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United States District Court, E.D. Pennsylvania
March 30, 2004.
GENE R. ROMERO, et al.
ALLSTATE INSURANCE COMPANY, et al. GENE R. ROMERO, et al. v. THE ALLSTATE CORPORATION, et al.; EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. ALLSTATE INSURANCE COMPANY, et al.
The three above-captioned actions arise from a common set of facts,
and have, in effect, been consolidated. Civil action 01-3894 will be
referred to herein as "Romero I"; civil action 01-6764 will be referred
to as "Romero II," and civil action 01-7042 will be referred to as
"EEOC." This opinion deals with pending motions in all three cases.
Page 2
For many years, Allstate Insurance Company hired, as its employees, all
of the agents who sold its insurance policies, handled claims, etc.
Management apparently came to believe that its interests would be better
served by agents who were independent contractors, rather than employees.
All newly-retained agents thereafter were deemed to be independent
contractors. The employee-agents operated under one or the other of two
types of employment contracts, designated the R830 and the R1500. The
independent-contractor agents operated under R3001 contracts (after a
brief period of actual employment, as trainees, under an R3000 contract).
Beginning in 1991, Allstate amended its pension plan, allegedly in
order to comply with the Tax Reform Act of 1986 and implementing IRS
regulations, to make clear that service as an independent-contractor
agent under an R3001 contract would not be credited toward pension
entitlements or calculations. The amendments also made it more difficult
for covered employees to qualify for early retirement benefits and
phased-out certain particularly favorable features of the early
retirement benefits (which had enabled some employees to retire at age
55, but have their retirement benefits calculated as if they had
continued to work until age 63).
Page 3
After having adopted the policy of hiring only independent contractors
in the future, Allstate also embarked upon a plan to persuade employee
agents to switch to independent-contractor status, by offering financial
inducements (e.g., a payment of $5,000, and more generous commissions on
sales). Although some employee-agents made the switch, many others did
By 1999, the situation was as follows: of the approximately 15,000
agents nationwide, approximately 6,200 continued as employee-agents,
under either the R830 or the R1500 contract. In November 1999, Allstate
announced its "Preparing for the Future" Reorganization Plan, under which
the employment of all employee-agents would be terminated as of June 30,
2000. Each such employee-agent was offered a choice: if the agent signed
a comprehensive release, he or she could (1) sign an R3001 contract and
continue in the service of Allstate, (2) serve as an R3001
independent-contractor for a brief period, and then sell his or her
interest in their book of business to a buyer approved by Allstate
(frequently, another Allstate agent), or (3) sign an R3001 contract but
then immediately resign, in exchange for severance pay amounting to one
year's earnings, to be paid monthly over a period of two years. Agents
who refused to sign the release were simply discharged as of June 30,
2000, with little or no severance pay.
Page 4
Confronted with these choices, most of the employee-agents (99.7%)
signed releases. Only 19 agents did not sign, and several of their cases
have been disposed of in the interim. As of the present date, the parties
estimate that there are 16 potential claimants who did not sign releases.
In Romero I, the 29 named plaintiffs seek to represent a class which
includes the 6,200 former employee-agents, to nullify all of the
releases, and to pursue a wide range of claims: for breach of contract,
for violations of the ADEA, ADA, Title VII and ERISA. As can readily be
seen from the foregoing recital, the proposed class includes persons who
did not sign the release, persons who signed the release and continue in
the service of Allstate as independent contractors, persons who sold
their blocks of business to other agents and then resigned, and persons
who not only continue in the service of Allstate as independent
contractors, but who have purchased blocks of business from retiring
former agents. The class-action issues will be addressed below.
In Romero II, plaintiffs seek to represent a class of persons whose
rights under ERISA were allegedly violated by the changes in the pension
plan, and by their changes in status.
In its case, the EEOC contends that requiring the employee-agents to
release all their claims under the ADEA, the
Page 5
ADA and Title VII in order to continue working as sales agents
constituted retaliation in violation of § 4d of the ADEA, § 503a
of the ADA, and § 704a of Title VII, and also constituted
interference, coercion, and intimidation in violation of § 503b of
the ADA. Attached to the EEOC complaint is a list of the 300-odd persons
who filed charges with the EEOC on whose behalf, presumably, the
EEOC brought its lawsuit.
A. Validity of the Releases
An overarching issue in all of these cases is the validity and
enforceability of the releases signed by most of the affected
employee-agents. Obviously, if the releases are enforceable, only the 16
remaining agents who did not sign the releases could possibly prevail in
this litigation. Defendants contend that this issue is not appropriate
for class treatment, because of the conflicting interests of the putative
class members, many of whom have no desire to be restored to the
status quo ante. I believe, however, that the issue can properly
be addressed on a class-wide basis by way of a declaratory judgment. That
is, if the releases are found to be unenforceable, a declaratory judgment
to the effect that they are voidable at the option of each class member
would benefit those who wish to sue Allstate, without harming those who
choose not to do so.
Page 6
I conclude, further, that the releases should indeed be voidable at the
option of the employee-agent. In the first place, the releases, on their
face, violate § 626 of the Older Workers' Benefit Protection Act,
29 U.S.C. § 626 ("OWBPA") and 29 C.F.R. § 1625.22 (i)(2), which
provides "no waiver agreement may include any provision prohibiting any
individual from . . . filing a charge or complaint, including a
challenge to the validity of the waiver agreement, with EEOC."
Allstate contends that it had no intention of precluding the filing of
charges, and notes that more than 300 employee-agents did file charges
with the EEOC, without any repercussions. The difficulty with this
argument, however, is that we have no way of knowing how many other
employee-agents failed to pursue charges before the EEOC simply because
they accepted the release language at face value.
Moreover, as the EEOC points out, it is illegal to either retaliate, or
threaten to retaliate, against an employee to prevent him from exercising
rights under the EEOC, Title VII, ADEA, ADA, etc. Those employees who did
not sign releases were in fact treated less favorably than those who did
sign, and the signers had all been threatened with such an outcome if
they exercised their right to refuse to sign the proposed release.
I conclude, therefore, that the releases are voidable. Defendants'
motion for summary judgment with respect to all
Page 7
claims by persons who signed releases will therefore be denied, and
plaintiffs' motion for partial summary judgment on that issue will be
granted, to the extent of a declaratory judgment as discussed above.
B. Substantive Issues
Entering declaratory judgment to the effect that the signed releases
are voidable at the option of the signing employee does not, of course,
signify that any of the employees actually have valid claims to assert.
It is therefore appropriate to consider whether any of the claims
asserted in the various complaints are subject to summary dismissal. I
have concluded that some of them are indeed vulnerable to dismissal.
1. ADEA Claims
I have concluded that, on the undisputed facts of record,
there is no basis for claims of age discrimination, for the simple reason
that employees of all ages were treated alike. An employer who visits
adverse consequences upon all employees, irrespective of age, cannot be
held liable for age discrimination. The fact, if it is a
fact, that many of the affected employees, or even a majority,
are within the protected age group, is irrelevant. On this point, I agree
with the November 25, 2003 decision of Judge Herndon in the related case
of Isbell and Schneider v. Allstate Insurance Co., (U.S.B.C.
Southern District of Illinois, No. 01-cv-00252).
Page 8
2. The Claims in Romero II
To the extent that the plaintiffs in Romero II complain about the
amendments to the pension plan made in 1991, 1994, and 1996, their
complaint, filed December 20, 2001 is, on its face, time-barred. To the
extent that they lost pension entitlements when they became independent
contractors or former employees, that consequence would be an element of
damages if they establish that their change of status was a breach of
contract or otherwise illegal claims which are being asserted in
Romero I and the EEOC action. I conclude that Romero II should be
dismissed in its entirety.
3. Breach of Contract
If, as Allstate contends, the employment of all employee-agents was
terminable at will, then Allstate's action in terminating all those
contracts on June 30, 2000 was entirely permissible. Plaintiffs contend,
on the other hand, that the R830 and R1500 contracts were not at-will,
but only terminable for cause. They note that the review procedures
specified in the R830 contract clearly prevents at-will terminations, and
that the same provisions were included in the manual which accompanied
the R1500 contracts. The present record does not permit resolution of
this issue on summary judgment. Although the language of the two forms of
contract was drafted by Allstate, and ambiguities should be resolved in
favor of the employees, it is also possible
Page 9
that parol evidence not yet in the record may shed light upon the
4. Allstate's Counterclaim
In its counterclaim, Allstate seeks damages against the persons who
signed releases, to the extent that they have, or may in the future, sue
Allstate, contrary to the terms of the releases. Inasmuch as I have
determined that the releases are voidable, plaintiffs' motion for summary
judgment dismissing the counterclaim will be granted. Allstate's later
motion for leave to amend its counterclaim will be dismissed as moot.
C. Class Action Issues
In accordance with the foregoing discussion, I will certify a class
under 23(b)(2) with respect to the voidable releases, so that any former
employee-agent who signed such a release may, by notifying Allstate in
writing within 90 days, effectively rescind the release (including, of
course, repayment of all sums received in exchange for the release). If a
sufficiently large number of agents rescind their releases, plaintiffs
may apply for certification of a Rule 23(b)(3) class, when the contours
of such a putative class will have been clarified.
A class consisting of the 16 remaining persons who did not sign
releases will be certified, under Rule 23(b)(3), with respect to all
issues not summarily disposed of herein. In all
Page 10
other respects, plaintiffs' applications for class certification
will be denied without prejudice to a later motion for class
certification, in accordance with the views expressed above.
The accompanying Order is intended to implement the views expressed
Page 11
AND NOW, this day of March 2004, IT IS ORDERED:
1. Civil Action No. 01-6764 ("Romero II") is
dismissed with prejudice.
2. In all other respects, defendants' motion for
summary judgment is denied.
4. Plaintiffs' motion to dismiss defendant's
counterclaim is granted. Defendant's
counterclaim is dismissed with prejudice.
5. Defendant's motion for leave to file an
amended counterclaim is dismissed as moot.
6. Counsel for plaintiffs shall submit a proposed
order certifying a Rule 23(b)(3) class
consisting of those former employee-agents who
did not sign releases.
AND NOW, this day of March 2004, IT IS ORDERED, ADJUDGED AND DECLARED
1. The releases signed by the former employee-agents of Allstate
Insurance Company pursuant to the "Preparing for the Future"
Reorganization Plan are voidable at the option of the persons who signed
the releases.
2. Each employee-agent who signed such a release may rescind the
release by taking the following action: within 90 days after
receiving notice of this Order, notifying Allstate Insurance Company, in
writing, of his or her wish to rescind the release, and, within 30 days
thereafter, tendering to Allstate Insurance Company repayment of any and
all benefits received by the signer in exchange for signing the release.
Page 14
3. Counsel for plaintiffs in the above-captioned actions shall submit
to this Court for approval a proposed form of notice implementing the
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text:
I installed cumulusclips and open the index.php but when i want to open another page expel me error "This webpage has a redirect loop
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Can you give me some help on how to solve this problem
Cumulusclips error
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text:
'I care deeply for all animals on this planet': Hunter who paid $350,000 in an auction to kill an endangered black rhino defends himself amid public outcry
- Dallas Safari Club has sold a permit to kill old endangered black rhino
- Fellow hunter named Corey Knowlton as the winner who paid $350,000
- Five such Namibian licenses are given out each year in an effort to have targeted killings of older, more aggressive rhinos
- Club argues 'culling the herd' is acceptable habitat management practice
- An estimated 4,000 black rhinos remain in the wild, down from 70,000 in the 1960s and nearly 1,800 are in Namibia
Big prize: Corey Knowlton is believed to be the man who paid $350,000 for the license to shoot a black rhino
The hunter who paid $350,000 at a Dallas auction on Saturday to hunt a black rhino, one of the most endangered animals on the planet, says not to judge him - he cares 'deeply' about all animals.
Corey Knowlton, who has faced death threats since ponying up the cash to hunt the endangered animal, took to Facebook on Monday to respond to the mounting criticism.
'Thank you all for your comments about conservation and the current situation regarding the black rhino. I am considering all sides and concerns involved in this unique situation,' Knowlton wrote on his Facebook page. 'Please don't rush to judgment with emotionally driven criticism towards individuals on either sides of this issue. I deeply care about all of the inhabitants of this planet and I am looking forward to more educated discussion regarding the ongoing conservation effort for the black rhino.'
The 'license to kill' was sold by the Dallas Safari Club in conjunction with the Namibian government, as a minister from the African country was said to be jumping up and down in elation at the result because the funds go to conservation efforts in the country.
Big game: Knowlton is an experienced hunter who takes clients on hunting excursions all over the world
Rare: Many of the animals Knowlton hunts are rare animals from exotic locations, like this ram
Conservation: Knowlton claims to love all animals on the planet and is a big supporter of conservation efforts
Mr Knowlton is an active hunter who arranges shooting trips around the globe, and regularly posts updates of pictures on his Facebook profile of himself with clients and the dead animals that they kill.
The hacktivist group Anonymous has now become involved in the debate and launched a virtual attack- which they have named as OpFunKill- on hunters involved with the auction.
'Unspeakable and terrible things happen every second of every day while the whole planet is forced to watch, as these cold hearted soulless zombies cause horrific suffering and death to animals, both common, vulnerable and critically endangered species,' they said in a manifesto.
Mr Knowlton, a married father of two young daughters, is a part of the Hunting Consortium and his company biography boasts that he has worked in the hunting tourism industry for more than a decade.
Endangered: An estimated 4,000 black rhinos remain in the wild, down from 70,000 in the 1960s
'Corey Knowlton has hunted widely on 6 continents taking more than 120 species, including a Super Slam of wild sheep and the big five in Africa.' it states.
He lists conservation as one of his major interests, which stays in line with the Dallas Safari Club's claims that the sale of the license helps protect the endangered species by focusing on the killing of specific, older and arguably more aggressive beasts.
The animal that is listed as the target involved with this weekend's sale is Ronnie, an older bull rhino who can no longer breed.
Club spokesman Steve Wagner told The Dallas Morning News that the animal was likely becoming a threat to other wildlife as he is getting more aggressive in his old age.
Happy hunters: Knowlton (right) has been leading tourist hunting trips for over a decade
An estimated 4,000 black rhinos remain in the wild, down from 70,000 in the 1960s. Nearly 1,800 are in Namibia, according to the safari club.
The Dallas Safari Club sale, which has been condemned by environmental groups, was offering the chance to shoot the rare beast as a way to raise funds for the species' conservation.
While there were protesters at the event and animal rights groups have regularly spoken out against the sales of hunting licenses, the organizers were more upset that they didn't raise more money- as they were originally hoping to reach the million-dollar mark.
'It annoys me to tears,' said Hanns-Louis Lamprecht, who runs a safari company in Namibia.
'I was so angry last night. A million dollars would have lasted years, years in the conservation efforts...The fact is it could have been more — it could have been a lot more,' he told The Dallas Morning News.
The Dallas Safari Club hopes to raise money in order to conserve the rhino in Nambia
A beautiful series of giraffe art is on view and available for sale at the Dallas Safari Club expo in Dallas
After complaints and protests about the sale, the FBI said earlier this week that it was investigating death threats against members of the club.
About 40 protesters held signs and chanted outside the convention center where the auction and dinner took place.
Jim and Lauren Ries traveled from Atlanta to join the protest after their children Carter, 12, and Olivia, 11, asked if they could campaign.
'We heard what the Dallas Safari Club was doing and we thought it was just wrong that they were auctioning off to kill a black rhino and we really got upset that they were thinking this,' Carter said.
The family run a nonprofit organization, One More Generation, which is dedicated to saving endangered species.
The Dallas Safari Club has adopted a new definition of the ideal hunt-able male African lion as well as the rhino
'There's less than 5,000 black rhinos left on the planet and if our kids ever want to see a rhino left in the wild, we can't be pulling the trigger on every one we say is too old to breed,' Mr Ries said.
Ben Carter, executive director of the Safari Club, defended the auction. He said all money raised will go toward rhino conservation efforts.
He also said the rhino that the winner will hunt is old, male and non breeding — and that the animal was likely to be targeted for removal anyway because it was becoming aggressive and threatening other wildlife.
Mr Carter added that wildlife experts say culling a herd is an acceptable habitat management practice.
'In most cases, this animal is detrimental,' Mr Carter said. 'He's past his prime.'
But critics have questioned that logic. Officials from the Humane Society and the International Fund for Animal Welfare have said that while culling can be appropriate in abundant animal populations, all black rhinos should be protected, given their endangered status.
Critics have also said any hunting of a rhino sends a bad message to the public.
This auction is telling the world that an American will pay anything to kill their species,' Jeffrey Flocken, North American regional director of the Massachusetts-based IFAW, said earlier this week.
'This is, in fact, making a spectacle of killing an endangered species.'
The auction took place in downtown Dallas under tight security and behind closed doors. Organizers hoped to at least break the previous high bid for one of the permits in Namibia, which is $223,000.
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Mrembo huyo alikuwa akijibu swali la PapiChulo_Chuly kwenye Twitter aliyeuliza, "Ni tukio gani baya huwezi sahau maishani?"
"Kumwacha mtu ambaye nilikuwa nishapanga vitu vingi sana nae kichwani. Very very disappointing but it's life," alijibu Jokate.
October 2013, kwenye jarida la Vibetz, alifunguka kuwa japo uhusiano wake na Hasheem ulidumu kwa miaka mitatu, walifanikiwa kuufanya usijulikane sana kwa wengi na walikuwa wakipendana sana.
"With Hasheem, I think it was more than love. He was my first real love," aliliambia jarida hilo.
"Siku zote nilidhani he was my soulmate. Kiukweli nilimpenda sana. He is like the only guy I would drop anything at anytime for. Nilikuwa tayari kufanya lolote kwaajili yake, that's how deep I loved that guy," aliongeza.
"Nilimpenda kiukweli Hasheem, and yes kama mwanamke mwenye kutaka kufanikiwa I'm drawn to ambitious/successful men, you know the go getters but my family haikunilea katika maadili ya kujenga mahusiano yoyote katika mhimili wa fedha," Jokate alieleza kujibu swali kama aliamua kuwa na Hasheem kwasababu ya fedha zake. "I had never wanted to use Hasheem, all I wanted was to love him."
Jokate alidai kuishi mbali na Hasheem ni moja ya sababu iliyochangia kuvunjika kwa uhusiano wao.
"Yes kuishi mbalimbali pia inaweza kuwa sababu japo ndogo iliyochangia kuvunjika mahusiano yetu cause sometimes I would hear a lot of stuff and that would upset me. Nilikuwa naogopa sana kumpoteza, I ended up doing vitu vya kijinga kama dating Diamond. I had issues with Hasheem na Diamond came in picture. It was a very frustrating time for me. I was super confused. I cried for a whole year. Like every night I would just cry like crazy."
Kwa sasa Jokate ana uhusiano na Alikiba.
Kujua Mbinu Za Kumfikisha Kileleni Mwanamke Kwa Haraka: BONYZA HPA CHNI
Kujua Sehemu 10 Zinazompa Raha mwanamke wakati wa Tendo, BONYZA HAP 1UU
During its two year run, the project will award approximately 100 major reporting grants and provide mentoring to support the best ideas for stories on development issues. Journalists who produce the best stories published or broadcasted in media that reach African audiences, will win a major international reporting trip.


text:
Recently, it was reported that the "World class and highly unusual" nickel has been discovered inside the forest of Dangoma Jema'a LGA, in Kaduna State, in Nigeria, a discovery that was confirmed by authorities at the Ministry of Solid Minerals Development.
It was discovered by an Australian private mining syndicate headed by Hugh Morgan, a mining industry veteran.
Nickel is a chemical element with symbol Ni and atomic number 28. It is a silvery-white lustrous metal with a slight golden tinge.
It is extensively used for making stainless steel and other corrosion-resistant alloys such as Invar(R), Monel(R), Inconel(R), and the Hastelloys(R). Tubing made of copper-nickel alloy is extensively used in making desalination plants for converting sea water into fresh water.
Below are Photos of the location Below
[PHOTOS] See The Forest Where The Precious 'Nickel' Was Discovered In Nigeria on LATEST NIGERIAN NEWS BREAKING HEADLINES NEWSPAPERS.


text: HONEYBUS - STORY (DERAM 1969) Jap mastering cardboard sleeve + 13 bonus • Music Box • Year : 0 • On demand! (album available 128-320kbs)* 0 Label Facebook Twitter Google+ Pinterest Hide/Show Album Info Their debut single, "Delighted to See You," which was cut with the help of Roulettes members Bob Henrit and Russ Ballard, sounded more like the Beatles than anything heard in British pop/rock since the Searchers had faded from view in early 1966. The B-side, "The Breaking Up Scene," could have been the work of the Jimi Hendrix Experience or the Creation. Actually, if anything, they sounded a great deal like the Bee Gees, who had just begun establishing themselves as something more than Beatles sound-alikes -- the difference was that the Bee Gees were a performing band as well as a top-notch studio outfit, fully capable of doing (and willing to do) most of their output on-stage Then Honeybus hit with their third release, "I Can`t Let Maggie Go," in March of 1968, which rode the British Top 50 for three months and peaked at number eight. One of the most fondly remembered examples of psychedelic pop/rock to come out of England in 1967, with a richly textured, reed-dominated arrangement (with a bassoon very prominent and a break played on oboes and clarinets) and a pleasant McCartney-esque lead vocal surrounded by gentle high harmonies, all wrapped up in a melody that wore well on repeated listening. The record should have made the group, but instead it shattered them. All three of the songs are on this cd...................................."Honeybus` sole album was recorded in 1969 and released in early 1970, by which time "I Can`t Let Maggie Go" was fading from the memory of the British public, original leader Pete Dello was long gone, and the band themselves had been inactive for months. It`s therefore not entirely representative of what the group was about. They did show themselves to be one of the few bands that could emulate the lighter and quieter sides of the 1968-69 Beatles with a degree of competence, although as is usual when the Beatles were imitated, the songs and execution were much more lightweight than what the Beatles themselves recorded. At times it sounds like Badfinger without the muscle or occasional outstanding songs that made Badfinger recall the Beatles without sounding like tepid wannabes. The Beatlesque harmonies are nice and the lyrics sometimes clever, and the arrangements are tasteful, sometimes employing substantial traces of country music and subtle orchestration.Here #tags The album code is : ODI110995 You may also like ... Beatles – 20 Greatest Hits Beatles – ... JACKIE LOMAX - IS THIS WHAT YOU WANT? (APPLE 1969) Jap mastering cardboard sleeve + 5 bonus JACKIE ... [SM] The Beatles - The Beatles Stereo Box Set (2009) [SM] The ... The Beatles - With the Beatles (1963) The Beatles ... UNIT 4+2 - FIRST ALBUM (DECCA 1965) Jap mastering cardboard sleeve + 11 bonus UNIT 4+2 - ... THE BEATLES DISCOGRAPHIE / DISCOGRAPHY / DISCOGRAPHIA THE BEATLES


text:
DOWNTOWN BROOKLYN - A Sheraton is slated to open on Duffield Street and some Brooklyn residents are pleased with the plans so far.
Architects say the Sheraton hotel will be one of the first commercial buildings to be built since the Downtown Brooklyn rezoning plan. Downtown Brooklyn Partnership representative Michael Burke says the rezoning allows taller buildings to be constructed in the area. Burke adds Brooklyn is in need of more hotels. Residents and store owners hope the hotels bring more business and money to the area.
A city park, parking garage and a mixed-use building are also expected to come to Downtown Brooklyn as part of the rezoning plan. Burke says residents can also expect more hotels in addition to the Sheraton.


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New Jersey Superior Court, Appellate Division
June 15, 1995
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,v.DALE A. YOTHERS, DEFENDANT-RESPONDENT
On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication June 15, 1995
Before Judges Shebell, Skillman and Wallace. The opinion of the court was delivered by Shebell, P.j.a.d. Skillman, J.A.D., Dissenting.
This case involves the limited issue of whether the death penalty may be imposed for purposely or knowingly causing serious bodily injury resulting in death where the offense occurred after adoption of the State constitutional amendment declaring such punishment not cruel and unusual punishment, but before the amendment of N.J.S.A. 2C:11-3 to expressly provide that SBI murder may support a death sentence. We conclude that it may not, and affirm the order under review.
The double homicide in question occurred on the morning of February 1, 1993. On March 18, 1993, the police arrested defendant, Dale A. Yothers, and his roommate, Christopher Walsh Jr., in connection with the slayings. While in custody, defendant admitted his involvement and asked for the death penalty.
On September 17, 1993, defendant and Walsh were charged in an indictment with attacking, robbing, and killing the two victims on February 1, 1993. At defendant's arraignment, the State served him with notice of aggravating factors weighing in favor of imposing the death penalty. See R. 3:13-4. On February 27, 1995, immediately before the commencement of jury selection, the State requested that the trial Judge instruct prospective jurors that a defendant may be found guilty of capital murder for either purposely or knowingly causing death or for purposely or knowingly causing serious bodily injury (SBI) resulting in the death of another. The Judge, reasoning that the statutory amendment was not in effect at the time of the homicides, refused to instruct the jury that capital punishment could be imposed for purposely or knowingly causing SBI resulting in death. We granted the prosecutor's request for a stay and for leave to appeal. This expedited appeal followed.
In State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), a case in which the evidence supported a conviction for either purposeful or knowing murder (hereinafter intentional murder) or purposeful or knowing infliction of serious bodily injury resulting in death (hereinafter SBI murder), the Supreme Court held that capital punishment for SBI murder was unconstitutional, as violative of the New Jersey Constitution's Cruel and Unusual Punishment Clause. Id. at 89.
Relying on the statements of Senator John Russo, the chief sponsor of the death penalty statute, the Court also noted that the legislative history of the statute indicated that those found guilty of SBI murder were not intended to be eligible for the death penalty. Id. at 89-90. Contrary to the Dissent's assertion that the Court's analysis of the legislative history was intended to legitimize the Court's narrowing of the statute, the Court referenced the legislative history to demonstrate that a narrow, constitutional interpretation of the statute was consistent with the Legislature's intent. Gerald, supra, 113 N.J. at 91.
Prior to enactment, Senator Russo stated that the statute was not intended to be as broad as capital legislation in other states, in that "it does not cover as many people as some of the other [states'] legislation does." Capital Punishment Act: Hearings on S. 112 Before the Senate Judiciary Committee (1982) at 1. Senator Russo explained that the statute required separate guilt and penalty phases, and that the defendant only faces death penalty proceedings after having been "found guilty unanimously and beyond a reasonable doubt of first degree murder, wilfull, premeditated murder." *fn1 Id. (emphasis added). Senator Russo also stated, "the bill deals with a conviction of first degree murder," id. at 2, and expressed his intent to draw the act as "tight" and "limited" as possible, id. at 30. The Senate Judiciary Committee Statement to S-112 (1982) provided that "only a person who actually commits an intentional murder * * * would stand in jeopardy of the death penalty." Similarly, the statement accompanying Assembly Bill No. 771, 1982 (identical to Senate Bill No. 112, which ultimately became the death penalty statute) stated: "Pursuant to the provisions of the bill, anyone who 'purposely' or 'knowingly' commits murder * * * would stand in jeopardy of the death penalty." The death penalty act also stiffened the punishment for non-capital murders by imposing a mandatory minimum thirty-year sentence without parole. N.J.S.A. 2C:11-3b.
Gerald noted that the legislative history was consistent with New Jersey's former death penalty statute, under which only those who committed intentional murder, felony murder, or murder of a law enforcement official were eligible for the death penalty. Gerald, supra, 113 N.J. at 90. Under the former statute, if the defendant only intended to cause serious bodily injury, the person was guilty of second-degree murder and was subject only to a prison term. State v. Ramseur, 106 N.J. 123, 388-89, 524 A.2d 188 (1987) (Handler, J., Dissenting) (citing State v. Thomas, 76 N.J. 344, 387 A.2d 1187 (1978); State v. Madden, 61 N.J. 377, 294 A.2d 609 (1972); State v. Anderson, 35 N.J. 472, 497, 173 A.2d 377 (1961); State v. Wynn, 21 N.J. 264, 121 A.2d 534 (1956)). Therefore, the legislative statements, made in connection with the 1982 enactment, indicating that the death penalty applies to "intentional murder" and first-degree murder no doubt referred to situations where the defendant intended to cause death.
Senator Russo's 1982 statements are consistent with remarks he made following Gerald in connection with proposed legislative action to overturn Gerald. At a July 10, 1989 public hearing concerning a proposed amendment to the Constitution to declare application of the death penalty to SBI murders not cruel and unusual punishment, Senator Russo made the following statements:
We said, if you intended to commit murder * * * you are now subject to execution * * *.
We came to the Conclusion, right or wrong -- some feel it should have gone further, some, of course, feel it shouldn't have gone that far -- that unless you intended to commit murder, you won't be subject to that greater penalty of death. That was a judgment made by this Governor, by myself as sponsor, and in its message by the majority of the Legislature in both parties, overwhelmingly.
[Public Hearing Before the Assembly Judiciary Committee on Assembly Concurrent Resolution No. 147, July 10, 1989, at 21.]
The legislative history that's quoted in the court's opinion is what the Governor and I specifically and carefully in our comments publicly outlined that we intended the death penalty to apply to.***
The Governor and his staff, and my staff and I intended only to apply the death penalty where one intended the result. It may be that there's an amendment necessary, to clarify our intent at the time, but not [the proposed amendment to the Constitution]. And that was in every public statement.***
But the thing I'm trying to emphasize is, that at no time did we intend -- other than the actual perpetrator or that the perpetrator who actually does it, also must have intended death.
[Id. at 22.]
My opposition to this is consistent with the view I've had from the beginning; that the death penalty should only apply to one who intends to commit murder.
The Committee Statement does say -- we're referring to the Committee Statement to the Death Penalty Bill -- that it only applies to those who intended murder.
[Id. at 23-24.]
At a May 26, 1992 public hearing on the constitutional amendment, Senator Russo again stated:
In New Jersey, as you know, there is no such thing as recorded sessions and things of that sort, so legislative intent is generally difficult. So I am basically giving you my recollection, what my intent was as sponsor, and my Discussions with the Governor, Governor Kean at the time. It was always -- it was always -- my intent as sponsor, and Governor Kean's, that the death penalty in New Jersey would be applied in only those unusually savage and severe murder cases where the defendant intended the death of his victim.
That is what I understand Governor Kean had in mind, and that is what I understand that most of the legislature was voting on.
[Public Hearing Before Senate Judiciary Committee on Assembly Concurrent Resolution No. 20, May 26, 1992, at 8-9.]
Senator Bubba, who voted for the death penalty in 1982 and who favored applying the death penalty to SBI murders at that time, also agreed that the 1982 act only applied to intentional murders. Id. at 40. Although not dispositive, it is clear that legislative statements made subsequent to legislation shed light on legislative intent. State v. Bey, 112 N.J. 45, 97 & n.32, 98, 548 A.2d 846 (1988).
We are mindful that the Supreme Court stated in Gerald that "the death-penalty statute clearly exposes to the death penalty one who purposely or knowingly causes serious bodily injury resulting in death." Gerald, supra, 113 N.J. at 71. Certainly this statement was consistent with the plain language of the statute, which prior to amendment read:
a. * * * Criminal homicide constitutes murder when:
(1) The actor purposely causes death or serious bodily injury resulting in death; or
(2) The actor knowingly causes death or serious bodily injury resulting in death * * *.
c. Any person convicted under subsection a.(1) or (2) who committed the homicidal act by his own conduct or who as an accomplice procured the commission of the offense by payment or promise of payment, of anything of pecuniary value shall be sentenced [in accordance with the Act's capital punishment provisions] * * *.
[N.J.S.A. 2C:11-3 (emphasis added).]
"Homicidal act" was not defined. This apparent death penalty exposure, however, seems to have been inadvertent and not representative of the intent of the Legislature. It no doubt resulted from the adoption of the death penalty statute after the Code by engrafting the death penalty provisions onto the murder statute. See Gerald, supra, 113 N.J. at 89.
Following Gerald, the Supreme Court held in several capital cases involving vicious murders that it was possible that the jury could have found that the defendant only intended to inflict serious bodily injury. *fn2 Since these cases were tried prior to Gerald, no distinction was made between SBI and intentional murder, and therefore several death penalty sentences were set aside. The constitutional amendment was proposed to prevent defendants from avoiding the death penalty for heinous murders in cases where it is difficult to prove an intentional killing as opposed to intent to cause serious bodily injury that results in death. Public Hearing Before Senate Judiciary Committee on Assembly Concurrent Resolution No. 20, May 26, 1992, at 4-6, 37, 39, 42; Public Hearing Before Assembly Judiciary Committee on Assembly Concurrent Resolution No. 20, March 16, 1992, at Appendix 1-6.
The constitutional amendment was approved by the voters and took effect on December 3, 1992. Following passage of the amendment, the death penalty statute was amended effective May 5, 1993 to define "homicidal act" as: "conduct that causes death or serious bodily injury resulting in death." N.J.S.A. 2C:11-3i. The Statement of the Assembly Judiciary accompanying the May 5, 1993 amendment states:
Therefore, in order to clarify legislative intent and thereby avoid additional judicial construction that might narrow the scope of the law to comport with the court's view of the legislative intent, this bill would amend New Jersey's death penalty statute to clearly state that the term "homicidal act" means conduct that causes "death or serious bodily injury resulting in death." This amendment clarifies that the Legislature's intent regarding the category of homicides eligible for the death penalty has remained consistent since the effective date of P.L.1982, c. 111 which added subsection c. and other subsections to N.J.S. 2C:11-3, the current capital punishment statute.
[Statement of the Assembly Judiciary, Law & Public Safety Committee, No. 2113, 1993, c. 111 (emphasis added).]
A November 25, 1992 letter from Attorney General, Robert J. Del Tufo, in response to Governor Florio's request for advice with respect to the need for further legislation to implement the constitutional amendment, states that "while implementing legislation is not essential, clarification of the Legislature's intent in enacting the death penalty statute is advisable if we are to ensure that the constitutional decision of the people of this State is given full effect." The Attorney General noted that the court held in Gerald that its decision "comported with the Legislature's intent in restoring the death penalty." (Quoting Gerald, supra, 113 N.J. at 89.) Thus, the Attorney General suggested that it was "desirable for the Legislature to restate its intention to subject persons convicted of this form of murder to the death penalty. Such action would serve to retract any remaining invitation for judicial construction that could narrow the law to comport with the Court's view of the Legislature's intent."
After enactment of the amendment to the death penalty statute, the Governor's Office issued the following statement:
"Last November, the citizens of New Jersey spoke out on an issue that concerns us all. They wanted to be sure that vicious killers who cause a death face the possibility of death themselves, so they amended the state Constitution to make that intent crystal clear. We're here today to carry out their will," said Governor Florio.***
"This new law ensures that our statutes are consistent with the constitution and it reflects our belief as a society that there are crimes so heinous, so depraved, that people who commit them forfeit their own claims on life," said the Governor.
The law clarifies the intent of the death penalty law in accordance with a constitutional amendment approved by the voters last November. Following its passage, Governor Florio directed Attorney General Robert Del Tufo to take immediate steps to ensure the proper implementation of the amendment, which led to the legislation signed by the Governor.***
Under the current law, prosecutors can seek the death penalty only in cases where an intent to kill can be demonstrated.
[(Emphasis in the original.)]
Based on the legislative history and the statements accompanying the bills, we are persuaded that the death penalty statute enacted in 1982 was intended to apply only to intentional murders. Contrary to the Dissent's assertion that the legislative history is ambiguous and unenlightening, we have not been presented with a single piece of legislative history that indicates otherwise. Therefore, it is only following the legislative amendment in May 1993 that SBI murders clearly became capital crimes.
We do not question the logic or authority for the Dissenter's position. He makes a strong technical argument for his view. However, in the context of the imposition of the death penalty, we would find it abhorrent to disregard the available evidence of the Legislature's intent merely to preserve strict legal principles of construction. See State v. Bey, supra, 112 N.J. at 100 (rejecting State's argument that legislative intent is unimportant "so long as its 'choice of language' brings the instant facts within the reach of the statute").
The State nonetheless argues that adoption of the constitutional amendment declaring imposition of the death penalty not cruel and unusual punishment as applied to SBI murders immediately validated the death penalty statute and exposed SBI murderers to the death penalty from that time forward without the need for further legislation to implement the change. We reject this view.
A constitutional amendment was necessary after the Gerald decision if any legislative amendment to the death penalty statute to include SBI murders was to withstand constitutional attack. Once the constitutional amendment removed the constitutional prohibition, further legislation was required to make the death penalty statute applicable to SBI murder because the death penalty statute, as it stood upon enactment in 1982, did not apply to SBI murders. Therefore, the change did not become effective until May 5, 1993 when the legislative amendment was signed into law.
Penal statutes and their penalties must be strictly construed. In re Suspension of DeMarco, 83 N.J. 25, 36, 414 A.2d 1339 (1980); State v. Valentin, 105 N.J. 14, 17-18, 519 A.2d 322 (1987). "Where more than one reasonable interpretation may be made, construction should be drawn against the State." DeMarco, supra, 83 N.J. at 40 (citations omitted) (Schreiber, J., Dissenting). Accord State v. Biegenwald, 96 N.J. 630, 640, 477 A.2d 318 (1984); Valentin, supra, 105 N.J. at 18.
The question ultimately is one of fairness, given the statute and its provisions, and given the situation of the defendant. Should he have understood that his conduct was proscribed, should he have understood that the penalty about to be imposed was the sanction intended by the legislature?
[DeMarco, supra, 83 N.J. at 37.]
The strict construction rule also guards against imposition, by judicial construction, of punishment not intended by the legislature. See Sutherland Statutory Construction, § 59.03, at 105 (1992); DeMarco, supra, 83 N.J. at 37.
In re DeFalco, 9 N.J. 236 (1952), is the only New Jersey case that squarely addresses the issue of validation of unconstitutional statutes by constitutional amendment. The Constitution originally provided that the penalty for bookmaking was a fine and imprisonment and that the legislature was not empowered to diminish the penalty. A subsequent statute provided that the penalty for bookmaking was a fine or imprisonment. Subsequent to enactment of the statute, the Constitution of 1947 was adopted containing no limitation on the Legislature's power to diminish penalties. Subsequently, defendant was convicted of bookmaking and sentenced to a fine and a prison term. Defendant challenged his sentence on the ground that the sentence was contrary to the current statute, which provided for imposition of a fine or imprisonment. The Court held that the statute was invalid when enacted because it diminished the penalty for bookmaking in violation of the constitution then in effect. The court held that the adoption of the new constitution, which granted the Legislature authority to diminish the penalty, did not validate the previously unconstitutional statute. Id. at 240. The Court held:
A statute which is unconstitutional at the time of enactment does not acquire a valid status simply by reason of a subsequent amendment to the basic charter or by the adoption of a new one. In Washington Nat'l Insur. Co. v. Board of Review, 1 N.J. 545 (1949), we said: "the constitutional validity of legislation in this regard is to be measured by the organic law in force when the legislation was adopted, except to the extent that the later constitution is made retroactive.
[Id. (emphasis added).]
The Court noted: "There is nothing in the provisions of the 1947 Constitution to give it the retroactive force here contended for." Id. Likewise, in the present case, there is nothing in the constitutional amendment as adopted by the voters which dictates that it served to validate the death penalty for SBI murder without the need for legislative action.
In State v. John Dow, No. 93-07-1182 (Law Div. August 18, 1994), the Judge addressed the same question presented in this case. He determined that SBI murderers became eligible for the death penalty on May 5, 1993, the date of the enactment of the legislative amendment to the death penalty statute. The Judge noted that generally constitutional amendments act prospectively and that generally a constitutional amendment will not act to validate previously invalid statutes. Id. at 18. With regard to whether the amendment was self-executing, the Judge held:
In the present case, it is apparent from the limitation imposed by Gerald and addressed by the constitutional amendment that the amendment indicates a line of policy to be followed; however, it does not set out any means by which to implement this principle. The amendment only provides guidance as to what the Constitution will allow in the way of future laws. The Legislature is empowered to execute this policy through legislative directives.
[Id. at 20-21.]
Most courts recognize that in limited circumstances a constitutional amendment may validate previously unconstitutional legislation. The key factor is the existence of a clear intent to validate the existing legislation. For example in Bonds v. State Dept. of Revenue, 49 So.2d 280 (Ala. 1950), the court held that a constitutional amendment proposed in 1949 and adopted to validate an earlier 1949 statute that was clearly unconstitutional at the time of enactment, could "by the use of express and clear terms validate and confirm an act of the legislature previously enacted but invalid on account of failure to observe provisions of the State Constitution." Bonds, supra, 49 So.2d at 282. Similarly, in Porto Rico Brokerage Co. v. United States, 22 C.C.P.A. 236, 71 F.2d 469 (C.C.P.A. 1934), cert. denied, 298 U.S. 671, 80 L. Ed. 1394, 56 S. Ct. 936 (1936), the court suggested that a previously unconstitutional statute may be validated by constitutional amendment, without subsequent legislation, if the amendment clearly reveals an intent to validate the earlier legislation. Id. at 470-72. Accord State Ex Rel. Miller v. Board of Education, 212 Kan. 482, 511 P.2d 705, 710 (Kan. 1973) (intention has important bearing in determining whether a constitutional provision is self-executing); State ex Rel. Nixon v. Belt, 873 S.W.2d 644, 647 (Mo. App. Ct.), overruled on other grounds, 887 S.W.2d 397 (Mo. 1994) (constitutional provisions self-executing where there is manifest intention that they go into immediate effect); 16 Am. Jur. 2d Constitutional Law § 65, at 383-84 (1979); cf. People ex rel. McClelland v. Roberts, 148 N.Y. 360, 42 N.E. 1082 (N.Y. Ct. App. 1896); Kayden Indus., Inc. v. Murphy, 34 Wis. 2d 718, 150 N.W.2d 447 (Wis. 1967).
Constitutional amendments can validate previously unconstitutional statutes if there is a clear intent to do so. Inasmuch as the purpose of the 1992 constitutional amendment was to overturn Gerald, and to make SBI murder a capital offense, we believe that if the original death penalty statute clearly exposed SBI homicides to the death penalty, the constitutional amendment would have served to validate the statute and to make it effective at the date the amendment was approved by the voters. That, however, is not the situation here. At the time the constitutional amendment was adopted, the statute did not clearly expose SBI murders to the death penalty. The Senate Judiciary Committee Statement accompanying the 1982 death penalty statute and other legislative history makes this clear. *fn3 Absent contrary evidence, the court must assume that the Legislature adopted the intent of the Judiciary Committee. See Sutherland, supra, § 48.06, at 332-33.
Following Gerald, the constitutional amendment was necessary to allow the statute to be extended to SBI homicides. Once the constitutional amendment was approved, it was necessary for the Legislature to implement the change. The Legislature could not alter the original intent of the statute by merely proposing the constitutional amendment; the original intent remained until the statute was amended by the Legislature. Protection Mutual Insur. Co. v. Kansas City, 504 S.W.2d 127 (Mo. 1974) (absent legislative act amending statute, original intent governs); Axe Science Corp. v. Commonwealth, 6 Pa. Commw. 103, 293 A.2d 617, 620 (Pa. Cmwlth. 1972) (original legislative intent stands until further legislative action); see Sutherland, supra, § 48.10, at 343. The purpose of placing the amendment before the voters was to remove the constitutional impediment, it did not in itself amount to legislative action amending the existing statute.
The order under review is affirmed. The matter is remanded for further proceedings.
SKILLMAN, J.A.D., Dissenting.
I read State v. Gerald, 113 N.J. 40, 69-91, 549 A.2d 792 (1988) to hold that the New Jersey death-penalty statute enacted in 1982, 1982, c. 111, § 1, N.J.S.A. 2C:11-3(c), is applicable to any murder committed by a defendant's "own conduct" or by the "payment or promise of payment of anything of pecuniary value," regardless of whether the defendant purposely or knowingly caused "death" or "serious bodily injury resulting in death." Therefore, I Dissent from the majority's Conclusion that the State lacks the authority to seek the imposition of the death penalty upon a murderer who purposely or knowingly caused serious bodily injury resulting in death (referred to hereinafter as SBI murder) subsequent to the effective date of the constitutional amendment eliminating the constitutional impediment to the death penalty for SBI murder but prior to enactment of L. 1993, c. 111, § 1, N.J.S.A. 2C:11-3(i), reaffirming the statutory authorization for this punishment.
In Gerald the Supreme Court stated in clear and unequivocal terms that its Conclusion that the death penalty could not be imposed for SBI murder was based upon the New Jersey Constitution: "We hold, on state constitutional grounds, that a defendant who is convicted of purposely or knowingly causing 'serious bodily injury resulting in death' under N.J.S.A. 2C:11-3(a)(1) and (2), or either of them -- as opposed to one who is convicted of purposely or knowingly causing death under those same provisions -- may not be subjected to the death penalty." 113 N.J. at 69. The Court then devoted the next twenty-one pages of its opinion to a Discussion of the unconstitutionality of N.J.S.A. 2C:11-3(c) as applied to SBI murder. Id. at 71-91. If the Court in Gerald had concluded that N.J.S.A. 2C:11-3(c) does not apply to SBI murder, as the majority of this panel has now concluded, the Court would have had no need even to consider the constitutionality of the death penalty for SBI murder. In fact, if the Court in Gerald had ruled upon the constitutionality of imposition of the death penalty for SBI murder even though the Legislature had not authorized this punishment, its decision would have been inconsistent with the firmly established principle that "a court should not reach and determine a constitutional issue unless absolutely imperative in the Disposition of the litigation." Donadio v. Cunningham, 58 N.J. 309, 325-26, 277 A.2d 375 (1971). Therefore, Gerald should not be read to hold that the imposition of the death penalty for SBI murder is unconstitutional but the Legislature did not intend to authorize the death penalty for such murders in any event, unless the Court clearly and unequivocally expressed such a Conclusion.
However, to the contrary, the Court stated several times during the course of its opinion in Gerald that N.J.S.A. 2C:11-3(c) is applicable to SBI murder. The Court commenced its Discussion of the constitutional issue by broadly stating: "The death-penalty statute clearly exposes to the death penalty one who purposely or knowingly causes serious bodily injury resulting in death." 113 N.J. at 71. The Court then referred to Justice Handler's Dissent in State v. Ramseur, 106 N.J. 123, 388, 524 A.2d 188 (1987), where he had stated with equal clarity that "the current Act 'includes, as capital murder, death that results solely from the intentional infliction of serious bodily harm.'" 113 N.J. at 72. The Court reiterated this Conclusion later in its opinion:
As the statute is written, all defendants convicted of purposeful or knowing murder under N.J.S.A. 2C:11-3(a)(1) and (2) are exposed to the death penalty under N.J.S.A. 2C:11-3(c), provided that they either committed the homicidal act by their own conduct or hired another to commit that act. All such defendants, including those who did not intend the death of their victim, face the death penalty as a potential punishment.
[Id. at 85.]
The Court concluded that the statute, as thus written, "creates gross disproportionality in light of the penalties imposed on conviction for crimes such as aggravated assault, N.J.S.A. 2C:12-1(b)(1), aggravated manslaughter, N.J.S.A. 2C:11-4(a), and felony-murder, N.J.S.A. 2C:11-3(a)(3). As such, the infliction of capital punishment on one who does not intend his or her victim's death is a violation of our state constitutional prohibition against cruel and unusual punishment." Id. at 85. After a lengthy Discussion of this disproportionality, id. at 85-89, the Court concluded:
We therefore conclude that imposition of the death penalty on one who is convicted under N.J.S.A. 2C:11-3(a)(1) and (2), or either of them, of the purposeful or knowing infliction of serious bodily injury resulting in death is not permissible under Article I, paragraph 12 of our state constitution.
[113 N.J. at 89.]
In short, the Court in Gerald held that N.J.S.A. 2C:11-3(c) subjects a person who commits SBI murder to the death penalty but that the death penalty is unconstitutional as applied to this category of murder.
The majority relies upon a three paragraph Discussion of legislative history in Gerald to support its Conclusion that the 1982 death-penalty statute does not apply to SBI murder. This Discussion, which immediately follows the Court's constitutional holding quoted in the preceding paragraph, begins with a sentence which states: "The foregoing result comports with the Legislature's intent in restoring the death penalty." 113 N.J. at 89. Considered in isolation from the rest of the opinion, this single sentence could be read to state, as an alternative to the Court's previously expressed holding that the imposition of the death penalty for an SBI murder is unconstitutional, that the Legislature did not intend to authorize the death penalty for this category of murder. However, the Court's subsequent Discussion places this sentence in a different perspective. The Court does not say in the following three paragraphs that the legislative history of the 1982 death-penalty statute negates its previously expressed holding, drawn from the plain language of N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:11-3(c), that "the death-penalty statute clearly exposes to the death penalty one who purposely or knowingly causes serious bodily injury resulting in death." 113 N.J. at 71. Instead, the Court concludes only that this legislative history is "instructive" and that it is "important in analyzing the current statute." Id. at 90.
In the immediately following Discussion, the sense in which the legislative history is "important in analyzing the current statute" becomes evident. Id. at 91. This part of the opinion begins with the Court reiterating its previously expressed Conclusion that the 1982 death-penalty statute is unconstitutional as applied to SBI murder -- not that the Legislature did not intend the statute to apply to such murders:
Having concluded that the Act is unconstitutional to the extent that it exposes to the death penalty some defendants who kill without intending to do so, we turn to the question of what result should follow from that Conclusion.
[Ibid. (emphasis added).]
The Court then notes its obligation to preserve the constitutionality of a legislative enactment if that can be done consistent with legislative intent:
As we have stated, "it is our duty to save a statute if it is reasonably susceptible to a constitutional interpretation." ... Our inquiry focuses on whether the legislature would prefer that the statute survive with an appropriate constitutional construction, or whether it would prefer that the statute "succumb to constitutional infirmities."
[Ibid. (quoting Right to Choose v. Byrne, 91 N.J. 287, 311, 450 A.2d 925 (1982)).]
After stating these basic principles governing constitutional challenges to legislative enactments, the Court concludes:
We have no doubt that the legislature would prefer that the Act be subjected to a narrowing construction that would free it from constitutional defect, a construction that comports with the legislature's stated intent in originally adopting the Act.
[Ibid. (citations omitted; emphasis added).]
The italicized portion of this sentence indicates that the Court's purpose in reviewing the legislative history of the 1982 death-penalty statute was not to demonstrate that the Legislature intended to exempt SBI murders from the death penalty but rather to answer the question "whether the legislature would prefer that the statute survive with an appropriate constitutional construction, or whether it would prefer that the statute succumb to constitutional infirmities." Ibid. Having decided with the aid of legislative history that "the legislature would prefer that the statute survive with an appropriate constitutional construction," the Court concludes that "it is incumbent on us to 'engage in "judicial surgery" to excise [the] constitutional defect.'" Ibid. (quoting Right to Choose v. Byrne, supra, 91 N.J. at 311). It obviously would have been unnecessary for the Court to undertake "judicial surgery" to save the constitutionality of the death-penalty statute if the statute as written did not apply to SBI murders.
Therefore, notwithstanding the "judicial surgery" that the Court performed on the 1982 death-penalty statute to preserve its constitutionality, the statute remained in effect subject to implementation in its original form in the event the New Jersey Constitution were amended to remove the constitutional impediment to the statute's application to SBI murder. A "statute declared unconstitutional is void in the sense that it is inoperative or unenforceable, but not void in the sense that it is repealed or abolished; ... so long as the decision stands the statute is dormant but not dead." Jawish v. Morlet, 86 A.2d 96, 97 (D.C. 1952). Therefore, the Legislature is not required to reenact a statute if the impediment to its full implementation imposed by a declaration of unconstitutionality is eliminated by a subsequent constitutional amendment. Furthermore, the primary theoretical objection raised by some scholarly commentators to the revival of a statute when a judicial decision declaring the statute unconstitutional is subsequently overruled -- that a judicial declaration of invalidity may have aborted efforts to repeal a statute and that the revived statute may not reflect the current will of the people as it would now be expressed through the legislative process, see William M. Treanor & Gene B. Sperling, Prospective Overruling and the Revival of "Unconstitutional" Statutes, 93 Col. L. Rev. 1902 (1993), -- has no applicability when a judicial decision declaring a statute unconstitutional has been overruled by a direct expression of the people's will through the passage of a constitutional amendment.
A declaration that a validly enacted statute is unconstitutional in certain of its applications must be distinguished from a declaration that the Legislature lacks the constitutional authority to enact a particular kind of legislation. As one commentary has noted, "the legislature cannot pass a statute that exceeds its powers; if the meaning of the Constitution changes so that the powers of the legislature expand, legislation once beyond the legislature's scope but now permissible must be repassed to be enforceable." Treanor and Sperling, (supra) , 93 Col. L. Rev. at 1934. Thus, in In re DeFalco, 9 N.J. 236 (1952), cited by the majority, the Court held that an amendment to a statute authorizing the imposition of either imprisonment or a fine for bookmaking, where previously both imprisonment and a fine were required, violated a provision of our former State Constitution which prohibited the Legislature from enacting legislation that "diminished" the punishment "now provided" for gambling offenses. The Court concluded that since this statute was beyond the Legislature's law-making authority at the time of its enactment, it could not be validated by subsequent constitutional amendment repealing this limitation upon legislative authority. Id. at 240. In contrast, the Legislature unquestionably had the constitutional authority to adopt a death-penalty statute in 1982, and the Court's declaration in Gerald that some applications of the statute were unconstitutional did not invalidate the statute. Therefore, the Legislature was not required to reenact legislation authorizing imposition of the death-penalty for SBI murder when the electorate passed a constitutional amendment removing the constitutional impediment to full implementation of the 1982 death-penalty statute.
Despite the Supreme Court's holding in Gerald that "the death-penalty statute clearly exposes to the death penalty one who purposely or knowingly causes serious bodily injury resulting in death," 113 N.J. at 71, the majority reexamines the legislative history of the 1982 death penalty statute and reaches the opposite Conclusion. I would decide this appeal solely on the basis of Gerald without revisiting any legislative history. In any event, I consider the legislative history relied upon by the majority to be ambiguous and unenlightening.
The majority relies heavily upon statements made by former Senator Russo while speaking in opposition to proposed amendments to the New Jersey Constitution designed to eliminate the constitutional impediment to imposition of the death penalty for SBI murder. Public Hearing before Assembly Judiciary Committee on Assembly Concurrent Resolution No. 147, July 10, 1989, at 21-24; Public Hearing before Senate Judiciary Committee on Assembly Current Resolution No. 20, May 26, 1992, at 8-9. However, the statements of individual legislators are not generally considered to be a reliable guide to legislative intent. See West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98-99, 111 S. Ct. 1138, 1147,113 L. Ed. 2d 68, 83 (1991). When such statements are presented subsequent to enactment of a statute by an opponent of a new legislative initiative, they constitute a particularly unreliable indicator of the prior Legislature's intent. See Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 132, 95 S. Ct. 335, 353, 42 L. Ed. 2d 320, 347 (1974). Senator Russo's 1982 statement regarding the intended reach of the death penalty statute is also not enlightening, because it is cast in the terminology of the former Title 2A, which was repealed in 1978, L. 1978, c. 95, N.J.S.A. 2C:98-2, rather than the Code of Criminal Justice which the 1982 death-penalty statute amended.
The only other legislative history of the 1982 death penalty statute cited by the majority is the Senate Judiciary Committee Statement and the Sponsor's Statement to the Assembly Bill. Although such statements are better guides to legislative intent than the views of individual legislators, see Garcia v. United States, 469 U.S. 70, 76, 105 S. Ct. 479, 483, 83 L. Ed. 2d 472, 478 (1984), the particular statements upon which the majority relies are not especially informative. The Senate Statement indicates that the death penalty may only be imposed upon a person "who actually commits an intentional murder." Senate Judiciary Committee Statement to S-112 (1982). However, the term "intentional murder" is not used anywhere in the Code of Criminal Justice, and is not self-defining. Indeed, since N.J.S.A. 2C:11-3(a)(1) and (2) do not distinguish between a person who purposely or knowingly "causes death" and a person who purposely or knowingly "causes serious bodily injury resulting in death," the term "intentional murder" could be construed to refer to any murder committed in violation of N.J.S.A. 2C:11-3(a)(1) or (2). Compare State v. Harvey, 121 N.J. 407, 412, 581 A.2d 483 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991), which refers to "knowingly or purposely causing death" as "intentional murder," with Justice Handler's Concurring and Dissenting opinion in State v. McDougald, v. Chicago Burlington R.R. Co., 257 U.S. 563, 589, 42 S. Ct. 232, 237, 66 L. Ed. 371, 383 (1921)).
Therefore, I would reverse.
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Á Notes: Subnautica is an Early Access game, and recommended specifications may change during development.


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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Research Paper:
solar flares and how they go on to cause global warming. Global warming has been an ongoing phenomenon and there are many reasons it has occurred. Apart from the green house effect, global warming could have been due to the solar flares that have occurred. Different researches and theories regarding this matter are discussed in the paper.
Solar Flare
Global warming is a phenomenon that has amazed and frightened everyone ever since it came into being. The consequences and end results of global warming is what goes on to alarm and frighten everyone on earth. If looked at it literally, global warming is basically in increase in the temperature of the Earth's atmosphere. This change and elevation has been occurring ever since the 19th century and is known to increase even more. The change in the global temperature is dangerous because it goes onto increase the sea levels and alterations precipitation, melting of glacier and possible risks of floods around the world. Global warming can even cause a spread of the deserts (Lu, Vecchi and Reichler 6)
People have come with varied causes of global warming. Some natural causes are the release of methane gas from the wetlands and the arctic tundra. It has been proposed that the temperature of the earth is influenced by the activities that man carries out. (Michaels 222) Others have proposed that this is due to the climate change that the earth goes through after a certain amount of time. Activities like combusting fossil fuels, cutting down trees and emitting carbon dioxide from the industries is a major has contributed to global warming. Pollution which occurs due to burning of fossil fuels is a major cause. A lot of things like increased population and increased need for transportation require more and more fossil fuels to be burned
Out of all the causes listed above, a solar flare could be a probable cause of causing global warming. A solar flare is basically the release of energy from the sun that causes a very bright light to be observed over the sun's surface. It has been postulated that the release of energy is equivalent to millions of megatons of TNT. The energy release has been estimated to b e about 6X10^25 joules of energy. There is a release of CME energy which is basically coronal mass ejection. (Kopp, Lawrence, and Rottman) The flare that is ejected is actually an amalgamation of electrons, atoms and ions through the layers of the sun into space. If it has been released by the sun, eventually it is bound to reach the earth as well.
Solar flares basically go on to make an impact on the different layers of the atmosphere in the solar system. Radiations are basically made that travel all throughout the electromagnetic spectrum at different wavelengths. The energy that is transmitted from a single flare for instance is spread over different frequency ranges in the electromagnetic spectrum. Due to this reason, most of the flares aren't detectable from the naked eye and require the use of varied instruments. There need to be active sunspots and places with a lot of energy in case a flare has to be initiated. Thus, it has been studied that flares actually occur in active areas around sun spots. Sun spots are places where high energy magnetic fields go through the photosphere to attach the corona to the interior of the sun.
Many people have often wondered what causes solar flares. The flares basically occur when charged particles especially electrons in an active state go on to interact with the plasma medium. Research states that the charged particles happen to be in active or an accelerated state due to the magnetic reconnection. There are many loops of magnetic lines of force on the son that create more and more magnetic reconnections. The release of energy in this reconnection is thus responsible for the charging of these active particles. The magnetic field and the activated materials may go on to violently expand outwards thus giving the coronal mass ejection mentioned before. These postulations further support the fact that solar flares are normally common in areas where the magnetic fields are stronger than the average.
Solar flares have been occurring ever since the sun's 4.6 billion year history. However, it hasn't been long since the scientist figure out details about the solar flares. Even though solar flares are the largest explosion occurring in the solar system, it is the CME's that go on to damage the earth. (DeForest) The surface of the earth is protected quite well from the magnetic field of the atmosphere and of Earth itself. Regardless, the modern technology that we have kept up there can be damaged to quite an extent from the upsets in solar weather. The sun observing and the earth observing space craft's have been damaged by the solar flares that have occurred. Spacecrafts have also found material within in space that seems to be coming from spacecrafts damaged by huge solar flares that occurred in 2003. In October, 2003, different areas on the sun began to give rise to what later was discovered as 60 solar flares. ("Huge Solar Flares Hit" 366) These regions which later were declared as sunspots went on to cover about 0.6% of the surface of the sun. These solar flares went on to damage about 20 satellites in the orbit of the Earth. The high magnetic field s linked with the flares even went on to cause power outage in Sweden and in other areas in the Arctic. Some of them were so powerful that it damaged some of the air craft's orbiting Mars. All this shows that the solar flares are capable of causing a lot of damage.
Despite the proposed etiology for an increase in the average global temperature, there is still a lot of debate on what the real cause is. The popular media always insists on the cause being resolved and that global warming cannot be stopped. Regardless, some of the scientists are keen on working and giving new causes and better solutions to stop global warming.
It has been postulated that the changes in the temperature of the earth have a direct link to two components of the dynamics of the sun. One of the aspects is the long-term solar cycles however one aspect is the short-term statistical fluctuation in the sun's radiance. (Scafetta and West 50) The Intergovernmental Panel on Climate Change (IPCC) report states that solar variability's contribution to global warming is not significant and is quite negligible. Ever since the start of the industrial era, a large majority believes that global warming is a result of increase greenhouse gas concentrations in the atmosphere.
The atmosphere of the earth, oceans, and landmasses go on to absorb and then re scatter the total solar irradiance (TSI) This is done through the geochemical, reactive dynamic and nonlinear hydrothermal processes that will eventually go on to give a cumulative average temperature of the earth. (Scafetta and West 50) A good way to see the link of solar dynamics and the earth's temperature is to study the fluctuations in the earth's temperature. If a monthly review is done of the abnormal fluctuations of the earth's temperature, then many scientists render this data irrelevant. Many people think that there is no use in studying the monthly temperature changes when studying the changes yearly or after a certain number of years give a clearer idea about what is happening. If these fluctuations are studied based on the central limit theorem, then these fluctuation are proposed to be Gaussian. However, there are some that show non-Gaussian behavior, The unexplained behavior therefore made scientists study these fluctuations and their links to global warming in more detail.
The fluctuation dissipation theorem states that response of a network to an alarm is analyzed by the network's undisturbed autocorrelation function. If one goes on to look at the variations in the TSI, then we know exactly why these variations are caused. The variations are due changes in the duration, number and also the intensity of the solar flares and sunspots. They also occur due to the varied time intervals between the bright faculae and the dark spots. It has been seen that the time variation in the TSI give rise to similar variations in the average temperature of the Earth. These variations amalgamate to produce the trends that increase or decrease the temperature of the earth for thousands of years. (Scafetta and West 50) Thus, the small term variations or the monthly changes aren't just irrelevant data but they provide a substantial link to the variations in the TSI.
Therefore, there has been a link created between the changing dynamics of the earth and the sun. To prove this link with data, it has been shown that the stochastic properties of the earth's temperature are by far linked to the data of the TSI. (Scafetta and West 248701) Therefore, there must be a direct…[continue]
"Solar Flares And How They Go On" (2013, April 14) Retrieved December 3, 2016, from http://www.paperdue.com/essay/solar-flares-and-how-they-go-on-101408
"Solar Flares And How They Go On" 14 April 2013. Web.3 December. 2016. <http://www.paperdue.com/essay/solar-flares-and-how-they-go-on-101408>
"Solar Flares And How They Go On", 14 April 2013, Accessed.3 December. 2016, http://www.paperdue.com/essay/solar-flares-and-how-they-go-on-101408
Solar Flares What causes solar storms? Why should people nearly a hundred million miles away on Earth care so much about them? Massive explosions of electrified plasma from the sun are identified as Solar Storms but often they just cause a beautiful light show in the farthest points of the Northern and Southern Hemispheres. The reason why human beings need to understand and care about solar storms is that they have
FACIAL EXPRESSION & EMOTION Psychology From the perspective of many psychologists, there is no set formal definition for emotion. We know that emotion is universal insofar as all humans experience and express emotion. There have been many studies, specifically over the past several decades that demonstrate that some emotions are expressed universally across time and culture. Just because there is not a universal definition for emotion, does not mean that there are
The hope, of course, that to the extent possible, both groups will invest themselves, and their money, in the ways that Mr. Gore is going to suggest in the film. The Scientist and Mentors Finally, Mr. Gore shows an image of earth that was made by a friend of his - all of the experts in the film are friends of Mr. Gore. The image was, again, made over a period
England - China For managers conducting cross-border activity between England and China, there are a number of factors that should be considered. The differences between English and Chinese business culture are striking, and it is important to understand the nature of those differences and how they can affect business relations between the two countries. There are also significant differences in the economies of each country and again it is valuable for
People besides are not always aware of their motivation aside from which it is arguable whether or not prejudicial sentiments are implicit rather than conscious. Given these conditions and more, I find the study interesting but highly limited. There are many present theses on how we control our prejudices. The MODE model, one of the most prominent, states that prejudices are controlled via automatic and controlled processes. The researchers (Towles-Schwen &
Criteria of buyer/investor on project type and location A huge variety of CDM project locations, types and sizes exists and these are open to potential CDM investors. The national investment climate plus factors at the national level influence decisions on where, what type of projects to undertake as well as whether they ought to be developed as CDM projects. The investor's role in CDM project influences the physical spread of the
Nowadays, the idea that offshore drilling is safe seems ridiculous. The Gulf spill nowhere compares to drilling disasters that have occurred before including one off the coast of Santa Barbara, Calif. In 1969 that discarded three million gallons into coastal waters and led to the present moratorium. The Deepwater Horizon calamity is a standard low probability, high impact event. It is the kind that has been seen more and more


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Things Are Looking Up is a painting by Nate Owens which was uploaded on May 14th, 2014.
My whimsical painting of a cowboy hanging upside down under his horse looking a rattler in the eye, remains the best seller of my greeting cards I've... more
Things Are Looking Up
Nate Owens
Painting - Mixed Media
My whimsical painting of a cowboy hanging upside down under his horse looking a rattler in the eye, remains the best seller of my greeting cards I've done for Leanin Tree since 1980. This card was introduced in 2009.
Tighten your cinch, cowpoke!
May 14th, 2014
Viewed 719 Times - Last Visitor from Tallinn, 01 - Estonia on 11/27/2016 at 4:42 AM
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Comments (10)
Ace Reid was a classic
Oh, my goodness. I've loved this type of cartoonish, clever, western art since I was a young child. I used to look at my grandparents' old Ace Reid calendars over and over again. You've superbly captured that same style in your own art. I love it!!!! L/F
Thanks... this is a greeting card I did for Leanin' Tree
haha i love this.. Im in aiken also btw
Thanks, glad you like it -
Nate, I've been a fan of those Leanin Tree cards for a long time! Your humor is over the top :)) F/V
Congratulations on your sale; this is so funny; love the work
Beverly Hills, CA (United States)
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'Monsieur Andre' Slim WalletMONSIEUR ANDRE
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