APPEARANCES OF COUNSEL. (APPEARANCES TENDERED.) CHIEF
JUSTICE RABNER: WELCOME, COUNSEL, AND GOOD MORNING. MR. BURKE, PLEASE GO
AHEAD. DONALD F. BURKE, JR.: THANK YOU. MR. CHIEF JUSTICE AND
ASSOCIATE JUSTICES OF THE COURT, MAY IT PLEASE THE COURT, I WOULD LIKE TO RESERVE TIME
FOR REBUTTAL SFLFRMENT THAT'S FINE. I WILL ASK YOU TO TRY TO KEEP YOUR VOICE UP A LITTLE
BIT. PLEASE CONTINUE. DONALD F. BURKE, JR.: I WILL, YOUR HONOR.
I AM DONALD F BURLCO, JUNIOR AND ALONG WITH MY FATHER, DONL F BURLCO WE HAVE
THE PLEASURE OF REPRESENTING THE PLAINTIFF. NEW JERSEY LAW AGAINST DISCRIMINATION
PROHIBITING PROVISIONS IN SETTLE MANY AGREEMENTS OR EMPLOYMENT CONTRACTS THAT HAVE THE
PURPOSE OR EFFECT OF CONCEALING THE DETAILS RELATING TO A CLAIM OF DISCRIMINATION, RELATE
TAL YAGS OR HARASSMENT. WE RESPECTFULLY URGE THE COURT TO REVERSE THE
APPELLATE DIVISION, WHICH HELD THAT THE CLAUSE AT ISSUE HERE WAS ENFORCEABLE.
REVERSAL IS REQUIRED BECAUSE THE CLAUSE SPECIFICALLY PROHIBITED STATEMENTS WRITTEN OR
VERBAL REGARDING THE PAST BEHAVIOR OF THE PARTIES, WHICH STATEMENTS WOULD TEND TO DISPARAGE
OR I'M POOUN IMPUGN THE REPUTATION OF EITHER PARTY. STATEMENTS REGARDING THE
PAST BEHAVIOR OF THE PARTIES WOULD PRESENT A PLAINTIFF, SUCH AS THE PLAINTIFF HERE FROM
DISCUSSING THE DETAILS OF HER CLAIM. THIS FIELDZ THE N J LAD WHICH PROHIBITS A PROVISION
IN ANY EMPLOYMENT CONTRACT OR SETTLEMENT AGREEMENT WHICH HAS THE PURPOSE OR EFFECT OF
CONCEALING THE DETAILS RELATE TO A CLAIM OF DISCRIMINATION, RETALIATION OR HARASSMENT.
THE APPELLATE DIVISION RECOGNIZED THAT THERE COULD BE SOME OVERLAP BECAUSE
DESCRIBING THE DETAILS OF AN LAD CLAIM COULD BE DISPARAGING BUT NEVERTHELESS FOUND THE
PROVISION AT ISSUE ENFORCEABLE. THIS LEAVES A GAP IN THE N J LAD'S BAN ON
PROVISIONS THE EMPLOYMENT CONTRACTS OR SETTLEMENT AGREEMENTS WHICH HAVE THE PURPOSE OR
EFFECT OF CONCEALING THE DETAILS RELATING TO A CLAIM OF DISCRIMINATION, HARASSMENT OR
RETALIATION. WE RESPECTFULLY URGE THIS COURT TO REVERSE THE APPELLATE DIVISION
AN CLOSE THE GAP LEFT BY THE APPELLATE DIVISION'S OPINION AN ADVANCE THE INTENT OF THE
LEGISLATURE TO ALLOW VICTIMS OF HARASSMENT SKRIMS OR RETALIATION TO SPEAK OUT AND NOT
BE SILENCED FOR FEAR THAT THEY WILL BE ACCUSED OF DISPARAGING THE PERPETRATORS OF THE
HARASSMENT, DISCRIMINATION OR RETALIATION. IF THE COURT HAS ANY QUESTIONS,
I AM HAPPY TO ANSWER THEM. SFLFRMTHS I WANT TO KEEP THIS SIMPLE. AN INDIVIDUAL
CAN SPEAK ABOUT A LAD CLAIM UNDER SECTION 12.8, CORRECT? DONALD F. BURKE, JR.:
CORRECT. CHIEF JUSTICE RABNER: IN THIS CASE AN INDIVIDUAL CAN SPEAK ABOUT
PRESENT AN FUTURE BEHAVIOR BECAUSE THAT'S NOT COVERED BY THE PRIVATE AGREEMENT, THE
CONTRACT, CORRECT? DONALD F. BURKE, JR.: THE CONTRACT, THE PRIVATE AGREEMENT
HERE, THE SETTLEMENT AGREEMENT SPECIFICALLY REFERENCES PAST BEHAVIOR. THE
COURT: SO YOU CAN SPEAK ABOUT PRESENT AN FUTURE ETS. THEY ARE NOT CONTROLLED
BY THE FWRAEMENT AT ALL. DONALD F. BURKE, JR.: YOU SAID UNDER THE STATUTE
AS WELL -- THE COURT: BEAR WITH ME. UNDER THE FRAEMENT THERE IS
NO PROHIBITION AS RELATES TO PRESENT AN FUTURE EVENTS, ONLY PAST EVENTS. DONALD
F. BURKE, JR.: THAT IS CORRECT SFLFRMENTS SO THEN, WHAT, IF ANY, COMMENTS IN THIS CASE
ARE NOT PERMITTED? DONALD F. BURKE, JR.: WELL, YOU KNOW, THE -- I THINK
ALL THE COMMENTS ARE PERMITTED BECAUSE THE STATUTE ALLOWS THEM. CLOP CONDUCT CLOP.
THE COURT: I THOUGHT THAT WAS GOING TO BE YOUR ANSWER. I AM LOOKING AT THE COMMENTS
AND I AM TRYING TO FIGURE OUT WHICH ARE PROOIBED IN PRESCRIBED IN SOME WAY GIVEN THOSE
TWO PRINCIPLES. DONALD F. BURKE, JR.: I DON'T WANT TO MISUNDERSTAND YOUR
HONOR'S QUESTION. I FEEL LIKE I AM SORT OF ARGUING AGAINST MY CLIENT BY TRYING TO PICK
OUT COMMENTS WHICH AREN'T PERMITTED BECAUSE I THINK EVERYTHING SHE SAID IS ABSOLUTELY
PERMISSIBLE UNDER THE STATUTE. I THINK THERE ARE -- TO BE SORT OF A DEVIL'S
ADVOCATE, THERE WERE STATEMENTS THAT WERE REGARDING PAST BEHAVIOR AND THE DEFENDANTS
DID COMPLAIN ABOUT THOSE STATEMENTS, AS I THINK EVERY PARTY HAS POINTED OUT COUNSEL SUBMITTED
A CERTIFICATION WHERE HE PUT IN BOLD THE VARIOUS STATEMENTS THAT THE DEFENDANTS WERE
COMPLAINING ABOUT. SOME OF THOSE DID PERTAIN TO PAST BEHAVIOR. IT'S A LITTLE BIT
COMPLICATED, EVEN MORE SO BECAUSE THE ENTIRE PIECE OF EDITORIALIZED BY SARAH WAL FROM NBC
AND ALSO INCLUDED CLIPS V PRIOR INTERVIEWS SO IT DID GET CONFUSING. TO PUT
IT SIMPLY THEY COMPLAINED ABOUT PRETTY MUCH ALL OF IT THE STATEMENTS CONTAINING PAST
BEHAVIOR AND SOME OF THE STATEMENTS THAT PERTAIN TO HER OPINION AS TO THE PRESENT CONDITIONS
AND POTENTIALLY WHAT WOULD BE IN THE FUTURE. THE COURT: BUT THAT'S PART
OF WHY I AM ASKINGING IT. TO THE EXTENT THERE ARE PRESENT SITUATIONS AN THE
FUTURE THAT'S NOT PRECOLLIDED BY THE PRIVATE AGREEMENT. DONALD F. BURKE, JR.:
THAT'S CORRECT. IT'S NOT PRECLUDED BY THE PRIVATE AGREEMENT, BUT THE PROBLEM HERE IS
THAT THE PRIVATE AGREEMENT BROADLY PROHIBITS COMMENTS REGARDING PAST BEHAVIOR OF THE AN
THAT CONFLICTS WITH THE STAT STATUTORY TUT. SFLFRMENTS I THINK YOU'RE ASSUMING BY
QUESTION IS A HOSTILE QUESTION. DONALD F. BURKE, JR.: THAT'S WHY I SAID I
DON'T WANT TO MISUNDERSTAND YOUR HONOR. I FEEL LIKE I AGREE WITH YOU AND I AM TRYING TO BE
FAIR TO MY ADVERSARY. JUSTICE WAINER APTER: DOESN'T THE FWRAEMENT AS A
WHOLE VIOLENT THE LAD BECAUSE THE FWRAEMENT SAYS THE PARTIES AGREE NOT TO MAKE ANY STATEMENTS
WRITTEN OR VERBAL, WHICH STATEMENTS WOULD TEND TO DISPARAGE OR IMPUGN THE REPUTATION OF
ANY PARTY AN THEN THE LAD SAYS ANY PROVISION SHALL BE DEEMED FWENS PUBLIC POLICY AND
UNENFORCEABLE IF IT HAS THE PURPOSE OR EFFECT OF CONCEALING NEW DETAILS RELATED TO A CLAIM
OF DISCRIMINATION, RETALIATION OR HARASSMENT. YOUR POINT IN GENERAL AS TO
WHY THE AGREEMENT CONFLICTS WITH THE LAD IS A STATEMENT THAT HAS THE EFFECT OF CONCEALING
THE DETAILS RELATING TO A CLAIM OF DISCRIMINATION, RETALIATION OR HARASSMENT
WILL OFTENTIMES BE A STATEMENT WRITTEN OR VERBAL REGARDING THE PAST BEHAVIOR OF THE PARTIES
WHICH WOULD TEND TO DISPARAGE OR IMPUGN THE REPUTATION OF THAT PARTY, CORRECT?
DONALD F. BURKE, JR.: THAT'S ABSOLUTELY RIGHT. JUSTICE WAINER APTER:
BECAUSE IN OUR SOCIETY, WE TEND TO IMPUGN OR ANY STATEMENT THAT SOMEONE HAS COMMITTED
DISCRIMINATION, HARASSMENT OR RETALIATION COULD TEND TO IMPUGN THE REPUTATION OF THAT
PARTY, CORRECT? HAD. DONALD F. BURKE, JR.: SLOORLT. YES. AND
I THINK THAT THE LEGISLATURE RECOGNIZED THAT AND THAT'S WHY IN AN EFFORT TO ENSURE THAT
VICTIMS OF DISCRIMINATION, HARASSMENT, RETALIATION WOULD NOT BE SILENCED OR EVEN
DISSUADED FROM SPEAKING OUT FOR FEAR OF POTENTIAL CONSEQUENCES AND, ALSO, TO ELIMINATE
THE CYCLE OF PERPETUAL HARASSMENT AND OTHER THINGS WHICH THE ME TOO MOVEMENT BROUGHT TO
LIFE AND WE'VE BEEN WORKING TO PUSH BACK AGAINST AN IN WHICH OUR LEGISLATURE GOING BACK
TO 1945 WITH THE ENACTMENT OF THE LAD HAS BEEN WORKING AGAINST THIS IS JUST ANOTHER STEP
IN THAT TO MAKE SURE PEOPLE CAN SPEAK OUT AND THAT THEIR VOICES ARE HEARD AND THEY ARE
NOT GOING TO BE SIELSED OR FEAR OF SILENCE BECAUSE OF POTENTIAL RETRIBUTION.
CHIEF JUSTICE RABNER: QUESTIONS ANYONE? ANYTHING YOU WOULD LIKE TO ADD?
DONALD F. BURKE, JR.: NO, YOUR HONOR, BUT I APPRECIATE THE OPPORTUNITY AND
I WILL BE BACK UP ON REBUTTAL. THANK YOU SFLFRMENTS THANK YOU, MS. FLIMG.
CHIEF JUSTICE RABNER: THANK YOU. MS. FLEMING. FLEMING FLEMING
MAY FLEMING FLEMING MAY IT PLEASE THE COURT, THE LEGISLATURE ENACTED A VERY BROAD STATUTE
IN SECTION 12.8 THE WORDS THE LEGISLATURE CHOSE MAKES CLEAR THAT A PROVISION IN A SETTLEMENT
AGREEMENT IS UNENFORCEABLE IF IT HAS EITHER THE PROHIBITED PURPOSE OR A FACT REGARDLESS
OF WHETHER THAT PROVISION IS LABEL TD AS A CONFIDENTIALITY PROVISION, AS A
NONDISPARAGEMENT PROVRG OR HAS NO LABEL AT ALL. THE BLANK OF THE, ALSO BROADLY
ENCOMPASSES DETAILS RELATE TO ANY DISCRIMINATION CLAIM, NOT ONLY THE CLAIM THAT IS THE
SUBJECT OF THAT PARTICULAR SETTLEMENT AGREEMENT. PARAGRAPH 10 OF THE PARTY'S
SETTLE LETTER FWRAEMENT DOES EXACTLY THAT. IT EXPRESSLY PROHIBITS THE PAST BEHAVIOR OF THE
PARTIES THAT WOULD TEND TO DISPARAGE OR IMPUGN THE REPUTATION OF ANY PARTY. PAST
BEHAVIOR INCLUDES WITHIN IELTS SCOPE DETAILS RELATED TO A DISCRIMINATION CLAIM. A
DISCRIMINATION CLAIM CAN INDEED BE DISPARAGING TO THE REPUTATION AGAINST WHOM THE CLAIM
WAS ALLEGED. PURPOSE AND EFFECT CAN BE DETERMINED BASED SOLELY ON THE FOUR
CORNERS OF SETTLEMENT AGREEMENT AN BEFORE ANY ATTEMPTED ENFORCEMENT CURSE BUT IN THIS
CASE THE EFFECT OF PARAGRAPH 10 IS EASY TO SEE. THE DEFENDANTS DID ATTEMPT
TO ENFORCE PARAGRAPH 10 AGAINST MS. SAVAGE WHEN SHE MADE STATEMENTS RELATED TO HER LAD
CLAIM. IN DOING SO THEY UTILIZED PAR FWRAF 10 TO TRY TO CONCEAL DOOEMS RELATING
ING TO HER CLAIM OF DISCRIMINATION. PARAGRAPH 10 IS THEREFORE UNENFORCEABLE AGAINST MS.
SAVAGE AND SECTION 12.8. I WILL FIRST ADDRESS A FEW POINTS ON THE STATUTORY
INTERPRETATION AND THEN A FEW POINTS ON THE PROPER CONSTRUCTION OF PARAGRAPH 10 AND THEN
ANSWER ANY QUESTIONS THE COURT HAS. SO THE FIRST POINT I WANTED TO MAKE IS
THE COURT ASKED SOME QUESTIONS ABOUT THE LANGUAGE OF SECTION 12.8 AND ITS EFFECT ON A
CLAUSE. THE WORDS THE LEGISLATURE CHOSE IN SECTION 12.88 ARE CLEAR THAT IT IS
THE PROVISION ITSELF THAT IS MADE FORWARD AGAINST PUBLIC POLICY AN UNENFORCEABLE AND
NOT THE APPLICATION OF THAT, TO THE PARTICULAR CIRCUMSTANCES. THAT CAN ALSO
BE SEEN IN SECTION 12.9 THE ATTORNEY FEES PROVISION WHICH SAYS THAT A PERSON WHO
ENFORCE ES OR ATTEMPTS TO ENFORCE A PROVISION AGAINST PUBLIC POLICY IS ENTITLED TO
ATTORNEY'S FEES. HAD THE LEGISLATURE INCLUDED OTHERWISE, THEY WOULD HAVE INCLUDED
THE WORDS, ENFORCEABLE AS TO DETAILS RELATED TO A DISCRIMINATION CLAIM AND SO FOR THAT
REASON WE THINK THAT THE APPELLATE DIVISION KIND OF HAD THE NAMS BACKWARDS BY LOOKING
EX POST AT THE STATEMENTS AND THEN LOOKING TO SEE WHETHER OR NOT THEY CONCERNED THE PAST
CONDUCT OF THE PARTIES. AND WE THINK THAT THIS INTERPRETATION WOULD FRUSTRATE
THE PURPOSE OF SECTION 12.8 AND AN APPLICATION BY APPLICATION BASIS AN EMPLOYEE WOULD BE
LEFT GUESSING ARE THESE STATEMENTS, YOU KNOW, RELATED TO A CLAIM OF DISCRIMINATION OR
NOT. AND THE OTHER, A COUPLE OTHER POINTS, WE ALSO THINK THE APPELLATE DIVISION
ERRED BY IGNORING THE CHILLING EFFECT OF PARAGRAPH 10. JUSTICE PATTERSON:
I'M SORRY, DID YOU SAY IGNORING THE CHILLING EFFECT? FLEMING FLEMING YES, I SAID THE
APPELLATE DIVISION DIDN'T LOOK AT THE LANGUAGE OF THE APPELLATE DIVISION ITSELF AND DETERMINE
WHAT EFFECT THE LANGUAGE WOULD HAVE BASED ON THE SCOPE OF THE LANGUAGE. IF YOU
LOOK AT THE SCOPE OF THE LANGUAGE IT'S BREADTH CAN CREATE A CHILLING EFFECT ON AN EMPLOYEE'S
SPEECH. HERE, INSTEAD THE APPELLATE DIVISION LOOKED ON THE BACK END AT THE IMPACT AND
WHETHER THE STATEMENTS FIT WITHIN ITS SCOPE. AND I THINK THE COURT BROUGHT
UP, YOU KNOW, A FEW OF THE STATEMENTS THAT THE APPELLATE DIVISION FOCUSED ON. I THINK
THE ONLY TWO STATEMENTS THE COURT FOCUSED ON WERE THAT PLAINTIFF STATED THAT SHE WAS
DEPRESSED AND THE POLICE DEPARTMENT DOESN'T WANT WOMEN THERE AND THE STATEMENT ABOUT IT,
THE GOOD OLD BOY'S CLUB. THIS IS INACCURATE AND IGNORES SEVERAL OF THE OTHER STATEMENTS
THAT THE DEFENDANT ACTUALLY SOUGHT TO ENFORCE THROUGH THEIR MOTION TO ENFORCE, THEY SET
TO ENFORCE THE STATEMENT YOU ABUSED ME. YOU ABUSED ME FOR EIGHT YEARS, STATEMENTS ABOUT
PAST HARASSMENT AND RETALIATION AND ABOUT BEING PLACED ON UNPAID LEAVE. AND
ALL OF THOSE STATEMENTS ARE ABOUT THE PAST CONDUCT OF THE PARTIES AND THEY ARE ALSO VERY
CLOSELY RELATED TO HER DISCRIMINATION CLAIMS. I WOULD BE HAPPY TO ANSWER ANY
OTHER QUESTIONS THAT THE COURT HAS? THE COURT: QUESTIONS ANYONE?
THANK YOU, COUNSEL. MR. DWYER. ANDREW DWYER: GOOD MORNING, CHIEF
ZUS STIS RABNER, MAY IT PLEASE THE COURT. I THINK YOU'VE BEEN INUNDATED WITH AM MIK KEY
IN THIS CASE. I THINK THERE ARE FIVE AMICUS OR SOMETHING LIKE THAT. I DON'T WANT TO
REPEAT WHAT EVERYBODY HAS SAID IN THEIR PAPERS. I THINK EVERYBODY BELIEVES THAT THE APPELLATE
DIVISION ELECTED NOT TO USE THE STATUTORY LANGUAGE AN INSTEAD REPLACE IT FROM LANGUAGE
THAT THEY QUOTED FROM BLACK'S LAW DICTIONARY TO DECIDE WHAT THE STATUTORY TUT IS PROHIBITING
BUT IF STATUTE LANGUAGE IS PLAIN THAT ANY REVISION HAS HAS THE PER EFFECT IS UN.
THE COURT: JUSTICE PATTERSON: CAN YOU SLOW DOWN A BIT ON THAT.
ANDREW DWYER: SORRY, JUSTICE PATTERSON. I WANTED TO POINT TO TWO MORE SUBTLE
WAYS IN WHICH THE APPELLATE DIVISION I THINK IMPROPERLY REWROTE THE STATUTORY TUT.
ONE IS THERE IS A PLACE IN THEIR DECISION WHERE THEY SAY WELL, THESE COMMENTS ABOUT
THE OLD BOY'S NETWORK AND THINGS AREN'T GOING TO CHANGE ARE NOT DIRECTLY RELATED TO HER
CLAIMS IN THIS CASE. THE WORD DIRECTLY IS NOT IN THE STATUTE. THE QUESTION
IS SIMPLY WHETHER OR NOT THE PROVISION IN -- AT ISSUE WOULD HAVE THE EFFECT OF STIFLING
SPEECH THAT REVEALS DETAILS RELATING. IT DOESN'T HAVE TO BE DIRECTLY RELATING AND IT IS
IMPORTANT IN THIS CASE, AS WE POINTED OUT IN OUR BRIEF IN SUPPORT OF THE SERT PETITION
THAT THE REPORT IN THIS CASE ALWAYS ALLEGED CONTINUING AND ONGOING SEX DISCRIMINATION
AND, IN EFFECT, SPECIFICALLY SOUGHT PROSPECTIVE INJUNCTIVE RELIEF FROM THE GET-GO, FROM
THE VERY FIRST PLEADING IN THIS CASE. IT IS ARGUABLY THE CASE THAT IF SOMEBODY
IS COMPLAINING ABOUT PRESENT OR ONGOING DISCRIMINATION IN THE WORKPLACE, THAT DOES
RELATE TO HER CLAIM. IT IS THE SECOND WAY THAT I THINK THE APPELLATE DIVISION MADE A
SUBTLE REWRITE OF THE STATUTE IS IT CREATED IT'S TEMPORAL LIMITATION ON 12.8 A. IT ESSENTIAL
LY SAID, WELL, IT'S GOT TO RELATE TO PAST CLAIMS OF DISCRIMINATION AND THE LANGUAGE THAT
RELATES TO PAST CLAIMS OF DISCRIMINATION, YEAH, THAT WOULD BE A PROBLEM BUT THE TOWNSHIP
OF NEPTUNE WOULD SAY, NO, THEY'RE NOT WORRIED ABOUT, THEY ARE WORRIED ABOUT STATEMENTS
ABOUT FUTURE EVENTS. IT'S NOT FWOEG TO CHANGE, IT'S THE OLD BOY'S NETWORK, BUT THERE IS
NO TEMPORAL LIMITATION IN 12.8 A. IT DOESN'T SAY THAT ONLY STATEMENTS RELATING
TO PAST CLAIMS OF DISCRIMINATION. IT JUST SAYS A CLAIM OF DISCRIMINATION AND I WOULD
COMMENCE TO THE COURT, IT'S A DIFFERENT CONTEXT, BUT I THINK IT IS A PRETTY ANALOGOUS
ARGUMENT IN THE CASE OF KUSH MAN AN WAIK FIELD VERSUS BAR RECEIPT, IN THAT CASE THE EMPLOYER
SAID, IT'S NOT PROTECTED ACTIVITY IF YOU'RE COMPLAINING ABOUT SOME PRIOR UNLAWFUL EVENT,
IT'S ONLY IF YOU'RE COMPLAINING ABOUT CURRENT AN ONGOING EVENTS AN THIS COURT SAID THAT'S
NOT WHAT SOOEP PA SAID. SEEP PA DOESN'T BLANK, EVEN THINGS THAT WERE UNLAWFUL THAT HAPPENED
YEARS AGO WOULD STILL BE UNDER SOOEP PA. I THINK THE SAME ARGUMENT IS HERE. I THINK
THAT WHETHER OR NOT IT RELATES TO A PAST OR PRESENT OR FUTURE CLAIM OF DISCRIMINATION
ONGOING DISCRIMINATION, ALL OF THAT IS CLEARLY INTENDED TO BE PROTECTED SPEECH UNDER THE
STATUTE. THE COURT: AND EVEN WE DON'T FOLLOW THAT LINE OF THINKING, THE
AGREEMENT ITSELF HAS A TEMPORAL LIMITATION AN RELATES ONLY TO PAST BEHAVIOR.
ANDREW DWYER: CORRECT. WHAT CONCERNS ME AND THAT'S WHY MY COLLEAGUE WAS NOT SURE HOW
TO ANSWER YOUR QUESTION IS THAT THE APPELLATE DIVISION USED THAT TO SAY WELL, THEN, YOU
KNOW, THEY WEREN'T REALLY TRYING TO VOOIL LATE VIOLATE THE STATUTE BECAUSE THEY WERE ONLY
FOCUSED ON FUTURE EVENTS. I AGREE WITH MS. FLIMG THAT YOU HAVE TO LOOK AT WHAT THE PROVISION
SAYS, NOT THE EVOLVING POSITION OF THE DEFENDANT ABOUT WHAT THEY WERE TRYING TO STOP.
AND IT IS INTERESTING, I REALLY LOOKED THROUGH THE RECORD AS HARD AS I COULD
ON THIS, WHEN THE TRIAL COURT JUDGE GRANTED THE DEFENDANTS'S MOTION, HE NOT ONLY AWARDED
THE BLANK, BUT HE ALSO ISSUED AN INJUNCTION, A PERMANENT INJUNCTION THAT PERMANENT EVEN
JOINS CHRISTINE SAVAGE FROM EVER AGAIN VIOLATING PARAGRAPH 10 IN THE AGREEMENT WHICH ON
ITS FACE WHICH WOULD MEAN SHE'S ENJOINED FROM SAYING SOMETHING ABOUT THE BEHAVIOR OF THE
DEFENDANTS THAT WOULD TEND TO IMPUGN THEIR REPUTATION WITH NO CARVE OUT FOR THE SPEECH
THAT IS CLEARLY PROTECTED BY 12.8 AND AS FAR AS I CAN TELL THAT INSTRUCTION HAS NEVER
BEEN VACATED. THE APPELLATE DIVISION DID NOT VACANCY KWAT THAT PROVLGS. THEY SIMPLY
SET ASIDE FOR A DAMAGES AWARD. I UNDERSTAND THERE ARE PUBLIC POLICIES BLANK
BY PEOPLE WHO OBJECTED TO THIS LEGISLATION. THEY MADE IT, A VOTE WAS TAKEN. IT WAS ENACTED
AND THAT'S HOW IT WORKS IN DEMOCRACY. IF I MAY ADDRESS ONE OTHER VERY SMALL
POINT, WHICH IS THAT I NOTICE IN SOME OF THE PAPERS FILED BY THE PARTIES OF THE AM MIK
KEY, THERE WAS REFERENCE TO THE FACT THAT THERE WAS SOME LEGISLATION BEING CONSIDERED
AFTER THE APPELLATE DIVISION'S DECISION ABOUT WHETHER OR NOT TO AMEND 12.8 TO EXPLICIT
LY ADD SOME LANGUAGE ABOUT NONDISPARAGEMENT AND I DON'T KNOW WHAT FRANKLY DEFENSE COUNSEL
IS GOING TO RAISE IN HIS ORAL ARGUMENT SO I WANTED TO HAVE THAT OFFERED THAT IN THE PAST,
AS RECENTLY AS LAST AUGUST IN THE STATE V. O'DONNELL CASE, THIS COURT IN A UNANIMOUS
OPINION BY CHIEF JUSTICE RABNER SAID WELL, WHEN WE'RE TALKING POST ENACTMENT THE FACT THAT
THERE WAS LEGISLATION THAT AT SOME POINT WAS PROPOSED OR CONSIDERED IS OF NO MOMENT.
IT PROVES NOTHING ABOUT THE LEGISLATIVE INTENT OF THE ORIGINAL ENACTMENT AND THAT'S OF
COURSE CONSISTENT WITH THE UNITED STATES SUPREME COURT IN THE CASE OF INFORMS SKAS VERSUS
CLAY TON COUNTY WHICH ADDRESSES WHETHER OR NOT UNDER TITLE 78677 DISCRIMINATION OF SEXUAL
ORIENTATION WAS PROHIBITED AN THEY SAID IN THAT CASE, SEXUAL ORIENTATION DISCRIMINATION
TO TITLE 7 SO THEREFORE IT MUST NOT BE COVERED BY TITLE 7 BECAUSE WHY ARE PEOPLE TRYING
TO ADD THAT CHANGE AND THE MAJORITY OF THE COURT, SAID, SO WHAT, IT'S THERE'S LOTS OF
REASONS WHY LEGISLATION GETS CONSIDERED AND WHY IT DOESN'T GET TAKEN UP FOR A VOTE AN
WERE IT DOESN'T HAPPEN THAT PROVES NOTHING ABOUT THE LEGISLATION INTENT OF THE ORIGINAL
ENACTMENT. THE ORIGINAL ENACTMENT IS PLAIN ON IT'S FACE. CHIEF JUSTICE
RABNER: THANK YOU. JOHN D. MCCARTHY: ONE EVER MR. DYERS'
COMMENTS REGARDING THE RECORD AND I HEARD THE DECISION FROM JUDGE MCCARTHY NO
RELATIONSHIP AND HE SIMPLY ORDERED THAT THE PLAINTIFF ABIDE BY THE
NONDISPARAGEMENT AGREEMENT. THERE WAS NO INJUNCTION AGAINST HER GOING OUT AND
GIVING FURTHER INTERVIEWS. SO THAT IS IN THE RECORD. THE #2RI789 OF THAT DECISION
IS IN THE RECORD. AND I THINK WHAT IS PRESENTED TO THIS COURT AS IT WHAT
TS TO THE APPELLATE DIVISION IS YOU HAVE TO THREAD THE NEEDLE DWIEN TWO PUBLIC
POLICIES. ONE POLICY WHICH HAS BEEN VERY WELL PRESENTED TO THIS COURT IS
THE POLICY OF THE LAD, AND THE IN TENTD OF THE STATUTE AT ISSUE IN THIS CASE BUT
THERE IS ANOTHER PUBLIC POLICY, WHICH I THINK THE APPELLATE DIVISION PROPERLY
ADDRESSED IN THEIR OPINION AND THAT PUBLIC POLICY IS TO ENCOURAGE SETTLEMENTS.
THIS CASE IN PARTICULAR ILLUSTRATES THE BENEFITS OF SETTLEMENTS. THERE
WERE 3 DIFFERENT LITIGATIONS GOING ON THAT WERE SETTLED IN THIS CASE OVER A 3-MONTH
PERIOD WITH THE ASSISTANCE OF THE VERY ABLE MEDIATOR RETIRED JUDGE MR. CASS
KAF FREE. THE SETTLEMENT ITSELF WAS PLACED ON THE RECORD BEFORE JUDGE MCCARTHY.
THIS ISSUE DIDN'T COMING UP. NOW, IN FAIRNESS TO MR. BURKE, THE ISSUE
OF NON DISCLOSURE CLAUSE WHICH WAS INTEREST DUSZED INTO THE ORIGINAL SETTLEMENT
AGREEMENT WAS DISCUSSED AND THE ISSUES OF THE SCOPE OF THAT AND THERE WERE
MULTIPLE MULTIPLE VERSIONS OF THE SETTLEMENT AGREEMENT THAT WENT BACK AND FORTH.
BUT I BELIEVE IT WHATS JUDGE MR. CASS CAR THINK AND I THINK IT APPELLATE
DIVISION ALSO USED THIS LANGUAGE THE LYNCH OPINION OF THE SETTLEMENT AGREEMENT OR
ONE OF THE LINCHPINS WAS THE NON DISPARAGE NLT CLAUSE BECAUSE LIKE ANY CASE AT
SOME POINT IT HAS TO COME TO AN EVENED BATTLE HAS TO END A TRUS NEEDS TO BE
CALL. SO I THINK IT'S IMPORTANT THAT THIS COURT CONTINUE WHAT IT HAS ALWAYS DONE,
ENCOURAGE SETTLEMENT. AND IF A BLANKET PRO LA BIGS OF NONDISPARAGEMENT
CLAUSES IS RULED IN THIS CASE, THAT WILL DISCOURAGE SETTLEMENTS. FOR A PUBLIC
EM MRIR SUCH AS THE NEPTUNE POLICE DEPARTMENT BEING CONFRONTED WITH
MULTIPLE CASES BY MULTIPLE OFFICERS, IT WAS AFFECTING THE OPTHSS OF THE
DEPARTMENT, IVENL NOT GOING TO GETS INTO ALL THE DETAILS ABOUT WHY THIS CASE WAS
SETTLE, IT SETTLED. 3 CASES WERE ENDED ONE OF THE CASES WHICH IS NOTED
IN THE FOOTNOTE IN THE APPELLATE DIVISION INVOLVED A DECLARATORY ACTION OVER WHETHER
SERGEANT SAVAGE NEEDED TO GET PERMISSION AS PER THE RULES OF THE DEPARTMENT
BEFORE SHE COULD GO SPEAK TO REPORTERS ABOUT THE OPERATIONS OF THE DEPARTMENT.
SEPARATE AND APART FROM THIS CASE. THAT WAS A DECLARATORY JUDGMENT ACTION THAT
WAS BROUGHT BY COUNSEL HERE. THERE WERE THERE WAS ANOTHER SUIT INVOLVING SERGEANT
SAVAGE AND OTHER OFFICERS THAT WAS ALL THAT WAS SETTLED AS A RESULT OF A 3
-MONTH NEGOTIATION, AN ENTIRE DAY OF MEEGS WITH JUDGE MR. CASS CAR FREE AND IT WAS
LARGELY THE REASON WHY JUDGE MCCART THINK GRANTED THE MOTION TO ENFORCE THE
SETTLEMENT. HE NOELTED THAT SERGEANT SAVAGE, THE SETTLEMENT WAS PLACED ON P RECORD
IN FRONT OF HIM AND THERE WAS NO OBJECTIONS TO THIS LANGUAGE. SO SERGEANT
SAVAGE HAD A CHOICE, SHE COULD HAVE CONTINUED THIS LIT GATHS AS COULD THE DEPARTMENT
BUT THERE E WANTED TO. JUSTICE PATTERSON: COUNSEL, THE ISSUE
BEFORE THE COURT IS NOT WHETHER THERE ARE GOOD OR BAD POLICY REASONS IN A DETERMINATION
OF WHETHER THE POLICY IN FAVOR OF SETTLEMENT SHOULD BE CONSIDERED SUPERIOR TO
OTHER POLICIES. WE'RE REALLY HERE ON A LEGISLATIVE DETERMINATION AND ON
A STATUTORY INTERPRETATION ISSUE, AND THAT IS WHETHER OR NOT THIS IS INCLUDED IN
THE PROVISION THAT THE LELTH YOU ARE A DOCHTED. JOHN D. MCCARTHY: UNDERSTOOD, YOUR HONOR. I WILL ADDRESS MY ARGUMENT TO THAT ISSUE OBVIOUSLY
DIVISION I BELIEVE GOT IT RIGHT WHEN THEY LOOKED AT THE PLAIN LANGUAGE OF THE
STATUTE. THERE HAS BEEN MUCH SOMETHING TO THE APPELLATE DIVISION OPINION FOR USING
DIXON NAR I DEFINITION GOES. WELL SOMETIME DIXON NAR I DEFINITIONS AND
BLAKS LAW DISHGS AIR I ARE RIGHT BECAUSE YES NON DISCLOSURE IS DEFINED IN TEN:
5- 12.8 A BUT I THINK IT'S TELLING THAT NONDISPARAGEMENT IS NOT INCLUDED IN
THAT STATUTE. THE LEGISLATURE IS FULL OF LOTS OF SMART PEOPLE WITH STAFF. IF THIS
E WANTED TO INCLUDE IT THEY WOULD HAVE INCLUDED IT. CHIEF
JUSTICE RABNER: SHOULDN'T WE LOOK AT THE LANGUAGE INSTEAD OF THE LABELS THAT ARE
ATTACHED TO THEM? AND THE LANGUAGE SAYS, AS HAS BEEN REPORTED MULTIPLE
TIMES, YOU CAN'T HAVE A PROVISION IN A SETTLEMENT AGREEMENT THAT HAS THE PURPOSE
OR EFFECT OF CONCEALING THE DETAILS REL TO GO A CLAIM OF DISCRIMINATION
RETALIATION OR HARRASSMENT. THAT IS AGAINST PUBLIC POLICY, THAT IS UNEVEN FOES
ABL. SO DOESN'T THAT MEAN THAT IF YOU DO HAVE AN AGREEMENT THAT RESTRICTS
AN INDIVIDUAL FROM SPEAKING ABOUT A CLAIM OF DISCRIMINATION OR RETALIATION, THAT
CAN'T STAND IN LIGHT OF SECTION 12.8? JOHN D. MCCARTHY:
YOUR HONOR, THE DETAIL -- THE LANGUAGE OF THE STATUTE TALKS ABOUT CONCEALING
THE DETAILS OF THE CLAIM. AND I THINK THE ISSUE BEFORE THE COURT IS IN LOOKING
AT THE LANGUAGE THAT IS USED BY A PLAINTIFF WHERE THERE IS A NONDISPARAGEMENT
CLAUSE IS DO THEY GO BEYOND THE DETAILS TO AADARI HOVENL NIM A TAEKS ON SOMEBODY.
IN THIS CASE AS YOUR HONOR HAS ALREADY POINTED OUT, THE APPELLATE DIVISION SAID
IT WAS PAST, THE PAST LANGUAGE, DIDN'T ADDRESS ANY OF THE COMMENTS THAT
SARJTS SAVAGE MADE, THEREFORE IN THIS PARTICULAR CASE THERE WAS NO VIOLATION.
BUT I AGREE WITH YOUR HONOR THAT THE LANGUAGE IS BROAD BUT I ALSO THINK
WHEN YOU LOOK THE AT THE STATUTE, THE LANGUAGE OF NONDISPARAGEMENT IS NOT THERE.
THEY SPECIFICALLY NOTED AS A NON DISCLOSURE CLAUSE AND THAT WAS THE VERY
PURPOSE OF THE STATUTE, TO PRIBT AGREEMENTS THAT WONTS ALLOW A PLAINTIFF TO SPEAK
AT ALL ABOUT THEIR AGREEMENT. BUT AT THE SAME TIME I THINK.
JUSTICE PIERRE-LOUIS: BUT IT COULDN'T JUST ALLOW THE PLAINTIFF TO SPEAK ABOUT
THE GREEM AGAIN IT IS THE DETAILS RELATED TO THE CLAIM OF DISCRIMINATION,
RETAL YATHSZ OR HARNLT. DONALD F. BURKE, JR.:
JOHN D. MCCARTHY: UNDERSTOOD YOUR HONOR. JUSTICE PIERRE-LOUIS:
IT IS NOT JUST WITH REGARD TO THE SETTLEMENT, THE DOIJS OF THE SETTLEMENT
OR THE AGREEMENT IT IS WITH REGARD TO THE DETAILS OF THE CLANL OF DISCRIMINATION.
JOHN D. MCCARTHY: CORRECT YOUR HONOR. JUSTICE
PIERRE-LOUIS: IF WE LOOK AT THE LANGUAGE THAT HAS BEEN REPEATED MANY TIMES, A
PROVISION THAT HAS THE PURPOSE OF EFFECT OR OF CONCEALING THE DETAILS RELATING
TO A CLAIM OF SKRIL NATION, RETALIATION OR HARRASSMENT, HEREIN AFTER REFERRED TO
AS A NON DISCLOSURE PROFRTHS, NONE DISCLOSURE PROVISION IS THERE BUT
REALLY SEEMS TO BE JUST USED AS SHORTHAND TO DESCRIBE AS A TERM TO DESCRIBE WHAT
HAS ALREADY BEEN DEFINED AS THE TYPE OF PROVISION THE LEGISLATURE IT IS
SEEKING TO NOT BE ENFORCED. SO AGAIN, IT SEEMS AS THOUGH YOUR FOCUS IS ON THE LABEL
AS OPPOSED TO WHAT THE LEGISLATURE HAS EXPLAINED AS BEING A PROVISION THAT
CANNOT BE THAT IS UNENFORCEABLE. JOHN D. MCCARTHY: I UNDERSTAND YOUR
HONOR'S CONCERN BUT I THINK THE LANGUAGE THAT IS ALSO IN THE STATUTE IS PURPOSE
AND EFFECT. AND THE PURPOSE AND EFFECT OF THIS NON DISPARAGEMENT CLAUSE AT THE
ANGS NOTED WAS NOT TO CONCEAL THE DETAILS OF THE CLAIMS. SHE SPOKE FREELY
ABOUT THAT. JUSTICE WAINER APTER: BUT HOW IS THAT KIEKS WITH
THE ACTUAL LANGUAGE. Q. IF YOU WERE MAKING ONLY A PURPOSE ARTHD I
WOULD UNDERSTAND BECAUSE PURPOSE IS WHAT IS IN SOMEONE'S MINE, NOT NECESSARILY WHAT
THEY WRITE ON THE PAGE. BUT THE STATUTE SAYS WHICH HAS THE PURPOSE OF OR
EFFECT. AND THE SETTLEMENT AGREEMENT REGARDLESS OF WHY IT WAS ENTERED INTO, IT
SPECIFICALLY SAYS THE PARTIES AGREE NOT TO MAKE ANY STATEMENTS REGARDING THE PAST
BEHAVIOR OF THE PARTIES, WHICH STATEMENTS WOULD TENDS TO DISPARAGE OR IMPUGN
THE REPUTATION OF IN I PARTY. SO ARE YOU DISAGREEING THAT A STATEMENT REGARDING
THE PAST BEHAVIOR OF THE PARTY A LEJTING THAT THAT PERSON ENGAGED IN
DISCRIMINATION, HARNLT OR RETALIATION, COULD TEND TO DISPARAGE OR IMPUGN THE REPUTATION
OF THAT PARTY? JOHN D. MCCARTHY: YOUR HONOR, I THINK IF
A PLAINTIFF IS GIVING A PRESS CONFERENCE AS SHE ESSENTIALLY DID IN THIS
CASE AND SAYS OFFICER SO AND SO DID THE FOLLOWING ACTS OF SEXUAL HARRASSMENT TO
ME, THE NONDISPARAGEMENT CLAUSE CANNOT AND SHOULD NOT UNDER THE STATUTE
PRIBT HER FROM STATING WHAT THAT. JUSTICE WAINER APTER: IT DOES
LOOER SO THAT IS THE ISSUE THE NONDISPARAGEMENT CLAUSE AS WRITTEN
VIOLATES THE STATUTE BECAUSE IT WOULD PREVENT SOMEONE FROM SAYING THIS PERSON SEXUAL
LY HARASSED ME BY DOING X WHY OR Z BECAUSE THAT IS THE PAST BEHAVIOR OF THE
PARTY WHICH STATEMENT WOULD TEND TO DISPARAGE OR IMPUGN THE REPUTATION OF THAT
PARTY. SO ISN'T THE ARGUMENT FROM YOUR ADVERSARY JUST LOOK AT THE LANGUAGE OF
SECTION 10, LOOK AT THE STATUTE, SEE THAT THEY CONFLICT, THAT'S IT JUST SAY THAT
THEY CONFLICT, CASE OVER. CAN UNSOLICITED EMAILS ENFORCE SECTION TEN BECAUSE
IT CONFLICTS WITH THE STATUTE. JOHN D. MCCARTHY: I THINK THEIR
ARGUMENT IS GET RID OF ANY NONDISPARAGEMENT CLAUSE, INCLUDING
THOSE THAT ARE NOT BEFORE THE COURT. JUSTICE WAINER APTER: SO LET'S
SAY KWEE WERE TO AGREE WITH YOU THAT WE ARE UNSOLICITED EMAILS RULING
GENERALLY ON ANY QUOTE UNQUOTE NONDISPARAGEMENT CLAUSE WE ARE ONLY COMBARG THE STATUTE
TO SECTION TEN OF THE AGREEMENT. HOW COULD WE POSSIBLY FIND THAT THERE IS
NO CONFLICT BETWEEN THE PLAIN LANGUAGE OF SECTION TEN AND THE STATUTE?
JOHN D. MCCARTHY: YOUR HONOR, I BELIEVE WHAT THE APTHS DID WAS LOOKED AT THE
PARAGRAPH TEN, LOOKED AT WHAT SERGEANT SAVAGE SAID AND SAID VERY CLEARLY
IN THIS PARTICULAR CASE UNDER THESE PARTICULAR FACTS HER COMMENTS DID NOT ADDRESS
PAST BEHAVIOR, OR WERE DRAEDZ THO PAST BEHAVIOR, AND THERE IS NO PROHIBITION
ON FUTURE AND PRESENT AS THE CHIEF JUSTICE POINTED OUT. I THINK THAT WAS I MAY HAVE
MISSPOKE THERE. THE LANGUAGE -- THE COURT FOCUSED ON WHAT THE COMMENTS
WERE AND WHETHER OR NOT THEY VIOLATED PARAGRAPH TEN AND DETERMINED THAT THEY DID
NOT VIOLATE PARAGRAPH TEN. CHIEF JUSTICE RABNER: ACTUALLY
MY COMMENT QUESTION IS SLIGHTLY DIFFERENT AS TO UPON PORL. YOU DON'T HAVE
AN ARGUMENT ABOUT ANYTHING INTO THE FUTURE OR IN THE PRESENT BASED ON THE WAY SECTION
TENNIS DRAWN, IT'S A SECONDARY CONCERN THAT I HAVE BECAUSE YOUR LIMIT IN
PARAGRAPH TEN ONLY REMENTS TO PAST BEHAVIOR. SO WHATEVER ELSE THE LAW SAYS,
YOUR AGREEMENT ONLY IS CONFINED ONLY TO PAST BEHAVIOR, NOT PREDICTIONS ABOUT
THE FUTURE. THAT'S WHAT I WAS ASKING. DO YOU DISAGREE WITH THAT?
JOHN D. MCCARTHY: I DON'T DISAGREE WITH THAT YOUR HONOR. CHIEF
JUSTICE RABNER: AND DO YOU AGREE, I THOUGHT I HEARD YOU SAY EARLIER IN YOUR
ANSWER THAT ONE CAN UNDER SECTION 12.8 REVEAL DETAILS OF A CLAIM OF
HARRASSMENT OF A CLAIM OF DISCRIMINATION EVEN IF IT DISPARAGE EAST ONE'S EMPLOYER?
JOHN D. MCCARTHY: OBVIOUSLY IF SOMEONE SAYS THAT AN
OFFICER DID A SPECIFIC ACT, THAT'S GOING TO DISPARAGE THE OFFICER AND THE EMPLOYER
TO SOME EXTENT. I THINK IT STATUTE IS CLEAR WE CAN'T FROE HYBRID THAT.
CHIEF JUSTICE RABNER: UNDER SECTION TEN. JUSTICE
PIERRE-LOUIS: PRIBTS. DONALD F. BURKE, JR.: I UNDERSTAND THAT
YOUR HONOR. BUT I. JUSTICE WAINER APTER: AND THE ANTHS JUST
TO BE CLEAR HELL SECTION TEN WAS ENFORCEABLE CORRECT. JOHN
D. MCCARTHY: THEY DID YOUR HONOR. JUSTICE WAINER APTER: DON'T TWEEF
TO ADDRESS THAT HOLDING? JOHN D. MCCARTHY: YES, YOUR HONOR.
BUT I THINK THE APPELLATE DIVISION ALSO BALANCED THE REQUEST OF THE PLAINTIFFS
IN THIS CASE WHICH WAS TO PRIBT NONDISPARAGEMENT CLAUSES WITH WHAT I AN
ADDRESSED EARLIER MOO MY ARGUMENTS WHICH IS ENCOURAGING SETTLEMENT. AND
I THINK FOR A BLANKET RULING THAT WHAT THE LELTH YOU ARE REALLY MEANT TO SAY WAS
NONDISPARAGEMENT CLAUSES ARE CONSIDERED I THINK THAT IS A BRIDGE TOO FAR
AND I THINK THE APTHS DOOTD THAT. JUSTICE PIERRE-LOUIS: HOW WOULD A
PLAINTIFF DISCUSS THE DETAILS OF THEIR DISCRIMINATION CLAIM WHICH INHERENT
LY INVOLVED ACCUSING SOMEONE OF DISCRIMINATORY CONDUCT WITHOUT DISPARAGEING
THEM? AS YOU JUST SAID, IF A PLAINTIFF GIVES STATEMENTS TO THE EFFECT OF,
THIS INDIVIDUAL SEXUALLY LARSED ME, THIS INDIVIDUAL DISCRIMINATED AGAINST ME BECAUSE
OF MY SEX BECAUSE OF MY RAK, WHATEVER, THAT THAT WOULD BE DISPARAGEING.
CORRECT? YOU SAID THAT EARLIER. JOHN D. MCCARTHY: I AGREE.
JUSTICE PIERRE-LOUIS: THROW ARE THE DETAILS OF THAT PLAINTIFF'S CLAIM THOSE
DETAILS ARE INHERENTLY DISPARAGEING. SO SECTION TEN PREVENTING A PRFR
PLAINTIFF FROM DISCUSSING THE PAST BEHAVIOR OF THE PARTIES PREVENT THEM FROM SKUG
THAT. THAT'S DISPARAGEING. AND THAT VIOLATES SECTION 12.8 A.
JOHN D. MCCARTHY: SECTION TEN AS WRITTEN, YOUR HONOR, I AGREE, DOES ADDRESS PAST
BEHAVIOR BUT IT ALSO GOES FURTHER AND TALKS ABOUT I AM PUNG THE REPUTATION.
JUSTICE PIERRE-LOUIS: IF YOU SAY THAT SOMEONE HAS SKLGLY
IF THE MR. OF SAYS SOMEONE HAS SEXUALLY HARASSED THEM, THAT WOULD IMPUGN THEIR
REPUTATION. I DON'T SEE HOW ANY DEFENDANT WOULD FIND ANY COMMENTS MADE
ABOUT THEM HARASSING SOMEONE, DISCRIMINATING AGAINST THEM, NOT TO BE
DISPARAGEING OR NOT TO IMPUGN THEIR REPUTATION. JOHN D.
MCCARTHY: SO, YOUR HONOR, I THINK IN THIS PARTICULAR CASE IF YOU LOOK AT THE INTERVIEW
SHE THAT SERGEANT SAVAGE GAVE, SOME OF HER COMMENTS AND AGAIN I RECOGNIZE
UNDER SECTION TEN AS WRITTEN IT ONLY ADDRESSED PAST BEHAVIOR THAT IS WHY THE
APPELLATE DIVISION RULED AS THEY DID BUT SHE TALKED ABOUT GOOD OLD BOY NETWORK
RNGS SHE TALKED ABOUT NOTHING IS GOING TO CHANGE THINGS ALONG THOSE LINES.
JUSTICE PIERRE-LOUIS: IN YOUR MOTION, IN YOUR CERTIFICATION SUPPORTING
IN SUPPORT OF YOUR MOTION TO ENFORCE THE SETTLEMENT, YOU DOE TALD ALL OF HER
STATEMENTS, PAST AND PRESENT. I UNDERSTAND WHAT THE APPELLATE DIVISION DID BUT
IN SEEKING TO ENFORCE THE SETTLEMENT AGREEMENT AND THERE PROVISION IN SECTION
TEN, YOU DETAILED THE PAST BEHAVIOR AS WELL AS THE PAST THE COMMENTS WITH REGARDS
TO THE PAST AS WELL AS THE GOOD OLD BOYS NELT WORK AND NOTHING IS GOING TO CHANGE
THAT WAS YOUR POSITION CORRECT FLOR FLOR JUST TO TACK ONLY TO THAT IT WAS
THE TRIAL JUDGE FLORIDA FOCUSED ON THE FUTURE BEHAVIOR BUT EVERYTHING AS JUSTICE
FAUR LOOSE IS ASKING EVERYTHING WAS INCLUDED. JOHN D.
MCCARTHY: FLIGSLY YES IN THE CERTIFICATION AS PRESENTED TO THE TRIELG
COURT WE DISTINGUISHED THOSE STATEMENTS THAT WENT TO HER CLAIM AND THOSE
STATEMENTS THAT WENT BEYOND HER CLAIM. NOW, I RECOGNIZE WHY THE APPELLATE DIVISION
RULED THE WAY THEY DID, BECAUSE THE STATEMENTS THAT AS WE PERCEIVED IT
WENT YONTD HER CLAIM DID NOT SPECIFICALLY ADDRESS PAST BEHAVIOR AND I THINK IF THE
LANGUAGE OF THE NONDISPARAGEMENT CLAUSE WAS A LITTLE DIFFERENT, IT MAY HAVE
TURNED A LITTLE BIT DIFFERENTLY IN THE TRIAL COURT AND MORE SO IN THE APPELLATE
DIVISION. JUSTICE PATTERSON: NOIR CAN YOU JUST REPEAT THAT?
I DID NOT FOLLOW THAT. JOHN D. MCCARTHY: I THINK THE LANGUAGE IN
PARAGRAPH TEN AS WRITTEN WAS DIFFERENT AND AGAIN I'M NOT.
JUSTICE PATTERSON: DIFFERENT FROM WHAT? JOHN D. MCCARTHY: DIFFERENT
THAN ONLY LIMITING IT TO PAST BEHAVIOR, THE APPELLATE DIVISION MAY HAVE
VIEWED THOSE WHAT I WOULD CALL NON CLAIM COMMENTS. IF WE REALLY WANT TO GO TO
WHAT THE WAY MY CLIENTS PERCEIVED THEM, THE CLEEF AND THE POLICE DIRECTOR
AS ADD WHOM NEN A TAX THOSE WERE DIFFERENT. CHIEF JUSTICE RABNER:
SO SUPPOSE YOU HAD A NON CLAIM COMMENT: I KNOW THIS INDIVIDUAL, I KNOW WHAT'S
IN HIS PART, I KNOW IN THE FUTURE HE WILL SKRINL NAT AGAINST OTHER PEOPLE. THERE POLITE
BE AN ARGUMENT, THERE WOBLG A DEBATE AS TO BH THAT'S COVERED BY 12.78, BUT IT
CERTAINLY IS NOT COVERED BY YOUR SETTLEMENT AGREEMENT. JOHN D.
MCCARTHY: UNDERSTOOD. AND I ACKNOWLEDGE THOSE ARE THE FACTS BEFORE THE COURT
AS PRESENTED YOUR HONOR. JUSTICE WAINER APTER: YOU ALSO
AGREE THAT YOUR ADVERSARY PETITION THE FOR CERTIFICATION ON THE QUESTION OF
WHETHER THE APPELLATE DIVISION WAS CORRECT TO HOLD THAT SECTION TENNIS ENFORCEABLE,
CORRECT? SO WE NEED TO DECIDE IS SECTION TEN ENFORCEABLE. THAT IS THE
QUESTION BRD PRESENTED. JOHN D. MCCARTHY: IN THE CONTEXT OF THIS
CASE THE APPELLATE DIVISION I THINK ALSO RULED THAT THEY WOULD NOT MAKE
A BLANKET RULING PRIBTING NON PRAJ MENT CLAUSES IR. JUSTICE
WAINER APTER: I AM NOT TALKING ABOUT A BLANKS ET RULING ON ANYTHING, DO YOU AGREE
THAT WE HAVE TO LOOK AT SECTION TEN AND DECIDE IF IT IS ENFORCEABLE UNDER
THE STATUTE? JOHN D. MCCARTHY: I AGREE THAT THAT'S BEFORE
THE COURT. JUSTICE WAINER APTER: OKAY. JOHN D.
MCCARTHY: I DON'T DISPUTE THAT. YOUR HONOR UNLESS THERE IS ANY OTHER
QUESTIONS, THE I MADE THE POINT I THINK ALREADY THE WAY THE COURT RULED
THE APPELLATE DIVISION IN THIS CASE WAS TO BALANCE THE TWO PUBLIC POLICIES, ENCOURAGING
SETTLEMENT, WLIELG ALSO ACKNOWLEDGING WHAT THE LELTH YOU ARE SAID. AND
I THINK THE APPELLATE DIVISION GOT IT RIGHT IN THIS CASE. I THINK THEY BALANCED
THOSE TWO PUBLIC CONCERNS AND I WOULD URGE THE COURT TO AFFIRM THE APPELLATE
DIVISION. CHIEF JUSTICE RABNER: THANK YOU COUNSEL.
JOHN D. MCCARTHY: TUN. CHIEF JUSTICE RABNER: MR. BURKE REBUTTAL?
DONALD F. BURKE, JR.: TUN. I WILL START THERE. WE ARE
NOT HERE TO DEBATE PUBLIC POLICY THE LEG YOU ARE TOOK CARE OF THAT. WE'RE LERER
TO FOCUS ON WHAT THE LETHD URTSZ' ALREADY DETERMINED THE LETHD YOU ARE SPEAKS
FOR THE PUBLIC IN OUR STATE AND EVERY OTHER STATE IN THIS COUNTRY. I
WANT TO START WHERE WITH JUSTICE WANLER APRIL TERS' LAST QUESTION. THE ISSUE BEFORE
THIS COURT IS IS THE NONDISPARAGEMENT PROVISION IN THE PARTIES' SETTLEMENT
AGREEMENT ENFORCEABLE. THATS' THE ISSUE BEFORE THIS COURT. AND GOING BACK TO
WHAT COUNSEL SAID WHEN HE STARTED, THAT THERE IS NO INJUNCTIVE RELIEF WELL
THAT'S NOT TRUE IF WE LOOK TO THE SEPTEMBER 25, 2020, ORDER IT SPIFRL SAYS PLAINTIFF
CHRISTEEN SAVAGE SHALL ABIDE BY THE NONDISPARAGEMENT CLAUSE SET FORTH IN
PARAGRAPH TEN OF THE JULY 23, 2020, SETTLEMENT AGREEMENT. AND FURTHER ORDERED PLAINTIFF
SAVAGE IS DIRECT TO REFRAIN FROM MAKING ANY FUSHTER STATEMENTS OR
CHARACTERISTICING ANY FURTHER INTERVIEWS WHICH DISPARAGE THE DEFENDANTS IN VIOLATION
OF THE SECHLT AGREEMENT. THAT WAS THEN REAFRNLD IN THE
DECEMBER 2020 -- 22, 2020 ORDER THAT AGAIN REAFFIRMED THE DEFENDANT'S MOTION IS
GRANTED FOR THE REASONS SETD FOIRTD ON P RECORD ON SEPTEMBER 25TH, 2020, AS MY
CO-COUNSEL STATED THAT WAS LEFT UNDISTURBED BY THE APPELLATE DIVISION
BECAUSE THE APPELLATE DIVISION FOUND THAT SECTION TEN WAS ENFORCEABLE. THEREFORE,
OUR CLIENT SERGEANT SAVAGE IS STILL UNDER THE AFFECTS OF THE LAW DIVISION
ORDERS WHICH PREVENT HER FROM SPEAKING OUT IN VIOLATION OF THE STATUTE.
JUSTICE PATTERSON: MR. BURKE, DO YOU AGREE THAT WHAT IS BEFORE THE COURT IS
WHETHER SECTION TEN VIOLATES THE STATUTE AS OPPOSED TO BH WHETHER ALL POTENTIAL
NONDISPARAGEMENT PROVISIONS VIELTD THE STATUTE. DONALD F. BURKE,
JR.: YES. JUSTICE PATTERSON: THINKS A NARROW CASE LINLTED
TO THE DETERMINATION AS TO SECTION TEN, NOT A GLOBAL DETERMINATION AS TO ALL POTENTIAL
AGREEMENTS THAT WOULD FALL UNDER THE NONDISPARAGEMENT CATEGORY SFLOO WE
AGREE WITH THAT YOUR HONOR. UNLESS THE COURT HAS ANY FURTHER QUESTIONS,
THAT IS MY REMARKS. CHIEF JUSTICE RABNER: THANK YOU. THANK
YOU TO ALL COUNSEL FOR THE HEFRL ARGUMENTS WE WILL TAKE THE MATTER UNDER
ADVISEMENT COURT IS IN RECESS.) SGLIEFRJTS SGLIEFRJTS