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Greenberg v. Kimmelman

Decided: July 2, 1985.

BARBARA A. GREENBERG, PLAINTIFF-APPELLANT,
v.
IRWIN I. KIMMELMAN, ATTORNEY GENERAL OF NEW JERSEY, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None. The opinion of the Court was delivered by Pollock, J.

Pollock

The issue on this appeal concerns the constitutionality of N.J.S.A. 52:13D-17.2b (casino ethics amendment), an amendment to the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 to -27 (Conflicts of Interest Law). That amendment prohibits virtually all state officers and employees, including full-time members of the judiciary and their immediate families, from employment with casinos. The prohibition operates in conjunction with the New Jersey Casino Control Act, N.J.S.A. 5:12-1 to -152, which forbids casinos from hiring persons who are barred from accepting employment under the Conflicts of Interest Law. N.J.S.A. 5:12-117.1. Consequently, plaintiff, who is the wife of a Superior Court judge, is barred from casino employment.

The Law Division granted summary judgment sustaining the constitutionality of the statute. In an unreported decision, the Appellate Division affirmed, with one judge dissenting. Plaintiff appealed of right to this Court. R. 2:2-1(a)(2). We affirm.

I

On January 17, 1965, plaintiff married Manuel H. Greenberg, who in July 1972 was appointed a judge of the Superior Court. Earlier in 1972, the Conflicts of Interest Law became effective. That law prohibited state officers and employees, as well as their spouses, from accepting employment offered with the

intent to influence those employees or officers in the performance of their public duties. N.J.S.A. 52:13D-14.

In November 1976, New Jersey voters approved an amendment to the New Jersey Constitution that permitted casino gambling in Atlantic City. N.J. Const. (1947), art. 4, § 7, para. 2D. The following year the Legislature enacted the Casino Control Act, which is a comprehensive scheme for the regulation of casinos. In that act, the Legislature acknowledged the economic potential of the casino industry for New Jersey, particularly for Atlantic City. N.J.S.A. 5:12-1b(1), (3). The Legislature also recognized that the casino industry was particularly vulnerable to criminal infiltration, N.J.S.A. 5:12-1b(7), (9). Consequently, the Legislature determined that if casino gambling was to earn the public trust, strict regulations would be required. N.J.S.A. 5:12-1b(6), (7), (9), (13). Hence, the Legislature directed that the Conflicts of Interest Law should apply to Casino Control Commission (Commission) members and employees. N.J.S.A. 5:12-59a. From the outset of casino gambling, a spouse of a Commission member has been prohibited from employment by a casino licensee. N.J.S.A. 5:12-59e(5).

Plaintiff resides with her husband and sons at their home in Margate. Although she worked in various jobs before her marriage, since that time she has been engaged principally in raising her two sons, continuing her education at Atlantic Community College, and participating in community activities.

In March 1981, plaintiff received a license for employment as a casino hotel employee, a position that now requires only registration with the Commission. N.J.S.A. 5:12-91a. Two months later, in May of 1981, the Legislature amended the Conflicts of Interest Law by adopting the casino ethics amendment. The amendment extends restrictions on employment to "any member of the immediate family of any State officer or employee, or person * * *." N.J.S.A. 52:13D-17.2b. "Person" is defined to include a "full-time member of the Judiciary * * *," N.J.S.A. 52:13D-17.2a, and "member of the immediate family"

includes that person's spouse residing in the same household, N.J.S.A. 52:13D-13(i). Thus plaintiff, although free to work elsewhere, is precluded from casino employment.

II

As an exception to the general constitutional prohibition against gambling, N.J. Const. (1947) art. 4, § 7, para. 2, the Atlantic City casino industry enjoys a unique status in New Jersey. Consequently, the Legislature, the Commission and the Division of Gaming Enforcement (Division) have gone to great lengths to ensure the integrity and effectiveness of casino regulation.

In the Casino Control Act, the Legislature prescribed rigorous ethical obligations for Commission and Division personnel. N.J.S.A. 5:12-58 to -62. The Act also directed that members and employees of the Commission and the Division would be governed by the restrictions contained in the Conflicts of Interest Law. Thereafter, in 1980, the Legislature passed the casino ethics amendment, which extended the ethical restrictions to other state officials, including judges.

We have previously recognized the strong state interest in promoting scrupulous conduct by casino industry and regulatory officials. Thus, we have held that disclosure of confidential information required in an application for casino employment did not violate a license applicant's privilege against self-incrimination, freedom of association, or privacy rights. In re Martin, 90 N.J. 295 (1982). Recognizing that casinos are a pervasively regulated business, we have also sustained the right of the Division to conduct warrantless administrative searches of employees on casino premises. Id. Furthermore, we have affirmed a Commission ruling that conditioned approval of a casino operating license upon the dismissal of two casino key employees with ties to organized crime. In re Boardwalk Regency Corp. Casino License, 90 N.J. 361 (1982). More to the point, we have acknowledged that in fulfilling the legislative

purpose to "ensure propriety and preserve public confidence" in government, the casino ethics amendment "vitally serves a significant governmental purpose." Knight v. Margate, 86 N.J. 374, 391-92 (1981). In describing the purpose of the amendment, Justice Handler wrote:

The current amendment of the Conflicts of Interest Law deals specifically with the casino gambling industry. As a supplement of the Casino Control Act, as well as the Conflicts of Interest Law, [it] seeks further to sanitize casino gambling and its potentially corrupting effect upon government. Gambling is an activity rife with evil, so prepotent its mischief in terms of the public welfare and morality that it is governed directly by the Constitution itself. N.J. Const. (1947), Art IV, § 7, par. 2. As expressed in the Casino Control Act, which implements the Constitution's gambling clause, it is the pronounced policy of this State to regulate and control the casino industry with the utmost strictness to the end that public confidence and trust in the honesty and integrity of the State's regulatory machinery can be sustained. Ante at 380-381. This public policy calls for standards controlling the conduct of the State's officials and public employees in dealing with casino entities. [ Id. at 391-92.]

Although the regulation of judicial conduct ultimately reposes in this Court, Knight affirmed that the legitimacy of governmental concerns about casinos compelled judicial deference to the Legislature. 86 N.J. at 392. Now, as then, we do not perceive that the legislative restrictions will interfere with the sound administration of the judicial system.

As in Knight, our attention in the present case is not on the infiltration of casinos by organized crime, but on the potential threat of the casino industry to governmental integrity, particularly that of the judiciary. We are concerned not only with impropriety, but also with its appearance, which is always more subtle than impropriety itself. The threat posed by the appearance of impropriety is particularly insidious when the concern is that casinos, with their enormous economic power, might appear to infiltrate the judiciary.

It is against this background that we view plaintiff's contentions that the casino ethics amendment violates her property and liberty interest in obtaining casino employment, as well as her right to marry and right of familial association. She bases her claims on the due process and equal protection clauses of

the fourteenth amendment to the United States Constitution and article 1, paragraph 1 of the New Jersey Constitution. Generally speaking, plaintiff asserts that the restrictions are arbitrary, overbroad, and not rationally related to any legitimate governmental objective. Evaluation of her argument implicates both the nature of her rights and the standard of review to be accorded those rights. We begin with the standards of review under the federal and state constitutions.

III

Throughout this century, the United States Supreme Court has alternately resorted to the due process and the equal protection clauses of the fourteenth amendment to invalidate various forms of state legislation. Although both clauses are available as a means of protecting against unjustified state regulation of individual rights, they protect against different evils. When a court invalidates a statute on due process grounds, the court is saying, in effect, that the statute seeks to promote the state interest by impermissible means. Railway Express Agency v. New York, 336 U.S. 106, 112-13, 69 S. Ct. 463, 466-67, 93 L. Ed. 533, 539-40 (1949) (Jackson, J., concurring). In contrast, when a court declares a statute invalid on equal protection grounds, it is not saying that the legislative means are forbidden, but that the Legislature must write evenhandedly. Id.

During the first third of this century, the United States Supreme Court relied on the due process clause to invalidate various forms of economic legislation. This period is frequently described as the "Lochner Era," a reference to the Court's opinion in Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), which invalidated a state statute prescribing maximum hours of work for bakers. See generally Gunther, Constitutional Law 564-65 (1975) (discussing use of ...


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