The Legislature made no changes in the language which is the subject of these comments on subsections (a) and (b). However, several important procedural changes were made from which intent may be inferred. First, authority to dismiss under the statute was granted to the assignment judge rather than to the "court" generally as had been proposed. Second, the Legislature added to subsection (c) the provision that no prosecution can be dismissed thereunder without giving the prosecutor notice and an opportunity to be heard. Finally, and most significantly, the authority of the assignment judge to dismiss under this statute was made discretionary.
Opinion [188 NJSuper Page 658] On November 15, 1981, while serving concurrent four-year terms at the New Jersey State Prison on convictions of firearms violations, defendant was found to be in possession of .65 gram of cocaine. Discovery of this contraband occurred during the course of a strip-search conducted by security personnel at the Jones Farm, a minimum security facility in the prison system. He is charged in an indictment returned by the Mercer County grand jury with possession of a controlled dangerous substance, in violation of N.J.S.A. 24:21-20(a)(1). By motion directed to the assignment judge pursuant to N.J.S.A. 2C:2-11 he seeks an order dismissing the indictment on the ground that the violation charged "represents a de minimis infraction." The statute, entitled "De minimis infractions," reads:
The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant's conduct:
a. Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
b. Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
c. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The assignment judge shall not dismiss a prosecution under this section without giving the prosecutor notice and an opportunity to be heard. The prosecutor shall have a right to appeal any such dismissal.
N.J.S.A. 2C:2-11 establishes principles in our law without historical basis in New Jersey. It was enacted as a part of the New Jersey Code of Criminal Justice, chapter 95 of the Laws of 1978 effective September 1, 1979. The statutory language is patterned after that of § 2.12 of the Model Penal Code as adopted at the Annual Meeting of the American Law Institute in Washington, D.C., May 24, 1962. The Model Penal Code addresses a broad spectrum of criminal law areas and, with its Commentaries, is now a recognized treatise on the law of crime. Nearly 90% of the states have drawn upon the Code in codifications, revisions or proposed revisions of their criminal laws. Despite this broad acceptance, the "de minimis" provision has been interpreted on only a few occasions.
A threshold question in an interpretive discussion of the statute is whether significance may be attached to the headnote, "De minimis infractions." As noted earlier, in his moving papers defendant seeks a dismissal of the indictment on the ground that the offense charged is de minimis. However, while that phrase appears in the headnote, it is not found in the language of the statute. The criteria for an order of dismissal are set forth in three subsections and they are specific and
detailed. Yet counsel routinely argue, as does this defendant, that a dismissal is warranted as the offense charged constitutes a "de minimis infraction." Furthermore, cases in sister states with similar laws have routinely referred to the "de minimis" phrase in interpreting the statute. While the Legislature has declared that headnotes are not part of the statutes and may not be used to ascertain legislative intent, N.J.S.A. 2C:2-11 is exceptional.
Under ordinary circumstances the headnote is not part of a statute. N.J.S.A. 1:1-6 provides that "[i]n the construction of the Revised Statutes . . . no headnote . . . shall be deemed to be part of [the law]." Judicial decisions have confirmed that headnotes are not "a permissible guide to legislative intent." In re J.W., 44 N.J. Super. 216 (App.Div.1957), certif. den. 24 N.J. 465 (1957); State in the Interest of M.S., 129 N.J. Super. 61 (Cty.Ct.1974), aff'd 139 N.J. Super. 503 (App.Div.1976), rev'd on other grounds 73 N.J. 239 (1977).
Written directly into the Revised Statutes when adopted in 1937 was the mandate that "the classification and arrangement of the several sections of the Revised Statutes have been made for the purpose of convenience, reference and orderly arrangement," and that "therefore no implication or presumption of a legislative construction is to be drawn therefrom." R.S. 1:1-5; Asbury Park Press v. City of Asbury Park, 19 N.J. 183 (1955). Headnotes are not part of the Revised Statutes. R.S. 1:1-6. [ In re J.W., supra, 44 N.J. Super. at 224].
In the Crimes act, Revision of 1898, Pamph.L. (at p. 830), the word appears in the margin, and there is some similar marginal note attached to every other section in that volume and in every volume of session laws for over a century past. They appear in the various compilations back to Kinsey in 1732. Up to 1828 this was probably a custom, but in that year (Harrison's Compilation 163) the legislature enacted a statute, the second section of which requires the secretary of state to cause "each and every of the public laws to be copied for the press, with proper marginal notes to each section," and by section 5 of the same act the secretary was allowed "for making and preparing marginal notes and index" the sum of fifteen cents per one hundred words. The fifteen cent fee was repealed in 1881 (Pamph.L., p. 26), but the second section has been carried down to date in the various revisions. See Revised Statutes of 1847, page 711, section 2; Revision of 1877, page 1122, Comp.Stat. 1910, p. 4981; Revision of 1937, title 1, chapter 3, section 1, which has a footnote giving a full list of preceding statutes. It seems to be clear, therefore, that the marginal note is simply an editorial addition and is no part of the statute itself; and, indeed, this was expressly held by the late Chief Justice Depue in Howard Savings Institution v. Newark, 63 N.J.L. 65 (at p. 69). [120 N.J.L. at 282-283]
The Legislature has directed the Office of Legislative Services to cause a headnote "descriptive of the contents" to be printed at the beginning of those statutory sections "as it shall deem appropriate." N.J.S.A. 1:3-1. This function is performed as part of the duty of that office to organize, compile and number the statutes preparatory to their printing. N.J.S.A. 1:1-6 was intended to codify the prohibition against consideration of headnotes or other editorial comments not enacted by the Legislature. However, it would distort the legislative intent to conclude that when a headnote is not added in the codification of the law after its enactment but is included in the law as passed it is not a part of the statute. It is appropriate to consider a headnote which was before the members of the Legislature during their debate and vote.
N.J.S.A. 2C:2-11 presents such a case. The phrase "de minimis infractions" was taken from the Model Penal Code and was enacted with the text of the statute. See Senate Bill 738 (1978); L. 1978, c. 95. The purpose of the prohibition of N.J.S.A. 1:1-6 is absent. Therefore, the headnote is part of the statute and a
proper matter for consideration in ascertaining the intent of the Legislature.
"De minimis infractions," as used in the headnote to both § 2.12 of the Model Penal Code and N.J.S.A. 2C:2-11, has its origin in the common law maxim " de minimis non curat lex." See State v. Park, 55 Hawaii 610, 525 P. 2d 586 (Sup.Ct.1974), where, in referring to the de minimis statute, the court said:
The disposition of a case, whether civil or criminal, by the application of the maxim " de minimis non curat lex " is an exercise of judicial power, and nothing else. [Citations omitted]. The fact that the maxim is spelled out in statutory form and made specifically applicable in criminal cases does not change the nature of the power. [525 P. 2d at 592]
See, also, Commonwealth v. Houck, 233 Pa.Super. 512, 335 A.2d 389 (Super.Ct.1975), where it was stated that the Pennsylvania de minimis statute "makes applicable to the criminal law the principle ' de minimis non curat lex.'" 335 A.2d at 391. This principle is frequently invoked by the courts as justification for a refusal to adjudicate litigation in which relief would be afforded were a more substantial matter involved. Rendered into English, it is that "the law does not concern itself with trifling matters."
Historically, the maxim has been applied only to civil matters, and the instances where it may properly be applied are rare. Lisbon v. Bath, 21 N.H. 319 (Sup.Ct.1850). A comprehensive treatment of this fundamental principle is found in Annotation, "De minimis non curat lex," 44 A.L.R. 168 (1926). The basis of the maxim is that mere trifles or technicalities must yield to practical common sense and substantial justice. Goulding v. Ferrell, 106 Minn. 44, 117 N.W. 1046 (Sup.Ct.1908). This philosophy is found in the language of N.J.S.A. 2C:2-11, and the headnote "De minimis infractions" significantly underscores the intent of the Legislature that this be so, but that no broader import be attached to their enactment.
The Senate Judiciary Committee Statement accompanying Senate Bill 738, ultimately enacted as the New Jersey Code of Criminal Justice, mentions the "de minimis" section only briefly
and sheds little light on the Legislature's intent. Emphasizing that the statute is directed only to trifling ...