2017 NJSBA Annual Meeting The

2017 NJSBA Annual Meeting

The Supreme Court Year in Review 2017

Moderator/Speaker: Hon Peter F. Bariso, Jr., A.J.S.C., Hudson County

Speakers: Justice Barry T. Albin Supreme Court of New Jersey Justice Anne M. Patterson Supreme Court of New Jersey Justice Lee A. Solomon Supreme Court of New Jersey Hon. Jeanne T. Covert, P.J.Cr., Burlington County Hon. Deborah J. Venezia, P.J.F.P., Middlesex County

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)

In the Matter of the Adoption of a Child by J.E.V. and D.G.V. (A-39-15) (076767)

Argued April 12, 2016 -- Decided July 26, 2016

RABNER, C.J., writing for a unanimous Court.

In this appeal, the Court addresses a question of first impression: whether an indigent parent who faces termination of her parental rights in a contested private adoption proceeding has a right to appointed counsel.

Months later, CHS advised L.A. that it intended to proceed with the child’s adoption. In a letter dated March 1, 2013, CHS told L.A. that it was “going to make an adoption plan for [her] child.” The letter enclosed multiple forms for L.A.’s consent, and advised L.A. that she could file a written objection with the Surrogate’s Office within thirty-five days. Toward the end of the letter, CHS advised L.A. as follows: “You have the right to be represented by an attorney, and you may or may not have the right to have counsel appointed to represent you. You may contact the Essex/Newark Legal Service in Essex County in which this action is pending by calling (973) 624-4500.” L.A. did not sign the consent forms. Instead, she wrote three objection letters.

2 On August 1, 2013, with the agency’s consent, J.E.V. and D.G.V. filed a complaint for adoption. The court entered an order scheduling a hearing and directing that L.A. receive notice. The order stated, among other things, that L.A. had “the right to appear, object, file written objections, [and] have counsel or court-appointed counsel, if unable to afford counsel.” The notice advised L.A. as follows: “If you are unable to obtain an attorney, you may communicate with the New Jersey Bar Association by calling (732) 249-5000. You may also contact the Lawyer Referral Services of the Essex County Bar Association at (973) 533-6775, if you cannot afford an attorney, you may contact the Essex County Legal Aid Society at (973) 622-0063 or the Essex County Surrogate’s Court at (973) 621-4900. If you qualify, the Court will appoint counsel for you free of charge.” On October 31, 2013, at the case-management conference, the trial court briefly raised the topic of representation with L.A., but did not tell her that a lawyer would be appointed to represent her if she could not afford one.

The court presided over a two-day trial in February and March 2014. J.E.V. and D.G.V. were ably represented by counsel; L.A. appeared pro se. L.A. was confused about several aspects of the trial process, the role of expert psychologists, and the legal standards that applied to the case. Petitioners called eight witnesses to testify, including an expert psychologist; L.A. declined to cross-examine most of them. L.A. testified but did not call an expert or any other witnesses. L.A. also declined to make a closing statement. At the close of the trial, the court concluded that the statutory requirements had been met and terminated L.A.’s parental rights.

L.A. appealed, and the Appellate Division appointed counsel to represent her. The panel reversed and remanded for a new trial, holding “that L.A. had a constitutional and statutory right to court-appointed counsel beginning before trial, when the private adoption agency first determined to proceed with an adoption over her objection.” 442 N.J. Super. 472, 474-75 (App. Div. 2015).

The Court granted J.E.V. and D.G.V.’s petition for certification. 223 N.J. 558 (2015).

HELD: Indigent parents who face termination of parental rights in contested proceedings under the Adoption Act, N.J.S.A. 9:3-37 to -56, are entitled to counsel under Article I, Paragraph 1 of the State Constitution.

1. The Adoption Act outlines the process for adopting a child. As part of the judgment of adoption, the child’s parent’s rights must be terminated, which can occur in a number of ways. Termination of parental rights may be involuntary, and, as in this appeal, a prospective adoptive parent may petition for termination. In a contested action, the court must ultimately determine whether the prospective adoptive parents have proven, by clear and convincing evidence, that adoption is in the child’s best interest. Although under this scenario the order of adoption is entered as part of a private adoption proceeding, the State’s involvement is real. The parent’s rights are terminated by “state-authorized action.” (pp. 11-15)

2. In Lassiter v. Department of Social Services, 452 U.S. 18, 24 (1981), the United States Supreme Court considered an indigent birth mother’s right to counsel in termination of parental rights cases initiated by the state. The Court analyzed the question under the Due Process Clause of the Fourteenth Amendment and applied the familiar three-factor test from Mathews v. Eldridge, 424 U.S. 319, 335 (1976). A divided Court held that due process did not require appointed counsel for indigent parents in every termination of parental rights case, and left the decision to the trial court. Four justices dissented. Justice Blackmun, joined by Justices Brennan and Marshall, stated “that due process requires the presence of counsel” for an indigent parent “threatened with judicial termination of parental rights.” Id. at 35 (Blackmun, J., dissenting). Justice Stevens dissented separately, stressing that the deprivation of parental rights is “more

grievous” than a sentence of incarceration, and that counsel should be appointed to ensure the fairness of the proceedings. Id. at 59-60 (Stevens, J., dissenting). (pp. 16-18)

3. Based on principles derived from Article I, Paragraph 1 of the State Constitution, New Jersey law has generally provided more expansive rights to appointed counsel for indigent litigants than federal law. Relevant to this case, New Jersey has granted indigent parents in termination of parental rights cases greater protection than Lassiter affords. In N.J. Division of Youth & Family Services v. B.R., the Court found that “the need for counsel in a parental termination case is evident” in light of concerns grounded in principles of due process. 192 N.J. 301, 306 (2007). The Court has found a right to counsel under the due process guarantee of the State Constitution in other areas as well. In yet other right-to-counsel cases, the Court has emphasized due process concerns without relying on the State Constitution. See Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971) (“[A]s a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.”). Drawing support from Rodriguez, and relying on due process grounds, Crist v. Division of Youth and Family Services, 128 N.J. Super.402 (Law Div. 1974), aff’d in part, rev’d in part, 135 N.J. Super. 573 (App. Div. 1975), found a right to counsel in termination cases. The Court has also found that due process requires the appointment of counsel for “indigent parents who are at risk of incarceration at child support enforcement hearings,” determining that both the Federal and State Constitutions guarantee that right. Pasqua v. Council, 186 N.J. 127, 149 (2006). (pp. 19-24)

4. The Court holds that an indigent parent who faces termination of parental rights in a contested private adoption proceeding has a right to appointed counsel. A poor parent who seeks to protect the fundamental right to raise a child, at a contested hearing under the Adoption Act, is entitled to counsel under the due process guarantee of the New Jersey Constitution. In so holding, the Court draws on certain common principles from B.R. and the Mathews test to analyze the due process issue. The termination of one’s parental rights plainly “implicates a fundamental liberty interest.” B.R., supra, 192 N.J. at 305. When parental rights are terminated, the tie between parent and child is severed completely and permanently. That is true whether the State files a petition to terminate or a prospective adoptive parent proceeds under the Adoption Act. Without the assistance of counsel to prepare for and participate in the hearing, the risk of an erroneous outcome is high. The parties are best served when both sides present arguments with the help of able attorneys; the outcome not only protects the parent’s rights and the child’s welfare, but also helps bring finality to an adoption proceeding. (pp. 24-27)

5. Although this is a case of first impression in New Jersey, other states have found that an indigent parent is entitled to counsel in a private adoption matter, based on either due process principles under their state constitutions or applicable statutes. (pp. 28-29)

6. Having determined that indigent parents are entitled to appointed counsel in a contested private adoption matter under the due process guarantee of the State Constitution, the Court considers when the right to appointment of counsel is triggered in private adoption cases. The

critical event in the timeline occurs when the parent formally objects to the agency’s decision to proceed toward adoption. The very reasons that call for a lawyer to be appointed also favor the appointment of attorneys with the experience to handle these matters. The Office of Parental Representation in the Public Defender’s Office has developed expertise in this area from its fine work in state-initiated termination of parental rights cases. However, without a funding source, the Court cannot direct the office to take on an additional assignment and handle contested cases under the Adoption Act. The Court trusts that, as in the past, the Legislature will act and address this issue. (pp. 30-32)

7. Finally, the Court finds that L.A. did not waive the right to appointed counsel. In short, she was denied counsel, and her parental rights were terminated at the end of the court proceeding. Because a complete denial of counsel casts doubt on the fairness of the process followed, the Court must reverse the trial court’s decree and remand for a new trial. The Court requests that the trial be expedited but expresses no opinion on what the outcome of the proceeding should be. The Court declines amici’s request to require the appointment of a law guardian to represent children in private adoption cases, noting that the Adoption Act does not authorize the appointment of a law guardian. However, the Court reminds trial judges of their power to appoint a guardian ad litem under the Adoption Act, N.J.S.A. 9:3-38(e), when the child’s best interests are not being adequately protected by counsel for the parties. (pp. 32-37)

The judgment of the Appellate Division is AFFIRMED.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and JUDGE CUFF (temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.

SUPREME COURT OF NEW JERSEY A- 39 September Term 2015 076767

IN THE MATTER OF THE ADOPTION OF A CHILD BY J.E.V. and D.G.V.

Argued April 12, 2016 – Decided July 26, 2016

On certification to the Superior Court, Appellate Division, whose opinion is reported at 442 N.J. Super. 472 (App. Div. 2015).

Matheu D. Nunn argued the cause for appellants J.E.V. and D.G.V. (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Mr. Nunn and Bonnie C. Frost, on the briefs).

Sean Marotta argued the cause for respondent L.A. (Donahue, Hagan, Klein & Weisberg and Hogan Lovells, attorneys; Mr. Marotta, Francis W. Donahue, and Alexis M. Miller, on the briefs).

Rebecca J. Livengood argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Ms. Livengood, Mr. Barocas, Jeanne M. LoCicero, and Alexander R. Shalom, on the letter brief).

Alice M. Plastoris argued the cause for amicus curiae New Jersey Association for Justice.

Melville D. Miller, Jr., argued the cause for amicus curiae Legal Services of New Jersey (Mr. Miller, attorney; Mr. Miller, Jeyanthi C. Rajaraman, and Mary M. McManus-Smith, on the brief).

Cheryl E. Connors argued the cause for amicus curiae New Jersey State Bar Association (Miles S. Winder III, President, attorney; Mr. Winder, of counsel; Ms. Connors, Brian G. Paul, and Amanda S. Trigg, on the brief).

Mary E. Coogan and Peter G. Chen submitted a brief on behalf of amicus curiae Advocates for Children of New Jersey.

CHIEF JUSTICE RABNER delivered the opinion of the Court. This appeal raises a question of first impression: whether an indigent parent who faces termination of her parental rights in a contested private adoption proceeding has a right to appointed counsel. Our culture and legal system both embrace the right to raise one’s child. That fundamental right is forever terminated when a child is adopted by another family. Under the law, indigent parents have a right to counsel when the State initiates a termination case. See N.J.S.A. 30:4C-15.4(a). The issues are no less challenging or significant in a private adoption matter. In both situations, parents who are poor and typically have no legal training are ill-equipped to defend themselves in court. Because of the nature of the right involved -- the invaluable right to raise a child -- and the risk of an erroneous outcome without the help of an attorney, we hold that indigent parents are entitled to appointed counsel in a contested private adoption matter under the due process guarantee of the State Constitution. We therefore affirm the judgment of the Appellate Division. I. We draw the following facts from the testimony at trial as well as other parts of the record on appeal. On August 24, 2009, respondent L.A. gave birth to a daughter. When the child was two and one-half years old, L.A. placed her with the Children’s Home Society (CHS), a state-licensed adoption agency. L.A. was contemplating adoption when she initially placed the child with CHS. At the time, L.A. believed that course was in the child’s best interest in light of L.A.’s personal circumstances. One or two months later, after pre-adoption counseling, L.A. changed her mind and resolved not to surrender her parental rights. The child remained in short-term foster care. The agency placed her with a foster family in March 2012 and moved her to a second foster placement with petitioners, J.E.V. and D.G.V., the following month. As the Appellate Division noted, the evidence reveals that petitioners provided the child with a loving family setting that included a daughter of about the same age, and offered access to professional services “to address the child’s special needs.” In re Adoption of a Child by J.E.V., 442 N.J. Super. 472, 476 (App. Div. 2015). L.A. visited her daughter periodically while she was in foster care. From March through July 2012, L.A. visited the child eight times; from August 2012 to February 2013, L.A. made four visits. Throughout that period and afterward, L.A.’s living arrangements were unstable. For part of the time, she stayed with her sister in Pennsylvania; she also lived in transitional housing and received public assistance. Id. at 475- 76. L.A. lived with her two sons, born in 2006 and 2013, while her daughter was in foster care. Ibid. In July 2012, with the help of a counselor at CHS, L.A. agreed to a service plan that stated her goal was the “eventual parenting of [the] child.” The plan called for weekly meetings with a birth parent counselor. L.A. also agreed to look for work and stable housing. A revised service plan dated December 1, 2012 built on those goals and also contemplated developmental services for the child. In addition, the plan called for L.A. to visit her daughter weekly. L.A. did not sign the revised plan. Months later, CHS advised L.A. that it intended to proceed with the child’s adoption. In a letter dated March 1, 2013, CHS told L.A. that because she had “been inconsistent with visitation,” had not “maintained consistent contact with [her] counselor,” and had “made no viable plan to parent [her] daughter,” CHS was “going to make an adoption plan for [her] child.” The letter enclosed multiple forms for L.A.’s consent; one was titled “Surrender and Relinquishment of Parental Rights and Surrender of Custody.” The letter also advised L.A. that she could file a written objection with the Surrogate’s Office within thirty-five days.1 Toward the end of the letter, CHS advised L.A. as follows: “You have the right to be represented by an attorney, and you may or may not have the right to have counsel appointed to represent you. You may

contact the Essex/Newark Legal Service in Essex County in which this action is pending by calling (973) 624-4500.” (Emphasis added.) L.A. did not sign the consent forms. Instead, on March 28, 2013, she wrote the first of three objection letters. The two-page, handwritten letter states at the outset, “I am objecting to the adoption process of my daughter.” The letter describes L.A.’s position and her plans for the child and asks that she not be “deprived[d]” of her “motherly rights.” L.A. sent similar letters dated October 8, 2013 and December 7, 2013. With the agency’s consent, petitioners J.E.V. and D.G.V. filed a complaint for adoption on August 1, 2013.2 The court entered an order on the same date, which scheduled a hearing and directed that L.A. receive notice. The order stated, among other things, that L.A. had “the right to appear, object, file written objections, [and] have counsel or court-appointed counsel, if unable to afford counsel.” L.A. was served with a copy of the complaint, the order, and a notice of hearing the following month. The notice explained that the upcoming “hearing may ultimately lead to the absolute irrevocable termination” of L.A.’s rights to her child. The notice also advised L.A. as follows: If you are unable to obtain an attorney, you may communicate with the New Jersey Bar Association by calling (732) 249-5000. You may also contact the Lawyer Referral Services of the Essex County Bar Association at (973) 533-6775, if you cannot afford an attorney, you may contact the Essex County Legal Aid Society at (973) 622-0063 or the Essex County Surrogate’s Court at (973) 621-4900. If you qualify, the Court will appoint counsel for you free of charge.

At the initial case-management conference on October 31, 2013, the trial court briefly raised the topic of representation with L.A.: Judge: Do you intend to get an attorney at all in this matter?

[L.A.]: I’m working on it.

Judge: Okay, well you need to do so quickly because any questions you want to serve should be done within one week of today.

The court did not tell L.A. that a lawyer would be appointed to represent her if she could not afford one. The court presided over a two-day trial in February and March 2014. J.E.V. and D.G.V. were ably represented by counsel; L.A. appeared pro se. Not surprisingly given her lack of legal training, L.A. was confused about where to send interrogatories, the role of expert psychologists, how to give an opening statement, how to cross-examine witnesses, how to present and object to evidence, and the legal standards that applied to the case. Petitioners called eight witnesses to testify, including an expert psychologist; L.A. declined to cross-examine most of them. L.A. testified but did not call an expert or any other witnesses. Unlike opposing counsel, who meticulously reviewed the evidence and applied it to the legal standard in summation, L.A. declined to make a closing statement. At the close of the trial, the court marshaled the evidence, concluded that the statutory requirements had been met, and terminated L.A.’s parental rights. L.A. appealed, and the Appellate Division appointed counsel to represent her. Id. at 475 n.2. The panel held “that L.A. had a constitutional and statutory right to court-appointed counsel beginning before trial, when the private adoption agency first determined to proceed with an adoption over her objection.” Id. at 474-75. The panel therefore reversed and remanded for a new trial.

The Appellate Division observed that L.A. would have been entitled to appointed counsel if the Division, acting on behalf of the State, had sought to terminate her parental rights. Id. at 475, 478 (citing N.J.S.A. 30:4C-15.4(a); N.J. Division of Youth & Family Services v. B.R., 192 N.J. 301, 305-06 (2007)). Here, a state-licensed agency “decided on its own that L.A. was an unfit mother . . . and encouraged the foster family to file an adoption complaint over” L.A.’s objection. Id. at 478. The panel observed that the private agency acted “in a fashion similar to the Division, but without providing the services to promote reunification or the legal safeguards afforded parents involved in litigation with the Division.” Ibid. The panel concluded that “an indigent person” facing the possible termination of parental rights -- an “irreversible” decision “of constitutional dimensions” -- “needs” and is “entitled to appointed counsel.” Id. at 479-80. For support, the panel cited a line of cases that found a right to counsel under the State Constitution even when that right was not guaranteed by federal law. Id. at 480-81. After oral argument, the Appellate Division issued an order, on its own motion, which granted L.A. weekly visitation with the child. After a number of intermediate steps that are not relevant, this Court directed the trial court to assess the impact of visitation on the child. The trial court promptly appointed an expert, held a hearing, and found that the immediate resumption of visitation would result in psychological harm to the child. This Court, in turn, entered an order that continued a stay of visitation pending this appeal, and also continued the stay of adoption proceedings. We granted J.E.V. and D.G.V.’s petition for certification. 223 N.J. 558 (2015). We also granted leave to appear as amicus curiae to the following groups: the American Civil Liberties Union of New Jersey (ACLU); the New Jersey Association for Justice (NJAJ); Legal Services of New Jersey (LSNJ); The New Jersey State Bar Association (NJSBA); and Advocates for Children of New Jersey (ACNJ). II. In a supplemental brief to the Appellate Division, petitioners J.E.V. and D.G.V. did not argue that L.A. had no right to appointed counsel. Instead, they claimed that CHS and the trial court “sufficiently advised [L.A.] of her right to counsel.” They urged the court to find that L.A. “waived her right to counsel after being apprised of that right.” Petitioners have taken a different approach before this Court. They contend that the Appellate Division “created a new right to appointed counsel in termination proceedings under the Adoption Act,” N.J.S.A. 9:3-37 to -56, which does not appear in the statute. They also submit that neither equal protection nor due process principles justify the appointment of counsel when a parent voluntarily places a child for adoption and private individuals initiate adoption proceedings. Petitioners argue in the alternative that L.A. received adequate notice of her right to counsel, understood that right, and waived it through her conduct. Petitioners highlight two written notices served on L.A. -- the trial court’s order scheduling a hearing and the notice of hearing -- and note that L.A. never asked for an attorney. L.A. urges that the Appellate Division’s judgment be upheld. She argues that “there is no more grave constitutional need for appointed counsel than a permanent termination of parental rights action against an indigent parent whether it be initiated by the State or by private adoption.” She contends that the right to appointed counsel in private adoption cases is founded on due process and equal protection guarantees in the State Constitution. L.A. relies on State case law that she claims provides more expansive protection than federal law. She also points to decisions from other states. L.A. also contends that there is a flaw in petitioners’ waiver argument. She argues that she could not have “knowingly, voluntarily, and intelligently waived a right that [petitioners] strenuously argue she does not have.” L.A. submits that because the right has not been clearly established, it would have been impossible for her to waive it. She also points to ambiguities in the language of the notices and the trial court’s failure to inform her that she had a right to appointed counsel. All five amici support the judgment of the Appellate Division. The ACLU and NJAJ argue that due process and equal protection doctrines require the appointment of counsel for indigent parents who object to adoption proceedings. The NJSBA and ACNJ focus on due process principles. LSNJ highlights that

termination of parental rights is a consequence of magnitude, which gives rise to appointment of counsel. We refer below to certain other arguments that amici present. III. A. The Adoption Act outlines the process for adopting a child. The law must “be liberally construed” to promote “the best interests of children” and ensure that “the safety of children” is “of paramount concern.” N.J.S.A. 9:3-37. “Due regard” must also “be given to the rights of all persons affected by an adoption.” Ibid. A completed adoption establishes “the same relationship[] . . . between the child and the adopting parent as if the child were born to the adopting parent.” N.J.S.A. 9:3-50(b). As part of the judgment of adoption, the child’s parent’s rights must be terminated. N.J.S.A. 9:30-50(c)(1). That can occur in a number of ways. A parent may voluntarily surrender a child to a state-approved agency for adoption. N.J.S.A. 9:3- 41(a). In other words, the child will become available for adoption if the parent voluntarily relinquishes all parental rights “for purposes of allowing a child to be adopted.” N.J.S.A. 9:3-38(j). Before a parent may sign a written document that surrenders a child, the agency must offer counseling and inform the parent that the surrender “means the permanent end of the relationship and all contact between the parent and child.” N.J.S.A. 9:3-41(a). Termination of parental rights may also be involuntary. That process can begin in several ways: (1) the Division may petition for termination under N.J.S.A. 30:4C-15; (2) a state- approved agency may petition for termination under N.J.S.A. 9:2-18; or (3) a prospective adoptive parent may petition for termination under N.J.S.A. 9:3-47 or -48. See Robert A. Fall & Curtis J. Romanowski, New Jersey Family Law, Child Custody, Protection & Support, § 6:1-3 at 87 (2016). This appeal involves the third avenue, which was invoked when L.A. declined to surrender her child to CHS for adoption. Under that course, a prospective adoptive parent first files a complaint for adoption. N.J.S.A. 9:3-44. Notice must be served on each parent of the child, as defined in the statute, and must inform them “of the purpose of the action and of the parent’s right” to object. N.J.S.A. 9:3-45. In a contested action, the court must ultimately determine whether the prospective adoptive parents have proven, by clear and convincing evidence, that adoption is in the child’s best interest. J.E.V., supra, 442 N.J. Super. at 483; Fall & Romanowski, supra, §6:3-1 at 93 (citing N.J.S.A. 9:3-46(a)); see also Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 1391-92, 71 L. Ed.2d 599, 603 (1982) (“Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.”). Under N.J.S.A. 9:3-46(a), a judgment of adoption may be entered over the objection of a parent who placed a child for adoption if the court finds that the parent has either “substantially failed to perform the regular and expected parental functions of care and support” or is unable to perform those functions. The functions include: (a) the maintenance of a relationship with the child such that the child perceives the person as his parent;

(b) communicating with the child or person having legal custody of the child and parenting time rights, . . . unless prevented from so doing by the custodial parent or other custodian of the child or a social service agency over the birth parent’s objection; or

(c) providing financial support for the child unless prevented from doing so by the custodial parent or other custodian of the child or a social service agency.

[N.J.S.A. 9:3-46(a).] When, as in this case, a parent has not placed the child for adoption, the standard to be used in a contested action is the “best interest of the child.” Ibid. The Adoption Act defines the standard in this context as follows: The best interest of a child requires that a parent affirmatively assume the duties encompassed by the role of being a parent. In determining whether a parent has affirmatively assumed the duties of a parent, the court shall consider, but is not limited to consideration of, the fulfillment of financial obligations for the birth and care of the child, demonstration of continued interest in the child, demonstration of a genuine effort to maintain communication with the child, and demonstration of the establishment and maintenance of a place of importance in the child’s life.

[Ibid.]

See In re Adoption of Children by G.P.B., 161 N.J. 396, 410-11 (1999); J.E.V., supra, 442 N.J. Super. at 484-85. To reach a decision, the trial court takes evidence at an in-camera hearing. N.J.S.A. 9:3-47(c). If the court “finds against the objecting parent,” the court enters “an order terminating the parental rights of the parent.” Ibid. If, in addition, the court “is satisfied that the best interests of the child would be promoted by the adoption, the court shall enter a judgment of adoption.” N.J.S.A. 9:3-47(d). Although under this scenario the order of adoption is entered as part of a private adoption proceeding, the State’s involvement is real. The parent’s rights are terminated by “state-authorized action.” In re Adoption of a Child by J.D.S., 176 N.J. 154, 158 (2003) (holding that indigent parent facing termination in private adoption matter is entitled to free appellate transcript provided by Public Defender). Indeed, as this Court noted in J.D.S., termination of parental rights under the Adoption Act “is a component of the State’s overall and coordinated system of child protection and supervision.” Ibid. (citation omitted); see also M.L.B. v. S.L.J., 519 U.S. 102, 116 n.8, 117 S. Ct. 555, 564 n.8, 136 L. Ed.2d 473, 488 n.8 (1996) (noting “the challenged state action remains essentially the same” in termination proceedings initiated by state agencies and private parties); N.J.S.A. 9:3-47(c), -50(c)(1). B. In Lassiter v. Department of Social Services, 452 U.S. 18, 24, 101 S. Ct. 2153, 2158, 68 L. Ed.2d 640, 648 (1981), the United States Supreme Court considered an indigent birth mother’s right to counsel in termination of parental rights cases initiated by the state. The Court analyzed the question under the Due Process Clause of the Fourteenth Amendment and applied the familiar test from Mathews v. Eldridge. Id. at 24-25, 27, 101 S. Ct. at 2158-59, 68 L. Ed. 2d at 648-49 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed.2d 18, 33 (1976)). The Mathews test weighs three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest,

including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

[Mathews, supra, 424 U.S. at 335, 96 S. Ct. at 903, 47 L. Ed. 2d at 33.] Lassiter applied the factors to the case before the Court. The Court found that the parent’s private interest was “commanding” because the “desire” and “right” to raise one’s children is “an important interest,” and the State “sought not simply to infringe upon that interest but to end it.” Id. at 27, 101 S. Ct. at 2159-60, 68 L. Ed. 2d at 649-50. Next, the Court found that the risk of an erroneous determination could be “insupportably high.” Id. at 31, 101 S. Ct. at 2162, 68 L. Ed. 2d at 652. The Court observed that the issues are “not always simple” and may involve expert testimony, which can be difficult for parents with little education to understand and refute. Id. at 30-31, 101 S. Ct. at 2161, 68 L. Ed. 2d at 651-52. The Court also noted that “the State has an urgent interest in the welfare of the child” and “shares the parent’s interest in an accurate and just decision.” Id. at 27, 101 S. Ct. at 2160, 68 L. Ed. 2d at 650. The State’s interest diverges from the parent’s when it comes to fiscal and administrative costs. Id. at 28, 101 S. Ct. at 2160, 68 L. Ed. 2d at 650. But that “legitimate” interest, the Court concluded, “is hardly significant enough to overcome private interests as important as those here.” Ibid. Still, the Court opted for a case-by-case approach because the net weight of the factors had to be “weighed against the presumption that there is no right to appointed counsel in the absence of at least a potential deprivation of physical liberty.” Id. at 31-32, 101 S. Ct. at 2161-62, 68 L. Ed. 2d at 652. The strength of the factors “in a given case” might tip the balance in either direction. Ibid. As a result, a divided Court held that due process did not require appointed counsel for indigent parents in every termination of parental rights case, and left the decision to the trial court, subject to appellate review. Ibid. (citing Gagnon v. Scarpelli, 411 U.S. 778, 788, 93 S. Ct. 1756, 1763, 36 L. Ed.2d 656, 665 (1973)). Four justices dissented. Justice Blackmun, joined by Justices Brennan and Marshall, wrote that the majority did not take its analysis of the Mathews factors to a “logical conclusion.” Id. at 49, 101 S. Ct. at 2171, 68 L. Ed. 2d at 663 (Blackmun, J., dissenting). According to the dissenters, the outcome of the balancing process should have applied to the overall category of cases and not to different litigants within the same context. Ibid. The “obvious conclusion,” the dissent stated, was “that due process requires the presence of counsel” for an indigent parent “threatened with judicial termination of parental rights.” Id. at 35, 101 S. Ct. at 2163, 68 L. Ed. 2d at 654. Justice Stevens dissented separately. He stressed that the deprivation of parental rights is “more grievous” than a sentence of incarceration, and that counsel should be appointed to ensure the fairness of the proceedings. Id. at 59-60, 101 S. Ct. at 2176, 68 L. Ed. 2d at 669-70 (Stevens, J., dissenting).

C. New Jersey law has generally provided more expansive rights to appointed counsel for indigent litigants than federal law. Pasqua v. Council, 186 N.J. 127, 147 n.5 (2006) (citations omitted). Our case law over the years has focused on due process concerns in different ways. Those principles derive from Article I, Paragraph 1 of the State Constitution, which provides that “[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.” Time and again, this Court has found that the right to due process of law is implicit in those words. See, e.g., Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 239 (2008); Pasqua, supra, 186 N.J. at 147; Doe v. Poritz, 142 N.J. 1, 99 (1995); Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985). Relevant to this case, New Jersey has granted indigent parents in termination of parental rights cases greater protection than Lassiter affords. In Crist v. Division of Youth and Family Services, 128 N.J.

Super. 402, 416 (Law Div. 1974), aff’d in part, rev’d in part, 135 N.J. Super. 573 (App. Div. 1975), the Law Division held that parents facing state-initiated termination proceedings had a right to appointed counsel. As the Law Division observed, to decide otherwise, in light of the “compendium of sociological, psychological, or medical data, well beyond the ken of the ordinary layman,” which an unrepresented parent would have to deal with, would be “a fundamental deprivation of procedural due process.” Id. at 415. The Appellate Division affirmed that core holding but found no basis for the Law Division’s order that the Division of Youth and Family Services (DYFS), the Division’s predecessor, had to pay appointed counsel. Crist, supra, 135 N.J. Super. at 575. Without statutory authorization, the panel held, the Law Division “lacks the power to compel [DYFS] to compensate assigned counsel.” Ibid. Years later, the Legislature enacted N.J.S.A. 30:4C-15.4(a), which directs the court to appoint the Office of the Public Defender to represent indigent parents in state-initiated termination proceedings. See B.R., supra, 192 N.J. at 306. This Court approved of Crist in B.R. Ibid. We found that “the need for counsel in a parental termination case is evident in light of” the following concerns, which are grounded in principles of due process: the nature of the right involved; the permanency of the threatened loss; the State’s interest in exercising its parens patriae jurisdiction only where necessary; and the potential for error in a proceeding in which the interests of an indigent parent, unskilled in the law, are pitted against the resources of the State. [Ibid.]

The Court has found a right to counsel under the due process guarantee of the State Constitution in other areas as well. In Doe, supra, the plaintiff sought to enjoin the registration and notification requirements for certain convicted sex offenders under Megan’s Law. 142 N.J. at 26. The Court upheld the law against a variety of constitutional challenges. Id. at 12. The Court, however, concluded that a sex offender’s tier classification can subject him or her to public stigma, which “implicate[s] protectible liberty interests in privacy and reputation, and therefore trigger[s] the right to due process” under the Federal and State Constitutions. Id. at 30-31, 104-06. As a result, the Court held that indigent sex offenders are entitled to appointed counsel at tier classification hearings and “strongly suggest[ed] that legislation providing for that representation be adopted.” Id. at 30-31. In yet other right-to-counsel cases, the Court has emphasized due process concerns without relying on the State Constitution. In Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971), for example, this Court held that “as a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.” The case involved two defendants charged with disorderly persons offenses, for which the maximum penalties were up to six months’ imprisonment and a fine of not more than five hundred dollars. Id. at 284-85. The Court reasoned that when serious consequences are at stake -- including actual imprisonment or even “the substantial loss of driving privileges” -- poor defendants should have counsel assigned because the “lack of legal representation may place [them] at a disadvantage” in complex as well as simple matters. Id. at 295. Crist, discussed above, found a right to counsel in termination cases. The ruling relied not only on due process grounds but also drew support from Rodriguez: “It is difficult to conceive of the loss of driving privileges to be more serious than the loss of one’s children. Indeed, it is difficult to consider many consequences of greater magnitude than the loss of one’s children.” Crist, supra, 128 N.J. Super. at 415- 16. Following Rodriguez, the Court applied the consequence of magnitude standard in other contexts. In State v. Hrycak, 184 N.J. 351, 362 (2005), the Court noted that counsel is provided in DWI cases

because the defendant faces a potential sentence of imprisonment -- a consequence of magnitude.3 State v. Hamm, 121 N.J. 109, 124 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed.2d 466 (1991), noted that suspension of a driver’s license is a consequence of magnitude. And in State v. Hermanns, 278 N.J. Super. 19, 29-30 (App. Div. 1994), the Appellate Division determined that substantial monetary sanctions in a single proceeding “give[] rise to the right to counsel under Rodriguez.” The Court Rules likewise address this issue. Rule 7:3-2(b) instructs municipal court judges to appoint counsel “[i]f the court is satisfied that the defendant is indigent and . . . faces a consequence of magnitude.” To determine whether a case presents a consequence of magnitude, municipal court judges consider if the defendant faces imprisonment, loss of driving privileges, or an aggregate monetary sanction of $800 or more. See Pressler & Verniero, Guidelines for Determination of Consequence of Magnitude, Current N.J. Court Rules, Appendix to Part VII at 2597 (2016). The Court has also found that due process requires the appointment of counsel for “indigent parents who are at risk of incarceration at child support enforcement hearings.” Pasqua, supra, 186 N.J. at 149. The Court held that both the Federal and State Constitutions guarantee that right. Id. at 133. In its analysis, the Court carefully considered the Mathews factors, id. at 142-45, as well as case law interpreting Article I, Paragraph 1 of the State Constitution, id. at 146-49. Pasqua also called upon the Legislature to provide a funding source to compensate appointed counsel. Id. at 153-54. The Court recognized that, in the past, “the Legislature has acted responsibly to provide funding” under similar circumstances. Ibid. (citations omitted). IV. We find that an indigent parent who faces termination of parental rights in a contested private adoption proceeding has a right to appointed counsel. A poor parent who seeks to protect the fundamental right to raise a child, at a contested hearing under the Adoption Act, is entitled to counsel under the due process guarantee of the New Jersey Constitution. A. We draw on certain common principles from B.R. and the Mathews test to analyze the due process issue. They primarily include “the nature of the right involved”; “the permanency of the threatened loss”; the risk of error at a hearing conducted without the help of counsel; and the State’s interest, which is bounded by its parens patriae jurisdiction. B.R., supra, 192 N.J. at 306; Mathews, supra, 424 U.S. at 335, 96 S. Ct. at 903, 47 L. Ed. 2d at 33. The right to raise one’s child is “deeply embedded in our history and culture.” Moriarty v. Bradt, 177 N.J. 84, 101 (2003). That right has “been deemed ‘essential’” and is considered “‘far more precious . . . than property rights.’” N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed.2d 551, 558 (1972)). The termination of one’s parental rights, therefore, plainly “implicates a fundamental liberty interest.” B.R., supra, 192 N.J. at 305. When parental rights are terminated, the tie between parent and child is severed completely and permanently. That is true whether the State files a petition to terminate or a prospective adoptive parent proceeds under the Adoption Act. The outcome is the same: the end of the parent/child relationship. As the Supreme Court observed in Lassiter, supra, a parent’s interest in the decision to terminate her parental status is therefore “commanding.” 452 U.S. at 27, 101 S. Ct. at 2160, 68 L. Ed. 2d at 650. Without the assistance of counsel to prepare for and participate in the hearing, the risk of an erroneous outcome is high. It is hardly remarkable to note that a parent who is a layperson faces significant challenges if she appears on her own to contest a private adoption proceeding. The issues are not simple. They may involve complicated, expert medical and psychological evidence. See id. at 30, 101 S. Ct. at 2161, 68 L. Ed. 2d at 651; Crist, supra, 128 N.J. Super. at 415. An indigent parent who has no legal training will not know how to work with a psychologist to prepare for a trial or how to cross-examine the other side’s expert. She will have a hard time developing defenses, gathering evidence, presenting a case, and making arguments to address the relevant legal standard. See Lassiter, supra, 452 U.S. at 45-46, 101 S. Ct. at 2169, 68 L. Ed. 2d at 661 (Blackmun, J., dissenting). A parent without a background in

evidence law will also likely be unable to prevent opposing counsel from introducing hearsay or other inadmissible testimony. Viewed from another perspective, factfinders benefit from probing cross-examination and careful scrutiny of the evidence. That is particularly true when it comes to expert medical testimony. An indigent parent, with no legal or medical knowledge, is unlikely to be able to help the court in that regard. As the trial record reveals, L.A. struggled in the face of those obstacles at trial. She was unable to cross-examine effectively petitioner’s expert or fact witnesses and bypassed cross-examination for most of them. She presented no evidence other than her own testimony. She could not marshal the evidence and apply it to the legal standard, and she declined to present a closing argument altogether. Without question, appointed counsel can assist parents like L.A. and help reduce the risk of mistaken outcomes in contested proceedings of this type. As to the State’s interest to protect the welfare of children, petitioners point to the general interest of the public and the State to facilitate adoptions. Petitioners are correct. Both the public and the State have a strong interest in seeing that children are adopted in appropriate cases. Because an adoption terminates parental rights, N.J.S.A. 9:3-50(c)(1), the public, the State, and the parent also share an “interest in an accurate and just decision.” Lassiter, supra, 452 U.S. at 27, 101 S. Ct. at 2160, 68 L. Ed. 2d at 650. The adversary system, with an “equal contest of opposed interests,” is designed to lead to that very outcome. Id. at 28, 101 S. Ct. at 2160, 68 L. Ed. 2d at 650. In addition, when both sides present arguments to a judge with the help of able attorneys, the outcome not only protects the parent’s rights and the child’s welfare, it also helps bring finality to an adoption proceeding. All parties are best served in that way. Lassiter also considered the fiscal burdens of appointed counsel on the State. That is a legitimate concern -- in both state-initiated termination cases and private adoption proceedings -- but not a weighty one in light of the significant private interest involved. See Lassiter, supra, 452 U.S. at 28, 101 S. Ct. at 2160, 68 L. Ed. 2d at 650. B. Although this is a case of first impression in New Jersey, other states have considered the same issue. They have found that an indigent parent is entitled to counsel in a private adoption matter. Lassiter set the constitutional floor for a parent’s due process rights in a termination proceeding. It also invited states to go further. Id. at 33, 101 S. Ct. at 2163, 68 L. Ed. 2d at 654. Among states that have done so, a number rely on due process principles under their state constitutions.4 Others have proceeded by statute.5 C. As noted above, this Court has found that due process requires appointment of counsel to indigent litigants in various settings. Given the fundamental nature of the right to parent that may be lost forever in a disputed adoption hearing, there is no room for error here. We therefore hold that indigent parents who face termination of parental rights in contested proceedings under the Adoption Act are entitled to have counsel represent them under Article I, Paragraph 1 of the State Constitution. For reasons discussed earlier, we do not accept petitioner’s claim that because the Division did not initiate this action, the State has no involvement and due process is not implicated. See J.D.S., supra, 176 N.J. at 158; see also M.L.B.,supra, 519 U.S. at 116 n.8, 117 S. Ct. at 564, 136 L. Ed. 2d at 488. Also, because we rely on due process principles, we need not address L.A.’s and amici’s equal protection arguments. V. We next consider when the right to appointment of counsel is triggered in private adoption cases. The Appellate Division observed that a lawyer should be assigned before trial, “when the private agency first decides to move toward adoption.” J.E.V., supra, 442 N.J. Super. at 481. We agree that counsel should be appointed to help an indigent parent prepare for trial. The critical event in the timeline occurs when the parent formally objects to the agency’s decision to proceed toward adoption. See id. at 487 (“[O]nce a private adoption agency determines that it is going to seek adoption over the objection of a parent, that

parent has the right to counsel.”). When a parent contests an agency’s decision, the dispute is sharpened and likely headed to court. In non-agency adoption cases, the issue is joined when a petition for adoption is filed and the birth parent objects. Legal Services of New Jersey recommends that a uniform notice procedure be used. In this case, the agency sent L.A. a letter in March 2013 to notify her of its plan to move toward an adoption. We ask the Director of the Administrative Office of the Courts to review letters of this nature and develop a form designed to enable each parent to respond directly. At a minimum, the form letter, in plain language, should (1) advise parents that they have the right to object, (2) outline how they should do so, (3) explain that failure to respond to the notice in writing will constitute a waiver, (4) tell parents about the statutory right to counseling before they decide whether to sign a surrender form, (5) advise them what to do if they wish to surrender the child, (6) inform parents that they have the right to be represented by an attorney if they object and that the court will appoint counsel if they are indigent, and (7) provide details about how to apply for counsel. See N.J.S.A. 9:3-45. To simplify matters, the form itself can provide a space to object directly. The very reasons that call for a lawyer to be appointed also favor the appointment of attorneys with the experience to handle these matters. Contested adoption proceedings raise important substantive issues and can lead to complicated and involved hearings. The Office of Parental Representation in the Public Defender’s Office has developed expertise in this area from its fine work in state-initiated termination of parental rights cases. Without a funding source, we cannot direct the office to take on an additional assignment and handle contested cases under the Adoption Act. See Crist, supra, 135 N.J. Super. at 575- 76; see also Pasqua, supra, 186 N.J. at 153. In the past, as we noted in Pasqua, “the Legislature has acted responsibly” and provided counsel for the poor when the Constitution so requires. Ibid. For example, after Crist, the Legislature enacted N.J.S.A. 30:4C-15.4(a), which directs judges to appoint the Office of the Public Defender to represent indigent parents who ask for counsel in termination of parental rights cases under Title 30. Once again, we trust that the Legislature will act and address this issue. SeePasqua, supra, 186 N.J. at 153. In the interim, we have no choice but to turn to private counsel for assistance. We invite volunteer organizations to offer their services, as pro bono attorneys have done in other areas. See, e.g., In re Op. No. 17-2012 of Advisory Comm. on Prof’l Ethics, 220 N.J. 468, 469 (2014). Until the Legislature acts, we may need to assign counsel through the Madden list, which is not an ideal solution. See Madden v. Delran, 126 N.J. 591, 605-06 (1992). VI. We cannot find that L.A. waived her right to appointed counsel in this case. “Waiver is the voluntary and intentional relinquishment of a known right.” Cole v. Jersey City Med. Ctr., 215 N.J. 265, 276 (2013) (quoting Knorr v. Smeal,178 N.J. 169, 177 (2003)). Petitioners argue that L.A. waived the right to counsel at the same time they claim no such right exists. Indeed, there was no established or “known” right until the Appellate Division’s ruling in this case. Beyond that, the letter and notices L.A. received were equivocal, and no one ensured that L.A. understood she had a right to court-appointed counsel and knew how to exercise it. L.A. did not knowingly and intentionally waive a right to have the court appoint a lawyer to represent her. In the future, judges should inform a parent of the right to counsel at the first court proceeding. If a parent wishes to proceed pro se, the court should conduct an abbreviated yet meaningful colloquy to ensure the parent understands the nature of the proceeding as well as the problems she may face if she chooses to represent herself. Cf. State v. Crisafi, 128 N.J. 499, 511-12 (1992) (describing more in-depth inquiry required before defendant in criminal case may waive right to counsel). Only then will the court be in a position to confirm that the parent both understands and wishes to waive the right to appointed counsel. Here, L.A. did not waive the right to counsel and resisted the private adoption petition on her own. In short, she was denied counsel, and her parental rights were terminated at the end of the court proceeding.

Some courts have declined to conduct a harmless error analysis under those circumstances. See State v. Shirley E. (In re Torrance P.), 724 N.W.2d 623, 635 (Wis. 2006) (finding structural error); K.A.S., supra, 499 N.W. 2d at 567 (expressing skepticism that “denial of counsel to an indigent parent in an adoption proceeding which results in the termination of parental rights can ever be ‘harmless’” and also finding harmful error in particular case); but see People ex rel. S.D. Dep’t of Soc. Servs., 691 N.W.2d 586, 592 (S.D. 2004) (finding harmless error); see also Vivek Sankaran, No Harm, No Foul? Why Harmless Error Analysis Should Not Be Used to Review Wrongful Denials of Counsel to Parents in Child Welfare Cases, 63 S.C. L. Rev. 13, 14-15 (2011). Because a complete denial of counsel casts doubt on the fairness of the process followed, we must reverse the trial court’s decree and remand for a new trial. See Shirley E., supra, 724 N.W. 2d at 635. We also decline petitioners’ request to reconsider N.J. Division of Youth and Family Services v. I.S., 202 N.J. 145 (2010), and end the litigation now. I.S. evaluated the record in a particular case and found insufficient evidence to terminate a father’s parental rights. Id. at 151. Even if it were appropriate to reconsider that ruling, the principles considered in I.S. do not address the fact that L.A. was denied counsel.6

Amici raise certain additional arguments in this appeal. Among other points, the New Jersey Association for Justice and Advocates for Children of New Jersey ask the Court to require the appointment of a law guardian to represent children in private adoption cases. Their argument rests on due process and equal protection concerns.

Had the Division brought this case under Title 30, L.A.’s child would have been represented by a law guardian. See N.J.S.A. 30:4C-15.4(b); see also N.J.S.A. 9:6-8.21(d) and 9:6-8.23 (requiring appointment of law guardian for children who are subject of abuse and neglect proceedings and designating attorneys in Office of Public Defender to fulfill that role).

The Adoption Act does not authorize the appointment of a law guardian. The statute instead provides for the appointment of a guardian ad litem, “a qualified person, not necessarily an attorney,” “to represent the interests of the child.”N.J.S.A. 9:3-38(e). The court may appoint a guardian ad litem in its discretion, ibid., except in two situations in which it must act, see N.J.S.A. 9:3-47(b) (requiring appointment when agency report is adverse to prospective parent); N.J.S.A. 9:3-48(d) (requiring appointment when agency report, after preliminary hearing, is adverse to grant of final judgment of adoption).

We are reluctant to tackle a constitutional question not raised directly in an appeal, see Comm. to Recall Menendez v. Wells, 204 N.J. 79, 95-96 (2010); Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006), and order appointment of counsel for children in all cases on constitutional grounds. Instead, we invite the Legislature to consider authorizing appointment of counsel for children in private adoption cases. We also remind trial judges of their power to appoint a guardian ad litem under the

Adoption Act, N.J.S.A. 9:3-38(e), when the child’s best interests are not being adequately protected by counsel for the parties. There may well be cases when the child’s interests differ from the parties, and a guardian ad litem will afford the child a chance to be heard in a meaningful way. See Meaghan, supra, 961 N.E. 2d at 113. Trial courts have the discretion to appoint an attorney or other qualified person to that position.N.J.S.A. 9:3-38(e).

We agree with the Appellate Division that, in an abundance of caution, the matter should not be remanded to the original trial judge because the court made credibility findings in the first trial. J.E.V., supra, 442 N.J. Super. at 487.

We request that the trial be expedited but express no opinion on what the outcome of the proceeding should be.

VII. For the reasons stated above, we affirm the judgment of the Appellate Division.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and JUDGE CUFF (temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.

1 A parent has the right to file written objections to an adoption and must act within twenty days after notice is given, in the case of a resident, and within thirty-five days, in the case of a non- resident. N.J.S.A.9:3-45(a). 2 The Division of Child Protection and Permanency (Division) has not been involved in this case. Nor have there been any allegations of abuse or neglect against L.A. 3 That approach exceeds the level of protection available under federal law, which provides counsel only in cases that lead to actual imprisonment. See Scott v. Illinois, 440 U.S. 367, 369, 99 S. Ct. 1158, 1160, 59L. Ed. 2d 383, 386 (1979). 4 See, e.g., In re K.L.J., 813 P.2d 276, 286 (Alaska 1991) (private adoption); In re Adoption of Meaghan, 961 N.E.2d 110, 112-13 (Mass. 2012) (private adoption, relying on due process and equal protection principles); K.P.B. v. D.C.A. (In re J.L.B.), 685 So.2d 750, 752 (Ala. Civ. App. 1996) (private action, discussing Ex parte Shuttleworth, 410 So.2d 896, 899 (Ala. 1981)); In re Jay R., 197 Cal. Rptr. 672, 678 (Ct. App. 1983) (private adoption); see also J.B. v. Fla. Dep’t of Children & Families, 170 So.3d 780, 789-90 (Fla. 2015) (state- initiated action); In the Interest of TM, 319 P.3d 338, 340 (Haw. 2014) (same). Other state courts require the appointment of counsel in private adoption actions based on equal protection grounds. See, e.g., Jo Ellen J. v. John M. (In re L.T.M.), 824 N.E.2d 221, 229-32 (Ill. 2005); J.E.B. v. K.C. (In re S.A.J.B.), 679 N.W.2d 645, 649-51 (Iowa 2004); A.W.S. v. A.W., 339 P.3d 414, 419 (Mont. 2014); In re Adoption of K.A.S., 499 N.W.2d 558, 566 (N.D. 1993); Zockert v. Fanning, 800 P.2d 773, 779 (Or. 1990). 5

See, e.g., Ariz. Rev. Stat. Ann. § 8-221(B) (2016); Ky. Rev. Stat. Ann. § 625.080 (2016); Me. Rev. Stat. Ann. tit. 18-A, § 9-106(b) (2016); Mo. Rev. Stat. § 211.462 (2016); N.M. Stat. Ann. § 32A-5-16(E) (2016); N.Y. Family Ct Act §262(a)(vii) (2016); Okla. Stat. tit. 10, § 7505-4.1(D) (2016); 23 Pa. Cons. Stat. Ann. § 2313(a.1) (2016); Vt. Stat. Ann. tit. 15A, § 3- 201(a) (2016); Wash. Rev. Code Ann. § 26.33.110(3)(b) (2016). 6 We also decline to address an argument raised by the ACLU about whether a harm standard should be read into N.J.S.A. 9:3-46, because this appeal does not pose the issue.

State v. Gary Lunsford (075691) (A-61-14)

Argued February 29, 2016 – Decided August 1, 2016 – Corrected (Dissent) August 3, 2016

RABNER, C.J., writing for a majority of the Court.

In this appeal, the Court addresses the standard that should apply when the State seeks telephone billing records in connection with a criminal investigation.

The police arrested defendant Gary Lunsford after they executed a search warrant at his home based on suspected criminal activity involving transactions in controlled dangerous substances (CDS). As part of its continuing investigation, the Monmouth County Grand Jury issued a subpoena duces tecum to a wireless telephone service provider requesting subscriber information associated with defendant’s cell phone number, which was the contact for the controlled drug buys that led to defendant’s arrest. The subpoena sought customer and billing records, as well as call-detail records, which identify the phone numbers of all incoming and outgoing calls as well as the date, time, and duration of those calls (collectively “telephone billing records” or “telephone toll records”).

Defendant filed a motion to quash, which the trial court granted, stating that, under State v. Hunt, 91 N.J. 338 (1982), a communications data warrant (CDW), which is the equivalent of a search warrant, is needed to obtain telephone billing records. The Attorney General, who superseded the Monmouth County Prosecutor’s Office to litigate the constitutional question raised by the trial court’s decision, sought leave to appeal, which the Appellate Division denied. The Court granted leave to appeal. 223 N.J. 159 (2015).

HELD: As a long-standing feature of New Jersey law, telephone billing records are entitled to protection from government access under the State Constitution. Because they reveal details of

one’s private affairs that are similar to what bank and credit card records disclose, these areas of information should receive the same level of constitutional protection and be available based on a showing of relevance. Direct judicial oversight of the process is required to guard against the possibility of abuse, and in order to obtain a court order requiring production of telephone billing records, the State must present specific and articulable facts to demonstrate that the records are relevant and material to an ongoing criminal investigation.

1. In a series of decisions, the Court has recognized a constitutionally protected right to privacy in various types of personal information. In doing so, the Court has parted company with federal law and relied on the State Constitution. Early case law gave little attention to the question of the appropriate level of protection to safeguard an individual’s privacy interest. Later decisions addressed the issue by balancing individual privacy rights with society’s interest in investigating and halting criminal activity. The Court examines these cases in order to reconcile the tensions that have developed over time in this area of law. (pp. 9-10)

2. In State v. Hunt, the Court held that defendant had a protectable privacy interest in telephone billing records under the State Constitution, and thereby departed from federal law, which did not recognize a privacy interest in such information. Although the Court did not address the specific procedure required for the State to obtain the information, the Court stated that judicial sanction or a judicial proceeding is necessary. After the decision in Hunt, the Attorney General consistently sought a warrant in order to obtain telephone billing records. Years later, the Court extended the State constitutional protections to billing records for a hotel- room phone, and determined that such records are subject to seizure only on a showing of probable cause and the issuance of a warrant. (pp. 10-16)

3. The Court has also recognized a protectable privacy interest in other information. More particularly, the Court has held that account holders have a reasonable expectation of privacy in their bank and credit card records. The Court rejected the position that a showing of probable cause and a search warrant are necessary to obtain these records, and held that a grand jury subpoena, based on a relevancy standard, is sufficient to protect an individual’s privacy interest in view of law enforcement’s legitimate investigatory needs. Similarly, the Court has held that a grand jury subpoena sufficiently protects the privacy interest in utility records and the subscriber information that individuals supply to an internet service provider. However, in State v. Earls, 214 N.J. 564 (2013), the Court returned to the question of privacy in the context of cell- phone location information. There, the Court held that tracking one’s location through a cell phone is a more intrusive and revealing invasion into an individual’s privacy, and therefore requires that police obtain a warrant based on a showing of probable cause to acquire cell-phone location information. (pp. 16-26)

4. Telephone billing records reveal information about the account holder even though they do not disclose the contents of any communications. Bank account records and credit card statements disclose actual content. All of these records can reveal comparable information, and create similar expectations of privacy. However, the courts have afforded different levels of protection when production of the information is sought. Bank records can be obtained through a grand jury subpoena, upon a finding that the records are relevant. To obtain telephone billing records, the law requires that law enforcement meet a higher threshold and demonstrate probable cause, even though bank records arguably reveal more information than telephone billing records. To address these inconsistent standards, the Court must reconcile an individual’s privacy concerns with valid law enforcement aims, including the practical impact of requiring a search warrant based on probable cause. (pp. 26-29)

5. A requirement that the State demonstrate that telephone billing records are relevant to an ongoing criminal investigation in order to obtain the records protects individual privacy rights at stake, and recognizes society’s legitimate interest in investigating criminal activities. To require a showing of probable cause would be contrary to both the traditional authority of the grand jury and society’s legitimate interest in having officials promptly investigate and interrupt criminal activity. The Legislature previously unanimously amended N.J.S.A. 2A:156A-29(e) of the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act) to require service providers to disclose telephone records to law enforcement in response to a grand jury subpoena, which requires only a showing that the documents are relevant to the investigation. Because the amendment conflicts with the standard set forth in Hunt and other case law, it has not been followed. However, the amendment reflects the Legislature’s view of the protection that a reasonable expectation of privacy requires in this area and is entitled to respectful consideration. Still, the judicial branch has the obligation and the ultimate responsibility to interpret the meaning of the Constitution and the protections it requires. In the end, the Court is guided by the language and history of the New Jersey Constitution. (pp. 29-34)

6. To obtain telephone billing or toll records, the State must apply for a court order under N.J.S.A. 2A:156A-29(e) of the Wiretap Act. As the statute requires, the State must demonstrate specific and articulable facts showing that there are reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal investigation. The requested records must cover a finite period of time which does not extend beyond the date of the order. Judicial review of such ex parte applications will guard against abuse and root out bulk requests for information that are not connected to a criminal investigation. In this matter, the Court affirms the trial court’s decision to quash the grand jury subpoena for telephone billing records, and notes that the State may apply for a court order to obtain those records in this case, consistent with the principles discussed in this opinion. (pp. 36-37) The judgment of the trial court is AFFIRMED.

JUSTICE LaVECCHIA, CONCURRING IN PART and DISSENTING IN PART, joined by JUDGE CUFF (temporarily assigned), concurs in the judgment to the extent that it affirms the trial court’s decision to quash the grand jury subpoena for telephone billing records. Justice LaVecchia dissents from the portion of the judgment that permits the State to apply for a court order to obtain those records based on the new procedures that the Court outlines in its opinion. Justice LaVecchia expresses the view that State v. Hunt established a warrant requirement for police access to telephone billing records, and that precedent should control this case under a consistent line of cases addressing access by law enforcement to private telephone records.

JUSTICES PATTERSON, FERNANDEZ-VINA and SOLOMON join in CHIEF JUSTICE RABNER’s opinion. JUSTICE LaVECCHIA filed a separate, concurring and dissenting opinion in which JUDGE CUFF (temporarily assigned) joins. JUSTICE ALBIN did not participate.

SUPREME COURT OF NEW JERSEY

A- 61 September Term 2014

075691

STATE OF NEW JERSEY,

Plaintiff-Appellant,

GARY LUNSFORD,

Defendant-Respondent.

Argued February 29, 2016 – Decided August 1, 2016

• Corrected (Dissent) August 3, 2016

On appeal from the Superior Court, Appellate Division.

Ronald Susswein, Assistant Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General of New Jersey, attorney; Mr. Susswein, Claudia Joy Demitro,Ian C. Kennedy, and Jane C. Schuster, Deputy Attorneys General, of counsel and on the briefs).

Dean I. Schneider argued the cause for respondent (Schneider Freiberger, attorneys).

Kevin H. Marino argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Marino, Tortorella & Boyle, attorneys; Mr. Marino, John D. Tortorella, and Erez J. Davy, on the brief).

Frank L. Corrado argued the cause for amici curiae American Civil Liberties Union of New Jersey, Brennan Center for Justice, Electronic Frontier Foundation and Office of the Public Defender (Edward L. Barocas, Legal Director, attorney; Mr. Corrado, Alexander R. Shalom, Rubin M. Sinins, and Annabelle M. Steinhacker, on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

For more than three decades, this Court has departed from federal law and recognized that, under the New Jersey Constitution, individuals have a reasonable expectation of privacy in information they provide to phone companies, banks, and Internet service providers in order to use commercial services. The Court has consistently applied that principle to protect personal information from unrestricted government access. No party in this appeal seeks to disturb that precept, which is a bedrock feature of New Jersey law.

As a general rule, the greater the degree of intrusion into one’s private matters by the government, the greater the level of protection that should apply. This appeal asks the Court to revisit the standard that should apply to telephone billing records sought in connection with a criminal investigation. The appeal also highlights inconsistencies in New Jersey’s case law on privacy which have developed over time.

Telephone billing records, bank and credit card records, and Internet subscriber information can all reveal intimate details about a person’s life. The level of detail disclosed across all of those areas is relatively similar. Yet our case law has set different standards that law enforcement officers must meet to obtain information from those sources. Earlier decisions,

with little analysis, required officials to seek a search warrant supported by probable cause to get access to telephone billing records; among other things, those records disclose the telephone numbers dialed to and from a particular phone but not the content of any conversations. To get access to bank records, though, which reveal the actual content of transactions, officials need only use a grand jury subpoena. A subpoena can be used if the documents are relevant to an ongoing criminal investigation, a lower threshold than probable cause.

When the Court’s decisions in the area of privacy rights are read together, they reveal internal inconsistencies. We now attempt to resolve that tension in the law. Because telephone billing records reveal details of one’s private affairs that are similar to what bank and credit card records disclose, we conclude that both areas of information should receive the same level of constitutional protection and be available if they are relevant to an ongoing criminal investigation. More intrusive records, like cell-phone location information, are entitled to greater protection and continue to require a search warrant.

To guard against the possibility of abuse in this sensitive area, however, we retain direct judicial oversight of the process and require the State to obtain a court order before it can ask a service provider to turn over telephone billing records. A judge may enter an order if law enforcement officials offer specific and articulable facts to demonstrate that telephone billing records are relevant and material to an ongoing criminal investigation. See N.J.S.A. 2A:156A- 29(e). We believe that this approach not only resolves the tension in existing case law, but also strikes an appropriate balance between legitimate privacy rights of individuals and society’s valid interest in investigating and preventing crime.

We therefore agree with the trial court’s decision to quash the grand jury subpoena the State served in this case, and direct that the State may apply for a court order to obtain the telephone billing records it seeks.

The police arrested defendant Gary Lunsford after they executed a search warrant at his home on May 15, 2014. As part of a continuing investigation, the Monmouth County Grand Jury

issued a subpoena duces tecum on June 19, 2014 to Cellco Partnership, doing business as Verizon Wireless. The subpoena required Verizon to produce telephone records and global positioning system (GPS) data associated with defendant’s cell-phone number; the number was the contact for controlled drug buys that provided the basis for the search warrant.

Six weeks later, the grand jury recalled the subpoena and issued a new one that omitted the request for GPS data -- to comply with State v. Earls, 214 N.J. 564 (2013), which requires a search warrant for cell-phone location information. The new subpoena sought subscriber information for the cell phone, namely, billing and customer records, as well as call-detail records for the two weeks leading up to defendant’s arrest. Call-detail information includes the phone numbers dialed out from defendant’s cell phone, the phone numbers dialed in to that phone, and the date, time, and duration of those calls. That information is often referred to as “telephone billing records” or “telephone toll records.”

The State alerted defense counsel that it was seeking telephone billing records to give defendant the opportunity to move to quash the subpoena. Defendant filed a motion to quash, and the trial court granted the motion on January 16, 2015. In a written opinion, the trial court explained that under State v. Hunt, 91 N.J. 338 (1982), a communications data warrant, the equivalent of a search warrant, is needed to obtain telephone toll records.

The Attorney General, who superseded the Monmouth County Prosecutor’s Office to litigate the constitutional question this case raises, sought leave to appeal. The Appellate Division denied the request. The State then filed a motion for leave to appeal with this Court, which we granted. 223 N.J. 159 (2015).

II.

The Attorney General does not dispute that telephone billing records are entitled to protection under the State Constitution. He argues instead that a grand jury subpoena, based on

a relevancy standard rather than probable cause, is sufficient to safeguard the privacy rights at stake.

For support, the Attorney General traces the evolution of privacy rights under the State Constitution from Hunt, which addressed telephone billing records, to the present. He asserts that although Hunt found that customers enjoy a reasonable expectation of privacy in telephone billing records, the opinion did not address whether a grand jury subpoena would adequately protect that right. By contrast, the Attorney General contends, more recent case law relating to the privacy rights in bank records, State v. McAllister, 184 N.J. 17 (2005), Internet subscriber information, State v. Reid, 194 N.J. 386 (2008), and cell-phone location information, Earls, supra, 214 N.J. 564, “strongly suggest . . . that a grand jury subpoena is all that is needed.” According to the Attorney General, bank and Internet subscriber records can reveal intimate details about a customer’s private life that compare to the level of information disclosed in telephone billing records; as a result, those areas should be treated similarly under the law. The Attorney General, therefore, argues that this Court should reconcile Hunt with its more recent opinions.

The Attorney General contends that the grand jury subpoena process works well to protect State constitutional privacy rights, that the law in other jurisdictions does not support sustaining a warrant requirement, and that the legitimate needs of law enforcement offer further support for the use of grand jury subpoenas to obtain telephone billing records. In particular, the Attorney General notes that a probable cause standard delays prosecutors from gathering toll records at an early stage in a criminal investigation and, as a result, lengthens the amount of time needed to conduct criminal investigations.

Defendant argues that Hunt not only found a reasonable expectation of privacy under the State Constitution in telephone billing records but that it also imposed a warrant requirement for the police to obtain those records. Because call-detail records can “paint a picture” of defendant’s private life, he maintains that Hunt was correctly decided and should not be overturned. Defendant adds that the Attorney General has not presented any special justification to overturn Hunt. Defendant also argues that the grand jury subpoena process,

guided by a relevancy standard with no judicial oversight, does not adequately protect a citizen’s privacy rights. Defendant claims that a warrant requirement is the only way to guarantee the needed level of protection.

We granted amicus curiae status to (1) the American Civil Liberties Union of New Jersey, the Brennan Center for Justice, the Electronic Frontier Foundation, and the Office of the Public Defender (collectively, the ACLU), which submitted a joint brief, and (2) the Association of Criminal Defense Lawyers of New Jersey (ACDL).

Amici expand upon the arguments defendant raises. They contend that Hunt expressly and correctly imposed a warrant requirement and should not be overturned. The ACLU argues that telephone billing records, particularly when collected in bulk, can reveal intimate private information that only a warrant can adequately protect. The ACDL, likewise, highlights the expansive range of information that call-detail records can reveal. The ACDL also stresses that telephone billing records are quite revealing in the aggregate and pose particular concerns for whistleblowers, journalists, people who seek confidential advice on health issues, and others.

In addition, amici argue that the Attorney General has misread this Court’s rulings on privacy. They contend that the privacy interest in telephone billing records recognized in Hunt is of the highest order, and that just because tracking an individual’s movements may be more invasive than obtaining telephone toll, bank, or ISP (Internet service provider) records, it does not logically follow that telephone billing records merit less protection than cell-phone location data or should be treated the same as bank or ISP records.

Finally, amici argue that the grand jury process is controlled by the prosecutor and does not adequately protect the privacy interests involved.

III.

Over the years, this Court has recognized a constitutionally protected right to privacy in various types of information: telephone toll records, bank records, subscriber information provided to an Internet Service Provider, and cell-phone location data. See Hunt, supra, 91 N.J.

338; McAllister, supra, 184 N.J. 17; Reid, supra, 194 N.J. 386; Earls, supra, 214 N.J. 564. In doing so, the Court has parted company with federal law and relied on the State Constitution.1

Beyond the threshold question of whether a privacy right exists lies another inquiry: what level of protection is appropriate to safeguard an individual’s privacy interest? Early case law gave little attention to the second question. Later decisions, dating back a decade, examined the issue by balancing both individual privacy rights and society’s interest in investigating and halting criminal activity. Today, we are called upon to assess and reconcile the tension that has developed over time in this area.

The Court’s 1982 decision in Hunt marks an important point in the chronology. The case arose out of an investigation into an illegal sports gambling operation. Hunt, supra, 91 N.J. at 341. During the investigation, an informant told the State Police that the defendant conducted a daily gambling business over two telephone lines. Ibid. A detective asked the telephone company for telephone billing records for both numbers for a two-month period, and the company complied. Ibid. The State Police later obtained court orders for a pen register and a wiretap. Id. at 342.

Hunt analyzed with care whether the defendant had a “protectible interest” in telephone billing records under the Federal and State Constitutions. Id. at 342-43. The Court quoted Justice Stewart’s observation that a list of dialed telephone numbers “easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person’s life.” Id. at 347 (quoting Smith v. Maryland, 442 U.S. 735, 748, 99 S. Ct. 2577, 2584, 61 L. Ed.2d 220, 231 (1979) (Stewart, J., dissenting)).

Hunt noted that federal case law did not recognize a “legitimate expectation of privacy in information voluntarily turned over to third parties,” id. at 343-44, a principle commonly referred to as the “third-party doctrine.” As a result, individuals have no expectation of privacy under federal law in pen register information (a list of local and long distance numbers dialed), ibid. (citing Smith, supra, 442 U.S. at 740, 99 S. Ct. at 2580, 61 L. Ed. 2d at 226-27), or

in financial information that customers convey to banks, id. at 344 n.1 (citing United States v. Miller, 425 U.S. 435, 442, 96 S. Ct. 1619, 1623, 48 L. Ed.2d 71, 79 (1976)).

The Hunt Court observed that New Jersey had followed a different approach and afforded “the utmost protection” against tapping phones to hear “telephonic communications.” Id. at 345. The Court also emphasized that telephone customers -- in 1982 -- placed calls “from a person’s home or office, locations entitled to protection” under the Federal and State Constitutions. Id. at 347.

The Court specifically rejected the third-party doctrine. Hunt explained that telephone callers are entitled to assume that not only the words they utter but also the numbers they dial in private “will be recorded solely for the telephone company’s business purposes.” Ibid. The Court added, “[i]t is unrealistic to say that the cloak of privacy has been shed because the telephone company and some of its employees are aware of” billing records. Ibid. The Court therefore concluded that toll billing records were “part of the privacy package” and were entitled to protection under the State Constitution. Id. at 347-48.

The bulk of the Court’s thoughtful analysis focused on whether to diverge from federal law and recognize a privacy interest in telephone billing records. The opinion devoted little attention to the steps law enforcement officials must take to obtain protected billing records. At one point, the decision observed that allowing “seizures” of telephone billing records “without warrants can pose significant dangers to political liberty.” Id. at 347. The passage was a prelude to a brief discussion of an actual abuse that had occurred: the FBI obtained toll billing records for columnist Jack Anderson after he wrote a “column embarrassing to former Vice President Agnew”; a source whose telephone number appeared in the records then lost his job as a city attorney. Ibid.

Two paragraphs later, the opinion cited state court decisions that followed or departed from the federal third-party doctrine. Id. 348. After siding with the latter group, the paragraph concluded, “[t]hus we are satisfied that the police wrongfully obtained the toll billing records of

the defendant Hunt in that they were procured without any judicial sanction or proceeding.” Ibid. (emphasis added). The Court did not elaborate on the meaning of the phrase.

In reaching its conclusion, the Court in Hunt did not mention its earlier decision in In re Addonizio, 53 N.J. 107 (1968). In that ruling, the Court addressed a defendant’s effort to set aside grand jury subpoenas served on a bank and a brokerage firm for his account records. The defendant attempted to assert a claim under the Fourth Amendment. Id. at 131. Chief Justice Weintraub rejected the argument and distinguished Brex v. Smith, 104 N.J. Eq. 386 (Ch. 1929). In that case, “the prosecutor, without any judicial process, called upon banks to deliver” certain account records. Addonizio, supra, 53 N.J. at 134 (emphasis added). “It is enough to say,” the Addonizio Court explained, that “a grand jury subpoena would be something else.” Ibid.2 Hunt did not consider the issue or cite Addonizio.

Justice Pashman authored a concurring opinion in Hunt which pointedly addressed the risk of abuse: “What is missing from the majority opinion is a full appreciation of the danger of political abuse posed by unlimited police access to knowledge of whom private citizens are calling and therefore of the importance of the warrant requirement as a check on this potential for abuse.” Hunt, supra, 91 N.J. at 351 (Pashman, J., concurring). The concurrence also directly stated that “police [must] obtain a warrant before seizing toll billing records.” Id. at 352. Because “[t]here is no danger that billing records will be destroyed . . . during the time needed to get a warrant,” Justice Pashman wrote, the requirement “is at most a minimal burden that in no way intrudes upon legitimate police activity.” Ibid.

By contrast, the references to warrants in the majority opinion offer little analysis and are not as explicit. Viewing the opinion as a whole, it appears that the parties and the Court focused on whether New Jersey should recognize a privacy interest in telephone billing records under the State Constitution. Indeed, the majority opinion framed the issue in the case in just that way. See id. at 342-43 (“The key questions are whether an individual has a protectible interest in [toll billing] records under the Fourth Amendment to the Federal Constitution or Article I, par. 7 of the New Jersey Constitution.”). It is not possible to tell if the advocates even argued about what level of protection that right would require.

The Attorney General explains that, in response to Hunt, the State took a cautious approach and consistently sought warrants to obtain telephone toll records.

State v. Mollica, 114 N.J. 329 (1989), decided seven years after Hunt, cemented a warrant requirement for telephone billing records. Mollica considered whether to extend State constitutional protections to billing records for a hotel-room telephone. In the case, anonymous sources told the FBI that an individual had operated an illegal bookmaking enterprise from hotel rooms in Atlantic City. Id. at 335. Without a search warrant, federal agents obtained the suspect’s telephone records from the hotel. Ibid. The FBI later turned the records over to state officials, who used the information to get a search warrant. Id. at 335-36. The defendants, in turn, challenged the search and claimed it was based on an unconstitutional seizure of their hotel-room telephone billing records. Id. at 336.

The Court found no basis to distinguish between the expectation of privacy in billing records for a home telephone and a phone in a hotel room. Id. at 342. The “broader view of . . . privacy that surrounds the use of a telephone” applied in both settings and called for protection under the State Constitution. Id. at 344-45.

The Court next turned to the process required and briefly concluded, “[i]t therefore follows ineluctably that the official seizure of hotel-telephone billing or toll records relating to a guest’s use of a hotel-room telephone is subject to the requirements of antecedent probable cause and the issuance of a search warrant” under the State Constitution. Id. at 345 (citation omitted). For support, the Mollica Court cited only the passage in Hunt that noted the police wrongfully obtained billing records because they were procured “without any judicial sanction or proceeding.” Ibid. (quoting Hunt, supra, 91 N.J. at 348).

The next link in the chain is McAllister, which addressed bank records in 2005. This time, the Court undertook a deliberative, two-part analysis: it first considered whether account holders have a reasonable expectation of privacy in their bank records, and then assessed what level of protection should apply to that information. McAllister, supra, 184 N.J. at 19.

At the outset, the Court recounted New Jersey’s departure from the third-party doctrine. Under federal law, records that customers voluntarily convey to banks enjoy no Fourth Amendment protection. SeeMiller, supra, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed.2d 71. By contrast, Brex and Addonizio took a more restrictive approach. McAllister, supra, 184 N.J. at 28. Brex “recognized that account holders expect their banks to keep their records confidential, even in the face of a government official’s formal request,” and Addonizio, four decades later, “implicitly recognized” that interest. Id. at 26-28.

The McAllister Court then directly addressed the privacy interest in bank records. Id. at 29. The Court began by noting how revealing the records are:

Bank records, like long distance billing records, differ from other documents that memorialize an individual’s affairs. On their face, bank records are simply a collection of numbers, symbols, dates, and tables. They are a veritable chronicle of the mundane: the payment of a nominal ATM fee, the automatic deposit of a paycheck, the monthly interest earned on a savings account. However, when compiled and indexed, individually trivial transactions take on a far greater significance. “In the course of such dealings, a depositor reveals many aspects of his personal affairs, opinions, habits and associations. Indeed, the totality of bank records provides a virtual current biography.”

[Id. at 30-31 (quoting Burrows v. Superior Court, 529 P.2d 590, 596 (Cal. 1975)).]

The Court also explained that “bank customers voluntarily provide their information to banks, but they do so with the understanding that it will remain confidential.” Id. at 31. The Court therefore held that the State Constitution “recognizes an account holder’s interest in the privacy of his or her bank records.” Id. at 32-33.3

Next, McAllister analyzed the level of protection needed to safeguard that privacy interest “in view of law enforcement’s legitimate investigatory needs.” Id. at 33. The Court rejected the ACDL’s position that probable cause was required. See id. at 24, 33. In doing so, the Court relied on Addonizio, which explained “that grand juries have never been bound only to investigate charges that were already supported by probable cause.” Id. at 33 (citing Addonizio, supra,

53 N.J. at 124). The McAllister Court quoted Chief Justice Weintraub, who had observed that “the probable cause required for a search warrant is foreign to this scene . . . . [A grand jury’s] power to investigate would be feeble indeed if [it] had to know at the outset everything needed to arrest a man or to invade his home.” Id. at 33-34 (quoting Addonizio, supra, 53 N.J. at 126).

McAllister affirmed “the expansive investigatory power of grand juries,” id. at 34, “bounded by relevancy and safeguarded by secrecy,” id. at 42, and held that a grand jury subpoena based on a relevancy standard was adequate to protect an individual’s privacy interest in bank records, id. at 36. A showing of probable cause, ordinarily required for a search warrant, was not required. Ibid.

Notably, McAllister contains but a single substantive reference to Hunt. McAllister simply states that because Hunt did not involve a grand jury subpoena, the opinion did not “require[] a different result in this appeal.” Id. at 36.4

State v. Domicz, 188 N.J. 285 (2006), followed soon after McAllister. In Domicz, the Court held that a grand jury subpoena was sufficient to protect any privacy interest in an individual’s utility records. Id. at 299-301. In its analysis, the Court underscored how revealing bank records are:

Bank records may reveal all types of household items purchased and possessed by a person, such as furniture, artwork, and electronic equipment. Through check and debit card payments, those records may disclose what a person eats and drinks, what newspapers and magazines he reads, and even where he vacations. Bank records also may indicate the amount of a person’s utility and telephone bills.

[Id. at 299-300.]

By contrast, utility records expose far less “about a person’s private life and activities within the home.” Id. at 299. The Court thus found no basis to treat “utility records differently from bank records.” Ibid. It upheld the use of a grand jury subpoena to obtain utility records and did not require the police to secure a warrant. Id. at 300-01.

Reid, supra, decided in 2008, drew on similar themes and followed the same two-part approach. In that case, someone had accessed a company’s website and fraudulently changed the company’s shipping address. 194 N.J. at 392. A supplier captured the user’s Internet Protocol (IP) address and reported it to the owner of the company; the owner later relayed the IP address to the police. Ibid. The police issued a deficient subpoena to Comcast, the service provider to which the address was registered, to obtain information about the IP address. Id. at 392-93. In response, Comcast identified the defendant as the subscriber of the IP address and provided subscriber information including her name, address, telephone number, and other account details. Id. at 393.

The Court again departed from the federal third-party doctrine and held that subscriber information that individuals provide to an Internet service provider is entitled to protection under the State Constitution. Id. at 399. The Court explained that

ISP records share much in common with long distance billing information and bank records. All are integrally connected to essential activities of today’s society. Indeed, it is hard to overstate how important computers and the Internet have become to everyday, modern life. Citizens routinely access the Web for all manner of daily activities: to gather information, explore ideas, read, study, shop, and more.

. . . .

In addition, while decoded IP addresses do not reveal the content of Internet communications, subscriber information alone can tell a great deal about a person. With a complete listing of IP addresses, one can track a person’s Internet usage. “The government can learn the names of stores at which a person shops, the political organizations a person finds interesting, a person’s . . . fantasies, her health concerns, and so on.” Daniel Solove, The Future of Internet Surveillance Law, 72 Geo. Wash. L. Rev. 1264, 1287 (2004). Such information can reveal intimate details about one’s personal affairs in the same way disclosure of telephone billing records does. Although the contents of Internet communications may be even more revealing, both types of information implicate privacy interests.

[Id. at 398-99.5]

The Court went on to consider “the type of protection ISP subscriber information should receive in the face of legitimate investigative needs.” Id. at 402. The Court revisited Addonizio, McAllister, and Domicz and concluded, “we see no material difference between bank records and ISP subscriber information and decline to treat them differently.” Id. at 404. In both cases, the Court held, “a grand jury subpoena based on a relevancy standard is sufficient to meet constitutional concerns.” Ibid. The Court did not rely on, or even refer to, Hunt in that discussion.

In 2013, the Court returned to the question of privacy in the context of cell-phone location information. Earls, supra, 214 N.J. 564. In Earls, the police obtained an arrest warrant for the defendant because of his role in a series of residential burglaries. Id. at 570-71. Law enforcement began looking for the defendant and an ex-girlfriend, whom the defendant allegedly threatened after he learned about her cooperation in the investigation. Ibid. The police contacted T-Mobile, a cell-phone service provider, which provided information on three occasions -- without a warrant -- about the location of a cell phone believed to be used by the defendant. Id. at 571-72. That information led to the defendant’s arrest. Id. at 572.

The Court noted that a cell phone automatically registers or identifies itself with the nearest cell site every seven seconds, even when no calls are made. Id. at 576-77. With existing technology in 2013, “cell-phone providers [could] pinpoint the location of a person’s cell phone with increasing accuracy,” and in some areas could even locate users within individual floors and rooms inside buildings. Id. at 577.

The Court reviewed federal law and considered United States v. Knotts, 460 U.S. 276, 103 S. Ct. 1081, 75 L. Ed.2d 55 (1983), and United States v. Karo, 468 U.S. 705, 104 S. Ct. 3296, 82 L. Ed.2d 530 (1984), which together “found no reasonable expectation of privacy in the monitoring of tracking devices in public, as opposed to private, areas.” Earls, supra, 214 N.J. at 580-81. Earls also discussed a more recent decision, United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 181 L. Ed.2d 911 (2012), in which a majority of the United States Supreme Court held

that the installation of a GPS tracking device on a car constituted a trespass on private property and required a warrant. Earls, supra, 214 N.J. at 582.

Justice Alito, who concurred with three other Justices, would have analyzed the case under a reasonable-expectation-of-privacy framework. Jones, supra, 565 U.S. at ___, 132 S. Ct. at 963-64, 181 L. Ed. 2d at 933-34 (Alito, J., concurring). He observed that “relatively short- term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable”; “[b]ut the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Id. at ___, 132 S. Ct. at 964, 181 L. Ed. 2d at 934 (citation omitted). Justice Sotomayor, who joined the majority opinion, also concurred separately. She agreed with Justice Alito’s views on longer term tracking and added that “even short-term [GPS] monitoring . . . will require particular attention.” Id. at ___, 132 S. Ct. at 955, 181 L. Ed. 2d at 925. Both concurrences addressed GPS monitoring and the details it revealed, not toll billing records. See, e.g., ibid. (Sotomayor, J., concurring) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail.”).

Earls reasoned from the concurring opinions in Jones as well as settled state law. It reiterated that all three types of information discussed in Hunt, McAllister, and Reid can be very revealing, and compared them to cell-phone location data. Earls, supra, 214 N.J. at 585.

Using a cell phone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or Internet subscriber records. It is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. It also involves a degree of intrusion that a reasonable person would not anticipate. See Jones, supra, 565 U.S. at , 132 S. Ct. at 964, 181 L. Ed. 2d at 934 [42] (Alito, J., concurring). Location information gleaned from a cell-phone provider can reveal not just where people go -- which doctors, religious services, and stores they visit -- but also the people and groups they choose to affiliate with and when they actually do so. That information cuts across a broad range of personal ties with family, friends, political groups, health care providers, and others. See id. at , 132 S. Ct. at 955-56, 181 L. Ed. 2d at 925 (Sotomayor, J., concurring). In other words, details about the location of a cell phone can provide an intimate picture of one’s daily life.

[Id. at 586 (emphasis added).]

The Court concluded that cell-phone users have a reasonable expectation of privacy in the location of their cell phones, which is entitled to protection under the State Constitution. Id. at 587-88. The sentence underscored in the above passage, though, does not resolve this appeal because it does not differentiate among telephone billing, bank, and Internet records; it merely notes that tracking one’s location through a cell phone is more revealing than the other three kinds of information.

Earls also separately considered what level of protection the privacy right required. The Court noted that, “[a]s a general rule, the more sophisticated and precise the tracking, the greater the privacy concern.” Id. at 587. “Because of the nature of the intrusion, and the corresponding, legitimate privacy interest at stake,” the Court held that the “police must obtain a warrant based on a showing of probable cause” to get tracking information through a cell phone, unless exigent circumstances or another exception to the warrant requirement applies. Id. at 588. Earls did not rely on Hunt to support that holding.

The above survey reveals that our jurisprudence is not internally consistent. Telephone billing records -- a list of phone numbers dialed out of and in to a phone, along with the time and duration of those calls -- are, of course, quite revealing. That is why they are entitled to protection under the State Constitution, even though they do not disclose the contents of any communications.

Amici argue that telephone billing records are “content-laden” and “suggestive” of content, particularly when they are aggregated. But are telephone billing records more revealing than bank records, which reveal actual content? Bank records contain not only a tally of dates and dollar amounts; they also include copies of actual checks that disclose who was paid, for how much, often for what services, and when. The contents of a checkbook can expose the

doctors we use, the political parties and religious groups we contribute to, and payments to intimate associates that are meant to be kept private. Credit card statements offer similar details. Also, as Reid explained, ISP subscriber information can disclose comparable personal details; if matched to an IP address, the information can help track a person’s Internet usage. Reid, supra, 194 N.J. at 398.

All three areas -- telephone billing records, bank records, and Internet subscriber information -- are less intrusive than a device that permits 24/7 tracking. Yet it is hard to differentiate among the three in terms of the reasonable expectation of privacy that attaches to each. Bank account records, credit card statements, and Internet subscriber information can be just as revealing as telephone billing information.

The ACDL argues that telephone billing records, which are expressed in a standardized format, are easy to aggregate and analyze, particularly in light of modern technology. The ACDL also contends that society’s reliance on telecommunications has increased with the rise of mobile phones. But standardized bank records can also be aggregated and analyzed. And just as mobile phones have arguably increased the amount of data available, the widespread replacement of cash with credit and debit cards and mobile payment systems has also added to society’s trail of financial transactions. See Geoffrey R. Gerdes and Kathy C. Wong, Federal Reserve Bulletin, Recent Payment Trends in the United States A77 (Oct. 2008), http://www.federalreserve.gov/

pubs/bulletin/2008/pdf/payments08.pdf (showing nearly three-fold increase in number of non-cash payments per person in United States from 1971 to 2006); Federal Reserve System, The 2013 Federal Reserve Payments Study 15 (2014), https://www.frbservices.org/files/communications/pdf/general/2013_fed_res_paymt_study_ detailed_rpt.pdf (showing approximately 29-percent increase in total non-cash payments in United States from 2006 to 2012).

Bank records arguably reveal more to law enforcement than telephone billing records because of the actual content they contain. Yet our law has given greater protection to telephone

billing records, which do not disclose content. In other words, if bank records are relevant to an investigation, law enforcement can seek them with a subpoena; to obtain telephone billing records, though, officers have been required to meet a higher threshold and show probable cause.

One reason for the disparate approach in our case law is the manner in which it developed. Hunt and Mollica did not consider legitimate investigative needs when they together imposed a warrant requirement to obtain telephone billing records. McAllister and Reid weighed that concern but did not wrestle with Hunt. This appeal requires that we do both. We are called on to analyze and reconcile different strands in the law -- to assess genuine privacy concerns as well as valid law enforcement aims across related areas.

To do that, in addition to evaluating how intrusive toll records can be, as Hunt did, we consider the practical impact of requiring a search warrant -- based on probable cause -- to obtain telephone toll records. Probable cause for a warrant requires proof “to believe that a crime has been or is being committed at a specific location or that evidence of a crime is at the place to be searched.” State v. Evers, 175 N.J. 355, 381 (2003) (citations omitted). In the context of a warrant for telephone billing records, a judge must be convinced that there is probable cause to believe the records sought contain evidence of a crime -- not simply that the records are relevant to an ongoing criminal investigation. To amass enough evidence to meet the higher standard inevitably slows down investigations in the early stages, particularly in matters that involve more complex schemes. That approach runs counter to both the traditional authority of the grand jury, see Addonizio, supra, 53 N.J. at 126, and society’s legitimate interest in having officials promptly investigate and try to interrupt criminal activity.

To be sure, if the police choose to use highly intrusive techniques, like obtaining cell- phone location information, they must establish probable cause notwithstanding the impact that standard may have on the pace of an investigation. But when the police request less intrusive information, a relevance standard can protect valid privacy concerns and allow appropriate investigations to proceed.6

We are not the only state to consider the standard the police must satisfy to obtain telephone billing records. In the three decades since Hunt and Mollica, however, only a handful of states have imposed a probable cause requirement.

Federal law permits law enforcement to obtain telephone billing records with a grand jury or trial subpoena or an appropriate administrative subpoena. See 18 U.S.C.A. § 2703(c)(2). That standard remains in place after Riley v. California, ___ U.S. , 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014).

Defendant relies on Riley and contends that it requires the use of a search warrant to access telephone connection records. Riley, however, involved a warrantless search of the contents of a smartphone seized incident to an arrest. As the United States Supreme Court explained, a search of a modern cell phone can reveal vast amounts of private personal information, “from the mundane to the intimate”: photographs, text messages, one’s Internet browsing history, calendar, personal contacts, historic location information, various apps, and more. Id. at ___, 134 S. Ct.at 2489-91, 189 L. Ed. 2d at 446-48. Because smartphones contain and may reveal “the privacies of life,” the Court held that law enforcement officers must get a warrant before they may search the contents of a cell phone seized incident to arrest. Id. at ___, 134 S. Ct. at 2494-95, 189 L. Ed. 2d at 452 (citation omitted). Riley did not address telephone billing records and did not alter the prevailing federal standard to obtain that information.

A large majority of states use the same type of standard and allow law enforcement to obtain telephone billing information based on some form of a relevancy standard.7

Five states require a showing of probable cause. In three states, the rule is imposed by statute;8 in two, it is based on case law that interprets the state’s constitution.9

In 2006, the New Jersey Legislature unanimously amended the Wiretap Act to require service providers to disclose telephone records to law enforcement in response to a grand jury

subpoena. See L. 2005, c. 270 (codified as amended at N.J.S.A. 2A:156A-29(f) (2006)). The provision mirrors federal law. See 18 U.S.C.A. § 2703(c)(2). Because the amendment conflicts with the standard set in Hunt and Mollica, it has not been followed. It nevertheless reflects the Legislature’s view of what a reasonable expectation of privacy in this area calls for, and is entitled to respectful consideration. See Reid, supra, 194 N.J. at 401 (noting Legislature’s determination to protect against disclosure of ISP information).

The judicial branch, of course, has the obligation and the ultimate responsibility to interpret the meaning of the Constitution and the protections it requires. Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 12 (1960). Although the actions of other states may be informative, in the end we are guided by the language and history of the New Jersey Constitution.

We pause to underscore what this case is not about: the collection of bulk data from telephone service providers for large numbers of customers, over an extended period of time, by an agency that does not conduct criminal investigations. Much has been written about the recent efforts of the National Security Agency (NSA) to collect large amounts of telephone metadata on an ongoing basis. The Second Circuit recently found that the NSA’s program exceeded the scope of what Congress had authorized and violated the Patriot Act. See ACLU v. Clapper, 785 F.3d 787, 826 (2d Cir. 2015). New Jersey’s Attorney General stresses that the NSA program presents a “markedly different” practice that is “completely distinct” from the grand jury subpoena process.

We do not address or sanction the NSA’s practice in this opinion. The subpoena at the center of this appeal seeks two weeks of telephone billing records, for a single phone line, in connection with an ongoing criminal investigation. That is not the same as an effort by a non- law enforcement agency, acting outside the criminal arena, to obtain, aggregate, and retain bulk data about the use of telephone facilities by a large number of individuals.

We continue to believe that telephone billing records, bank records, and ISP subscriber information disclose private information that is entitled to constitutional protection. Our law, therefore, does not allow police officers simply to contact a service provider and ask for those records.

As we have noted before, the greater the degree of intrusion into an individual’s personal affairs, the greater the privacy concern. See Earls, supra, 214 N.J. at 587. We find that all three types of records reveal comparable amounts of private information and are similarly intrusive. Indeed, the language in Hunt, McAllister, and Reid contains similar themes and examples of the types of personal information that may be disclosed. See Hunt, supra, 91 N.J. at 347; McAllister, supra, 184 N.J. at 30-31; Reid, supra, 194 N.J. at 398-99. Because the privacy concerns in all three areas are similar, the records should receive comparable levels of protection. See Reid, supra, 194 N.J. at 404 (“[Records that] reveal comparably detailed information about one’s private affairs . . . are entitled to comparable protection under our law.”).

Defendant does not acknowledge the inconsistency in our case law. For that reason, he views the State’s petition as an effort to overturn Hunt. This appeal, however, viewed in the context of three decades of jurisprudence, is about reconciling and restoring consistency to a challenging area of law, which we have attempted to do.

Looking at the full spectrum of cases the Court has decided in recent decades, we conclude that the relevance standard adopted in McAllister and Reid appropriately protects individual privacy rights in telephone billing records and at the same time recognizes society’s legitimate interest in investigating criminal activities.

We also appreciate the possibility for abuse in this sensitive area. Hunt, supra, addressed that issue decades ago, 91 N.J. at 347, and it remains a concern today. We therefore retain direct judicial oversight as part of the process to obtain telephone billing records.

We direct that, going forward, the State must apply for a court order under N.J.S.A. 2A:156A- 29(e) to obtain telephone billing or toll records. In accordance with that statute, law

enforcement must demonstrate “specific and articulable facts showing that there are reasonable grounds to believe that” the records sought are “relevant and material to an ongoing criminal investigation.” N.J.S.A. 2A:156A-29(e). The requested records must cover a finite period of time which does not extend beyond the date of the order.

Judicial review of ex parte applications of this type will help guard against abuses in general and root out bulk requests for information that are unconnected to a criminal investigation. In addition, a judge may quash or modify an order “if the information or records requested are unusually voluminous,” among other reasons. Ibid.

IV.

For the reasons stated above, we affirm the trial court’s decision to quash the grand jury subpoena for telephone billing records. The State may apply for a court order to obtain those records in this case, consistent with the principles discussed above.

SUPREME COURT OF NEW JERSEY

A- 61 September Term 2014

075691

STATE OF NEW JERSEY,

Plaintiff-Appellant,

GARY LUNSFORD,

Defendant-Respondent.

JUSTICE LaVECCHIA and JUDGE CUFF (temporarily assigned), concurring and dissenting.

We concur in the judgment that affirms the trial court’s decision to quash the grand jury subpoena for telephone billing records. We respectfully dissent from the portion of the Court’s judgment that permits the State to apply for a court order to obtain those records based on the new procedures outlined in the Court’s opinion.

This appeal is about where one puts one’s marker on privacy. For the telephone billing records in issue in this matter, we place our marker where this Court placed it over thirty years ago in State v. Hunt, 91 N.J. 338 (1982). Hunt established a warrant requirement for police access to telephone billing records. The line of cases that began with Hunt and continued with State v. Mollica, 114 N.J. 329 (1989), and State v. Earls, 214 N.J. 564 (2013), should, in our view, include this appeal as part of that chain.

In Hunt, supra, this Court rejected United States Supreme Court precedent, believing that “[i]t is unrealistic to say that the cloak of privacy has been shed” because telephone billing records were disclosed to the telephone company and its employees. 91 N.J. at 347. Because of the wealth of information that they reveal, the Court said that telephone billing records are “part of the privacy package.” Ibid. As such, law enforcement could not obtain those records “without any judicial sanction or proceeding.” Id. at 348.

For us there can be no sincere question whether Hunt imposed a warrant requirement for access to telephone billing records that include information about calls sent, received, and the length of time spent on each such call. The Court unmistakably understood its own

precedent as requiring a warrant and not something less. See Chief Justice Robert Wilentz, The New Constitution, 49 Rutgers L. Rev. 887, 888 (1997) (stating, in speech delivered at Princeton University in 1985, “[W]e held that the state’s obtaining a defendant’s telephone bills without a warrant (order by a judge) simply by asking the telephone company to turn the bills over, or obtaining them in some other way without a warrant, constituted an unreasonable seizure under the New Jersey Constitution, rendering any evidence derived from those telephone bills inadmissible at trial”).

If it is arguable, at all, from the very language of Hunt itself, any doubt about the judicial process that the Hunt Court had in mind was cleared up by Mollica. That opinion began with this sentence: “In this case federal law-enforcement officers without a search warrant obtained hotel billing records relating to the use of an occupant’s room telephone.” Mollica, supra, 114 N.J. at 334 (emphasis added). The Court asked whether Hunt’s protection reached “transient accommodations, such as hotel rooms, and . . . hotel telephone toll records that are kept in the regular course of a hotel’s business to reflect for billing purposes the use of hotel- room telephones by guests.” Id. at 340-41.

The Court said that it did, declining “to endorse . . . a shallow constitutional distinction between a home on the one hand and motel rooms on the other.” Id. at 342 (quoting People v. Oliver, 338 N.W.2d 167, 173 (Mich. 1983)). That the hotel staff in addition to the telephone company “creat[ed] an extra circle of persons who have access to toll records for business purposes, [did] not alter this perception.” Id. at 343. Accordingly, this Court declared that government seizure of those records “is subject to the requirements of antecedent probable cause and the issuance of a search warrant.” Id. at 345 (emphasis added). In making that pronouncement, Mollica cited to Hunt’s language that telephone billing records were wrongfully obtained “without any judicial sanction or proceeding.” Ibid. That, in our view, nullifies any argument that “judicial sanction or proceeding” means anything other than a warrant supported by antecedent probable cause.

The State now argues that the warrant requirement should be tossed aside. According to the State, the warrant requirement is too burdensome. After all, a federal statute allows federal

officers to obtain telephone billing records on the strength of a grand jury subpoena, see 18 U.S.C.A. § 2703(c)(2), and so does a New Jersey statute that was designed to mimic the federal standard, see N.J.S.A. 2A:156A-29(f). Because federal authorities can obtain telephone billing records early in joint federal-state conspiracy investigations, and because those records will not be admissible in state court, the State contends that the option to prosecute any part of the case in state court is foreclosed. Our warrant requirement, in the State’s view, serves as a roadblock to joint federal-state investigations.

The difficulty with the State’s position is that it has been advanced before, thoroughly considered, and rejected. The warrant requirement was not some ill-considered aside by this Court. Writing for the Court in Mollica, Justice Handler was expressly aware of the practical implications that follow from imposing a warrant requirement under Article I, Paragraph 7 when none is required under the Fourth Amendment. Ironically for the State, Mollica is “the seminal case” on the issue. Wayne A. Logan, Dirty Silver Platters: The Enduring Challenge of Intergovernmental Investigative Illegality, 99 Iowa L. Rev. 293, 311 (2013).

When states, like New Jersey, began to impose more protective procedures under their state constitutions, it constituted a twist on the old “silver platter” doctrine. Before the Fourth Amendment applied to the states, evidence would pass from state officers -- unburdened by the Fourth Amendment -- to federal authorities on a silver platter. Mollica, supra, 114 N.J. at 346-47. But as judicial federalism gained a foothold, “evidence [could] now flow to state officers from federal officers governed by more lenient standards.” Id. at 351. The Mollica Court detailed the jurisdictional limits of a state constitution, which “ordinarily governs only the conduct of the state’s own agents or others acting under color of state law.” Id. at 345. Just as a state constitution does not constrain officers of other states, “state constitutions do not control federal action.” Id. at 352. Thus, it does not offend the New Jersey Constitution when an officer of another jurisdiction transfers criminal evidence to New Jersey law enforcement, so long as that out-of-state officer obtained the evidence lawfully and independent of New Jersey authorities. Id. at 353.

Applying those principles to the case at hand, the Mollica Court explained that the telephone billing records “were obtained by federal agents exercising federal authority in a manner that was in conformity with federal standards and consistent with federal procedures.” Id. at 354. Once legally seized, nothing prevented the federal agents from turning over the telephone record evidence to state authorities, even if its seizure violated state constitutional standards. Id. at 355. But that turnover was subject to a “vital” limitation: “When such evidence is sought to be used in the state, it is essential that the federal action deemed lawful under federal standards not be alloyed by any state action or responsibility.” Ibid.

Mollica’s holding and analysis remained tethered to Hunt’s warrant requirement, mindful of the burdens that the warrant requirement would impose on joint federal-state investigations. See id. at 356 (recognizing that “antecedent mutual planning, joint operations, cooperative investigations, or mutual assistance between federal and state officers may sufficiently establish agency and serve to bring the conduct of the federal agents under the color of state law”). Thus, when it comes to telephone billing records, our Court in Hunt and Mollica could not have been clearer: A warrant supported by probable cause is required. And, equally clear is this: The Court knew precisely the burdens that a warrant requirement for telephone billing records would impose on joint federal-state investigations.

Mollica addressed the prime concern that, the State now asserts, renders the warrant requirement unworkable, namely that federal officers can obtain telephone billing records before their state counterparts. To us, Hunt resolved the issue. And Mollica reaffirmed it. Both treated the privacy interest in telephone billing information equally, and the privacy interests were not place-based. In each, the Court demanded a probable cause showing and review by a judicial officer before the State could trench on the private matters disclosed through the telephone billing records. Certainly, the warrant requirement and its probable cause standard might impede joint federal-state operations, but the privacy interest was great enough, in our Court’s view, to justify that impediment.

That was our law, our proud law. The State’s argument does not justify tossing aside the standard that has governed in this State for more than thirty years. In any case where this Court

imposes a warrant requirement under Article I, Paragraph 7, and that requirement is lacking under federal law, federal law enforcement officers will be able to proceed more quickly than their New Jersey counterparts. Federal officers may choose not to wait for a warrant, and that will mean that, in cooperative investigations, the seized evidence will be inadmissible in a New Jersey prosecution. That is a necessary and established consequence of doing business under a privacy-protective state constitution. The State’s recycling of the same complaints about that consequence does little to advance its argument that Hunt is “unworkable in practice.”

II.

The State also asserts that New Jersey is an outlier, a fringe jurisdiction. It argues that law enforcement can obtain telephone billing records almost everywhere else on the authority of a grand jury subpoena grounded in a relevancy finding, but we require a warrant.

In our view, that argument sets a false equivalency. The starting point for any nationwide comparison is not all fifty states but those states that have departed -- like we have -- from Fourth Amendment law that holds that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743- 44, 99 S. Ct. 2577, 2582, 61 L. Ed.2d 220, 229 (1979); see alsoUnited States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 1624, 48 L. Ed.2d 71, 79 (1976). Only about eleven states have done so. See Stephen E. Henderson, Learning from All Fifty States: How to Apply the Fourth Amendment and Its State Analogs to Protect Third Party Information from Unreasonable Search, 55 Cath. U. L. Rev. 373, 376 (2006). It is thus entirely unsurprising that most states require only a grand jury subpoena. That simply mirrors the federal standard. In those states, there is no protectable privacy interest in telephone billing records under either the Fourth Amendment or the state constitution’s search-and-seizure provision; accordingly, it should be easier for law enforcement to obtain those records.

Once the comparison point is properly cut down, the analysis is more balanced. In some states, like ours, that have rejected the third-party doctrine, and have in turn found a protectable privacy interest in certain telephone records, a warrant supported by probable cause is required

before the government can access such information. See, e.g., State v. Rothman, 779 P.2d 1, 7 (Haw. 1989) (recognizing expectation of privacy in “telephone numbers [persons] call on their private lines” and requiring government to obtain warrant before “tap[ping] . . . private telephones to obtain such information, or requir[ing] the telephone company to supply such information”); State v. Thompson, 760 P.2d 1162, 1167 (Idaho 1988) (“Since there was no warrant based on probable cause for the installation and use of the pen register in this case, the information obtained by its use should have been excluded from the determination of probable cause for the issuance of the wiretap orders.”); State v. Gunwall, 720 P.2d 808, 813 (Wash. 1986) (holding that Washington Constitution “prevent[s] the defendant’s long distance home telephone records from being obtained from the phone company, or a pen register from being installed on her telephone connections, without a search warrant or other appropriate legal process first being obtained”). In others, however, a subpoena bounded by a relevancy standard may do the job, at least in the grand jury context. See People v. Mason, 989 P.2d 757, 761-62 (Colo. 1999).

In its rush to resolve what it views as a tension in our case law, the majority creates another one. Presumably after this appeal, the State will still use a communications data warrant to install a pen register or a trap-and-trace device so that it can track, in real time, calls made and received. Although some courts have recognized a distinction between real-time and historical data, we have not. See Hunt, supra, 91 N.J. at 344 (“The expectation of privacy in a pen register, both subjectively and objectively, is substantially similar to that in toll billing records.”); see also People v. Larkin, 239 Cal. Rptr. 760, 762 (Ct. App. 1987) (“A pen register, providing information about outgoing and incoming calls, involves the same privacy rights as toll information in phone company records.”); Stephen E. Henderson, Beyond the (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, and the Rest of Us Too, 34 Pepp. L. Rev. 975, 1016 (2007) (“[T]he acquisition of telephone numbers dialed in real time via a pen register is equivalent to the acquisition of those numbers from a telephone company record. Therefore, the constitutional restraint on government access should be identical. Both processes acquire the same information, and it is no more invasive to have information captured in real time.”).

Notably, this Court’s decision in Earls, supra, did not draw a distinction between a real- time request for cell-site information and historical data. 214 N.J. at 588. And such a distinction can prove highly superficial. For data to be historical, it need not be far removed in time. When a law enforcement officer requests a cellular provider to relay a target’s telephone records in hour- by-hour intervals, it is technically a request for historical records. Any delay -- no matter how short -- can turn data into historical data. See State v. Perry, 776 S.E.2d 528, 535 (N.C. Ct. App. 2015) (calling location information “historical” when “evidence show[ed] AT&T emailed the delayed recorded information to [law enforcement] every fifteen minutes”).

The incongruity we see in the outcome reached by the majority, at the State’s urging, is that, under the majority’s new holding, to follow a suspect’s telephone activity as it happens requires a judicial warrant based on probable cause. But if the police want the suspect’s telephone records two or three minutes after the call is completed, a warrant based on probable cause is not necessary. It is not the move from a warrant to a judicially reviewed subpoena that is the most troubling. After all, a subpoena is a commonly used device to request documents. It is the lessening of the standard from probable cause to relevancy. Now a watered-down grand jury subpoena will suffice for telephone billing records, so long as there is judicial oversight to ensure that a relevancy standard is met, somehow, for the particular investigation. Because relevancy sweeps broadly, particularly at the beginning stages of a criminal investigation, one must ask what exactly is the point then of an Article I, Paragraph 7 privacy interest. Relevance governs the breadth of a grand jury’s subpoena power anyway. Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 1:9-2 (2015) (“With respect to grand jury investigations, relevance continues to constitute the standard for appropriate issuance of a subpoena duces tecum . . . .”).

In reaching its conclusion, the majority places a good deal of weight on this Court’s decision in State v. McAllister, 184 N.J. 17, 32-33 (2005), in which the Court recognized an Article I, Paragraph 7 privacy interest in bank records. That interest was protected by only a grand jury subpoena based on a relevancy standard. Id. at 36. Next in line was State v. Reid, 194 N.J. 386 (2008). There, the Court determined that subscriber information held by an Internet

Service Provider was also protected by the New Jersey Constitution. Id. at 399. Pointing to McAllister, the Court said a grand jury subpoena was sufficient to protect that interest. Id. at 403-04.

From those cases, the majority sees a need to make our privacy law jurisprudentially consistent. Hunt, it says, is out of tune with the rest of our law. To accomplish that, the majority drops the level of protection for telephone records and says that for those records a relevancy standard is more than enough. Because McAllister and Reid held a grand jury subpoena sufficient, we should do the same here. We disagree.

In our view, the State benefited in McAllister from the reality of a reduced expectation of privacy that bank records have due to the well-known regulatory review and reporting requirements on transactional behavior. 31 U.S.C.A. § 5313(a) grants the Secretary of the Treasury broad authority to prescribe when domestic financial institutions involved in monetary transactions must “file a report on the transaction.” See also 31 C.F.R. § 1010.311 (“Each financial institution other than a casino shall file a report of each deposit, withdrawal, exchange of currency or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $ 10,000, except as otherwise provided[.]”). The Treasury Secretary may, moreover, “require any financial institution, and any director, officer, employee, or agent of any financial institution, to report any suspicious transaction relevant to a possible violation of law or regulation.” 31 U.S.C.A. § 5318(g)(1); see also 31 C.F.R. § 1020.320(a)(1) (enforcing that requirement). The Court’s lesser concern with bank customer privacy expectations and rights was registered by its willingness to allow subpoenas without prior notice to the target. McAllister, supra, 184 N.J. at 42.

That lesser concern with privacy rights is a far cry from the traditional respect shown to telephone records and suggests that bank records should be regarded as the outlier case, not Hunt or Mollica. Reid relied on McAllister in the new world of internet subscriber information. Given its limited scope -- the State concedes that a search warrant is required to gain access to a full internet search history -- Reid should hardly be regarded as the “new” assessment of privacy rights historically respected in this State. Nothing in

either McAllister or Reid suggests that we intended to turn the entirety of our privacy law on its head.

It is particularly perplexing that the Court holds as it does now, at a time when we are more dependent on our telephones than ever before. We are in contact all the time through cell phones. And the associational concerns that drove Hunt, and were present in Earls too, are no less weighty today. See Hunt, supra, 91 N.J. at 351-52 (Pashman, J., concurring); Earls, supra, 214 N.J. at 586. Our jurisprudence now protects, through a warrant requirement, the location of those phones but not who we are calling or who is calling us. The majority asserts that it is striving for consistency in our jurisprudence as justification for tossing aside Hunt and Mollica. To us, consistency is to be found in answering the question here in the same way we have dealt with the protection of privacy interests in telephone information in Hunt, Mollica, and Earls. A warrant issued on the basis of probable cause should remain the prerequisite to access telephone billing records. This case should have been an unremarkable application of a consistent line of cases addressing law enforcement access to private telephone records.

III.

In sum, even if we are an outlier compared to those jurisdictions that allow law enforcement access to telephone billing records through means short of a warrant issued on probable cause, that alone is not a reason to change our law. This Court has been a leader in privacy rights, proudly proclaiming that Article I, Paragraph 7 is not simply “a procedural matter” but “a reaffirmation of the privacy rights guaranteed to our citizens and of our duty as judges to secure them.” State v. Eckel, 185 N.J. 523, 540 (2006). It did not bother us that we were an outlier in Hunt. And it did not bother us that we were an outlier in Mollica. Why then should it bother us now? So fixated on aligning our state jurisprudence with the federal standard, we fear the State, and now the majority, has sacrificed our law for the sake of that uniformity. We are unpersuaded that any legitimate basis for overturning our precedent -- for that is what is happening here no matter how the analysis is dressed up -- is present here.

Accordingly, we respectfully dissent.

1 The United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. amend. IV. Article I, Paragraph 7 of the New Jersey Constitution contains nearly identical language.

2 Grand jury investigations, in practice, are directed by the prosecutor, who ordinarily proposes witnesses to be called and issues subpoenas in the grand jury’s name. See In re Grand Jury Subpoena Issued to Galasso, 389 N.J. Super. 281, 293 (App. Div. 2006). But “[t]he grand jury is a judicial, investigative body, serving a judicial function; it is an arm of the court, not a law enforcement agency or an alter ego of the prosecutor’s office.” In re Grand Jury Appearance Request by Loigman, 183 N.J. 133, 141 (2005). The grand jury also operates under the authority of the Judiciary. See McAllister, supra, 184 N.J. at 42-43 (noting Supreme Court’s supervisory authority over grand juries); State v. Murphy, 110 N.J. 20, 31-33 (1998) (discussing statutory responsibility of Court to promulgate rules and regulations governing State grand juries); N.J.S.A. 2B:22-5 (authorizing Chief Justice to designate judges to “maintain judicial supervision over the grand jury”).

3 Nowhere does McAllister suggest that customers have a reduced expectation of privacy because of federal reporting requirements for certain large cash transactions. See post at __-__ (slip op. at 12-14). Nor would that logically follow. To the extent that account holders realize that a cash transaction of more than $10,000 should result in the filing of a currency transaction report, how would that affect their reasonable expectation of privacy in the countless non-cash transactions that appear in their bank statements? McAllister specifically focused on the latter, more revealing, transactions.

4 The Court in McAllister declined to require the State to give notice to the target of the grand jury’s investigation and invited the Criminal Practice Committee to further study “the benefits and burdens of enhanced protections for bank records.” Id. at 42-43. The Criminal Practice Committee later surveyed prosecutors and defense counsel and concluded that the subpoena process, without notice, struck “a fair balance between an account holder’s right to privacy and the legitimate needs of law enforcement to investigate alleged criminal activity.” Report of the Supreme Court Criminal Practice Committee 2007-2009 Term at 133-34 (Feb. 17, 2009).

5 The subpoena in Reid sought subscriber information, not the subscriber’s Internet search or browsing history. The State has not argued in this appeal that a grand jury subpoena would be sufficient to obtain the latter kind of information, which would directly reveal content.

6 The dissent focuses on pen registers. Unlike toll billing records, which present a list of phone numbers dialed after the fact, a pen register tracks each call as it is made. Law enforcement officials who monitor a pen register get real-time information about all local and long distance numbers dialed, including calls that are not completed. See State v. Feliciano, ___ N.J. ___, ___ (2016) (slip op. at 4 n.1). Pen registers thus disclose current activity, around the clock, in a manner that reveals more than toll billing records.

A number of jurisdictions, in fact, require law enforcement to meet a heightened standard to obtain a pen register, as compared to toll billing records. See, e.g., State v. Thompson, 760 P.2d 1162, 1168 (Idaho 1988) (pen register), Idaho Code Ann. § 19-3004A (2016) (billing records); In re Original Investigation, Special Grand Jury, 402 N.E.2d 962, 964 (Ind. 1980) (pen register), In re Order for Ind. Bell Tel. to Disclose Records, 409 N.E.2d 1089, 1090-91 (Ind. 1980) (billing records), overruled in part on other grounds by S.H. v. State, 984 N.E.2d 630 (Ind. 2013); Dist. Attorney for Plymouth Dist. v. New England Tel. & Tel. Co., 399 N.E.2d 866, 868-70 (Mass. 1980) (pen register), Commonwealth v. Vinnie, 698 N.E.2d 896, 909-10 (Mass.), cert. denied, 525 U.S. 1007, 119 S. Ct. 523, 142 L. Ed.2d 434 (1998) (billing records); Mont. Code Ann. § 46-4-403 (2016) (pen register), Hastetter v. Behan, 639 P.2d 510, 512-13 (Mont. 1982) (billing records); Commonwealth v. Mellili, 555 A.2d 1254, 1258-59 (Pa. 1989) (pen register), 18 Pa. Cons. Stat. § 5743 (2016) (billing records); but see Hunt, supra, 91 N.J. at 344.

7 See Henderson v. State, 583 So. 2d 276, 291-92 (Ala. Crim. App. 1990); Ariz. Rev. Stat. § 13-3018 (2016); State v. Hamzy, 709 S.W.2d 397, 398-99 (Ark. 1986); Conn. Gen. Stat. § 54-47aa (2016); Del. Code Ann. tit. 11, § 2423(c) (2016); Gibbs v. State, 479 A.2d 266, 272 (Del. 1984); Fla. Stat. Ann. § 934.23(4) (2016); Figueroa v. State, 870 So. 2d 897, 901 (Fla. Dist. Ct. App. 2004); Kesler v. State, 291 S.E.2d 497, 504 (Ga. 1982); Idaho Code Ann. § 19-3004A (2016); People v. DeLaire, 610 N.E.2d 1277, 1282- 83 (Ill. App. Ct.), appeal denied, 616 N.E.2d 340 (Ill. 1993); In re Order for Ind. Bell Tel. to Disclose Records, 409 N.E.2d 1089, 1090 (Ind. 1980); State v. Schultz, 850 P.2d 818, 829-30 (Kan. 1993); State v. Marinello, 49 So. 3d 488, 507-10 (La. Ct. App. 2010), cert. denied, 61 So. 3d 660 (La. 2011); Me. Rev. Stat. Ann. tit. 5, § 200-B(2) (2016); Md. Code Ann., Crim. Proc. § 15-108(a) (2016); Mass. Ann. Laws ch. 271, § 17B (2016); Commonwealth v. Vinnie, 698 N.E.2d 896, 909-10 (Mass. 1998); Minn. Stat. Ann. § 388.23 (2016); Fraise v. State, 17 So. 3d 160, 163-64 (Miss. Ct. App. 2009) (non- narcotics case); Hastetter v. Behan, 639 P.2d 510, 511 (Mont. 1982); Neb. Rev. Stat. Ann. § 86-2,106 (2016); State v. Knutson, 852 N.W.2d 307, 319-20 (Neb. 2014), cert. denied, U.S. , 135 S. Ct. 1505, 191 L. Ed. 2d 442 (2015); N.H. Rev. Stat. Ann. § 7:6-b (2016); State v. Gubitosi, 886 A.2d 1029, 1034-36 (N.H. 2005); People v. Di Raffaele, 433 N.E.2d 513, 516 (N.Y. 1982); N.C. Gen. Stat. § 15A-298 (2016); N.D. Cent. Code Ann. § 51-34-04 (2016); State v. Lind, 322 N.W.2d 826, 836-37 (N.D. 1982); State v. Neely, 2012-Ohio-212, ¶¶ 16-26 (Ohio Ct. App. 2012); State v. Johnson, 131 P.3d 173, 183-84 (Or. 2006); 18 Pa. Cons. Stat. Ann. § 5743 (2016); State v. McGoff, 517 A.2d 232, 234 (R.I. 1986); State v. King, 772 S.E.2d 189, 197 (S.C. Ct. App. 2015); Tenn. Code Ann. § 24-7-116 (2016); Tex. Code Crim. Proc. Ann. art. 18.21, Sec. 5 (2016); Utah Code Ann. § 77-23b-4 (2016); Am. Fork City v. Smith, 258 P.3d 634, 636 (Utah Ct. App. 2011); Va. Code Ann. § 19.2-70.3 (2016); State v. Clark, 752 S.E.2d 907, 921 (W. Va. 2013); Saldana v. State, 846 P.2d 604, 611-12 (Wyo. 1993); see also Williams v. Commonwealth, 213 S.W.3d 671, 683 (Ky. 2006) (embracing third-party doctrine generally); State v. Plunkett, 473 S.W.3d 166, 175-76 (Mo. Ct. App. 2015) (same); State v. Rolfe, 825 N.W.2d 901, 910 (S.D. 2013) (following third-party doctrine for ISP records); State v. Simmons, 27 A.3d 1065, 1070 n.5 (Vt. 2011) (noting no history of rejecting third-party doctrine); but see Miss. Code. Ann. § 41-29-536 (2016) (probable cause standard for narcotics cases). The State canvassed other Attorneys General and

represents that prosecutors in New Mexico use subpoenas to obtain telephone billing records.

8 Cal. Penal Code § 1524.3 (2016); Mich. Comp. Laws Serv. § 767A.3 (2016); Wis. Stat. Ann. § 968.375 (2016).

9 See People v. Corr, 682 P.2d 20, 26-28 (Colo. 1984); State v. Eisfeldt, 185 P.3d 580, 585 (Wash. 2008). The State represents that prosecutors in Alaska and Nevada use search warrants to obtain telephone billing records; notwithstanding the authority cited above in note 7, prosecutors in South Carolina and Wyoming reportedly do so as well.

SYLLABUS

Michael J. Thieme v. Bernice F. Aucoin-Thieme (A-51-15) (076683)

Argued September 26, 2016 -- Decided December 12, 2016

Patterson, J., writing for a unanimous Court.

In this appeal, the Court construes New Jersey’s equitable distribution statute, N.J.S.A. 2A:34-23(h) and -23.1, and considers the equitable remedy of a constructive trust, in the setting of a post-judgment dispute with respect to deferred compensation.

Although Thieme held no ownership interest in the firm, the firm’s principals offered to compensate him for his contributions to the firm’s success, in the event that they sold the firm. Thieme and Aucoin-Thieme determined that, given the demanding nature of Thieme’s schedule, Aucoin-Thieme would not pursue employment, but rather would care for their daughter, maintain their residence, and manage their rental properties.

The couple’s relationship was volatile from its inception, and Thieme and Aucoin- Thieme would frequently exchange angry emails. At the end of one such exchange in 2010, Thieme explicitly acknowledged in an email that Aucoin-Thieme had given up her own career and educational aspirations so that Thieme could pursue his—which Thieme described as a “great sacrifice”—and noted that “it is appropriate that I support you fully in recognition of this sacrifice.” Later that year, Thieme and Aucoin-Thieme wed. They filed for divorce fourteen months later. In the course of negotiations about the division of their assets, Thieme reiterated his view that Aucoin-Thieme would be entitled to a portion of any bonus he received upon the sale of the firm.

2 In April 2012, Thieme and Aucoin-Thieme executed their Property Settlement Agreement. Three months after the entry of their judgment of divorce, the firm was sold and Thieme was offered a one-time Closing Bonus of $2,250,000. Thieme did not inform Aucoin- Thieme of the Closing Bonus. She first learned of the Bonus when Thieme deposited $200,000 into a bank account that, unbeknownst to Thieme, remained a joint account despite the divorce. With no notice to Thieme, Aucoin-Thieme withdrew the deposited funds. Thieme filed a complaint.

After a three-day bench trial, a Family Part judge determined that Thieme earned the Closing Bonus over his entire employment with the firm and that Aucoin-Thieme was entitled to thirty percent of the post-tax portion of the Bonus earned during their fourteen-month marriage. The court awarded $30,288, to Aucoin-Thieme and ordered her to return the remaining amount that she had withdrawn from the joint account, totaling $169,712, to Thieme.

Aucoin-Thieme appealed, asserting that she was also entitled to a share of the Closing Bonus for the period during which she cohabitated with Thieme prior to marriage under both the equitable distribution statute and equitable theories including unjust enrichment and constructive trust. In an unpublished opinion, an Appellate Division panel affirmed the trial court’s judgment, substantially for the reasons stated by the trial judge.

The Court granted Aucoin-Thieme’s petition for certification. 224 N.J. 245 (2016).

HELD: N.J.S.A. 2A:34-23(h) authorizes the equitable distribution of Thieme’s Closing Bonus only to the extent that the compensation was earned during the parties’ marriage because, under that statute, the property to be divided is that which was earned, or otherwise acquired, during a marriage or civil union. The Court holds, however, that the extraordinary circumstances of this case warrant the imposition of a constructive trust as a remedy for Aucoin-Thieme’s claim of unjust enrichment and that Aucoin-Thieme is entitled to a percentage of the portion of the Closing Bonus earned during the parties’ cohabitation.

1. The equitable distribution statute authorizes the Family Part to distribute assets “in all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple is entered.” N.J.S.A. 2A:34-23(h). The statute reflects the public policy recognition that marriages and civil unions are joint undertakings similar to partnerships. (pp. 17-18)

2. The equitable distribution statute does not govern disputes over property between parties who have cohabited but have never entered into a marriage or civil union, nor does it treat

property acquired during a period of cohabitation prior to a marriage or civil union as equivalent to property acquired during that marriage or civil union. (pp. 19-22)

3. The Court agrees with the trial court and Appellate Division that if the portion of Thieme’s Closing Bonus that was earned prior to the marriage were held to be a marital asset, such a ruling would contravene the plain language of N.J.S.A. 2A:34-23(h). The Court holds that the trial court correctly allocated the distribution of Thieme’s Closing Bonus to premarital and marital periods, and properly deemed only the portion of the compensation that was earned during the parties’ marriage to be a marital asset subject to equitable distribution. (pp. 22-23)

4. Having rejected Aucoin-Thieme’s claim for equitable distribution of the portion of the Closing Bonus allocated to the period prior to the parties’ marriage, the Court turns to her claims based on equitable principles. The Court notes that the Family Part is a court of equity, and that “[e]quities arise and stem from facts which call for relief from the strict legal effects of given situations.” Carr v. Carr, 120 N.J. 336, 351 (1990). (pp. 23-24)

5. To prove a claim for unjust enrichment, a plaintiff must demonstrate that the defendant received a benefit and that it would be unjust for the defendant to retain that benefit without compensating the plaintiff. In the event that a court finds unjust enrichment, it may impose a constructive trust. (pp. 24-25)

6. In Carr, the plaintiff’s statutory claim that she was entitled to the equitable distribution of assets owned by her husband failed because the husband died during their protracted divorce proceedings, such that no judgment of divorce was entered. Notwithstanding this failure, the Court affirmed the imposition of the equitable remedy of constructive trust because the estate’s retention of “the share beneficially belonging to Mrs. Carr” could give rise to unjust enrichment. Carr, supra, 120 N.J. at 353-54. (pp. 25-27)

7. The principles expressed in Carr apply with equal force to this appeal and warrant the imposition of a constructive trust governing a portion of Thieme’s Closing Bonus in the unusual circumstances of this case. The firm’s acknowledgment that Thieme would be generously compensated upon the sale of the company was a significant factor in the parties’ personal and financial planning from the early stages of their relationship. Thieme firmly opposed any suggestion that he pursue less demanding employment and take on a more active role in their daughter’s care so that Aucoin-Thieme could seek a job. Aucoin-Thieme’s efforts enabled Thieme to focus almost exclusively on the firm, and thus supported his career. Indeed, Thieme himself explicitly recognized that Aucoin-Thieme’s contributions to their family should be rewarded and that his obligation to financially support Aucoin-Thieme implicated, to some extent, any compensation that he would receive if the company were sold. (pp. 27-30)

8. Under these facts, a decision constraining Aucoin-Thieme to the nominal share of the Closing Bonus that is authorized by the equitable distribution statute would result in unjust enrichment. As a remedy, a percentage of the portion of the Closing Bonus that was earned by Thieme during the period in which the parties cohabited prior to their marriage should be deemed to be held by Thieme in constructive trust for Aucoin-Thieme. The Court directs the trial court on remand to determine the specifics of that constructive trust. (pp 30-31)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the matter is REMANDED to the Family Part for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ- VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion.

SUPREME COURT OF NEW JERSEY

A- 51 September Term 2015

076683

MICHAEL.J. THIEME,

Plaintiff-Respondent,

BERNICE F. AUCOIN-THIEME,

Defendant-Appellant.

3 Argued September 26, 2016 – Decided December 12, 2016

On Certification to the Superior Court, Appellate Division.

Michael J. Confusione argued the cause for appellant (Hegge & Confusione, attorneys).

Linda M. Coronato argued the cause for respondent.

JUSTICE PATTERSON delivered the opinion of the Court.

Plaintiff Michael J. Thieme (Thieme) and defendant Bernice F. Aucoin-Thieme (Aucoin-Thieme) were briefly married after an eight-year cohabitation. Before and during the marriage, Thieme was a salaried employee of a biotechnology consulting business, International Biometrics Group (IBG). Although Thieme had no ownership interest in IBG, its principals committed in writing to compensate him for his contributions to IBG’s success, in the event that they sold their company. Thieme and Aucoin-Thieme made personal and financial decisions with the expectation that if IBG were sold, Thieme would receive substantial compensation. Thieme worked long hours and traveled extensively on IBG’s behalf; Aucoin-Thieme devoted her attention to their child and home and did not seek employment. IBG, however, was not sold during the parties’ marriage.

When Thieme and Aucoin-Thieme divorced, they agreed upon the terms of a Property Settlement Agreement (PSA), and their assets were divided in accordance with its terms. Three months after the Family Part’s entry of a judgment of divorce, IBG was sold. IBG paid Thieme $2.25 million, characterized as a “Closing Bonus” (the Closing Bonus or the Bonus), granted in compensation for his contributions to the business for more than a decade of service.

In post-judgment proceedings before a Family Part judge, Aucoin-Thieme sought a share of the Closing Bonus. After a bench

trial, the trial judge ruled that Aucoin-Thieme was entitled to equitable distribution; however, the equitable distribution was limited to the portion of Thieme’s Closing Bonus that was attributable to his work during the parties’ marriage and excluded any share of the remainder of that compensation. The Appellate Division affirmed the trial court’s determination.

We affirm in part and reverse in part the Appellate Division’s judgment. We concur with the trial judge and the Appellate Division that N.J.S.A. 2A:34-23(h) authorizes the equitable distribution of Thieme’s Closing Bonus only to the extent that the compensation was earned during the parties’ marriage. We hold, however, that the extraordinary circumstances of this case warrant the imposition of a constructive trust as a remedy for Aucoin-Thieme’s claim of unjust enrichment, and that Aucoin- Thieme is entitled to a percentage of the portion of the Closing Bonus that Thieme earned during the parties’ cohabitation. We remand this case to the trial judge for an allocation of the deferred compensation.

We derive our summary of the facts from the trial record.

3 In 1999, Thieme was hired by a longtime friend, Raj Nanavati, to be the first employee of IBG, a company that Raj Nanavati founded with his brother, Samir Nanavati. IBG was a start-up biometrics consulting firm. It provided security services, including fingerprinting and facial identification technology, to businesses. Thieme began his employment with IBG as a consultant and later was assigned the title “Director of Special Projects.”

From the inception of his employment at IBG, Thieme worked “non-stop” for the company; he devoted between ninety and one hundred hours per week to his job. He traveled to sixty countries in the course of his employment and was away from home for extended periods. Thieme was not given stock or any other ownership interest in the company. He was initially paid a salary of approximately $40,000 per year, and his salary eventually reached $180,000 per year.

Aucoin-Thieme was a resident of Mississippi, working for a rental car company, when she was introduced to Thieme by his sister in late 2000 or early 2001. A few months later, Aucoin- Thieme moved to Jersey City, where she temporarily lived in an apartment that Thieme shared with his sister. Aucoin-Thieme and Thieme began dating. During that period, Aucoin-Thieme held a series of jobs in retail businesses.

3 In May 2002, Aucoin-Thieme discovered that she was pregnant. According to Aucoin-Thieme, she and Thieme put money aside for a wedding that would follow their child’s birth, but delayed their marriage because they needed to spend the money on other priorities. Thieme testified that they discussed marriage only “in the abstract” at that time, and made no definite plans. They moved into an apartment in Jersey City shortly after they learned of Aucoin-Thieme’s pregnancy.

That month, Thieme approached IBG’s owners about his position and compensation at the company. He drafted and sent to IBG’s owners a document entitled “Statement of Understanding,” which provided:

It is the intention of Raj Nanavati and Samir Nanavati, partners of International Biometric Group, LLC, that Michael Thieme, Director of Special Projects, be provided with remuneration and compensation commensurate with his past and present role in the execution and delivery of IBG products and services, enabling company revenue and employee growth, and enhancing IBG’s position as the industry’s leading provider of biometric consulting and integration services.

Such remuneration and compensation will be above and beyond monies already paid in the form of regular salary and bonus.

The form and relative amount of remuneration and compensation are to be determined at a later date, and are anticipated to be commensurate with Mr. Thieme’s relative value to IBG since his employment in November 1999, reflective of the unwritten and non-explicit agreement between Mr. Thieme and Raj Nanavati and Samir Nanavati to this effect.

This remuneration and compensation may take the form of an equity position in IBG, or in a company or venture principally formed through, with, or by IBG, prior or subsequent to acquisition, liquidation, major partnership, or substantive change in ownership or corporate structure. In lieu of any such development, this remuneration and compensation may also take the form of salary or other tangible method of compensation.

A copy of this statement will be placed in Mr. Thieme’s permanent employee file.1

Raj Nanavati testified that he and his brother executed the Statement of Understanding with the “understanding if we sell the company, or cash out, we will take care of [Thieme]. We will give [Thieme] something extra.” Thieme, however, testified that he considered the Statement of Understanding to be unenforceable because it did not quantify the proposed compensation. Thieme and Aucoin-Thieme dispute whether Aucoin-Thieme was aware of the Statement of Understanding during that period; he contends that he informed her about it, and she denies that he did so.

Shortly thereafter, Aucoin-Thieme left her retail position. She testified that she did so because she was concerned about the impact of her job and long commute on her pregnancy. The parties’ daughter was born in January 2003.

Before and after their child’s birth, the parties discussed the division of responsibilities in their personal and professional lives. Although Aucoin-Thieme hoped to pursue a career, Thieme and Aucoin-Thieme agreed that she would not seek a job outside the home, but would take care of their daughter and maintain their residence, as he continued to work on a demanding schedule. Thieme characterized this agreement as a “trade off” that enabled the parties to live on his salary, in light of their shared view that his earning capacity substantially exceeded hers. He recalled that the parties agreed that a return to work would not be cost-effective for Aucoin- Thieme because, if she obtained a job, they would incur significant expenses for child care. With the exception of a brief per diem job as a substitute teacher at her daughter’s

preschool, Aucoin-Thieme was not employed outside the home after the birth of the child.

According to Aucoin-Thieme, in addition to caring for her daughter and performing nearly all of the household tasks, she conducted minor repairs on the home, paid the bills, and managed the parties’ rental properties. The parties dispute the extent of Aucoin-Thieme’s assistance in the advancement of Thieme’s career. She contends that she actively participated in social activities connected with his job, and he denies that his employment involved significant social obligations.

3 In 2006, IBG’s owners conducted what Thieme characterized as “very preliminary discussions” with a biometric vendor about the potential sale of the business. According to Aucoin-Thieme, Thieme told her at that time that he had a contract that would entitle him to share in the proceeds of any sale, and the parties bought a new home in anticipation of that compensation. The discussions, however, did not lead to a sale of IBG. Shortly thereafter, Thieme, Aucoin-Thieme, and their daughter moved to Virginia so that Thieme could oversee an important government contract for IBG. They remained in Virginia for approximately three years and moved back to New Jersey in 2009.

The parties’ relationship, volatile from its inception, deteriorated following their return to New Jersey. The primary focus of their dispute was Thieme’s employment at IBG. Aucoin- Thieme resented Thieme’s work hours and disliked the owners of the company. At various times, Thieme and Aucoin-Thieme accused one another of verbal and physical abuse, often using e-mail to exchange angry communications.

At the conclusion of a series of acrimonious e-mails written in July 2010, Thieme wrote:

This email is an acknowledgment that you have had to give up your career and educational aspirations in order to stay at home with [our daughter] while I worked and pursued my career. You have put your career aside so I could advance mine. I understand that this has been a great sacrifice for me and for our family. I also understand that in the future, regardless of our circumstances, it is appropriate that I support you fully in recognition of this sacrifice.

In an e-mail discussion about a potential settlement of their dispute with the assistance of legal counsel, written after Aucoin-Thieme threatened to move to Mississippi with their daughter, Thieme advised Aucoin-Thieme that her counsel would “be shocked as to how much money I will give you,” but that he needed “to have the situation with my daughter resolved.”

Notwithstanding their frequent discord and vitriolic e-mail exchanges, Thieme and Aucoin-Thieme married in August 2010. Although the parties agree that their marriage began on a positive note, their relationship worsened shortly after their wedding. According to Thieme, Aucoin-Thieme’s demands that he shorten his hours and respond immediately to e-mail messages that she sent to him during the workday imperiled his job at IBG.

The parties’ conflict reached a critical point in October 2011. In the wake of a dispute over e-mails that Thieme exchanged with a co-worker, Aucoin-Thieme sent a series of

inflammatory e-mails about Thieme to IBG’s owners and employees. In the e-mails, Aucoin-Thieme contended that she had a video of an altercation between the two in the presence of their daughter. She called the company’s owners disparaging names and demanded that they pay her money that she insisted was owed to her. Aucoin-Thieme then sent an e-mail to Thieme, asking whether he was “ready to give [her] a divorce” in the wake of that episode.2

Only fourteen months after the parties’ wedding, Thieme filed a complaint for divorce in the Family Part. With the assistance of counsel, Thieme and Aucoin-Thieme negotiated the equitable distribution of their assets, alimony, child support, and the custody of their child.

During their negotiations, the parties communicated by e- mail about the prospect that IBG would pay deferred compensation to Thieme. Thieme advised Aucoin-Thieme that he did not “expect to get any large lump-sum bonuses,” but that “if some magical $50K bonus appeared, then I’d wind up clearing $30K, and we can make some arrangement - e.g. split it 50/50?” A week later, Thieme confirmed to Aucoin-Thieme that, notwithstanding their “discussions . . . about me someday getting an ownership stake [in IBG],” he had “no idea if it will ever happen, or how it will be structured, or the value.” He added that IBG’s grant of an ownership interest “may never happen. It will certainly not happen anytime soon.” In another e-mail, Thieme added that any stake in IBG awarded to him “would be defined, probably, as stocks,” and that he did not anticipate “a big cash payment.”

Thieme also asked Aucoin-Thieme to identify what she considered to be her fair percentage share of any “potential income/assets I make if I ever accept a buyout[.]” Aucoin-Thieme did not commit to any specific percentage. Again by e-mail, Thieme stated that although there had been no discussions of a sale of IBG since 2006, he viewed Aucoin-Thieme’s claim to his assets to date back to the time of their daughter’s birth. He reiterated his view that IBG would not be sold “soon,” but again asked her to quantify her claim to “a future ownership stake” in the company. She did not do so.

A month later, Thieme urged Aucoin-Thieme not to delay the settlement of their dispute “based on something that may never happen.” He reassured her that if he were awarded “ownership in IBG” in the future, “we are going to need to revisit” the issue. Thieme reiterated that he had no contract with IBG; he represented that there was “absolutely nothing at all stating that I am going to ever get any part of” the company. He suggested that the parties discuss the issue later, in the event that he acquired an interest in IBG.

3 In April 2012, Thieme and Aucoin-Thieme executed their PSA. Pursuant to its terms, the parties evenly divided their identified assets -- whether those assets were acquired during their lengthy period of cohabitation or their brief marriage --and resolved issues of alimony, child support, and visitation. The PSA provided that neither party owned “any businesses or any interests whatsoever in any businesses which are subject to equitable distribution” and that the agreement had no binding effect on undisclosed assets. The PSA did not address any deferred compensation anticipated by the parties.

Shortly after the trial court entered a final judgment of divorce on June 20, 2012, Aucoin-Thieme moved to Mississippi with the parties’ daughter. Thieme rented an apartment near Aucoin-Thieme’s Mississippi home and spent time with the child in accordance with the visitation schedule set forth in the PSA.

Three months after the entry of the parties’ judgment of divorce, IBG’s owners entered into an agreement to sell IBG to another company. Shortly before the closing, Raj and Samir Nanavati executed a document offering Thieme the Closing Bonus, described as “a one-time bonus in the amount of $2,250,000” contingent on the closing of the sale. The document referenced the “Statement of Understanding” that was executed in 2002. IBG’s owners represented that the Closing Bonus was offered pursuant to the Statement of Understanding, “to show our appreciation for [Thieme’s] contributions in helping [IBG] grow into the successful organization that it is today.”

In a deposition taken in this action, Raj Nanavati testified that IBG offered Thieme the Closing Bonus in accordance with the Statement of Understanding. He stated that the Closing Bonus was “[b]ased upon [Thieme’s] contribution to the company over the 13 years[.]” He testified that Thieme was not told about the sale of IBG until the sale was completed.

It is undisputed that Thieme did not inform Aucoin-Thieme that IBG had awarded him the Closing Bonus. She first learned of the Bonus when Thieme deposited $200,000 into a bank account that, unbeknownst to Thieme, remained a joint account despite the divorce. With no notice to Thieme, Aucoin-Thieme withdrew the deposited funds from the joint account.

II.

Thieme filed a complaint in the Chancery Court of Harrison County, Mississippi, Second Judicial Circuit. In addition to seeking the Mississippi court’s intervention in a visitation dispute, Thieme asked the court to hold Aucoin-Thieme in contempt for withdrawing the contested funds from the bank account. Aucoin-Thieme filed a counterclaim. Among other claims, she alleged that Thieme committed fraud by failing to inform her, prior to the parties’ divorce, that he would be receiving a substantial amount of money by virtue of IBG’s sale. Aucoin- Thieme then relocated to New Jersey, and the Mississippi matter was transferred to the Family Part.

After discovery, a Family Part judge conducted a three-day bench trial addressing two related issues: whether Aucoin-Thieme was entitled to a share of Thieme’s Closing Bonus, and whether she would be permitted to retain, or ordered to return, the $200,000 that she withdrew from the parties’ joint account.

At the conclusion of the trial, the court determined that the Closing Bonus was earned by Thieme throughout his entire employment with IBG. The trial court found that Aucoin-Thieme was entitled to a share of that portion of the Closing Bonus that was earned by Thieme during the parties’ fourteen-month marriage. It concluded, however, that Aucoin-Thieme was not entitled to equitable distribution of any portion of the Closing Bonus that was earned by Thieme during the period in which the parties cohabited prior to their marriage, because of N.J.S.A.2A:34-23(h)’s limitation of equitable distribution to marital assets.

In accordance with its ruling, the trial court allocated the $2,250,000 Closing Bonus. It concluded that in the course of his employment, Thieme earned the Closing Bonus at a rate of $14,423 per month. Multiplying that amount by a factor of fourteen, the court ruled that during the parties’ marriage, Thieme earned deferred compensation in the amount of $201,923. The trial court then determined that Thieme’s net income from the allocated portion of his Bonus, after the deduction of taxes, was $100,961. It subjected that amount to equitable distribution under N.J.S.A. 2A:34-23.1, awarding thirty percent of that amount, or $30,288, to Aucoin-Thieme. The court ordered Aucoin-Thieme to return the remaining amount that she had withdrawn from the joint account, totaling $169,712, to Thieme. It denied the parties’ applications for attorneys’ fees.

Aucoin-Thieme appealed the trial court’s judgment. She contended that she was entitled to a share of the portion of the Closing Bonus that the trial court allocated to the years in which the parties cohabited prior to their marriage. She premised that claim on alternative theories: equitable distribution under N.J.S.A. 2A:34-23(h), and several common law claims seeking equitable relief, including unjust enrichment and constructive trust. In an unpublished opinion, an Appellate Division panel affirmed the trial court’s judgment, substantially for the reasons stated by the trial judge.

We granted Aucoin-Thieme’s petition for certification. 224 N.J. 245 (2016).

III.

Aucoin-Thieme argues that the trial court improperly construed the equitable distribution statute, N.J.S.A. 2A:34-23.1, to authorize the distribution of only the portion of the Closing Bonus that was attributed to Thieme’s work for IBG during the parties’ marriage. Relying on the Appellate Division’s opinions in Weiss v. Weiss, 226 N.J. Super. 281, 287 (App. Div.), certif. denied, 114 N.J. 287 (1988), and Berrie v. Berrie, 252 N.J. Super. 635, 646 (App. Div. 1991), Aucoin-Thieme argues that when cohabiting parties express their intention to create a marital partnership prior to the marriage ceremony, premarital property acquired in “contemplation of marriage” should be subject to equitable distribution. In the alternative, Aucoin-Thieme contends that she is entitled to a portion of the Closing Bonus under one or more quasi-contractual and equitable theories, such as quantum meruit, breach of implied contract, breach of joint venture, breach of partnership, unjust enrichment, and detrimental reliance. Citing Carr v. Carr, 120 N.J. 336, 351 (1990), Aucoin-Thieme argues that her unjust enrichment claim warrants the remedy of a constructive trust.

Thieme counters that the trial court correctly concluded that N.J.S.A. 2A:34-23.1 authorizes equitable distribution based upon a marital relationship, and that any extension of the statute to cohabiting partners should be made by the Legislature, not by a court. He contends that Weiss, supra, 226 N.J. Super. at 287-90, and Berrie, supra, 252 N.J. Super. at 644-48, are factually distinguishable from this matter. Thieme argues that Aucoin-Thieme failed to prove the elements of her claims for equitable relief.

IV.

We review the Family Part judge’s findings in accordance with a deferential standard of review, recognizing the court’s

“special jurisdiction and expertise in family matters.” Cesare v. Cesare, 154 N.J. 394, 413 (1998). Thus, “findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence.” Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv’rs Ins. Co., 65 N.J. 474, 484 (1974)).

A more exacting standard governs our review of the trial court’s legal conclusions. “Although a family court’s factual findings are entitled to considerable deference, we do not pay special deference to its interpretation of the law . . . . [T]he trial court is in no better position than we are when interpreting a statute or divining the meaning of the law.” D.W. v. R.W., 212 N.J. 232, 245 (2012) (citations omitted). Accordingly, we review the trial court’s legal conclusions de novo. Id. at 245-46; see also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010) (citations omitted).

We first review the trial court’s determination that only the portion of Thieme’s Closing Bonus attributed to the work that he performed during the parties’ fourteen-month marriage was subject to equitable distribution, and that the remainder of the Bonus, earned prior to the marriage, was exempt from equitable distribution.3

The equitable distribution statute authorizes the Family Part to distribute assets “in all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple is entered.” N.J.S.A. 2A:34-23(h).4 It reflects a public policy that is “at least in part an acknowledgment ‘that marriage is a shared enterprise, a joint undertaking, that in many ways [] is akin to a partnership.’” Smith v. Smith, 72 N.J. 350, 361 (1977) (quoting Rothman v. Rothman, 65 N.J. 219, 229 (1974)). The statute clearly addresses the distribution of property only in the context of an action for divorce or the dissolution of a civil union. N.J.S.A. 2A:34-23(h); see also Crowe v. De Gioia, 90 N.J. 126, 132 (1982) (finding that N.J.S.A. 2A:34-23 “does not embrace an action on a contract between unmarried cohabitants,” and “[t]he Legislature has proscribed common law marriages”); Kozlowski v. Kozlowski, 80 N.J.378, 383 (1979) (noting that equitable distribution statute then in effect authorized award “only in actions for divorce”).5 Thus, the equitable distribution statute does not govern disputes over property between parties who have cohabited but have never entered into a marriage or civil union. Crowe, supra, 90 N.J. at 132; Kozlowski, supra, 80 N.J. at 383.

The Legislature has limited the property that is subject to equitable distribution to “property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union.” N.J.S.A. 2A:34-23(h). Although the language “during the marriage or civil union” is not defined in the statute, it is unambiguous. It is evident that the Legislature did not intend to treat property acquired

during a period of cohabitation prior to a marriage or civil union as the equivalent of property acquired during that marriage or civil union, for purposes of equitable distribution. N.J.S.A. 2A:34-23(h).

“[T]he sole function of the courts is to enforce [the statute] according to its terms.” Velazquez v. Jiminez, 172 N.J. 240, 256 (2002) (quoting Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 392 (2001)). Accordingly, the property to be divided is that which was earned, or otherwise acquired, during the period in which the parties acted in pursuit of the shared enterprise of a marriage or civil union. See Smith,supra, 72 N.J. at 361.

Aucoin-Thieme relies on two Appellate Division decisions, Weiss, supra, 226 N.J. Super. at 287-90, and Berrie, supra, 252 N.J. Super. at 644-648, for the proposition that property acquired or earned prior to marriage may be subject to equitable distribution. In Weiss, supra, the divorcing spouses disputed the status of their marital home. 226 N.J. Super. at 284-85. The husband had purchased the home in his own name as the parties planned their wedding, and both parties remodeled the home prior to and after their marriage. Ibid. An Appellate Division panel affirmed the trial court’s determination that the house was a marital asset, even though it was purchased prior to the parties’ wedding. Id.at 289. The panel held that property acquired prior to marriage may be included in equitable distribution “where the parties have adequately expressed that intention and have acquired assets in specific contemplation of their marriage.” Id. at 287. The panel

applied the same logic to the husband’s business and remanded for an evaluation of any enhancement of the value in the husband’s business, but only to the extent that the value increased during the parties’ marriage. Id. at 290.

In Berrie, supra, the contested asset was the increase in the value of the husband’s stock in his business during the several years prior to the parties’ marriage. 252 N.J. Super. at 637-38. Before the parties married, the wife went to work for the business as a liaison to foreign trading partners. Id. at 639-40. The Appellate Division panel found that “[i]f the parties by their combined efforts work as part of [a marital] ‘partnership’ to increase the value of an asset held by one of them, such increase in value under established principles also might be subject to treatment as a partnership interest, which in turn might be subject to equitable distribution.” Id. at 646. The panel determined that the increased value of the stock might constitute an asset “acquired [or, as here, enhanced] in specific contemplation of [the] marriage,” and therefore be treated as a partnership interest. Id. at 647 (alteration in original) (quoting Weiss, supra, 226 N.J. Super. at 287). It remanded for the trial court’s consideration of the nature and terms of the wife’s premarital employment in the husband’s business and other issues. Id. at 648-49.

Neither Weiss nor Berrie supports Aucoin-Thieme’s argument that the portion of Thieme’s Closing Bonus that he earned prior to their marriage is subject to equitable distribution under N.J.S.A. 2A:34-23(h). Nothing in Weiss suggests that premarital compensation earned by a spouse is subject to

equitable distribution; indeed, the Appellate Division panel in that case limited the wife’s claim for equitable distribution of the increased value of the husband’s business to the period during which the parties were married. Weiss, supra, 226 N.J. Super. at 289-90. In Berrie, supra, the Appellate Division heavily relied on the wife’s direct contribution to the business as a key employee -– a contribution recognized as a “tremendous asset[]” in a certification executed by the husband. 252 N.J. Super. at 639. Neither Appellate Division opinion generally construes the equitable distribution statute to treat assets acquired prior to marriage as the equivalent of assets acquired during a marriage or civil union. Id. at 645-48; Weiss, supra, 226 N.J. Super. at 287-90. Any such construction would run afoul of the statute’s terms.

We agree with the trial court and Appellate Division that if the portion of Thieme’s Closing Bonus that was earned prior to the marriage were held to be a marital asset, such a ruling would contravene the plain language of N.J.S.A. 2A:34-23(h). We hold that the trial court correctly allocated the distribution of Thieme’s Closing Bonus to premarital and marital periods and properly deemed only the portion of the compensation that was earned during the parties’ marriage to be a marital asset subject to equitable distribution.

Our rejection of Aucoin-Thieme’s claim for equitable distribution of the portion of the Closing Bonus allocated to the period prior to the parties’ marriage does not end the inquiry. Aucoin-Thieme has also asserted claims based on

equitable principles. As a remedy for alleged unjust enrichment, Aucoin-Thieme seeks a constructive trust and an allocation of a percentage of the Closing Bonus that was earned by Thieme while they cohabited prior to their marriage.

“The Family Part is a court of equity.” Randazzo v. Randazzo, 184 N.J. 101, 113 (2005); see also Carr, supra, 120 N.J. at 351 (noting that “[t]he Legislature has recognized that courts’ equitable powers are particularly appropriate in the context of domestic relations”); A.W. v. T.D., 433 N.J. Super. 365, 370-71 (Ch. Div. 2013). A “court [of equity] must exercise its inherent equitable jurisdiction and decide the case based upon equitable considerations.” Kingsdorf ex rel. Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 157 (App. Div. 2002). As an Appellate Division panel observed,

cases must ultimately be decided on facts. Our law is not to be applied in the abstract, but must be considered in light of the factual circumstances in an individual case. Depending on such facts, an adjustment of the rights of the parties may vary from one case to another. This is particularly true in a court of equity, where a family court may give full range to equitable doctrines in dealing with matrimonial controversies.

[A.W., supra, 433 N.J. Super. at 370 (citations omitted).]

As this Court has noted, “[e]quities arise and stem from facts which call for relief from the strict legal effects of given

situations.”Carr, supra, 120 N.J. at 351 (quoting Untermann v. Untermann, 19 N.J. 507, 518 (1955)).

To prove a claim for unjust enrichment, a party must demonstrate that the opposing party “received a benefit and that retention of that benefit without payment would be unjust.” Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 110 (2007) (quoting VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994)). “That quasi-contract doctrine also ‘requires that plaintiff show that it expected remuneration from the defendant at the time it performed or conferred a benefit on defendant and that the failure of remuneration enriched defendant beyond its contractual rights.’” Ibid. (quoting VGR Corp., supra, 135 N.J. at 554).

In the event that a court finds unjust enrichment, it may impose a constructive trust. That remedy has been described as “the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.” Carr, supra, 120 N.J. at 351 (quoting Beatty v. Guggenheim Expl. Co., 122 N.E. 378, 380 (N.Y. 1919)); see also Hill v. Warner, Berman & Spitz, P.A., 197 N.J. Super. 152, 168 (App. Div. 1984) (defining constructive trust). Equitable remedies such as constructive trusts “are not based on the actual intent of the parties, but ‘are arbitrarily imposed by the court to prevent an unjust enrichment.’” Carr, supra, 120 N.J. at 352 (quoting Coney v. Coney, 207 N.J. Super. 63, 75 (Ch. Div. 1985)). As this Court has observed, “[g]enerally all

that is required to impose a constructive trust is a finding that there was some wrongful act, usually, though not limited to, fraud, mistake, undue influence, or breach of a confidential relationship, which has resulted in a transfer of property.” D’Ippolito v. Castoro, 51 N.J. 584, 589 (1968).

In Carr, supra, the trial court considered the plaintiff wife’s claims that she was entitled to equitable distribution or an elective share of assets owned by her husband, who died during their protracted divorce proceedings. 120 N.J. at 339-40. Citing the plain language of the equitable distribution statute, the Court noted that the statute afforded relief to a party only upon the entry of “a judgment of divorce” and that its remedy was accordingly unavailable to the plaintiff. Id. at 341 (citing N.J.S.A. 2A:34-23). The Court held that an elective share under the probate code was similarly barred by virtue of the plaintiff’s separation from her husband and the pendency of divorce proceedings prior to his death. Id. at 344-46. The Appellate Division and this Court affirmed the trial court’s rejection of both statutory claims. Id. at 354.

Notwithstanding the failure of the plaintiff’s statutory claims in Carr, the trial court imposed a constructive trust, awarding to the plaintiff a share of the marital assets controlled by the husband’s estate. Id. at 350-51. The Appellate Division concurred with the trial court that a constructive trust was an appropriate remedy, and this Court affirmed that determination. Id. at 351-54.

The Court observed that judges can “[‘]presume that the parties []intended to deal fairly with [each other’] [and will]

[‘]employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts[] in order to [i]nsure that one party has not been unjustly enriched, and the other unjustly impoverished, on account of their dealings.’” Id. at 352 (fourth alteration in original) (quoting Kozlowski, supra, 80 N.J. at 390-91) (Pashman, J., concurring). It concluded that equitable relief in the setting of Carr was consistent with the protective policies advanced by the Legislature in the equitable distribution and probate laws. Id. at 352-54. The Court agreed with the trial court that in the setting of that case, the estate’s retention of “the share beneficially belonging to Mrs. Carr” could give rise to unjust enrichment. Id. at 353-54. It held that “if warranted by the evidence, the equitable remedy of constructive trust should be invoked and imposed on the marital property under the control of the executor of [the deceased husband’s] estate.” Id. at 353.

The principles expressed in Carr apply with equal force to this appeal, and warrant the imposition of a constructive trust governing a portion of Thieme’s Closing Bonus in the unusual circumstances of this case. As the evidence presented at trial made clear, the prospect that Thieme would be generously compensated was a significant factor in the parties’ personal and financial planning from the early stages of their relationship. Thieme and Aucoin-Thieme each relied on the expectation of deferred compensation if IBG were sold as they made important decisions for themselves and their family.

The parties’ shared anticipation that Thieme would be paid deferred compensation was more than wishful thinking. Given

IBG’s written commitment to Thieme, and its owners’ genuine desire to reward their valued employee, both parties had reason to anticipate a significant payment in the event of a sale.

Whether the Statement of Understanding constituted a legally binding contract or an unenforceable expression of IBG’s plan, it conveyed an important message. IBG’s owners acknowledged their intention to compensate their key employee and longtime friend in a manner commensurate with his pivotal role in the success of their business. That confirmation occurred early in the relationship between the parties. Although the parties dispute the timing and content of their discussions about the Statement of Understanding, it is clear that on multiple occasions Thieme advised Aucoin-Thieme about his expectation that any sale of IBG could generate a substantial financial reward for their family.

Although the prospects for IBG’s sale were for many years uncertain, and the company’s owners were not in a position to quantify Thieme’s compensation until the September 2012 sale, IBG’s commitment to reward him was an important consideration in the decisions made by the parties throughout their cohabitation and marriage. Despite his grueling schedule and its impact on his family, Thieme was determined to retain his job. Although he understood Aucoin-Thieme’s desire to work outside of the home, Thieme firmly opposed any suggestion that he pursue less demanding employment and take on a more active role in their daughter’s care so that she could seek work outside the home. He reasoned that his work at IBG was crucial to the family’s future. In short, as they planned their finances and personal

lives, Thieme and Aucoin-Thieme anticipated that they might someday share in the proceeds of the company’s sale.

During the parties’ eight years of cohabitation, and for most of their brief marriage, Aucoin-Thieme undertook significant efforts to support Thieme’s challenging career. As Thieme acknowledged, Aucoin-Thieme ably shouldered almost all of the responsibility for caring for their daughter. She maintained and repaired their homes, managed their rental properties, and paid the bills. With the exception of a brief per diem job substitute teaching at her child’s preschool, Aucoin-Thieme did not pursue a career or return to school. She moved with Thieme and their daughter to Virginia to accommodate IBG’s need to assign Thieme to an important contract. There is no doubt that Aucoin-Thieme was at times disruptive and abusive when Thieme was working, and the series of inflammatory e-mails that she sent to his employer and co-workers in October 2011 could have derailed his career. Thieme was not without fault either, as he admitted.6 Despite their disputes, for most of their time together, Aucoin-Thieme’s efforts enabled Thieme to focus almost exclusively on IBG, and thus supported his professional development.

Indeed, Thieme himself recognized that Aucoin-Thieme’s contributions to their family should be rewarded. He acknowledged Aucoin-Thieme’s “great sacrifice” of her “career and educational aspirations” to care for their daughter. He committed to support her “fully.” Thieme expressly recognized that his obligation to financially support Aucoin-Thieme implicated, to some extent, any compensation that he would

receive in the event that IBG were sold. He assured Aucoin- Thieme that if he received an unexpected bonus, they would split that bonus, after the deduction of taxes. Thieme represented that he viewed Aucoin-Thieme’s claim to share in his assets to date back to 2003, when their child was born.

Accordingly, the record supports the conclusion that Aucoin-Thieme’s decision not to seek further education and employment was made, at least in part, in reliance on Thieme’s financial commitment to her. Aucoin-Thieme clearly made decisions regarding her future in light of IBG’s unequivocal expression of its intent to fairly compensate Thieme if it had the opportunity to do so, and Thieme’s repeated representations that he would generously support her in return for her efforts on the family’s behalf. Even as the parties negotiated the terms of their divorce, Thieme suggested to Aucoin-Thieme that if IBG were sold and he were afforded a portion of the proceeds, that payment would be shared with her.

Thieme’s Closing Bonus, however, materialized three months after the parties’ divorce was finalized -- too late to be divided, along with other assets, in the PSA.7 By virtue of the trial court’s proper application of N.J.S.A. 2A:34-23(h) to the Closing Bonus, Aucoin-Thieme was awarded less than two percent of the Bonus by equitable distribution. As the husband’s death in Carr deprived the wife of relief under the equitable distribution and probate statutes, by virtue of the timing of the critical events in this case, only a limited statutory remedy was available to Aucoin-Thieme. We conclude that a decision constraining Aucoin-Thieme to the nominal share of the

Closing Bonus that is authorized by the equitable distribution statute would result in unjust enrichment, and that Aucoin- Thieme has proven the elements of that equitable claim.

As a remedy, a percentage of the portion of the Closing Bonus that Thieme earned during the period in which the parties cohabited prior to their marriage should be deemed to be held by Thieme in constructive trust for Aucoin-Thieme.8 We make no determination as to the precise time period for which the Closing Bonus should be shared by the parties, the percentage of the Closing Bonus that should be allocated to Aucoin-Thieme to avoid unjust enrichment, or the impact of taxes imposed on Thieme by virtue of the Closing Bonus.

On remand, the court should make those determinations based on the comprehensive record presented at trial.9 That record includes evidence of the contributions made by each party to their home and family, Aucoin-Thieme’s impact on Thieme’s employment at IBG, and the parties’ financial status at the time of trial. The court may, in its discretion, permit the parties to supplement the record as appropriate.

The judgment of the Appellate Division is affirmed in part and reversed in part, and the matter is remanded to the Family Part for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion.

1 The record contains only an unsigned copy of the “Statement of Understanding.” Thieme testified that he did not know whether the document was signed; Raj Nanavati testified that he recalled “signing a document in around . . . 2000, early 2000.” No signed version was presented to the trial judge.

2 At trial, Aucoin-Thieme testified that when she sent that e- mail, she was under the mistaken impression that New Jersey law authorized one spouse to bar another spouse from obtaining a divorce.

3 In light of the trial court’s finding, undisputed on appeal, that the Closing Bonus compensated Thieme for his work during the period in which the parties cohabited and during their marriage, neither party contends that the provision of their PSA precluding claims to after-acquired property bars any distribution of a portion of the Closing Bonus to Aucoin-Thieme.

4 Applying the equitable distribution statute, a Family Part judge undertakes a three-step analysis. Rothman v. Rothman, 65 N.J. 219, 232 (1974). First, the court must “decide what specific property of each spouse is eligible for distribution”; second, it “must determine [the property’s] value for purposes of such distribution”; and finally, it “must decide how such allocation can most equitably be made.” Ibid. The statute sets forth a non-exhaustive list of factors for the court’s consideration as it divides the parties’ marital assets. N.J.S.A. 2A:34-23.1.

53 In January 2010, the Legislature amended the Statute of Frauds to include “[a] promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination,” and to require that both parties have the benefit of legal counsel in arriving at such an agreement. N.J.S.A. 25:1-5(h). See generally Maeker v. Ross, 219 N.J. 565, 580-82 (2014). No claim governed by that provision has been made in this case.

6 We do not find the conduct of either party to be sufficiently egregious to constitute an appropriate factor on the allocation of the Closing Bonus on remand.

7 Like the trial court, we do not find that Thieme defrauded Aucoin-Thieme with respect to the Closing Bonus; no evidence rebuts his assertion that IBG’s owners did not inform him of

IBG’s sale until it was concluded, and the testimony of Raj Nanavati supports Thieme’s contention.

8 We do not reach Aucoin-Thieme’s claims for quantum meruit, breach of implied contract, breach of joint venture or breach of partnership.

9 Although the equitable distribution statute does not govern the allocation of the Closing Bonus, some of the factors identified inN.J.S.A. 2A:34-23.1(a) to –(p) may be relevant to the trial court’s allocation of a portion of the Closing Bonus on remand. See N.J.S.A.2A:34-23.1(a) to –(p).

Justice Barry T. Albin

Justice Albin was nominated by Governor James E. McGreevey on July 10, 2002 to serve on the Supreme Court. He was confirmed by the Senate on September 12, 2002 and was sworn in as an Associate Justice by Chief Justice Deborah T. Poritz at a private ceremony on September 18, 2002. On October 3, 2002, he reaffirmed the oath of office in a public ceremony at the Trenton War Memorial. Justice Albin was confirmed by the Senate for a second term and tenure on June 22, 2009.

At the time of his nomination, Justice Albin was a partner in the Woodbridge law firm of Wilentz, Goldman and Spitzer.

Justice Albin was born on July 7, 1952, in Brooklyn, New York. He graduated from Rutgers College in 1973. After graduating from Cornell Law School in 1976, he began his career as a Deputy Attorney General in the Appellate Section of the New Jersey Division of Criminal Justice. Justice Albin then served as an Assistant Prosecutor in Passaic and Middlesex counties from 1978 to 1982. He began his association with the Wilentz firm in 1982, and was named a partner in 1986.

Justice Albin is a past President of the New Jersey Association of Criminal Defense Lawyers (1999- 2000) and served as a member of the New Jersey Supreme Court Criminal Practice Committee from 1987 to 1992. He was selected by his peers to be included in the publication "Best Lawyers in America" (2000-2001).

He and his wife, Inna, have two sons, Gerald and Daniel.

Peter F. Bariso, Jr., A.J.S.C. Hudson County

Honorable Peter F. Bariso, Jr., A.J.S.C. was appointed to the Superior Court in January 2005 and is currently the Assignment Judge of the Hudson Vicinage sitting in Jersey City, New Jersey. Prior to his appointment as Assignment Judge, he served as the Civil Presiding Judge from 2006 to 2012. He was certified as a Civil Trial Attorney by the Supreme Court of New Jersey and was formerly the Chair of the Litigation Department at Chasan, Leyner, Bariso & Lamparello, PC in Secaucus, New Jersey. Judge Bariso also served as attorney for the East Rutherford Board of Education for twenty years. Judge Bariso is a member of the Conference of Assignment Judges as well as the Judicial Council. He is also a member of the Advisory Committee on Expedited Civil Actions where he serves as the Pre-Trial Subcommittee Chair. Judge Bariso is a former member of the Supreme Court Special Committee on Peremptory Challenges and Jury Voir Dire where he served as Chair of the Civil Subcommittee. He is also a former member of the Supreme Court Civil Practice Committee. Judge Bariso is a former Chair of the Conference of Civil Presiding Judges. He previously served as Chair of both the Supreme Court Arbitration Advisory Committee and the Hudson County Advisory Committee on Minority Concerns. Judge Bariso is a member of the New Jersey State Bar Association, the Hudson County Bar Association and the Essex County Bar Association. Judge Bariso frequently lectures on civil litigation issues for the Judiciary, the New Jersey State Bar Association, the Hudson County Bar Association and the New Jersey Institute for Continuing Legal Education, among other organizations. He has been an instructor for ICLE’s Civil Law segment of the Skills and Methods course for newly admitted attorneys. Judge Bariso is a recipient of NJICLE Distinguished Service Award for Excellence in Continuing Legal Education. Judge Bariso has had four trial court opinions approved for publication:

Dobco v. Brockwell & Carrington, 441 N.J. Super. 148 (Law Div. 2015) Town of Harrison Bd. v. Netchert, 439 N.J. Super. 164 (Law Div. 2015) Camacho v. Camacho, 381 N.J. Super. 395 (Law Div. 2005) Smith v. Moustiatse, 388 N.J. Super. 273 (Law Div. 2005) Judge Bariso has also contributed to numerous publications used as seminar material for The New Jersey Institute for Continuing Legal Education over the past 20 years. Some of the more recent publications were seminar material for Hot Topics for Civil Litigators (2014); Effectively Using Objections at Depositions and Trial: A Crash Course from Some of the State’s Top Judges and Attorneys (2011); 2011 Civil Trial Practice: The Judicial Perspective (2011); 2010 Automobile Insurance Update: Keys for Handling the Automobile Accident Case; Keys to Jury Selection in a Civil Case (2010); Effectively Using Objections at Deposition and Trial: A Crash Course from some of the State’s top Judges and Attorneys (2008); Beyond the Court Rules: What the Presiding Judges Really Think (2008); Medicine for Lawyers: Winning Neck & Back Injury Cases (2008); 2007 Tort Law Conference (2007). He is also a contributing author on Education Law for Encyclopedia of New Jersey (2004). Judge Bariso received his B.A., magna cum laude, from Rutgers University, where he was elected to Phi Beta Kappa. He received his J.D. from Rutgers University School of Law.

BIOGRAPHY

Hon. Jeanne T. Covert

Honorable Jeanne T. Covert was appointed to the Bench in 2005 and began her judicial career in the Family Part, handling FM, FD and CIC matters. She was reassigned to the Criminal Division in 2009, and named Presiding Judge of the Criminal Division in 2010, where she currently sits. Judge Covert was appointed Chair, Conference of the Criminal Presiding Judges, in January 2013. She served on the Supreme Court Joint Committee on Criminal Justice and is also a member of the Supreme Court Committee on Salaries and Pensions, the Sovereign Citizen Judge Advisory Group and the Judiciary Advisory Committee on Information Technology. Additionally, she served as faculty for the Comprehensive Judicial Orientation Program, New Judge Orientation, Judicial College, and the New Jersey Institute for Continuing Legal Education. Prior to her appointment, Judge Covert served as an Assistant Prosecutor in the Appellate Unit of the Camden County Prosecutor’s Office, Public Defender for Bordentown Township, and Assistant Prosecutor for Burlington County. She was also an associate and partner with the firm of Call and Covert. Judge Covert graduated from the University of Delaware in 1980 and received her Juris Doctor from Rutgers Law School-Camden. Justice Anne M. Patterson

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Justice Anne M. Patterson Chief Justice Stuart Rabner Following her nomination by Governor Chris Christie and confirmation by Justice Jaynee LaVecchia the Senate, Justice Anne M. Patterson was sworn in as an associate Justice Barry T. Albin justice by Chief Justice Stuart Rabner September 1, 2011. Justice Anne M. Patterson Justice Patterson was born in Trenton on April 15, 1959, and raised in Justice Faustino J. Hopewell Township and Princeton. In 1980, she graduated magna cum Fernandez-Vina laude from Dartmouth College, where she was elected to Phi Beta Justice Lee A. Solomon Kappa. She is a 1983 graduate of Cornell Law School, where she won Judge Mary Catherine the Cuccia Cup moot court competition. She was admitted to the New Cuff Jersey Bar in 1983.

In 1983, Justice Patterson joined the law firm of Riker, Danzig, Scherer, Hyland & Perretti LLP as an associate. In 1989, Justice Patterson left Riker Danzig to serve as a deputy attorney general and special assistant to New Jersey Attorney General Peter N. Perretti, Jr., handling civil litigation and criminal appeals on behalf of the state. After rejoining Riker Danzig, Justice Patterson became a partner in the firm in 1992. Her practice focused on product liability, intellectual property and ©2013 Jay Mayer, Trenton Photographers commercial litigation in state and federal trial and appellate courts.

Justice Patterson served as Chair of the New Jersey State Bar Association Product Liability and Toxic Tort Section, as an officer and trustee of the Association of the Federal Bar of New Jersey, and as a trustee of the Trial Attorneys of New Jersey. From 1991 to 2006, Justice Patterson served on the New Jersey Supreme Court Committee on Character. Justice Patterson was awarded the William A. Dreier Award for Excellence in the Advancement of Product Liability and Toxic Tort Law and the New Jersey Commission on Professionalism's Professional Lawyer of the Year Award. She was elected to the New Jersey Fellows of the America Bar Foundation in 2011. Justice Patterson is a member of the Dean’s Advisory Council at Cornell Law School.

Justice Anne M. Patterson bio.html[5/12/2016 5:46:27 PM] Judge Mary Catherine Cuff

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Justice Lee A. Solomon Chief Justice Stuart Rabner Following his nomination by Gov. Chris Christie and confirmation by the Justice Jaynee LaVecchia Senate, Justice Solomon was sworn in as an associate justice on June Justice Barry T. Albin 19, 2014. Justice Anne M. Patterson Justice Solomon was born on Aug. 17, 1954 in Philadelphia and Justice Faustino J. attended public schools there. He received his bachelor’s degree from Fernandez-Vina Muhlenberg College in 1975 and his law degree from Widener University Justice Lee A. Solomon School of Law in 1978. Judge Mary Catherine He served on the Haddon Heights Borough Council, Camden County Cuff Board of Freeholders and five years in the New Jersey General Assembly.

Justice Solomon was first appointed to the bench in January 2006 by Acting Gov. Richard J. Codey. He served in the Camden Vicinage for two years in the family division, and then for two years in the criminal division.

In February 2010, Gov. Christie named Justice Solomon to his cabinet, as president of the Board of Public Utilities.

Justice Solomon left the bench to lead the BPU until December 2011, when he was nominated by Gov. Christie to return to the bench in Camden. He rejoined the court in the civil division.

In April 2013, Justice Solomon was named presiding judge of the criminal division, and in November 2013, he was named assignment judge, both by Chief Justice Stuart Rabner.

Immediately prior to his appointment to the Judiciary, Justice Solomon served as deputy U.S. Attorney for the southern vicinages, District of New Jersey, a position to which he was appointed in 2002 by then-U.S. Attorney Chris Christie. He also served as Camden County prosecutor for five years and acting prosecutor for one year. Justice Solomon is married and has three children.

Justice Solomon bio.html[5/12/2016 5:47:13 PM] Honorable Deborah J. Venezia, PJFP is Presiding Judge, Family Part, Middlesex County, and sits in New Brunswick, New Jersey. She previously sat in the Family and Criminal Divisions prior to her appointment as Presiding Judge of the Family Part in 2008.

Chair of the Juvenile Committee of the Conference of Family Presiding Judges from 2009-2015, Judge Venezia is Chair of the Conference of Family Presiding Judges and the Children in Court Improvement Committee. She is Co-Chair of the Middlesex Council for Juvenile Justice System Improvement and Chair of the Middlesex County Vicinage Courthouse Art Advisory Committee. Judge Venezia also served on the Supreme Court Ad Hoc Committee on the Code of Judicial Conduct. Prior to her appointment to the bench, she was in private practice and served as a municipal court judge and in other appointed positions for several municipalities.

Judge Venezia is a graduate of Fairfield University and St. Mary’s University, San Antonio School of Law.