January 22, 2008
KEVIN CONLEY, INDIVIDUALLY AND AS A REPRESENTATIVE FOR HIS BIOLOGICAL MOTHER, JEAN CONLEY, AND HIS BIOLOGICAL FATHER, ROBERT CONLEY, PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY, JON CORZINE, GOVERNOR, STATE OF NEW JERSEY, ANNE MILGRAM, NEW JERSEY ATTORNEY GENERAL, COLONEL RICK FUENTES, SUPERINTENDENT, NEW JERSEY STATE POLICE, GEORGE W. HAYMAN, COMMISSIONER, NEW JERSEY DEPARTMENT OF CORRECTIONS, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3024-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2007
Before Judges Lisa and Simonelli.
Plaintiff appeals from the order of July 19, 2006, dismissing this matter for failure to state a claim, pursuant to Rule 4:6-2(e). We affirm.
A jury convicted plaintiff of first degree murder, possession of a weapon for unlawful purpose, burglary, first degree aggravated sexual assault, and first degree felony murder. Plaintiff appealed his conviction and sentence. We remanded for reconsideration of plaintiff's sentence. State v. Conley, No. A-6120-96T4 (App. Div. March 9, 2000) (slip op. at 29), certif. denied, 165 N.J. 490 (2000). On March 28, 2000, the trial judge re-sentenced plaintiff to life imprisonment with a thirty-year period of parole ineligibility on the first degree murder conviction; a consecutive eighteen years imprisonment with an eight-year period of parole ineligibility on the first degree aggravated sexual assault conviction; and a concurrent eight years imprisonment on the burglary conviction. The trial judge merged the possession of a weapon and felony murder conviction for purposes of sentencing into the first degree murder conviction. Based upon his conviction for aggravated sexual assault, plaintiff provided a DNA sample pursuant to the DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17 to -20.28 (the DNA Act).
Plaintiff filed the complaint in this matter "individually and as a representative" for his biological mother and father. On behalf of his parents, plaintiff alleges, among other things, that because his DNA is an exact match to half of the DNA he shares in common with his father and half of the DNA he shares with his mother, and because his DNA profile has been placed into the DNA databank, his parents have lost the protection against a warrantless and unreasonable search and seizure; their rights to privacy and equal protection have been violated; and they have been deprived of just compensation for the taking of their private genetic property for public use. On his own behalf, plaintiff alleges the DNA Act violates his Fifth Amendment*fn1 and State constitutional rights by compelling him to provide his fingerprints on the DNA Databank Specimen Submission form, thereby forcing him to authenticate the chain of custody of the DNA profile and become a witness against himself.
The State moved to dismiss the complaint for failure to state a claim upon which relief can be granted. R. 4:6-2(e). Judge Paul Koenig granted the motion. This appeal followed.
A motion to dismiss a complaint for failure to state a cause of action must be denied if, giving the plaintiff the benefit of all of his or her allegations and all favorable inferences, a cause of action has been made out. R. 4:6-2(e); Burg v. State, 147 N.J. Super. 316, 319-20 (App. Div.), certif. denied, 75 N.J. 11 (1977). The "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citing Rieder v. State, 221 N.J. Super. 547, 552 (App. Div. 1987)). The reviewing court must search the complaint "'in depth and with liberality'" to see whether the basis for a cause of action may be found even in an "'obscure statement of a claim,'" ibid. (quoting DiCristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957)), but it cannot "consider anything other than whether the complaint states a cognizable cause of action." Rieder, supra, 221 N.J. Super. at 552 (citing P&J Auto Body v. Miller, 72 N.J. Super. 207, 211 (App. Div. 1962)). A dismissal is mandated where the factual allegations are insufficient to support a claim for which relief can be granted. Camden County Energy Recovery Assocs. v. N.J. Dep't of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd, 170 N.J. 246 (2001). With these standards in mind, we address plaintiff's contention that Judge Koenig erred in granting the State's motion to dismiss for failure to state a claim.
The judge dismissed the complaint as to plaintiff's parents, finding plaintiff could not represent them. Rule 1:21-1(a) provides, in relevant part, that no person shall practice law in this State unless that person is an attorney holding a plenary license. . . .
A person not qualifying to practice pursuant to the first paragraph of this rule shall nonetheless be permitted to appear and prosecute or defend an action in any court of this State if the person (1) is a real party in interest to the action or the guardian of the party[.]
A person who is not an attorney cannot conduct legal proceedings in court on behalf of others. Kasharian v. Wilentz, 93 N.J. Super. 479, 482 (App. Div.), certif. denied, 48 N.J. 447 (1967).
Here, plaintiff is not an attorney holding a plenary license, nor is he his parents' guardian. Accordingly, the judge properly concluded plaintiff cannot prosecute this action on behalf of his parents.
The judge also dismissed the complaint as to plaintiff's parents, finding they lacked standing to challenge the taking of plaintiff's DNA sample. Standing is governed by Rule 4:26-1, which provides that "[e]very action may be prosecuted in the name of the real party in interest. . . ." Standing "'refers to the plaintiff's ability or entitlement to maintain an action before the court.'" In re Adoption of Baby T, 160 N.J. 332, 340 (1999) (quoting N.J. Citizen Action v. The Riviera Motel Corp., 296 N.J. Super. 402, 409 (App. Div.), certif. granted, 152 N.J. 13 (1997), appeal dismissed as moot, 152 N.J. 361 (1998)). The essential purpose of the standing doctrine is to assure that the invocation and exercise of judicial power in a given case are appropriate. Further, the relationship of plaintiffs to the subject matter of the litigation and to other parties must be such to generate confidence in the ability of the judicial process to get to the truth of the matter and in the integrity and soundness of the final adjudication. Also, the standing doctrine serves to fulfill the paramount judicial responsibility of a court to seek just and expeditious determinations on the ultimate merits of deserving controversies. [N.J. State Chamber of Commerce v. N.J. Election Law Enforcement Comm'n, 82 N.J. 57, 69 (1980).]
To possess standing, the plaintiff must have a "sufficient stake and real adverseness with respect to the subject matter of the litigation," id. at 67 (citing Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107 (1971)), and there must be "[a] substantial likelihood of some harm visited upon the plaintiff in the event of an unfavorable decision." Ibid.
(citing Home Builders League of S. Jersey, Inc. v. Twp. of Berlin, 81 N.J. 127, 134-35 (1979), overruled in non-relevant part by S. Burlington County NAACP v. Twp. of Mt. Laurel, 92 N.J. 158 (1983), rev'd sub. nom. Urban League of Greater N. Brunswick v. Carteret, 115 N.J. 536 (1989)). If a plaintiff lacks standing, the court is precluded from entertaining any of the substantive issues presented for determination. Watkins v. Resorts Int'l Hotel and Casino, Inc., 124 N.J. 398, 424 (1991); Crescent Park, supra, 58 N.J. at 107.
The DNA Act is "limited to offenders who have engaged in conduct defined as a crime." A.A. ex rel. B.A. v. Attorney Gen. of N.J., 384 N.J. Super. 67, 92 (App. Div. 2006), aff'd, 189 N.J. 128 (2007). The DNA Act is about collection and maintenance of information identifying offenders, after guilt is established, in order to detect and deter their recidivist acts, should there be any; it is not about law enforcement officers electing to search the general population with the hope of detecting criminal activity. . . . [Id. at 92-93.]
Here, plaintiff's parents are not offenders who have engaged in conduct defined as a crime. Thus, the DNA Act does not apply to them. The DNA Act also cannot be used to obtain any information about them, or detect any criminal activity by them. As such, their rights were not violated by the taking of plaintiff's DNA sample, and Judge Koenig properly determined they lack standing to challenge it.
Plaintiff contends the judge improperly dismissed his Fifth Amendment and State constitutional claims. He argues his rights were violated by the requirement that he put his fingerprints on the DNA specimen form, resulting in him being a witness against himself by compelling him to authenticate the chain of custody of the DNA profile. We disagree.
The DNA Act requires all adult and juvenile offenders who have been convicted of a crime, if the offender was serving a term of imprisonment, parole or probation or any other constraint imposed by judgment of conviction as of September 22, 2003, to submit to DNA testing. N.J.S.A. 53:1-20.20; State v. O'Hagen, 189 N.J. 140, 147-48 (2007). Cooperation from a qualifying offender in providing a DNA sample is an express condition of conviction. N.J.S.A. 53:1-20.20g; State v. Vazquez, 374 N.J. Super. 252, 270 (App. Div. 2005). The constitutionality of the DNA Act has been upheld. O'Hagen, supra, 189 N.J. at 165. Thus, a provision requiring a qualifying offender to put his or her fingerprints on a DNA specimen form is merely a means to ensure the identity of the person giving the sample.
Plaintiff cites no case law supporting his Fifth Amendment argument. The State, however, cites numerous federal cases concluding that the Fifth Amendment does not provide protection against DNA testing. See Schmerber v. California, 384 U.S. 757, 764-65, 86 S.Ct. 1826, 1832-33, 16 L.Ed. 2d 908, 916-17 (1966) (holding that blood test evidence, even if potentially incriminating, is neither testimony nor evidence relating to any communicative act; thus, the involuntary seizure of a blood sample does not implicate the Fifth Amendment privilege); Shaffer v. Safle, 148 F.3d 1180, 1181 (10th Cir. 1998), cert. denied, 525 U.S. 1005, 119 S.Ct. 520, 142 L.Ed. 2d 431 (1998) (rejecting plaintiff's "Fifth Amendment self-incrimination claim because DNA samples are not testimonial in nature"); Belgarde v. Montana, 123 F.3d 1210, 1214 (9th Cir. 1997) (blood test results from non-consensual blood test, which ultimately lead to defendant's conviction are not testimonial or communicative evidence implicating Fifth Amendment concerns); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996) (plaintiff's Fifth Amendment claim, alleging that requiring DNA samples from inmates amounts to compulsory self-incrimination, fails because DNA samples are not testimonial in nature); United States v. Pipito, 861 F.2d 1006, 1009 (7th Cir. 1987) ("[T]he Fifth Amendment privilege against compelled self-incrimination is a testimonial privilege and . . . the taking of blood samples or fingerprints is not equivalent to the taking of communicative testimonial evidence").
Because neither DNA samples, nor fingerprints, are testimonial in nature, the Fifth Amendment offers no protection to plaintiff. Accordingly, Judge Koenig properly dismissed plaintiff's Fifth Amendment claims.
The judge also properly dismissed plaintiff's State constitutional claims. Collecting a DNA sample is merely a means of collecting and maintaining information identifying criminal offenders. A.A., supra, 384 N.J. Super. at 96. The system of maintaining a DNA sample is no different than maintaining a system for fingerprinting, id. at 95-96 (citing McGovern v. Van Riper, 137 N.J. Eq. 548, 549-50 (E. & A. 1946)), and the collection occurs only after guilt has been established. Id. at 92. Thus, the State constitution provides no protection against the taking of a DNA sample and the use of fingerprints to accurately identify the sample taken.