# In re the Directive of the New Jersey Department of Environmental Protection > Supreme Court of New Jersey · April 18, 1988 · 110 N.J. 69 URL: https://www.frixlaw.com/law-library/cases/7311406 ## Case - **Full name:** IN THE MATTER OF THE DIRECTIVE OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ISSUED TO KIMBER PETROLEUM CORPORATION, SHELL OIL COMPANY AND SOLAR OIL COMPANY - **Court:** Supreme Court of New Jersey - **Decided:** April 18, 1988 - **Citations:** 110 N.J. 69; 539 A.2d 1181; 18 Envtl. L. Rep. (Envtl. Law Inst.) 20933; 27 ERC (BNA) 1668; 1988 N.J. LEXIS 34 - **Precedential status:** Published - **Opinion:** Dissent by Wilentz - **Judges:** Handler, Wilentz - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7311406 ## Opinion text WILENTZ, C.J., dissenting. The Court’s decision today very substantially expands the power of the State, through the Department of Environmental Protection (DEP), to remedy the adverse effects of discharges of hazardous substances. In attempting to address the grave risks that hazardous substances pose to our society, the statute provides that the DEP may require a polluter to clean up and remove a hazardous discharge and its effects. Today the Court correctly finds that the DEP may alternatively require the polluter to pay on demand the estimated cost of such cleanup, leaving it to the Department to complete the task. Whereas the former is provided expressly in the statute, the latter power is found to exist by implication. This is a most important, indeed, a necessary, expansion of the Department’s vital role in this area. It is therefore ironic that in this same decision the Court provides polluters with a defense found nowhere in the Act. This defense allows a polluter to escape treble damages for refusal to comply with a DEP demand for cleanup and removal money whenever the polluter’s refusal to pay was based on “good cause.” The Court thereby holds that despite the Act’s explicit and unqualified requirement for cleanup on demand (or, alternatively, for payment on demand), the polluter who refuses to pay may successfully avoid liability for treble damages—the weapon designed by the Legislature to assure that cleanup funds would immediately be made available by polluters. If the polluter is found to have had “good cause” to refuse such payment, no treble damages are imposed even though the polluter was, in fact and in law, liable for such payment. I dissent from that holding. Not only does the statute not provide for a “good cause” exception—on this there is no *88 dispute—but furthermore the fair intent of the law is completely inconsistent with any such exception. The Constitution does not compel today’s decision, which, contrary to the majority’s assertions, will seriously erode the effectiveness of this law. I. The magnitude of our state’s hazardous waste problem is beyond dispute. New Jersey produces 12.5% of the United States’ chemical output, making the state the second largest chemical producer in the nation; 970 chemical plants are located in this state. Chemical Industry Council of New Jersey, Press Release (Trenton, N.J., n.d.). Moreover, chemicals produced out of state are transported along the northeast corridor via New Jersey’s highways and railways, where accidents can lead to their release into this state’s environment. The risks are aggravated by geologic, hydrologic, and soil conditions that make New Jersey’s water supply peculiarly vulnerable to contamination. Of the fifty states, New Jersey is thought to have the most severe hazardous waste problem. Morris, "Hazardous Wastes in New Jersey,” 38 Rutgers L. Rev. 623 , 624-26 (1986); see also New Jersey Department of Environmental Protection, Status Report on the Hazardous Waste Management Program in New Jersey, Vol. II at 19 (Oct. 1986) (New Jersey leads the nation in the number of hazardous waste sites identified by the Federal Superfund program with 97 of the 888 designated as of 1986); English, “Hazardous Waste Regulation: A Prescription for Clean Water,” 13 Seton Hall L. Rev. 229 , 230-31 n. 11 (1983) (by producing approximately 350,000 tons of hazardous waste per year, New Jersey surpasses all other states in the generation of hazardous waste). The Legislature’s decision to use unconventional remedies in the Spill Compensation and Control Act (“the Act” or the “Spill Act”), N.J.S.A. 58:10-23.11 to -23.11z, was based on a valid perception that this state faces an enormous environmental problem and that a great deal of money will be required to *89 address it. The Legislature sought to require “the prompt containment and removal of ... pollution and substances.” N.J.S.A. 58:10-23.11a. To help defray the costs, the Legislature created a fund by taxing those in the petrochemical industry. The Fund is available to pay damages promptly to victims of pollution and to finance cleanup and removal efforts. The Act states that [w]henever the department acts to remove a discharge or contracts to secure prospective removal services, it is authorized to draw upon the money available in the fund. Such money shall be used to pay promptly for all cleanup costs incurred by the department in removing or in minimizing damage caused by such discharge. [N.J.S.A. 58:10-28.11f(a).] Thereafter, the Fund seeks reimbursement from those responsible for the pollution. A critical attribute of the law, then, is that it creates an immediately available source of funds to clean up discharges of hazardous materials. The conventional approach—a suit by the DEP to establish liability, a judgment requiring the defendant to clean up or to pay for the cleanup, and ultimately further orders to compel compliance (including orders holding defendant in contempt, setting a date for compliance, extending the date, and so on)—was deemed inadequate for the solution of the problem. The Legislature mandated the expeditious cleanup and removal of hazardous wastes because this problem is not static, but constantly growing. The need was for relief from pollution, not for judgments and orders that, although perhaps vindicating individual rights, would leave pollution removal to the remote and uncertain future. The Legislature concluded that there was a need for immediate relief. The Fund is one means devised by the Legislature to achieve this result. Its purpose is to make sure that cleanup and removal come first— through the Fund—with litigation, if any, to follow. Despite its size, the Fund does not begin to meet New Jersey’s cleanup needs. The problem of remedying both today’s new spills and the consequences of past pollution far *90 exceeds the limits of the Spill Fund. 1 It is obvious that more resources are needed. The Legislature decided that whatever else was needed would come not from the taxpayers but from the polluters themselves. 2 It allowed the DEP to obtain the money for cleanup and removal of hazardous substances by demanding payment from alleged polluters prior to any hearing. To discourage refusal to comply with a DEP demand for payment, the Act imposes treble damages on the party refusing initial payment if that party is ultimately found to have been liable. N.J.S.A. 58:10-23.11f(a). It is that part of the solution to this problem that today’s decision weakens, perhaps severely. The methods devised by the Legislature of assuring relatively rapid cleanup of these sites include imposition of almost absolute liability for cleanup and removal costs. “An act or omission caused solely by war, sabotage, or God, or a combination thereof, shall be the only defenses which may be raised by any owner or operator of a major facility or vessel responsible for a discharge in any action arising under the provisions of this Act.” N.J.S.A. 58:10-23.11g(d). Moreover, liability is “joint and several.” Anyone “in any way responsible” for the discharge that ultimately poisons a site is liable for all cleanup and removal costs. N.J.S.A. 58:10-23.11g(c). In other words, a *91 party, free of any negligence, who discharges hazardous materials on a particular site, is fully liable for all damages caused by the contamination of that site and all cleanup costs even though the discharges of other parties may have been greater and may have involved negligence. The party deemed liable is left to seek contribution from other parties responsible for the contamination of the site. 3 The majority expresses no objection to the Legislature’s imposition of absolute liability and joint and several liability. It is the next step in the Legislature’s attempt to remedy the problem that causes the Court to hesitate in executing this law as written by the Legislature. The legislation provides that one designated by the DEP as liable for these costs may be required on demand of the DEP—before any adjudication of such liability—to undertake the entire cleanup and removal task. Alternatively, as the Court today correctly holds, the party may be required to pay to the DEP, on its demand, an amount sufficient to enable the DEP (or its contractors) to effect the *92 cleanup and removal itself. If, on demand for that sum, the designated party fails to pay, it is, should it ultimately be held liable, liable not only for the entire cost, but for three times that cost.. N.J.S.A. 58:10-23.11f(a). The treble damages provision of the Act thus “provides strong incentives to private parties to participate in the hazardous waste cleanup process and to determine the extent of their liability after such participation has commenced.” Woodland Private Study Group v. New Jersey, Dep’t of Envtl. Protection, 616 F.Supp. 794, 811 (D.N.J.1985). The statute allows for the possibility that a party wrongly but honestly believing that it is not liable (or not liable for the amount demanded) will suffer punitive treble damages if it withholds payment based on that belief. It is this possibility that prompts the Court to modify the remedy. The Court holds that treble damages are not recoverable if the responsible party’s refusal to pay is based on “good cause” even when that party is, in fact, fully liable. “Good cause” is not fully described, but it appears to be an honest belief, grounded on objective fact, that the party is not liable or, if liable, is not liable for the amount claimed. As the majority says, “[i]f the court determines that a company’s basis for noncompliance is objectively reasonable, even if the court does not ultimately uphold the company’s argument, DEP’s request for treble damages may be rejected if not reasonable in light of all the circumstances.” Ante at 84. Precisely what this means is not clear. It may imply, in addition to a defense based on the objective reasonableness of a refusal to comply with the DEP’s demand for funds, a further defense, in the action to recover treble damages, that the DEP’s request is “not reasonable in light of all the circumstances.” Before dealing with the legal analysis of the Court’s limitation on this treble damage power, a summary of its practical effect is instructive. As written by the Legislature, this seemingly harsh provision might have promptly supplied the State with the wherewithal to meet its cleanup and removal goals. Those companies partly or fully responsible for creating hazard *93 ous waste sites would presumably have readily paid the amount demanded in order to avoid the risk of treble damages. Many of them are fully able to make such payments with only minimal impact on their operations. The State would be able to start and finish the cleanup. And the alleged polluter, if indeed it was not liable or was overcharged for the cost of the cleanup, would be entitled to reimbursement from the State through the Fund. The goal, immediate cleanup and removal, would have a chance of being achieved. It is the importance of this goal that seems not to have had a sufficient impact on the Court’s analysis. The threat of damage from these sites is severe and imminent. Failure to address the threat will be deleterious not only to industry and growth but to life itself. The goal of the challenged provision is to force polluters to pay prior to litigation so that the State can address the problem immediately. Balanced against this goal, the Court posits the potential unfairness of the remedy. An uninsured small business, truly in doubt as to its liability, may be faced with a grim choice. It may pay, thereby placing the company in financial jeopardy notwithstanding the prospect of reimbursement, or, alternatively, it may refuse to pay and risk an ultimate treble damage sanction. If unfairness does result, the administrator of the Fund has discretion to compromise a claim against a discharger that would otherwise be subject to the treble damage penalty because of its refusal to pay. It is noteworthy that in the companion case, In re J.I.S. Industrial Service Company Landfill, 110 N.J. 101 (1987), the DEP, after making a demand for payment (in that case to finance a design and feasibility study), thereby triggering potential treble damages, settled the matter apparently by agreeing to various contributions from numerous dischargers. In other words, the law does not require the enforcement agency to act unfairly. See N.J.S.A. 58:10-23.11q. The Court underestimates the potential impact of its “good cause” exception to the treble damages remedy. Each dischar *94 ger will seek to slip through the loophole created in this case. Whether it be the small business or the multinational corporation, management, in deciding whether to refuse to pay, will ask itself whether the circumstances might persuade a judge— or a jury—that the company’s refusal was reasonable, or that treble damages were not “reasonable in light of all of the circumstances.” See ante at 84. The concept of “good cause” has performed a great service in the law, especially where narrow specifics in legislation or decisional law are not feasible. The virtue of “good cause”—its flexibility, its expansiveness, its ability to cover many different kinds of situations, difficult to define in advance—is in this situation a vice. Instead of the assured prompt flow of funds to the State from those who are responsible for polluting our environment, instead of the prompt cleanup and removal of hazardous substances, we will have delay and litigation leading to the compromises that have for so long afflicted governmental attempts to act effectively in this area. This is an arena where desperately needed action has been dreadfully delayed. In re J.I.S. Industrial Service Company Landfill, supra, 110 N.J. 101 , is but one example. After twenty years, the courts, the DEP, and the polluter are still arguing about a plan for cleanup. With today’s judicially designed exception to liability, we can expect more of the same—delay reinforced by the predictable reluctance of judges and juries to impose treble damages on a polluter who shows some semblance of honesty and “good cause” in not putting up the money. No balancing of societal interests—assuming this were a permissible concern of the Court—calls for such a result. By that balance the Court, in order to avoid the possibility of unfair application to a few, may be seriously impeding society’s attempt to escape the certain substantial destruction caused by these poisonous sites. Our need for the swift action that the threat of treble damages would elicit dwarfs the unfairness that may result from the actual imposition of this remedy. *95 The Court has created the “good cause” exception not because the Act without it would be unconstitutional, but rather because the Act “may” be unconstitutional. Ante at 82. Noting that “none of the individual components of the Spill Act enforcement framework violates [federal] due process requirements,” the Court concludes that the “combined weight” of its various elements “may be beyond constitutional tolerance.” Ante at 80-81 (emphasis supplied). The Court moreover suggests that the Act may be invalid under the New Jersey Constitution and our State’s “doctrine of fundamental fairness.” Ibid. Never having decided that the statute does infringe state or federal constitutional rights, or our state’s concept of fundamental fairness, the Court nevertheless concludes that it is forced to “the choice between invalidating the Spill Act and reading a provision into the Act,” i.e., the “good cause” exception. Ante at 84. The Court has seriously weakened the statute in order to avoid a constitutional deficiency that it has never found and one that, in my opinion, does not exist. It is difficult to meet the Court’s constitutional argument, since the majority concedes that “it is sufficient for the due process guarantee of the federal Constitution that there be some forum where an order’s validity can be challenged without penalty; it need not be the same forum where enforcement actions are prosecuted and the challenge need not be pre-payment.” Ante at 79. Perhaps the strongest argument that the Court can muster to support its doubt about the constitutional validity of these provisions is its statement that “the United States Supreme Court has never before ruled on the constitutionality of a statutory enforcement scheme that combined, as the Spill Act does, joint and several liability, nearly absolute liability, the virtual elimination of substantive defenses, mandatory treble damages, and no pre-enforcement hearing.” Ante at 79. Each of those, however, as the Court has pointed out, ante at 80-81, is constitutional; there is no *96 claim that any one of them violates due process, nor any case that holds that the “combined weight” does so. As a matter of fact the only case passing on the issue, a federal district court case, Woodland Private Study Group v. State of New Jersey, supra, 616 F.Supp. 794 , sustains the constitutionality of the Act. Other than noting instances where this Court has held that the protections of the state Constitution exceed those of the federal Constitution, today’s decision makes no attempt to articulate what state constitutional principles are violated. The position of this Court in the past has been that [w]here only property rights are involved, mere postponement of the judicial inquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the issue be adequate; delay in the judicial determination of property rights is ofttimes unavoidable where it is essential that governmental needs be immediately satisfied. [Jamouneau v. Harner, 16 N.J. 500, 522-23 (1954), cert. den., 349 U.S. 904 , 75 S.Ct. 580 , 99 L.Ed. 1241 (1955).] The Court today has failed to demonstrate that this principle should be abandoned. The “fundamental fairness” doctrine, cited by the Court to lend support to its conclusion, is inapplicable. That doctrine has been used by this Court, usually in the criminal context, to assure fairness to individual litigants where the procedure, though it may fall short of constitutional infirmity, shocks our sense of justice. 4 There is nothing that violates “fundamental fairness” in this design to protect society from the insidious *97 dangers of toxic substances. There is nothing fundamentally unfair in attempting to find an effective way to deal with one of the most threatening problems facing society today. There is nothing fundamentally unfair in deciding that, despite the potential for unfairness in individual cases, society’s need for protection from the threat of hazardous waste sites requires the strictest rules of liability. The Court expresses concern regarding what it perceives as the uncertainty of the right of a party who pays on demand to be reimbursed if the party establishes thereafter that it was not liable for the full amount paid. See ante at 80 n. 5. The Court would better vindicate the legislative will by interpreting the statute to assure complete reimbursement under those circumstances, instead of assuming that the only route to constitutionality (or more accurately the only route to avoid doubtful constitutionality) is to weaken severely a mechanism that the Legislature relied on to insure prompt availability of private funds to aid in the immediate cleanup of hazardous waste sites. It requires no great imagination to find such a right of reimbursement. The statute makes it clear that the Fund will have an action against parties responsible for paying cleanup and removal costs. N.J.S.A. 58:10-23.111 Strongly implied is the correlative right to reimbursement from the Fund where one not liable for cleanup and removal pays the Department on demand for the cost of that work. The Legislature surely intended that such a party, on establishing its non-liability or its *98 payment of more than was required, would have the right of reimbursement from the Fund. It strains credulity to infer that the Legislature intended, through its treble damage threat, not only to obtain funds from a possible polluter but to prevent a party, on proof of its innocence, from recouping what it had been unjustly forced to pay the State. The Court notes that “the DEP maintains that no recourse to the Fund or its arbitration procedures may be had by a partially responsible discharger,” and concludes that “[t]hus the remedy is illusory in almost all cases.” Ante at 79 n. 4. Obviously, no recourse to the Fund may be had by any “partially responsible discharger” if, under the law, that discharger is liable for the entire damage. It is difficult to understand how the statute is unconstitutional (or the remedy “illusory”) in failing to provide reimbursement to a party that has paid all of the damages when that party is in fact liable for all of the damages. If the partially responsible discharger has been overcharged for the total cost of the cleanup, however, that discharger must have recourse against the Fund. If this is the concern that leads the Court to question the constitutionality of the statute, its insubstantiality is apparent. It is eliminated by a construction of the statute that is not only reasonable but compelled. Had the Legislature intended a “good cause” exception, or anything like it, it would have said so. It provided, in this very Act, that penalties for failure to pay the tax imposed by the Act might be remitted if such failure “was excusable under the circumstances,” N.J.S.A. 58:10-23.11h(e); no similar excuse is provided for refusal to pay for cleanup costs, see N.J.S.A. 58:10-23.11g(d). Moreover, the Legislature was undoubtedly aware of the provision in the parallel federal statute triggering treble damages only where the polluter’s failure to clean up was “without sufficient cause.” 42 U.S.C. § 9607 (c)(3). The fact that our Legislature saw fit to impose treble damages without the slightest mention or hint that any excuse would suffice to avoid this sanction (if the party refused demand for *99 payment and was indeed liable) is proof of the Legislature’s intent. The Court’s analysis of the possible claims of Kimber and Solar in this case, ante at 85-86, indicates the myriad circumstances that this Court envisions as perhaps giving rise to “good cause” to refuse payment. The effect of this broad exception, then, will be to encourage a polluter to resist DEP demands for cleanup and removal funds. What will occur is a full-blown trial involving complex questions of liability and quantum of damages that will likely take years to resolve. And that will be followed by appeals. One can predict that with the treble damage inducement thus drained of its strength, the State will be forced to look elsewhere for the needed financing to fund cleanups as spills occur. Meanwhile, continued delay will render cleanup and removal of hazardous substances increasingly difficult and expensive. By creating an exception where none was intended by the Legislature nor required by the Constitution, the Court has, I fear, significantly diminished the State’s ability to deal effectively with a critical problem. The Court effectively holds that unless a good cause defense is allowed the statute in its operation violates due process. Ante at 82. The Court notes, however, that treble damages could be assessed against polluters in a law that contained no demand-refusal triggering mechanism. Ante at 75. As the Court points out, “[t]he Supreme Court regularly applies antitrust legislation, which, like the Spill Act, combines treble damages with joint and several liability. The Sherman Antitrust Act has been interpreted in a way that those subjected to onerous joint and several liability provisions have no right of contribution.” Ibid, (citations omitted). A demand-refusal triggering mechanism can, from that vantage point, be viewed as less onerous than the impact of antitrust legislation: not only does our substantive law allow a right of contribution from other tortfeasors, but treble damages can be escaped by paying the underlying liability on demand. The *100 Court nonetheless invalidates the statute, or more accurately, finds an implied “good cause” exception without which the statute “may” be unconstitutional. As the Court puts it, “[d]ue process standards arguably call for a right to challenge the validity of a legislative or administrative order without facing the possibility that one will incur a greater penalty if such challenge is unsuccessful than the loss resulting from such an order if left unchallenged.” Ante at 80 (emphasis supplied). It is widely recognized that the requirements of due process cannot be determined in the abstract, without regard to the concrete interests at stake in a given circumstance. See Jamouneau v. Harner, supra, 16 N.J. at 514 (“The basic right of private property perforce yields to an overriding public need.”). In none of the due process cases cited by the Court was the state’s interest as urgent and as weighty as it is here. Our state has found that in order to remove as quickly as possible the poisons that menace the public health and welfare, vast sums must immediately be made available to commence the effort. The only way such sums will be available is if polluters are forced to pay their fair share and to do so now. The Legislature has determined, and correctly so, that ordinary legal process is. wholly inadequate for this purpose. Lawsuits to compel removal and cleanup, to recover damages on proof of liability, and to recover treble damages would all afford traditional due process, but would leave the state Fund without the means to satisfy its immediate need for funds from polluters. The Legislature has concluded that the only remedy that will suffice is one that threatens severe sanctions against polluters who fail to pay immediately on demand. The process that is due to targeted companies, the Legislature has concluded, is the right, after suck payment, to sue to recover all or some of the payment if it is ultimately determined that the company involved either was not liable at all, or was liable for less than it paid. If the process that is due to such polluters requires more, requires that they be allowed not to pay in advance, but to contest their liability before payment, or to escape the treble *101 damage sanction because of a reasonable belief as to their non-liability, the Legislature’s goal will not be achieved, the money will not be forthcoming, the poison will not be removed. I do not believe that society is powerless to arrange for an immediate cleanup of these sites by forcing those who have caused the damage to pay for that cleanup up front. I do not believe that the only method by which the legislative goal of immediate cleanup can be achieved is through general taxation. That, unfortunately, is the result of today’s decision. I suggest that the Court goes wide of the mark in its conclusion that today’s holding will cause little damage to the Legislature’s effort to clean up hazardous waste sites immediately. Today’s decision does not reckon with the unprecedented nature of the risk facing this state and its citizens. There is no room for judicial interference with this attempt at self-preservation. Only the clearest constitutional infirmity could justify today’s result. I find none, and the Court finds, at most, that “maybe” such a defect exists. I would allow this statute to be enforced as written. For affirmance as modified—Justices CLIFFORD, HANDLER, O’HERN, GARIBALDI and STEIN—5. Dissenting—Chief Justice WILENTZ—1. The Act itself recognizes the Spill Fund's inadequacy. “If and to the extent that he determines that funds are available, the administrator shall approve and make payments for any cleanup and removal costs incurred by the Department for the removal of a hazardous substance____” N.J.S.A. 58:10-23.1 lf(c) (emphasis supplied). Shortages are also anticipated where the Fund is used to pay damages. "In the event that the total awards for a specific occurrence exceed the current balance of the Fund, the immediate award shall be paid on a prorated basis____" N.J.S.A. 58:10-23.11r. Contributions from responsible parties figure prominently in this state’s overall toxic cleanup scheme. According to a recent DEP report, "New Jersey expects approximately $500 million in contributions from private responsible parties to meet the total program goal of $1.6 billion." New Jersey Department of Environmental Protection, New Jersey Hazardous Waste Management Program Update 1 (March 1987). In New Jersey we have, until recently, accepted without question the idea that joint tortfeasors—those whose actions together add up to the total damage—are "jointly and severally” liable for the damages caused. The severity of the common-law rule was such that one could not obtain contribution even from those whose culpable actions were the major cause of the problem. That injustice has been remedied to a great extent, see NJ.S.A. 2A: 15-5.3, but there has been no general change in the law that holds each one of the joint tortfeasors liable for the entire damage, whether or not it is able to obtain contribution. The Legislature has recently placed certain limitations on the liability of joint tortfeasors, but these explicitly do not apply in environmental cases. See L. 1987, c. 325, § 3 (to be codified at NJ.S.A. 2A:15-5.2) (joint tortfeasor in non-environmental case responsible for 20% or less of harm is liable only for attributable share of damages; party responsible for over 20% but less than 60%, though liable for full amount of economic damages, is liable only for attributable share of noneconomic damages); see also Licensed Alcoholic Beverage Server Fair Liability Act, Z. 1987, c. 152, § 6 (to be codified at NJ.S.A. 2A:22A-6) (alcohol beverage server determined to be a joint tortfeasor is "responsible for no more than that percentage share of the damages which is equal to the percentage of negligence attributable to the server’’); L.1987, c. 404, § 5 (to be codified at NJ.S.A. 2A:15-5.5 et seq.) (similar limitation on liability of social hosts for alcohol-related accidents). Most of the "fundamental fairness" cases cited by the majority, ante at 81-82, involve criminal proceedings. See, e.g., State v. Abbati, 99 N.J. 418, 427 (1985) (fundamental fairness precepts confirm court’s power to dismiss indictment with prejudice following mistrials attributable to repeated jury deadlocks); State v. Gaffey, 92 N.J. 374, 389 (1983) (due process and fundamental fairness considerations may, under certain circumstances, bar further prosecution of incompetent defendant whose previous indictment was dismissed without prejudice); State v. Tropea, 78 N.J. 309, 316 (1978) (whether or not double jeopardy clause applies to motor vehicle violations, considerations of fundamental fairness bar retrial); State v. Talbot, 71 N.J. 160, 168 (1976) (defense of entrapment is "bottomed on the principle of fundamental fairness"); State v. Gregory, 66 N.J. 510, 518 (1975) (fairness dictates compulsory joinder of *97 prosecutions arising from same transaction); State v. Kunz, 55 N.J. 128, 144 (1969) ("rudimentary fairness” requires disclosure of presentence report and fair opportunity for defendant to respond prior to sentencing). The remaining cases cited similarly bear little resemblance to the instant matter. See, e.g., State v. 1979 Pontiac Trans Am, Color Grey, 98 N.J. 474, 485-86 (1985) (forfeiture statute construed to exempt innocent owners who use due care to prevent unlawful use of their property); Cunningham v. Department of Civil Serv., 69 N.J. 13, 26 (1975) (demoted civil service employees entitled to a hearing). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7311406. Public record. Not legal advice.