Published Appellate Court Opinions

In these appeals, calendared back-to-back and consolidated to issue a single opinion, the court granted plaintiff Norma Davis leave to challenge two separate Law Division discovery orders arising from her lawsuit alleging that defendants Disability Rights New Jersey, Gwen Orlowski, and Ellen Catanese terminated her employment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.  The orders were stayed pending these appeals. 

In A-0269-22, the trial court order (cell phone record order) granted in part and denied in part plaintiff's motion to quash defendants' subpoena to her cellular provider seeking her cell phone records.  Plaintiff used her cell phone to perform her work duties while allowed to work from home.  The order required plaintiff:  (1) to produce a redacted copy of her personal cell phone records indicating work-related calls and texts made and received during her normal workday from January 1, 2018 to January 31, 2020; and (2) to submit to the court a copy of the redacted records provided to defendants, as well as a Vaughn[1] index of an unredacted copy of the records showing all calls and texts made and received during that period.  National Employment Lawyers Association/New Jersey (NELA) filed an amicus brief in support of plaintiff.

In A-0270-22, the trial court order (social media posts order) granted in part and denied in part defendants' motion to compel plaintiff to provide copies of her private social media posts, profiles, and comments (collectively "social media posts" or "social media content") from January 1, 2020 to August 29, 2022, depicting an emotion, attaching a picture of herself, or mentioning:  Disability Rights or her lawsuit's allegations; her vacations or celebrations; her being ill or worrying about being ill; and her work.  NELA and New Jersey Association of Justice (NJAJ) filed amicus briefs in support of plaintiff. 

The court is unpersuaded by plaintiff's and amici's arguments that the trial judge abused his discretion in entering orders which abridged her privacy interests.  The court concludes the judge appropriately considered plaintiff's privacy interests in her social media posts and cell phone bills and did not err in allowing defendants' discovery of limited private social media posts and cell phone bills to defend against her claims that her termination violated the LAD, causing her emotional distress.  The court, however, remands for the judge to add the requirement in the social media posts order –– similar to the cell phone record order –– that plaintiff submit a redacted copy of her private social media posts to defendants and the trial court as well as an unredacted copy of the posts with a Vaughn index to the trial court.

[1]  As pronounced in Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). 

In this interlocutory appeal, the court considered the protective breadth of the Expungement of Records statute, N.J.S.A. 2C:52-1 to -31.1 (the expungement statute), against the statutory provisions regulating Transportation Network Companies N.J.S.A. 39:5H-1 to -27 (the TNC statute), where a conviction for aggravated assault bars employment as a rideshare driver and Uber's potential culpability under a theory of negligent hiring or employment.  T.C., an Uber driver, had a previous conviction for aggravated assault of a law enforcement officer.  Uber had knowledge of T.C.'s prior conviction for aggravated assault—in the form of the two background checks—for some period of time prior to the entry of an order of expungement. 

The court addressed the narrow issue of whether the expungement gives T.C.'s employer the ability to assert T.C.'s rights so as to imply ignorance of the prior assault conviction.  The court read N.J.S.A. 2C:52-19 to prevent the evidence of an expunged record to be used against the person for whom the expungement is meant to benefit: the recipient of the expungement.  The court does not read N.J.S.A. 2C:52-19 to give instant cover to third parties without further examination of that third-party's conduct, duty and responsibility in a negligent hiring claim.  The court remanded for further development of the record.

At issue in this medical negligence matter is the kind-for-kind specialty requirement embodied in the New Jersey Medical Care Access and Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A-37 to -42.  This appeal requires the court to determine whether the affidavit of merit (AOM) of a board-certified hematology expert satisfied the PFA's equivalency requirement where neither defendant doctor specialized, nor was board certified, in hematology when they rendered care to the decedent.  Instead, both defendants specialized in internal medicine at the time of the alleged treatment, and one was board certified in that specialty, but plaintiff's proffered expert did not specialize in internal medicine.  The trial court denied defendants' motion to dismiss plaintiff's complaint for failure to provide a sufficient AOM, essentially concluding the affiant's hematology subspecialty was "subsumed" in defendants' internal medicine specialty and, as such, the affiant was qualified to opine that defendants deviated from the standards of medical care by improperly prescribing heparin to the decedent.

The court granted defendants leave to appeal from the April 14, 2022 Law Division order.  The court holds the PFA's kind-for-kind specialty requirement embodied in N.J.S.A. 2A:53A-41(a) is not satisfied when the AOM's affiant specialized in a subspecialty of the treating doctor's specialty but did not specialize, nor was board certified, in the physician's specialty when the alleged medical negligence occurred.  The court therefore concludes plaintiff failed to satisfy the PFA's equivalency requirements and reverse the trial court's order denying defendants' dismissal motion.  In doing so, the court rejects plaintiff's alternate argument that she satisfied the waiver exception to the PFA under N.J.S.A. 2A:53A-41(c), which would have rendered moot defendants' appeal.

Appellants, parents of children enrolled in the Lakewood Public School District (District or Lakewood), filed a petition alleging the District was not providing its public-school students a thorough and efficient education as required by our State's Constitution.  N.J. Const. art. VIII, § 4, ¶ 1.  They contend this is due to the failure of the New Jersey Department of Education (DOE) to adequately fund the District.  To that end, they assert the School Funding Reform Act (SFRA), N.J.S.A. 18A:7F-43 to -70, which sets certain standards for the DOE, is unconstitutional as applied to Lakewood.  The record demonstrates Lakewood's school district is in a unique and precarious position.  Due, in large part, to demographic trends in the area.  Lakewood Township has seen a population rise in recent decades, primarily resulting from a thriving Orthodox Jewish community.  As a result of this demographic shift, the township has approximately 37,000 school-aged children, however, only about 6,000 are enrolled in the secular public schools.  The majority—eighty-four percent—are enrolled in private religious schools.  Testimony before the Administrative Law Judge (ALJ) established this demographic trend is likely to continue and accelerate.

Like other districts, Lakewood's state-issued school aid is calculated based upon its 6,000 enrolled public-school students.  The total budget for the most recent school year at the time of that decision was $143.45 million.  Of that, over half—$78 million—went to transportation and special education tuition for non-public students.  This is an abnormal and unsustainable imbalance.  The court concluded the record generated before the ALJ cannot fairly be said to support a finding Lakewood's students are receiving a constitutionally sound education.

The court held the Commissioner utilized an incorrect standard in rejecting the ALJ's finding, and further held the Commissioner owed appellants a thorough review of their substantive argument:  the funding structure of the SFRA was unconstitutional as applied to Lakewood's unique demographic situation.  The court reversed and remanded for the agency to consider the substantive arguments pertaining to SFRA in light of our Supreme Court's previous directive in Abbott ex rel. Abbott v. Burke (Abbott XX), 199 N.J. 140, 146 (2009):  the State has a continuing obligation to "keep SFRA operating at its optimal level" and "[t]here should be no doubt that we would require remediation of any deficiencies of a constitutional dimension, if such problems do emerge." 

The court granted defendants leave to appeal from the Law Division's orders denying summary judgment and reconsideration.  Plaintiff was injured while driving his motorcycle when defendants' tractor trailer pulled into plaintiff's lane of travel.  Plaintiff admitted having several drinks throughout the day and that he was speeding at the time of the accident, but, at his deposition, equivocated as to whether he was intoxicated.  Blood was drawn at the hospital, and defendants' expert extrapolated from that sample that plaintiff's BAC at the time of the accident was between .159 and .162.  Police issued no motor vehicle summonses to plaintiff.

In moving for summary judgment, defendants relied upon N.J.S.A. 39:6A-4.5(b), which provides:

Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of [N.J.S.A.] 39:4-50, [N.J.S.A. 39:4-50.4a], or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.

[(Emphasis added).]

The motion judge denied the motion, concluding that the statute did not apply to plaintiff because he was not convicted of DWI and also because there were material disputed facts as to whether plaintiff was legally intoxicated at the time of the accident.

The court affirmed, agreeing with the motion judge that there were material factual disputes as to plaintiff's state of intoxication at the time of the accident.  More importantly, the court concluded the plain language of the statute denied a cause of action only to those plaintiffs actually convicted of DWI. 

     In this matter arising out of the purchase of a vehicle, the court considered whether parties may expand the scope of judicial review of an arbitration agreement governed by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16.  The agreement here contained a clause that permitted a court to review an arbitrator's award for errors of New Jersey law.  Guided by the United States Supreme Court's holding in Hall St. Assocs., LLC v. Mattel, Inc., 552 U.S. 576 (2008), the court concluded that when the FAA controls an arbitration agreement, its vacatur terms are exclusive and cannot be modified by contract.  Therefore, the pertinent clause in the arbitration agreement is unenforceable and severable from the remainder of the agreement.  The court affirmed the trial court's order dismissing plaintiffs' complaint seeking to vacate the arbitration award.

     On April 13, 2022, plaintiffs, individually and as representatives of a proposed class, filed a complaint seeking relief under the Wage Payment Law (WPL) and the Wage and Hour Law (WHL), alleging defendant failed to pay them for pre- and post-shift work.  Defendant moved to partially dismiss the complaint, arguing plaintiffs sought the retroactive application of L. 2019, c. 212 (Chapter 212), which became effective August 6, 2019.  
     Chapter 212 amended both statutes, permitting employees to seek liquidated damages equal to 200% of the wrongfully withheld wages.  Additionally, Chapter 212 permitted successful WPL claimants to recover counsel fees and costs, previously allowed only under the WHL.  And, Chapter 212 extended the "look-back" period under the WHL, i.e., that period of time for which an employee could seek unlawfully withheld wages, from two to six years, prior to the "commencement" of the action in court.  The WPL has never had a similar provision, and Chapter 212 did not amend the WPL in this regard.
     The Law Division judge granted defendant's motion dismissing plaintiffs' WPL and WHL claim based on violations that occurred prior to August 6, 2019.  The court granted leave to appeal and reversed.
     Relying largely on the Court's recent decision in W.S. v. Hildreth, 252 N.J. 506 (2023), the court held that plaintiffs were entitled to the statutory remedies available as of the date they "commenced" their action in court.  See W.S., 252  N.J.  522 ("Applying the law in effect at the time a complaint is filed . . . is not applying a statute retroactively; it is applying a statute prospectively to cases filed after its effective date.").  The court also held that based on the legislative history of Chapter 212, the Legislature clearly intended to permit a six-year look back period under the WPL.       
 

    This appeal raises the novel issue of whether the statutory bar set forth in N.J.S.A. 39:6A-4.5(a) precludes plaintiff's wrongful death and survivor claims stemming from the second of two separate motor vehicle accidents occurring a half hour apart at the same location, the latter of which resulted in the death of the uninsured driver as he attempted to retrieve a cell phone from his disabled vehicle.  In considering this question, the court addressed whether decedent was "operating" his uninsured vehicle at the time of the second accident for the purposes of N.J.S.A. 39:6A-4.5(a).  The court further distinguished Perrelli v. Pastorelle, where the Supreme Court determined the statutory bar to recovering damages under N.J.S.A. 39:6A-4.5(a) applied to the owner of an uninsured vehicle, even where the owner was injured while a passenger in the vehicle.  206 N.J. 193, 208 (2011).  The court ultimately concluded the statutory bar pursuant to N.J.S.A. 39:6A-4.5(a) was not implicated because decedent was not operating his vehicle.

          We consider whether plaintiff, an alleged victim of sexual abuse by a teacher, is barred from seeking pain and suffering damages under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12.3, because he has not incurred the requisite amount of medical expenses.  Despite the Legislature's recent amendments to the TCA regarding child sexual abuse claims, it did not eliminate the statutory threshold regarding medical expenses.  Therefore, we affirm the trial court's order barring plaintiff from seeking pain and suffering damages.

          In this medical malpractice matter, defendants Herve Boucard, M.D. and Hamilton Gastroenterology Group, PA appeal from a July 26, 2022 order, which denied defendants' motion to bar the standard of care opinions of plaintiff's expert, Dr. Andrew Bierhals, at trial.  That expert opined that codefendant Yang, who settled prior to trial, did not deviate from the standard of care, contrary to plaintiff's prior position that Yang (as well as Boucard and others) was negligent.  On appeal, defendants argue that Glassman v. Friedel, 249 N.J. 199 (2021), which precludes a plaintiff from disavowing the negligence of an initial tortfeasor who settled in a later action against a successive tortfeasor, should be extended to cases involving a settling joint tortfeasor. 

          The court concludes that Glassman is expressly limited to successive tortfeasors and an extension of its holding to joint tortfeasors is not warranted.  Glassman sets forth a method of fixing damages caused by a first, independent source of injury to afford a credit to a successive tortfeasor who would otherwise have no remedy against the settling tortfeasor.  Glassman's assignment of damages to a preceding event is not possible where, as here, plaintiff seeks to establish fault as to a single, indivisible injury where two or more persons are subject to common liability.

          Equally important is the fact that, unlike a successive tortfeasor, joint tortfeasors are not left without remedies against a settling codefendant.  Whereas Glassman expressly prohibits an allocation of fault against an initial tortfeasor, a joint tortfeasor may seek an allocation of liability against the settling codefendant at trial.  Any percentage of fault thus allocated "operates as a credit to the remaining defendants."  In addition, the right of contribution assures that a joint tortfeasor can seek a remedy for the fault allocated to settling codefendants.  It is plain that the equitable concerns underpinning Glassman do not exist in the joint tortfeasor context.

          Finally, the court is unpersuaded by defendant's argument that it would be unfair to allow plaintiff to disavow its prior position that Yang was negligent.  Defendant bears the burden of proving Yang's negligence for purposes of an allocation.  That plaintiff will not assist him in that endeavor does not evince any intent to manipulate or mislead the court; rather, the court finds it to be sound trial strategy.  Given the remedies available to defendant, the court concludes it is unwarranted to invoke the extraordinary remedy of judicial estoppel as it is not "necessary to secure substantial equity."  Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir. 1996) (quoting Gleason v. United States, 458 F.2d 171, 175 (3d Cir. 1972)).

          The question presented on this appeal is whether University Hospital is a state administrative agency whose final decisions are directly appealable to this court under Rule 2:2-3(a)(2).  University Hospital is an acute care facility and trauma center located in Newark.  It was established in 2012, when the Legislature enacted and the Governor signed the New Jersey Medical and Health Sciences Education Restructuring Act (the Act), N.J.S.A. 18A:64M-1 to -43.  The Act states that University Hospital was established "as a body corporate and politic [that] shall be treated and accounted for as a separate non-profit legal entity from Rutgers, The State University," and as "an instrumentality of the State."  N.J.S.A. 18A:64G-6.1a(a).

          In 2019, University Hospital issued a request for proposals (RFP) to design, construct, and operate a pharmacy at its hospital.  Sumukha, LLC (Sumukha), one of the unsuccessful bidders, appeals from University Hospital's denial of its protest of the award of the contract to Shields Pharmacy of University, LLC (Shields).  The court holds that the Legislature did not intend to make University Hospital a state administrative agency when it created the Hospital "as a body corporate and politic" that is not situated in an executive branch department.  Consequently, we dismiss this appeal without prejudice to Sumukha's right to file an action in the Law Division.

     At issue in this post-conviction relief matter is whether defendant's "open" guilty plea during trial was premised on his attorney's "guarantee" that the judge would sentence him to a time-served sentence pursuant to an alleged agreement reached in chambers.  Citing the transcript of the plea hearing to the contrary, the PCR judge – who was not the trial judge – denied defendant's petition.  Thereafter, PCR counsel moved for reconsideration based on the certification of plea counsel, which supported defendant's assertions, but was acquired beyond the twenty-day time limitation prescribed by Rule 1:7-4(b) and Rule 4:49-2.  The PCR judge denied the motion as untimely and did not reach the merits of defendant's motion.  
     Because plea counsel's certification was belatedly provided to the PCR judge, this court affirms the denial of defendant's petition and his motion for reconsideration.  However, the court concludes PCR counsel provided ineffective assistance following receipt of plea counsel's certification.  
     Although PCR counsel's obligation to defendant was discharged upon filing an appeal with this court, PCR counsel filed an untimely reconsideration motion.  PCR counsel had other available options that would have led to a timely-filed second PCR petition under Rule 3:22-12(a)(2)(B).  PCR counsel could have sought authority from the Office of the Public Defender to file a second PCR petition on defendant's behalf, or he could have provided plea counsel's certification to defendant to file a pro se second petition.  
     Because the court concludes PCR counsel's representation was deficient, defendant is entitled to a new PCR proceeding.  Because defendant's assertions against plea counsel are now supported by the sworn statements of that same attorney, the court concludes defendant's claims cannot be resolved on the existing record. 
     The court therefore affirms both orders under review.  In light of PCR counsel's ineffectiveness, however, the court remands the matter for an evidentiary hearing.  

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without a hearing.  The petition alleges ineffective assistance of counsel regarding both his prior attorneys.  Defendant's claim is primarily based on counsels' representation of him during two statements he gave to police, prior to the filing of any charges.  Defendant lied to the police during his first statement, at which he was represented by his first attorney.  He then retained a different attorney and gave a second statement in which he admitted to but tried to explain the prior misrepresentations.  Defendant was charged with hindering apprehension by false statements and false swearing by inconsistent statements, in addition to the substantive offense of permitting or encouraging the release of a child abuse record.

Defendant testified during the first jury trial, which ended in a mistrial based on defense counsel's failure to provide the State notice of his retraction defense.  Defendant exercised his right to remain silent during the second trial, which resulted in convictions on all counts.  On direct appeal, the court affirmed the convictions for false swearing and hindering apprehension and vacated the conviction for unlawful disclosure of a child abuse record.

In support of his petition for PCR, defendant provided an expert report from a veteran criminal attorney which opined that counsels' representation fell below the constitutional standard.  The PCR judge declined to consider the report because the petition presented mixed questions of law and fact which were for the court to determine, and she did not need the assistance of an expert report to decide the issues.

Under both the federal and state constitutions, it is well established that the right to effective counsel does not attach until the filing of charges.  Defendant sought to expand this right to representation occurring during the investigation.  The court found a defendant may not bring a PCR petition based on ineffective assistance of counsel for representation that occurred prior to being charged.

The court also found defendant failed to demonstrate either counsel was ineffective, and the PCR judge did not abuse her discretion in declining to consider defendant's expert report.

          The court considers whether a police officer, who walked onto the driveway of a home without permission or a warrant, was lawfully there when he observed illegal narcotics in a hole in the home's front porch.  Because the driveway was part of the home's curtilage, the court holds that the officer conducted an unlawful search and his subsequent observation of contraband in the hole in the porch did not satisfy the plain-view exception.  Accordingly, the court reverses the trial court's denial of defendant's motion to suppress the seized contraband. 

          Plaintiff, a fully commissioned real estate salesperson, alleged on behalf of himself and a putative class of those similarly situated that defendant, a licensed real estate broker, had violated the Wage Payment Law (WPL), N.J.S.A. 34:11-4.1 to -4.14.  This court's prior opinion, Kennedy v. Weichert Co., No. A-0518-19 (App. Div. July 2, 2021), affirmed the trial court's order:  denying defendant's motion to dismiss for failure to state a claim; and declaring pursuant to Hargrove v. Sleepy's, LLC, 220 N.J. 289, 302 (2015), that the "ABC test," N.J.S.A. 43:21-19(i)(6)(A), (B), and (C), applied to determine plaintiff's employment status as an employee or independent contractor.

         The Supreme Court granted defendant's motion for leave to appeal but then remanded the matter for this court to consider recent amendments to the Real Estate Brokers and Salesmen Act (the Brokers Act), N.J.S.A. 45:15-1 to -29.5, enacted after this court's prior opinion.

         On remand, the court concluded the recent amendments foreclosed application of the ABC test to determine the employment status of fully commissioned real estate salespersons.  The court also concluded that pursuant to binding precedent from the Court, the written agreement between the parties did not, as a matter of law, define plaintiff's status.  See, e.g., MacDougall v. Weichert, 144 N.J. 380, 388 (1996).

         However, given the paucity of the record, the court declined to adopt a specific test to apply in deciding plaintiff's status pending "the development of a more complete record that permits exposition of the actual business relationship between the parties."

          A public employer appealed from two Chancery Division orders denying its request to restrain a grievance arbitration filed by the union.  The issue before the court was whether a union grievance based on language from an expired collective negotiations agreement is arbitrable when a successor collective negotiations agreement clearly and unambiguously addresses the disputed issue raised in the grievance.  The court concluded that the language contained in the successor collective agreement superseded the language in the expired agreement.  The language in the successor agreement limited compensation for work performed during a weather-related State of Emergency declared by the Governor, contrary to the union's interpretation the language applied to COVID-19.  Since the grievance was not within the scope of the successor agreement implemented after impasse, it was not arbitrable.  The court reversed the orders requiring grievance arbitration.

          In this appeal of an order compelling arbitration, the court held that the requirement imposed by Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014) – that, to be enforceable, an arbitration provision must contain an express waiver of the right to seek relief in a court of law – was not intended to apply to sophisticated commercial litigants possessing comparatively equal bargaining power.

Plaintiff, Shlomo Hyman, is a rabbi formerly employed by defendants as a Judaica studies teacher.  After an investigation concluded defendant had engaged in behavior that violated Orthodox Jewish standards of conduct, defendants terminated him.  Defendants then sent an email to the parents of the Yeshiva students informing them that Rabbi Hyman would not be returning as "[his] conduct had been neither acceptable nor consistent with how a rebbe in our Yeshiva should interact with students." Plaintiff alleged the communication defamed him and served to label him as a pedophile, impairing his future employment prospects.

Plaintiff now appeals from an April 16, 2021 order granting defendants' motion for summary judgment dismissing his claim for defamation based on the ministerial and ecclesiastic abstention doctrines.  Plaintiff argues the court erred in dismissing his defamation claim because the ministerial exception recognized in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 181 (2012) applies only to employment discrimination claims, and because further discovery was required to determine whether the motivation behind the dissemination of a letter concerning the termination was ecclesiastic in nature.

The court affirmed the dismissal of the lawsuit, concluding, as a matter of first impression, that the ministerial exception operates to bar any tort claim provided (1) the injured party is a minister formerly employed by a religious institution and (2) the claims are related to the religious institution's employment decision.  Because both conditions are satisfied in this case, the ministerial exception alone bars plaintiff's defamation claim.  Therefore, the court found it unnecessary to address whether the ecclesiastic abstention doctrine was an independent basis to dismiss the action.

Defendant contends he was subjected to discriminatory policing when he was stopped and frisked based on the be-on-the-lookout (BOLO) description of the person who committed an armed robbery in the vicinity minutes earlier.  The BOLO alert described the robber as a Black male wearing a dark raincoat.  However, the victim did not provide the race of the perpetrator when she reported the crime.  The State acknowledges it does not know why the police dispatcher assumed the robber was Black.

The court address three issues of first impression.  As a threshold matter, the court holds that decisions made and actions taken by a dispatcher can be attributed to police for purposes of determining whether a defendant has been subjected to unlawful discrimination in violation of Article I, Paragraphs 1 and 5 of the New Jersey Constitution. 

Second, the court holds that "implicit bias" can be a basis for establishing a prima facie case of police discrimination under the burden-shifting paradigm adopted in State v. Segars, 172 N.J. 481 (2002).  Reasoning that the problem of implicit bias in the context of policing is both real and intolerable, the court holds evidence that supports an inference of implicit bias shifts a burden of production to the State to provide a race-neutral explanation.  The State's inability to offer a race-neutral explanation for the dispatcher's assumption that the robbery was committed by a Black man constitutes a failure to rebut the presumption of unlawful discrimination under Segars.

Third, the court addresses whether and in what circumstances the independent source and inevitable discovery exceptions to the exclusionary rule apply to the suppression remedy for a violation of Article I, Paragraphs 1 and 5.  After balancing the cost of suppression against the need to deter discriminatory policing and uphold public confidence in the judiciary's commitment to safeguard equal protection rights, the court concludes the independent source doctrine does not apply in these circumstances.  That exception allows a reviewing court to redact unlawfully obtained information to determine whether the remaining information is sufficient to justify a search.  The court concludes that any such redaction remedy would undermine the deterrence of discriminatory policing and send a message to the public that reviewing courts are permitted to essentially disregard an equal protection violation so long as police also relied on information that was lawfully disseminated.  The court reasons that if simple redaction were permitted in these circumstances, the independent source exception might swallow the exclusionary rule.   

With respect to the inevitable discovery doctrine, the court holds it may apply in racial discrimination cases only if the State establishes by clear and convincing evidence that the discriminatory conduct was not flagrant.  Because the State concedes it does not know why the dispatcher assumed the robber was Black, it cannot meet that burden.  The court, therefore, reverses the denial of defendant's motion to suppress.