Alan B. Handler

“ The judicial decisions of another state are not conclusive evidence of legislative intent. Thus, where the legislature of one state chooses to adopt as part of its laws the statute of another state, the judiciary of the adopting state may, if appropriate, choose to interpret its statute differently from the judicial interpretations of the source state. ”

“ To a greater extent than in other types of cases, a judge in successive NGI proceedings will generally have the opportunity to become closely acquainted with the intricacies and nuances of the NGI committee's record of treatment and behavior. If the judge anticipates that the committee will remain institutionalized, there may be a lesser need to open the hearing to the public because there is a smaller risk of the damage to the public's sense of justice, so fervently invoked by the Court. ”

“ However, if it seems unfair to allow a plaintiff to recover from a less faulty defendant, which is permitted under the aggregate approach, the Joint Tortfeasors Contribution Act would operate to mitigate this apparent wrong. If all defendants are responsible for a plaintiff's recovery, at least all will share the burden among themselves in proportion to their individual fault. ”

“ I differ from the Court when it reasons that, because of the public nature of the criminal trial, there is a continuing need for public access to subsequent institutional-release proceedings and that this need is so great that 1 it overwhelms all other legitimate and appropriate concerns. I believe there are concerns that the Court does not stress having to do with the integrity of such hearings and the efficacy of the truth-determining procedures of such hearings, as well as with the privacy interests of the person whose liberty is at stake. ”

“ The majority of the court has become convinced that comparing the negligence of the individual plaintiff to that of each individual tortfeasor -- rather than comparing the negligence of the individual plaintiff to that of the combined negligence of the several tortfeasors who have collectively contributed to plaintiff's injuries -- leads to harsh and unfair results . ”

“ A court must be mindful of the countervailing effects of public access and publicity and appropriately balance such concern. See Trantino, supra, 89 N.J. at 376, 446 A.2d 104 ("it is undeniable that public outrage over an imminent parole determination . . . has no place in a parole proceeding and is to be given no weight in a parole decision.") .
These considerations do not overcome the notion that an NGI-committee release hearing should ordinarily be open to the public. ”

“ We observe that the basic purpose of [the comparative negligence statute] is to distribute the total damages among those who cause them. Furthermore, the legislature did not mean to go any further than to deny recovery to a plaintiff only when his negligence was at least 50% of the cause of the alleged injury or danger. In other words, if the plaintiff's negligence [A560] is less than 50% of all the co-defendants, he is entitled to recover from each or all of them as joint tortfeasors even though the plaintiff's negligence equals or exceeds that of a particular co-defendant. ”

“ The class of persons potentially excluded from liability is sufficiently large that we need not resort to "less negligent" defendants to swell its numbers. [1]
In sum, the aggregate approach does not empty the legislation of reasonable meaning. The majority has, I submit, failed in its [NJ103] attempt to rely upon the plain language rule as demonstrating the clear meaning and basic intent of the Comparative Negligence Act. The Court cannot, therefore, avoid a deeper probe for the underlying legislative intent. ”

“ Finally, it is important to consider each successive release hearing separately. As this Court has previously observed, " [t] he standard for determining the need for continued institutionalization is 'dangerousness to self or society.'" Krol, supra, 68 N.J. at 259, 344 A.2d 289. "The reviewing court must consider any improvement or deterioration in the committee's condition since the initial hearing, which serves to increase or decrease the danger he would pose to himself or the community under the current level of restraints." ”

“ If there is some doubt that the adopting legislature fully intended to embrace the particular interpretations or applications by the courts of the source state, the courts of the adopting jurisdiction do not have to give greater weight to the originating state's judicial decisions than their intrinsic persuasiveness demands ”

“ We have recognized in other kinds of proceedings, that, although the public has a 3 legitimate interest in what happens to a person who has been subjected to criminal prosecution, other considerations can militate against open hearings or can dictate limitations of the extent of public access. See, e.g., N.J. Parole Bd. v. Byrne, 93 N.J. 192, 460 A.2d 103 (1983) (public access to parole hearing may be limited) ; In re Trantino Parole Application, 89 N.J. 347, 446 A.2d 104 (1982) (same) . Even in criminal prosecutions, privacy interests can serve to limit public access. ”

“ The salutary policy of allocating responsibility among all negligent parties in proportion to their relative fault is more fully achieved as to both plaintiffs and defendants under the aggregate approach. In a sense, the damages award to an injured plaintiff and the contribution award to a joint tortfeasor share a common strain. ”

“ Since the Legislature necessarily intended the recovery allocation provisions of N.J.S.A. 2A:15-5.3 to apply to a much larger class than tort-immune defendants, this larger class, the majority contends, must include negligent but "less faulty" defendants.
It is difficult to follow this forensic flight. Wherever else it leads, it clearly demonstrates that the legislative intent to use the individual or the aggregate approach cannot be fairly resolved solely from the language of the enactment. ”

“ Moreover, there is not the slightest suggestion that construing the term "person," as it appears in N.J.S.A. 2A:15-5.1, to include the plural meaning is "repugnant to the subject of the enactment." N.J.S.A. 1:1-2. ”

“ N.J.S.A. 9:3-47 (adoption) ; Rule 4:74-7 (civil commitment) . Cf. N.J.S.A. 2A:84A-32.4 (a) (in criminal trial involving child abuse, victim may testify out of courtroom before closed-circuit television) . ”