CHIEF JUSTICE RABNER delivered the opinion of the Court.
In June 2020, weeks after George Floyd was killed at the hands of a Minneapolis Police Officer, the Attorney General for New Jersey issued two Directives. They call for the release of the names of law enforcement officers who commit disciplinary violations that result in the imposition
One Directive applies to all law enforcement agencies in the State, including local police departments; the other applies to the State Police and other agencies within the Department of Law and Public Safety (Department). Both Directives encompass all findings of major discipline after January 1, 2020. In addition, for the State Police and other agencies within the Department, officers subjected to major discipline dating back twenty years would be identified publicly.
The Directives mark a sharp change in practice. Previously, the Attorney General fought to shield the identities of law enforcement officers disciplined for serious misconduct.
Five groups representing state and local officers challenged the Directives on multiple grounds. In a comprehensive opinion, the Appellate Division rejected their facial challenge to the Directives.
We find that the Attorney General had the authority to issue the Directives. In evaluating them, appellate review of final agency decisions, which the Directives represent, is limited to whether an action is arbitrary, capricious, unreasonable, or contrary to public policy.
The challengers present a number of concerns; yet, in our view, 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.
We do not find merit in the bulk of the remaining challenges. One claim, however, requires more careful attention. Going forward, officers can expect that their names will be disclosed if they commit acts that result in major discipline. Officers subjected to that level of discipline for the past twenty years, however, present a straightforward argument: they say they were promised that their names would not be released, and that they relied on that promise in resolving disciplinary accusations. The officers present a number of certifications in support of that claim, including one from the former Superintendent of the State Police. In essence, they ask the State to stand by promises they claim were made throughout the prior twenty years.
To resolve that serious issue, a judge will need to hear and evaluate testimony and decide if the elements of the doctrine of promissory estoppel have been met. To establish an orderly process for potentially hundreds of future proceedings, we offer guidance for disciplinary cases resolved up to twenty years before the Directives were issued.
A single trial judge will be designated to hear testimony that could apply to all of the challenges. The judge's ruling might resolve the claim as a whole; if not, the record created at the hearing can be used in individual as-applied challenges that State Troopers and others can pursue afterward. A similar process can be used in the event local officials choose to release historical incidents of serious misconduct.
We therefore modify and affirm the judgment of the Appellate Division and remand for further proceedings consistent with this opinion.
George Floyd's death on May 25, 2020 prompted nationwide protests and calls for greater accountability of police officers. Several weeks later, New Jersey Attorney General Gurbir S. Grewal issued two directives that require the release of the names of law enforcement officers who receive, and have received, major discipline.
As noted above, Directives 2020-5 and 2020-6 require law enforcement agencies to publish summaries of complaints against law enforcement officers that result in an officer's termination, demotion, or suspension for more than five days. Each officer's identity, along with the sanction imposed, must be disclosed as well.
Directive 2020-5 applies to all local and county law enforcement. The Directive required each agency to publish its first report by December 31, 2020, covering disciplinary actions for the prior twelve months. Agencies could choose to disclose historical incidents of misconduct as well.
Directive 2020-6 applies to three agencies in the Department: the New Jersey State Police; Division of Criminal Justice; and Juvenile Justice Commission. The Directive required each agency to disclose, no later than July 15, 2020, the same information dating back to January 1, 2000: the names of officers subject to major discipline; a synopsis of their misconduct; and the sanction imposed. Under the Directive, each agency must give at least seven days' prior notice before publication to each officer, "whenever possible." For retired employees, the agencies must "make reasonable efforts to contact the officer[s] at their last known residential address, email address, or phone number."
The Attorney General stated that he issued the Directives pursuant to his authority to provide for the "general supervision of criminal justice" as the State's chief law enforcement officer. The Directives and their rationale are discussed in greater detail below.
Five groups filed a facial challenge to the Directives: the State Troopers Fraternal Association of New Jersey and, as intervenors, the Association of Former New Jersey State Troopers, the New Jersey Former Troopers Heritage Foundation, Inc., and Former Trooper Members and FTA Members No. 1 & 2; the State Troopers Non-Commissioned Officers Association of New Jersey, the State Troopers Superior Officers Association of New Jersey, and their respective presidents, Pete J. Stilianessis and Richard Roberts;
Appellants and intervenors challenged the Directives on a number of grounds. They claimed that the Attorney General lacked the authority to issue the Directives; that the Directives were arbitrary, capricious, unreasonable, and contrary to public policy; that retroactive disclosure of the names of officers violated equitable doctrines; that the Directives ran afoul of the Administrative Procedure Act (APA); that they violated various constitutional rights, including substantive and procedural due process, equal protection, and the right to contract and to collective negotiations; and that the Directives violated ex post facto principles.
The Appellate Division stayed implementation of the Directives pending the outcome of the challenge; that stay remains in effect. The court also consolidated the appeals and granted motions to participate as amici curiae to the following groups: the New Jersey State Association of Chiefs of Police; the American Civil Liberties Union of New Jersey along with 23 other organizations (ACLU); the Association of Criminal Defense Lawyers of New Jersey and the New Jersey State Office of the Public Defender; and the National Coalition of Latino Officers and the Law Enforcement Action Partnership.
The Appellate Division upheld the Directives against the parties' facial challenge.
The court also found the retroactive nature of the Directives did not run counter to ex post facto principles.
The Appellate Division acknowledged the Directives represented a "sea change... in the Department's policy regarding the confidentiality of officer disciplinary records and" had engendered "deep feelings of unfairness ... among law enforcement officers," who claimed they "were promised confidentiality when they settled internal disciplinary charges."
In light of the limited record before it and the fact that appellants brought only a
The Appellate Division rejected appellants' various constitutional arguments. The court found the Directives did "not rise to the level of a substantive due process violation implicating [appellants'] reputation or privacy rights" under federal law.
"[M]indful that [the] State Constitution extends due process protection to personal reputation," the appellate court found "no general right to a hearing here."
The Appellate Division also found no merit in appellants' equal protection claims. The court observed that appellants "are not members of a suspect class and no fundamental constitutional right is impinged by publication of their disciplinary records."
In addition, the Appellate Division found the distinction between officers in the Department and those in local law enforcement was supported by rational bases.
The appellate court found the outcome would be the same under the State Constitution.
The court also rejected appellants' claims that the Directives impair their right to contract and violate their constitutional right to collective negotiations. The court noted that no collectively negotiated agreements in the record "address the confidentiality of ... disciplinary records... other than to require compliance with the" Attorney General's Internal Affairs Policy & Procedures (IAPP).
The court added that any claims that "confidentiality assurances are mandatorily negotiable" must first be brought before the Public Employees Relations Commission.
Finally, the Appellate Division concluded the Directives are not arbitrary, capricious, unreasonable, or against public policy.
The Appellate Division stayed the Directives for five days so that appellants could seek review before this Court.
All of the amici who appeared before the Appellate Division continued to participate in this appeal.
Appellants represent members of the State's 36,000 active law enforcement officers and some retired officers.
Appellants first argue that the Attorney General lacks authority to issue the Directives because they conflict with section 10 of OPRA (N.J.S.A. 47:1A-10), regulations including N.J.A.C. 13:1E-3.2, and executive
Next, appellants claim the Directives are arbitrary, capricious, unreasonable, and contrary to public policy. Among other arguments, they contend the Attorney General failed to demonstrate the Directives will build trust and promote transparency or that the benefits of the Directives outweigh the potential harm to officers.
Appellants also contend that many officers accepted discipline under negotiated settlement agreements in exchange for a promise of confidentiality. According to appellants, implementing the Directives would breach those promises, violate the doctrines of promissory and equitable estoppel, and fail to "turn square corners." As a result, appellants seek to permanently enjoin the Attorney General from enforcing the Directives.
Certain appellants raise a number of additional arguments. They claim the Directives violate the officers' rights to substantive and procedural due process and equal protection, impair their rights to contract and to negotiate collectively, violate the APA, and apply retroactively in an unfair manner.
Appellant NJSOA adds that the Appellate Division's instructions about individual as-applied challenges are vague and unworkable and fail to provide officers enough time to challenge the release of disciplinary information.
The New Jersey State Association of Chiefs of Police, as amicus, focuses on the retroactive nature of the Directives. The Association contends the Directives are arbitrary, capricious, and unreasonable to the extent they are applied retroactively. The Association also submits the Appellate Division's instructions for as-applied challenges are impractical.
The Attorney General counters that the Directives promote trust, transparency, and accountability; are not arbitrary or capricious; do not run afoul of OPRA or any regulations or executive orders; are consistent with estoppel doctrines, principles of retroactivity, and constitutional privacy principles; are not subject to formal rulemaking under the APA; and do not violate appellants' due process rights, the privacy of victims, the requirements of equal protection, or collective negotiations rights or contractual agreements. The Attorney General asks the Court to place careful limits on as-applied challenges and urges the Court to affirm the judgment of the Appellate Division.
A number of amici support the Directives. The ACLU and 26 other organizations argue that police accountability requires transparency of police discipline. The organizations contend the Directives will provide the public with critical information and, in turn, promote trust in the police and public safety. The organizations note that many regulated professions in New Jersey have transparent disciplinary processes.
The National Coalition of Latino Officers and Law Enforcement Action Partnership argue that transparency greatly benefits police officers and promotes community trust. The groups also submit that transparency protects the rights of officers of color and will improve the overall disciplinary process for all officers.
The Association of Criminal Defense Lawyers of New Jersey and the Public Defender argue the Directives promote discovery of prior police misconduct in criminal cases, consistent with New Jersey's broad discovery rules and the State's constitutional obligation to produce exculpatory evidence.
We first consider the Attorney General's authority to issue the Directives.
As the State's chief law enforcement officer, the Attorney General has broad authority over criminal justice matters that derives from several sources. The Criminal Justice Act of 1970 declares it "the public policy of this State to encourage cooperation among law enforcement officers and to provide for the general supervision of criminal justice by the Attorney General as chief law enforcement officer of the State." N.J.S.A. 52:17B-98. The "[A]ct shall be liberally construed to achieve these ends."
The Legislature also empowered the Attorney General to "[f]ormulate and adopt rules and regulations for the efficient conduct of the work and general administration of the [D]epartment, its officers and employees." N.J.S.A. 52:17B-4(d). Over the years, multiple Attorneys General have exercised that power to establish standards and policies for the internal affairs review process of the State's law enforcement agencies.
In 1991, Attorney General Del Tufo issued the first Internal Affairs Policy and Procedures manual. It established a comprehensive set of procedures to address "allegations of officer misconduct or the improper delivery of police services," for the purposes of "bolster[ing] the integrity of the police department." 1991 IAPP at 15. Five years later, the Legislature directed every law enforcement agency in the State, including local police departments, to "adopt and implement guidelines which shall be consistent with the guidelines governing the [IAPP]." N.J.S.A. 40A:14-181. The guidelines must be consistent with tenure and civil services laws and "shall not supersede any existing contractual agreements."
Each iteration of the IAPP has addressed the confidentiality of the disciplinary process. The 1991 IAPP expressly guaranteed that "[t]he progress of internal affairs investigations and all supporting materials are considered confidential information," and "[t]he contents of the internal investigation case files will be retained in the Internal Affairs Unit and clearly marked as confidential." 1991 IAPP at 15. Disciplinary hearings would "be closed to the public," unless the accused officer requested otherwise, and "[o]nly the police executive or his designee [was] empowered to release publicly the details of an internal investigation or disciplinary action."
Revisions to the IAPP followed a similar approach: the progress of investigations and contents of case files were confidential but could be released in limited circumstances. The revised 2000 IAPP, for example, stated that "information and records of an internal investigation" could be released "[u]pon the request or at the direction of the county prosecutor or Attorney General." 2000 IAPP at 11-46. "The law enforcement executive officer" could allow "access [to] a particular file or record for good cause," and such access was to be granted "sparingly."
In 2001, the Legislature likewise mandated the Superintendent of the State Police to submit an annual report of complaints of misconduct against members of the State Police, with the number of complaints and the results for each category. N.J.S.A. 53:1-10.1. The statistical report "shall not disclose personal identifiers" of any officers or complainants.
Directives 2020-5 and 2020-6 altered those historical practices. As noted earlier, the Directives require that officers subject to major discipline be identified publicly.
The current IAPP still requires each law enforcement agency to publish on its public website, on an annual basis, a statistical report "summarizing the types of complaints received and the dispositions of those complaints." Directive 2020-5 at 3-4 (amending 2019 IAPP § 9.11.1). But for complaints in which an officer was terminated, received a reduction in rank or grade, or was suspended for more than five days, Directive 2020-5 requires that the identity of the officer be revealed, along with a brief summary of the offense and the sanction imposed.
The Directive distinguishes between "minor discipline" of up to five days' suspension and "major discipline."
Directive 2020-5, issued on June 15, 2020, requires agencies to publish their first report no later than December 31, 2020, for discipline finalized during the preceding twelve months.
The changes to the IAPP outlined above apply prospectively to officers in the New Jersey State Police, the Division of Criminal Justice, and the Juvenile Justice Commission, as well as local law enforcement officials. Directive 2020-6, issued on June 19, 2020, additionally requires the three state agencies to "publish the names of any officers who have been subject to serious discipline in the past twenty years." Directive 2020-6 at 1. The Attorney General directed the three agencies to publish, no later than July 15, 2020, the names of law enforcement officers subject to major discipline since January 1, 2000.
Directive 2020-6 notes that it is a final agency action under
Appellants claim the Directives violate OPRA, N.J.A.C. 13:1E-3.2, and Executive Order 11 (Byrne). According to appellants, those authorities protect the confidentiality of personnel records in a way that bars the key changes to the IAPP. We do not agree.
OPRA is designed to give the public ready access to government records. The law seeks to promote transparency in government and avoid "the evils inherent in a secluded process."
Under the statute, government records are subject to disclosure unless the law exempts them from access. N.J.S.A. 47:1A-1. As the Appellate Division aptly noted, however, "this is not an OPRA case."
Appellants highlight section 10 of the law, which limits the disclosure of personnel and pension records.
N.J.A.C. 13:1E-3.2(a), a regulation the Department adopted in 2014, similarly ties back to section 10. The regulation provides that certain records "shall not be considered government records subject to public access" under OPRA. N.J.A.C. 13:1E-3.2(a). Among other categories of exempt items, the regulation lists records about individual employees "relating to or which form the basis of discipline."
The same exception is embedded in Executive Order 11, issued by Governor Byrne. The order provides, in part, that "
As noted earlier, the Legislature expressly gave the Attorney General responsibility over "the general supervision of criminal justice ... as chief law enforcement officer of the State," N.J.S.A. 52:17B-98, and directed the Attorney General to "[f]ormulate and adopt rules and regulations" to administer the Department, N.J.S.A. 52:17B-4(d). Based on that authority, Attorneys General have issued various directives that govern the disciplinary process.
As the Court has recognized on prior occasions, Attorney General directives
Appellants contend that although the Attorney General has the power to issue directives, they are not "laws" passed by the Legislature, and therefore do not trigger the exceptions in the above three sources. But even if we accept that argument, the Legislature enacted a separate statute that underscores the force of the IAPP. N.J.S.A. 40A:14-181 embraces the Attorney General's policy on internal affairs matters by directing law enforcement agencies throughout the state to adopt guidelines consistent with the IAPP.
The Directives therefore do not conflict with OPRA, N.J.A.C. 13:1E-3.2(a), or Executive Order 11. They are binding policy measures that provide a basis in law for the release of the names of officers who have been subjected to major discipline.
Appellants also argue that the Directives are arbitrary, capricious, and unreasonable and, therefore, cannot be upheld. The Attorney General acknowledges the Directives are final agency action and contends that appellants have not overcome the substantial deference owed the Department.
Judicial review of actions by administrative agencies is provided for under the State Constitution.
Courts apply a deferential standard to final agency actions and will not overturn them unless an action is arbitrary, capricious, or unreasonable.
The deferential standard is consistent with "the strong presumption of
In applying the standard, courts do not consider what they might have done in the agency's place or substitute their judgment for the agency's.
Although the three-part inquiry applies generally to all administrative agency actions,
Most administrative agencies perform two delegated functions: they have the power to make rules that can have the effect of laws — a quasi-legislative role — and the power to adjudicate individual cases — a quasi-judicial role.
The nature of an administrative action affects how the standard of appellate review is applied.
The Directives do not fit easily into the typical categories of agency action. They are not the result of adjudication, so there is no record of a hearing before the Office of Administrative Law.
The Directives most closely resemble quasi-legislative action. They apply in a uniform fashion without the need for individualized determinations. When an executive branch official acts in a quasi-legislative manner, the arbitrary and capricious "standard does demand that the reasons for the decision be discernible, [but they] need not be as detailed or formalized as an agency adjudication of disputed facts."
More generally, the appellate standard in such matters focuses on whether the agency's decision is consistent with its delegated authority. Judicial intervention is limited to "those rare circumstances in which it is clear that the agency action is inconsistent with its mandate."
The Legislature empowered the Attorney General to issue directives. To determine whether a particular directive is arbitrary, capricious, or unreasonable, courts consider whether "there is any fair argument in support of the course taken or any reasonable ground for difference of opinion among intelligent and conscientious officials."
The Directives detail the Attorney General's justification for releasing the names of officers subject to major discipline. Because the rationale underlying the Directives is critical to this appeal, we quote from them at length.
Directive 2020-5 is addressed to all law enforcement chiefs. At the outset, it acknowledges "good reasons why internal affairs records are not generally disclosed," namely, "the need to protect those who report and witness police misconduct," and the fact that a number of complaints "are ultimately determined to be unsubstantiated or unfounded." Directive 2020-5 at 1.
The Attorney General, however, also emphasizes that
After briefly reviewing recent changes to the IAPP, Directive 2020-5 continues:
Directive 2020-5 next observes that "[t]he vast majority of law enforcement officers ... serve with honor and ... courage...[, b]ut their good work is easily undermined ... whenever an officer breaches the public's trust."
As noted before, Directive 2020-6 is addressed to three entities in the Department — the State Police, Division of Criminal Justice, and Juvenile Justice Commission. The Directive adopts the above reasons and explains that "[s]haring the identities of individuals who received major discipline will allow for public scrutiny and improve the culture of accountability among the Department's law enforcement agencies." Directive 2020-6 at 1.
Directive 2020-6 also addresses the reason the new policy extends to former employees:
The Attorney General highlighted a number of the same concerns at oral argument. Among others, he emphasized that releasing the names of officers subject to major discipline will enable the public to monitor the internal affairs process and gauge, for example, if progressive discipline worked effectively or if officers were promoted after repeated episodes of serious misconduct. In addition, the Attorney General stressed why it is important to reveal prior instances of serious misconduct
To be sure, the parties strongly disagree about the wisdom and consequences of the Directives, and appellants offer a very different perspective. They contend the Directives will embarrass officers and make them and their families targets for retribution; undermine the integrity of the investigatory process; chill cooperation from officers; discourage officers from seeking treatment for alcohol or drug dependencies; undermine the command structure in law enforcement agencies; have a negative effect on public safety; and reveal the identities of victims and witnesses in domestic violence and other matters. Appellants also believe the Attorney General's rationale is flawed in that the new Directives will not achieve accountability and will add nothing to a process that is already adequate. In addition, they contend the Attorney General's focus on what penalties are assessed, rather than on the type of misconduct committed, renders the Directives over-inclusive and arbitrary.
Disagreement over a policy, however, does not make it arbitrary, capricious, or unreasonable. If an administrative action is consistent with legislative policies, rests on a reasonable basis, reflects careful consideration of the issues, and can otherwise satisfy the standard for appellate scrutiny, the policy should be upheld.
The Directives implement a practice that is common in other professions. When
Once again, thoughtful concerns in opposition to a new policy are not fatal to administrative action. The Attorney General's decision to release the names of law enforcement officers subject to major discipline is consistent with his delegated authority and grounded in reason. It is not arbitrary, capricious, or unreasonable.
To the extent appellants continue to advance an ex post facto claim, we agree with the Appellate Division that the release of officers' names from matters resolved before the Directives were issued does not violate the Ex Post Facto Clause.
"The Ex Post Facto Clause is `aimed at laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts."'"
The Attorney General's authority is grounded in statutes enacted decades ago.
Insofar as appellants challenge the manner in which the Attorney General exercised his discretionary authority to change longstanding practice, their claim emphasizes estoppel principles, to which we turn next.
Appellants argue that the Directives violate the doctrine of promissory estoppel. There are four elements to a claim under the doctrine: "(1) a clear and definite promise; (2) made with the expectation that the promisee will rely on it; (3) reasonable reliance; and (4) definite and substantial detriment."
Promissory estoppel is an equitable doctrine that has its roots in contract law but is distinct from a typical claim to enforce a contract.
Appellants also rely on the related theory of equitable estoppel, which requires a showing of "a knowing and intentional misrepresentation by the party sought to be estopped under circumstances in which the misrepresentation would probably induce reliance, and reliance by the party seeking estoppel to his or her detriment."
Principles of estoppel must be evaluated with care when a party seeks to apply them against the government.
Appellants submitted multiple certifications in support of their claim in order to demonstrate that the Office of the Attorney General made clear promises of confidentiality throughout the disciplinary process. The Appellate Division observed that appellants pursued only a facial challenge to the Directives.
Although the record is incomplete, it raises significant concerns in that it suggests that officers who agreed to major discipline received assurances of confidentiality. The Attorney General points out that since 2000, the IAPPs have stated the Attorney General and County Prosecutor could release the names of officer who had been disciplined, and that law enforcement executives could authorize access to internal affairs files "for good cause."
Each IAPP stresses that records of internal affairs investigations are confidential and that files must be "clearly marked as confidential." 1991 IAPP at 15; 1992 IAPP; 2000 IAPP at 11-46; 2011 IAPP at 47; 2014 IAPP at 42; 2017 IAPP at 42; 2019 IAPP at § 9.6.1. In addition, a series of certifications in the record from the Superintendent of the State Police and others assert that for many years, the internal affairs process has been replete with promises of confidentiality and reassurances from state officials to officers who agreed to discipline.
Former Superintendent Joseph R. Fuentes submitted a certification in which he explained that he was personally involved in disciplinary matters during his tenure and had the ultimate responsibility to approve final settlements and set penalties for State Troopers in disciplinary matters.
Among other statements, the Superintendent certified to the following:
Trooper Wayne D. Blanchard, President of the State Troopers Fraternal Association of New Jersey, certified as follows:
Detective Sergeant Pete J. Stilianessis, president of the State Troopers Non-Commissioned Officers Association, also submitted a certification. He stated in broad terms as follows:
Stilianessis also quoted an anonymous trooper who certified that "[d]uring the entrance of the negotiated settlement agreement, I was assured that this matter was confidential and that it would not define my career."
In addition, Stilianessis noted that, as recently as 2019, the Attorney General argued before the Appellate Division against the release of the name of any State Trooper linked to a disciplinary charge.
The Attorney General's brief in
The trial court in
The Attorney General oversees the Department of Law and Public Safety, of which the State Police is a part. He has the ultimate authority to set policy for the Department and can decide to change direction on matters of policy. Although stated positions of the Attorney General may not necessarily amount to clear and definite promises,
In a related argument, appellants remind the Court that government agencies must "turn square corners" in their dealings with others.
Among other reasons, the Attorney General contends that appellants' estoppel argument should fail because disciplinary records are disclosed in criminal cases to satisfy the requirements of
We cannot probe the certifications in the record or resolve appellants' equitable claims.
A single Judge of the Superior Court will be designated to conduct a broad-ranging evidentiary hearing. The hearing 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,
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
As part of the notice, the Attorney General shall identify a point of contact in the Department from whom Troopers may seek additional information.
In addition, the Attorney General represents that "no synopsis of discipline will include the name of any victim, nor will it identify them by relationship to the offender (e.g., ex-spouse or child)." Like the Appellate Division, we urge the Attorney General to take further steps to protect the identity of victims of domestic violence, including extra redactions and advance notice to victims in appropriate cases.
The trial court shall employ specialized case management to expedite the proceedings.
We do not separately address potential challenges that may arise if or when local chief law enforcement executives decide to release names of officers involved in historical incidents of misconduct, pursuant to Directive 2020-5. The record contains memos from three County Prosecutors in Bergen, Essex, and Union Counties, and a certification relating to the City of Paterson. They set forth different approaches to publish the names of officers subject to major discipline for certain types of misconduct dating back to 2000 or 2014. The record is not as developed about promises of confidentiality relating to settlements reached before June 2020. Nor does it address other prosecutors or municipalities.
If parties seek to challenge orders by chief law enforcement executives, pursuant to Directive 2020-5, on estoppel grounds, they may file an application with the Assignment Judge in their respective vicinages. Assignment Judges have the authority to set up a process similar to the one outlined above for State Troopers — a broad-based evidentiary hearing about an agency's disciplinary practices, followed by individual as-applied challenges, if necessary. The procedures outlined above for as-applied challenges brought by Troopers would apply as well.
The Directives also apply prospectively. For major discipline imposed after the Attorney
The framework outlined in section VI.B applies only to historical cases of major discipline, imposed before the Directives were issued, in which officers challenge the release of their names on estoppel grounds.
Defendants raise a number of additional arguments. They claim the Directives violate their rights to substantive and procedural due process and equal protection; run afoul of the APA; impair their constitutional right to contract; and violate their constitutional right to collective negotiations. As to those points, we affirm the judgment of the Appellate Division largely for the reasons stated in Judge Accurso's thoughtful opinion.
For the reasons outlined above, we modify and affirm the judgment of the Appellate Division. In a separate order, we also designate a single Judge of the Superior Court to conduct the broad-based hearing described in section VI.B.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in CHIEF JUSTICE RABNER's opinion.
The Attorney General notes that disclosure of incidents resulting in major discipline tracks lines drawn by the Civil Service Commission and avoids "subjective or vague determinations" about "the kind of misconduct that the public deserves to know about."