October 9, 2018
appeal from Superior Court of New Jersey, Law Division,
Somerset County, Docket No. L-1260-16.
J. McGuire, Deputy Attorney General, argued the cause for
appellants (Gurbir S. Grewal, Attorney General, attorney;
Jason W. Rockwell, Assistant Attorney General, of counsel;
Robert J. McGuire and Benjamin H. Zieman, Deputy Attorney
General, on the briefs).
J. Singer argued the cause for respondent (Vella, Singer and
Associates, PC, attorneys; David J. Singer and Lisa M. Leili,
of counsel and on the briefs).
Judges Sabatino, Haas and Sumners.
leave granted, the New Jersey Department of Environmental
Protection ("DEP") and three individual DEP
officials named as co-defendants in this civil action appeal
the Law Division's June 30, 2017 interlocutory order
insofar as it partially denied defendants' motion to
dismiss plaintiffs claims asserting constitutional and
certain statutory violations.
we are persuaded the trial court misapplied principles of
qualified immunity from suit in partially denying the
dismissal motion, we reverse the court's ruling and
remand for further proceedings to adjudicate the remaining
counts of plaintiff Radiation Data, Inc.'s
("RDI's") complaint. The agency did not violate
"clearly established" equal protection and due
process rights by pursuing a regulatory enforcement action
against plaintiff, and by directing that communications
between plaintiff and the agency be channeled through their
respective attorneys while the contentious administrative
litigation was ongoing.
stated, the backdrop of this matter is as
follows. RDI is a New Jersey corporation and is the
largest radon measurement business in the State. RDI has been
certified periodically by the DEP to provide radon services
pursuant to the Radiation Protection Act, N.J.S.A. 26:2D-1 to
-89, and associated regulations, N.J.A.C. 7:28-27.1 to
-27.35. The regulatory program is administered through the
DEP's Radon Section.
August 2009 and June 2010, the DEP issued six Administrative
Orders and Notices of Prosecution ("AO/NOP") to
RDI. RDI requested adjudicatory hearings for each of the six
AO/NOPs. The matters were transmitted to the Office of
Administrative Law ("OAL") and consolidated. On
March 14, 2013, an Administrative Law Judge ("the first
ALJ") issued a partial summary decision on the six
AO/NOPs. The first ALJ found in favor of the DEP on all but
two of the violations in the AO/NOPs.
then issued three additional AO/NOPs against RDI in February
2011, June 2013, and December 2014. RDI requested an
administrative hearing before the OAL on these additional
claimed violations. The matter was tried on intermittent days
before a second Administrative Law Judge ("the second
ALJ") between October 2015 and February 2016.
on June 28, 2017, the second ALJ issued a lengthy decision
finding the DEP had proven a majority of the violations. RDI
filed exceptions to those findings with the DEP Commissioner.
On November 1, 2017, the Commissioner issued a final agency
decision adopting the decision of both ALJs, with slight
modification. RDI's appeal in A-1777-17 ensued. Given the
pendency of that appeal, the DEP has yet to bring a penalty
enforcement action against RDI based on the violations.
in September 2016, RDI filed the present civil action in the
Law Division against the DEP and various DEP
officials. In general, the lawsuit alleges defendants
retaliated against RDI after the company contested the
AO/NOPs issued by the agency.
specifically, RDI alleges that defendants engaged in a
"pattern of harassing, intimidating, discriminatory, and
threating conduct." RDI contends this retaliation began
in September 2015, approximately one month before the OAL
hearing before the second ALJ, and continued through the
trial. The alleged misconduct includes: refusing to respond
to RDI's telephone calls and emails regarding business
and compliance matters because of the pending OAL hearing;
and prohibiting RDI from hand-delivering a license renewal
form to the DEP's offices. In addition, RDI contends DEP
officials made several threatening remarks to or about RDI,
refused to meet with an RDI representative, and that one DEP
official uttered an anti-Semitic slur about the President of
amended, RDI's complaint asserts claims of equal
protection, procedural due process, and substantive due
process violations of the New Jersey Constitution, the Law
Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to
-49; and tortious interference with prospective economic
advantage. Although it is not expressly pled in its
complaint, RDI also relies on the New Jersey Civil Rights
Act, N.J.S.A. 10:6-1 to -2 ("NJCRA"). Only the
constitutionally-based and NJCRA claims are presently at
stake in this interlocutory appeal.
after the filing of RDI's lawsuit, a trial judge denied
RDI's ex parte motion for temporary restraints.
Thereafter, the judge conducted a hearing and issued a
preliminary injunction that partially granted relief to RDI.
The judge found that RDI had failed to demonstrate a
sufficient nexus between defendants' alleged misconduct
and any irreparable harm to RDI. However, the preliminary
injunction requires defendants to accept email communications
from RDI and respond within one business day if the email is
not marked "urgent," or respond within one hour if
the email is so marked and is transmitted within business
hours. The injunction also requires RDI to submit documents
to DEP by regular, certified, or overnight mail during the
pendency of the litigation.
moved to dismiss various claims asserted in the complaint.
Most pertinent to the present appeal, defendants invoked
principles of qualified immunity and argued that RDI's
constitutional and NJCRA claims must be dismissed because
defendants violated no "clearly established" ...