Opinion
DOCKET NO. A-5239-14T3
05-12-2016
STATE TROOPERS FRATERNAL ASSOCIATION OF NEW JERSEY, on behalf of its individual members, and all other persons similarly situated, and NEW JERSEY NON-COMMISSIONED OFFICERS ASSOCIATION, on behalf of its members and all other persons similarly situated, but un-named, Appellants, v. STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL, John J. Hoffman, Acting Attorney General, of the State of New Jersey Division of Law and Public Safety, and DIVISION OF STATE POLICE, Superintendent of State Police, Joseph R. Fuentes, Respondents.
Michael A. Bukosky argued the cause for appellants (Loccke, Correia, & Bukosky, attorneys; Mr. Bukosky, of counsel and on the brief; Corey M. Sargeant, on the brief). Lisa A. Puglisi, Assistant Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Ms. Puglisi, Assistant Attorney General, of counsel and on the brief; Eric S. Pasternack, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Leone. On appeal from Attorney General Directive 2015-1. Michael A. Bukosky argued the cause for appellants (Loccke, Correia, & Bukosky, attorneys; Mr. Bukosky, of counsel and on the brief; Corey M. Sargeant, on the brief). Lisa A. Puglisi, Assistant Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Ms. Puglisi, Assistant Attorney General, of counsel and on the brief; Eric S. Pasternack, Deputy Attorney General, on the brief). PER CURIAM
Appellants New Jersey State Troopers Fraternal Association and New Jersey Non-Commissioned Officers Association appeal from the issuance by the Attorney General (AG) of Directive No. 2015-1 (the Directive), establishing statewide standards governing the use of body-worn cameras (BWCs) by law enforcement officers. This appeal turns on whether or not the Directive constitutes an "administrative rule" that the AG could not adopt without following the formal agency rule-making process set forth in the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15. We conclude that it does not constitute an administrative rule for APA purposes, and therefore affirm the action of the AG issuing the Directive.
The standards established by the Directive include "when officers are required to activate their BWCs, when officers are permitted to turn off the recording device during an ongoing police-civilian encounter, and when and for what purposes law enforcement agencies and officers are authorized to access, view, copy, or disseminate stored BWC recordings." Importantly, the decision of whether or not to equip law enforcement officers with BWCs remains with the law enforcement agencies themselves. The Directive does not require agencies to acquire or deploy BWCs, but instead establishes foundational standards regarding their use, should agencies choose to use them.
Before the AG officially issued the Directive, appellants filed a complaint and order to show cause in the Law Division, seeking a preliminary injunction preventing implementation of the Directive. The Law Division judge denied appellants' application for preliminary relief, and transferred the case to this court, pursuant to Rule 2:2-3(a)(2). On August 24, 2015, we denied appellants' emergent application for a stay of the Directive pending a decision of their appeal; we were not persuaded appellants had a likelihood of success on the merits of their appeal or that a stay was otherwise warranted.
The AG officially issued the Directive on July 28, 2015, to "take effect 60 days after it is issued in order to provide an opportunity for law enforcement agencies to prepare to comply with its requirements and to develop and issue policies and procedures consistent with the policies, standards, and procedures established herein."
Appellants challenge the Directive on procedural grounds, arguing that the AG was required to conduct the formal process for adopting administrative rules set forth in N.J.S.A. 52:14B- 4. One primary component of this rule-making process is a thirty-day public comment period, wherein interested parties may submit "data, views, or arguments" in opposition to the rule. N.J.S.A. 52:14B-4(a)(3). If sufficient public interest is shown, the agency proposing the rule must conduct a public hearing, and interested parties may petition the agency to adopt a new rule, or amend or repeal an existing rule. N.J.S.A. 52:14B-4(a)(3), (f). The rule-making process is a mandatory prerequisite for all administrative rules, and any rule that is not adopted in substantial compliance with the process is invalid. N.J.S.A. 52:14B-4(d).
The APA defines an "administrative rule" as an "agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency." N.J.S.A. 52:14B-2. Relevant to this appeal are two types of agency action that are specifically excluded from the statutory definition of "administrative rule," and are thus exempt from the standard rule-making procedures: "(1) statements concerning the internal management or discipline of any agency; [and] (2) [intra-agency] and [inter-agency] statements[.]" Ibid. The AG argues that both of these exclusions apply to the Directive in this case.
Appellants contend that we must apply the factors set forth by the Supreme Court in Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313, 331-32 (1984), to determine whether the Directive qualifies as an "administrative rule," as defined by N.J.S.A. 52:14B-2. However, a Metromedia analysis is not necessary here, as this case centers on the applicability of the statute's definitional exclusions from the term "administrative rule." See Woodland Private Study Grp. v. State, 109 N.J. 62, 66-69 (1987) (explaining that the Metromedia factors do not control when the issue concerns the applicability of the statutory exclusions); N.J. Builders Ass'n v. N.J. Dep't of Envtl. Prot., 306 N.J. Super. 93, 100 (App. Div. 1997) (declining to apply the Metromedia factors, pursuant to the Court's holding in Woodland, because the analysis focused on application of the statutory exclusions).
The first exclusion is carved out for "statements concerning the internal management or discipline of any agency." Ibid. Since its inception, we have applied this exclusion sparingly. See, e.g., In re Carroll, 339 N.J. Super. 429, 442-43 (App. Div.), certif. denied, 170 N.J. 85 (2001); see also Avant v. Clifford, 67 N.J. 496, 555-56 (1975) (emphasizing, in reference to this exclusion, that "rules and procedures for internal institutional discipline" are exempt from the formal rule-making process). We acknowledge that the State Police is a division of the AG's Office, N.J.S.A. 52:17B-3, and to the extent that appellants challenge the AG's directive as it pertains to their members, the exception arguably applies to them. However, we have never applied the exclusion to an agency directive that deals so heavily with law enforcement's interactions with the general public, and discern no reason to do so here, in light of the clear applicability of the second exclusion.
The second statutory exclusion to the definition of "administrative rule" is for intra-agency and inter-agency statements. Our Supreme Court has defined an "intra-agency statement" as "(1) a communication between agency members that (2) does not have a substantial impact on (3) the rights or legitimate interests of the regulated public." Woodland, supra, 109 N.J. at 75. Although New Jersey courts have not yet defined an "inter-agency statement," we conclude that only the first element of the "intra-agency statement" definition would require alteration. Therefore, we now define the term "inter-agency statement" as a (1) communication between or among members of different agencies that (2) does not have a substantial impact on (3) the rights or legitimate interests of the regulated public.
As applied to the State Police, the Directive is clearly an intra-agency statement. As applied to local law enforcement agencies, the Directive could be viewed as inter-agency. On the other hand, the Directive could be viewed as a statement directed toward several subparts of the same agency, because local law enforcement agencies are under "the general supervision of criminal justice by the [AG] as chief law enforcement officer of the State." N.J.S.A. 52:17B-98. Thus, we need not decide that issue, as intra-agency and inter-agency statements are equally exempt.
We have previously summarized the AG's authority to adopt guidelines and directives, as opposed to regulations:
Under the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, the [AG], as the "chief law enforcement officer of [this] State," see N.J.S.A. 52:17B-98, is charged with adopting guidelines, directives and policies that bind local police departments in the day-to-day administration of the law enforcement process. See In re Gen. Disciplinary Hearing of Carberry, 114 N.J. 574, 577-78 (1989)[.] [T]he articulated design is to promote the "uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State." N.J.S.A. 52:17B-98. Such provisions "shall be liberally construed." Ibid.
Accordingly, consistent with statutory authority, the AG issues guidelines, directives and policies concerning appropriate application of the State's criminal laws. See [Carroll, supra, 339 N.J. at 439]. Indeed, our courts have "acknowledged the validity of various guidelines issued by the [AG]," such as the plea offer guidelines, the sex offender registration guidelines, the drug screening guidelines, and the guidelines assisting prosecutors in rendering uniform decisions concerning drug testing. Ibid.; see also, e.g., State v. Henderson, 397 N.J. Super. 398, 411 (App. Div. 2008) (addressing AG
guidelines regarding eyewitness identification).
AG guidelines, directives and policies of this type are not "administrative rules" as defined in [N.J.S.A. 52:14B-2], and, thus, do not require formal promulgation under the [APA]. See Doe v. Poritz, 142 N.J. 1, 98 (1995). Those guidelines, directives or policies cannot be ignored, however: they are binding and enforceable on local law enforcement agencies, see Carroll, supra, 339 N.J. Super. at 442-43; and, at a minimum, they are "statements concerning the internal management or discipline of an[ ] agency." Id. at 442.
[O'Shea v. Twp. of West Milford, 410 N.J. Super. 371, 382-83 (App. Div. 2009).]
Regardless of whether the Directive is viewed as an intra-agency or inter-agency statement, we conclude that it is exempt from the formal rule-making process because it does not have a substantial impact on the rights or legitimate interests of the regulated public. We expect that the Directive - which controls when BWCs can and cannot be activated during interactions with members of the public - may have some effect on the privacy interests of the regulated public. However, we conclude that any such impact will be minimal. Prior to the issuance of the Directive, the question of when BWCs must be activated was left largely to the discretion of the law enforcement officers who wore them. The Directive merely removes some of that discretion, and standardizes the manner in which BWCs may be used. Importantly, the Directive does not require agencies to acquire or deploy BWCs. Nor does the Directive apply to members of the general public. We conclude that the Directive constitutes an intra-agency or an inter-agency communication, and is thus exempt from the APA's rule-making procedures.
To show that the Directive will have a substantial impact on the interests of the public, appellants hypothesize several possible consequences not required by the Directive. We instead consider only the actual requirements of the Directive, compared to the unrestricted use of BWCs which preceded the Directive, and find no such impact. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION