Opinion Summaries

In this appeal of first impression, the court must determine whether the "clean slate" statute, N.J.S.A. 2C:52-5.3, which permits an expungement of a New Jersey criminal record if ten years have passed "from the date of the person's most recent conviction," applies to a conviction from another state.  (Emphasis added).  The trial court entered an order expunging petitioner's New Jersey criminal record after determining her 2017 Virginia misdemeanor conviction did not preclude eligibility for expungement under the "clean slate" statute because an out-of-state conviction does not constitute a "most recent conviction."  The State contends the trial court erred in its interpretation of the "clean slate" statute, arguing petitioner's Virginia conviction must be considered, and because it was entered within ten years of her petition for expungement, her petition should have been denied. 

The court reverses because the text of the "clean slate" statute and related expungement statutes do not support the trial court's interpretation to preclude consideration of an out-of-state conviction from the phrase "most recent conviction."  Moreover, such interpretation defies common sense given the "clean slate" statute's purpose to expunge a criminal record of an applicant who has not violated the law within ten years of their last New Jersey conviction.  Consequently, petitioner's Virginia offense presently disqualifies her from expungement of her New Jersey criminal record under the "clean slate" statute.

New Jersey's black bear hunt has drawn considerable public and judicial scrutiny over the years.  At issue on this appeal is the validity of the emergency rule that precipitated the December 2022 hunt. 

On November 15, 2022, the State authorized the adoption of a new Comprehensive Black Bear (Ursus americanus) Management Policy (CBBMP) and related amendments to the State Fish and Game Code (Game Code), N.J.A.C. 7:25-5.1 to -5.39, pursuant to its emergency rulemaking authority under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, thereby permitting a two-week black bear hunt that was scheduled to commence three weeks later on December 5, 2022.  The emergency rule was approved by respondents New Jersey Fish and Game Council (Council); Council Chairman Frank J. Virgilio; New Jersey Department of Environmental Protection (DEP); DEP Commissioner Shawn M. LaTourette; and Governor Philip D. Murphy.

Following the November 30, 2022 emergent application of appellants Animal Protection League of New Jersey, Angela Metler, Doreen Frega, and others to move for a stay of the November 15, 2022 concurrent emergency rule and proposed 2022 CBBMP, the court temporarily stayed the hunt and considered appellants' application.  On December 5, 2022, the court denied appellants' motion and lifted the stay; the Supreme Court denied appellants' ensuing emergent application for relief.  The black bear hunt thus proceeded.  Thereafter, the 2022 CBBMP and amendments to the Game Code rule were adopted pursuant to formal rulemaking. 

Noting the issues raised on appeal concern matters of public interest, the court considered the merits of appellants' contentions on a full record and concludes the State violated the emergency rulemaking requirements under section N.J.S.A. 52:14B-4(c) of the APA, both by failing to demonstrate enactment of the rule was necessary on fewer than thirty days' notice and the hunt was necessary to avert imminent peril.  Accordingly, the court reverses the State's emergency rulemaking.   

Prior to this non-jury trial, defendant served an offer of judgment, which plaintiff rejected. At the close of plaintiff’s case in chief, the trial judge granted defendant’s motion for involuntary dismissal under Rule 4:37-2(b). Defendant then applied for counsel fees and costs pursuant to Rule 4:58-6, which the judge denied.

The court holds that because a successful motion under Rule 4:37-2(b) results in the "dismissal of the action" and no verdict in the plaintiff's favor is rendered, the denial of fees and costs was manifestly correct.  The policy reasons underlying the zero-recovery exceptions to Rule 4:58-3(c) would be undermined if such fee-shifting were permitted. 

This appeal concerns the interpretation and application of N.J.S.A. 15A:2.1(d), a provision within the New Jersey Nonprofit Corporation Act, N.J.S.A. 15A:1-1 to 14-26.  In relevant part, Section 2.1(d) states:

No corporation organized under this act shall have or issue capital stock or shares.  No dividend shall be paid and no part of the income or profit of a corporation organized under this act shall be distributed to its members . . . but a corporation may pay compensation in a reasonable amount to its members . . . for services rendered, may pay interest on loans or other credit advances by members . . . [and] may confer benefits on its members in conformity with its purposes . . . .

[(emphasis added).]

Plaintiff paid $7,500 to become a member of defendant Atlantis Yacht Club, a nonprofit organization formed under N.J.S.A. 15A-2.1.  His payment was memorialized in a Certificate of Interest ("COI").  In 2015, plaintiff informed the Club he was withdrawing as a member.  Pursuant to the Club's by-laws, upon his withdrawal plaintiff would be eligible to receive a repayment from the Club to "redeem" his COI at such time when a new member joined. 

By the time plaintiff withdrew in 2015, the Club had raised its membership fee to $25,000.  Under the extant by-laws, the Club was authorized to pay plaintiff (subject to adjustments for any unpaid charges) the amount of the new member's fee, minus a $5,000 capital assessment, for a net sum of $20,000.  When a new member eventually joined in 2020, the Club notified plaintiff that it would pay him the $20,000 redemption amount in installments over three years.  The Club accordingly paid plaintiff a first installment in 2020 of $3,333.33, informing him that his second- and third-year annual payments in 2021 and 2022 would each be $8,333.33. 

Before the second-year installment to plaintiff was due in July 2021, the Club had what is described as a "compliance review" conducted by a law firm.  The firm advised the Club that making such a payment to withdrawing members at a higher amount than their original membership fee would risk the Club’s nonprofit status.  That advice prompted the Club to rescind its scheduled installment payments to plaintiff.   

Plaintiff sued the Club to enforce its promise to pay him the additional installments.  The Law Division judge ruled in plaintiff's favor.  The Club now appeals. 

The novel legal question presented is whether the payment arrangement was, as the Club contends, an illegal contract because it would entail the "distribution" to a member of "income or profit of the corporation" disallowed for nonprofits under N.J.S.A. 15A:2–1(d).  

The court affirms the trial judge's decision. The funds a new member pays the Club for a COI is a form of collateral to secure against future sums the member may owe the Club.  Any higher amount paid to the withdrawing member at the time of the COI’s redemption is not "income or profit of the corporation" within the meaning of N.J.S.A. 15A:2-1(d).

In this guardianship action, defendant appeals from a January 7, 2022 judgment that terminated her parental rights to her two biological children, who have resided in a non-adoptive home since shortly after their removal in March 2019.  At the time of trial, the Division's plan for the children was termination of parental rights followed by placement with their maternal relatives in Dubai.  Concurrently, the Division was exploring select home adoption. 

At trial, the Division elicited hearsay testimony and lay opinion from the adoption caseworker concerning the Division's conversations with the consulate and unspecified attorneys in Dubai.  Referencing those conversations, the worker testified that placement with the maternal relatives was not a viable option for the children under Dubai law unless the court makes certain findings about defendant's inability to care for the children and defendant consented to the transfer.  The trial judge relied on that hearsay testimony and lay opinion to find there were no alternatives to termination under the second part of prong three of the best interests of the child test, N.J.S.A. 30:4C-15.1(a)(3).

The court concludes the admission of the caseworker's testimony constituted harmful error.  The feasibility of adoption or a Kinship Legal Guardianship (KLG)-type arrangement under United Arab Emirates law is best elicited through expert testimony.  Further, it appears the testimony elicited by the Division at trial may not have been accurate.  Post-judgment, the Division has been exploring placement with the maternal relatives in Dubai – in the absence of defendant's consent.  Because the Division's plan appears to be a form of KLG, the Division has not clearly and convincingly proven all alternatives to termination have been ruled out. 

The court therefore remands the matter to the trial judge to reopen the guardianship proceedings. On remand, the judge should consider whether adoption or a KLG-type custodial arrangement with the maternal relatives in Dubai is feasible under Dubai law only after considering the testimony from a qualified expert; and whether, under the current circumstances, termination would not do more harm than good, under the fourth prong, N.J.S.A. 30:4C-15.1(a)(4).  The court does not foreclose the judge from considering whether defendant has continued therapeutic services and whether she could safely parent the children in the foreseeable future under the second prong, N.J.S.A. 30:4C-15.1(a)(2).

This appeal pertains to the civil personal injury prosecution of statutory and common law claims arising from allegations of sexual abuse committed fifty-five years ago against a child by his sister, who also was a minor when the acts occurred. 

In 2019, the New Jersey Legislature enacted the Child Victims Act (CVA), L. 2019, c. 120, which supplemented and amended the statute of limitations for statutory and common law causes of actions for sexual abuse. The CVA enacted two statutes of limitations that expanded the time for filing  personal injury claims resulting from the commission of one of the following four enumerated sexual offenses:  (1) "the commission of sexual assault"; (2) "any other crime of a sexual nature"; (3) "a prohibited sexual act as defined in [N.J.S.A. 2A:30B-2]"; (4) "or sexual abuse as defined in [the Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1]."  N.J.S.A. 2A:14-2a; N.J.S.A. 2A:14-2b.  Pertinent to this appeal is the enacted statute of limitations which provided a two-year revival window for victims to file otherwise time-barred claims for sexual crimes committed against them when they were minors.  N.J.S.A. 2A:14-2b.

The court considered the dismissal of plaintiff's CSAA claims, concluding a derivative statutory passive abuser claim against a parent was properly dismissed by the motion judge as not cognizable under the CSAA because the alleged sexual abuse was committed by a minor.  Because the CSAA defines sexual abuse as sexual contact or sexual penetration committed by an adult, a CSAA claim alleging sexual assault by minor does not present a valid cause of action. 

The court further considered the motion judge's dismissal of plaintiff's common law claims stemming from the alleged sexual abuse committed by a minor, which were timely filed under the two-year revival window.  The court concluded the common law claims are actionable independent of the CSAA. 

          In this appeal, the court affirmed the Tax Court's opinions finding plaintiff Cargill Meat Solutions Corp. is subject to the litter-generating tax under the Clean Communities Program Act (the Act), N.J.S.A. 13:1E-213 to -223, which imposes a tax on the sale of litter-generating products in this state involving manufacturers, wholesalers, distributors, and retailers.  Cargill is a Delaware corporation headquartered in Kansas that manufactures litter-generating packaged meat products throughout the country.  Cargill stores and distributes meat products through its Swedesboro facility.

          The court affirmed the Tax Court's finding that Cargill was not subject to the wholesaler-to-wholesaler exemption under N.J.S.A. 13:1E-716 and rejected Cargill's argument that it should not be considered a manufacturer under the Act because its operations occur out-of-state.  The court also affirmed the Tax Court's determination that the monies in the Clean Communities Program Fund were not appropriated under the Annual Appropriations Act and did not violate the Appropriations Clause of the New Jersey Constitution, or the commerce and due process clauses of the United States Constitution.

This administrative appeal concerns a State roadway project's alteration of a commercial property owner's access to a State highway.  It is the first published opinion to address certain provisions adopted in 2018 that extensively revised the State Highway Access Management Code (the "Access Code"), N.J.A.C. 16:47-1.1 to -14.1.

The pivotal legal issue concerns whether the roadway project's replacement of appellant's direct access to State Highway 66 through an existing driveway with access through a shared driveway connecting to an adjacent landowner's parcel comprises a "revocation" or "removal" of appellant's means of access, or, alternatively, whether the change is simply a "modification" of access.  The configuration will enable motorists going to appellant's property from Route 66 to turn into the shared driveway, briefly travel on an easement through the adjacent property, and then branch off to an internal driveway on appellant's lot leading to appellant's commercial building.  

The court affirms the Department of Transportation's final agency decision deeming the new configuration a "modification" of appellant's access to Route 66, rather than a "revocation" of access under N.J.S.A. 27:7-94, or a “removal" of access under N.J.A.C. 16:47-2.1.  Under the revised 2018 version of the Access Code, the configuration is a modification because it entails "replacing all ingress or all egress between a State highway and a lot or site with ingress or egress via a private easement on a different lot or site."  N.J.A.C. 16-47-2.1.

The configuration is not a revocation or a removal because it does not eliminate all access to Route 66 and does not require motorists to traverse another public street in order to connect to appellant's premises.  The Department did not misapply its authority and regulatory expertise in deeming the roadway changes a modification.

         In these consolidated matters, appellants are public adjusters who challenge final agency decisions by the commissioner of the Department of Banking and Insurance, finding appellants' contracts violated the New Jersey Public Adjuster's Licensing Act (PALA), N.J.S.A. 17:22B-1 to -20 and regulations enacted by the commissioner governing the conduct of public adjusters.  N.J.A.C. 11:1-37.1.  The commissioner found appellants violated PALA because their contracts did not comply with N.J.A.C. 11:1-37.13(b)(5), which requires every public adjuster contract include "(i) [t]he procedures to be followed by the insured if [they] seek[] to cancel the contract, including any requirement for a written notice; [and] (ii) [t]he rights and obligations of the parties if the contract is cancelled at any time[.]"  The commissioner found appellants violated these regulations because their contracts did not contain language permitting consumers to cancel their contracts at any time.

         The court reviewed PALA's legislative history and found no evidence the Legislature intended public adjuster contracts contain provisions for cancellation at any time.  The plain language of the regulations only requires that public adjuster contracts set forth the procedures to be followed in the event of a cancellation and advise consumers of their rights in the event of cancellation.  Therefore, the commissioner misinterpreted the regulations, and her findings were ultra vires of her authority under PALA.  As a result, the court reversed the findings appellants violated N.J.A.C. 11:1-37.13(b)(5)(i) and (ii) and remanded for a recalculation of the penalties and costs imposed on appellants.

In these matters, the court considered the scientific reliability of expert testimony that shaking alone can cause the injuries associated with shaken baby syndrome (SBS), also known as abusive head trauma (AHT).  The State sought to admit the testimony to prove aggravated assault and child endangerment charges against defendants Darryl Nieves and Michael Cifelli, fathers of infant sons who exhibited associated symptoms while in their respective fathers' care.  Following a hearing in the Nieves matter pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the trial judge concluded that expert testimony of shaking-only SBS/AHT was not scientifically reliable and barred admission of the evidence at trial.  The trial judge in the Cifelli matter adopted the finding. 

The court affirmed the judge's decision in Nieves, holding that the State failed to establish SBS/AHT's general acceptance within the medical community through expert testimony, supporting authoritative scientific studies, and judicial opinions.  Where, as here, the underlying theory integrates multiple scientific disciplines, the proponent must establish cross-disciplinary validation to establish reliability.  The State failed to do that here.  Despite its seeming acceptance in the pediatric medical community, the evidence showed a real dispute surrounding the hypothesis that the biomechanical principles underlying SBS/AHT actually supported the conclusion that shaking only can cause the injuries associated with SBS/AHT.

The Court reverses the Appellate Division’s judgment because it conflicts with Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993), and L.W. v. Toms River Regional Schools Board of Education, 189 N.J. 381 (2007). Under Lehmann, sexual touching of areas of the body linked to sexuality happens, by definition, because of sex. The Court affirms the denial of plaintiffs’ motions to amend their complaint and to obtain certain records.

In this matter, the court considered whether defendant's act of making and disseminating a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divorce, and asking community members to "press" her husband to deliver the get constituted the predicate act of harassment, in violation of N.J.S.A. 2C:33-4(a), to justify the issuance of a final restraining order under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.  The court held that defendant's communication was protected by the Free Speech Clause of the First Amendment and the New Jersey Constitution and did not fall into any of the narrow exceptions—incitement to imminent violence or true threats—which would rob it of its protected status.  The court likewise concluded that because defendant's communication was not impermissibly invasive of plaintiff's privacy and was animated by a legitimate purpose, the acquisition of a get, rather than a purpose to harass, it was not violative of the harassment statute.  Lastly, the court held that plaintiff's allegation that there was a general tendency of violence toward get refusers in the Jewish community was inapposite because the claim was not supported by the record and because the theoretical possibility that a third party will commit a criminal act cannot render otherwise permissible speech unlawful.  As a result, the court vacated the final restraining order entered against defendant.

The court interprets Exemption 11 of the Highlands Act, N.J.S.A. 13:20-28(a)(11), which exempts entirely from all provisions of the Act and "any rules or regulations" adopted by the DEP pursuant to it:

the routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines, rights of way, or systems, by a public utility, provided that the activity is consistent with the goals and purposes of this act,

to exempt only "routine" upgrades to a utility's lines, rights of way or systems in the Preservation Area, rejecting the DEP's interpretation that "routine" modifies only "maintenance and operations" and does not modify "upgrade." 

Applying its interpretation, the court vacates the Highlands Applicability Determination issued to the Tennessee Gas Pipeline Company exempting its proposed compressor station in the Preservation Area from permitting review and remands the matter to the DEP for consideration of whether Tennessee's new compressor station can qualify as a "routine upgrade" to its pipeline system, thus bringing it within Exemption 11.

During the investigation of an alleged drug distribution network, the State Police obtained wiretap orders authorizing the interception of communications on various cellular phones pursuant to the New Jersey Wiretapping and Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to -37.  By leave granted, the State challenged an order suppressing all intercepted communications that followed the interception of a privileged marital communication between one of the defendants and his codefendant spouse.  The trial court entered the order under N.J.S.A. 2A:156A-21, which in pertinent part mandates the suppression of "the entire contents of all intercepted wire, electronic[,] or oral communications obtained during or after any interception" that is "unlawfully intercepted" or "not made in conformity with" the wiretap order or authorization.  N.J.S.A. 2A:156A-21(a) and (c). 

The court affirms the order based on its interpretation of the Act.  The State concedes that at the time of the interception of the initial privileged marital communication, N.J.R.E. 509 did not include a crime-fraud exception, and, as a result, the initial and subsequent 305 intercepted privileged marital communications are inadmissible at defendants' trial under the then-extant version of N.J.R.E. 509.  The State argues interception of the initial privileged marital communication did not trigger the mandatory suppression of all subsequent wiretap interceptions during the investigation under N.J.S.A. 2A:156A-21 because interception of the privileged marital communication was neither unlawful nor made in violation of the wiretap orders. 

The court concludes that not every interception of a privileged marital communication is unlawful and requires application of N.J.S.A. 2A:156A-21's suppression remedy.  The court finds incidental interceptions of privileged communications during the mandatory intrinsic minimization process attendant to the execution of every wiretap order are anticipated by, and authorized by, the Act, and do not trigger N.J.S.A. 2A:156A-21's suppression remedy. 

The court holds that, because the State Police knew the initial interception was of a communication between married spouses, made no effort to minimize the interception, and monitored the communication beyond the time necessary to determine if it was privileged, the interception was unlawful under the Act and violated the wiretap order, which expressly required minimization.  The court rejects the State's argument suppression is not required because the initial marital communication, and the 305 subsequent marital communications, were intercepted based on the good faith but erroneous belief the crime-fraud exception recommended by the Court in State v. Terry, 218 N.J. 224 (2014), and later enacted, N.J.S.A. 2A:84A-22(2)(e), L. 2015, c. 138, § 2, eff. Nov. 9, 2015, would apply retroactively such that the interceptions would be supported on that basis. 

In this legal-malpractice case, the corporate plaintiff and its president appeal from an order granting defendants' summary-judgment motion.  The trial court found plaintiffs' expert had failed to analyze how defendants' alleged breaches of the standard of care would have impacted a potential jury verdict or settlement and had not opined that defendants' alleged malpractice proximately caused any damages.  The judge also dismissed the president's individual claim because the undisputed facts showed she and defendants did not have an attorney-client relationship.   

The court affirms, holding plaintiffs had not established proximate cause as a matter of law and that expert testimony was necessary in this case to prove proximate causation and damages.  With respect to the president's individual claim of legal malpractice, the court holds she failed to demonstrate the existence of an attorney-client relationship between herself and defendants. 

Defendant appeals from Family Part orders enforcing provisions of a marital settlement agreement (MSA).  A critical area of dispute centered on plaintiff's desire to obtain a get—a divorce recognized under Jewish religious law through a process known as a beis din proceeding.  Before a verdict was reached in the Family Part divorce trial, the parties reached an agreement on all issues, including each party's obligations with respect to participation in beis din proceedings.

The court rejects defendant's argument that the Family Part judge violated his First Amendment rights by ordering him to participate in beis din proceedings and to sign an arbitration agreement with the beis din.  The court acknowledges the fundamental principle that civil courts may not become entangled in religious proceedings.  The First Amendment's Establishment Clause bars a state from placing its support behind a religious belief, while the Free Exercise Clause bars a state from interfering with the practice of religion.  U.S. Const. amend. I.  The court concludes the Family Part judge was asked to enforce a civil contract, not a religious one.  The court holds the MSA is a legally binding contract based on ample consideration from both parties and entered into knowingly and voluntarily.  The Family Part judge therefore had the lawful authority to enforce the agreement as written.

New Jersey Supreme Court precedent permits civil courts to resolve controversies involving religious groups if resolution can be achieved by reference to neutral principles of law and does not require the interpretation of religious doctrine.  Defendant agreed in the MSA to abide by the beis din ruling, whatever that might be.  The Family Part judge did not interpret religious doctrine and scrupulously avoided entanglement with religion because the judge applied well-established principles of civil contract law, not rabbinical law.  The latter body of law remained solely within the province of the beis din and was not interpreted or applied by the Family Part judge.

The court concludes that the orders defendant challenges served the secular purpose of enforcing the parties' contractual obligations under the MSA, which in turn serves the secular purpose of encouraging divorce litigants to resolve their disputes by negotiating and entering an MSA.

In a criminal jury trial, there is a presumption that foreign language interpretation services will be provided in person, which is consistent with the New Jersey Judiciary’s longstanding practice. The Court sets forth guidelines and factors to assist trial courts in deciding whether VRI should be used during criminal jury trials, and it remands the matter for the trial court to reconsider whether VRI is appropriate in the current case after assessing those factors.

The “religious tenets” exception of N.J.S.A. 10:5-12(a) -- “it shall not be an unlawful employment practice” for a religious entity to follow the tenets of its faith “in establishing and utilizing criteria for employment” -- is an affirmative defense available to a religious entity when confronted with a claim of employment discrimination. Here, it is uncontroverted that St. Theresa’s followed the religious tenets of the Catholic Church in terminating Crisitello. St. Theresa’s was therefore entitled to summary judgment and the dismissal of the complaint with prejudice.

In May 2019, defendants were found in possession of two loaded handguns while driving a car on public roads.  Neither defendant had a permit to carry a handgun.  Both defendants were indicted for second-degree unlawful possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b)(1).  Following the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022), defendants moved to dismiss those criminal charges, arguing that the version of the gun-carry permit statute in effect at the time of their arrest, N.J.S.A. 2C:58-4 (2018), was facially unconstitutional under Bruen.  The trial court agreed and dismissed the charges.  This court granted the State leave to appeal the order.

The court holds that defendants did not have standing to challenge the gun permit statutes because neither defendant had applied for a handgun-carry permit. Nevertheless, the court addresses the merits of the constitutional challenge and holds that the justifiable need requirement in N.J.S.A. 2C:58-4(c) (2018) was severable and the remaining provisions of N.J.S.A. 2C:58-4 (2018), as well as N.J.S.A. 2C:39-5(b)(1), were constitutional and enforceable.  Accordingly, the court reverses the order dismissing the charges and remands with direction that the trial court reinstate both counts of unlawful possession of a handgun without a permit.

The definition of “medical facility” under N.J.S.A. 59:6-1 does not restrict the substantive immunities granted in N.J.S.A. 59:6-4, -5, or -6, which are also not “superseded in the jail suicide context.” However, there was evidence presented in this case, both at the summary judgment stage and at trial, that falls outside of any immunities granted by N.J.S.A. 59:6-4, -5, and -6. The jury could reasonably have concluded from that evidence that the County defendants were negligent. The trial court was therefore correct to refuse to dismiss plaintiff’s negligence count at the summary judgment stage and to refuse to overturn the jury’s verdict after trial. The Court accordingly affirms the judgment of the Appellate Division, as modified.