SUPREME COURT OF NEW JERSEY
DOCKET NO. 72,293
STATE OF NEW JERSEY.
Plaintiff-Petitioner ,
vs.
Civil Action
On Petition for Certification
from t h e Final Judgment of
the Superior Court,
Appellate Division ,
DAVID T . POMIANEK, JR.,
Defendant-Respondent.
Sat
Hon.
Hon.
Hon.
Below:
Susan L. Reisner, P.J . A.D.
Jonathan N. Harris , J.A.D.
Richard S. Hoffman, J . A.D.
BRIEF OF AMICUS CURIAE
AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY
FRANK L . CORRADO , ESQUIRE
BARRY , CORRADO & GRASSI , P . C.
2700 PACIFIC AVENUE
WILDWOOD , NJ 08260
(609) 729-1333
RUBIN SININS , ESQUIRE
ANNABELLE M. STEINHACKER , ESQUIRE
JAVERBAUM, WURGAFT , HICKS, KAHN
WIKSTROM & SININS , P.C.
505 Morris Avenue
Springfield , NJ 07081
(973) 379-4200
EDWARD BAROCAS , ESQUIRE
JEANNE LoCICERO, ESQUIRE
AMERICAN CIVIL LIBERTIES
UNION OF NEW JERSEY
FOUNDATION
P . O. BOX 32159
NEWARK , NJ 07102
(973) 642-2086
Attorneys for the
AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
I.
INTEREST OF THE AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.
PROCEDURAL HISTORY/STATEMENT OF THE FACTS ................. 4
I I I. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
IV.
A.
Because It Predicates Bias Liability On The
Victim's Reaction To Defendant's Speech Rather
Than Defendant's Intent, N.J.S.A. 2C:16-l(a) (3)
Violates The First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 7
B.
The Appellate Division Properly Concluded That
N.J.S.A. 2C:16-l(a) (3) Is Unconstitutional As
Writteo, But Should Not Have "Rewritten" The
Statute Or Remanded For Retrial . . . . . . . . . . . . . . . . . . . . . 14
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
TABLE OF AUTHORITIES
Cases
A.A. ex rel. B.A. v. Attorney General of New Jersey,
189 N.J. 128 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Barclay v. Florida, 467 U.S.
939 (1983) . . . . . . . . . . . . . . . . . . . . . . . 10
Borough of East Rutherford v. East Rutherford PBA
Local 275, 213 N.J. 190 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Brandenberg v. Ohio, 395 U.S. 444
(1969) . . . . . . . . . . . . . . . . . . . 9, 10
Chaplinsky v. New Hampshire, 315 N.J. 568
Coates v. Cincinnati, 402 U.S. 611
(1942) ............... 9
(1971) . . . . . . . . . . . . . . . . . . . . . . 8
Cohen v. California, 403 U.S. 15 (1971) . . . . . . . . . . . . . . . . . . . . 8, 11
Committee For A Better Twin Rivers v. Twin Rivers
Homeowners' Ass'n, 192 N.J. 344 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . 2
Delaware v. Dawson, 503 U.S. 159 (1992) . . . . . . . . . . . . . . . . . . . . . . . 10
i
DiProspero v. Penn, 183 N.J. 477
(2005) . . . . . . . . . . . . . . . . . . . 15, 17
Forsyth County v. Nationalist Movement, 505 U.S. 123
(1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ . . . . . . . . . . . . . . . 9
Hishon v. King & Spaulding, 467 U.S.
Hustler Magazine v. Falwell,
69 1984) . . . . . . . . . . . . . . . . . 10
485 U.S.
46
(1988) . . . . . . . . . . . . . . . 13
In Re Attorney General's "Directive On Exit Polling:
Media And Non-Partisan Public Interest Groups," 200
N.J. 283 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Med. Soc. Of N.J. v. N.J. Law Dep't of Law & Pub.
Safety, 120 N.J. 18 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Police Dep't v. Mosley,
408 U.S.
92
(1972) . . . . . . . . . . . . . . . . . . . . . 8
R.A.V. v. City of St. Paul, 505 U.S_:_ 377
(1992) ..... 8,
9, 10, 11
Rumsfeld v. Forum for Academic and Institutional
Rights, Inc., 547 U.S. 47 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Salzano v. North Jersey Media Group, 201 N.J. 500
(2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Snyder v.
Phelps,
, 131 S. Ct. 12 0 7 ( 2011) . . . . . . . . . 14
562 U.S.
State in the Interest of P.M.P., 200 N.J. 166 (2009) . . . . . . . . . . . 3
State v. Apprendi,
530 U.S. 466 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 5
State v. Best, 201 N.J. 100
(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
State v. DeAngelo,
478
197 N.J.
State v. Earls, 214 N.J. 564
State v.
Frankel,
(2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
179 N.J. 586 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 3
St ate v . Fu 11 er ,
1 8 2 N. J .
State v. Harris,
211 N.J. 566
174
(2 0 0 4 ) . . . . . . . . . . . . . . . . . . . • . . . . . . .
178 N.J. 51
State v. Nunez-Valdez,
3
(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
State v. Mortimer, 136 N.J. 517
State v. Natale,
(2009) . . . . . . . . . . . . . . . . . . . . . . . . . 2
(1994) . . . . . . . . . . . . . . . . . . . . . 9, 17
(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
200 N.J. 129 (2009) . . . . . . . . . . . . . . . . . . . . . 2
ii
State v. Osorio,
199 N.J.
486
(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
State v. Pomianek, 429 N.J. Super. 339 (App. Div.
2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,
St ate v. Reid,
19 4 N . J.
38 6
(2 0 0 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
3
State v. Shannon,
210 N.J.
225
(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 2
State v. Shelley,
205 N.J.
320
(2011) . . . . . . . . . . . . . . . . . . . . . 15, 17
State v. Vawter,
135 N.J.
56
(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
State v. Womack, 145 N.J. 576, cert. denied, 519 U.S.
1011 (1996) . . . . . . . . . -~- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Tarus v. Borough of Pine Hill, 189 N.J.
(2007) . . . . . . . . . . . . .
2
Taxpayers Assoc. of Weymouth Tp. v. Weymouth Tp., 80
N.J. 6 (1976), cert. denied, 430 U.S. 977 (1977) . . . . . . . . . . . . . . .
4
Terminiello v. Chicago,
Texas v. Johnson,
Virginia v. Black,
W.J.A.
v.
D.A.,
337 U.S.
491 U.S.
397
538 U.S.
210 N.J.
Watts v. United States,
229
1
(1949) . . . . . . . . . . . . . . . . . . . . . . 8
(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 8
343
(2003) . . . . . . . . . . . . . . . . . 8,
11, 12
(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
394 U.S.
704
West Va. Bd. Of Educ. v. Barnette,
Wisconsin v. Mitchell,
497
508 U.S.
476
(1969) . . . . . . . . . . . . . . . . 9,
319 U.S.
624
11
(1943) . . . . . . . . . 8
(1993) . . . . . . . . . . . . . . . . . 9,
10
Statutes
N.J.S.A.
2C:16-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,
N.J.S.A.
2C:16-l(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,
N.J.S.A.
2C:l6-1 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
N.J.S.A.
2C: 16-1 (a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,
N . J. S . A.
2 C: 16-1 (a) ( 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
iii
6,
6,
5
16
16, 18
Constitutional Provisions
N.J.
Const.
(1947), Art.
III, §1. . . . . . . . . . . . . . . . . . . · · · · · · · · · · · 17
iv
I.
INTEREST OF THE AMICOS CURIAE
The ACLU-NJ is a private, non-profit, non-partisan
membership organization dedicated to the principle of individual
liberty embodied in the Constitution.
Founded in 1960, the
ACLU-NJ has tens of thousands of supporters.
It is the state
affiliate of the American Civil Liberties Onion, which was
founded in 1920 for identical purposes, and comprises nearly
500,000 members nationwide.
Either directly or as amicus curiae, the ACLU-NJ has
participated in a wide variety of cases that involve free speech
rights under the First Amendment or Article I,
the New Jersey Constitution.
Paragraph 6 of
Over the past 10 years, in this
Court those cases have included:
- W.J.A. v.
D.A., 210 N.J. 229 (2012)
(determining proper
role of presumed damages in defamation cases).
- Salzano v. North Jersey Media Group, 201 N.J. 500 (2008)
(delineating scope and nature of fair report privilege).
- In Re Attorney General's "Directive On Exit Polling:
Media And Non-Partisan Public Interest Groups," 200 N.J. 283
(2008)
(challenging ban on all expressive activity, including
exit polling and distribution of voting-rights cards, within 100
feet of a polling place).
1
- State v. DeAngelo, 197 N.J. 478
(2009)
(striking down
ordinance that restricted speech by banning use of certain
inflated signs).
- Tarus v. Borough of Pine Hill,, 189 N.J. 497
(2007)
(right
of public access to videotape public proceedings).
- Committee For A Better Twin Rivers v. Twin Rivers
Homeowners' Ass'n,, 192 N.J. 344
(2007) (seeking application of
state constitution's speech guarantees to private residential
community rules).
The ACLU-NJ has also participated as amicus curiae or
direct counsel in this Court in numerous cases addressing rights
of criminal defendants.
These include:
- State v. Earls, 214 N.J. 564
(2013)
(applying state
constitution's warrant requirement to cell phone tracking data).
- State v. Harris, 211 N.J. 566 (2012)
(contesting scope of
special needs search under PDVA) .
- State v. Shannon, 210 N.J. 225
(2012)
(dismissing
challenge to Pena-Flores rule for automobile searches).
- State v. Best, 201 N.J. 100 (2010)
(challenging special
needs searches in school parking lots).
- State v. Osorio, 199 N.J. 486
(2009)
(challenging
discriminatory use of peremptory challenges based on race).
- State v. Nunez-Valdez, 200 N.J. 129 (2009)
2
(supporting
right of defendants to be informed of immigration consequences
of guilty pleas).
- State in the Interest of P.M.P., 200
~_2_:_
166 (2009)
(establishing time at which juvenile cannot waive Miranda rights
without a lawyer).
- State v. Reid, 194 N.J. 386 (2008)
(finding expectation
of privacy in Internet Service Provider records).
- A.A. ex rel. B.A. v. Attorney General of New Jersey, 189
N. J. 128 (2007)
(challenging DNA testing of juvenile offenders).
- State v. Fuller, 182 N.J. 174
(2004)
(challenging
discriminatory use of peremptory challenges based on religion) .
- State v. Frankel, 179 N.J. 586 (2004)
(determining
parameters of emergency aid doctrine) .
- State v. Natale, 178 N.J._ 51
(2003)
(challenging findings
by a judge authorizing NERA sentence).
This case lies at the intersection of the First Amendment
and criminal law.
It involves the constitutionality, under the
First Amendment, of N.J.S.A. 2C:16-l(a) (3), a provision of the
state's bias intimidation statute.
It raises significant
questions about the degree to which the state may punish biasmoti vated conduct when the evidence of that bias is the victim's
reaction to the defendant's otherwise protected speech.
Participation by amicus is particularly appropriate in
3
cases with "broad implication."
Taxpayers Ass'n of Weymouth Tp.
v. Weymouth 21?__:_, 80 N.J. 6, 17 (1976), cert. denied, 430 U.S.
977 (1977).
Here, the Court's resolution of the issue presented
will have a substantial impact on the contours of "hate speech"
regulation in New Jersey, and the limits of that regulation
under the guarantee of free speech.
The ACLU-NJ believes N.J.S.A. 2C:16-l(a) (1), as written,
violates the First Amendment, and it asks the Court to affirm
the decision below on that point.
However, contrary to the
court below, amicus does not believe the statute can be
judicially salvaged; on that point it asks the Court to
repudiate the Appellate Division's conclusion.
II.
PROCEDURAL HISTORY/STATEMENT OF THE FACTS
Because its submission focuses on the legal issues
presented by this case, the ACLU-NJ adopts the procedural
history and statement of the case set forth by the parties.
III. ARGUMENT
This case involves N.J.S.A. 2C:16-l(a) (3), a subsection of
New Jersey's bias intimidation statute, N.J.S.A. 2C:16-1.
As
written, subsection -l(a) (3) contains no requirement that the
defendant intend bias intimidation.
The Appellate Division found the provision unconstitutional
as written and,
to save its constitutionality, read an intent
4
element into the subsection.
The ACLU-NJ agrees that the
subsection is unconstitutional but disagrees that judicial rewriting can, or should, "save" it.
N.J.S.A. 2C:l6-1, the bias intimidation law, is a "penalty
enhancement" statute; it increases the penalty for committing
certain specified criminal offenses if the defendant either
selects the victim, or intends to intimidate him, because of his
"race, color, religion, gender, disability, sexual orientation,
gender identity of expression, national origin or ethnicity."
1
N.J.S.A. 2C:16-l(a), which defines the elements of the
offense, contains three subsections.
Subsections -1 (a) (1) and -
l(a) (2) apply conventional mens rea criteria to the required
discriminatory motive.
They forbid,
respectively,
discriminatorily purposeful and knowing intimidation or victim
selection.
N.J.S.A. 2C:16-l(a) (3) is qualitatively different.
It
provides that a defendant is guilty of bias intimidation if the
victim 1) was intimidated and 2) "reasonably believed" the
defendant acted from a discriminatory motive.
1
The statute was adopted in response to State v. Apprendi, 530
U.S. 466, 490 (2000), in which the Supreme Court held that a
jury, rather than a judge, must find the bias-based predicate
for penalty enhancement beyond a reasonable doubt.
The opinion
below contains an extensive discussion of N.J.S.A. 2C:16-l's
legislative history.
See State v. Pomianek, 429 N.J. Super.
339, 355-57 (App. Div. 2013).
5
Subsection -1 (a) ( 3) thus permits conviction without
subjective proof of a defendant's motive or intent.
If a jury
finds the victim reasonably believed the defendant acted
discriminatorily, the defendant's actual motive is irrelevant.
In this case, the defendant was charged with violating all
three subsections of N.J.S.A. 2C:16-l(a).
The jury acquitted
him of violating N.J.S.A. 2C:16-l(a) (1) and -l(a) (2), and
convicted him of violating 2C:16-l(a) (3). It found,
in other
words, that defendant lacked subjective discriminatory motive,
and convicted him only because the victim "reasonably believed"
he acted with discriminatory intent.
On this record, the evidential basis for the victim's
"reasonable belief" was defendant's ostensibly racist remarks,
made during and before the harassment.
Proof of defendant's
discriminatory intent thus rested on the jury's assessment of
the victim's reaction to defendant's speech, and not on any
finding of what defendant actually intended.
Accordingly, this case presents a narrow but important
constitutional question: may the state enhance punishment for
bias-motivated conduct when proof of defendant's intent rests on
a victim's speech-based "belief" that defendant acted with a
discriminatory motive.
As did the Appellate Division, amicus believes the answer
6
to that question must be "no."
When the evidence of a
defendant's discriminatory motive is speech, the First Amendment
prohibits substituting a victim's "belief" about defendant's
motive for direct, subjective proof of defendant's
discriminatory intent.
A contrary holding - one that decouples liability from
subjective proof of defendant's discriminatory intent - would
create a constitutionally unacceptable risk that a defendant
will be punished for his abstract beliefs, or because his speech
offends his victim.
The First Amendment permits neither
outcome.
Unlike the Appellate Division, however, amicus does not
believe N.J.S.A. 2C:16-l(a) (3) can be "saved" by reading a
subjective mens rea requirement into it.
Doing so creates an
improper statutory redundancy, and usurps the legislature's
constitutional prerogative.
court
mu~t
Although there may be times when a
construe a statute to save it, this is not one of
them.
A.
Because It Predicates Bias Liability On The
Victim's Reaction To Defendant's Speech
Rather Than Defendant's Intent, N.J.S.A.
2C:16-l(a) (3) Violates The First Amendment.
"If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
7
expression of an idea simply because society finds the idea
itself offensive or disagreeable."
397, 414
95
(1989).
Texas v. Johnson, 491 U.S.
See also Police Dep't v. Mosley, 408 U.S. 92,
(1972).
Nor, consistently with the First Amendment, may the state
tell people what to think or believe; no matter how odious the
thought, the First Amendment leaves that choice to individuals
themselves.
See Rumsfeld v. Forum for Academic and
Institutional Rights,
Inc., 547 U.S.
47, 61 (2008), citing West
Va. Bd. Of Educ. v. Barnette, 319 U.S. 624,
642
(1943).
Thus, the state may not ban hateful expressions simply
because it disagrees with the viewpoint behind them.
R.A.V. v.
City of St. Paul, 505 U.S. 377, 386 (1992); accord State v.
Vawter, 135 N.J. 56, 77
(1994).
Even so abhorrent an act as
cross burning, when done as a political statement rather than
with a purpose to intimidate, is entitled to First Amendment
protection.
Virginia v. Black, 538 U.S. 343, 364-65 (2003).
For similar reasons, the state may not punish speech merely
because listeners disagree with it, or find it offensive,
annoying or distasteful.
Cohen v. California,
(1971); Coates v. Cincinnati, 402 U.S. 611, 615
Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949).
403 U.S. 15, 23
(1971);
See also
Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-35
8
(1992)
(listeners' reaction to speech not a content-neutral
basis for regulation) .
Nevertheless, the First Amendment's protections are not
absolute.
"There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which has
never been thought to raise any constitutional problem."
Chaplinsky v. New Hampshire, 315 N.J. 568, 571-72 (1942).
Accordingly, the state may constitutionally punish
"fighting words," see Chaplinsky, supra; imminent incitement to
violence, see Brandenberg v. Ohio, 395 U.S. 444, 447 (1969); or
"true threats," see Watts v. United States, 394 U.S. 704, 708
(1969).
These are forms of expression "which are of such slight
social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest
in order and morality."
R.A.V. v. City of St. Paul, 505 U.S. at
382-83.
Moreover, even though it may involve inquiry into a
defendant's beliefs, or consideration of his speech, a state may
constitutionally enhance the penalty for criminal conduct if
discriminatory animus motivates the crime or the selection of a
victim.
Wisconsin v. Mitchell, 508 U.S. 476, 487-88 (1993);
accord, State v. Mortimer, 136 N.J. 517, 528-29 (1994).
As do
employment discrimination laws, penalty enhancement laws punish
9
conduct, not speech, and do not offend the First Amendment
merely because the enhancement turns on the existence of
discriminatory intent.
69,
See Hishon v. King & Spaulding, 467 U.S.
78 1984); see also R.A.V.,
supra,
505 U.S. at 389-90.
"[T]he First Amendment does not prohibit the evidentiary
use of speech to establish the elements of a crime or to prove
motive or intent."
Mitchell,
supra,
otherwise protected expression may,
508 U.S. at 489.
if probative of intent,
establish the motive necessary to enhance a sentence.
Delaware v.
Dawson,
Even
503 U.S. 159, 167
(1992)
Compare
(mere evidence of
defendant's "abstract beliefs" protected by the First Amendment
and not admissible on sentencing), with Barclay v. Florida,
U.S.
939,
942-44
467
(1983) (defendant's membership in Black
Liberation Army admissible when evidence of motive for murder of
white man) .
But whether the state attempts directly to proscribe
hurtful speech, or merely to enhance a penalty by using speech
to prove discriminatory motive,
it runs afoul of the First
Amendment unless it tethers its action to a finding of
subjective intent.
Thus,
for example,
the state cannot punish
incitement to violence unless it is "directed to inciting
violence."
Brandenberg,
supra,
395 U.S. at 447
supplied) .
It cannot punish speech as "fighting words" unless
10
(emphasis
they are "personal insults" directed at the hearer.
supra, 403
~at
20.
Cohen,
It cannot punish speech as a "true
threat" unless the speaker himself intended to threaten or
intimidate.
supra, 394
See
~.A.V.,
~at
~~pra,
505 U.S. at 388, citing Watts,
707.
The Supreme Court made this point explicitly in Virginia v.
Black, which considered the constitutionality, under the First
Amendment, of Virginia's cross-burning statute.
The Court
distinguished between cross burning as a political statement and
cross burning with an intent to intimidate.
It held the former
to be protected speech; and the latter, a form of "true threat"
that the state could constitutionally prohibit.
See 538 U.S. at
362-63.
The Court also struck down a provision in the statute that
made cross burning prima facie evidence of intent to intimidate.
[T]he prima facie provision strips away the
very reason why a state may ban cross
burning with the intent to intimidate ....
[It] permits a jury to convict in every
cross burning case in which defendants
exercise their constitutional right not to
put on a defense.
And even where a
defendant ... presents a defense, the prima
facie evidence provision makes it more
likely that a jury will find an intent to
intimidate regardless of the particular
facts of the case.
Id. at 365.
By eliminating the subjective intent requirement,
11
the Court said, the provision created "an unacceptable risk of
suppression of ideas" because of "the possibility that a State
will prosecute - and possibly convict - somebody engaging in
only lawful political speech at the core of what the First
Amendment is designed to protect."
N.J.S.A. 2C:l6-l(a) (3)
constitutional flaw.
Id.
suffers from the identical
Because "hate speech," like cross burning,
can be either protected or unprotected, a subjective intent
requirement is necessary to distinguish between protected
expression and conduct whose motive - when reflected in a
defendant's speech - subjects it to enhanced punishment.
By eliminating the requirement of a defendant's subjective
intent, and substituting the victim's perception of what the
defendant intended, subsection -l(a) (3)
creates not just an
"unacceptable risk of the suppression of ideas," but the
likelihood of such suppression.
It mandates, in effect, that
criminal punishment turn on a listener's reaction to
controversial speech rather than on the defendant's actual
motive for engaging in prohibited conduct.
As noted above,
the First Amendment.
that substitution strikes at the core of
The state cannot circumscribe speech
because listeners deem it unacceptable.
No more may it enhance
criminal punishment because a listener "reasonably believes" a
12
defendant's speech implies discriminatory intent.
The First
Amendment disables the state from allowing either judgment; in
both cases, the risk of suppression of unacceptable ideas is too
high.
The state may argue (as it did in its petition for
certification) that existence of a "content-neutral" predicate
crime removes any First Amendment objection to the statute.
That argument begs the relevant constitutional question.
When the state seeks to establish a penalty-enhancing
motive based on a defendant's speech, a subjective intent
requirement is just as necessary to protect speech as it is when
the state seeks to proscribe speech directly.
In both
instances, the risk is that listeners' reactions will determine
whether speech is protected or punished.
The existence of a
predicate crime does not diminish that risk.
Moreover, by predicating liability on the victim's
"reasonable belief" of bias rather than the defendant's actual
intent, subsection -l(a) (3) creates an additional threat to
speech.
That standard "would allow a jury to impose liability
on the basis of a juror's tastes or views, or perhaps on the
basis of their dislike of a particular expression."
Magazine v.
Falwell,
485 U.S. 46,
55
(1988).
Hustler
In such cases, "a
jury is unlikely to be neutral with respect to the content of
13
the speech, posing a real danger of becoming an instrument for
the suppression of vehement, caustic and sometimes unpleasant
expression."
Snyder v.
Phelps, 562 U.S.
, 131 S.Ct.
1207, 1219 (2011) . 2
In sum, N.J.S.A. 2C:l6-l(a) (3)
uncouples liability from
proof of a criminal defendant's subjective intent, and
consequently creates an unacceptable risk that a jury will
punish protected speech.
The Appellate Division found that this
provision violates the First Amendment, and this Court should
affirm that holding.
B.
The Appellate Division Properly Concluded
That N.J.S.A. 2C:16-l{a) {3) Is
Unconstitutional As Written, But Should Not
Have "Rewritten" The Statute Or Remanded For
Retrial.
The Appellate Division correctly concluded that N.J.S.A.
2C:l6-1 (a) (3) violated the First Amendment.
But the court erred
when it decided to "save" the statute by interpolating a
requirement that the state prove a defendant's biased intent
beyond a reasonable doubt.
By reading a "biased intent" element into N.J.S.A. 2C:16l(a) (3), the Appellate Division misapplied traditional modes of
statutory interpretation and overstepped its judicial role.
2
As a practical matter, because the jury must determine
"reasonableness," in this context the requirement is just
another way of saying society disapproves of the speech.
14
This Court should therefore affirm the statute's
unconstitutionality but leave any remedy to the legislature.
Moreover, because the jury in this case found that the defendant
did not possess any discriminatory intent, the Court should
vacate the Appellate Division's order that the matter be
remanded for retrial.
"When interpreting statutory language, the goal is to
divine and effectuate the Legislature's intent."
State v.
Shelley, 205 N.J. 320, 323 (2011), citing DiProspero v. Penn,
183 N.J. 477, 492
(2005).
A court should begin its inquiry with
the statute's plain language, giving its terms their ordinary
and accepted meaning.
Shelley, supra, 205 N.J. at 323.
It must
give effect to every word of the statute, to avoid assuming the
legislature used meaningless, superfluous language.
Med. Soc.
Of N.J. v. N.J. Law Dep't of Law & Pub. Safety, 120 N.J. 18, 2627 (1990).
"When the Legislature's chosen words lead to one clear and
unambiguous result, the interpretative process comes to a close,
without the need to consider extrinsic aids.
205 N.J. at 323.
11
Shelley, supra,
Extrinsic aids, such as legislative history,
need only be employed when the statutory language, on its face,
yields "more than one plausible interpretation.
Here the statutory language is clear.
15
11
Id. at 323-24.
A plain reading of
N.J.S.A. 2C:l6-l(a) criminalizes bias intimidation in three
distinct ways.
The first two subsections explicitly contain a
mens rea requirement with respect to the intimidation.
2C:l6-l(a) (1)
N.J.S.A.
requires the defendant to act "with a purpose to
intimidate" the victim; N.J.S.A. 2C:16-l(a) (2)
requires the
defendant to "know" his conduct will intimidate the victim.
But N.J.S.A. 2C:l6-l(a) (3)
requirement.
contains no such mens rea
It only requires a finding that the victim
"reasonably believed" that either "the offense was committed
with a purpose to intimidate" or the victim was chosen on the
basis of a protected trait.
The defendant's actual intent is
irrelevant.
In construing a statute, a court must respect the
legislature's linguistic choices.
Here, the explicit inclusion
of a mens rea element in subsections -1 (a) (1) and -1 (a) (2) and
the deliberate omission of that requirement in subsection 1 (a) (3) necessarily implies that the legislature did not intend
the latter section to contain a mens rea requirement.
"The
expression of one thing suggests the exclusion of another left
unmentioned."
Borough of East Rutherford v. East Rutherford PBA
Local 275, 213 N.J. 190, 215 (2013)
(discussing statutory
construction principle of expressio unius est exclusio
alterius).
16
Given these straightforward canons of statutory
construction, the Appellate Division should have closed its
inquiry when it found subsection -l(a) (3)unconstitutional.
it did not.
But
Instead, it invoked the "canon of constitutional
avoidance" and the "rule of lenity" to read a mens rea element
into the subsection.
In this circumstance, however, application of these
doctrines is inappropriate.
Both the canon of constitutional
avoidance and the rule of lenity are means to narrow a
legislative enactment to avoid problems created by vagueness or
ambiguity.
See Shelley, supra, 205 N.J. at 324; State v.
Mortimer, supra, 135 N.J. at 533-34.
They are not meant to
override traditional canons of statutory interpretation,
particularly when statutory language is clear.
When a court does otherwise, it exceeds its mandate.
A
court must not "rewrite a plainly written enactment of the
Legislature" or "write in an additional qualification which the
Legislature pointedly omitted."
N.J. at 492.
DiProspero v. Penn, supra, 183
To engage in such "judicial surgery" is to run the
risk of invading the province of the legislative branch.
N.J. Const.
See
(1947), Art. III, §1.
Accordingly, once the lower court found N.J.S.A. 2C:161 (a) (3) unconstitutional, proper respect for the separation of
17
powers, and proper application of the canons of statutory
interpretation, required the court to stop, and leave amendment
of the statute - if desired - to the legislature.
Furthermore, the Appellate Division's re-interpretation of
the statute renders the subsection superfluous.
Subsections -
l(a) (1) and -l(a) (2) already provide the intent element the
court added to subsection -l(a) (3).
After the appellate court's
revision, anyone who violates the "amended" subsection -l(a) (3)
will have perforce violated subsections -l(a) (1) or -l(a) (2).
That outcome is illogical and dysfunctional.
Finally, given this redundancy, the Appellate Division also
erred by remanding the case for re-trial on the charge of bias
intimidation.
The jury acquitted defendant of violating
subsections -1 (a) (1) and -1 (a) (2), and therefore found that he
had no "intent to intimidate."
A remand for retrial on
"amended" subsection -l(a) (3) will therefore violate double
jeopardy principles, and would be fundamentally unfair.
See
State v. Womack, 145 N.J. 576, 582, cert. denied, 519 U.S. 1011
(1996).
IV.
3
CONCLUSION
The Appellate Division correctly held that N.J.S.A.
3
2C:16-
The Appellate Division recognized this double jeopardy issue,
but chose to remand rather than address it.
See 429 N.J. Super.
at 365.
18
1 (a) ( 3) violates the First Amendment.
By untethering bias
liability from a jury finding of defendant's subjective intent,
the statute creates a likelihood that juries will punish
protected speech merely because of the victim's reaction to it.
The First Amendment does not permit the state to constrain
speech on that basis.
The court below erred, however, when it rewrote the statute
to "save" it.
Its action, however well-intentioned, ignored or
misapplied canons of statutory construction, invaded the
legislature's province, and resulted in an erroneous remand.
Accordingly, for the reasons set forth above, the Court
should affirm the Appellate Division's decision declaring
N.J.S.A. 2C:16-l(a)
(3)
unconstitutional.
However, it should
disavow the lower court's revision of the statute and leave any
amendment to the legislature.
Finally, the Court should vacate
the Appellate Division's order remanding the case for retrial on
the bias intimidation charge.
DATED : /
j :s I IL{
Respectfully submitted,
Y, CORRADO & GRASSI, P.C.
By:
19