Opinion Summaries

         The court granted defendant leave to appeal from two orders entered by the Family Part, which denied a motion to amend his answer to include a counterclaim for divorce and his subsequent motion for reconsideration.  On appeal, the court reversed both orders.

          The court concluded defendant should have been permitted to amend to include a counterclaim because discovery was not concluded, there was no trial date, and the interest of justice required it.  The proposed counterclaim alleged defendant learned of conduct between plaintiff and a third party, which constituted grounds for divorce based on irreconcilable differences and extreme cruelty.  Moreover, based on defendant's proposed pleading and extant business litigation in the Law Division involving the parties and the third party, the case appeared to be complex in that defendant's counterclaim sounded in claims against plaintiff for:  dissipation, marital fault, and bad faith.

         Plaintiff argued to the trial court and on appeal that Rule 5:4-2(e) barred defendant's ability to amend the answer to include incidents that occurred during the marriage because defendant knew about the claims and failed to file a counterclaim with his initial answer.  The court concluded Rule 5:4-2(e) was inapplicable because it applies when a party seeks to amend an already existing counterclaim.  Moreover, the court harmonized Rule 5:4-2(d) and (e) with Rule 4:9-1 and held the amendment of Family Part pleadings are subject to the liberal interest of justice standard in Rule 4:9-1, and courts should permit a party to amend where the request is timely, and not futile, frivolous, or harassing. 

In this appeal, the court held that the rule announced in State v. Smith, 251 N.J. 244, 253 (2022), that "reasonable and articulable suspicion of a tinted windows violation arises only when a vehicle's front windshield or front side windows are so darkly tinted that police cannot clearly see people or articles within the car," should be afforded pipeline retroactivity.  The court also determined a defendant who had not filed a notice of appeal when a retroactive decision was issued, but was subsequently granted leave to file as within time under Rule 2:4-4 and State v. Molina, 187 N.J. 531, 535-36 (2006), is deemed within the "pipeline" for retroactivity purposes.

In this appeal, the court considered whether a Remediation in Progress waiver (RIP waiver) issued by the New Jersey Department of Environmental Protection (NJDEP) conveys a property interest to the recipient that is constitutionally protected by the right to due process.  The court concluded it does not.

The owner or operator of an industrial establishment is subject to the Industrial Site Recovery Act (ISRA) when they cease operations or transfer ownership or operation of the industrial establishment.  N.J.S.A. 13:1K-9(a).  Before doing so, the ISRA requires the owner or operator of an industrial establishment to remediate its industrial establishment and obtain a final remediation document.  N.J.S.A. 13:1K-9(b).  To expedite transfers and cessations of contaminated industrial sites, the ISRA permits alternatives to obtaining a final remediation document prior to the cessation of operations or transfer of property, including an RIP waiver.  N.J.A.C. 7:26B‑5.4.  An RIP waiver allows the owner or operator of an industrial establishment to apply to NJDEP to close or transfer ownership or operations, provided that the industrial establishment is already in the process of remediation and specific requirements are met.  N.J.S.A. 13:1K‑11.5; N.J.A.C. 7:26B-5.4.

An RIP waiver is contingent on remediation being in progress; if remediation falls out of compliance, the RIP waiver applicant no longer qualifies for the suspension under N.J.S.A. 13:1K-11.5, and NJDEP may rescind the RIP waiver.

Clarios, LLC, appealed from a decision by NJDEP to deny its request for an adjudicatory hearing concerning NJDEP's decision to rescind Clarios's RIP waiver for the premises at issue, 760 Jersey Avenue, New Brunswick.  Clarios argued NJDEP's grant of the RIP waiver in 2007 created a property interest protected by a right to due process in that the RIP waiver operates like a license—well-recognized to be in the nature of a property right—that permits the receiving party to conduct certain activities and exempts it from obligations subject to the State's stipulations.

The court rejected Clarios's assertion.  The only benefit conferred by the RIP waiver is that the owner or operator may effect such close of operations or transfer of ownership prior to "obtaining departmental approval of a remedial action workplan or a negative declaration or without the approval of a remediation agreement."  N.J.S.A. 13:1K‑11.5(a).  The RIP waiver does not suspend the need to remediate the industrial establishment.  It waives only the requirement to provide for remediation before the close of operations or the transfer of ownership.  In addition, the regulation that provides for the issuance of RIP waivers explicitly limits the authority of the waiver to relieve the recipient of "the obligations to remediate the industrial establishment pursuant to ISRA . . . and any other applicable law."  N.J.A.C. 7:26B-1.8(b).

          In this appeal, as an issue of first impression, the court addresses whether a New Jersey court may consider a motion to terminate the registration requirements of an individual subject to Megan's Law[1] in New Jersey but residing in another state.  The court holds that although a New Jersey court may have jurisdiction to decide the motion, it must decide on a case-by-case basis whether the registrant has standing to bring the motion. 

          J.R. committed a sex offense in 1993 that subjected him to Megan's Law in New Jersey.  Upon moving to Montana in 2021, J.R. was subject to registration there because Montana statute requires registration for individuals who committed a sexual offense in another state for which they were required to register.  He then filed a motion to terminate his registration obligation in New Jersey pursuant to N.J.S.A. 2C:7-2(f).

          The court agrees with the Megan's Law judge that J.R. no longer had a registration obligation in New Jersey and his obligation in Montana was dependent on his prior conviction in New Jersey, which would remain regardless of the outcome of the motion.  The court rejects J.R.'s contention that he continued to have a Megan's Law "status" in New Jersey.  He neither faced harm from the denial of the motion nor could he benefit from the granting of the motion because it would not alter his registration obligation in Montana.  Because he was not suffering a harm that a New Jersey court could address, J.R. lacked standing to have a New Jersey court decide his motion, and we affirm the Megan's Law judge's decision.

          Because registration requirements vary across the country, there may be instances where a registrant's obligation to register in another jurisdiction would be impacted by the outcome of a motion to terminate in New Jersey.  Therefore, a court must examine the legislative scheme in the jurisdiction where the registrant resides to determine whether the motion presents a justiciable controversy that amounts to standing.

[1]  N.J.S.A. 2C:7-1 to -23.

LOCAL PROPERTY TAX – VETERAN’S EXEMPTION – ARMY NATIONAL GUARD

Tax Court: Alemany v. Township of Marlboro, Docket No. 007209-2023; opinion by Sundar, P.J.T.C., decided January 29, 2024.  For plaintiff - Sheryl Alemany, self-represented; for defendant - Lani M. Lombardi, Esq. (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys).

HELD: Plaintiff, who served in the National Guard, was declared 100% and permanently disabled due to a service-connected disability by the federal Department of Veterans’ Affairs, and was honorably released by the U.S. Army.  Defendant denied local property tax exemption for her residence under N.J.S.A. 54:4-3.30 because federal Form DD-214 stated that she was released from “active duty training” and the pre-2019 precedent held that veterans training in the National Guards were not entitled to the exemption.  The court found that the New Jersey Constitution and N.J.S.A. 54:4-3.30 require only “active service” in the Army; the Form DD-214 evidenced that plaintiff was in active service with the U.S. Army National Guard; and full-time National Guard duty is considered as “active service” under the federal military law; therefore, plaintiff qualified for the exemption.  The term “active duty training” in Form DD-214 cannot be viewed in a vacuum and solely control determination of plaintiff’s qualification for the exemption.

(10 pages) 
 

In this matter, arising out of a failure to accommodate and discrimination action under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50, a jury returned a verdict for plaintiff awarding her compensatory damages and $10 million in punitive damages.  On appeal, the court affirmed the finding of liability and the compensatory damage award but remanded for further proceedings on the amount of punitive damages, and specifically, for substantial consideration of the factors discussed by our Supreme Court in Baker v. National State Bank, 161 N.J. 220 (1999), and the United States Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). 

The Supreme Court granted defendant's petition for certification and modified this court's remand instructions.  The Court held that when reviewing a punitive damages award against a public entity, a trial court must not only consider the Baker/BMW factors, but also needs to apply heightened scrutiny as required under Lockley v. State, Department of Corrections, 177 N.J. 413 (2003).

On remand, the trial court concluded the punitive damages award was "reasonable" and "comport[ed] with due process."

In the present appeal, the court established a hybrid standard of review when considering an award of punitive damages against a public entity.  The court should accord a deferential standard of review to a judge's determination of whether the jury's punitive damages award is "reasonable" and "justified in the circumstances of the case" under N.J.S.A. 2A:15-5.14(a).  However, when a party challenges the punitive damages award on constitutional due process grounds, the court should review the trial court's decision as to the amount of the punitive damage award de novo. 

After considering the Baker/BMW factors using the heightened scrutiny required under Lockley, we concluded the punitive damages award was not unreasonable or disproportionate to the harm caused by defendant's upper management representatives in their disregard of the LAD.  Although mindful the source of the damages award is public funds, the court concluded the award was necessary to deter future unlawful conduct and to encourage high-level officials to conform their behavior.

Ocean Walk has not pled facts supporting a conclusion that its business losses were caused by a “direct physical loss” or “direct physical . . . damage” under the policy language. And even if Ocean Walk had pled facts supporting a finding of a covered “loss” or “damage,” the losses it alleges are excluded from coverage by the policies’ contamination exclusion.

        In this appeal, the court considers whether the Governor can be compelled by mandamus to act on an appointment power when the statute at issue neither expressly requires, nor provides a deadline for, the exercise of that discretionary function.  Seventeen municipalities challenge the Governor Murphy's inaction, demanding he fill long-standing vacancies on the Council on Affordable Housing (COAH).  The court rejects appellants' contentions that the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329, requires the chief of the executive branch to fill those appointments and that Governor Murphy's inaction violates that obligation and undermines the public policy reflected in the FHA. 

      Persuaded by the Governor's responding argument, this court held it cannot compel the Chief Executive to make appointments to COAH because mandamus – the relief appellants seek – cannot be applied against the Governor, generally.  Further, even if mandamus were applicable to the Governor, the remedy is unavailable here because appellants seek to compel an exercise of discretion.   The court thus held the Governor cannot be compelled by mandamus to fill COAH's vacancies.  Accordingly, the court dismissed the appeal.

         Following a long-term marriage, plaintiff filed a complaint for divorce and the parties, represented by counsel, entered a comprehensive marital settlement agreement (MSA).  Plaintiff sought an uncontested divorce "on the papers" and filed the certification required by the Administrative Office of the Courts for such a proceeding.  However, defendant sought an uncontested divorce hearing by way of Zoom, which the court in turn scheduled.  Plaintiff died before the uncontested hearing.

         His estate, represented by the parties' eldest son, sought to be named the real party in interest and to enforce the MSA, among other relief.  Defendant cross-moved to dismiss the complaint because of plaintiff's death.  The trial judge denied the motion and dismissed the complaint.  It ruled that under Carr v. Carr, 120 N.J. 336 (1990), plaintiff's death abated the divorce and there were no unusual or exceptional circumstances warranting invocation of an equitable remedy, such as a constructive trust, to prevent an unjust enrichment by defendant. 

         The court reversed and remanded for entry of an order permitting the estate to be substituted as the real party in interest and incorporating the MSA into a final judgment.  Although defendant did not engage in conduct warranting the imposition of a constructive trust, the trial court overlooked the fact the parties had a fully signed MSA that was fair and equitable, whose validity defendant did not challenge, and that but for the delay in scheduling the uncontested hearing, both parties intended to proceed with the uncontested divorce.  Therefore, the equities and our public policy of encouraging and enforcing settlements in matrimonial matters did not warrant discarding the MSA and dismissing the matter. 

          While the appeal was pending, the Legislature amended the intestacy and equitable distribution statutes.  The amendments to the equitable distribution statute authorize Family Part judges to effectuate equitable distribution where a party dies during a divorce proceeding and the complaint has not been previously dismissed pursuant to Rule 4:6-2.  The Legislation is effective January 8, 2024. 

        The court reviewed the plain language of the new statutes and the legislative statement accompanying their passage, and concluded the Legislature intended to afford pipeline retroactivity to pending cases.  Therefore, the new statutes applied to this case and provided independent grounds to uphold and enforce the parties' MSA.

N.J.S.A. 2C:28-5(a) is not unconstitutionally overbroad. It may, however, have been unconstitutionally applied to defendant in this case. The Court therefore vacates defendant’s witness tampering conviction, without dismissing any portion of the indictment, and remands the case for a new trial on that charge. The Court does not vacate defendant’s conviction for carjacking.

This interlocutory appeal concerns whether the New Jersey courts have personal jurisdiction over a defendant Utah company and its sole owner who entered into a contract to reserve a booth for plaintiff, a New Jersey company, at a biannual trade show in Germany planned for 2020.  The 2020 trade show was eventually cancelled because of the COVID-19 pandemic, and the company and its owner declined to refund plaintiff's payment or apply it to the next show in 2022.

Defendants argue they lacked the required "minimum contacts" to be sued in New Jersey, stressing that plaintiff originally initiated the parties' relationship in 2011 by asking defendants to arrange for space at an earlier trade show in 2012.  They further contend it would offend constitutional principles of fair play and substantial justice to compel them to litigate this civil case in this distant state.

The court affirms the motion judge's finding of personal jurisdiction.  Although cases that have found specific jurisdiction often have involved a defendant that first initiated contact with a plaintiff in the forum state, the court holds it is not dispositive that the New Jersey plaintiff originally initiated contact with the Utah company and its owner years before the present transaction.  The record shows the Utah defendants sought and procured renewal contracts with plaintiff for the next four biannual trade shows, including 2020.  In addition, the Utah defendants repeatedly solicited new or renewal business from at least ten other New Jersey pet company exhibitors during that time frame.

Given that conduct, the Utah defendants "purposely availed" themselves of doing business with New Jersey customers to a level sufficient to satisfy the criteria for in personam jurisdiction under the Due Process Clause.

In addition, the norms of fair play and substantial justice are not offended here.  Defendants could have included a forum selection clause in their form contract but failed to do so.  The parties have already taken depositions remotely, and defendants can request the trial court—in this modest non-jury case with few witnesses—to consider in its discretion allowing them to appear remotely at trial.

Defendant’s possessory or ownership interest in the suitcase ceased when he fled police outside Penn Station and deliberately left his suitcase behind in a public place with no evidence of anyone else’s interest in the bag. Because the State has demonstrated by a preponderance of the evidence that the suitcase was abandoned, defendant is without standing to challenge its seizure and search.

A mental state of recklessness -- defined in this context as “morally culpable conduct, involving a ‘deliberate decision to endanger another,’” Counterman v. Colorado, 600 U.S. 66, 79 (2023) -- is constitutionally sufficient for a “true threats” prosecution under N.J.S.A. 2C:12-3(a). An objective component is also necessary for a “true threats” prosecution to survive constitutional scrutiny: the State must prove that a reasonable person similarly situated to the victim would have viewed the message as threatening violence. Here, defendant was charged with terroristic threats in violation of N.J.S.A. 2C:12-3(a) and/or (b). On remand, the jury should be charged that they must unanimously agree as to whether defendant violated N.J.S.A. 2C:12-3(a), (b), or both.

The refund provision is limited in scope: N.J.S.A. 56:8-2.11 provides relief only to victims of food-related fraud as identified in Chapter 347 and does not extend to all CFA violations. Because the allegations in this matter are unrelated to misrepresentations of the “identity of food,” plaintiffs are not entitled to a full refund under N.J.S.A. 56:8-2.11.

On September 25, 2020, J.D. plead guilty to two counts of criminal sexual contact in the fourth degree in violation of N.J.S.A. 2C:14-3(b).  Shortly thereafter, he was deemed incompetent as a result of an intellectual disability, low-IQ and a lack of formal education—having only completed the 8th grade.  Two experts opined that J.D. could attain competency with education, although these opinions were disputed by a third expert.  As J.D. was not deemed a danger to himself or to others, he was not subject to incarceration or institutionalization pre-trial.  In response to a court order requesting guidance on the type of educational services needed to assist J.D. in attaining competency, it was confirmed that no State program exists to provide educational services on an out-patient basis to assist J.D. with attaining competency. 

On December 20, 2022, the State moved to have a Guardian appointed to assist J.D. in procuring disability benefits that could defray the cost of private educational services and to otherwise assist J.D. in procuring private educational services necessary to attain competency.  On March 15, 2023, in an interlocutory Order and opinion of first impression, this court addressed, among other factors, Constitutional considerations and denied the State’s motion to appoint a Guardian and compel J.D., a criminal defendant, to procure private educational services for the purpose of attaining competency. 

Following a competency hearing on July 26, 2023, by separate Order and opinion dated August 1, 2023, the court: (i) determined that J.D. was not competent and was not likely to attain competency; (ii) vacated J.D.'s guilty plea; and (iii) dismissed with prejudice the complaint against J.D.  Based upon the August 1, 2023 Order, the March 15, 2023 Order is now final.

     After Hurricane Sandy struck New Jersey in October 2012, high water levels flooded several communities, causing extensive damage to infrastructure.  After the floodwaters receded, municipalities and businesses worked with their electric utility, Jersey Central Power & Light (JCP&L), to restore power on the boardwalk for the spring 2013 tourist season.  After being notified that required repairs had been completed and municipal inspectors had approved the repair work, JCP&L restored power to the boardwalk in May 2013.  Months later, a fire broke out, causing severe damage to boardwalk businesses.  After an investigation revealed that the source of the fire was likely malfunctioning electrical equipment which had been submerged beneath the boardwalk during the storm, multiple plaintiffs sued for damages, alleging negligence by various parties, including JCP&L. 

     Defendant JCP&L moved for summary judgment and the trial court granted it, finding plaintiffs' expert issued a net opinion on the question of JCP&L's duty to inspect customer owned electrical equipment.  The trial court next found plaintiffs failed to make any showing on the question of duty, warranting summary judgment.

     Plaintiffs appealed, contending the trial court erred by barring the expert's opinion and granting summary judgment dismissing plaintiffs' various theories which supported the proposition that there is an existing duty on the part of JCP&L to inspect customer owned and maintained equipment.  Plaintiffs further argued that if such a duty did not already exist, the severe nature of the superstorm and the JCP&L's "knowledge" that an electrical inspection may have been negligently performed at the fire origin site, supported the imposition of an enhanced duty to re-inspect the work of state-licensed municipal inspectors before restoring power.

     The court held that:  the trial court engaged in a proper exercise of discretion when it barred plaintiffs' expert testimony; public utility JCP&L had no duty to inspect the privately-owned electrical equipment of a commercial businesses as a pre-condition to restoring power.  The court therefore affirmed the trial court's order.

Finding no reason to treat impermissibly suggestive events during trial preparation differently from other suggestive identification procedures, the Court extends the relevant principles in Henderson to trial preparation sessions. Witnesses who have made a prior identification should not be shown photos of the defendant during trial preparation -- neither new photos of the defendant for the first time nor, absent good reason, the same photos they previously reviewed. If a party can demonstrate a good reason to show witnesses a photo of the defendant they previously identified, the party must prepare and disclose a written record of what occurred. If, however, a witness has not previously identified a suspect, investigators can conduct an identification procedure during pretrial preparation in accordance with Henderson. A record of the procedure should be created and disclosed under Rule 3:11. Here, to determine the admissibility of the identification evidence, the Court remands to the trial court to conduct a hearing under United States v. Wade, 388 U.S. 218 (1967), and develop a more complete factual record.

In this case of first impression, the court addressed the disclosure of a body worn camera (BWC) video statement recorded pursuant to the Body Worn Camera Law (BWCL), N.J.S.A. 40A:14-118.3 to -118.5, under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access. The recorded statement was made by a father, a plaintiff in the action, who had alleged sexual misconduct perpetrated against his special needs minor son by a relative. Law enforcement determined there was insufficient probable cause to charge.
The court concluded plaintiffs' argument that the BWCL's exemption provision, N.J.S.A. 40A:14-118.5(l), abrogates OPRA's exemptions was without merit. The court further concluded OPRA's exemption, N.J.S.A. 47:1A-9(b), applied to preclude disclosure of the BWC recording because our case law has long-established that information received by law enforcement regarding an individual who was not arrested or charged is confidential and not subject to disclosure. See N. Jersey Media Grp., Inc. v. Bergen Cnty. Prosecutor's Off., 447 N.J. Super. 182, 204 (App. Div. 2016). A review of the plain language of the BWCL's inspection provision, N.J.S.A. 40A:14-118.5(k), which provides that a review of a BWC recording is subject to OPRA, demonstrated the four exemptions listed in N.J.S.A. 40A:14-118.5(l) are in addition to OPRA's exemptions. Further, reading OPRA in pari materia with the BWCL demonstrated the Legislature did not intend to preclude the application of OPRA's exemptions to BWC recordings.
The court further rejected plaintiffs' argument they were entitled to the BWC recording under the common law right of access. The court concluded the common law right of access did not compel release of the BWC recording because under the balancing of interests factors established by the Supreme Court in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), law enforcement's and the individual's interests in confidentiality outweigh the public's and plaintiffs' interests in disclosure.
Therefore, the court affirmed the judge's order that plaintiffs were not entitled to disclosure of the BWC recording under either OPRA or the common law right of access.

STATE TAXATION – EARNED INCOME TAX CREDIT – GROSS INCOME TAX – FILING STATUS
Tax Court:  Doreen A. Scott v. Dir., Div. of Tax’n; Docket No. 010435-2022, opinion by Cimino, J.T.C., decided December 22, 2023.  For plaintiff – Doreen A. Scott, pro se.; for defendant – Michelline Capistrano Foster, Deputy Attorney General (Matthew J. Platkin, Attorney General of New Jersey, attorney).

Held:  In this challenge to the Director’s denial of the Earned Income Tax Credit (EITC), Ms. Scott filed her tax returns as head of household.  Her husband, Robert Scott, filed as single.  Since the Scotts are married and living together, Ms. Scott cannot file as head of household and Mr. Scott cannot file as single.  Instead, their tax status is married, either joint or separate.  The Director selected married-separate which maximizes the State’s recovery.  The Scotts want married-joint which reduces, but does not eliminate, the EITC. 

The Director argues that taxpayers must file a married-joint federal return to qualify for the credit.  The court rejects this contention.  Further, barring any specific statutory prohibition, married taxpayers are entitled to select whether they want a tax status of joint or separate.  An incorrect selection of tax status, such as head of household or single, does not preclude a married-joint return, nor allows the Director to impose married-separate status.  The Scotts are entitled to the EITC, albeit somewhat reduced.

(25 pages)
 

This matter presents a question of first impression concerning the rights and responsibilities of New Jersey gun permit applicants under the Second Amendment to the United States Constitution as recently interpreted by the United States Supreme Court in N.Y. State Rifle & Pistol Assoc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022).    Petitioner appeals the denial of his application for a Firearms Purchaser Identification Card (FPIC) and a permit to purchase a handgun (PPH).  He raises several contentions, including a challenge to the constitutionality of a statute that requires denial of an FPIC/PPH application if it includes any knowingly false information, N.J.S.A. 2C:58-3(c). 

Bruen adopted a new test for resolving Second Amendment challenges, requiring modern regulations be consistent with this Nation's tradition of firearms regulation as shown by a well-established and representative historical analogue.  The court upholds the constitutionality of the falsification disqualification provision even though there appears to be no historical analogue for it.  Bruen acknowledged the constitutionality of "shall-issue" licensing regimes, which require gun permit applicants to file an application that prompts a background check.  Truthfulness on an application is an integral part of the background investigation process acknowledged in Bruen.  The falsification disqualifier safeguards the integrity of the licensing system without imposing additional substantive limits on who can purchase a firearm. 

The court further notes the plain text of the Second Amendment does not cover lying on an application form.  Because that conduct is not protected by the Second Amendment, the court concludes its regulation is not subject to the new "analogical" paradigm. 

The court also rejects petitioner's contention the falsification disqualifier applies only to material falsehoods.  Relatedly, the court rejects petitioner's contention the falsification disqualifier does not apply in this case because he retracted the false statement in his application during the Law Division hearing.  Petitioner's admission at the hearing that he had, in fact, been treated by a psychiatrist came too late, precluding the licensing authority from conducting a follow-up investigation before the hearing. 

Because the falsification disqualification provision categorically requires denial of petitioner's application, the court chooses not to address petitioner's facial and as-applied challenges to the trial court's alternative determination that issuance of an FPIC and PPH "would not be in the interest of public health, safety or welfare" under N.J.S.A. 2C:58-3(c)(5).