TRENTON, N.J. (Legal Newsline) – The Superior Court of New Jersey Appellate Division has reversed a trial court’s ruling against the New Jersey Department of Environmental Protection and three individual DEP officials named as co-defendants.
The ruling on Nov. 2 came after the defendants appealed the Law Division's June 30, 2017, interlocutory order, which partially denied the defendants' motion to dismiss plaintiff's claims asserting constitutional and certain statutory violations. The opinion was written by Judge Jack Sabatino.
“Because 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 complaint,” the opinion stated.
According to the opinion, plaintiff Radiation Data Inc., a New Jersey corporation, is the largest radon measurement business in the state and has been certified periodically by the DEP to provide radon services pursuant to the Radiation Protection Act.
Between August 2009 and June 2010, the DEP issued six administrative orders and notices of prosecution, the Superior Court said.
“In September 2016, RDI filed the present civil action in the Law Division against the DEP and various DEP officials,” the opinion stated. “In general, the lawsuit alleges defendants retaliated against RDI after the company contested the AO/NOPs issued by the agency.”
RDI alleges that defendants engaged in a "pattern of harassing, intimidating, discriminatory, and threatening conduct," the court said.
According to RDI’s allegations, cited by the court, defendants violated RDI's right to equal protection guaranteed under the New Jersey Constitution.
The court said that equal protection claim hinges on the defendants allegedly declining to speak to RDI on the phone and DEP employees allegedly being instructed to stop cooperating with RDI.
“RDI's claims of an equal protection violation – even viewing the facts alleged in the complaint in a light most favorable to the company – fall short of presenting a viable cause of action under constitutional principles,” the opinion stated. “Defendants are entitled as a matter of law to qualified immunity dismissing those claims.”
The court said the agency did not violate "clearly established" equal protection and due process rights by pursuing a regulatory enforcement action against plaintiff.
The agency didn’t commit a violation by directing that communications between plaintiff and the agency be channeled through their respective attorneys while the contentious administrative litigation was ongoing, the superior court added.
“We conclude that defendants are similarly entitled to qualified immunity with respect to RDI's due process infringement allegations,” the opinion stated. “The conduct alleged by RDI did not infringe upon any 'clearly established' constitutional rights of RDI.”
"The DEP's decisions to pursue regulatory violations against RDI and to channel communications through counsel as the administrative case became increasingly contentious do not 'shock the conscience,'" the opinion states.
The court also rejected RDI's argument that defendants' actions violated a clearly established statutory right under the New Jersey Civil Rights Act.
“The only statutory right that properly remains in the case is the LAD claim of alleged religious or ethnic discrimination,” the opinion stated. “That pending claim is unaffected by the present interlocutory appeal.”