Printer Friendly

The New Jersey Supreme Court in the 1990s: independence is only skin deep.


The prevalent view of American constitutional law and the American judicial system largely overlooks the existence of fifty state high courts and fifty state constitutions. This commonly-held notion, believed by lawyers and lay people alike, maintains that the United States Constitution is the primary source of individual rights, presupposing that the United States Supreme Court is the final arbiter of constitutional rights and that the decisions which come from the Court are the law of the land, binding on all. It ignores the reality that the United States Supreme Court's interpretation of the Federal Constitution sets only the floor for individual rights, establishing the minimum allowable amount of protection of these rights, while state courts and state constitutions are free to be more protective.(1) This prevalent notion ignores the fact that a state high court's decision on an issue of purely state law is the final say on that issue, unreviewable by the United States Supreme Court.(2)

While it may be understandable that society in general places such an importance on federal constitutional law, it is somewhat surprising to see the same priority given to federal law in decisions of state high courts. Only recently have state high courts begun to re-examine their own state constitutions.(3) Until the retirement of Chief Justice Earl Warren in 1969, the United States Supreme Court took an active role in protecting individual rights, adopting an expansive view of federal constitutional rights in order to provide protections where the state courts were failing to protect individual rights under state constitutions.(4) As the civil rights and liberties movement declined, and the Court was filled with more conservative Nixon, and then Reagan, appointees, the Supreme Court returned to the practice of interpreting the Federal Constitution in such a way as to define the minimum amount of protection, leaving it to the states to determine the amount of protection they deemed appropriate under the state constitution.(5)

Adjusting to this new role of independent state constitutional adjudication, states have adopted different approaches to analyzing state constitutional issues. Some have adopted a "dual reliance" or "dual sovereignty" approach, whereby both the state and federal constitutions are relied upon to determine a constitutional issue.(6) While this approach is beneficial in that it ensures some analysis of the state constitution, it also "creates a body of unreviewable interpretations of the federal constitution."(7)

Other courts take a primacy approach, looking first to the state constitution, and only turning to the Federal Constitution if the alleged infringement is permissible under the state constitution.(8) This approach is the most independent approach, "consistent with the proposition that state constitutions are the basic charters of individual liberties."(9) This approach also precludes review by the U.S. Supreme Court if the issue can be decided solely on state constitutional grounds.(10)

Many courts prefer a supplemental approach, however.(11) In this model of state constitutional adjudication, the state court evaluates an issue under the Federal Constitution first.(12) If the alleged infringement violates the Federal Constitution, the examination ends.(13) If it does not, then the challenged action is further evaluated under the state constitution to determine if a greater degree of protection exists under the state constitution.(14) While this affords less independence to the state constitution, it may be more "consistent with the roles of state and federal constitutional law as those roles have evolved in this century."(15)

This High Court Study will examine the New Jersey Supreme Court and the approach it has taken in resolving some of the issues which have been at the forefront of American society during the past decade. Part II will look at the death penalty,(16) Part III will examine the Megan's Law decisions,(17) and Part IV will discuss cases involving the rights of anti-abortion protesters.(18) Part V will touch upon additional issues of recent importance, including the constitutionality of hate crime legislation, mandatory HIV testing of sex offenders, and the constitutionality of random employee drug testing.(19) Part VI will conclude that New Jersey often facially asserts its state constitutional independence but then fails to actually engage in independent analysis and adjudication.(20) Applying a supplemental approach to state constitutional issues, the New Jersey Supreme Court relegates state law to a secondary position and often applies federal standards to state constitutional issues.


The death penalty, a controversial topic which has divided our society for decades, has been a central issue in the 1990s as well.(21) Since a state high court can be the ultimate arbiter of the constitutionality or unconstitutionality of a given state's death penalty statute,(22) the high court has a great deal of influence in this area. Since the United States Supreme Court ruled that the death penalty is not per se unconstitutional,(23) it has been for the individual states to decide whether their state constitution provides greater protection such that the death penalty would violate their own constitution. In this regard, a state court may take the easy way out, adopting a lock-step approach,(24) holding that if the Federal Constitution is not violated then neither is the state constitution. On the other end of the spectrum, the state court could look only to its state constitution and determine that, independent of the Federal Constitution, the state constitution prohibits the death penalty.(25)

An examination of the death penalty cases decided by the New Jersey Supreme Court reveals that, although the court screams independence, the actual analyses give little weight to the independence of the New Jersey Constitution.(26) New Jersey adopted a death penalty act in 1982.(27) The Act as a whole was challenged and upheld in 1987, and several challenges have since been made to specific provisions and to the constitutionality of its application.(28) An analysis of these cases provides some insight to state constitutional adjudication in New Jersey.

A. Constitutionality of the Death Penalty Per Se

The first challenge to the constitutionality of New Jersey's death penalty act ("Act") was in State v. Ramseur.(29) The court in this case was faced with many issues, including claims that the death penalty in general violated the federal and New Jersey constitutions and that New Jersey's death penalty statute in particular violated both the federal and state constitutions.(30)

In its decision, the court first dealt with the constitutionality of the death penalty itself.(31) The court began by noting its "agreement that the testing of a death penalty law by both federal and state constitutional standards is appropriate ... [since] capital punishment is a matter of particular state interest or local concern and does not require a uniform national policy."(32) The court further noted that some courts have even held death penalty statutes unconstitutional under their own state constitutions, and that state constitutional analysis was "particularly appropriate in view of the `[c]onsiderations of federalism' that have constrained the United States Supreme Court in this area."(33) In going to such lengths to justify the use of state constitutional analysis in this case, the New Jersey Supreme Court seemed to indicate that it was only the uniqueness or the special concerns involved in capital punishment cases that allowed the court to employ an independent analysis of the state constitution: the state constitutional analysis was "appropriate" because capital punishment is a matter of "local concern."(34) This implies that if an issue is not one of local concern, then state constitutional analysis is not appropriate. In truth, however, states are always free, and indeed cannot escape the task of determining--implicitly, if not explicitly--the protections afforded by their own constitutions, irrespective of the Federal Constitution, whenever a state constitutional challenge has been raised.(35)

After so vehemently expressing the need for and the appropriateness of a state constitutional analysis in this case, the court ultimately concluded "that both Constitutions produce the same results when applied to these issues."(36) Still proclaiming independence, the court declared that its frequent reliance throughout the opinion on Gregg v. Georgia,(37) a death penalty opinion of the United States Supreme Court, was merely an indication of their agreement with the reasoning in that case, although they were aware that they were "not obliged to adhere to the reasoning or the results of the Supreme Court's federal constitutional decisions."(38) While this is certainly true, a closer look at the analysis of the court reveals much less independence from the Supreme Court than the court was insisting it had employed.(39)

First, the court summarily dismissed the defendant's claim that capital punishment violates the Eight Amendment's protection against cruel and unusual punishment, as the Supreme Court had already held that it does not.(40) The court then turned to the question of whether the cruel and unusual punishment clause of the New Jersey Constitution prohibits capital punishment.(41) Supported by what was supposed to be an independent analysis under the state constitution, the court stated that there is a three-part test to determine if a punishment is unconstitutionally cruel and unusual, citing a U.S. Supreme Court case which promulgated this test.(42)

Turning to the first prong of this test, the court addressed the question of whether the punishment conformed with a "contemporary standard of decency."(43) It was first observed in this regard that there is "nothing in New Jersey's legislative, judicial, or cultural history and traditions to suggest there is a significantly different attitude toward capital punishment in this state from that prevailing nationwide."(44) The court then concluded that while there is no unanimous view in society, capital punishment does not generally violate society's standards of decency.(45) This conclusion was based on several factors: the legislature had passed the death penalty statute(46) (and a citation to a Supreme Court case which held that great deference must be given to legislative action(47)); juries in New Jersey had imposed twenty-six death sentences since 1982(48); and thirty-seven other states had passed death penalty statutes.(49)

The court then discussed the second inquiry of the analysis--whether the punishment was grossly disproportionate to the offense.(50) This analysis began and ended with a discussion of what the U.S. Supreme Court had held under the Eight Amendment.(51) Federal cases were cited which held that capital punishment is disproportionate for the crime of rape and for participation in a felony as the getaway driver.(52) Other Supreme Court cases have held, however, that the punishment of death for the crime of causing death is clearly proportionate.(53) A citation to one New Jersey case was found amid the discussion of federal precedent,(54) with the court ultimately "agree[ing] with the plurality in Gregg v. Georgia ... that although the death penalty is severe and irrevocable, it is not an excessive or disproportionate penalty for the crime of murder."(55)

The final prong of the constitutionality test is whether the punishment goes beyond what is necessary to accomplish a legitimate penological objective.(56) The American Civil Liberties Union (ACLU), as amicus curiae, argued that the state constitution's protection against cruel and unusual punishment, together with article I, section 1 of the state constitution which provides for the right of all persons to enjoy and defend life and liberty,(57) required a strict scrutiny analysis of the constitutionality of the death penalty.(58) This was truly the perfect opportunity for the court to assert its independence, particularly in light of the fact that the clause in the state constitution providing for a fundamental right to life has no parallel in the Federal Constitution. The court declined to seize this opportunity, however, dismissing the ACLU's argument as a "misconce[ption of] the constitutional guarantees upon which they rely."(59) The court instead held that they need only determine "the far more narrow [question] of whether the enactment of the Act was a legitimate exercise of the Legislature's power."(60) The court thus looked to whether the Act satisfied a "well-recognized penological purpose[ ],"(61) and found that it did, "agree[ing] with the United States Supreme Court that retribution constitutes a valid penological objective for the death penalty."(62) Thus, the court held, "capital punishment is not per se a violation of our state constitutional ban against cruel and unusual punishments."(63)

Only Justice Handler's dissent embraced an independent state constitutional analysis, recognizing that this case arose "against a backdrop of renewed awareness of and heightened sensitivity to the integrity of our State Constitution."(64) Handler was harshly critical of the majority opinion, noting that it "only half-heartedly consult[ed] our State Constitution"(65) and that it "risk[ed] the integrity of our constitutional protections."(66)

B. Constitutionality of New Jersey's Death Penalty Statute

1. Constitutionality of the Statute on its Face

Having rejected the argument that capital punishment is per se unconstitutional, the court in State v. Ramseur then turned to the validity of the New Jersey capital punishment statute itself.(67) The court employed a supplemental approach, looking first to federal constitutional law, then to state constitutional law.(68) After discussing the U.S. Supreme Court cases dealing with federal constitutional requirements of death penalty statutes, the court found the New Jersey statute "fully conforms with the constitutional requirements set forth by the United States Supreme Court."(69) and thus concluded that "the Act is constitutional under the eighth amendment to the federal Constitution."(70)

Turning to the state constitution, the court went to great lengths to insist that "[w]e are not obligated to follow the reasoning of all these United States Supreme Court decisions in interpreting our own state constitutional protections, nor do we intend to."(71) However, the ensuing discussion contained no analysis of state constitutional requirements, nor did it discuss relevant New Jersey case law interpreting the cruel and unusual punishment clause of the state constitution. Rather, it engaged in a bickering match with the dissenting opinion and summarily concluded that the statute was valid under both the state and federal constitutions, as it "sufficiently guides juries' discretion so as to achieve a capital punishment system that narrows the class, and ... it defines and selects those who will be subject to the sentencing proceeding and ultimately to the death penalty with consistency and reliability."(72)

2. Constitutionality of Aggravating Factors

The final constitutional claim raised in State v. Ramseur was that one of the aggravating factors listed in the statute was unconstitutionally vague.(73) The provision identified as an aggravating factor was that "[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim."(74) The defendant claimed the provision allowed "juries to find the existence of the aggravating factor in an arbitrary and capricious manner," and that it was "so imprecise as to amount to an impermissibly vague criminal law."(75) The court evaluated these claims under the Eighth and Fourteenth Amendments of the Federal Constitution and, perhaps weary from vainly trying to assert some semblance of state constitutional independence, merely added a footnote noting that similar claims were made under the New Jersey Constitution.(76) Nonetheless, the court stated "we believe that the analysis under, and the effect of, both the federal and state Constitutions in this connection are identical."(77) Proceeding with its analysis under the Federal Constitution, the court concluded that any vagueness in the language of the statute as written could be cured with proper jury instructions, thereby rejecting both the state and federal constitutional claims.(78)

3. Constitutionality of Evidentiary Provisions

All initial constitutional challenges to New Jersey's capital punishment statute having been rejected in State v. Ramseur, later defendants challenged the constitutional validity of piecemeal provisions of the Act.(79) One such case was State v. McDougald,(80) in which a provision of the Act was challenged which allowed prosecutors to admit evidence which would ordinarily be prohibited by the rules of evidence if the defendant had produced such evidence in mitigation,(81) The defendant claimed that this allowed the admission of unreliable information into the sentencing phase, in violation of both the federal and state constitutions,(82) The court decided this issue under Gregg v. Georgia, holding the provision valid because it "strikes the necessary balance between the prosecution and the defense in order to attain the goal of individualized justice in the capital penalty context."(83) Having determined the validity of the provision under federal law, the court concluded it was "not unconstitutional under the federal and state constitutions."(84) This conclusion was stated despite the absence of a single mention of the state constitution. Again, Justice Handler dissented, "reaffirm[ing his] position that New Jersey's capital punishment statute violates state constitutional principles."(85)

4. Constitutionality of the Victim Impact Statement

In 1995, the New Jersey legislature added a provision, commonly known as the Victim Impact Statute(86) to its death penalty statute. This provision allowed the prosecution to introduce evidence of a murder victim's character and background if the defendant had introduced evidence of his own character.(87) The constitutionality of the provision was challenged almost immediately, and the issue reached the New Jersey Supreme Court in 1996 in State v. Muhammad.(88) The defendant in Muhammad argued the Victim Impact Statute violated the cruel and unusual punishment and due process clauses of the New Jersey Constitution.(89) The challenge made by the defendant was under the state constitution only, as the United State Supreme Court had recently held in Payne v. Tennessee(90) that the admission of victim impact evidence was not barred by the Federal Constitution.(91) In reliance on this Supreme Court decision, New Jersey had amended its state constitution in November 1991 to add a Victim's Right Amendment.(92) It was pursuant to both the Payne decision and the Victim's Rights Amendment that the victim impact provision was added to the death penalty statute.(93)

Although purely a state constitutional case, the court began with an analysis under the Federal Constitution.(94) The court explained in detail the Supreme Court's holding in Payne, leading to the conclusion that the Eighth Amendment of the Federal Constitution "`erects no per se bar'"(95) to the admission of victim impact evidence. Even though the language of the New Jersey statute differed from the language at issue in Payne, the court concluded that the New Jersey statute was nevertheless "constitutional under both the Federal and State Constitutions."(96)

After having already stated this presumptive conclusion, the court finally turned to a state constitutional analysis. While first noting that "[a]t times we have interpreted the State Constitution to afford New Jersey citizens broader protection of certain rights than that afforded by analogous or identical provisions of the Federal Constitution,"(97) the court stressed that "`it is not enough to say that because we disagree with a majority opinion of the Supreme Court, we should invoke our State Constitution to achieve a contrary result.'"(98) The court then turned to a phenomenon that has become commonplace in dealing with state constitutional issues: criteria.(99) Citing seven factors which were developed in State v. Hunt,(100) the court applied those factors to "determ[ine] whether the State Constitution provides a basis for a result different than that permitted by the Federal Constitution."(101) In doing so, the court stripped the state constitution of its power and independence. The application of a criteria approach necessarily implies that the Federal Constitution is the primary authority on all matters of federal and state law, and only in certain special and rare circumstances are state courts justified in reaching a result different than that required by the Federal Constitution.(102) This ignores the reality that the state constitution is the controlling authority on issues of state law, and may afford greater or less protection than the Federal Constitution on any issue.(103) It disregards the fact that a state constitution can and should be separately and independently evaluated, and a court need not have a special reason for interpreting it differently from the Federal Constitution.(104)

The court then applied these criteria, only to determine that the state constitution, by virtue of the victim's rights amendment, afforded greater protection to crime victims than the Federal Constitution, thereby validating the victim impact statute.(105) The problem with this analysis, however, is the defendant's argument was that the cruel and unusual punishment and due process clauses of the state constitution provided more protection to defendants than did the analogous provisions of the Federal Constitution.(106) This argument did not receive the state constitutional analysis, even under the so-called criteria approach, that the victim's rights arguments had received. Rather, after deciding that victims rights were afforded more protection under the state constitution, the court proceeded to try to "harmonize the victim's constitutional rights with the defendant's due process rights under the State Constitution.(107) The court acknowledged that previous New Jersey cases had not allowed the admission of victim impact evidence.(108) Rather than analyzing these cases to determine if greater protection existed under the state constitution, however, the court instead stated that the passage of the Victim's Rights Amendment and the Victim Impact Statute superseded these decisions,(109) and then decided under Payne and other U.S. Supreme Court decisions that the admission of such evidence was constitutional.(110)

The defendant was denied the benefit of an independent analysis of the due process and cruel and unusual punishment protections afforded by the state constitution, a point recognized by Justice Handler's dissent, in which he argued that "[t]he majority's approach ... subsume[s] New Jersey's constitutional prohibition against cruel and unusual punishment."(111) Handler concluded under an independent state constitutional analysis that the statute violated the New Jersey Constitution.(112)

C. Proportionality

The New Jersey Supreme Court has consistently insisted that it will not tolerate racial discrimination in the application of the death penalty.(113) It is in this arena the court has had its greatest opportunity to assert state constitutional independence,(114) and yet it has failed to do so.(115) The first case which presented the New Jersey Supreme Court with the claim that the equal protection clause of the New Jersey Constitution was being violated due to systematic racial disparity in capital sentencing was State v. Marshall.(116) This case involved challenges to the death penalty on several levels, one being racial discrimination in its application.(117) The court ordered the appointment of a special master, who collected data on the imposition of the death penalty in New Jersey since its re-enactment in 1982.(118) The court based its proportionality analysis on the findings in this "Master's Report."(119)

Initially, the court began with what seemed to be a bold assertion of independence by rejecting the U.S. Supreme Court's holding in McCleskey v. Kemp(120) that "[a]pparent disparities in sentencing are an inevitable part of our criminal justice system."(121) The court interpreted this as an indication that "[a]bsent purposeful discrimination, the [United States] Supreme Court ... will not invalidate a death sentence on the basis of racial disparity, no matter how profound."(122) The Marshall court declined to follow this decision, holding instead that "New Jersey's history and traditions would never countenance racial disparity in capital sentencing."(123) Thus, the state high court decided that, rather than following McCleskey, it would commit itself to:
 determining whether racial and ethnic bias exist in our judicial system....
 [W]ere we to believe that the race of the victim and race of the defendant
 played a significant part in capital-sentencing decisions in New Jersey, we
 would seek corrective measures, and if that failed we could not, consistent
 with our State's policy, tolerate discrimination that threatened the
 foundation of our system of law.(124)

The court concluded, however, that evidence of racial discrimination in capital sentencing was lacking in the Master's Report, even though the report indicated that black defendants were 64% more likely to be sentenced to death than white defendants,(125) and crimes involving white victims were 14% more likely to advance to the penalty phase than those against black victims.(126) This determination was made based on the fact that the Master characterized the results of the Report as "not conclusive."(127) The court noted, however, that it believed the racial disparity shown by the statistics in the McCleskey case, although held not unconstitutional under the Federal Constitution, would have been unconstitutional under the New Jersey Constitution.(128) Thus, while a bold rejection of the U.S. Supreme Court's holding was the first step towards an independent analysis under the state constitution, it was also the last. There was no subsequent discussion of the greater protections that may exist under the equal protection clause of the New Jersey Constitution, nor was there any analysis, or even mention, of the requirements of the state constitution.

The court reiterated in subsequent cases that New Jersey has a long-standing "commitment to equality in the administration of justice,"(129) and that the data in McCleskey would prove unconstitutional discrimination under the New Jersey Constitution, but continually found a lack of evidence of racial discrimination within New Jersey. In the four cases involving proportionality since Marshall, the court in each instance held that not enough data, or insufficient data, existed to find racial discrimination.(130) Each case provided a more detailed analysis of racial statistics than in Marshall, and each report was not enough. The court has still not defined any constitutional guidelines as to what is sufficient evidence for a finding that capital punishment, as applied, violates the equal protection clause of the state constitution.


New Jersey tackled "uncharted waters" in 1994 when it became the first state to enact legislation regulating the conduct of convicted sex offenders.(131) The legislation consists of a group of laws which have collectively become known as "Megan's Law," named after Megan Kanka, a young girl who was sexually assaulted and killed by a convicted sex offender who had been released from prison and taken up residence in her neighborhood.(132) The New Jersey Supreme Court, in Doe v. Poritz, was faced with a challenge to the constitutionality of two of these laws: the registration law, which requires sex offenders to register with local law enforcement,(133) and the community notification law, which provides for notice of the presence of such offenders in the community,(134) The challenges were made by a previously-convicted sex offender who had been released from prison, and sued the Attorney General seeking an injunction precluding the application of the laws to him. All of the constitutional claims were made under both the federal and state constitutions.

A. Unreasonable Search and Seizure

The court dealt first with the contention that the requirements of the law constituted an unreasonable search and seizure. The court dismissed the contention based on the fact that it had not been argued below, and was presented for the first time at the state supreme court level.(135) However, the merits of the claim were addressed briefly in a footnote, the court indicating that the "minimal intrusion" of having to periodically appear at the police station for registration is "greatly outweighed by the compelling government interest in protecting the public."(136) Additionally, the court noted that the requirement of providing fingerprints and a photograph did not amount to a search because the plaintiff had no reasonable expectation of privacy in these things.(137) This argument was based entirely on federal precedent, with no mention of the state constitution or reliance on state precedent.(138)

B. Ex Post Facto and Related Claims

The plaintiff further challenged the statutes on the premise that they violated the ex post facto clauses of both the federal and state constitutions.(139) The court noted at the outset that "[o]ur discussion and determination rely almost exclusively on federal cases, although plaintiffs constitutional challenge is based on both the State and Federal Constitutions."(140) The explanation for this exclusive reliance on federal law was two-fold: the lack of relevant New Jersey case law on the issue, and the fact that "[n]o suggestion of merit has been made that New Jersey's Constitution in relation to these challenges ... should be interpreted in any way different from the Federal Constitution."(141) The court made this ruling despite the argument that New Jersey's ex post facto clause was intended to implement a different interpretation than that of current federal precedent.(142) The court rejected this argument without explanation, holding instead that the New Jersey ex post facto clause should be construed in the same way as its federal counterpart.(143)

Based on federal analysis, the court therefore determined that the ex post facto clause cannot be violated unless the challenged law acts as a punishment.(144) Again guided by federal law, the court looked to the intent of the legislature in promulgating the law to determine if its intent was punitive in nature.(145) Finding that the laws were primarily intended to protect society and not to punish previously convicted sex offenders, the court found that the laws have "solely a regulatory purpose."(146) Since the laws do not punish, they cannot violate the ex post facto clause.(147) Having determined that the challenged provisions do not constitute punishment, the court also struck down claims that the laws violated the cruel and unusual punishment and bill of attainder clauses of both the state and federal constitutions, as these provisions are prohibitions against certain types of punishments.(148)

By failing to give credence to the argument that the state ex post facto clause need not be construed identically to its federal counterpart, the court passed on an opportunity to apply an independent analysis to its own constitutional provisions. It essentially adopted a lock-step approach, holding that the state provision means whatever the federal provision means.(149) One must wonder, then, if the meaning of New Jersey's ex post facto clause will change with every change in federal precedent.

C. Privacy

The plaintiff also argued that the requirements of the challenged laws violated his constitutional right to privacy.(150) The court began with an analysis under the Fourteenth Amendment of the United States Constitution, and only later turned to a state constitutional analysis after determining that the Federal Constitution was not violated.(151) Relying on federal case law, the court noted that the constitutional right to privacy can only be violated if the plaintiff had a reasonable expectation of privacy in the information disclosed under the challenged laws.(152) If there was such an expectation, it must be determined if the intrusion on the right to privacy was justified by a governmental interest in disclosure.(153) Noting that there can be no privacy interest regarding information that is readily available to the public or exposed to public view, the court determined that mandated disclosures required by the registration law did not infringe on an expectation of privacy.(154) With regard to the notification law, again relying on federal precedent, the court found that there was a privacy interest implicated but that it was outweighed by the governmental interest in protecting its citizens.(155)

The court noted, however, that this is not the end of the inquiry. Since the Federal Constitution was not violated, the analysis then turned to "plaintiffs rights under the State Constitution."(156) The court recognized that New Jersey case law found a right to privacy encompassed in the state constitution's guarantee of the right to life, liberty, and the pursuit of happiness.(157) While state law has found a constitutional right to privacy in the disclosure of personal information,(158) it also employs a balancing test similar to the one adopted by federal courts to determine if there is a legitimate state interest which outweighs the privacy interest of the individual.(159) Applying this balancing test to the challenged laws, the court found that the information required by the registration law was not confidential and its mandated disclosure therefore did not violate the right to privacy.(160) A privacy right was found to exist in the information disclosed pursuant to the notification law, but the court concluded that the law was narrowly tailored to the countervailing public interest in the disclosure of the information.(161) The "incursion on those interests"(162) was thus deemed to be necessary, and the statute was found not to violate the constitutional privacy right.(163)

While the court recognized that the result under both the federal and state constitutions was the same, the court carefully looked to its own constitution and case law precedent in its analysis. The result was the same not because the court followed federal law lockstep, as it had in analyzing the ex post facto claim, but because an independent state constitutional analysis happened to lead to the same result.

D. Equal Protection

The plaintiff also asserted that his equal protection rights were violated under the state and federal constitutions, claiming that under the law he deserved to be treated as an individual and not as part of a class of sex offenders.(164) The court again evaluated the Federal Constitution first, noting that plaintiffs argument mischaracterized the law: "Equal protection does not preclude the use of classifications, but requires only that those classifications not be arbitrary."(165) The court rather easily disposed of the equal protection argument, citing clearly settled case law that the classification of offenders according to what offenses they have committed warrants only a rational basis test,(166) and that the creation of "a separate classification for repetitive-compulsive sex offenders is not arbitrary and `has a rational basis.'"(167) Thus, the court concluded that the requirements of equal protection under the Fourteenth Amendment had been satisfied.(168)

The court then turned to a state constitutional analysis, even though "plaintiff has presented no argument for justifying expansion of equal protection beyond the federal right in this case."(169) As in many state constitutional cases, the court implied by this statement that a compelling reason needed to be provided in order for the court to interpret the state constitution independently of the Federal Constitution.(170) The court decided to "nevertheless proceed with the state constitutional analysis,"(171) first noting that while there is no express equal protection clause in the New Jersey Constitution, the right has been inferred from article I, paragraph 1, which recognizes the right to life, liberty, and the pursuit of happiness.(172) The state constitutional claim required the court to "apply a balancing test which considers the nature of the right affected, the extent to which the government action interferes with that right, and the public need for such interference."(173) Applying the test, the court quickly concluded that the right of the public to have information about sex offenders greatly outweighed the rights of the sex offenders compromised by the registration and notification requirements.(174)

E. Procedural Due Process

With respect to procedural due process, the issue evaluated by the court was not whether the challenged laws deprived the plaintiff of a substantive right, but whether the notification law required procedural protections beyond those found in the statute.(175) This would have required a determination that a protectible liberty interest was being infringed upon in order to assert that greater procedural protection was warranted. The plaintiff argued that the disclosure infringed on his right to privacy, and that it identified him as a sex offender and branded him a dangerous person, infringing his interest in reputation.(176) Both were found by the court to be constitutionally protected liberty interests.(177)

Again turning to the federal constitutional analysis, the court reiterated its earlier holding that public notification implicated a privacy interest and concluded that due process was triggered by the Community Notification Law. With respect to the question of damage to reputation, the court noted the United States Supreme Court's holding in Paul v. Davis(178) that there was no liberty interest in reputation only; harm to reputation must be accompanied by a more tangible loss to invoke constitutional protection.(179) Thus, under the federal analysis, the court was faced with the question of whether the plaintiff had proved an impairment of some tangible interest in addition to harm to reputation.(180) The court found this additional impairment in the privacy infringement, holding that the "harm to plaintiffs reputation, when coupled with the incursion on his right of privacy, although justified by the compelling state interest, constitutes a protectible interest."(181)

Turning to the state law, the court rejected the United States Supreme Court's conclusion in Paul, holding instead that damage to reputation alone was a protectible liberty interest under the New Jersey Constitution, without the additional tangible harm required under the Federal Constitution.(182) Because the additional infringement to privacy rights was found under the federal analysis, due process rights were triggered under both the state and federal constitutions, and the result was the same under both.(183) The court relied on the concepts of due process and fundamental fairness, which can compel procedural protections of individual rights even where there has been no deprivation of a substantive constitutional right, to conclude that a judicial hearing was required if requested by the sex offender before the community notification may take place.(184)

While the results in this case were ultimately the same under both the federal and state constitutions, New Jersey took an important step in state constitutional adjudication by rejecting the U.S. Supreme Court's decision in Paul.(185) A subsequent case in which there is damage to reputation without an accompanying tangible harm will now trigger due process rights under the state, but not the federal, constitution.(186) It is in this way that state constitutional adjudication takes such an important role in American jurisprudence, and it is often in these cases that a true insight into the independence of the state in interpreting its own constitution is most visible. Some state courts, when rejecting federal precedent, may attempt to justify their variance from federal law by reciting endless authority giving them the "right" to do so.(187) Other courts invent criteria, which "allow" them to veer from federal interpretations of constitutional issues when such criteria are met.(188) Courts that are truly independent do neither, simply applying a state constitutional analysis and reaching the result called for by the state constitution, whether it be the same or different as that under the Federal Constitution.(189) This is the approach that New Jersey adopted in finding a protectible liberty interest in damage to reputation only, stating that while "we `look to both the federal courts and other state courts for assistance, ... [t]he ultimate responsibility for interpreting the New Jersey Constitution ... is ours.'"(190) The court further noted that "`we have generally been more willing to find State-created interests that invoke the protection of procedural due process than have our federal counterparts.'"(191) While such independence in state constitutional adjudication had not been consistently seen from the New Jersey Supreme Court, as evidenced by the lock-step approach to the ex post facto claim in this same case,(192) and the criteria approach taken in some of the death penalty cases,(193) the court's rejection of Paul was certainly an example of independent adjudication at its finest.


Abortion may be the most controversial topic dividing society today.(194) Although it has been a quarter of a century since the United States Supreme Court legalized abortion during the first trimester of pregnancy, the controversy over abortion is far from resolved and, if anything, has become more heated and divisive than ever.(195) The courtroom debates have turned now to the smaller issues which circle the abortion nucleus, such as state funding for abortion, and the free speech rights of anti-abortion protesters.(196) While New Jersey took a seminal role in the funding issues, being the first state high court to reject the U.S. Supreme Court holding in Harris v. McRae(197) that women have no constitutional right to Medicaid-funding for abortions,(198) New Jersey has taken a much less independent role in deciding issues relating to anti-abortion protesters.(199)

On April 6, 1994, the New Jersey Supreme Court decided a group of cases which challenged restrictions that had been placed on the activities of picketers and protesters outside abortion clinics and doctor's residences.(200) In the first case, Horizon Health Center v. Felicissimo,(201) a group of anti-abortion protesters challenged a permanent injunction which prevented them from picketing on the property of an abortion clinic and from restricting the flow of traffic into the clinic, and restricted their activities to the sidewalk across the street from the clinic.(202) Similarly, Murray v. Lawson (Murray I)(203) joined two cases in which anti-abortion protesters challenged injunctions restricting their protesting activities outside the private residences of doctors who perform abortions.(204) The constitutional claim in all three cases was that the injunctions violated the free speech rights of the protesters under both the federal and state constitutions.(205)

Relying on federal case law under the First Amendment, the court determined in both cases that the speech restricted by the injunctions constituted protected speech. Thus, a strict scrutiny analysis was appropriate to determine if the restrictions were justified, as "public streets are `the archetype of a traditional public forum.'"(206) The court noted, however, that reasonable restrictions may be placed on the "time, place, and manner" of speech within a traditional public forum if the restrictions are content-neutral.(207) Determining that the restrictions at issue were content-neutral,(208) the inquiry then became whether the restrictions were narrowly tailored to serve significant state interests.(209)

In Horizon Health Center, the appellate division had held that the significant state interest served by the restrictions was a privacy right to abortion.(210) The supreme court rejected this view on the basis that there was no federal constitutional right to abortion,(211) but held that there was a significant state interest in the preservation of health,(212) and thus the state "has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient."(213) Looking at whether the injunction was narrowly tailored to serve this governmental interest, the court modified the "manner" restrictions to "focus more sharply on the actual problem caused by the noise of the protest,"(214) and remanded to the trial court to more sharply define the place restrictions.(215) By modifying the manner restriction, the supreme court upheld the constitutionality of the restriction and remanded to the chancery division for further proceedings.(216)

The court expressly decided to forego any discussion of the issues involved in this case under the state constitution, holding that "we need not turn to the New Jersey Constitution here because the First Amendment adequately protects defendants' right of free expression.... Moreover, this Court generally analyzes free-speech challenges under federal constitutional principles."(217) In doing so, the court did its own constitution, and the citizens of New Jersey, a disservice. The fact that the Federal Constitution has fully addressed the rights involved in a case does not preclude state constitutional analysis, and the failure of the court to analyze its own free-speech principles deprives the people of the opportunity to have their rights defined under the state constitution.(218) This approach serves only to reinforce the misguided, but popularly held, notion that the state constitution serves only as a "back-up" to the Federal Constitution, stepping in only when the Federal Constitution fails to address certain rights.(219)

Furthermore, the court also expressly declined to adopt the reasoning of lower court decisions which had recognized a fundamental privacy right to abortion, based on the fact that the United States Supreme Court has held that there is no such right under the Federal Constitution.(220) This decision by the U.S. Supreme Court, like all such decisions, defined the minimal degree of protection under the Federal Constitution. State courts may always provide greater rights than those afforded by federal law under their own state constitutions.(221) Therefore, the fact that the Federal Constitution does not provide a privacy right to abortion does not mean that there is no such right under the New Jersey Constitution. The court should have looked to its own state constitutional principles and state law precedent to determine if such a right existed before rejecting the lower court holdings which found that there was a privacy right to abortion.

The court similarly disserviced its own constitution in Murray I.(222) There, the significant state interest at issue was residential privacy, rather than the right to preservation of health that was at issue in Horizon Health Center.(223) The court found that a right to residential privacy exists in common-law public policy, and that such a right was a significant governmental interest, thus declining to address the argument that article I, paragraph I of the New Jersey Constitution provides a constitutional right to the protection of residential privacy.(224) As with the privacy right to abortion discussed in Horizon Health Center, the constitutional right to residential privacy had been found to exist under the state constitution and had been relied upon by the appellate division.(225) Having found this right to exist in common law, the New Jersey Supreme Court refused to enter into a constitutional analysis, noting that "courts should not decide constitutional questions unless necessary to dispose of litigation,"(226) and declined to adopt the appellate division's reasoning.(227) Again, the court passed on the opportunity to define the rights provided to its citizens under the New Jersey Constitution.

Ultimately, the court upheld the injunction in Murray I as written.(228) In the second case, which had been consolidated with Murray I, the court remanded the case to the trial court in order to make certain provisions more specific.(229) As with Horizon Health Center, this determination was based solely on federal law. While a claim had been made in the second case that the injunction violated the defendants' free speech rights under the New Jersey Constitution, the court "decline[d] to analyze [the case] under our State Constitution.... [W]e confine our discussion to those First Amendment principles we have outlined already."(230)

After the decision in Murray I, the United States Supreme Court decided Madsen v. Women's Health Center, Inc.,(231) in which it struck down a similar restriction on protester speech.(232) The Court held that the proper test is not whether the restrictions are narrowly tailored to meet a significant government interest, but rather applied the more stringent standard of whether the restrictions "burden no more speech than necessary to serve a significant government interest."(233) The Supreme Court subsequently granted certiorari to Murray I, vacated the New Jersey Supreme Court's judgment, and remanded for further consideration in light of Madsen.(234) On remand, the New Jersey Supreme Court determined that the restrictions which had been upheld in Murray I did not meet the stricter standard promulgated in Madsen, and modified the injunction to comply with the Madsen requirements.(235) The injunction was modified to reduce the buffer zone from 300 to 100 feet.(236) However, at the same time the court reduced the buffer zone it also took advantage of the "Supreme Court's invitation in Madsen to impose `a limitation on the time, duration of picketing, and number of picketers outside a smaller zone.'"(237) The court imposed a restriction outside the 100-foot buffer zone of no more than ten persons for no more than one hour every two weeks, and added a requirement that the picketers must notify local police at least twenty-four hours in advance of any intended picketing.(238)

It seems clear from this decision that the New Jersey Supreme Court is intent on upholding restrictions on anti-abortion protests while protecting the rights of those seeking or providing abortions. As one commentator noted, "the court in Murray II limited Madsen's holdings to its facts and construed its language narrowly," thus preserving "protections in New Jersey, even as Madsen might have eviscerated them on national level."(239) But the court had to become creative to achieve this goal, stretching to distinguish facts and construing language to the court's own liking. One must wonder what the outcome might have been if the court had seized the opportunity presented in Murray I to determine whether there was a constitutional right to residential privacy under the New Jersey Constitution.(240) If the court had determined that there was such a state constitutional right, then the analysis in Murray II would more likely have been the balancing of two competing constitutional rights rather than protection of only one right. Moreover, the decision in Murray II may have seemed more intellectually honest if the court had rejected Madsen under its own state constitution, and then, admitting an obligation to enforce Madsen as the minimal degree of protection, proceeded to distinguish it. Absent such a bold assertion of state law disagreement with federal law, the Murray II decision seems, for lack of a better term, result-oriented.


New Jersey has been at the forefront of many issues of national concern and attention during the 1990s. Among these, New Jersey has tackled the legitimacy of hate-crime laws,(241) the constitutionality of laws which require accused or convicted sex offenders to submit to HIV tests,(242) and the constitutionality of random employee drug testing.(243)

A. Hate Crime Legislation

This decade has seen a sharp rise in so-called "hate-crime laws," passed by the states to deter and criminalize certain acts which are motivated by hate, bias, and prejudice.(244) New Jersey passed such legislation in 1981(245) seeking to prevent the "intimidation of racial, ethnic or religious groups by those who would use violence or would unlawfully vent their hatred."(246) Certain provisions aimed at deterring hate crimes were challenged as violations of free speech rights, and two cases addressing these issues were decided on May 26, 1994.(247)

State v. Mortimer(248) was the first of these cases, challenging an amendment to New Jersey's harassment law which increased the penalty for any act under the statute which was motivated by hatred or bias.(249) The case involved a defendant who was convicted under this provision, and moved to dismiss the indictment based on R.A.V. v. City of St. Paul,(250) a 1992 U.S. Supreme Court decision which held unconstitutional a similar Minnesota statute.(251) The New Jersey Supreme Court found the New Jersey statute "readily distinguishable"(252) from the one invalidated in R.A.V., holding that it did not violate the First Amendment to the United State Constitution because it merely increased the punishment where illegal conduct was motivated by hate or bias, and did not criminalize the hate itself.(253) Thus, the court found that the statute regulated conduct rather than expression, and so the regulated actions did not fall under the protection of the First Amendment.(254) The defendant argued that the New Jersey Constitution provides greater protection than the First Amendment, citing a provision of the state constitution which states that "[e]very person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right."(255) The court acknowledged that the state constitution may provide greater protection, but declined to embark on a state constitutional analysis here based on the fact that the regulated conduct was not protected expression.(256) Notably, that conclusion was largely based on federal precedent, and not on an analysis of what is considered expression under the New Jersey Constitution pursuant to New Jersey case law precedent.(257)

In State v. Vawter, the companion case to Mortimer, the New Jersey Supreme Court invalidated as unconstitutional(258) two sections of the New Jersey hate crime statute which prohibit putting another:
 in fear of bodily violence by placing on public or private property a
 symbol, an object, a characterization, an appellation or graffiti that
 exposes another to threats of violence, contempt or hatred on the basis of
 race, color, creed or religion, including, but not limited to a burning
 cross or Nazi swastika.(259)

As in Mortimer, a defendant convicted under this statute moved to dismiss based on the U.S. Supreme Court decision in R.A.V. v. City of St. Paul. While candidly critical of the decision in that case, the New Jersey court nevertheless "recognize[d] our inflexible obligation to review the constitutionality of our own statutes using [the Supreme Court's] premises."(260) Relying on federal precedent, the court first determined that the challenged sections regulated conduct which is protected by the First Amendment(261) since "they address conduct that is heavily laden with an unmistakable message."(262) Since the restrictions were determined to be content-based rather than content-neutral, a strict scrutiny analysis was required to determine the constitutionality of the provisions.(263)

However, the Supreme Court decision in R.A.V. represented a sharp departure from long-standing First Amendment precedent, as was noted by the four Justices in that case who concurred in the result only.(264) While First Amendment precedent has traditionally allowed states to regulate otherwise protected expression if such expression constitutes obscenity, defamation, or fighting words,(265) Justice Scalia's majority opinion placed further restrictions on the regulation of even those proscribed categories of expression.(266) Under Scalia's majority opinion, those types of expression may only be regulated if they fall into one of three exceptions:
 [First, w]hen the basis for the content discrimination consists entirely of
 the very reason the entire class of speech at issue is proscribable....
 [Second,] when a subclass [of proscribable speech] happens to be associated
 with particular "secondary effects" of the speech, so that the regulation
 is "justified without reference to the content of the ... speech." [Third,]
 the nature of the content discrimination is such that there is no realistic
 possibility that official suppression of ideas is afoot.(267)

The New Jersey Supreme Court found that the challenged statutes regulated only "fighting words," and would be constitutional under long-standing federal precedent, but did not fall within any of the three exceptions formulated in R.A.V., and so declared the statute unconstitutional.(268)

While New Jersey is obligated to enforce federal constitutional precedent as a minimal level of protection, the court is certainly not precluded from finding that the state constitution does not provide the same degree of protection.(269) The New Jersey Supreme Court clearly disagreed with the majority decision in R.A.V.,(270) yet it failed to discuss its own free speech provisions. The court could easily have provided an analysis under the New Jersey Constitution, and could have held that New Jersey may regulate obscenity, defamation, and fighting words without violating the free speech provisions of the state constitution.(271) It ultimately would have had to find the statute unconstitutional under the Federal Constitution, but would have established independent precedent that the rule adopted by the majority in R.A.V. was not applicable under the New Jersey Constitution. This would have been particularly important if R.A.V. were to be later overruled, which is a distinct possibility since four members of the United States Supreme Court criticized the majority opinion as "disrupt[ing] well-settled principles of First Amendment law"(272) and accused the majority of stretching the law in order to invalidate a category of statutes with which it disagreed.(273)

B. Mandatory HIV Testing of Sex Offenders

In September 1997, the New Jersey Supreme Court was the first state high court(274) to determine the constitutionality of state statutes which require indicted or convicted sex offenders to submit to an HIV test upon the request of the victim,(275) the likes of which have been appearing throughout the country.(276) The statute was challenged by three juvenile sex offenders, claiming that the test violated the unreasonable search and seizure provisions of the federal and state constitutions and that the statute lacked constitutionally required procedural due process protections.(277)

Evaluating the search and seizure claim, the court noted that it was uncontroverted that the test constituted a search, and so it needed to determine only whether the search was reasonable.(278) Recognizing that the United States Supreme Court applied a special-needs analysis to cases in which body searches are conducted for reasons other than the furtherance of a criminal investigation,(279) the court noted that it was required under federal precedent to apply such an analysis to the federal claim; the court also determined that this was the appropriate analysis for the state constitutional claim, noting that "[w]e are persuaded that the requirements of ... the New Jersey Constitution are met by this approach."(280) Relying almost exclusively on federal precedent, the court applied the special-needs test and concluded that such a search was reasonable.(281) However, such a search was determined to be reasonable only when the state's significant interest in the test is present, and so there must be a showing of probable cause that there is a risk of infection, i.e., that the assault involved the possible transfer of bodily fluids.(282)

Turning to the procedural due process claim, the court found that no protective procedures were required because of its holding that the search is not reasonable unless there is probable cause of a risk of infection.(283) This decision was made despite the juvenile's reliance on Doe v. Poritz, which found that the right of procedural due process under the New Jersey Constitution was broader than that under the Federal Constitution.(284) No attempt was made to distinguish Doe, nor was there any discussion of the state constitution separate and apart from the discussion under the Federal Constitution.

C. Mandatory Employee Drug Testing

The rising problems caused by drug use in America, and the attempts to address and remedy these problems, have raised interesting legal questions. Among these is the issue of employee drug-testing. Many employers have instituted random drug-testing policies whereby employees are selected at random to undergo a drug test, upon which their job is conditioned.(285) Such situations potentially threaten both search and seizure and privacy rights.(286)

New Jersey dealt with this situation in Hennessey v. Coastal Eagle Point Oil Co.,(287) where an employee who had been fired after failing a random drug test claimed that the test violated his constitutional rights and therefore his subsequent termination was wrongful.(288) Under New Jersey case law, an at-will employee has a claim for wrongful termination only if his termination violates a clear mandate of public policy.(289) The plaintiff claimed that the clear mandate of public policy which had been violated was his constitutional right to be protected from unreasonable searches and his constitutional right to privacy.(290) The defendant-employer countered that a mandate of public policy sufficient to create a cause of action for wrongful discharge only exists where the employee is discharged in retaliation for exercising rights specifically enumerated by statute, regulation, or judicial decision; that the state constitution was not a sufficient source for such a public policy mandate.(291) The court summarily rejected this argument, holding that public policy can be found in both "the language and jurisprudence of the New Jersey Constitution."(292) Since the search and seizure clause of the state constitution has been found not to protect against searches by private parties, and since the employer here was a private employer and not a governmental actor, there was no public policy mandate based on the search and seizure clause.(293) The court proceeded, however, to criticize the appellate division for giving "short shrift to the notion that privacy could be a source of public policy supporting a Pierce cause of action, ... and [for failing] to consider the right to privacy that this Court has derived from article I, paragraph 1 of the New Jersey Constitution."(294) The court ultimately rejected the wrongful discharge claim, concluding that the nature of the plaintiffs job was such that the public interest in maintaining safety outweighed the invasion of the plaintiffs right to privacy.(295) However, the court's finding that "existing [state] constitutional privacy protections may form the basis for a clear mandate of public policy supporting a wrongful-discharge claim"(296) goes far to preserve the privacy protections that have been found to be implicit in the state constitution.(297)


In all of the cases previously discussed, the New Jersey Supreme Court adopted a supplemental or a lock-step approach, giving the Federal Constitution and federal precedent primary import in determining constitutional issues.(298) At times the court declined to analyze the state constitution at all, even where it seemed that state constitutional analysis was warranted. Yet this court has been described as "an innovator in the field of constitutional law willing to go beyond the parameters set by the U.S. Supreme Court to protect the rights of the citizens of New Jersey."(299) It has been said that the court "[c]onsistently ... expanded our rights under the New Jersey Constitution even as the United States Supreme Court was interpreting the federal Constitution to constrict them."(300)

Perhaps the conflict here is not so stark as it seems. Perhaps the answer lies not in the analysis but in the result of these decisions. Relying on federal law to uphold the constitutionality of the death penalty, the court nevertheless reversed most death sentences.(301) Following the United State Supreme Court's decision which limited restrictions that could be placed on anti-abortion protesters, the court factually distinguished the case to uphold an injunction which likely would have been struck down by the United States Supreme Court.(302) Perhaps the perception of the court's independence comes from "the Court's unwavering commitment to both doctrinal strands of American liberalism: a belief in the efficacy of governmental programs designed to address pressing social problems, and a solicitousness for the rights of individuals in the face of state action."(303)

Whatever the perception of the court may be, there have certainly not been many shining examples of independent state constitutional adjudication from the New Jersey Supreme Court. While it has gone farther than many state high courts by consistently recognizing that the opportunity for greater rights exists under the state constitution, it has taken few strides to develop these rights. This is not an error or an oversight on the part of the court; it is merely the court taking its place in the debate over the role that state constitutions should play in the adjudication of individual rights. Justice O'Hern, an associate justice on the New Jersey Supreme Court, has commented on the debate, and stated his position:
 I myself have been reluctant to interpret state constitutional guarantees
 as more protective than identically-worded federal guarantees for two
 reasons: (1) because of a deeper respect for the Constitution of the United
 States and the Supreme Court of the United States, and (2) because of a
 pragmatic concern that the reservoirs of the state constitution may be
 drained by overconsumption.(304)

He believes that the court should yield to the judgment of the United States Supreme Court absent clear language to the contrary in the state constitution, or a long-standing tradition in New Jersey of greater concern for the right involved.(305)

Similarly, Justice Pollock has expressed concern that where there is too much reliance on state law, different states will develop conflicting precedent, leading to different results for the same case in different states.(306) These concerns have led him to conclude that the supplemental approach is the best, as "a state supreme court justice has a unique responsibility to preserve the identity not only of an individual state, but also of the nation."(307) This is not a conclusion he has come to lightly, however; he is vastly knowledgeable in the area of state constitutional law and his scholarly writings on the subject have contributed much to the debate.(308) Justice Pollock has just announced that he will retire at the end of this term,(309) and one must wonder what effect his departure will have on state constitutional adjudication in New Jersey. His likely successor, current Attorney General Peter Verniero, lacks the expertise in matters of state constitutional law that Pollock brought to the court.(310) Critics have said of Verniero that he will likely act as a mouthpiece for Republican Governor Christine Todd Whitman.(311) Pollock's absence is likely to be sorely felt, particularly when it comes to matters of state constitutional adjudication.

Justice Handler, unlike Justices O'Hern and Pollock, avidly believes that great weight should be given to an independent analysis of the state constitution.(312) He berated the majority in State v. Ramseurs(313) for failing to engage in a state constitutional analysis:
 The Court's response is disappointing. By yoking the State Constitution to
 the federal Constitution at this time and in these cases, this Court limits
 regrettably the scope of individual constitutional protections; further, it
 arrests the progress we have made in expounding our Constitution. The harm
 done by failing to give full effect to our State Constitution transcends,
 therefore, that which flows from cases only incorrectly decided. With its
 decision today, the Court fails to meet the challenge to vindicate
 individual rights, and squanders the opportunity to deepen our
 understanding of the [New Jersey] Constitution.(314)

However, Justice Handler has usually failed to convince a majority of his colleagues, and so statements like these abound in his dissenting opinions.(315)

Justice Handler will also be retiring soon, and an entirely new face of state constitutional law may emerge on the New Jersey Supreme Court.(316) Wherever the justices stand on the issue of how much independence the state constitution should have,(317) at least they have recognized and addressed the issues. Most of the decisions address the fact that a different interpretation may be available under the state constitution, even if they fail to explore this possibility. For now, however, the New Jersey Supreme Court has given federal law and federal precedent priority in determining constitutional issues, and any assertions of state constitutional independence run only skin-deep.

(1) See, e.g., William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 491 (1977) (stressing that "state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution"); Judith S. Kaye, Dual Constitutionalism in Practice and Principle, 61 ST. JOHN'S L. REV. 399, 406 (1987) (noting that "in a system of government that is founded upon dual sovereignties, independent state court adjudications based on state constitutions--two layers of constitutional protection--are hardly revolutionary or illegitimate").

(2) See Michigan v. Long, 463 U.S. 1032 (1983) (reaffirming that the United States Supreme Court has no jurisdiction to review a state court decision based on an adequate and independent state ground and holding that a state court's "plain statement" that its decision is so based will preclude review by the Supreme Court).

(3) See, e.g., Brennan, supra note 1, at 495 ("Of late, however, more and more state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection than the federal provisions, even those identically phrased."); Robert F. Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues when Disposing of Cases on State Constitutional Grounds, 63 TEX. L. REV. 1025, 1025 (1985) (noting the "re-emergence and revitalization of state constitutional analysis" in recent years).

(4) See, e.g., Vincent Martin Bonventre, Beyond the Reemergence--"Inverse Incorporation" and Other Prospects for State Constitutional Law, 53 ALB. L. REV. 403, 404 (1989) (noting that the decisions of the United States Supreme Court became "abruptly less rights-protecting" after Warren's retirement); Kaye, supra note 1, at 404-05 ("[W]hile expressing dissatisfaction with many state courts' discharge of their `front-line responsibility for the enforcement of constitutional rights'--the Supreme Court began actively widening and raising the federal floor. Individual rights became increasingly federalized.").

(5) See Bonventre, supra note 4, at 404 (noting that the shift in the Supreme Court after 1969 led to the "reemergence" of state constitutional law); Brennan, supra note 1, at 495 (noting that state courts began to interpret state constitutional rights as being more protective than federal counterparts after the United States Supreme Court started to pull back from the enforcement of individual rights).

(6) See Stewart G. Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 TEX. L. REV. 977, 983 (1985) (discussing the "dual reliance" approach to state constitutional adjudication); Utter, supra note 3, at 1029-30 (describing the same approach as the "dual sovereignty" approach).

(7) Pollock, supra note 6, at 983; see Utter, supra note 3, at 1029 (noting that the dual sovereignty approach can create "advisory" opinions).

(8) See Pollock, supra note 6, at 983 ("This model avoids entanglement with federal law and also avoids United States Supreme Court review because of the failure to state an adequate and independent state ground.").

(9) Id. at 984.

(10) See id. (noting that the primacy approach is the most judicially efficient, as it avoids unnecessary appeals to the United States Supreme Court); see also Michigan v. Long, 463 U.S. 1032 (1983) (declaring that the Supreme Court has no jurisdiction to review a state court decision if it is based upon an adequate and independent state ground).

(11) See Pollock, supra note 6, at 983-84 (comparing the supplemental approach with the primacy approach and dual reliance method).

(12) See id. at 984 (noting "a court looks first to the federal constitution when deciding whether state action is valid").

(13) See id. ("If the government action cannot be upheld as a matter of federal constitutional law, it is struck down and the analysis ends.").

(14) See id. (discussing the analysis conducted under the "supplemental" approach).

(15) Id. An additional approach to state constitutional adjudication is the lockstep method. See Earl M. Maltz, Lockstep Analysis and the Concept of Federalism, 496 ANNALS AM. ACAD. POL. & SOC. SCI. 98, 99-102 (1988). Under the lockstep method, a state constitutional provision which is the same as or similar to a federal constitutional provision is automatically given the same meaning and interpretation as the federal provision. See id.

(16) See infra notes 21-130 and accompanying text.

(17) See infra notes 131-93 and accompanying text.

(18) See infra notes 194-240 and accompanying text.

(19) See infra notes 241-97 and accompanying text.

(20) See infra notes 298-317 and accompanying text.

(21) See Earl Martin, Towards an Evolving Debate on the Decency of Capital Punishment, 66 GEO. WASH. L. REV. 84, 85 (1997) (observing that support for the death penalty has grown since the 1960s and 1970s).

(22) See Gregg v. Georgia, 428 U.S. 153 (1976). The Supreme Court's decision in Gregg held that capital punishment does not violate the Federal Constitution, leaving it to the states to determine whether their own constitutions provide a greater degree of protection such that the death penalty would be rendered unconstitutional. See id. at 186-87.

(23) See id. at 186 (holding that the Federal Constitution does not bar the states from imposing the death penalty).

(24) See Maltz, supra note 15, at 99-102.

(25) The state court could also look to its own constitution and determine that the death penalty is constitutional; the key to an independent analysis is that there is a true examination of the protections provided by the state constitution as separate and distinct from the Federal Constitution. See State v. Ramseur, 524 A. 2d 188, 209 (N.J. 1987) (explaining that the court is not required to follow the "Supreme Court's federal constitutional decisions").

(26) See infra notes 67-130 and accompanying text (discussing New Jersey's failure to address possible expansion of rights for death penalty defendants under state constitutional analysis).

(27) See N.J. STAT. ANN. [sections] 2C:11-3 (West 1995 & Supp. 1998) (explicating the considerations of the court in imposing the death penalty). The Act requires a bifurcated trial, consisting of a guilt phase and a sentencing phase. See id. During the guilt phase, if it is found that the defendant purposefully or knowingly caused death, then the defendant is considered "death-eligible." See id. If the defendant is not death-eligible he will be sentenced to a minimum of thirty years without parole. See id. If he is death-eligible, the trial proceeds to a sentencing phase, in which the prosecutor must prove at least one of several listed aggravating factors. See id. The defendant may show mitigating factors, and the jury must determine whether the aggravating factors outweigh the mitigating factors. See id.

(28) See infra notes 29-130 and accompanying text (discussing challenges to the constitutionality of New Jersey's death penalty act).

(29) 524 A.2d at 202.

(30) See id.

(31) See id. at 208-16 (discussing the constitutionality of the death penalty per se).

(32) Id. at 209 (noting that both the New Jersey Supreme Court and the United States Supreme Court have held that capital punishment does not require a uniform national policy).

(33) Id. (emphasis added) (quoting Gregg v. Georgia, 428 U.S. 153, 186 (1976)).

(34) Id.

(35) See, e.g., People v. Harris, 577 N.E.2d 1051, 1053 (N.Y. 1991) ("State courts, when asked to do so, are bound to apply their own Constitutions notwithstanding the holdings of the United States Supreme Court.").

(36) Ramseur, 524 A.2d at 209.

(37) 428 U.S. 153 (1976).

(38) Ramseur, 524 A.2d at 209. The court noted that while they are not required to follow the U.S. Supreme Court's opinions, they are not precluded from following such opinions where they find the reasoning persuasive, and that Supreme Court opinions are important guides on the issues that they address. See id. at 209-10.

(39) See id. at 218 (citing numerous United States Supreme Court cases).

(40) See id. at 210 (citing Gregg v. Georgia, 428 U.S. 153 (1976)).

(41) See id. ("[T]his Court recognizes its freedom, indeed its duty, to undertake a separate analysis under the cruel and unusual punishment clause of the New Jersey Constitution.").

(42) See id. (noting that the "test to determine whether a punishment is cruel and unusual under ... our Constitution is generally the same as that applied under the federal Constitution"). The court set out the three inquiries to be made, citing Gregg, 428 U.S. at 173, and a few New Jersey cases which also adopted the three-part test of Gregg. See Ramseur, 524 A.2d at 210.

(43) Id. at 211. "The `contemporary standard of decency' against which the death penalty must be tested, however, is that of the community, not that of its scientists, penologists, or jurists." Id.

(44) Id. at 210.

(45) See id. at 211 (stating that there is "no doubt ... that the appropriate penalty for murder may be death").

(46) See id. (characterizing the legislature's actions in passing the statutes as "[o]ne of the strongest indicators" of a generally held belief that the appropriate punishment for murder may be death).

(47) See id. at 211-12 (citing Gregg, 428 U.S. at 175).

(48) See id. at 212 (noting the number of times that New Jersey juries had imposed the death penalty). Interestingly, all twenty-six of those sentences were overturned by appellate courts and not a single person has been executed in New Jersey since the restoration of capital punishment in 1982. See id.

(49) See id. (noting that "while our inquiry is necessarily limited to New Jersey, ... we are a nation of shared values"). This reasoning is, of course, at odds with the court's earlier holding that the death penalty is an issue of local concern. See id. at 209; see also supra notes 615 and accompanying text (noting the different approaches that a state can take when deciding upon the constitutionality of a statute at issue).

(50) See Ramseur, 524 A.2d at 213 ("A function of the constitutional ban on cruel and unusual punishments is to guard against punishments that are grossly disproportionate in relation to the crime.").

(51) See U.S. CONST. amend. VIII (forbidding the use of cruel or unusual punishments).

(52) See Ramseur, 524 A.2d at 213 (citing Coker v. Georgia, 433 U.S. 584 (1977); Enmund v. Florida, 458 U.S. 782 (1982)).

(53) See, e.g., Gregg v. Georgia, 428 U.S. 153, 187 (1976) (holding that the death penalty is not an excessive or disproportionate penalty for the crime of murder).

(54) See Ramseur, 524 A.2d at 213 (citing State v. Serrone, 46 A.2d 1050, 1052 (1983), for the proposition that "[m]urder is the most heinous and vile offense proscribed by our criminal laws").

(55) Id.

(56) See id. at 210 (listing the three inquires required "to determine whether a punishment is cruel and unusual").

(57) The New Jersey Constitution provides: "[a]ll persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness." N.J. CONST. art. I, [sections] 1; see Ramseur, 524 A.2d at 213 n. 12 (analyzing the amicus argument of the American Civil Liberties Union (ACLU)).

(58) See Ramseur, 524 A.2d at 213 (noting that the ACLU amicus brief argued that a reading of the two constitutions "requires the State to demonstrate a compelling governmental interest and the unavailability of less restrictive measures before it may intentionally deprive someone of the fundamental right to life").

(59) Id.

(60) Id. at 214.

(61) Id.

(62) Id. at 215 (citing Gregg v. Georgia, 428 U.S. 153, 183-84 (1976)).

(63) Id. at 216.

(64) Id. at 300 (Handler, J., dissenting).

(65) Id. at 302 (Handler, J., dissenting).

(66) Id. at 321 (Handler, J., dissenting).

(67) See N.J. STAT. ANN. [sections] 2C:11-3 (West 1995 & Supp. 1998) (outlining the factors required for conviction of a capital offense).

(68) See Ramseur, 524 A.2d at 217 ("We will examine this contention first under the eighth amendment to the federal Constitution and then under our own state Constitution, independent state constitutional analysis being, as we have noted, appropriate in this area.").

(69) Id. at 218.

(70) Id. at 220.

(71) Id. at 221 (noting that "[t]he state Constitution ... provides an additional and, where appropriate, more expansive source of protections against the arbitrary and nonindividualized imposition of the death penalty").

(72) Id. at 224.

(73) See id. at 224-25 (stating that the "vagueness probably accurately expresses society's wish to limit the death penalty to only certain murderers and yet reflects society's inability to define precisely that limit"); see also N.J. STAT. ANN. [sections] 2C:11-3c(4)(c) (West 1995 & Supp. 1998).

(74) N.J. STAT. ANN. [sections] 2C:11-3C(4)(C).

(75) Ramseur, 524 A.2d at 224.

(76) See id. at 224 n.24.

(77) Id.

(78) See id. at 231 (stating that "the jury should be charged--without quoting the statute").

(79) See generally State v. McDougald, 577 A.2d 419 (N.J. 1990) (noting the constitutional challenge, made by the defendant, regarding the rules of evidence).

(80) Id.

(81) See N.J. STAT. ANN. [sections] 2C:11-3c(2)(b) (West 1995) (stating that in the penalty phase of trial, the defendant is allowed to introduce evidence that would ordinarily lie outside the rules of evidence if such evidence would mitigate his crime). The challenged provision allowed the prosecution to rebut with evidence also outside the rules of evidence when a defendant opens the door. See id.

(82) See McDougald, 577 A.2d at 432 (arguing that provisions of the Act violate the Eighth Amendment of the Federal Constitution and article I, paragraphs 1 and 12 of the New Jersey Constitution).

(83) Id. (noting that if the prosecution was not allowed to rebut the evidence introduced by the defendant, the defense would be able to "present a distorted view of [the] defendant to the jury").

(84) Id. (emphasis added).

(85) Id. at 450 (Handler, J., dissenting).

(86) See N.J. STAT. ANN. [sections] 2C:11-3c(6) (West 1995 & Supp. 1998).

(87) The constitution provides:
 When a defendant at a sentencing proceeding presents evidence of the
 defendant's character or record ..., the State may present evidence of the
 murder victim's character and background and of the impact of the murder on
 the victim's survivors. If the jury finds that the State has proven at
 least one aggravating factor beyond a reasonable doubt and the jury finds
 the existence of a mitigating factor ..., the jury may consider the victim
 and survivor evidence presented by the State pursuant to this paragraph in
 determining the appropriate weight to give mitigating evidence presented.

(88) 678 A.2d 164 (N.J. 1996).

(89) See id. at 170.

(90) 501 U.S. 808 (1991).

(91) See id. at 827 (holding that a "State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed").

(92) The law provides:
 A victim of a crime shall be treated with fairness, compassion and respect
 by the criminal justice system. A victim of a crime shall not be denied the
 right to be present at public judicial proceedings.... A victim of a crime
 shall be entitled to those rights and remedies as may be provided by the

N.J. CONST. art. I, [sections] 22 (emphasis added).

(93) See Muhammad, 678 A.2d at 170 ("On the basis of that constitutional authority, and relying on the United States Supreme Court's elimination of a federal constitutional bar against the admissibility of victim impact evidence ... the New Jersey Legislature enacted the victim impact statute....").

(94) See id. at 171-72 (analyzing the issues presented under the Eighth and Fourteenth Amendments of the United States Constitution).

(95) Id. at 172 (quoting Payne v. Tennessee, 501 U.S. 808,827 (1991)).

(96) Id. at 173 (emphasis added).

(97) Id.

(98) Id. (quoting State v. Hempele, 576 A.2d 793, 815 (N.J. 1990) (O'Hern, J., dissenting)).

(99) See id. (listing the seven factors used "in assessing the constitutionality of a statute under the New Jersey Constitution"); see also Robert F. Williams, In the Supreme Court's Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C.L. REV. 353, 385-89 (1984) (discussing the criteria relied upon "to justify a state court decision rejecting a Supreme Court interpretation of a similar or identical federal constitutional question").

(100) 450 A.2d 952 (N.J. 1982).

(101) Muhammad, 678 A.2d at 173. The Muhammad court examined "(1) textual language, (2) legislative history, (3) preexisting State law, (4) structural differences between the Federal and State Constitutions, (5) matters of particular State interest, (6) State traditions, and (7) public attitudes." Id.

(102) See Williams, supra note 99, at 388 (noting that under a criteria approach, "the Supreme Court's reasoning and result [are treated] as presumptively correct"); see also Ronald K.L. Collins, Reliance on State Constitutions: Away From a Reactionary Approach, 9 HAST. CONST. L.Q 1, 16-17 (1981) (noting that "an unhealthy kind of attention given to the decisions rendered by the United States Supreme Court" has caused state courts to revert to a criteria approach).

(103) See Brennan, supra note 1, at 489-91 (noting the basic premise of state constitutional analysis).

(104) See Williams, supra note 99, at 397 (discussing differences between state and federal judicial systems which make "presumptive validity of Supreme Court federal constitutional interpretations particularly inappropriate for state constitutional analysis").

(105) See Muhammad, 678 A.2d at 173-75 (explaining that a clause similar to the Victim's Rights Amendment "does not exist in the United States Constitution").

(106) See id. at 170 (explaining that since "each juror must individually determine whether each mitigating factor exists, and then individually decide whether the aggravating factors outweigh the mitigating factors beyond a reasonable doubt," this process creates more protection for the defendants).

(107) Id. at 175.

(108) See id. (admitting the "substantial limitations [the court has] placed on the admission of victim impact evidence").

(109) See id. (recognizing that by the passage of the Victim's Rights Amendment and the victim's rights statute, "the electorate and the Legislature have determined that ... jurors should ... be informed about the uniqueness of the victim as a human being and the particular harm caused by the crime").

(110) See id. at 176 (relying on Payne v. Tennessee, 501 U.S. 808 (1991) and Snyder v. Mas. sachusetts, 291 U.S. 97 (1934) to conclude that "it does not violate the Constitution if the jury is permitted to take into account" such information about the victim).

(111) Id. at 189 (Handler, J., dissenting).

(112) See id. at 188 (Handler, J., dissenting). Justice Stein also dissented based on his belief that the statute was unconstitutional, but his conclusion was based on federal rather than state constitutional principles. See id. at 207 (Stein, J., dissenting).

(113) See, e.g., State v. Loftin, 724 A. 2d 129 (N.J. 1999) (quoting both Ramseur and State v. Marshall, 613 A.2d 1059, 1108-09 (N.J. 1992). In Marshall, the court explained that to accept racial disparity in capital sentencing would be to abandon New Jersey's commitment to the elimination of racial discrimination and the state constitutional guarantee of equal protection. See Marshall, 613 A.2d at 1108-09; see also State v. Ramseur, 524 A.2d 188, 292 (N.J. 1987) (noting that "[d]iscrimination on the basis of race, sex, or other suspect characteristics cannot be tolerated," and identifying proportionality review as a means to "prevent any impermissible discrimination in imposing the death penalty").

(114) See, e.g., Russ Bleemer, Dawn of a Court's New Day; Death Penalty. Tort Revision. Megan's Law. Lawyer Discipline. The `96-97 Supreme Court Term Has a Host of Ideological Teasers, N.J. L.J., Sept. 2, 1996, at 1 (noting that proportionality review "`is important not only because it has the potential to affect the viability of capital punishment as [a] whole in New Jersey, but also because it implicates ... the Court's commitment to equal protection and the Court's commitment to construing the New Jersey Constitution independently of the federal Constitution'") (quoting Lawrence S. Lustberg who argued for the defense on amicus).

(115) See infra notes 116-30 and accompanying text (discussing cases where it was claimed that the death penalty is discriminatory in its application and the court declined to entertain a proportionality review due to a "lack of evidence").

(116) 613 A.2d 1059 (N.J. 1992).

(117) See id. at 1108-13 (noting that New Jersey's people are "uniquely committed to the elimination of racial discrimination").

(118) See id. at 1063 (noting that the court appointed "Professor David C. Baldus of the University of Iowa Law School as Special Master").

(119) See id.

(120) 481 U.S. 279 (1987).

(121) Id. at 312 (footnote omitted).

(122) Marshall, 613 A.2d at 1108.

(123) Id.

(124) Id. at 1110.

(125) See id. (noting that the 64% greater likelihood occurred in the mid-range of aggravation level, called Culpability Level 4). At Culpability Level 3, no non-black defendants had been sentenced to death, whereas 30% of black defendants had received death sentences. See id.

(126) See id. (explaining that this was the average statistic for all culpability levels). At Culpability Level 4, white victim cases were 1.4 times more likely to advance to penalty trial, and were 3.4 times more likely at culpability level 3. See id.

(127) See id. at 1111 (noting that discrimination was not the primary focus of the project, and that "[m]ore work will be required to determine if [the results] persist under closer scrutiny").

(128) See id. at 1109 ("To countenance racial discrimination in capital sentencing would mock [our] tradition and our own constitutional guarantee of equal protection of the laws under New Jersey Constitution Article I, paragraph 1.").

(129) State v. Bey, 645 A.2d 685, 712 (N.J. 1994); see State v. DiFrisco, 662 A.2d 442, 451 (N.J. 1995) (noting that in general the court's goal is to have equality in the administration of justice).

(130) See State v. Loftin, 724 A.2d 129, 176 (N.J. 1999) (noting that the defendant "failed to demonstrate racial disparity in imposition of death penalty"); DiFrisco, 662 A.2d at 473 (rejecting defendant's argument that "New Jersey courts continue to impose the death penalty in a racially discriminatory manner"); State v. Martini, 651 A. 2d 949, 987 (N.J. 1994) (concluding that defendant's "death sentence is not disproportionate"); Bey, 645 A.2d at 716 (declining to hold that "the imposition of the death penalty on defendant is ... disproportionate").

(131) Doe v. Poritz, 662 A.2d 367, 422 (N.J. 1995) ("We sail on truly uncharted waters, for no other state has adopted such a far-reaching statute.").

(132) See id. at 372.

(133) See N.J. STAT. ANN. [subsections] 2C:7-1 to 7-5 (West 1994).

(134) See id. [subsections] 2C:7-6 to 7-11 (West 1994). The likelihood that the sex offender will commit another sex offense determines the scope of notification. See id. If the risk of re-offense is low, only law enforcement personnel will be notified; if it is moderate, institutions and organizations having the responsibility of caring for children and women will also be notified; and when the risk is high, all members of the public likely to come into contact with the offender will be notified. See id.

(135) See Poritz, 662 A.2d at 381 (concluding that there was "no merit to the contention and decline[d] to treat it in detail").

(136) Id. at 381 n.8.

(137) See id. (noting that defendant's "liberty interest" was not being impaired).

(138) See id. (relying on Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990); Cupp v. Murphy, 412 U.S. 291 (1973); United States v. Dionisio, 410 U.S. 1 (1973); and Katz v. United States, 389 U.S. 347 (1967)).

(139) See id. at 388.

(140) Id.

(141) Id.

(142) See id. n. 10 (noting that this argument was made by amicus Diaz, who contended that since New Jersey's ex post facto clause was adopted in 1947, it was intended to implement the federal interpretation of that clause as it was in 1947, which is different than the current federal interpretation).

(143) See id. (holding "the State Ex Post Facto Clause cannot be violated without the imposition of punishment").

(144) See id. at 390 "[T]he laws' validity, measured against the various constitutional attacks, depends on whether they inflict punishment.").

(145) See id. at 390-92 (discussing federal case law that distinguishes punishment from regulations with severe effects).

(146) Id. at 405.

(147) See id. ("The fact that some deterrent punitive impact may result does not, however, transform those provisions into `punishment' if that impact is an inevitable consequence of the regulatory provision, as distinguished from an impact that results from `excessive' provisions, provisions that do not advance the regulatory purpose.").

(148) See id. at 406 ("[W]e have already concluded that the challenged provisions do not constitute punishment under those inquiries.").

(149) See id. at 405 (discussing U.S. Supreme Court cases to dispose of both state and federal constitutional claims).

(150) See id. at 406-13 (explaining that the plaintiff argues the dissemination of information and the classification as a sex offender under the notification law brands him as dangerous, which taints his reputation therefore infringing on his constitutionally protected privacy interest).

(151) See id.

(152) See id. at 406 (citing National Treasury Employees Union v. Department of Treasury, 25 F.3d 237, 243 (5th Cir. 1994)).

(153) See id. (noting that a balancing test is necessary once it is disclosed that there is a reasonable privacy expectation in the information).

(154) See id. at 407.

(155) See id. at 412 (explaining that "[c]ounterbalanced against plaintiffs diminished privacy interest is a strong state interest in public disclosure").

(156) Id.

(157) See id. (noting that the right to privacy is implicit in article I, paragraph I of the New Jersey Constitution).

(158) See id. (explaining that "[w]e have found a constitutional right of privacy in many contexts, including the disclosure of confidential or personal information").

(159) See id. (citing New Jersey Supreme Court decisions which have held that the public interest in the disclosure of certain information must be balanced against the competing right of privacy that an individual may have in the information).

(160) See id. (observing that since the information disclosed is not confidential, "requiring disclosure of such information results in a minimal invasion of privacy").

(161) See id. at 413 (noting that privacy interests are altered by the "active dissemination [required] under the Notification Law").

(162) Id. at 413.

(163) See id. (holding that neither the registration law nor the community notification law violated the right to privacy under the state or federal constitution).

(164) See id. The plaintiff particularly objected to being treated the same as sex offenders who had not successfully completed a rehabilitation program, since he had completed such a program and had earned release because he was no longer considered dangerous. See id.

(165) Id. Interestingly, while this discussion purports to focus on federal law, the court relies on state law precedent for this holding. See id. (citing State v. Mortimer, 641 A.2d 257 (N.J. 1994), which held that a state harassment statute did not violate the equal protection clause)).

(166) See id. at 414 (citing State v. Lagares, 601 A.2d 698, 706 (N.J. 1992) which provided that stricter penalties for drug offenses does not violate equal protection and City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442-46 (1985)).

(167) Id. (quoting State v. Wingler, 135 A.2d 468, 476 (N.J. 1957)).

(168) See id. (explaining that "[a]s long as the classifications do not discriminate arbitrarily between persons who are similarly situated, the matter is one of legislative prerogative") (quoting Greenburg v. Kimmelman, 494 A.2d 294 (N.J. 1985)). 169 Id. (citing State v. Hunt, 450 A. 2d 952 (N.J. 1982)).

(170) See id. (determining that "the public need for information about dangerous sex offenders greatly outweighs plaintiff's right to privacy").

(171) Id.

(172) See id. (noting that in some situations, the right under the state's constitution may be broader than the federal right); see also N.J. CONST. art. I, para. 1 (explaining the natural and unalienable rights).

(173) Poritz, 662 A. 2d at 414.

(174) See id.

(175) See id. at 417.

(176) See id.

(177) See id. (holding that since both interests were protected, "procedural protection is due"). The court found that interests in both privacy and reputation should be given procedural protection. See id.

(178) 424 U.S. 693, 701 (1976).

(179) See Poritz, 662 A.2d at 418 (providing "employment" as an example of a more tangible loss which may trigger constitutional protection).

(180) See id. at 419.

(181) Id.

(182) See id. ("Our analysis differs from that under the Federal Constitution ... to the extent that we find a protectible interest in reputation without requiring any other tangible loss."); see also id. at 420 ("Where a person's good name or reputation are at stake because of what the government is doing to that person, we conclude, sufficient constitutional interests are at stake.").

(183) See id. at 420 (holding that the Registration and Notification Laws implicate protectible liberty interests under both constitutions and therefore trigger the right to due process).

(184) See id. at 421 ("Weighing those factors, we find that a hearing is required prior to notification.").

(185) Compare Doe v. Poritz, 662 A. 2d 367, 419 (N.J. 1995) (holding that harm to a person's reputation combined with the impairment of any additional interest is a protectible interest), with Paul v. Davis, 424 U.S. 693, 701 (1976) (holding that the additional interest must be tangible).

(186) See Poritz, 662 A.2d at 419.

(187) See id. at 419-21 (stating that "[t]his unique doctrine is not appropriately applied in every case but only in those instances where the interests involved are especially compelling").

(188) An example of this was discussed earlier: New Jersey adopted a criteria approach in State v. Muhammad, 678 A.2d 164, 173-75 (N.J. 1996), when evaluating the constitutionality of the victim impact statement in capital cases. See supra notes 99-112 and accompanying text (discussing the use of the criteria approach in Muhammad).

(189) See, e.g., Poritz, 662 A.2d at 419 (arguing that it is the New Jersey Supreme Court's duty alone to interpret the New Jersey Constitution); Collins, supra note 102, at 5-19 (urging state courts to make their state constitutions an independent source of rights, rather than adopting a reactionary approach whereby state constitutions are only consulted if the state court disagrees with the U.S. Supreme Court's decisions on the issue in question); Williams, supra note 99, at 366-67 (criticizing the practiced employed by most state high courts of "explor[ing] the persuasiveness" of Supreme Court decisions rather than looking to their own state constitutions as a source of independent rights).

(190) Id. (quoting Greenburg v. Kimmelman, 494 A.2d 294, 302 (N.J. 1985)).

(191) Id. (quoting New Jersey Parole Bd. v. Byrne, 460 A.2d 103, 111 (N.J. 1983)).

(192) See supra notes 139-49 and accompanying text.

(193) See supra notes 99-104 and accompanying text.

(194) See Roe v. Wade, 410 U.S. 113, 160 (1973) (discussing the "wide divergence of thinking on this most sensitive and difficult question").

(195) See Kevin Martin, Stranger in a Strange Land: The Use of Overbreadth in Abortion Jurisprudence, 99 COLUM. L. REV. 173, 173 (1999) (stating that "[t]he legal debate over abortion in the United States has entered a new and somewhat more obscure phase").

(196) See, e.g., Horizon Health Ctr. v. Felicissimo, 638 A.2d 1260 (N.J. 1994) (affirming an injunction to place reasonable restrictions on antiabortion protesters); Fay Clayton & Sara N. Love, NOW v. Scheidler: Protecting Women's Access to Reproductive Health Services, 62 ALB. L. REV. 967 (1999); Lynn D. Wardle, The Quandary of Pro-life Free Speech: A Lesson from the Abolitionists, 62 ALB. L. REV. 853 (1999).

(197) 448 U.S. 297 (1980).

(198) See Right to Choose v. Byrne, 450 A.2d 925, 937 (1982) (holding "the State may not jeopardize the health and privacy of poor women by excluding medically necessary abortions from a system providing all other medically necessary care for the indigent" which is a departure from McRae wherein the Supreme Court held that Medicaid funding for abortion was not constitutionally required).

(199) See id. at 1265 (basing its decision on authority from the Supreme Court).

(200) See infra notes 206-38 and accompanying text (noting the restrictions that were placed on picketers and protesters).

(201) 638 A.2d at 1260.

(202) See id. at 1265 (arguing that the trial court had no authority to issue an injunction and that it violated both the United States and the New Jersey Constitutions).

(203) 642 A.2d 338 (N.J. 1994) [hereinafter Murray I].

(204) See id. at 339 (noting that the two cases of Murray I and Boffard v. Barnes had been argued together both at the appellate division and the supreme court).

(205) See Murray I, 642 A.2d at 343 (claiming that absent "violent conduct or conduct in violation of a statute or ordinance, the Chancery Division has no inherent authority to impose injunctive restrictions on protected expression"); Horizon Health Ctr., 638 A.2d at 1265 (claiming that "a court may never enjoin First Amendment expression absent violent or otherwise unlawful activity").

(206) Horizon Health Ctr., 638 A. 2d at 1266 (quoting Frisby v. Schultz, 487 U.S. 474, 480 (1988)); see Murray I, 642 A.2d at 344 (referring to the opinion in Horizon Health Center that "public streets and sidewalks are archetypical traditional public forums").

(207) See Murray I, 642 A.2d at 344; Horizon Health Ctr., 638 A.2d at 1267 (noting the correct level of scrutiny by which to analyze the constitutional issues involved turns on whether the "restrictions are content neutral or content based").

(208) See Murray I, 642 A.2d at 344 (noting that the restrictions "do not reflect a disagreement with defendants' respective messages, and we can justify them without reference to the content of defendants' speech"); Horizon Health Ctr., 638 A.2d at 1268 (noting that the injunctions were not issued because of what the defendants said, but rather because of how and where it was said).

(209) See Murray I, 642 A. 2d at 345 (holding that the protection of residential privacy "implicates a significant government interest justifying the imposition of injunctive restrictions"); Horizon Health Ctr., 638 A.2d at 1268 (holding that public policy interests, such as "the accessibility of medical services ... justif[ied] the trial court's injunctive restrictions even in light of defendants' First Amendment rights").

(210) See Horizon Health Ctr. v. Felicissimo, 622 A.2d 891, 896-97 (N.J. Superior Ct. App. Div. 1993), modified, Horizon Health Ctr., 638 A.2d at 1269 (declining to adopt the reasoning of the Appellate Division or its reliance on Planned Parenthood v. Cannizzaro, 499 A.2d 535 (N.J. Ch. Div. 1985), aff'd, 526 A. 2d 741 (N.J. Super. Ct. App. Div. 1987), which had also recognized a constitutionally protected privacy right to abortion).

(211) See Horizon Health Ctr., 638 A.2d at 1269 (citing Roe v. Wade, 410 U.S. 113 (1973)).

(212) See id. (noting the preservation of health as "at least a significant government interest" but expressly declining to find a fundamental right to health under the New Jersey Constitution).

(213) Id.

(214) Id. at 1271.

(215) See id. at 1273 (instructing the trial court to create a buffer zone that will protect the interest of the Center's patients but will also permit "some form of expression by defendants near the Center").

(216) See id. at 1274.

(217) Id. at 1273. Interestingly, the court cited for this proposition the dissenting opinion of Justice O'Hern in Right to Choose v. Byrne, 450 A. 2d 925, 950 (N.J. 1982), in which O'Hern urged the court yield to the judgment of the U.S. Supreme Court when the Federal Constitution has shaped and defined the right involved. See Horizon Health Ctr., 638 A.2d at 1273.

(218) See, e.g., Brennan, supra note 1, at 491 ("[S]tate courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties.... [Without them] the full realization of our liberties cannot be guaranteed.").

(219) See id. (supporting the position that state constitutions are not to be considered a backup to the Federal Constitution); see also Collins, supra note 102, at 5-19 (arguing for the use of state constitutions as an independent source of rights).

(220) See Horizon Health Ctr., 638 A.2d at 1269 (relying on Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993), for the proposition that the federal constitutional right to abortion is not protected against private interference).

(221) See generally Brennan, supra note 1, at 491 (explaining that state constitutions may provide for protections extending beyond those provided by federal law).

(222) Murray v. Lawson, 642 A.2d 338 (N.J. 1994).

(223) See id. (concerning suits by physicians seeking to enjoin anti-abortion protesters from picketing their homes).

(224) See id. at 346.

(225) See id. at 346 (finding the right to residential privacy to be a common-law policy and accepting the reasoning of the "Appellate Division to the extent that it based its justification of the restrictions against defendants on common law notions"); Horizon Health Ctr v. Felicissimo, 622 A.2d 891 (N.J. Super. Ct. App. Div. 1993).

(226) Horizon Health Ctr., 638 A.2d at 346.

(227) See id. (noting that the court failed to adopt the appellate division's reasoning where it relied on the New Jersey Constitution).

(228) See id. at 348 (noting that they "will not disturb the Chancery Division's imposition of a 300 foot zone").

(229) See id. at 348 (remanding Boffard v. Barnes, 642 A.2d 338 (N.J. 1994), noting that "within the immediate vicinity of" does not specifically describe the area to "which the injunction's prohibition applies" and that upon remand such terms must be clarified).

(230) Id. at 349.

(231) 512 U.S. 753 (1994).

(232) See id. at 776 (noting that the restrictions were too broad to accomplish the purpose of the injunction).

(233) Id. at 765.

(234) Lawson v. Murray, 513 U.S. 802 (1994).

(235) See Murray v. Lawson, 649 A.2d 1253, 1264 (N.J. 1994) (Murray II) (holding that, "as currently structured, the injunction does not satisfy the stricter standards ... announced in Madsen," resulting in the decision "not to remand ... but rather to modify the injunction consistent with our understanding of the dictates of Madsen").

(236) See id. at 1268 (noting that 100 feet prevents the Murrays from feeling as if they are prisoners in their own home, but at the same time leaves the picketers within sight distance of the Murray residence so that the protesters may get their message across).

(237) Id. at 1267 (quoting Madsen, 512 U.S. at 775).

(238) See id. at 1268.

(239) Lawrence S. Lustberg, There They Go Again; The State Justices Affirm Their Independence on Constitutional Issues, N.J. L.J., Sept. 4, 1995, at 87.

(240) See supra notes 222-27 and accompanying text (discussing the court's failure to address whether the New Jersey Constitution provides a protectible right in residential privacy).

(241) See infra notes 244-73 and accompanying text.

(242) See infra notes 274-84 and accompanying text.

(243) See infra notes 285-97 and accompanying text.

(244) See Terry A. Maroney, The Struggle Against Hate Crime: Movement at a Crossroads, 73 N.Y.U. L. REV. 564, 567 (1998) (stating that in the 1980s and early 1990s, "state legislatures, and later the federal government, debated and passed hate crime laws in nearly every jurisdiction").

(245) See N.J. STAT. ANN. [sections] 2C:33-10 to 11 (West 1995 & Supp. 1998).

(246) State v. Vawter, 642 A.2d 349, 356 (N.J. 1994) (quoting Governor Byrne's comments on an early draft of the bill). The hate crime legislation was signed into law on September 10, 1981, at a synagogue in New Jersey that had been frequently defaced with swastikas and obscenities. See id.

(247) See id. at 352 (involving challenges to a New Jersey hate crime statute as "unconstitutional under the First and Fourteenth Amendments to the United States Constitution"); State v. Mortimer, 641 A.2d 257, 261 (N.J. 1994) (challenging the New Jersey hate crime legislation as a "violat[ion] [of] his fundamental right to freedom of speech under the First Amendment").

(248) 641 A.2d 257 (N.J. 1994).

(249) See N.J. STAT. ANN. [sections] 2C:33-10 (stating that "[a] person is guilty of a crime in the third degree if he purposely, knowingly or recklessly puts or attempts to put another in fear of bodily violence ... [because of that person's] race, color, creed or religion").

(250) 505 U.S. 377 (1992).

(251) See id.

(252) Mortimer, 641 A.2d at 261.

(253) See id.

(254) See id. at 263.

(255) Id. at 263 (quoting N.J. CONST. art. I, para. 6).

(256) See id. at 263 (explaining that "[r]egardless of the enhanced measure of protection that we might find in the New Jersey Constitution, an activity first must be expressive before the cited provisions of that Constitution can protect it").

(257) See id. at 262 (citing United States Supreme Court cases, as well as other state cases, which have held that statutes which proscribe conduct such as physical assaults and violence do not regulate expression).

(258) State v. Vawter, 642 A.2d 349, 352 ("Following, as we must, the United States Supreme Court's decision in R.A.V. v. City of St. Paul, ... we now declare the cited statutes un-constitutional.").

(259) N.J. STAT. ANN. [sections] 2C:33-10 (West 1995 & Supp. 1998); see Vawter, 642 A.2d at 352.

(260) Vawter, 642 A.2d at 357.

(261) See id. at 354-55 (noting that the "sort of conduct regulated [by the New Jersey statute] is a successful, albeit a reprehensible, vehicle for communication").

(262) Id. at 355.

(263) See id. (noting that because the statute regulates expressive conduct, it must be "analyze[d] under the appropriate level of First Amendment scrutiny").

(264) See R.A.V. v. City of St. Paul, 505 U.S. 377, 397 (noting that "[t]his case could easily be decided within the contours of established First Amendment law by holding ... that the St. Paul ordinance is fatally overbroad because it criminalizes not only unprotected expression but expression protected by the First Amendment"); Vawter, 642 A.2d. at 361 (Stein, J., concurring) (noting the harsh criticism of the majority decision in R.A.V. in separate opinions by Justices White and Blackmun).

(265) See Vawter, 642 A.2d. at 357 (noting that "fighting words" fall outside of the protections of the First Amendment to the Federal Constitution).

(266) See id. (noting that "those areas of proscribable speech can `be made vehicles for content discrimination'") (quoting R.A.V., 505 U.S. at 384-85).

(267) R.A.V., 505 U.S. at 388-90.

(268) See id.

(269) See Brennan, supra note 1, at 491 (noting that "the state courts cannot rest when they have afforded their citizens the full protection of the federal Constitution").

(270) See Vawter, 642 A.2d at 361 (criticizing the opinion and noting that the four concurring justices, who did not join in the opinion, "convey[ed] a sense of astonishment about the Court's unexpected treatment of the First Amendment questions").

(271) See Brennan, supra note 1, at 491 (noting that "State constitutions ... [may extend] their protections ... beyond those required by the Supreme Court's interpretation of federal law").

(272) R.A.V., 505 U.S. at 419 (Stevens, J., concurring).

(273) See id. at 415-16 (Blackmun, J., concurring) (expressing concern "that the Court has been distracted from its proper mission by the temptation to decide the issue over `politically correct speech' and `cultural diversity'").

(274) See Bleemer, supra note 114, at 1 (noting that New Jersey was the first state in which challenges to these laws reached the state high court).

(275) See In re J.G., 701 A.2d 1260, 1262 (N.J. 1997) (noting that the statute requires "a request by the victim").

(276) See id. (noting that a recently passed federal law conditioned grant money on the enactment of such legislation); see also id. at 1272 (citing twenty-one state statutes which provide for a court-ordered HIV test of accused or convicted sex offenders where there has been a showing of a risk of HIV transmission).

(277) See id. at 1263 (claiming that the HIV tests "constitute an unreasonable search ... and do not provide sufficient procedural safeguards to the rights of persons who have been accused and convicted of sexual assault").

(278) See id. at 1265 (explaining that whether or not a search is reasonable depends on the circumstances of the case and that "[al court must balance the encroachment on an individual's Fourth Amendment interests against the advancement of legitimate state goals").

(279) See id. at 1266 (noting that the Supreme Court had recently utilized a special needs analysis in a Georgia case involving employee drug testing for candidates for state office).

(280) Id.

(281) See id. at 1267-73 (noting the special needs of the government in requiring such a test and "examining closely the competing private and public interests advanced by the parties").

(282) See id. at 1272 (citing N.J. STAT. ANN. [sections] 2C:43-2.3a (West 1999)).

(283) See id. at 1274 (noting that a probable cause hearing is required in order to detain a juvenile and such a hearing provides adequate protection for the juvenile's due process rights).

(284) See supra notes 175-93 and accompanying text (discussing the Doe v. Poritz decision as to the right to procedural due process under the New Jersey Constitution).

(285) See Hennessey v. Coastal Eagle Point Oil Co., 609 A. 2d 11, 12 (N.J. 1992) (noting that the employee-plaintiff was discharged after failing a mandatory random drug test).

(286) See id. at 13 (describing the plaintiff's complaint, which included claims based upon New Jersey Constitution rights regarding search and seizure and privacy).

(287) 609 A.2d at 11.

(288) See id. at 12.

(289) See id. at 14-15 (discussing the Pierce doctrine, formulated a year earlier in Pierce v. Ortho Pharmaceutical Corp., 417 A. 2d 505 (1980), which created this public policy exception to the at-will employment doctrine).

(290) See id. at 13 (listing the basis upon which the defendant sought to have the statute declared unconstitutional).

(291) See id. at 16 (noting that the defendant's argument was based on language in the Pierce case which identified possible sources of public policy as including legislation, administrative rules, regulations or decisions, and judicial decisions).

(292) Id.

(293) See id. at 19.

(294) Id. at 18.

(295) See id. at 23 ("Because the safety-sensitive nature of Hennessey's employment raises the potential for enormous public injury, the public policy supporting safety outweighs any public policy supporting individual privacy rights. Therefore, we uphold Coastal Eagle's decision to discharge Hennessey.").

(296) Id. at 19.

(297) Notably, it was also the right to privacy that the court strove to distinguish as providing broad protections in the Megan's Law cases. See supra notes 131-34, 150-63 and accompanying text (discussing the court's adjudication of the privacy issue in the constitutional challenge to the notification and registration requirements of Megan's Law, in which the court found that the protection of privacy rights is broader under the New Jersey Constitution than under the Federal Constitution).

(298) See supra notes 21-297 and accompanying text (discussing the decisions of the New Jersey Supreme Court and noting the lack of independence in their decisionmaking).

(299) Lawrence S. Lustberg, The State Supreme Court Year in Review, 1993-1994, N.J. L.J., Sept. 5, 1994, at 16; see Williams, supra note 99, at 385 (noting that "New Jersey is often cited as a leader in state constitutional interpretation").

(300) Lawrence S. Lustberg, A Term of Marked Conservation, N.J. L.J., Sept. 2, 1996, at S-74.

(301) See, e.g., State v. Ramseur, 524 A.2d 188, 284-87 (N.J. 1987) (upholding the constitutionality of the death penalty but reversing the conviction on other grounds).

(302) See supra notes 203-09 and accompanying text (discussing the court's decision to uphold an injunction as modified, distinguishing it from the Supreme Court's decision regarding a similar restriction).

(303) Lawrence S. Lustberg, New Jersey Supreme Court Year in Review, 1990-1991, N.J. L.J., Sept. 5, 1991, at 61.

(304) Daniel J. O'Hern, The New Jersey Constitution: A Charter to be Cherished, 7 SETON HALL CONST. L.J. 827, 828 (1997).

(305) See id. at 830 (stating that "when the issue at stake touches upon the national identity, the New Jersey Supreme Court should yield to the judgment of the United States Supreme Court").

(306) See Pollock, supra note 6, at 977-78 (promulgating a hypothetical in which identical police searches in Washington and Illinois would lead to the Washington suspect going home and the Illinois suspect going to jail, due to the different analysis of search and seizure under the respective state constitutions).

(307) Id. at 992.

(308) See, e.g., Pollock, supra note 6, at 992 (urging that state court judges should be at least as familiar with their state constitution as they are with the Federal Constitution, and acknowledging that "[a] court that views its state constitution as a supplemental source of protection today may be forced to make it the primary source tomorrow").

(309) See Rocco Cammarere & Harvey C. Fischer, Pollock Leaving: What a Run!, N.J. LAW., Mar. 1, 1999, at 1 (reporting Pollock's announcement that he will retire on September 1, 1999, when the court term ends).

(310) See Michael Booth, Lynch Takes It Up a Notch Citing Verniero's Lack of Legal Experience, N.J. L.J., Mar. 15, 1999, at 1 (reporting that a prominent democratic leader sent a seven page letter to the Senate President opposing Verniero's nomination, citing among other things a lack of legal experience: "Mr. Verniero has little or no significant professional legal experience.... Instead, his career predominantly consists of political assignments and positions in the Whitman administration").

(311) See, e.g., Scott Goldstein, Verniero, Farmer Await Confirmation, N.J. LAW., Mar. 8, 1999, at 5 (reporting of Verniero that "[f]ew, if any, in Gov. Christie Whitman's five-year administration have been more loyal to her or more dogged in advancing her programs").

(312) See State v. Ramseur, 524 A.2d 188, 300 (N.J. 1987) (Handler, J., dissenting) (categorizing the death penalty cases as "a constitutional challenge and an opportunity" yet noting that the court failed in taking the opportunity to "expound [the New Jersey] Constitution").

(313) See id. (Handler, J., dissenting) (expressing his disappointment with the court's reluctance to engage in an independent state constitutional analysis); see supra notes 29-78 and accompanying text (discussing Ramseur and its lockstep analysis).

(314) Ramseur, 524 A.2d at 300 (Handler, J., dissenting).

(315) See supra notes 64-66, 111-12, 312-14 and accompanying text (discussing Justice Handler's strong dissenting opinions in several cases).

(316) See Rocco Cammarere, Whitman's Potential Legacy; Court of Her Making, N.J. LAW., Mar. 1, 1999, at 1 (noting that Justice Handler will step down July 20, 2001). 317 See App.



Wilentz 0%(5) 40% 0% 33.3%(6)
Pollock 0% 40% 0% 25%
Clifford 0%(7) -- 0% 33.3%(8)
Garbaldi 0% 40% 0% 25%
Stein 0% 40% 0% 25%
O'Hern 12.5% 40% 0% 33.3%(9)
Handler 100% 40% 0% 33.3%(10)
Coleman 0%(11) 40% -- 0%(12)
Poritz 0%(13) -- -- 0%(14)

(1) Death penalty cases considered were: State v. Loftin, 724 A. 2d 129 (N.J. 1999); State v. Muhammad, 678 A. 2d 164 (N.J. 1996); State v. DiFrisco, 662 A. 2d 442 (N.J. 1995); State v. Martini, 651 A. 2d 949 (N.J. 1994); State v. Bey, 645 A.2d 685 (N.J. 1994); State v. Marshall, 613 A. 2d 1059 (N.J. 1992); State v. McDougald, 577 A. 2d 419 (N.J. 1990); State v. Ramseur, 524 A.2d 188 (N.J. 1987).

(2) Under Megan's Law, the only case considered was Doe v. Poritz, 662 A. 2d 367 (N.J. 1995). However, the five separate issues addressed in that case were considered separately. All justices voted to support a state constitutional claim as to issues of privacy and procedural due process. All justices voted not to uphold a state constitutional claim as to search and seizure, ex post facto, and equal protection. Justice Stein wrote a dissenting opinion in which he argued that the statute violated the ex post facto clause, but such argument was made solely on the basis of the Federal Constitution.

(3) Anti-abortion protester cases considered were: Murray v. Lawson (Murray I), 642 A.2d 338 (N.J. 1994), and Horizon Health Ctr. v. Felicissimo, 638 A. 2d 1260 (N.J. 1994).

(4) Other issues studied were hate crime legislation, for which the following cases were considered: State v. Vawter, 642 A. 2d 349 (N.J. 1994), and State v. Mortimer, 641 A. 2d 257 (N.J. 1994); mandatory HIV testing of sex offenders, for which the case of In re J.G., 701 A.2D 1260 (N.J. 1997) was considered; and random employee drug testing, for which the case of Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11 (N.J. 1992), was considered.

(5) Participated in 7 of the 8 cases considered.

(6) Participated in 3 of the 4 cases considered.

(7) Participated in 5 of the 8 cases considered.

(8) Participated in 3 of the 4 cases considered.

(9) Participated in 3 of the 4 cases considered.

(10) Participated in 3 of the 4 cases considered.

(11) Participated in 3 of the 8 cases considered.

(12) Participated in 1 of the 4 cases considered.

(13) Participated in 1 of the 8 cases considered.

(14) Participated in 1 of the 4 cases considered.

(*) The author wishes to thank Professor Vincent M. Bonventre for introducing her to the fascinating subject of state constitutional adjudication, and for all of his assistance throughout the writing process.
COPYRIGHT 1999 Albany Law School
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1999 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:High Court Studies
Author:Folster, Karen L.
Publication:Albany Law Review
Geographic Code:1U2NJ
Date:Jun 22, 1999
Previous Article:Rethinking traditional approaches.
Next Article:Florida's state constitutional adjudication: a significant shift as three new members take seats on the state's highest court?

Terms of use | Privacy policy | Copyright © 2018 Farlex, Inc. | Feedback | For webmasters