Opinion Summaries

        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.

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.

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.

     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).

In this appeal, the court addressed the novel issue of whether N.J.S.A. 18A:16-6 allows school board employees to wait until the final disposition of a civil or administrative action filed against them before seeking defense costs and indemnification from a school board.  The court concluded an employee cannot wait until the action is completed and must provide the school board with reasonable notice after the initiation of the proceeding.  The court observed the procedure under N.J.S.A. 18A:16-6.1 is distinguishable, which provides that an employee cannot seek reimbursement of defense costs and indemnification until the conclusion of a criminal or quasi-criminal action. 

Petitioners sought reimbursement of attorney fees and costs from the Trenton Board of Education following the favorable resolution of an administrative action against vice principal, Maria Azzaro, stemming from alleged improper grading practices and other improprieties.  The court affirmed the Commissioner of Education's final agency decision denying petitioners' request and held that bringing an action under N.J.S.A. 18A:16-6 twelve years after the initiation of an administrative action was not reasonable under the facts of the case.

These two consolidated appeals by codefendant brothers in an armed robbery case concern a surveillance video recorded at the crime scene.  The key approximately six-second portion of the video shows three men, two of whom were allegedly armed, escorting the victim behind a deli moments before he was robbed.  The State contended the culprits in the video were the two brothers and their father.  The video was played without objection during the trial and the State's closing argument.

During its deliberations, the jury requested that the video be shown again multiple times, in slow motion and with pauses.  Over defense counsel's objection, the trial judge granted the jury's requests, and the videos were replayed in the courtroom under the judge's supervision.  On appeal, defendants argue the slow-motion video replays were unduly prejudicial, citing research showing that such slow-motion replays can increase juror perceptions of an actor's intentionality.

In this opinion of first impression, the court holds that, subject to offsetting concerns of undue prejudice, surveillance video footage may be presented to jurors during a trial and in summation in slow motion or at other varying speeds, or with intermittent pauses, if the trial court in its discretion reasonably finds those modes of presentation would assist the jurors' understanding of the pertinent events and help them resolve disputed factual issues.

The courts further holds—again subject to offsetting concerns of undue prejudice—that trial judges in their discretion may grant a jury's requests during deliberations to replay the videos in such modes one or more times, provided that the playbacks occur in open court under the judge's supervision and in the presence of counsel.

Going forward, the court offers several non-exclusive factors to assist judges when considering whether to allow surveillance videos to be shown in varying speeds or with intermittent pauses during the trial and summations, and on a jury's request during deliberations.  The court further recommends that the Model Criminal Jury Charge Committee consider crafting an instruction to guide jurors when surveillance videos are presented in such modes.

Other issues raised on appeal are addressed in the unpublished portion of this opinion.

 The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Smith’s opinion.  The Court agrees with the Appellate Division’s assessment that petitioner was never eligible for the exemption under N.J.S.A. 52:14-17.28d(b)(3) and that correcting the erroneous exemption was therefore proper.  Neither petitioner’s subsequent service nor his purchase in 2013 of four years of military service credit could change the fact that he did not meet the bright line drawn by the Legislature by June 28, 2011.  The Court also agrees with the Appellate Division’s determination that it was not necessary to reach the issue of equitable estoppel, and it offers additional comments on that point. 

 The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Gilson’s opinion. 

In this medical malpractice action, plaintiff, as administratrix ad prosequendum for the estate of decedent, sued a nursing facility and a hospital alleging negligent care that resulted in pressure wounds and, ultimately, decedent's physical decline and death.  Plaintiff asserted direct claims of administrative negligence against both facilities as well as claims based on vicarious liability for nursing malpractice.  Plaintiff served a single affidavit of merit ("AOM") executed by a registered nurse who opined that the nursing home, the hospital, and members of their nursing and nursing administrative staff deviated from the applicable standards of care.  The AOM did not distinguish between the nursing staffs at the separate facilities and did not name any individual nurses.

The trial court conducted two Ferreira conferences.  Defendants objected to the AOM because the nurse who executed it was not qualified to render an opinion as to direct administrative negligence claims against the facilities and the AOM did not identify any individual nurses for whom the facilities could be held vicariously liable.  Plaintiff did not seek to conduct any pre-AOM discovery and declined the opportunity to serve a supplemental AOM.  Defendants moved to dismiss for failure to serve an appropriate AOM, and the trial court dismissed the complaint on that basis.  Plaintiff subsequently settled her claims against the hospital.  On appeal, plaintiff abandoned her direct administrative negligence claim against the nursing home and proceeded based only on vicarious liability.

The court affirmed, concluding the AOM was not sufficient to support plaintiff's vicarious liability claim because it indiscriminately combined the nursing staffs of two separate facilities and did not identify any individual nurses.  The court also concluded plaintiff's claim was in essence an administrative negligence claim because it was based on the nursing home's systemic failure to provide adequate care rather than a claim based on the negligence of any individual nurses.

         In this appeal, the court considers whether a non-resident, religious organization is subject to personal jurisdiction in New Jersey related to allegations of sexual abuse of a child in New Jersey by a priest of the religious organization.  Plaintiff D.T. alleges that Michael McCarthy, a former Catholic priest, sexually abused him in New Jersey in 1971.  At that time, plaintiff was fourteen years old, and McCarthy was serving as a priest and teacher in the Archdiocese of Philadelphia (the Archdiocese).  Plaintiff appeals from an order dismissing his claims against the Archdiocese for lack of personal jurisdiction.  Because there are no facts establishing that the Archdiocese purposefully availed itself of any benefits in or from New Jersey related to McCarthy's alleged abuse of plaintiff, the court affirms.

In this appeal, the court considers whether a non-resident, religious organization is subject to personal jurisdiction in New Jersey related to allegations of sexual abuse of a child in New Jersey by a priest of the religious organization.  Plaintiff alleges that Father John Butler, a Catholic priest, sexually abused him from approximately 1995 to 1998, when plaintiff was approximately nine to twelve years old.  At that time, Butler was serving as a priest in New Jersey, and the Diocese of Richmond, Virginia (Richmond) had encouraged and allowed Butler to go to New Jersey to serve as a priest, knowing that Butler had sexual propensities towards children.

Richmond appeals from an order finding that it was subject to specific personal jurisdiction in New Jersey related to Butler's actions in New Jersey.  Because the facts establish that Richmond purposefully availed itself of the benefits of allowing Butler to go to New Jersey to serve as a priest, the court holds that there is specific personal jurisdiction over Richmond and affirms.