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National Association for Advancement of Colored People v. State

June 22, 1998


Before Judges King, Kestin and Cuff.

The opinion of the court was delivered by: Kestin, J.A.D.

[9]    Argued: May 28, 1998

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Mercer County.

Plaintiffs appeal, on leave granted, from the portion of the trial court's order of November 19, 1997 which denied admission pro hac vice to David L. Rose and Joshua N. Rose, and from the order of January 9, 1998 which, on reconsideration, confirmed the ruling. The issue is whether the trial court correctly applied "countervailing considerations" to deny pro hac vice status to these out-of-state attorneys who it found had satisfied the "good cause" requirement of R. 1:21-2(a)(3) applicable in civil matters. We regard the showing of countervailing considerations to have been deficient, furnishing no adequate basis in the record for the trial court's determination. Accordingly, we reverse.

The amended complaint impugns recruitment and selection standards and practices of the Division of State Police (Division). It pleads unlawful discrimination in employment violative of federal law, 42 U.S.C. § 2000e-2 to -16 (Title VII), and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42. In addition to a general challenge, there are specific counts addressing the Division's requirement for a college education as a prerequisite for selection, and its use of an entry-level written examination, the Law Enforcement Candidate Record (LECR).

Shortly after issue was joined, plaintiffs filed a motion for pro hac vice admission of David L. Rose and Joshua N. Rose. The Division opposed the motion on the ground that there was an appearance of impropriety with respect to David Rose's involvement because he may have gained knowledge concerning the LECR during his employment with the U.S. Department of Justice. The motion Judge then presiding over the case questioned whether David Rose had acquired proprietary information from the developer and publisher of the LECR, Richardson, Bellows, Henry & Co., Inc. (RBH). Plaintiffs were afforded an opportunity to file a supplemental certification addressing that question, but withdrew the motion instead.

Some five months later, a second motion was filed, seeking pro hac vice status for David L. Rose, Joshua N. Rose, and Richard T. Seymour. That motion came before a different Judge. In apparent response to concerns expressed on the first motion, plaintiffs sought the pro hac vice admission of Joshua Rose and David Rose with respect only to the counts of the complaint containing the general allegations and those bearing upon the college education requirement. It was proposed that Mr. Seymour would represent plaintiffs in the attack on the LECR, and that David Rose and Joshua Rose would represent plaintiffs as to the balance of the complaint. The Division renewed its objections and, after oral argument and submission of supplemental briefs, the motion to admit Mr. Seymour pro hac vice was granted. The motion as to David Rose and Joshua Rose was denied because of an appearance of impropriety.

Initially, the motion Judge concluded in respect of both David Rose and Joshua Rose that the appearance of impropriety was sufficient to overcome the good cause justification for granting pro hac vice status, which had been satisfied. Upon reconsideration, however, the rationale of the ruling was modified. The motion Judge determined that the finding regarding the appearance of impropriety did not apply to Joshua Rose, but that he could not be "screened out" from David Rose in that regard because "[t]hey're related. They share space. They work together." Accordingly, the determination to deny admission pro hac vice to both David Rose and Joshua Rose was reaffirmed.

We adopt the motion Judge's recitation of the factual background:

From 1969 to December 1, 1987, David Rose was Chief of the Employment Litigation Section of the United States Department of Justice. In addition to his regular duties as Section Chief, Mr. Rose participated during the late 1970s as the Department of Justice representative on the inter-agency task force that drafted the Uniform Guidelines on Employee Selection Procedures now codified at 29 C.F.R. 1607. Part of his role in the development of the Uniform Guidelines was to review and conduct meetings with representatives of different organizations and groups that were interested in the Uniform Guidelines. At that time, Mr. Rose met with Frank Erwin, President of RBH, Inc., because of the role that Mr. Erwin played in supplying comments on various drafts of the proposed guidelines.

From 1981 through 1987, there was a marked change in the policies of the Justice Department, particularly with regard to the enforcement of anti-discrimination laws such as Title VII. Among the changes was a new policy adopted by the Assistant Attorney General for Civil Rights to work with employers in order to develop a procedure for the selection of police officers which was valid but had a less adverse impact than tests which had been traditionally used. In their efforts to identify valid police exams with less discriminatory effect, Mr. Rose and several attorneys in the Employment Section began to work with Mr. Erwin and his company, RBH, to develop a new generation of entry level police examinations.

The first meeting on the subject of whether RBH could develop a job-related police test took place on May 29, 1985. A second meeting took place on June 12, 1985, which consisted of a review of certain items in the autobiographical section of another RBH test, but of a type which was subsequently incorporated into the LECR. On July 30, 1985, another meeting was held at which Mr. Erwin presented information on the LECR's proposed development to representatives of the New Jersey State Attorney General's Office, the New Jersey State Police, the City of Philadelphia, and Jackson, Mississippi. Additional meetings were held with Mr. Rose on February 10, 1986 and September 5, 1986. Mr. Rose and Mr. Erwin made a presentation on August 6, 1986 to the Public Safety Committee of the Suffolk County Legislature outlining a proposed consent decree under which Suffolk would participate in the LECR development program. In 1987, Mr. Erwin met with Justice Department personnel on January 15, March 4, May 27, June 16, July 2, August 5, September 25, October 13, December 1, and December 29. Mr. Rose attended at least two of these meetings, if not more. Mr. Erwin had subsequent contacts with Mr. Rose even after he left the Department of Justice in which LECR data was discussed.

Mr. Rose's role in the LECR project was to encourage employers like the New Jersey State Police to participate in RBH's validation studies for the development and use of police officers' examinations by allowing RBH to administer the experimental instrument to incumbent officers. Mr. Rose played no role in determining the contents or formulation of the examination or the conduct of the validity studies. After Mr. Rose left the Department of Justice on December 1, 1987, he had access to data that Mr. Erwin sent to him by mail, constituting the reports of RBH attempting to show the validity of the LECR and the adverse impact it had against African-Americans and Hispanics. Mr. Rose did not have a role in the formulation of those validity reports by RBH.

We concur with the motion Judge's determination that both David Rose and Joshua Rose met the good cause requirement of the pro hac vice appearance rule by reason of their attorney-client relationships for an extended period with plaintiff National Association for the Advancement of Colored People (NAACP), R. 1:21-2(a)(3)(ii), if not also because the cause of action "involves a complex field of law in which [they are] specialist[s]," R. 1:21-2(a)(3)(i), or for other reasons "present[ing] good cause," R. 1:21-2(a)(3)(vi). The rule requires that only one of the stated justifications be satisfied. L. Feriozzi Concrete Co. v. Mellon Stuart Co., 229 N.J. Super. 366, 368-69 (App. Div. 1988). The fact that David Rose has represented the NAACP regularly since his retirement from the United States Department of Justice in 1987 after some thirty-one years ...

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