Opinion Summaries

The Court reverses the grant of summary judgment to defendants and remands the matter for further proceedings, finding that the equities militate in favor of permitting a facially meritorious action to proceed here. The Court declines to approve recourse to a voluntary dismissal without prejudice under Rule 4:37- 1(b) as an appropriate avenue for addressing failures to comply with the affidavit of merit requirement, including when a minor is involved. Rather, the Court will require modification of the Judiciary’s electronic filing and notification case management system to ensure that, going forward, necessary and expected conferences are scheduled to enhance parties’ compliance with requirements under the Affidavit of Merit Statute, in furtherance of the statutory policy goals.

The Disclaimer is void because it is contrary to the public policy expressed in sections 39 and 40 of the Workers’ Compensation Act.

Defendants appeal from an April 27, 2016 judgment of guardianship terminating their parental rights to their three biological children. Because the trial court erred in giving preclusive effect, in the guardianship proceeding, to the prior finding of abuse and neglect based upon the burden shifting provisions of Title Nine, the panel reverses and remands for a new guardianship trial. N.J.S.A. 9:6-8.46(a)(2) provides proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child. In such circumstances, the burden shifts to those who have had access to the child to prove non-culpability. Title Thirty contains no such similar burden shifting provisions. Therefore, the trial court's decision to give the Title Nine fact-finding preclusive effect in the Title Thirty proceedings, shifting the burden to defendants and requiring them to rebut the presumption of abuse and neglect through their own evidence, created an unconstitutional asymmetry that the panel considers plain error on a critical question of law warranting reversal.

Appellant was a volunteer firefighter when she was injured responding to a fire. She was unemployed at the time of the injury and received no wages. Following a hearing, a Workers' Compensation judge denied appellant's application for temporary total disability benefits. The panel agreed that payment of temporary disability benefits depended upon proof of lost wages. Temporary disability is intended to replace lost wages. Without proof of lost wages, appellant had no entitlement to temporary disability benefits under the Workers' Compensation Act.

After a streetlight fell on the corner of plaintiff's property, an employee of the defendant electric company disconnected the power, removed the light pole, pushed the wires into a hole in the ground, and covered the hole with dirt. He placed over the hole an orange safety cone, which disappeared within a few days. White markings painted by the hole faded in the ensuing weeks.

Nearly two months later, plaintiff inadvertently stepped into the hole and injured herself, resulting in lumbar and knee surgeries. She brought a negligence case against the utility for creating and failing to timely repair a dangerous condition. A jury found the utility primarily at fault in causing the accident. It awarded plaintiff damages, which were reduced by her own percentage of fault. The utility appeals and asserts multiple trial errors.

On remand, and ten years after a serious car accident, defendants raised for the first time the affirmative defenses of N.J.S.A. 52:17C-10 (9-1-1 dispatcher immunity) and N.J.S.A. 59:5-4 (failure to provide police protection). We concluded that the judge erred by (1) failing to resolve whether defendants waived the new defenses; and (2) dismissing the complaint relying on Royster v. N.J. State Police, 439 N.J. Super. 554 (App. Div. 2015), aff'd as modified, 227 N.J. 482 (2017) (dismissing a claim under the Americans with Disabilities Act).

Plaintiff, a tax sale certificate holder, appealed an order which permitted a party to intervene in this foreclosure action and redeem based on its having obtained title pursuant to its profit-sharing agreement with the property owners. The intervenor agreed to pay the owners $10,000 for clear title and, by way of the profit-sharing agreement, promised to: pay all outstanding property taxes; satisfy a $70,000 judgment against one of the owners; allow the owners free use and occupancy until the property's eventual sale; and consented to a thirty-five/sixty-five split of the net proceeds, with the owners receiving the larger share. Plaintiff argued the consideration received by the owners was illusory or was only nominal because the profit-sharing agreement called for reimbursement to the intervenor of its payment of the taxes, of the $70,000 judgment, and of all repairs made to the premises. In affirming, the court held that the owners received more than nominal consideration – thereby satisfying N.J.S.A. 54:5-89.1's requirements – and rejected plaintiff's contention that Simon v. Cronecker, 189 N.J. 304 (2007) imposed a blanket prohibition on all profit-sharing agreements in this setting.

In these two appeals from orders of detention pursuant to the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26 (the CJRA), the Law Division revoked defendants' pretrial release for violations of conditions.

In White, although defendant received notice that the hearing on the State's motion to revoke would occur on a different date, the judge refused to grant a short extension of the hearing when defendant appeared in court so defendant could call a witness and produce other evidence. The panel concluded the judge mistakenly exercised his discretion and reversal was required because the denial of the adjournment was prejudicial to defendant's ability to rebut the State's proffered evidence of a violation.

In Bostic, defendant was immediately arrested when he reported for the first time to Pretrial Services. The State alleged defendant violated conditions of his release, specifically leaving his home and entering a "victim exclusion zone" for one minute. The Law Division judge revoked defendant's release.

The panel reversed, concluding there was no authority for defendant's immediate arrest, because he committed no new offense and the court had issued no warrant for his arrest based upon alleged violations of conditions. The panel also concluded the State failed to prove by preponderance of the evidence that defendant knew the parameters of the victim "exclusion zones," or that his failure to remain in his home, when specifically ordered to report to Pretrial Services, was a violation of his conditions of release.

Appellant, an inmate at the New Jersey State Prison, challenged the final decision of the Department of Corrections (DOC), which reiterated DOC's informal policy (the calling policy) prohibiting inmates from making phone calls to cell phones and "non-traditional telephone service numbers." He asserted the calling policy violated the United States Constitution and DOC's informal implementation of the calling violated the Administrative Procedures Act, N.J.S.A. 52:14B-1 to -31 (the APA).

The court concluded DOC's adoption and implementation of the calling policy violated the rulemaking procedures required by the APA. The court recognized the likely disruption that immediate invalidation of the policy would cause, and left the policy in place, pending DOC's commencement of rulemaking without delay.

Defendant appeals from his convictions and sentence asserting several arguments, which challenge evidentiary determinations by the trial judge. Specifically, defendant characterizes the errors as: (1) the exclusion of defense expert testimony evaluating the reliability of voice identification evidence and discussing factors affecting the reliability of what was termed "earwitness" identification; (2) the admission of what he characterizes as the State's prejudicial, irrelevant gang expert evidence; and (3) the admission of the State's misleading expert testimony pertaining to the chemicals Toluene and D5 found at the scene.

The court affirmed the evidentiary rulings, noting the judge fully determined the limits of admissibility of all evidence. When deeming certain subjects inadmissible, the trial judge's detailed findings including: the expert was found not to be qualified to address the area; the testimony risked misleading the jury; the concepts related to matters of common sense; and the opinion tended to tread on the jury's credibility determinations.

Judge Higbee dissents rejecting the limitations placed on the proffered evidence.

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in the per curiam opinion.

In this case, we reverse defendant's conviction for operating a motor vehicle while his license was suspended for a second or subsequent driving while intoxicated (DWI) conviction, N.J.S.A. 2C:40-26(b). While defendant's license was suspended for a second DWI conviction when the police stopped him, before trial he successfully petitioned for post-conviction relief (PCR). The order granting PCR vacated his prior DWI convictions and remanded both matters to the municipal court for new trials. On remand, the municipal court dismissed one DWI charge, and defendant pled guilty to the other.

As a result of defendant's PCR and remand proceedings, at the time of his trial for violating N.J.S.A. 2C:40-26(b), he had only one prior DWI conviction. Accordingly, the State could not prove an element of the crime charged — a second DWI conviction — a prerequisite to the mandatory 180-day incarceration period imposed by N.J.S.A. 2C:40-26(b) and (c).

The State appeals a special probation Drug Court sentence imposed under N.J.S.A. 2C:35-14 following defendant's conviction for second-degree leaving the scene of a fatal accident, N.J.S.A. 2C:11-5.1, third-degree causing death while driving with a suspended or revoked license, N.J.S.A. 2C:40-22(a); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a). The State contends the court erred in its assessment of the factors required for imposition of a special probation sentence under N.J.S.A. 2C:35-14.

The court concludes it is without jurisdiction to hear the appeal, finding the State lacked authority to appeal because the sentence is not illegal and N.J.S.A. 2C:35-14 does not authorize the State to appeal a special probation sentence. The court rejects the contention that N.J.S.A. 2C:44-1(f)(2) authorizes the State's appeal because defendant received a probationary sentence for a second-degree crime that is otherwise subject to a presumption of imprisonment under N.J.S.A. 2C:44-1(d). The court determines that the State's appeal authorized by N.J.S.A. 2C:44-1(f)(2) is limited to challenges to sentencing determinations under N.J.S.A. 2C:44-1(d), and does not apply to sentencing decisions made under N.J.S.A. 2C:35-14.

In this breach of contract case, the Law Division judge dismissed with prejudice plaintiff's complaint by imposing the ultimate discovery sanction provided in Rule 4:23-5. This court reversed and remanded this matter for further proceedings because the party who filed the motion and the Law Division judge who imposed the sanction failed to follow the procedural safeguards codified in Rule 4:23-5. The attorney representing the moving party did not disclose to the motion judge that he had received the outstanding discovery which formed the basis of the sanction a month before the judge dismissed plaintiff's complaint with prejudice. This wholesale disregard for the due process protections embodied in Rule 4:23-5 can occur only when the trial court fails to perform its basic gatekeeping function.

The State of New Jersey appealed from the sentencing judge's order denying its request to enter, as part of the plea agreement reached between it and defendant, a civil consent judgment for restitution due the victims of defendant's theft, and from an order denying reconsideration. The court affirmed, concluding the Legislature did not confer statutory authority on a sentencing judge to enter a civil consent judgment in favor of a crime victim.

Plaintiff homeowners association filed a complaint against the defendant developer alleging various claims on its own behalf and on behalf of the homeowners. The homeowners had agreed when purchasing their properties from the developer to arbitrate any disputes; the association had entered into no such agreement with the developer. The trial court granted the developer's motion to compel arbitration of all the disputes, and the association appealed. The court remanded with a direction that plaintiff file an amended complaint that separated the claims the association brought on its own behalf from those it brought on behalf of the homeowners so the trial court might better ascertain which claims were subject to the arbitration agreement and which were not.

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in the per curiam opinion.

On leave granted, we reverse an April 10, 2015 Law Division order granting partial summary judgment in favor of plaintiffs, limited liability companies that qualify as urban renewal entities under the Long Term Tax Exemption (LTTE) Law, N.J.S.A. 40A:20-1 to -22. The City of Jersey City (City) claims that plaintiffs attempted to circumvent a tax abatement agreement by improperly changing their allowable profit rate so as to avoid paying the City any excess net profit. Plaintiffs' complaint sought a declaratory judgment against the City declaring that the parties' financial agreements incorporate future changes to the LTTE law, such that plaintiffs may calculate their "allowable profit rate" in accordance with the 2003 amendments to the LTTE Law. The City argued that the motion court misinterpreted the 2000 and 2001 financial agreements, warranting reversal. We find it contrary to fundamental public financing concepts for the Legislature to adjust the terms of municipal tax abatement contracts after the fact. See N.J.S.A. 40A:20-2, N.J.S.A. 40A:12A-2. We further find the Legislature did not intend to do so in the 2003 LTTE amendments.

We issued our unpublished opinion on July 22, 2016. At the direction of the Court, we now publish our opinion.

We hold that a municipal health ordinance that imposes time limitations on indoor smoking in a tobacco retail establishment is not superseded by the New Jersey Smoke-Free Air Act (the Smoke-Free Act), N.J.S.A. 26:3D-55 to -64. Appellants operated a cigar emporium where customers could purchase and smoke cigars and pipe tobacco. The store qualified as a "tobacco retail establishment" under the Smoke-Free Act. Thus, the Smoke-Free Act did not prohibit indoor smoking in such an exempt establishment.

The Township of West Caldwell, where the store operated, passed a health ordinance that limited indoor smoking to pre-purchase sampling not to exceed two minutes. Appellants challenged that ordinance arguing that the Smoke-Free Act superseded it. Appellants also argued that the ordinance was really a land use ordinance that did not apply to their pre-existing non-conforming use.

The Smoke-Free Act states that it supersedes "any other statute, municipal ordinance and rule or regulation adopted pursuant to law concerning smoking in an indoor public place or workplace . . . ." The provision, however, identifies three exceptions, which include: (1) "where smoking is prohibited by municipal ordinance under authority of [N.J.S.A.] 40:48-1 or 40:48-2[;]" (2) where smoking is prohibited "by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire or protecting public health[;]" and (3) "provisions of a municipal ordinance which provide restrictions on or prohibitions against smoking equivalent to, or greater than, those provided under this act." Here, the municipal ordinance was within the ambit of all three exceptions.

We also hold the ordinance is a valid municipal health ordinance and it is not a land use ordinance. Accordingly, we affirm the dismissal of appellants' action in lieu of prerogative writs, and the denial of their request to invalidate the municipal smoking ordinance.

An inmate serving a sentence for marijuana trafficking, filed a petition with the Director of the Division of Consumer Affairs seeking to have marijuana rescheduled from a Schedule I controlled dangerous substance to Schedule IV. The Director denied the petition, interpreting N.J.S.A. 24:21-3(c) as requiring that New Jersey to adhere to the federal Controlled Substances Act, 21 U.S.C.A. § 812(c), which lists marijuana as a Schedule I substance.

The court granted leave to appear as amicus curiae to L.B. on behalf of G.B., a minor child who takes medical marijuana to control epileptic seizures. When G.B.'s parents requested that the nurse at G.B.'s special education school administer her prescribed dosage of medical marijuana, the school refused citing marijuana's Schedule I classification which prohibits it on school grounds. G.B. was required to leave school at lunchtime to receive her medication and did not return to school, causing her to miss a half day of school each day. Amicus argued that the continued scheduling of marijuana as a Schedule I narcotic frustrates the purposes of the New Jersey Compassionate Use Medical Marijuana Act N.J.S.A. 24:6I-1 to 24:6I-16 and denies her the constitutionally protected right to a free and appropriate education.

The court found the Director erred in concluding that he lacked the authority to reclassify marijuana without a change in existing federal law and remanded the matter for a determination of whether marijuana has a high potential for abuse and, if so, whether that factor justifies continued classification as a Schedule I substance in the face of compelling evidence of accepted medical use and impediments to its legal use which may be attributable to its classification.

Judge Espinosa dissents, concluding that because the plain language of N.J.S.A. 24:21-3(c) requires the Director to adhere to federal schedules, his denial of the petition to remove marijuana from Schedule I was not arbitrary, capricious or unreasonable and should be affirmed. In addition, a review of extrinsic evidence, including New Jersey's legislative scheme and the federal Controlled Substances Act, 21 U.S.C.A. § 801 to § 904, support the conclusion that the Director lacks the discretion to change the classification of a controlled dangerous substance under the circumstances here.