents evidence in support of the motion,
the opposition must show by competent evidence that a genuine issue of material
fact exists. Globe Motor Co.,
supra, 225 N.J. at 479-80. In
deciding such a motion, the motion court, or in this case the Council, must
draw all legitimate inferences in favor of the non-moving party. R.4:46-2(c).
Applying these criteria here, it is not necessary for
the Council to decide the accuracy of the anticipated costs the counties claim
are required for implementation of the challenge statutes. That is because the pivotal issue raised in
this case, whether the CJRA implements the New Jersey Constitution, is a
question of law, not a question of fact. Even if the NJRA would otherwise
qualify as an unfunded mandate, if the law implements a provision of the New
Jersey Constitution, it may not under any circumstance be considered an
unfunded mandate. N.J. Const. art. VIII, §II, ¶5. Accordingly, because no material facts
regarding this issue are in dispute, no plenary hearing to determine the
accuracy of the proposed expenditures imposed upon the counties, or any other
material fact, is warranted.
That said, the current record demonstrates that, as a
matter of law, the challenged statutory provisions fall within the 5(c)(5) exemption:
the challenged statutes “implement the provisions of [the New Jersey]
Constitution,” N.J. Const. art. VIII, §II, ¶5. As such, the exemption deprives the Council
of the authority to nullify the challenged statutes - N.J.S.A.
2A:162-16(b)(1), the risk assessment timeframe, and N.J.S.A. 2A:162-22,
the speedy trial timeframes, even if they were otherwise to constitute unfunded
mandates. See In re Township of Medford, June 1, 2009, at 8.
A number of factors inform the
Council’s decision.
First, it looks to the similarity of the language of
the Amendment and the CJRA. The CJRA is to be liberally construed to “effectuate
the purpose of primarily relying upon pretrial release by non-monetary means to
reasonably assure an eligible defendant’s appearance in court when required, the
protection of the safety of any other person or the community . . . and that
the . . . defendant will comply with all conditions of release, while
authorizing the court, upon motion of a prosecutor, to order pretrial detention
. . . [under certain circumstances].
Monetary bail may be set . . . only when it is determined that no other
conditions of release will reasonably assure the . . . defendant’s appearance
in court when required.”
[N.J.S.A.
2A: 162-15.]
The language of the Amendment is strikingly
similar. The Amendment, states, in part,
that “[a]ll persons shall, before conviction be eligible for pretrial
release. Pretrial release may be denied
to a person if the court finds that no amount of monetary bail, non-monetary
conditions of pretrial release, or combinations 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. Comparing the wording of
the two enactments, the similarity of the language and purposes of the
Amendment and the CJRA demonstrate a substantial nexus between them.
Further, the Amendment and the CJRA have a significant
temporal connection, having been moved through the legislative adoption
processes nearly simultaneously. Indeed,
the challenged legislation could not have taken effect without enactment of the
Amendment. As previously noted, section
21.a. of the CJRA specifically states that “sections . . . of this act shall
take effect on the same day that a constitutional amendment to Article 1,
paragraph 11 of the New Jersey constitution authorizing the courts to deny
pretrial release of certain defendants takes effect.” Put simply, the CJRA would not be law but for
passage of the Amendment.
The Amendment
changed the criteria for a defendant’s pretrial release from a resource-based
system – a defendant primarily had to post money to secure his pretrial release
– to a risk-based system. To effectuate
this new risk-based system, the CJRA undeniably established procedures and
conditions for pretrial release exclusive of bail. Those provisions were consistent with the Amendment’s
express authority to the Legislature to provide implementing legislation for
the Amendment. N.J. Const. art. I, §11.
Without the procedures and conditions embedded in the CJRA, no process would
exist to effectuate the purpose of the Amendment.
Given the similarity
of language of the Amendment and the CJRA; the temporal connection between the two;
the Amendment’s authorization to the Legislature to enact procedures, terms and
conditions to effectuate the purposes of the Amendment; and that the CJRA would
simply not have become law without the adoption of the Amendment; the State has
met its burden and has established that the CJRA implements provisions of the
New Jersey Constitution.
Both the risk
assessment procedures and timeframe, and the speedy trial timeframes bear upon
pretrial release. The Amendment allows
for pretrial release without bail being posted.
Inherent in this new right is the need for management of the risk posed
by the potential release. That is what is substantially addressed by
requirements and procedures rooted in N.J.S.A. 2A:162-16(b)(1), the risk
assessment timeframes.
And too, the
speedy trial requirements give effect to the speedy trial guarantees found in
the New Jersey Constitution, Art. I, §10: “In all criminal prosecutions the
accused shall have the right to a speedy . . . trial.” That New Jersey courts have previously
applied a judicially fashioned test to determine if a defendant received a
speedy trial, State v. Szima, 70 N.J. 196, 200-01 (1976), does
not preclude the Legislature from adopting specific time frames within which
the State must bring a defendant to trial.
A simple
dictionary definition of “implement” reinforces the applicability of the
5(c)(5) exemption. “Implement” is
defined: “to give practical effect to and ensure the actual fulfillment by
concrete measures.” Webster’s Ninth
New Collegiate Dictionary 604 (1987).
That is what the challenged statues do, they to give practical effect to
the Amendment, and to Article I, §10 of the New Jersey Constitution, and
attempt to ensure that the purposes of the Amendment, and Article I, §10 of the
New Jersey Constitution, are fulfilled.
When the Amendment gave the Legislature the authority “to establish by
law procedures, terms, and conditions applicable to pretrial release and the
denial thereof authorized under this provision,” N.J. Const. Art I, §11,
it gave the Legislature the authority to implement the Amendment. N.J.S.A. 2A:162-16(b)(1) and N.J.S.A.
162-22 are part and parcel of the Amendment’s implementation.
In arriving at
this decision, the Council follows settled judicial practice of construing a
statute to avoid creating a constitutional problem, unless a contrary position is
persuasively required. In Re: Ocean Township
(Monmouth County) and Frankford Township, Aug. 2, 2002 at 11; (citing State
v. Muhammad, 145 N.J. 23, 41 (1996)). Construing a statute, we look to its
legislative purpose and give the words a common-sense meaning within the
context of that purpose.” In re T.S.,
364 N.J. Super 1, 6 (App. Div. 2003).
The first step in deriving legislative intent is to consider the
statute’s plain meaning, Mody v. Brooks, 339 N.J. Super 392, 395 (App.
Div. 2001), in the context of the entire legislative scheme. Kimmelman v. Henkels & McCoy, Inc.,
108 N.J. 123, 129 (1987).
Applying these rules
of statutory construction here, it is beyond question that the statutes at
issue implement the Amendment and Article I, §10 of the New Jersey Constitution. The Amendment is clear on its face; the words
of the enactments are given their common sense meaning. The Amendment gives the Legislature the
authority to enact procedural rules governing a defendant’s pretrial
release. The Council finds that the
Legislature did just that in enacting the CJRA.
By so construing the Amendment’s language, the Council fosters the
purposes of both the Amendment and the statutes to manage conditions for
pretrial release.
The NJAC further argues
that the Council must attempt to harmonize the 5(c)(5) exemption with the
underlying purposes of the unfunded mandate amendment, as well as with other
constitutional provisions that effect funding for legislative mandates. The
Council disagrees. No reconciliation is
necessary beyond looking at the plain language of the constitutional amendment
regarding unfunded mandates, N.J. Const. art. VIII, §2, ¶5, and the LMA,
N.J.S.A. 52:13H-1 to -22. Their
meaning is clear and unambiguous: if a law implements the New Jersey
Constitution, it may not be classified as an unfunded mandate, even if it
otherwise meets the constitutional and statutory definition of an unfunded
mandate. When a statute is clear on its
face, we need not look beyond its words and phrases for its intent. State v. Churchdale Leasing, Inc., 115
N.J. 83, 101 (1989).
And too,
legislation must be read to give effect to all of its provisions. Bradley v. Ramp, 132 N.J. Super
429 433 (App. Div. 1975). To accept the
NJAC’s argument that all other constitutional provisions that affect funding
for legislative mandates must be considered along with the plain language of
5(c)(5) would effectively nullify the 5(c)(5) exemption and ignore its plain
meaning.
Finally, the Council does not address whether the
funding mechanism, the 21st Century Improvement Fund, was sufficient. That issue is for the courts.
In sum, for the
reasons the Council has set forth, the State has met its burden and has proved
that the Criminal Justice Reform Act implements provisions of the New Jersey
Constitution and, accordingly, shall not be considered an unfunded mandate.
Dissent
The dissent would
deny the motion to dismiss and permit the Claimant to offer proofs at a full
fact-finding hearing. The dissenters
have not formed a conclusion as to the substantive issues, but believe the
motion to dismiss is premature. The dissenters believe additional information
is necessary.
In particular, the
dissent questions whether the speedy trial provisions constitute legislative
overreach. The Amendment, which led to
passage of the CJRA, is silent concerning timeframes within which to take certain
steps toward trial. Without additional information, the dissenters are unable
to determine how N.J.S.A. 2A:162-16(b)(1), the risk assessment timeframe,
which requires eligible defendants to be detained no longer than 48 hours after
the defendant’s commitment to jail during preparation of risk assessment prior
to trial, implements the Amendment. The
same question applies to the speedy trial time frames, which impose limitations
on detention for 90 days prior to indictment, 180 days following return or
unsealing of the indictment, and two years if the defendant does not go to
trial. N.J.S.A. 2A:162-22. Based
on the present record, the dissenters question whether the challenged statutes
in fact implement the Amendment, as they bear a tenuous connection to
conditions that may be necessary for release of a defendant without bail. The dissenters believe they need more
information bearing on this issue.
As
the Council has made clear in the past, its rulings are not subject to judicial
review. N.J. Const. art. VIII,
§2, ¶5(b); N.J.S.A. 52:13H-18. And
“given that the parties will have no other forum in which to challenge
mandates, we are wary of disposing of matters in a summary manner. In re
Board of Education and Borough of Highland Park, Aug. 5, 1999 at 13. Accordingly, the dissenters would deny the
motion to dismiss and allow the Claimant an opportunity to explore the issues
in a full plenary hearing. The dissent
would seek additional information on the necessity of the proposed costs the
NJAC claims are required by the CJRA, as well as additional information on the
relationship between the time frames in the CJRA and the language and purpose
of the Amendment.
Accordingly, we dissent.
Addendum
Notwithstanding the Council’s decision,
members of the Council strongly caution that while it has found that provisions
of the "Criminal Justice Reform Act" fall within the 5(c)(5)
exemption: the challenged statutes "implement the provisions of [the New
Jersey] Constitution,” the Legislature and the Executive Branch should not
interpret this decision as carte blanche to impose unfunded mandates upon
counties, municipalities, or boards of education by enacting amendments or
supplements to the "Criminal Justice
Reform Act."
This decision should not be viewed as
a bypass around the State Mandate - State Pay provisions of the New Jersey
Constitution upon which future mandates may travel unchallenged. The limited scope of our decision and the
fact that efforts to use it in order to circumvent State Mandate - State Pay
"would be beyond the scope of the exemption and within the purview of this
Council to decide, based on the proofs, whether it was an unfunded
mandate" was acknowledged by the representative of the ACLU in response to
questioning by the Council.