Opinion Summaries

The trial court did not err in the admission of the photographs, nor did the State commit reversible error when it commented on the defendant’s silence.

This case exemplifies an inadequate way for an employer to go about extracting its employees' agreement to submit to binding arbitration for future claims and thereby waive their rights to sue the employer and seek a jury trial.

The employer in this case emailed to its workforce what it called a "training module" (or "activity" or "course"). The module described the company's mandatory arbitration policy, as presented in a series of slides on computer screens. One screen provided employees with the opportunity to access a "Resource" link to the full text of the policy. In a separate email, the employer supplied a computer link to Frequently Asked Questions ("FAQs") concerning the policy.

On the third slide of the module presentation, the employees simply were asked to "acknowledge" it with the click of an electronic button. The module declared that if an employee did not click the acknowledgement, but continued to work for the company for sixty or more days, the employee would be "deemed" to be bound by the arbitration policy.

Although the arbitration policy is labeled an "agreement" and that word appears multiple times on the slides and within the linked policy, the module did not request employees to provide signatures conveying their agreement. Nor were the employees asked – within the four corners of the pivotal "click" box at the end of the presentation – to memorialize that they expressly agreed to the policy. They were only asked within the box to "acknowledge" it.

This oblique procedure does not yield the valid personal agreement of an employee to give up his or her statutorily protected rights to litigate claims against an employer in a public forum and seek a trial by jury. The procedure falls short of the requirements of New Jersey contract law, particularly the Supreme Court's longstanding precedent in Leodori v. CIGNA Corp., 175 N.J. 293, 303 (2003) (holding an employee's valid waiver of statutory rights, there in the context of an employer's binding arbitration policy, "results only from an explicit, affirmative agreement that unmistakably reflects the employee's assent") (emphasis added), as well as the Court's more recent opinion in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430, 447 (2014) (holding the words of an arbitration agreement "must be clear and unambiguous that a [person] is choosing to arbitrate disputes rather than have them resolved in a court of law") (emphasis added).

The primary question raised in this appeal is whether an appellant, who has served his sentence pursuant to the Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, can be compelled to undergo a psychological evaluation, pursuant to N.J.A.C. 10A:71-3.54(i)(3) and 10A:71-7.19A, for violation of certain conditions of parole supervision for life (PSL), and mandatory parole supervision (MPS), imposed outside the SOA.

The panel reverses the Board's decision in part, holding it cannot compel such an evaluation. Absent further comment by the Legislature, these regulations only apply to individuals who have been released on parole before completing their sentence.

Under the limited circumstances of this case, extraordinary circumstances existed justifying O’Donnell’s late filing.

The court reverses defendant's conviction of purposeful murder and related firearms offenses. The court concludes that defendant's trial was tainted by a detective's reference, in violation of a prior court ruling, to defendant's alleged gang membership and the presence of gangs in the area of homicide. The panel concludes that the court's curative instruction was insufficient to alleviate the prejudice caused by the detective's remarks.

Judge Ostrer wrote a separate, unpublished concurrence.

The so-called “arbitration agreement” within this consumer contract fails to support a finding of mutuality of assent to form an agreement to arbitrate. The provision’s language is debatable, confusing, and contradictory -- and, in part, misleading. The “arbitration agreement” is also obscure when this consumer contract is viewed as a whole. The provision does not fairly convey to an ordinary person that arbitration would be the required method of dispute resolution. Accordingly, this arbitration agreement is not enforceable.

The main issue before the court is whether a non-monetary class-action settlement is "fair and reasonable" to the class pursuant to Rule 4:32-2. The parties agreed to settle the matter for "Supplemental Disclosures" and attorneys' fees. Stockholders received no financial compensation. In the analysis, the court formally adopts the nine Girsh factors to determine whether to approve the non-monetary settlement. Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975).

Tax Court: Barbara J. Hertz v. Borough of Lincoln Park,, Docket No. 009897-2017; opinion by Bianco, J.T.C., decided January 8, 2019.or plaintiff – Barbara J. Hertz (pro se); for defendant – Jacquelin P. Gioioso (The Buzak Law Group, LLC, attorneys).

.Plaintiff, Barbara J. Hertz, appealed to the denial of her 2017 Farmland Assessment application on her property. Defendant, borough of Lincoln Park, sought affirmation of the denial by the Morris County Board of Taxation. For the reasons that follow, the court determined that plaintiff failed to establish that “not less than five acres of the property are . . . actively devoted to agricultural or horticultural use” as required for Farmland Assessment under N.J.S.A. 54:4-23.2. First, the court found that most of her alleged “crops” appear to be naturally occurring growth in a forest setting and determined that the haphazard and uncared for use of land does not necessarily qualify the land for farmland assessment. Second, the court determined that plaintiff failed to prove that the unused area of the Subject Property is “beneficial to the property” under N.J.A.C. 18:15-6.2. Third, the court determined that plaintiff’s land measurements were unreliable and unverifiable; and, her testimony was not credible, contradictory,and self-serving. Lastly, the court determined that the municipal tax assessor fulfilled his statutory obligation to address plaintiff’s application for Farmland Assessment. Therefore, the court affirmed the judgment of the Morris County Board of Taxation denying plaintiff’s 2017 Farmland Assessment application for the plaintiff’s property

Tax Court: Arthur G. Nevins, JR. and Amanda Nevins v. Dir., Div.of Taxation,Docket No. 013075-2015; opinion by Bianco, J.T.C., decided January 8, 2019. For plaintiffs – Arthur G. Nevins, Jr.(pro se); for defendant – Abiola G. Miles (Gurbir S. Grewal,Attorney General of New Jersey, attorneys). Plaintiffs, Arthur G. Nevins, JR. and Amanda Nevins, moved to annul defendant’s final determination with regard to their 2008 New Jersey gross income tax. They argued that the defendant failed to timely assess the tax within the three-year limitations period under N.J.S.A. 54A:9-4(a). Defendant, the Director of the Division of Taxation (“Director”), moved to dismiss the complaint with prejudice claiming that exceptions to the statute of limitations under N.J.S.A. 54A:9-4(c) apply. The court determined that the general three-year statute of limitations period is not implicated as the amount of tax voluntarily reported as due by plaintiffs on their self-processed return is assessed on the date of filing of the return. The court also determined that a notice of deficiency is not required to be issued for self-assessed taxes. Lastly, the court ruled that the Director had the authority to assess the plaintiffs’ 2008 gross income tax at any time under N.J.S.A. 54A:9- 4(c)(1)(C), because plaintiffs did not appropriately report the changes made by the Internal Revenue Service to the Division of Taxation according to N.J.S.A. 54A:8-7. Therefore, the court granted the Director’s motion for summary judgment to dismiss the complaint with prejudice and affirmed the Director’s final determination.

(1) The term “person” in section 35.1 includes not only ticket brokers and resellers, but also other individuals and entities with “access to tickets to an event prior to the tickets’ release for sale to the general public.” N.J.S.A. 56:8-35.1. (2(a)) The sale of tickets to winners of the NFL’s ticket lottery constitutes a “release for sale to the general public” within the meaning of section 35.1. (2(b)) The Super Bowl tickets sold to lottery winners were the only 2014 Super Bowl tickets designated by the NFL for “release for sale to the general public” within the meaning of section 35.1, however. The NFL’s distribution of other tickets to the 2014 Super Bowl to its teams, other selected individuals, and entities therefore does not constitute the unlawful withholding of more than five percent of “tickets to an event prior to the tickets’ release for sale to the general public” under section 35.1.

Plaintiff filed a civil action against his employer alleging wrongful termination. The Law Division granted defendant's motion to compel arbitration. Plaintiff filed a motion for reconsideration pursuant to Rule 4:49-2 that was received by defendant and the trial court more than twenty days from the date defendant's served plaintiff with the order compelling arbitration. The trial court nevertheless granted plaintiff's motion and directed the matter to proceed to trial.

Subject matter jurisdiction cannot be waived by the parties' failure to object, nor conferred upon the court by the parties' agreement. Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 65-66 (1978). This court holds that judges have an independent, non-delegable duty to raise and determine whether the court has subject matter jurisdiction over the case whenever there is a reasonable basis to do so. Here, the Law Division did not have subject matter jurisdiction at the time it granted plaintiff's untimely motion for reconsideration under Rule 4:49-2.

The plain language of the 2016 drug court expungement statute requires judges to determine whether expungement would be consistent with the public interest. N.J.S.A. 2C:35-14(m)(2); id. § 52-2(c)(3). Successful graduates who have committed certain offenses and apply for expungement are entitled to a rebuttable presumption that expungement is consistent with the public interest.

The panel addresses the evidentiary implications of a key provision within the Local Redevelopment and Housing Law ("LRHL"), N.J.S.A. 40A:12A-1 to -49. The provision in question, N.J.S.A. 40A:12A-8(c), authorizes a municipality or redevelopment agency to acquire by condemnation any lands or buildings which are "necessary for the redevelopment project."

The panel holds that if a landowner within the redevelopment area contests the necessity of a condemnation pursuant to N.J.S.A. 40A:12A-8(c), the statute logically requires the condemning authority to articulate a definitive need to acquire the parcel for an identified redevelopment project. That articulated need must be more specific than the mere "stockpiling" of real estate that might hypothetically be useful for a redevelopment project in the future.

In addition, the condemning authority in such a contested case must present to the court at least some evidence – consisting of facts, expert opinion, or both – that provides reasonable substantiation of the need. To hold otherwise and allow the condemning authority merely to proclaim a need, without having any obligation to substantiate its existence, would improperly read the term "necessary" out of the Legislature's enactment.

Plaintiffs, after prevailing in an action against property owners they alleged were the sole dischargers liable pursuant to the New Jersey Spill Compensation and Control Act, brought suit seeking clean-up contribution under the Spill Act from other owners of the same property.

The court affirmed the trial court's grant of summary judgment, holding the doctrine of judicial estoppel was a defense to Spill Act claims. Although plaintiffs possessed information sufficient to put them on notice of possible Spill Act claims against other property owners, they did not name those owners as defendants in the first action. The court held the application of judicial estoppel to Spill Act claims compels plaintiffs to pursue in a single action all dischargers that are known or knowable. Plaintiffs' subsequent action against the dischargers of which they had notice was precluded.

Because the welfare of children is paramount whether the parents are married, divorced or never-married, the court reverses and remands for a plenary hearing in this non-dissolution, FD, child custody matter. The mother, J.G. (Jane) appeals from a custody and parenting time order entered after the judge denied discovery, denied Jane's lawyer the right to participate in the proceedings, did not afford cross-examination or an opportunity to call witnesses and decided the issues without fact-finding or a consideration of the statutory custody factors, N.J.S.A. 9:2-4(c). The court reviews the appropriate way to handle FD custody matters, pursuant to Administrative Directive #01-02, "Standards for Child Custody and Parenting Time Investigation Reports" (Apr. 2, 2002), the Rules of Court and relevant statutes.

In this action arising out of the aftermath of a Ponzi scheme operated through a hedge fund, a Receiver was appointed on behalf of the fund and authorized to pursue all causes of action belonging to the fund.

The hedge fund operated through the securities trading platform of plaintiffs Interactive Brokers, and its employee, Kevin Michael Fischer. The Receiver instituted suit against plaintiffs, alleging they aided and abetted the breach of fiduciary duty and common law fraud and initiated arbitration proceedings under the Financial Industry Regulatory Authority (FINRA) Code and the Customer Agreement executed between plaintiffs and the hedge fund's founder.

Plaintiffs moved for injunctive relief, arguing the claims asserted by the Receiver were beyond the scope of his authority because they were grounded on the damages suffered by the hedge funds' defrauded investors, rather than the hedge fund itself.

The court concluded the Receiver acted within the statutory authority granted him under N.J.S.A. 49:3-69(c) and (d) and N.J.S.A. 14A:14-1 to -27. The Statement of Claims submitted to FINRA listed the hedge fund as its sole claimant. A receiver's action is not invalidated, even if the return of the assets to the receivership may ultimately benefit its investors.

As the dispute fell within the Agreement, the parties were mandated to arbitrate the dispute in FINRA.

Among other things, the panel holds that trial courts in our State have the discretion, in appropriate circumstances, to grant requests by deliberating jurors to have the closing arguments of all counsel played back or read back to them, in full or in part. In recognizing this discretionary authority, the panel follows other jurisdictions that have acknowledged the discretion of judges to allow such summation playbacks or readbacks. The panel rejects, however, defendant's contention that the denial of the jury's playback request in this case was unduly prejudicial and requires a new trial.

The court addresses and establishes the factors a trial court should consider in determining whether to make an equitable distribution of restricted stock units where the stock vests post-complaint and the employed spouse asserts the vesting is attributable to that spouse's future employment efforts.

The court holds that the party seeking to exclude assets from equitable distribution on such grounds bears the burden to prove the stock award was made for services performed outside of the marriage. That party must adduce objective evidence to prove the employer intended the stock to vest for future services and not as a form of deferred compensation attributable to the award date.

In 2011, the Legislature substantially amended multiple sections of the Construction Lien Law, N.J.S.A. 2A:44A-1 to -38 (the 2011 amended CLL). This appeal requires the court to decide whether N.J.S.A. 2A:44A-6(a)(1) and N.J.S.A. 2A:44A-8 the (signatory-requirement amendments) apply retroactively. This court limited its holding to the retroactive effect of that part of the signatory-requirement amendments that replaced the previous mandate that a "duly authorized officer" sign a corporate construction lien. This court concluded that the signatory-requirement amendments at issue are not "curative" for purposes of retroactivity analysis, and held that they applied prospectively.

In these two appeals, the court concludes that continuous satellite-based monitoring under the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-123.89 to -123.95, is a "special needs search," which may be justified only if the governmental need to monitor convicted sex offenders outweighs their privacy interests. That balancing of interests favors monitoring of H.R., whose expectation of privacy is limited because he is on parole supervision for life. However, monitoring violates the rights of I.R., who has greater expectation of privacy than H.R., because he is not on parole supervision. Therefore, the court affirms the trial court's order sustaining SOMA monitoring in H.R.'s case, but not in I.R.'s case.