Opinion Summaries

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.

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 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).

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.

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.

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 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.

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.

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

In this appeal, the panel considered whether a tenant, exercising under its lease a contracted right of first refusal to adopt terms of a purchase contract for premises, is obligated to pay a commission to a broker who secured the prospective buyer for the landlord/seller.

The broker secured a prospective purchaser, who orally represented it would enter into a written commission agreement, separate and apart from the purchase contract, to pay the broker 1.5% of the purchase price. When the tenant exercised its option to purchase the premises, no commission agreement was included in the sales contract.

Because there was no contractual relationship, either express or implied, between the broker and the tenant, nor any other basis to impose an obligation to pay the commission, the panel affirmed the trial court's grant of summary judgment for the tenant. The panel also affirmed the dismissal of the tenant's counterclaim against the broker.

The trial court prohibited the admission of defendant's two prior drunk driving convictions, which the State sought to admit to prove defendant acted recklessly in his pending trial on the charge of first-degree vehicular homicide while intoxicated within 1000 feet of a school. On interlocutory appeal, the Appellate Division affirms due to the statutory inference of recklessness that arises when driving drunk, N.J.S.A. 2C:11-5(a), as well as the deferential review standard applied to a N.J.R.E. 404(b) decision.

In this appeal, we hold: (1) the Division of Child Protection and Permanency (Division) established all of the criteria for termination of parental rights in N.J.A.C. 30:4C-15.1(a), where defendant father essentially abandoned the child to the care of others, was deported and failed to maintain contact with the child for several years, the child formed a bond with her foster parent, and the Division's expert testified that the child would suffer severe and enduring harm if removed from the foster home, which defendant could not ameliorate; (2) the Vienna Convention of Consular Relations, April 23, 1963, 21 U.S.T. 77, did not require consular notice in this matter or the prior child protection proceedings because the child was a citizen of the United States; and (3) defendant father failed to establish that he was denied the effective assistance of counsel in the guardianship action.

These four related appeals from three vicinages concern efforts by plaintiffs (a nonprofit advocacy organization for disabled students, and the mother of a disabled student in the Camden City Public Schools) to obtain from several school districts copies of settlement agreements and records reflecting the provision of special services to other qualified students. The respective school districts resisted disclosure, citing statutory and regulatory provisions that generally safeguard the privacy of students in their records. The four cases generated conflicting decisions in the Law Division.

Plaintiffs' requests for records raise several novel issues of access under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, the New Jersey Pupil Records Act ("NJPRA"), N.J.S.A. 18A:36-19, and the Federal Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g. The requests also implicate administrative regulations adopted under both the NJPRA and FERPA.

The panel holds that the respective plaintiffs in the Hillsborough, Parsippany-Troy Hills, and Cherry Hill cases are entitled to appropriately-redacted copies of the requested records, provided that on remand those plaintiffs either: (1) establish they have the status of "bona fide researchers" within the intended scope of N.J.A.C. 6A:32-7.5(e)(16); or (2) obtain from the Law Division a court order authorizing such access pursuant to N.J.A.C. 6A:32-7.5(e)(15). The school districts shall not turn over the redacted records until they first provide reasonable advance notice to the affected student's parents or guardians.

We remand the Camden City case for further proceedings with respect to requested documents that also could refer to other students, but affirm the trial court's grant of access concerning records that exclusively mention the requestor's child.

Plaintiffs entered into health club contracts, which charged various forms of fees including late fees, collection administrative fees, in addition to dues. Plaintiffs filed suit asserting the form of their membership contracts and the fees defendant charged violated RISA, the Consumer Fraud Act (CFA), the Health Club Services Act (HCSA), and the Truth in Consumer Contract, Warranty, and Notice Act (TCCWNA). Plaintiffs sought class certification for all persons who entered into a membership agreement with defendant. Plaintiffs were denied class certification and defendant was granted summary judgment dismissing plaintiffs' complaint.

The Retail Installment Service Act (RISA), N.J.S.A. 17:16C-1(b) to -50, is a remedial act regulating charges associated with contracts entered into in New Jersey between a retail seller and a retail buyer evidencing an agreement to pay the retail purchase price of goods or services, which are primarily for personal, family or household purposes, or any part thereof, in two or more installments over a period of time. RISA applies to security agreements, chattel mortgages, conditional sales contracts, or other similar instruments, and any contract for the bailment or leasing of goods. RISA is to be construed liberally in favor of the consumer. Notwithstanding, the panel concluded health club contracts are not covered by RISA because they do not fall within the definition of "other similar instruments" of the sort contemplated by the statute.

In this declaratory judgment action, the court addresses legal issues of property damage coverage under a Commercial General Liability ("CGL") insurance policy. The coverage issues stem from lawsuits brought by a condominium association and unit owners to remediate construction defects within a residential building. The insured, an HVAC subcontractor, worked on the roof and elsewhere in the building. The defects concern the progressive infiltration of water within the building.

After the contractor was named as a third-party defendant in the underlying construction defect cases, it sought a defense and indemnity from the insurers that had issued CGL policies to it over successive policy periods. The trial court granted summary judgment to Selective, one of those insurers, finding that the property damage had already manifested before its policy period commenced.

In reversing summary judgment and remanding for further development of the record, the panel held: (1) a "continuous trigger" theory may be applied to third-party liability claims involving progressive damage to property caused by an insured's allegedly defective construction work; and (2) the "last pull" of that trigger occurs when the essential nature and scope of the property damage first becomes known, or when one would have sufficient reason to know of it.

The panel rejected the subcontractor's novel argument that the last pull of the trigger does not occur until there is proof that "attributes" the property damage to faulty conduct by the insured.

The court reverses defendant's drug possession conviction and holds that when the State refuses a defense attorney's diligent pre-indictment request to preserve and produce recordings, which the State or its law enforcement agencies created and are directly relevant to adjudicating an existing charge, the defendant is entitled to an adverse inference charge. In this drug case, despite the attorney's timely preservation request, the State allowed the automatic erasure of a booking room video that likely recorded the search of defendant, which allegedly uncovered the drugs he was charged with possessing. The court also holds the court erred by allowing the State to introduce evidence that defendant gave a false name during the earlier traffic stop.