NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-1407-25
MICHAEL GIAMMARINO and ROSEANN GIAMMARINO,
Plaintiffs-Respondents,
v.
DIRECTOR, DIVISION OF TAXATION,
Defendant.
______________________________
NEW JERSEY OFFICE OF LEGISLATIVE SERVICES and GABRIEL R. NEVILLE, ESQ.,
Appellants.
______________________________
Argued April 14, 2026 – Decided August 25, 2026 Before Judges DeAlmeida and Torregrossa-O'Connor.
On appeal from an interlocutory order of the Tax Court of New Jersey, Docket No. 001040-2024.
Steven Siegel argued the cause for appellants (Cullen & Dykman LLP, attorneys; Leon J. Sokol, of counsel and on the briefs; Steven Siegel, on the briefs).
Reuben Muller argued the cause for respondents Michael Giammarino and Roseann Giammarino (Cole Schotz PC, attorneys; Lauren M. Manduke and Julie A.
Ficks, of counsel and on the brief).
Jennifer Davenport, Attorney General, attorney for Director, Division of Taxation (Anthony D. Tancini, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM On leave granted, non-parties New Jersey Office of Legislative Services (OLS), and its Legislative Counsel, Gabriel R. Neville, appeal from the November 10, 2025 Tax Court order denying, in part, their motion to quash a subpoena seeking the production of documents and communications relating to the July 1, 2018 enactment of a statute increasing the gross income tax (GIT) marginal tax rate on income over $5 million beginning January 1, 2018. We affirm substantially for the reasons stated by Tax Court Judge Joshua D. Novin in his comprehensive November 10, 2025 written decision.
I.
On February 8, 2018, Assembly Bill No. 3088 (A-3088) was introduced in the General Assembly. The bill proposed amendments to N.J.S.A. 54A:4-7,
A-1407-25
3
a provision of the Gross Income Tax Act (GIT Act), N.J.S.A. 54A:1-1 to -12-6, relating to the New Jersey earned income tax credit program (EITC), and did not propose an increase in the GIT marginal tax rate. At the time A-3088 was introduced, two bills pending in the Senate also proposed statutory amendments to the GIT Act relating to EITC. Neither Senate bill proposed an increase in the GIT marginal tax rate. On April 5, 2018, another bill was introduced in the Senate proposing GIT Act amendments relating to the EITC. That bill also did not propose an increase in the GIT marginal tax rate.
On May 8, 2018, plaintiffs, a married couple, then New Jersey residents, engaged in two commercial transactions involving the sale of their interest s in Ferraro Foods, Inc. As a result of the transactions, plaintiffs realized capital gains of approximately $316 million.
On June 18, 2018, A-3088 and the three bills pending in the Senate were combined under A-3088, and the bill was revised. After the revision, A-3088 proposed several amendments to the GIT Act. Those proposals included an increase in the deduction for local property taxes, amendments related to the EITC, and amendments relating to the taxation of investment management services. The revised A-3088 did not propose an increase in the GIT marginal tax rate. On June 21, 2018, the revised A-3088 passed the General Assembly
A-1407-25
4
and the Senate. The bill was passed as a component of the State's Fiscal Year (FY) 2019 budget.
On June 30, 2018, Governor Murphy conditionally vetoed A-3088. In a statement accompanying the conditional veto, the Governor stated he "had some problems with the revenue side of the Legislature's original [FY] 2019 budget." Governor's Recommendations for Reconsideration Statement to Assemb. Comm. Substitute for Assemb. Bill No. 3088 (June 30, 2018). The Governor returned A-3088 to the Legislature for reconsideration with what he described as "a modest increase in the income tax for multi-millionaires to ensure that all New Jerseyans begin to pay a fair share to support important investments like those included in this bill." Ibid. The Governor proposed amending N.J.S.A. 54A:2-1, a provision of the GIT Act, to increase the GIT marginal tax rate on income over $5,000,000.
At the time of the conditional veto, the highest GIT marginal tax rate for married individuals filing a joint tax return for tax years beginning on or after January 1, 2004, on taxable income over $500,000 was "$27,807.50 plus 8.970% of the excess over $500,000.00." N.J.S.A. 54A:2-1(a)(5) (2017). The Governor proposed an amendment to add an additional GIT marginal tax rate for married couples filing a joint return for tax years beginning on or after January 1, 2018,
A-1407-25
5
on income over $5,000,000 of "$431,457.50 plus 10.75% of the excess over $5,000,000.00." N.J.S.A. 54A:2-1(a)(6).1 On June 30, 2018, the General Assembly passed the Governor's proposed amendments to A-3088. On July 1, 2018, the Senate passed the Governor's proposed amendments to A-3088.
On July 1, 2018, the Governor approved the amended A-3088. L. 2018, c. 45 (Chapter 45). The law took effect immediately and applies to all income earned in the tax year beginning January 1, 2018, thereby capturing the capital gains plaintiffs realized from the May 8, 2018 transactions. L. 2018, c. 45, § 12.
The OLS is an agency of the Legislature established "to aid and assist the Legislature in performing its functions . . . ." N.J.S.A. 52:11-55. Among other statutory responsibilities, the OLS is to "[p]rovide, upon request, legal, fiscal, research, information and administrative services and assistance for the Legislature, its officers, committees, commissions, members and staff." N.J.S.A. 52:11-58(b)(1).
1 The Governor also proposed amendments increasing the GIT marginal tax rate for married individuals filing separately, and taxpayers with other filing statuses. Those amendments, which were enacted by the Legislature, are not before the Tax Court.
A-1407-25
6
OLS is statutorily authorized to issue fiscal notes associated with the enactment of legislation. N.J.S.A. 52:13B-6 provides:
Whenever any bill is introduced in either the Senate or General Assembly . . . the bill shall be immediately reviewed by the Legislative Budget and Finance Officer [(LBFO)] in the [OLS]. If, upon that review, the [LBFO] determines that the bill may increase or decrease expenditures or increase or decrease revenues of the State . . . the [LBFO] shall immediately forward a request for a fiscal note to the Director of the Division of Budget and Accounting [(DDBA)] in the Department of the Treasury.
The DDBA thereafter forwards the request for a fiscal note to the agency required to carry out the purposes of the bill, if enacted. N.J.S.A. 52:13B-7(a). The appropriate agency within twenty business days prepares and returns to the DDBA a fiscal note "containing the most accurate estimate possible, in dollars, concerning the amount by which expenditures or revenues will be increased or decreased for the State . . . ." N.J.S.A. 52:13B-7(b). Within five business days after receiving the fiscal note, the DDBA returns the fiscal note to the LBFO with his or her notes regarding its accuracy. N.J.S.A. 52:13B-7(c). The LBFO may add his or her own comments with respect to the accuracy of the fiscal note. N.J.S.A. 52:13B-8.
When the LBFO
A-1407-25
7
has not received a fiscal note from the [DDBA] by a date consistent with legislative consideration, the [LBFO] shall cause a legislative fiscal estimate to be produced by the [OLS] as soon as practicable. The legislative fiscal estimate shall contain the same information as would be included in a fiscal note.
[N.J.S.A. 52:13B-9.]
Notably, when no fiscal note has been received by the LBFO, the legislative fiscal estimate produced by the OLS must contain the statement: "This legislative fiscal estimate has been produced by the [OLS] due to the failure of the Executive Branch to respond to our request for a fiscal note." Ibid.
When the LBFO has a complete fiscal note or legislative fiscal estimate, he or she transmits it to the first-listed sponsor of the bill, who may object to the fiscal note. N.J.S.A. 52:13B-10. After three days, the LBFO "shall cause the fiscal note or legislative fiscal estimate to be printed and promptly made available through the [OLS] to all members of the Legislature and to the general public." N.J.S.A. 52:13B-11.
No fiscal note concerning the amended A-3088 was generated prior to the bill's enactment. Instead, on September 28, 2018, almost three months after A- 3088 was signed by the Governor, the OLS produced a legislative fiscal estimate for the legislation. The legislative fiscal estimate stated in its summary that due to the "Higher Tax Rate on Income over $5 Million," there would be "State A-1407-25
8
Revenue Increases" in fiscal year 2019 of "$293,700,000 to $312,000,000." Legis. Fiscal Estimate to Assemb. Comm. Substitute for A. 3088 at 1 (Sep. 28, 2018). The fiscal estimate further stated:
OLS estimates that increasing the marginal [GIT] rate on income over $5 million from 8.97 percent to 10.75 percent may yield between $293.7 million and $312.0 million in additional State revenue in FY 2019. The Executive estimates a $280.0 million FY 2019 revenue gain. The OLS notes that incomes and tax liabilities for taxpayers at very high levels of income are volatile and subject to significant changes from year to year.
[Id. at 1-2.]
The OLS addressed the source of information on which it based its legislative fiscal estimate:
The Executive has not submitted a formal, written fiscal note for this bill. However, information provided informally by the Executive indicated that the Department of the Treasury projected that the bill would increase FY 2019 State revenue collections by a net $156.8 million.
The 10.75 percent [GIT] rate on taxable income exceeding $5 million would raise an estimated $280.0 in FY 2019: $255.0 million from the annualized impact of the new rate and $25.0 million in nonrecurring revenue attributable to the retroactive application of the tax rate increase to January 1, 2018. That revenue gain would be partially offset by a combined $123.2 million [GIT] revenue loss from the following initiatives: (1)
increase the maximum property tax deduction from $10,000 to $15,000, $82.0 million; (2) expand the
A-1407-25
9
EITC, $27.2 million; and (3) establish the child and dependent care tax credit, $14.0 million. The Department of the Treasury did not specify the methods and data underlying its estimates.
The Executive did not forecast a FY 2019 [GIT]
and corporation business tax revenue impact for the bill provisions related to the taxation of certain investment management services income because the enactment of the provisions would be contingent on Connecticut, Massachusetts, and New York enacting into law legislation having the identical effect and because litigation may further delay the entering into effect of the provisions.
[Id. at 3.]
In addition, OLS noted with respect to its estimates of revenue from the increase in the GIT marginal tax rate:
To estimate these amounts, the OLS used tax year 2015 data from the Statistics of Income published annually by the Department of the Treasury. The OLS determined the aggregate gross income in the new tax bracket for full-year resident taxpayers with incomes above $5.0 million, adjusted that amount for the value of certain credits and deductions, estimated the amount of taxable income by affected non-full-year resident filers that will be subject to the higher tax rate, and applied the new incremental tax rate to the estimated income in the new tax bracket by full-year and non-full-
year tax return filers. For the lower bound of the range, the OLS assumed that revenues will increase by 3 percent per year starting in tax year 2016. For the upper bound, the OLS assumed that revenues will grow by 5 percent annually starting in tax year 2016.
A-1407-25
10
The OLS then allocated the tax year figures by fiscal year. The first fiscal year to realize additional tax revenues, FY 2019, receives 100 percent of the tax year 2018 impact plus an estimated 15 percent of the tax year 2019 impact from taxpayer withholding and payments between January 2019 and June 2019, providing a revenue bonus that fiscal year only. . . .
The OLS notes that incomes and tax liabilities for taxpayers at very high levels of income are subject to significant volatility from year to year because high-
income taxpayers are more dependent on income sources that are more susceptible to changes in the economy, such as capital gains, employment bonuses, and certain typers of business income.
[Id. at 3-4.]
On October 15, 2019, plaintiffs filed a joint tax year 2018 resident GIT return reporting net gain or income from the disposition of property of $309,888,583. See N.J.S.A. 54A:5-1(c). They remitted tax of $431,457.50 plus 10.75% on the amount of their income in excess of $5,000,000.
On October 7, 2020, plaintiffs filed an amended tax year 2018 resident GIT return seeking a refund of $5,518,184 "based upon the retroactive application of a 10.75% rate to [p]laintiffs' income in excess of $5 million." The requested refund amount reflects the difference between the 8.97% marginal tax rate for income over $5,000,000 that was in effect at the time of the May 8, 2018
A-1407-25
11
transactions and the 10.75% marginal tax rate for income over $5,000,000 enacted on July 1, 2018, retroactive to January 1, 2018.
On June 20, 2021, after an administrative appeal, the Director, Division of Taxation (Director) denied plaintiffs' refund claim.
Plaintiffs thereafter filed a complaint in the Tax Court challenging the Director's denial. They allege the retroactive application of the increased GIT marginal tax rate to the capital gains they realized in May 2018, when the marginal tax rate was nearly two percent lower, was manifestly unjust, see Oberhand v. Dir., Div. of Tax'n, 193 N.J. 558 (2008), discriminatory, and violated their due process and equal protection rights under the United States and New Jersey Constitutions. In addition, plaintiffs alleged by applying the GIT marginal tax rate increase retroactively, the State violated the square corners doctrine, requiring reversal of the Director's refund denial. See Residuary Trust v. Dir., Div. of Tax'n, 28 N.J. Tax 541, 546 (App. Div. 2015).
Plaintiffs alleged when they and their professionals planned the sale of their interests in Ferraro Foods, no public legislative information existed projecting revenue from an increase in the GIT marginal tax rate on income exceeding $5 million for tax year 2018 or suggesting any such increase, if enacted, would have been applied retroactively. They allege they had flexibility
A-1407-25
12
in planning the transactions and had they been notified of the potential retroactive increase in the GIT marginal tax rate, they would have completed the sales prior to January 1, 2018.
On or about March 7, 2025, plaintiffs' counsel issued a non-party subpoena duces tecum and ad testificandum to Neville. The subpoena sought testimony from Neville and the production of twelve categories of non-public documents and communications in the OLS's possession. The four categories of requested documents and communications at issue are:
1. All documents that refer or relate to any communications regarding [p]laintiffs.
....
10. All documents and communications that refer or relate to the OLS estimate that the increase in the marginal tax rate for income over $5 million from 8.97 percent to 10.75 percent, as enacted in (L. 2018, c. 45 § 10, A. 3088), may yield additional [GIT] revenue of $293.7 million to $312.0 million in [FY] 2019.
Reference is made to the Legislative Fiscal Estimate, page 3.
11. All documents and communications that refer or relate to the OLS estimate of additional [GIT] revenue that is derived from the 2015 data from the Statistics of Income published annually by the Department of the Treasury. Reference is made to the Legislative Fiscal Estimate, pages 3-4.
A-1407-25
13
12. All documents and communications that refer or relate to [y]our statement in the Legislative Fiscal Estimate that "incomes and tax liabilities for taxpayers at very high levels of income are subject to significant volatility from year to year because high-income taxpayers are more dependent on income sources that are more susceptible to changes in the economy, such as capital gains, employment bonuses, and certain types of business income." Reference is made to the Legislative Fiscal Estimate, page 4. 2
OLS moved to quash the subpoena, arguing the documents and communications requested were protected from disclosure by the Speech or Debate Clause of the State Constitution. See N.J. Const. Art. IV, § 4, ¶ 9. Plaintiffs opposed the motion, arguing the Speech or Debate Clause does not provide an absolute privilege, but protects only documents and communications that are an integral part of the deliberative and communicative process related to the enactment of legislation. They argued the privilege does not apply to documents and communications casually or incidentally related to legislative affairs, but not part of the legislative process. Plaintiffs urged the court to direct the OLS to produce a Vaughn index detailing the responsive documents and
2 We do not address the remaining eight categories of documents and communications demanded in the subpoena or plaintiffs' request to depose Neville. The Tax Court granted OLS's motion to quash those discovery requests and plaintiffs did not cross-move for leave to appeal from that aspect of the court's decision.
A-1407-25
14
communications in OLS's possession and the basis for any assertion of privilege. See Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973).
On November 10, 2025, Judge Novin issued a well-reasoned thirty-two-
page written decision granting in part, and denying in part, OLS's motion. The judge found the subpoena sought documents and communications that fell within the broad scope of permissible discovery. He noted plaintiffs' manifest injustice claim will require the court to "weigh 'the public interest in the retroactive application of the statute against the affected party's reliance on previous law, and the consequences of that reliance.'" (quoting Oberhand, 193 N.J. at 572). Judge Novin concluded the information sought by plaintiffs was reasonably calculated to lead to the discovery of admissible evidence concerning the public interest in and necessity for retroactive application of the statute.
Turning to the asserted privilege, the judge examined the Speech or Debate Clause, which provides:
Members of the Senate and General Assembly shall, in all cases except treason and high misdemeanor, be privileged from arrest during their attendance at the sitting of their respective houses, and in going to and returning from the same; and for any statement, speech or debate in either house or at any meeting of a legislative committee, they shall not be questioned in any other place.
[N.J. Const. art. IV § 4, ¶ 9.]
A-1407-25
15
Judge Novin explained the important role of the Speech or Debate Clause in the structure of our constitutional separation of powers:
[T]he Speech or Debate Clause "implicates policy considerations that bear on the very foundation of constitutional government." State v. Twp. of Lyndhurst, 278 N.J. Super. 192, 201 (Law Div. 1994).
The Speech or Debate Clause fulfills the critical role embraced by our Constitution to fortify the separation of powers established by ensuring the integrity of our Legislature and that its functions can be independently undertaken.
It "protect[s] the integrity of the legislative process by preventing the 'intimidation of legislators by the Executive [Branch] and accountability before a possibly hostile judiciary.'" Gilbert v. Gladden, 87 N.J.
275, 292 (1981) (Pashman, J., dissenting) (quoting Gravel v. United States, 408 U.S. 606, 617 (1972)). To achieve this end, the Speech or Debate Clause "assures that the speech and conduct of legislators acting within the sphere of legitimate legislative activity will not be made the basis for a civil judgment." Teamsters Loc[.]
97 v. State, 434 N.J. Super. 393, 428 (App. Div. 2014)
(citing Gilbert, 87 N.J. at 292-93) [(Pashman, J., dissenting)]. The overarching "'purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process.'" []Twp. of Lyndhurst, 278 N.J.
Super. at 200 (quoting United States v. Brewster, 408 U.S. 501, 524 (1972)).
[(first and second alterations in original).]
A-1407-25
16
Judge Novin set forth the test established by the Court in Gilbert to determine if the Speech or Debate Clause privilege applies. That is, for the privilege to apply, an activity must be:
an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.
[Gilbert, 87 N.J. at 293 (Pashman, J., dissenting)
(quoting Gravel, 408 U.S. at 625).] 3
Thus, the judge identified two factors that must be established for the privilege to apply. The document or communication must be an exchange of information that: (1) is an integral part of the deliberative and communicative process members of the Legislature engage in during legislative and committee proceedings; and (2) relates to legislation that is proposed or pending before the Senate or Assembly or a matter within their constitutional jurisdiction. In addition, the judge noted our courts have interpreted legitimate legislative activity as "generally done in [the Legislature] in relation to the business before
3 We applied the analysis in Justice Pashman's dissent when interpreting the Speech or Debate Clause in Teamsters, 434 N.J. Super. at 428.
A-1407-25
17
it." State v. Gregorio, 186 N.J. Super. 138, 153 (Law Div. 1982) (quoting United States v. Helstoski, 442 U.S. 477, 488 (1979)). Judge Novin explained:
Notably, "the immunity of the Speech [or] Debate Clause is not absolute." De Vesa v. Dorsey, 134 N.J.
420, 458 (1993) (Handler, J., dissenting); see also Hutchinson v. Proxmire, 443 U.S. 111, 127 (1970)
(concluding that "nothing in history or in the explicit language of the [Speech or Debate] Clause suggests any intention to create an absolute privilege from liability.
. . ."). Thus, not every action or activity undertaken by a legislator, nor the legislator's status, are sufficient to convey immunity. Simply because a member of the Legislative Branch engages in certain conduct or activities does not intrinsically render them legislative.
See Gravel, 408 U.S. at 625 (concluding that "[m]embers of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies – they may cajole, and exhort with respect to the administration of a federal statute – but such conduct, though generally done, is not protected legislative activity.") . . . .
[(second and third alterations in original).]
Judge Novin rejected plaintiffs' argument he had authority to direct the OLS to prepare and produce a Vaughn index for all materials in its possession responsive to the subpoena. He held,
[r]ather, the documents, communications, and information sought that are unambiguously deliberative and communicative legislative process materials are constitutionally shielded under the Speech or Debate Clause from the court's authority. The Speech or Debate Clause affords the Legislative Branch immunity
A-1407-25
18
from furnishing those documents, including producing a privilege log of the documents and/or materials that are entitled to such immunity protections.
The judge continued:
However, to the extent that any information and/or materials demanded from the OLS fall outside the sphere of legitimate legislative activity (information that involves political conduct, communications with non-legislative bodies not related to the business before it, and/or communications with private entities or individuals), the court may demand that such information be produced or direct that a privilege log or "Vaughn index" be provided to enable the parties and/or the court to evaluate the potential applicability of the Speech or Debate Clause protections. The court finds that such reasonable incursion, requiring an agency of the Legislative Branch to produce a privilege log for materials that may not be entitled to protection under the Speech or Debate Clause, does not violate our state's core constitutional separation of power[s] principles.
With respect to paragraph 1 of the subpoena, Judge Novin found it was "not clear how communications, if any, referencing the plaintiffs were or could be viewed as an integral part of our [L]egislature's deliberative and communicative process in amending" the GIT Act, "or was related to any business before the Legislature." The judge, therefore, denied the OLS's motion to quash paragraph 1 of the subpoena. The court ordered the OLS to produce the documents responsive to paragraph 1, along with a Vaughn index of any
A-1407-25
19
responsive documents it believes are protected from disclosure by the Speech or Debate Clause. The judge further ordered that within thirty days of production of the Vaughn index, the OLS could renew its motion to quash paragraph 1 of the subpoena under the Speech or Debate Clause. If the OLS is not in possession of any documents responsive to paragraph 1, the judge directed the OLS to submit an affidavit detailing its search efforts.
With respect to paragraphs 10, 11, and 12 of the subpoena, the judge found, although the LBFO requested a fiscal note from the Executive Branch for A-3088, no fiscal note was generated by the Department of the Treasury prior to A-3088 being enacted. In addition, Judge Novin found the legislative fiscal estimate issued by the OLS three months after A-3088 was enacted "offers no explanation how [the] OLS 'informally' became aware of or acquired [the] projection from the Department of the Treasury, or whether any public data or information was received by the OLS from the [E]xecutive [B]ranch supporting this informal communication."
The judge found some of the documents and communications sought in paragraphs 10, 11, and 12 of the subpoena squarely fell within the protection of the Speech or Debate Clause. Judge Novin explained
insofar [as] paragraphs 10, 11, and 12 of the [s]ubpoena seek documents and/or communications: (i) that refer
A-1407-25
20
or relate to how the OLS estimated that the increased tax rate under A. 3088 will yield additional revenue of $293.7 million to $312.0 million in the 2019 [FY]; (ii)
that refer or relate to how the OLS estimated additional gross revenue derived from Statistics of Income published annually; and (iii) that refer or relate to the OLS'[s] statement in the [l]egislative [f]iscal [e]stimate regarding the volatility of the revenues, all that information was generated as part of [the] OLS'[s]
statutory legislative function and thus, is within the legitimate sphere of legislative activities. Accordingly, it is immune from production under the Speech or Debate Clause.
However, the judge found to the extent paragraphs 10, 11, and 12 seek documents and communications that comprise the information "provided informally" by the Executive Branch to the OLS referenced in the legislative fiscal estimate, that information may fall outside the sphere of legislative activity protected by the Speech or Debate Clause. The judge found
the motion record . . . is devoid of any evidence demonstrating how the [E]xecutive [B]ranch "informally" communicated the information to the OLS, what . . . form this informal communication comprised, or whether any of this information was publicly available. The court questions whether this information was communicated through public speeches, press releases, or public comments to the legislation.
Judge Novin continued, "[t]he court is unable to unequivocally conclude that any informal communication of this information by the [E]xecutive [B]ranch
A-1407-25
21
agency to the OLS falls within the scope of legislative activity and is immune from production."
The judge, therefore, ordered the OLS to produce the documents responsive to paragraphs 10, 11, and 12 of the subpoena to the extent th ey comprise the information provided informally by the Executive Branch to the OLS as stated in the legislative fiscal estimate for A-3088, but granted the motion to quash with respect to any other information sought in those paragraphs. The judge ordered the OLS to produce a Vaughn index of any documents responsive to paragraphs 10, 11, and 12, as limited by the judge, the OLS believes are protected from disclosure by the Speech or Debate Clause. The judge further ordered that within thirty days of production of the Vaughn index, the OLS could renew its motion to quash paragraphs 10, 11, and 12 of the subpoena under the Speech or Debate Clause. A November 10, 2025 order memorialized the judge's decision.
We subsequently granted OLS and Neville's motion for leave to appeal the November 10, 2025 order.
OLS and Neville argue the Tax Court erred because: (1) all of the documents and communications sought by plaintiffs relate to the enactment of Chapter 45 and are, therefore, protected from disclosure by the Speech or Debate
A-1407-25
22
Clause; (2) the distinctions it drew between the documents and communications it found protected by the Speech or Debate Clause and those it found subject to disclosure are not supported by the record or controlling precedents; (3) compelling the OLS to produce a Vaughn index for documents and communications in its possession it believes are protected from disclosure by the Speech or Debate Clause would create an undue burden by establishing a precedent applicable to tens of thousands of bills pending in the Legislature each year; and (4) its decision undermines the constitutional separation of powers, see N.J. Const. Art. III, ¶ 1.
II.
Rule 4:10-2 governs the broad scope of discovery. Under Rule 4:10-2(a), "parties may obtain discovery regarding any non-privileged matter that is relevant to the subject of a pending action or is reasonably calculated to lead to the discovery of admissible evidence." In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 82 (2000). Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "New Jersey's discovery rules are to be construed liberally in favor of broad pretrial discovery." Payton v. N.J. Tpk. Auth., 148 N.J. 524, 535 (1997).
A-1407-25
23
The court on motion, "may quash or modify the subpoena or notice if compliance would be unreasonable or oppressive . . . ." R. 1:9-2. We review a decision on a motion to quash a subpoena for an abuse of discretion. In re Subpoena Duces Tecum, 214 N.J. 147, 162 (2013). "A court abuses its discretion when its 'decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis. '" State v. Chavies, 247 N.J. 245, 257 (2021) (quoting State v. R.Y., 242 N.J. 48, 65 (2020)). However, to the extent the court's decision is based on the interpretation of law and the legal consequences that flow from established facts, such as the application of a legal privilege, our review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995).
Having reviewed OLS and Neville's arguments in light of the record and applicable legal principles, we affirm the November 25, 2025 order substantially for the reasons stated by Judge Novin in his thorough and well-reasoned written decision. We add a few brief comments.
It is well established the Speech or Debate Clause does not provide the Legislature an absolute privilege from judicial action. The clause applies only to documents and communications that are an integral part of the deliberative
A-1407-25
24
and communicative process related to the enactment of legislation. We are not, therefore, persuaded by OLS's argument that all documents and communications related to Chapter 45 are immune from production in a civil suit. To the extent OLS is in possession of documents and communications concerning plaintiff s or received informally from the Executive Branch after Chapter 45 was enacted that are not an integral part of the deliberative process, such information is subject to disclosure under discovery rules applicable to civil litigation.
The motion judge did not mistakenly exercise his discretion when he found it was possible OLS was in possession of documents and communications concerning plaintiffs or received informally from the Executive Branch after Chapter 45 was enacted which were not an integral part of the deliberative process. It is difficult to conceive of circumstances in which plaintiffs were mentioned in documents and communications relating to the enactment of Chapter 45, unless their $316 million in income in May 2018 was considered by the Legislature when it determined whether to retroactively apply the increased marginal tax rate in the statute. In addition, OLS identified information on which it relied for its legislative fiscal estimate after Chapter 45 was enacted as having been received "informally" from the Executive Branch. That description
A-1407-25
25
presumably has meaning and suggests an exchange of information outside official channels. 4 We see no basis, therefore, for OLS's claim that being compelled to produce a privilege log for the documents and communications responsive to subpoena paragraphs not quashed by the motion judge violates the Speech or Debate Clause or the separation of powers. Because the Speech or Debate Clause does not have blanket applicability, the production of a privilege log is not an undue burden on the Legislature. It is, instead, a routine method of identifying documents and communications the OLS believes are protected from disclosure because they fall within the defined scope of the clause. OLS will have an opportunity to present to the Tax Court any argument it may have with respect to the production of individual documents and communications identified in a privilege log it believes are protected from disclosure. Nothing in the record suggests the Legislature receives a burdensome amount of
4 The motion judge did not address whether the Speech or Debate Clause applies to documents and communications relating to legislation that has already been enacted. Here, OLS produced its legislative fiscal estimate approximately three months after Chapter 45 became law. If the information OLS informally received from the Executive Branch was transmitted after Chapter 45 was enacted, it is not clear that information, or the late production of the legislative fiscal estimate, was an integral part of a deliberative process which had already concluded.
A-1407-25
26
discovery demands arising from civil litigation or that the production of a Vaughn index in appropriate circumstances unduly burden the Legislature in carrying out its constitutional duties.
Affirmed.
A-1407-25