cdTOCtest

Applications of the penal/non-penal dichotomy are:

Matter of Coruzzi, 95 N.J. 557 (1984). Although a
statute which provided for the indefinite suspension of a
judge without pay pending the completion of removal
proceedings applied retrospectively and thus brought to
bear unpleasant consequences upon the respondent for
his prior conduct, the crucial issue is whether the
legislative intent behind the provision was to punish
judges for past activity or to regulate a present situation.
The ex post facto prohibition only provides that when a
statute engenders unpleasant consequences for an
individual because of a past act, punishment cannot be
the purpose of the statute. Thus, the appropriate focus
is not simply the effect on the individual challenging the
statute but also other potential or intended objects of the
law’s operation to determine if the challenged restriction
serves a valid regulatory purpose. The statute in question
serves the important regulatory purposes of maintaining
the standards of the profession, protecting the public and
preserving public confidence in the judiciary by not
allocating public funds to pay salary to judges who have
conducted themselves in a manner that warrants
suspicion. The unpleasant consequences brought to bear
upon the respondent by the statute were thus incidental
to valid regulatory purposes, and the statute was not an
ex post facto law. Id.

In re Garay, 89 N.J. 104 (1982). The retroactive
application of a statutory amendment which provided for
the recovery of penalties, treble damages and interest
from physicians convicted of Medicaid fraud did not
violate the ex post facto prohibition. The Legislature
specifically denoted the penalties assessed by the
amendment as “civil.” Moreover, the obvious purpose of
the amendment was to cover the costs of fraud
investigations and of the legal proceedings required to
ensure repayment, and not to impose punishment. The
penalties prescribed thereby are thus in effect liquidated
damages for the State’s costs. In view of the many costs
to the State entailed by the respondent’s conduct and
substantial precedent supporting the retroactive
application of similar penalty provisions, the penalty
fixed by the statute was not on its face so unreasonable or
excessive that it transformed what was clearly intended as
a civil remedy into a criminal penalty.

See also In re Kaplan, 178 N.J. Super. 487, 493-495
(App. Div. 1981), and cases cited therein.

C. Application Limited to Statutes Which Affect

Substance

No ex post facto violation occurs if the change effected

is merely procedural and does not increase the

punishment nor change the ingredients of the offense or

the ultimate facts necessary to establish guilt. State v.

Humanik, 199 N.J. Super. at 283 (App. Div. 1985),

quoting Weaver v. Graham, 450 U.S. at 29, in turn

quoting Hopt v. Utah, 110 U.S. 574, 590 (1884). The

ex post facto prohibition “does not, however, apply to

procedural changes, even when they disadvantage the

offender.” State v. T.P.M., 189 N.J. Super. at 367, citing

Weaver v. Graham, 450 U.S. at 29, n.12. “The Clause

also does not prohibit legislative control of remedies

which do not affect substance.” State v. T.P.M., 189 N.J.

Super. at 367, citing Dobbert v. Florida, 432 U.S. at 293

(1977) and State v. Davis, 175 N.J. Super. at 147.

However, “a procedural form will not protect a

substantive change.” State v. T.P.M., 189 N.J. Super. at

367, citing Weaver v. Graham, 450 U.S. at 29, n.12.

For example:

1. “[B]urdens of proof - those rules governing the
   degree of certainty the evidence must engender to
   warrant a given disposition by the trier of fact - are
   procedural matters” for purposes of determining whether
   the New Jersey penal code should be retroactively
   applied. State v. Molnar, 81 N.J. 475 (1980).


2. Generally, however, “[a] substantial question
   exists as to whether evidentiary rules are to be considered
   substantive or procedural,” and thus, whether such rules
   may be applied retrospectively. State v. Humanik, supra.

Compare, e.g., Beazell v. Ohio, 269 U.S. 167, 170

(1925) (statutory alterations do not fall within the ex post

facto ban if they pertain to the mode of trial or the rules

of evidence, do not deprive the accused of a defense, and

operate only in a limited manner and insubstantial to his

disadvantage); Thompson v. Missouri, 171 U.S. 380

(1898) (a statute changing the rules of evidence to allow

testimony against an accused which was inadmissible at

the time of the homicide at bar could be retroactively

applied); Hopt v. Utah, 110 U.S. 574, 590 (1884) (a

statute removing the disqualification of convicted felons

as potential witnesses could be retroactively applied);

Parker v. United States, 235 F.2d 21, 22 (D.C. Cir. 1956)

(statute revoking physician’s privilege could be applied

retroactively); with Kring v. Missouri, 107 U.S. 221, 228

(1883) (retroactive application of provision in Missouri

constitution violated ex post facto prohibition, since it