*1 A.2d TWISS, PLAINTIFF-RESPONDENT, HOWARD S. v. STATE OF JERSEY, TREASURY, NEW DEPARTMENT OF THE OFFICE MANAGEMENT, OF FINANCIAL DEFENDANT-APPELLANT. Argued February 1991—Decided June 1991. *3 Haría, William Attorney General, Assistant argued the for appellant cause Tufo, Attorney J. Del General of {Robert Jersey, New attorney; Michael Clancy, Attorney R. Assistant General, counsel; Krenkowitz, Robert Deputy P. Attorney General, brief). on the argued
A. John respondent Falciani the for cause {Falciani Fletcher, Adler, attorneys; brief). & Louis on the opinion
The of the Court was delivered POLLOCK, J. defendant,
The issue is
Jersey Department
whether
New
(the
Treasury
Treasury),
plaintiff,
must disclose to
Howard
Twiss,
S.
is
in
engaged
who
locating
business of
the owners
accounts,
only
unclaimed bank
not
the names and addrеsses
owners,
money
but also the
in
amount
the accounts.
On cross-motions
summary judgment,
for
the Law Division
granted
Treasury’s
motion
complaint.
to dismiss the
The
Appellate
N.J.Super.
Division reversed. 239
(1990). granted the State’s We (1990), judgment of and now reverse the 2d 395 585 A. N.J. Division. that of the Law and reinstate Appellate Division Act, Property Unclaimed that under Uniform We hold obliged (UUPA), Treasury is not to -109 46:30B-1 a third bank account to the amount in an unclaimed to disclose Twiss, in the has no beneficial interest who party, such as give Legislature intended to We hold further account. governs the Trea so that it effect to the retroactive concerning all such information sury’s obligation to disclose accounts, when created. no matter
-I- thirty million custody of some Treasury takes year Each accounts, million five dollars in unclaimed bank about dollars owners, leaving net for the State pays it to the account which The accounts million dollars. affected twenty-five of some year. per thousand several hundred number in states addition his business several pursues Twiss only the name Treasury not Jersey. He seeks from the New owner, the amount but also address of the account information, to find the he then tries Armed this account. with owner, offers to tell locates the Twiss Once he owner. in consideration of a fee varies the account owner about can locate the percent, plus expenses. Twiss thirty from ten Because of in the account. knowing the amount without owner *4 fee, finding the in of the his incentive contingent the nature the amount. owner increases with noted, the financial benefit Appellate Division As the injects ambiva of unclaimed accounts from the escheat State discovery the owners. in the of interest lence into the State’s considering the When 571 A .2d333. N.J.Super. See owner, State, and a third the account competing interests of the balance, Twiss, our own our role is not to strike party such as to but ascertain the by balance that has been struck the Legislature. decision,
After the Law Division rendered its Legislature the statute, enacted the UUPA. In that took April which effect on 14, 1989, the only declared that the name and owner, address of the account but not the amount the account, should be disclosed to with someone no beneficial interest in the account. 46:30B-76. N.J.S.A. Because the UUPA had not been enacted when the Law Division rendered decision, its that court based its decision on the then-existing statutory regulatory and scheme. decision,
At the time of the Law Division
N.J.S.A. 17:9-22
-25(a)
governed the
pertaining
disclosure
information
deposits.
statutes,
bank
repealed by
Those
since
the
46:30B-109, required public
disclosure
name, address, and the amount
on
deposits.
due
unclaimed bank
Treasury regulation, however,
A 1963
permitted only persons
a “legitimate
with
beneficial interest” to examine reсords of
Treasury
escheated accounts. The
regulation
enacted
un
authority granted
der
to it
Order
Executive
Number
promulgated by
Hughes pursuant
then-Governor Richard J.
Law,
Right
permitted
to Know
which
the Governor to
except certain
from
records
disclosure under
law.
See
N.J.S.A. 47:1A-2. The
agency
executive order authorized
public scrutiny.
heads
exclude certain
from
records
Relying
Treasury
regulation,
on
the Law Division held
legitimate
that because Twiss had no
beneficial interest
welfare of the owners of the
protection
accounts оr
property rights,
their
inspect
he was not entitled to
the records
Appellate
reversed,
escheated accounts. The
Division
ruling
regulation
was inconsistent with N.J.S.A. 17:9-
-25(a),
Right
Law,
22 and
to Know
and Executive Order
N.J.Super.
Number 9. 239
address
owners
355-56,
2d
also found that
at
571 A. 333. It
bank accounts. Id.
therefore,
and,
not
apply retroactively
does
the
does not
UUPA
356-57,
Anticipating
govern
at
-II-
claims, we first
addressing the merits of Twiss’s
Before
question
prior
or the
consider the threshold
whethеr the UUPA
considering whether
statute
governs that claim. “When
law
quest
applied prospectively
retroactively,
or
our
is to
should be
State,
Legislature.”
Dep’t
ascertain
intention
Corp., 94
Protection v.
N.J.
468 A.2d
Envtl.
Ventron
(1983).
Generally,
prospective application
stat
courts favor
Gibbons,
515, 521,
(1981).
.2d80
432 A
utes. Gibbons v.
N.J.
government give
suggests
prior
Fundamental fairness
may
of a
so citizens
conform their behavior
notice
statute
80;
Singer,
Id.
.2d
N.
before its enforcement.
at
A
Statutory
41.02
on
Construction
Sutherland
Statutes
§
(4th
1986) (Sutherland).
application
ed.
at 341
Retroactive
feelings
seсurity
past
tends to
transactions.”
also
“disturb
Moreover,
Sutherland,
ap
supra,
41.04
348.
retroactive
§
process rights.
may
due
plication
implicate
of a statute
Ven
498-99,
tron,
The favoring prospective rule application, however, is only one of statutory interpretation. purpose Its is to aid the court in legislative the search for intent. Rothman v. Roth man, 219, 224, (1974). 65 N.J. 320 A .2d496 Courts should not * * * apply the rule mechanistically. Rather, “[wjhere super vening clearly compel considerations contrary determination, a this, like all other statutory rules of give must construction!]] way.” Ibid. Legislature When the does not clearly express its give intent to a prospective application, statute a court must determine whether apply the statute retroactively. questions
Two
inhere in the determination whether a
apply
court should
a statute retroactively.
question
The first
is
whether the
give
intended to
the statute retroactive
application. Gibbons, supra,
522,
Courts will
retroactively
statutes
Legis
when the
expressed
intent,
lature has
its
explicitly
either
implicitly,
or
applied;
the statute should be so
when the statute is
curative; or when
expectations
the reasonable
of those affected
by the
application. Gibbons,
statute warrant such
supra, 86
522-23,
N.J. at
Contrary to the 333, examination of the a close 571 A.2d N.J.Super. to Legislature intended the UUPA reveals language of “compiled requirements property the UUPA’s include within * * * * * * under the to the Stаte turned over filed [and] * * *- predecessor [17],” Like the ibid. of Title provisions institu 17:9-22, requires financial statute, the UUPA N.J.S.A. containing information the Treasurer reports with tions to file including the name and address property, the unclaimed about in each account. N.J.S.A. and the amount depositor of the include UUPA, report must the initial Under the 46:30B-46. presumed aban have been property that would items of “all date of period preceding the effective during 10-year doned during that been in chapter chapter this had this as effect if added). provision (emphasis That рeriod.” 46:30B-5 N.J.S.A. affect the re that the UUPA legislative intent manifests the the effective decades before porting property abandoned of the act. date non-compliance are addition, penalties for
In UUPA prior Compare law. under the penalties harsher than report results in 46:30B-104, (willful to failure -105 N.J.S.A. (willful to failure fine) 17:9-22 $100-per-day with N.J.S.A. to the fine). reference Without $25-per-day report resulted
469 UUPA, provisions other amended N.J.S.A. clarify 46:30B-4 to its penalties intention the UUPA for non-compliance apply prospectively. should to Statement As- sembly Statement). Amendments S. {Assembly Legislature singled That the penalty provisions out the apply 46:30B-4 to prospectively suggests N.J.S.A. that it antici- pated application retroactive other of the sections of the act. purpose unify
The
of the
of unclaimed
law
property
Jersey
conform New
law to the law of other
jurisdictions,
46:30B-2,
applica
N.J.S.A.
also favors retroactive
Gibbons,
curative,
tion. Like the statute in
the UUPA is
reflecting
Legislature’s attempt
improve
existing
statutory
sense,
scheme.
N.J. at
property preexisting transferred funds are to satisfied be from the assets the UUPA fund. 46:30B-74. trust Thus, the affords UUPA uniform treatment to unclаimed bank *8 deposits, reported no matter when or under what law the banks of these the Treasury. existence funds to
Finally, application retroactive of the UUPA inter neither rights feres in unconstitutionally any with vested nor results injustice. legislation impairs manifest Retroactive that or de stroys right” may process the due clauses of “vested violate federal, 1, XIV, Constitution amendment or U.S. section state, 1, 1, paragraph N.J. Constitution article constitutions. 298, 304, Co., See v. 71 364 Panzino Continental Can N.J. however, (1976). legislation, gener .2dA 1043 Retroactive civil ally process “particular- does not due it results in violate unless
470 Ventron, supra, 94 consequences. ly oppressive” harsh and Applying retroactively 2d 150. the UUPA N.J. at 468 A. property rights owners of vested nor disadvan neither divests Sutherland, supra, tages preexisting relationships. See (rule favoring prospectivity applied so that 41.04 at § obligations do not interfere with contract or vested statutes laws, see, rights). prior property under the Unlike 17:9-20, property under the UUPA unclaimed e.g., N.J.S.A. State, remains in the owner. does not escheat but vested (June Judiciary 2093 Committee Statement S. Senate reprinted in 16, 1988), 46:30B-1, at 484-85. Furthermore, impaired right Twiss has no vested that is concept, in application. retroactive An elusive undefined constitutions, right” the federal and’state “vested encom both passes protection a fixed interest entitled to from state action. Rosenthal, Greyhound Pennsylvania Lines v. N.J. 102 A. 2d 587 384-85, (1954). Twiss offered no evidence that as Treasury is such a an “heir hunter” his access to records right.
Finally, perceive applying we no unfairness UUPA Nothing retroactively to Twiss’s claims. indicates that Twiss Indeed, prior relied to his detriment on the law. under regulation, received Treasury Twiss would not have even Thus, retroactive names and addresses of the account owners. right application deprive any does not Twiss of UUPA sum, possessed prior In we conclude that he to its enactment. decision, our the law effect at the time of Kruvant, supra, 82 N.J. See governs the case. A .2d 9.
-III- claims under the UUPA We now turn to the merit Twiss’s Right begin with the relevant and the to Know Law. We statute, provisions the Treasurer is of the UUPA. Under obliged deposits: to record information about bank
471
making
of
Before
funds
the UUPA Trust
the
deposit
any
[to
Fund],
[Treasur-
shall record the name and last known address of each
appearing
er]
person
the holder's
to be
to the
and
from
entitled
the name and last
reports
property
and with
known address of each insured
or annuitant
and
person
beneficiary
respect
policy
report
any
or
to each
contract
listed in the
insurance
of
number,
company,
company,
its
the
name
and the amount due.
of
However,
shall not
include in this record
information
[Treasurer]
any
[N.J.S.A.
deemed confidential under
46:30B-76.1.
record shall
avail-
The
be
]
[N.J.S.A.
for
able
at all rеasonable business hours.
public inspection
(emphasis added).]
46:30B-76
Appellate
interpreted
provision
require
The
Division
this
to
name,
address,
Treasurer to record the
last known
and amount
contracts,
only
due of not
funds due
policies
under insurance
or
deposits.
N.J.Super.
bank
but also unclaimed
571
plain
reading.
333. The
A.2d
words of
statute
belie
common,
specialized,
a
if
expression,
As
form of written
ordinary
plain meaning.
statutes should
accorded their
or
be
Inc.,
123, 128,
McCoy,
Kimmelman v.
Henkels &
108 N.J.
(1987);
Review,
A.2d
Mortimer
Board
v.
N.J.
of
(1985).
meaning
That conclusion
is confidential
contained in a bank account
amount of funds
Based on its conclusion
possession
of the bank.
when
46:30B-76,
law,
UUPA,
prior
and the
that
N.J.S.A.
both
17:9-22,
deposits, the
require
of unclaimed
disclosure
confiden
that such information is not
Appellate Division found
333. The court also
NJ.Super.
571 A.2d
tial. 239
account,
any
abandoning
depositors
waive
reasoned
relationship
Id. at
confidentiality in their
with the bank.
logical
is that
disagree. A more
rationale
Supporting that explanation legislative is the history of cer- tain UUPA, amendments to the which indicate Legisla- ture intended the amendments to “conform the bill many practices the current of the State Treasurer.” Assembly State- ment, supra, at 23. Before the enactment of the undisputed practice of the Treasurer was not to disclose the *11 amount due in abandoned accounts to heir hunters or other parties third with no interest in the deposits. That practice, as the affidavit of Mooney, supervisor Edward J. of Treasury, states, escheats with the inis reaction deceptive to and practices fraudulent of heir hunters in pursuing their business. From this we conclude Legislature, when enacting contemplated that such information would be only available to the apparent owners of the accounts. purposes
For the opinion, of this it is neither necessary nor prudent analyze to in detail the extent to which confidentiality circumscribes bank records. arguments Nor do we reach the advanced the State that bank records are vested with a right privacy. constitutional of merely We note adopt- that in ing the UUPA the considered the amount bank accounts to be confidential.
Moreover, both federal Jersey recognize and New law a obligation keep bank’s to confidential the financial information of its Right customers. The to Privacy (RFPA), Financial Act 3422, 12 U.S.C.A. 3401 to strictly government limits access § information contained in financial records. Because it covers only government information, аccess to financial RFPA does not strictly apply to language this case. legisla RFPA’s and however, history, tive demonstrate that bank records are confi may dential and that ordinarily banks not disclose them. Con gress following enacted RFPA the decision of the United States Supreme Miller, Court in 435, 440, United States v. 425 U.S. 71, (1976), held that 1622, which 1619, 48 L.Ed.2d 77-78
S.Ct. expectation privacy have no reasonable customers bank Justice, 882 Dep’t Young v. United States records. bank 1383, Cir.1989); Cong., 95th 2d (2d H.R.Rep. No. F. 2d Cong. in 1978 U.S.Code & (1978)(H.R.Rep.), reprinted Sess. regulate the Perceiving the need to 9306. Admin.News information, Congress enaсted financial government’s access to institutions from customers of financial “protect RFPA H.R.Rep., supra, at into their records.” intrusion unwarranted at Cong. Admin.News 1978 U.S.Code & reprinted in 9305. concern, prohibits congressional RFPA
Reflecting that of a any customer access to financial records government to such disclo- unless the customer consents financial institution warrant, sure, subpoena or a search government obtains request. 12 written U.S. government makes a formal or the circumscribing government access to strictly In 3402. C.A. § information, Congress acknowledged “the sensitive financial recognized “customers’ records” nature [financial] H.R.Rep., supra, right privacy” in such information. 33-34, Cong. & Admin.News reprinted in U.S.Code 9305-06. confidentiality in right Jersey similarly recognizes a
New
*12
Indeed,
the first
Chancery Court was
the former
bank records.
confidentiality
of
to address the issue
American court
Records, 1986 Ann.Surv.
Privacy
records.
Financial
bank
of
386,
Smith,
34
587,
N.J.Eq.
104
146 A.
Brex v.
Am.L.
594. See
court,
an
(Ch.1929).
Brex,
finding that banks have
In
secret, enjoined a
keep
records
implied obligation to
bank
examining
subpoena from
not obtained a
prosecutor who had
policе depart
Newark
of all members of the
all bank accounts
390-91,
The court reasoned
475
241,
(1887),
250
and Federal Trade Comm’n v. American
Co.,
298,
336,
Tobacco
264
44
(1924)).
U.S.
S.Ct.
L.Ed. 696
Jersey
New
courts
reasoning
have reaffirmed the
that
Brex
generally recognized obligation
“a
of confidentiality” exists
between a bank and its customers. Roth v. First Nat’l State
Bank,
N.J.Super. 280, 284-85,
(Aрp.Div.),
The
recognized
Division
implied duty
that an
exist,
confidentiality may
may
but concluded that
pre
courts
depositor
sume that the
consents to disclosure of information
about unclaimed property.
N.J.Super.
571 A. 2d
333. The
agrees
dissent
reasoning,
with this
theorizing that it
pragmatic
is “both
depositors
fair” to find that
impliedly
consent to disclosure. Post at
The Appellate Division is and the judgment of the Law Division is reinstated.
STEIN, J., dissenting. that the Uniform majority’s determination agree
I with Act) applied (UUPA should be Act or Property Unclaimed company part 917. I retroactively. Ante at 591 A .2d at require that the interprets it the Act to when with the Court treated as bаnk account be money in an abandoned amount in the business not ascertainable one and hence confidential Ante at .2d rightful 591 A tracking owner. down argument, informed the Court that At Twiss at 920. oral deposits is critical due in unclaimed bank to the amount access enterprise, explaining that an abandoned success of his amount of funds must contain a minimum account bank locating practice of profitable the to make labor-intensive order Thus, interpretation of likely majority’s result of heirs. encourage heir hunters to take their business Act will be to practical impact of that decision favors Jersey. The out of New treasury the tune of an of the State the fiscal interest —to .2d per year, see ante $25,000,000 591 A estimated locating the true owners public 914—over the interest Notwithstanding that the current condi unclaimed accounts. budgets on state economy heavy taken a toll tion of the has produces elsewhere, the Act that interpretation an here and scrutiny. a result bears careful such practice had been to disclose Treasurer’s many years, For only apparent оwn- in escheat records information contained hunters, from heir ostensi- that information ers and withhold defrauding the deceiving and bly prevent heir hunters from in 1989 for Legislature enacted UUPA public. The regulation of access to establishing comprehensive purpose of regulation provided for property, process and in the hunting. Specifically, heir hunters are engaged in heir of those agreements to locate abandoned entering into prohibited from period beginning year one before for the time bank accounts (nine years aftеr property to the State the holder delivers the abandoned) ending twenty-four months property is (twelve years after to the State property after the is delivered *14 abandoned). property Further, the is 46:30B-106. charge may greater heir hunters not a fee than twenty percent the value property of the recovered. Presumably, Ibid. the Legislature adopted safeguards regulate, those in order to not prohibit, hunting. the of heir business majority,
As by noted the the conflict in this case focuses on A, two sections of the UUP N.J.S.A. 46:30B-76 and -76.1. The
former directs the Treasurеr to
the name
“record
and last
apparent
known address” of the
owner of unclaimed bank
deposits
provide
public
and to
for the
inspection of that record.
provides
any
The latter
that
information “deemed confidential
any
Jersey
possession
under
New
or federal
in
law when
a
[of
remains confidential when
delivered
the Treasurer.
bank]”
Because the
regarded
bank-account balance was
as confidential
law,
under state
majority
and federal
the
construes those two
although
sections to mean that
and
name
address of the
disclosed,
may
owner
depositor
account
be
the amount due the
anof
abandoned bank account is
and
confidential
therefore not
public
471-473,
a
record. Ante
Only support two majori- theories could be advanced to interpretation ty’s statute. would One be that Legislature that account intended balances be withheld from heir hunters order advance the financial State’s interests defeat the rightful Obviously, interests owners. we imputing be self-serving should hesitant in so purpose. Singer, 2A N. Sutherland Statutes and Statu- Cf. 45.12, (Sands tory 1984) (noting Construction аt 54 4th ed. § “departure that from the literal of a construction statute is * * * justified produce when such a construction would an unjust result”). theory The other be that would the true of whom deceased or owners accounts—most are have long since forgotten that the accounts exist—and their heirs confidentiality an protecting have interest in of the account locating balances from heir hunters in the business those money. very proposition entitled to the The of that statement incongruity recognizing an demonstrates owner’s confi- account not knоwn to in the balance of an dentiality interest owner, when disclosure of the balance particularly by exist that the funds. The chance to recover might advance the owner’s argu the State’s Appellate Division observed weakness this ment, “implied depositor consent presuming disclosure, obviously be in the interest of would which deposit.” N.J.Super. at owner of an A .2d 333. *15 issue, of the Appellate Division’s construction
On and fair. We should not construe pragmatic statute is both confidentiality interest in the balances to mandate a statute the existence of which is unknown unclaimed accounts or their heirs. true owners Appellate Division. judgment
I would affirm opinion. joins this Justice CLIFFORD WILENTZ, Justice and remandment —Chief For reversal HANDLER, POLLOCK, O’HERN and Justices GARIBALDI—5. and STEIN—2.
For
CLIFFORD
affirmance —Justices