The Manifest Justice of the Manifest Injustice Doctrine: The Time Has Come to Invoke the Ex Post Facto Clause to Bar Retroactive Tax Increases


In Oberhand,[1] the New Jersey Supreme Court infused new vitality into the manifest injustice doctrine. The question remains, however, as to whether manifest injustice is a separate doctrine, as the plurality decision held or, rather, as Justice Barry Albin contends in his concurring decision, a proxy for a violation of constitutional rights to due process. In either case, however, there was an attempt by the New Jersey Supreme Court to do justice, which is, one hopes, the fundamental goal of all courts. As Alexander Hamilton said: “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.”[2]

Oberhand addresses whether New Jersey’s enactment of retroactive legislation, which decoupled certain New Jersey estate tax provisions from federal provisions increasing the amount of taxable estates, was manifestly unjust. On June 7, 2001, Congress increased the threshold of estate taxability from $675,000 to $1 million for decedents dying in 2002 and 2003. Although the New Jersey Legislature had six months prior to the time the federal provisions would have become effective to pass a decoupling provision, it failed to pass legislation until July 1, 2002. The legislation was made retroactive to January 1, 2002.

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