Opinion
Argued October 12, 1999
Decided December 16, 1999.
On appeal from the Superior Court, Appellate Division.
David B. Rubin, argued the cause for appellant.
Frank M. Ciuffani, argued the cause for respondent (Wilentz Goldman Spitzer, attorneys; Mr. Ciuffani and Christopher W. Hager, on the brief).
Richard A. Friedman, argued the cause for amicus curiae, New Jersey Education Association (Zazzali, Zazzali, Fagella Nowak, attorneys).
We affirm the judgment of the Appellate Division substantially for the reasons set forth in Judge Skillman's opinion below, 314 N.J. Super. 293, 300-03, 714 A.2d 958 (1998). Judge Skillman concluded that this Court's affirmance of Abbamont v. Piscataway Township Board of Education, 238 N.J. Super. 603, 570 A.2d 479 (App.Div. 1990), by an equally divided Court on the question whether a punitive damage claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, may be maintained against a public entity, 138 N.J. 405, 650 A.2d 958 (1994), (Abbamont I), constituted the controlling law under the "law of the case" doctrine, and therefore was binding on the lower courts in this case. 314 N.J. Super. at 301-303, 714 A.2d 958.
Having so recently addressed in Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 735 A.2d 548 (1999), the question whether a public entity may be liable for punitive damages under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, we decline at this time to revisit the issue raised in Abbamont I whether a public entity may be liable under CEPA for punitive damages.
I join the Court in affirming the judgment of the Appellate Division on the narrow question involving the "law of the case" doctrine. I write separatley in Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405, 650 A.2d 958 (1994) (Abbamont I), would have no precedential weight in subsequent cases involving the underlying issue of whether punitive damages are available against public entities under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Abbamont, 314 N.J. Super. 293, 301, 714 A.2d 958 (App.Div. 1998).
In my view, the Legislature did not clearly express its intention to subject public entities to liability for punitive damages under CEPA. As Justice Pollock stated Abbamont I, "[t]he best solution would be for the Legislature to revisit the issue and resolve it definitively." 138 N.J. at 436, 650 A.2d 958 (Pollock, J., concurring and dissenting).
Chief Justice PORITZ and Justice GARIBALDI join in this concurring opinion.
For affirmance — Chief Justice PORITZ and Justices O'HERN, GARIBALDI, STEIN, COLEMAN, LONG and VERNIERO — 7.
Opposed — None.