Robert Wilentz

“ But if the civil right of the patient is strong enough to permit his or her presence despite whatever jeopardy it may cause to the psychiatric testimony and to subsequent treatment, the public's right is at least as compelling — when balanced against that same interest, already diluted by the presence of next of kin, relatives of the victim, and the patient himself or herself. ”

“ But that possibility and its significance are substantially diminished by the prior criminal trial; they are not of sufficient weight to overcome the important interests that favor open proceedings.
The openness of the criminal trial has other significance besides its relevance to the issues of privacy and confidentiality. That openness bears on and to some extent explains the intensity of the public's interest and concern. The public has already heard all of the testimony, the public understands what it was that led a jury to find defendant not guilty by reason of insanity. ”

“ That difficulty is one factor that suggests the employer did not intend a lifetime contract with one employee. Here the question of good cause is made considerably easier to deal with in view of the fact that the agreement applies to the entire workforce, and the workforce itself is rather large. Even-handedness and equality of treatment will make the issue in most cases far from complex; the fact that in some cases the "for cause" provision may be difficult to interpret and enforce should not deprive employees in other cases from taking advantage of it. ”

“ Public confidence cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court's decision sealed from public view." In addition to kindling public misperception and eroding public confidence, closure of significant pretrial proceedings perpetuates general ignorance and cuts off public knowledge necessary to a full understanding of the criminal justice system. ”

“ Having been employed, like hundreds of his co-employees, without any individual employment contract, by an employer whose good reputation made it so attractive, the employee is given this one document that purports to set forth the terms and conditions of his employment, a document obviously carefully prepared by the company with all of the appearances of corporate legitimacy that one could imagine. ”

“ The hearing open to the public seems almost a denial of his acquittal, a detriment to one found by law not guilty and, by the ethics that shaped that law, a detriment to one who is sick only and not evil. There are others involved however, other needs, other interests, and they are compelling. Society's concerns here are strong and equally legitimate. The interests conflict, and a choice must be made.
VI. Practically all of the factors that have, on balance, persuaded us to presumptively require open hearings for NGI murder committees bear strongly on our determination of legislative intent. ”

“ In the last century, the common law developed in a laissez-faire climate that encouraged in-dustrial growth and approved the right of an employer to control his own business, including the right to fire without cause an employee at will. ”

“ It is asking too much of the public to have trust in a system of criminal justice that keeps them in the dark, that refuses to tell them why a convicted murderer — for, although it is a misperception, that is how he or she is viewed by many — should be set free. If they were given all the facts, it might still be difficult for them to understand, but without the facts it is impossible.
[A932] We believe that the professionalism of psychologists and psychiatrists is such that they will not withhold treatment or prejudice treatment because of this determination. ”

“ Whatever their worth in dealing with individual long-term employment contracts, these requirements, over and above those ordinarily found in contract law, have no relevancy when a policy manual is involved. In that case, there is no individual lifetime employment contract involved, but rather, if there is a contract, it is one for a group of employees -- sometimes all of them -- for an indefinite term, and here, fairly read, one that may not be terminated by the employer without good cause. ”

“ It is almost inconceivable that the Legislature, so consistently concerned with protecting the public from potential NGI committees' dangerousness, so aggressively alert in its amendments of the statute, alert to correct any perceived weakening of that protection, would mandate a procedure truly disturbing to the public, unequalled in its potentially destructive effect on public confidence in the system, a mandated closed hearing that can free an NGI murder committee. ”

“ It is reasonable to interpret it as seeking continued work from the employees, who, in most cases, are free to quit since they are almost always employees at will, not simply in the sense that the employer can fire them without cause, but in the sense that they can quit without breaching any obligation. Thus analyzed, the manual is an offer that seeks the formation of a unilateral contract -- the employees' bargained-for action needed to make the offer binding being their continued work when they have no obligation to continue. ”

“ Trial courts retain the power, for good cause, to order that any periodic hearing, or part of it, be held in camera. That decision calls for a sensitive weighing of all of the factors mentioned throughout this opinion, including the committee's continuing interest in privacy and confidentiality. The public interest in open proceedings in these matters remains paramount, of course, but depending on the circumstances, it can be overcome. ”

“ Job security is the assurance that one's livelihood, one's family's future, will not be destroyed arbitrarily; it can be cut off only "for good cause," fairly determined. Hoffmann-La Roche's commitment here was to what working men and women regard as their most basic advance. It was a commitment that gave workers protection against arbitrary termination.
Many of these workers undoubtedly know little about contracts, and many probably would be unable to analyze the language and terms of the manual. ”

“ While we acknowledge that open hearings may be embarrassing, discomforting, and impact on real interests — the committee's privacy interests — we do not agree that the soundness of the ultimate determination, the search for truth, is jeopardized by open hearings. As noted in our opinion, we do not believe that psychiatrists or others are more likely to tell the truth if the proceedings are closed. See supra at 145-146, 570 A.2d at 931-932. The notion that the truth will emerge best when the doors are closed is 0 obviously totally contrary to our settled practices and beliefs. ”

“ As one might expect, layoff is a termination caused by lack of work, retirement a termination caused by age, resignation a termination on the initiative of the employee, and discharge due to performance and discharge, disciplinary, are both terminations for cause. ”

“ All of them go to the heart of this most important interest, namely, maintaining public confidence. One of the most important obligations of government, and [A933] in particular of the judiciary, is to legitimately preserve public confidence. Under these circumstances we believe the public is entitled to know why someone deemed to have murdered another, not punished because of insanity but thereafter committed, is now going to be set free. The only way it will ever know is if the proceedings are open to the public.
We realize the ultimate consequence of our holding to the NGI murder committee. ”

“ The court's discussion of the effect of distributing a manual is worth noting:
While an employer need not establish personnel policies or practices, where an employer chooses to establish such policies and practices and makes them known to its employees, the employment relation-ship is presumably enhanced. The employer secures an orderly, cooperative and loyal work force, and the [p304] employee the peace of mind associated with job security and the conviction that he will be treated fairly. No pre-employment negotiations need take place and the parties' minds need not meet on the subject ”

“ The first appearance of an in camera hearing requirement in New Jersey is a part of the history of increasing attention to the rights of persons suffering from mental illness. As doubts concerning the fairness of society's treatment of the mentally ill grew, legislative provisions affording greater protection were adopted, reflected in, and to some extent triggered by [NJ125] judicial decisions on the subject. The most basic change rejected "insanity" alone as justification for commitment: dangerousness to self or society became the standard. ”

“ Whatever else the manual may deal with (as noted above, we do not have the entire manual before us) , one of its major provisions deals with the single most important objective of the workforce: job security. The reasons for giving such provisions binding force are particularly persuasive. Wages, promotions, conditions of work, hours of work, all of those take second place to job security, for without that all other benefits are vulnerable.
We are dependent upon others for our means of livelihood, and most of our people have become completely dependent upon wages. ”

“ But if a judge were of a mind to waver, how much more difficult it is to be brave when the decision you render will be for reasons that no one knows as compared to a decision that you have the opportunity to explain. ”

“ Our courts will not allow an employer to offer attractive inducements and benefits to the workforce and then withdraw them when it chooses, no matter how sincere its belief that they are not enforceable. ”

“ Anyone moderately familiar with criminal trials and the public's reaction where juries acquit on murder charges by reason of defendant's insanity knows the strength of these concerns and the vulnerability of the justice system to extreme erosion of confidence. Sociological studies confirm this. [13] Most note-worthy of the conclusions of one such study is that 88.7% of those surveyed believed that the system of releasing committees allows dangerous people back onto the streets. ”

“ Furthermore, it shall not be open to defendant to prove that good cause in fact existed on the basis of which Woolley could have been terminated. [13] If the court or jury concludes that the manual's job security provisions are binding, then, according to those provisions, even if good cause existed, [p308] an employee could not be fired unless the employer went through the various procedures set forth in the manual, steps designed to rehabilitate that employee in order to avoid termination. On the record before us the employer's failure to do so is undeniable. ”

“ We note first of all that the requirement of in camera proceedings does not necessarily exclude everyone but the witnesses and the parties. All "in camera" means is that the [NJ144] public is excluded. Even in civil commitments the in camera hearing contemplates the presence of the patient's next of kin, for while the statute does not give them the right to be present, it authorizes the court to allow them to be. ”

“ There are many companies whose employees have job security who are quite able to plan their future and implement those plans. If, however, the at-will employment status of the workforce was so important, the employer should not have circulated a document so likely to lead employees into believing they had job security. ”

“ The next difference, again by way of a specific amendment to reverse the effect of a judicial determination, eased the State's evidentiary burden in continuing the NGI's commitment, clearly designed to provide a greater likelihood of [A934] continued NGI confinement, again protecting the public from unwarranted NGI release. The last difference, once more by way of amendment overriding the result of a judicial determination, made that which was no offense if done by a civil committee a crime if the actor was an NGI committee -- escape, the clearest potential threat to the public. ”

“ IV. GUIDELINES FOR DISCHARGE DUE TO PERFORMANCE In keeping with the company's concern for all employees, termination of employment on the initiative of the com-pany under circumstances generally related to the quality of the employee's job performance deserves special consideration. We would like to insure that every reasonable step has been taken to help the employee continue in a productive capacity. It is the responsibility of each manager and supervisor to develop the people working for him/her. ”

“ NGI committees are, in the eyes of the law, equally innocent, equally sick, and not necessarily any more dangerous. There are, however, at least three qualifications to this judicial mandate of equal treatment. First, what is required is not absolute equality, but "substantial equality." In State v. Krol, supra, 68 N.J. at 250-51, 344 A.2d 289, we stated:
[NJ129] the fact that the person to be committed has previously engaged in criminal acts is not a constitutionally acceptable basis for imposing upon him a substantially different standard or procedure for involuntary commitment. ”

“ Finding that the personnel policy manual did not contain any such clear and definite expression [p289] and, further, that there was no such additional consideration, the court granted summary judgment in favor of defendant, sustaining its right to fire plaintiff with or without cause.
The Appellate Division, viewing plaintiff's claim as one for a "permanent or lifetime employment," found that the company's policy manual did not specifically set forth the term, work, hours or duties of the employment and "appear [ed] to be a unilateral expression of company policies and procedures . . . ”

“ As innocent under our law as one who never committed any crime, as free of guilt as all who are mentally ill, as afflicted with the pain of such illness, as needing and deserving of help as all others, the NGI murder committee is, by our ruling, treated differently, in a sense protected less. ”

“ The employer in the old sense has been replaced by a superior in the corporate hierarchy who is himself an employee. We are a nation of employees. Growth in the number of employees has been accompanied by increasing recognition of the need for stability in labor relations. ”

“ See F. Tanenbaum, A Philosophy of Labor 9 (1951) , quoted in L. Blades, "Employment At Will vs. Individual Freedom: on Limiting the Abusive Exercise of Employer Power," 67 Colum.L.Rev. 1404, 1404 (1967) [hereinafter cited as Blades] . If such a commitment is indeed made, obviously an employer should be required to honor it. When such a document, purporting to give job security, is distributed by the employer to a workforce, substantial injustice may result if that promise is broken.
We do not believe that Hoffmann-La Roche was attempting to renege on its promise when it fired Woolley. ”