EGREGIOUS GOVERNMENTAL ABUSES AND THE RIGHT TO SUBSTANTIVE DUE PROCESS
Due Process Clause of the Fourteenth Amendment, such as the “right to be heard in an impartial forum,” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 161 (3d Cir. 2010), and the “right of access to the courts,” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). 16 Those rights “assure that no person will be denied the opportunity to present to the judiciary allegations concerning violations of . . . constitutional rights.” Wolff v. McDonnell, 418 U.S. 539, 579 (1974).
Holding that even malicious government defamation does not trigger constitutional protection. Siegert v. Gilley
Rather, substantive due process is reserved for the most egregious governmental abuses against liberty or property rights, abuses that “shock the conscience or otherwise offend . . . judicial notions of fairness . . . [and that are] offensive to human dignity.” Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989) (quotations omitted).
Our Supreme Court has repeatedly emphasized New Jersey “judges are required to maintain, enforce, and observe ‘high standards of conduct so that the integrity and independence of the judiciary may be preserved.’ ” “The Code is comprised of seven canons that provide both broad and specific standards governing the conduct of judges.” Substantive due process under article one, paragraph one of the New Jersey Constitution is “reserved for the most egregious governmental abuses against liberty or property rights, abuses that shock the conscience or otherwise offend judicial notions of fairness and that are offensive to human dignity.” Filgueiras v. Newark Public Schools, 426 N.J. Super. 449, 469 (App. Div.) (internal quotations, punctuation and citation omitted), certif. denied, 212 N.J. 460 (2012). Salah v. Gilson DOCKET NO. A-3617-11T2 (N.J. Super. App. Div. Apr. 19, 2013)
The “difficult and fact-sensitive” concept of egregiousness “does not lend itself to neat or precise definitions.” Quinlan, 204 N.J. at 274-75. But, the standard will be satisfied if plaintiff proves intentional wrongdoing, a wanton and willful disregard for plaintiff’s rights, or that defendants acted with actual malice. Id. at 274 See Mallon v. Hudson Sav. Bank DOCKET NO. A-4438-16T1 (N.J. Super. App. Div. Jul. 23, 2019)
Because the police used a deficient municipal subpoena to obtain protected subscriber information in this case, defendant’s motion to suppress was properly granted. The court identified various flaws with the municipal court subpoena and noted that the procedure followed by the police was “unauthorized in its entirety.” The court also concluded that Reid had an expectation of privacy in her Internet subscriber information on file with Comcast. Therefore, the trial court held that the subpoena violated Reid’s “right to be free from unreasonable searches and seizures” and was unconstitutional. State v. Reid 945 A.2d 26 (N.J. 2008).
The fact that the State used a municipal subpoena in violation of state statute is not in dispute, State v. Reid, 389 N.J. 563, 568 (App. Div. 2007): the question is whether the State may use the unlawfully acquired information. Moreover, where the state courts have remarked on the importance of compliance with technical requirements, the mistake at issue had the capacity to prejudice one of the parties. For example, Jensen cites to Cavallaro v. Jamco Property Management, where the court noted that “the subpoena power is a significant one which must be exercised in good faith and in strict adherence to the rules to eliminate potential abuses.” 334 N.J.Super. 557, 760 A.2d 353, 359 (N.J. S.Ct. App.Div. 2000).
It is highly likely, therefore, that the real purpose of this vast subpoena is to harass and intimidate Doe, his readers, and those who post comments on his blog. The Court should not permit this improperly motivated “fishing expedition to continue. See, e.g. Axelrod 185 N.J. Super. at 372; Korostynski v. Div. Gaming Enforcement, 266 N.J. Super. 549, 559 (App. Div. 1993); Brock v. Public Service Elect. & Gas Co., 325 N.J. Super. 582, 587 (App. Div. 1999).
“Finally, the judge found that defense counsel’s subpoena practice violated both RPC 3.4(c) and RPC 4.1 by “knowingly violat[ing] the Rules and ma [king] false statements to the person[s] to whom he addressed the documents.” Noting that defendant had already been provided privileged information as a result of the improper March 10 subpoenas, Judge Bernhard found that “[t]his Court has no other alternative, as a result of counsel’s egregious conduct, than to quash the subpoenas and disqualify counsel from further representation of the defendant in this case.” The judge ordered that any materials obtained as a result of those subpoenas, including those materials already sent by Drs. Riley and Gugliotta, be returned without defense counsel or defendant’s carrier making copies. Defense counsel was ordered to arrange for substitute counsel by April 24, 2000.” Citing Tony Cavallaro, Plaintiff-Respondent, v. Jamco Property Management, Defendant-Appellant, JML Landscaping, Inc., and Village Commons, Defendants. Superior Court of New Jersey, Appellate Division. Abuse of process is an intentional tort. Despite these limitations, a subpoenaed witness may motion to quash a subpoena or may refuse to answer “specific questions”, based upon a valid claim of privilege. In re Fire at Seton Hall University 368 N.J. Super. 269, 281 (N.J. Super. App. Div. 2003)
The Conduct of The Prosecutor’s Office In Compelling Rhonda Thomas’s Testimony Was So Egregious As To Deny Defendant His Constitutional Right To A Fair Trial. State v. Johnson 670 A.2d 1100 (N.J. Super. App. Div. 1996)
“Egregious use of subpoena power to obtain information in an impermissible manner has been held to be a violation of the New Jersey Rules of Professional Conduct, in particular r, R.P.C. 3.4(c) (fairness to opposing party and counsel) and R.P.C. 4.1 (truthfulness in statements to others). Id. at 572, 760 A.2d 353. Superior Court of New Jersey, Karen M. WELCH, Plaintiff, v. William B. WELCH, Defendant.
Finding counsel fees claimed by the defendant to be reasonable based on the detailed certification submitted by counsel. The circumstances present in this case are nothing like the egregious delays occasioned by the State’s inadequate preparation which we concluded denied the defendant his individual right to a speedy trial in Tsetsekas, supra, 411 N.J. Super. at 12-14.
The broad definition of a “public figure,” Lawrence v. Bauer Publishing Printing, 89 N.J. 451 , 463-65 (1982), makes the constitutional violation even more egregious. See Maressa v. New Jersey Monthly 445 A.2d 376 (N.J. 1982) State v. Iannone DOCKET NO. A-2206-12T3 (N.J. Super. App. Div. Feb. 11, 2014) Louisiana, Kentucky, Alaska, and Texas use similar terms to describe what constitutes the requisite “plus” for their judicial discipline purposes. See In re Boothe, 110 So.3d 1002, 1019 (La.2013) (reaffirming prior decision in Quirk, supra, 705 So.2d 172, and stating that judge may be disciplined when the “legal ruling or action [was] made contrary to clear and determined law about which there is no confusion or question as to its interpretation and where this legal error was egregious, made in bad faith, or made as part of a pattern or practice of legal error” (emphasis added));
Alred v. Commonwealth, 395 S.W.3d 417, 436 (Ky.2012) (holding that to impose sanctions, judge must have “acted in bad faith, engaged in a pattern of misconduct,” or the errors must have been egregious—“the judge’s legal ruling or action [must have been] made contrary to clear and determined law about which there is no confusion or question as to its interpretation” (internal quotation marks omitted)); In re Curda, 49 P.3d 255, 260–61 (Alaska 2002) (holding that “legal error that is neither willful nor part of a repeated pattern of misconduct is not an appropriate subject for discipline”); In re Barr, 13 S.W.3d 525, 545 (Tex.Rev.Trib.1998)
(stating legal error constitutes misconduct when “a legal ruling or action [is] made contrary to clear and determined law about which there is no confusion or question as to its interpretation and where the complained-of legal error is egregious, made as part of a pattern or practice of legal error, or made in bad faith” (emphasis added)), reh’g granted, reh’g overruled13 S.W.3d at 562. In re Dileo 83 A.3d 11 (N.J. 2014) Pursuant to RPC 8.4(d), “[i]t is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.” As this Court has explained, the broad language of the rule “takes on sufficient definition to pass constitutional muster” when its scope is narrowed “to particularly egregious conduct.” In re Hinds, 90 N.J. 604, 632 (1982).
When the rule is “the sole basis for discipline,” it applies only to conduct that “flagrantly violat[es] . . . accepted professional norms.” Ibid. In re Helmer D-17 (N.J. Mar. 6, 2019)
Noting “prosecutorial misconduct can be a ground for reversal where the prosecutor’s misconduct was so egregious that it deprived the defendant of a fair trial” State v. Frost 727 A.2d 1 (N.J. 1999)
This is particularly egregious because plaintiff attempted to cause a public entity to pay money which it could not lawfully pay. Khoudary v. Salem County 615 A.2d 281 (N.J. Super. App. Div. 1992)
However, we point to the administrative law judge’s statement that Valley’s decline, especially its failure to pay overdue taxes, was the “most egregious example of corporate mismanagement [he] had [ever] witnessed.” In re Valley Rd. Sewerage, 285 N.J. Super. at 208, 666 A.2d 992. The report does not furnish any basis grounded in firmly established medical facts for a legal excuse or justification for respondent’s misappropriations. There has been no demonstration by competent medical proofs that respondent suffered a loss of competency, comprehension or will of a magnitude that could excuse egregious misconduct that was clearly knowing, volitional and purposeful. Matter of Greenberg 714 A.2d 243 (N.J. 1998)
In evaluating whether prosecutorial misconduct requires reversal, we must determine whether the conduct “was so egregious that it deprived the defendant of a fair trial.” State v. Frost, 158 N.J. 76, 83 (1999) (citing Ramseur, supra, 106 N.J. at 322).
Usually, if no objection is made during summation, then the remarks will not be considered prejudicial. Id. at 323; State v. Ingram, 196 N.J. 23, 42 (2008). However, in particularly egregious circumstances, the prosecutor’s comments may rise to the level of plain error, regardless of whether the defense objects. See, e.g., State v. Goode, 278 N.J. Super. 85, 89-92 (App. Div. 1994). State v. Smith DOCKET NO. A-4276-10T4 (N.J. Super. App. Div. Jul. 11, 2013)
The award of exemplary damages was intended to punish the defendants for their egregious conduct. Fischer v. Johns-Manville Corp., 103 N.J. 643 , 657 (1986); Cappiello v. Ragen Precision Indus., Inc., 192 N.J. Super. 523 , 527-528 (1984), Potter v. Village Bank of New Jersey 543 A.2d 80 (N.J. Super. App. Div. 1988)
The Commission recognized “that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual’s disciplinary history.” In re Stallworth 26 A.3d 1059 (N.J. 2011) Cases involving egregious violations of RPC 8.4(c), even where the attorney has a non-serious ethics history, have resulted in the imposition of terms of suspension. See, e.g., In re Carmel, 219 N.J. 539 (2014), In re Steiert, 220 N.J. 103 (2014), and In re Franco, 227 N.J. 155 (2016) and In re Clausen Docket No. DRB 16-426 (N.J. Jun. 27, 2017).
It is settled that objection to jurisdiction may be made at any time, including the time of the beginning of a trial de novo before a County Court. Noting that the remedy of dismissal for discovery violations requires either “intention inconsistent with fair play” or “egregious carelessness or prosecutorial excess tantamount to suppression” Before a dismissal of an indictment is warranted in such circumstances, we believe there must be a finding of intention inconsistent with fair play and therefore inconsistent with due process or an egregious carelessness. State v. Clark 790 A.2d 945 (N.J. Super. App. Div. 2002)
We recognize that the circumstances in Jamison were far more egregious than those present here. So too, we acknowledge that it is generally within a trial judge’s discretion to apprise a witness, who has been subpoenaed to appear, of his privilege against self-incrimination. Cf. Van Horn v. City of Trenton, 80 N.J. 528 , 535-536 (1979); State v. Vinegra, 73 N.J. 484, 488-489 (1977); State v. Williams, 59 N.J. 493 , 503 (1971); State v. DeCola, 33 N.J. 335 , 342 (1960); State v. Fary, 19 N.J. 431 , 436 (1955).
This much conceded, we are convinced that such authority should be exercised sparingly and with great caution, particularly where, as here, the prospective witness is not in imminent peril of being charged with a criminal offense, and assertion of the privilege will have the effect of suppressing evidence. State v. Johnson 538 A.2d 388 (N.J. Super. App. Div. 1988) However, on appeal, we noted “dismissal with prejudice, should not be invoked except in the case of egregious conduct on the part of” appellant. Id. at 393. Connors v. Sexton Studios, 270 N.J. Super. 390, 393 (App. Div. 1994).
Dawn’s criminal conduct amounts to egregious conduct. In cases where the misconduct rises to the level of egregious fault (for example, where one spouse attempts to murder the other, or deliberately infects the other with a loathsome disease), where “society would not abide continuing the economic bonds between the parties,” the misconduct may preclude any alimony award. Id. at 92. Puchalsky v. Puchalsky DOCKET NO. A-0413-13T3, at *23 (N.J. Super. App. Div. Jun. 22, 2015)
In re Hall, 170 N.J. 400 (2002) (three-year suspension imposed on attorney who made numerous misrepresentations to trial and appellate judges, made false and baseless accusations against judges and adversaries, served a fraudulent subpoena, failed to appear for court proceedings and then misrepresented that she had not received notice, and displayed egregious courtroom demeanor by repeatedly interrupting others and becoming unduly argumentative and abusive; the misconduct occurred in four cases and spanned more than one year; the attorney had received a three-month suspension for similar misconduct. Indeed, “one sufficiently egregious action [may] constitute domestic violence under the Act, even with no history of abuse between the parties.” Cesare v. Cesare, 154 N.J. 394, 402 (1998), T.F. v. F.S. DOCKET NO. A-2137-15T4 (N.J. Super. App. Div. Jul. 7, 2017)
The judge found plaintiffs “posture” “especially egregious in light of everyone’s knowledge of the defendant’s existing medical problems during much of the pendency of the case.” Addesa v. Addesa 919 A.2d 885 (N.J. Super. App. Div. 2007)
The policies of uniformity, predictability and security are conspicuously undermined by plaintiff’s conduct. Plaintiff took advantage of her position of trust to avail herself of confidential materials for purely self-serving reasons. Her conduct becomes even more egregious when considering that she was acting as an attorney with an ethical duty of loyalty to her client/employer RPC 1.13; RPC 1.6; and a commensurate responsibility to comport herself at all times as an officer of the court. RPC 8.4 (c). Tartaglia v. Paine Webber 775 A.2d 786 (N.J. Super. App. Div. 2001)
Here, respondent’s conduct was also prejudicial to the administration of justice, in violation of RPC 8.4(d), and was egregious. In re O’Hara Docket No. DRB 15-136 (N.J. Dec. 8, 2015)
In my opinion, defense counsel’s utterly inadequate performance requires a presumption that defendant was prejudiced. “When there are `egregious shortcomings in the professional performance of counsel’ a presumption of prejudice arises without inquiry into the actual conduct of the trial.” Marshall III, supra, 148 N.J. at 312, 690 A.2d 1 (Handler, J., dissenting) (quoting Fritz, supra, 105 N.J. at 61, 519 A.2d 336); accord State v. Jack, 144 N.J. 240 , 249, 676 A.2d 545 (1996) State v. Morton 715 A.2d 228 (N.J. 1998)
The out-of-state cases point toward allowing recovery for emotional distress as a result of wrongful dishonor in egregious circumstances. Recovery for emotional distress has been allowed as “consequential damages,” Shaw v. Union Bank Trust Co., 640 P.2d 953, 954 (Okla. 1981), and as “actual damages,” Kendall Yacht Corp. v. United California Bank, 50 Cal.App.3d 949, 955, 123 Cal.Rptr. 848, 854 (1975); White Summers, supra, § 17-4 at 675.
Claims for emotional distress have been circumscribed with the requirement of proof that the wrongful dishonor was the result of an intentional tort, gross negligence, willful or wanton conduct, Farmers and Merchants State Bank of Krum v. Ferguson, 617 S.W.2d 918, 921 (Tex. 1981), and that the bank had acted willfully or maliciously so as to justify a claim for punitive damages, Bank of Louisville Royal v. Sims, 435 S.W.2d 57, 58 (Ky. 1968).
One leading authority, Anderson, supra, § 4-402:12 at 155, would limit claims for emotional distress to instances in which the bank acted maliciously, but another authority would not require proof of malice, White Summers, supra, § 17-4 at 675. Buckley v. Trenton Saving Fund Society 544 A.2d 857 (N.J. 1988)
Noting prosecutor’s summation included baseless accusations and was so egregious as to warrant reversal. Still more egregious was the prosecutor’s argument that it was the function of the jury to protect young victims of alleged sexual offenses as a group. The clear import was that unless the jury convicted defendant, the jurors would violate their oaths. Warnings to a jury about not doing its job is considered to be among the most egregious forms of prosecutorial misconduct. State v. Knight, 63 N.J. 187 , 193, 305 A.2d 793 (1973).
That argument alone had the clear capacity to deprive defendant of his constitutional right to a fair trial. State v. Acker 627 A.2d 170 (N.J. Super. App. Div. 1993) The prosecutor’s statement was clearly and unmistakably improper. His tactic, plainly designed…..departure from the high level of professionalism that otherwise characterized the conduct of both the prosecution and the defense during this trial..” State v. Williams, supra, 113 N.J. at 452, 550 A.2d 1172.
The prosecutor’s conduct was particularly egregious because the statement came at the end of his summation. Id. at 453, 550 A.2d 1172. State v. Hightower 577 A.2d 99 (N.J. 1990)
 State v. Miller, 29 N.J. Super. 347 (Cty. Ct. 1954); State v. Walters, 14 N.J. Super. 234 (Cty. Ct. 1951); State v. Auf Der Heide, 23 N.J. Super. 56 (Cty. Ct. 1952).