Opinion Summaries

In this matter, the court considered whether a municipality may approve a resolution to place non-binding public opinion questions before the electorate when initiative petitions concerning the identical issues are on the same ballot. The majority concluded the municipality was not authorized under N.J.S.A. 19:37-1 to pass the resolutions regarding the public opinion questions because the electorate was considering the same issues on the ballot in their vote on the initiative questions.

The court also considered the trial court's order that denied plaintiffs' application for an award of attorney's fees under the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2. Because defendants' actions of passing the unauthorized resolutions deprived plaintiffs of their substantive right to initiative, the majority reversed the court's order denying plaintiffs a counsel fee award.

Judge Smith dissented.

The jury could not have understood that the reasonable corporal punishment language in the child endangerment charge also applied to the simple assault charge. The trial court erred in failing to instruct the jury, in the context of the simple assault charge, that reasonable corporal punishment is not prohibited. Because that error in jury instructions could have led the jury to an unjust result, the Court vacates defendant’s conviction and remands for further proceedings.

Based on a close analysis of the statutory language and legislative history, the trial court held that the New Jersey First Act, N.J.S.A. 52:14-7, did not apply to unpaid volunteers serving on government boards. Specifically, the court found that four volunteer members of the Rutgers University Board of Governors who lived outside the State of New Jersey were not subject to the Act and thus would not be removed from the Board based on their out-of-state residence as sought by plaintiff.

In the alternative, the court found that if the New Jersey First Act were applied to volunteer members of the Rutgers Board of Governors residing outside of New Jersey, such an application of the Act would violate the Contract Clauses of the United States and New Jersey Constitutions as being inconsistent with the Rutgers Charter, which requires University consent before legislative changes to the governance of the University are enacted.

A jury convicted defendant of two counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), two counts of second-degree vehicular homicide, N.J.S.A. 2C:11-5(a), one count of third-degree possession of gamma hydroxybutyrate (GHB), N.J.S.A. 2C:35-10.2(a), and one count of third-degree possession of gamma-butyrolactone (GBL), N.J.S.A. 2C:35-10(a)(1) and (3). The State contended defendant was the under the influence of GHB and had not slept for more than twenty-four hours when his car slammed into the back of another car stopped at a toll booth at Exit 14C of the New Jersey Turnpike at more than fifty miles per hour. The driver of the other car and his five-year-old daughter died as a result. The judge imposed an aggregate thirty-seven-year term of imprisonment, with a twenty-seven-year, two-month, and eleven-day period of parole ineligibility.

The court rejected defendant's challenge to the admissibility of the statement he gave to State Troopers while hospitalized the morning after the accident and after he was given his Miranda rights. Defendant contended, in part, that detectives failed to inform him that two people died in the crash, telling him only that they were investigating the accident, before he waived his rights. The court distinguished the facts from those presented in State v. Diaz, 470 N.J. Super. 495 (App. Div. 2022), which was filed before the Court issued its opinion in State v. Sims, 250 N.J. 189 (2022), reversing our earlier decision in that case.

The court reversed defendant's convictions for aggravated manslaughter, however, finding it was plain error for the judge to not provide ins tructions on second-degree reckless manslaughter as a lesser-included offense of aggravated manslaughter. The court rejected the State's argument that any error was harmless, given the jury's guilty verdict on the two vehicular homicide counts, noting the judge never explained the heightened degree of recklessness required to convict defendant of aggravated or reckless manslaughter committed by driving a vehicle, versus the element of recklessness required to sustain a conviction for vehicular homicide.

The Court joins the majority of jurisdictions that reject a per se ban on claims by new businesses for lost profits damages, and it declines to follow Weiss to the extent that it bars any claim by a new business for such damages. Claims for lost profits damages are governed by the standard of reasonable certainty and require a fact-sensitive analysis. Because it is substantially more difficult for a new business to establish lost profits damages with reasonable certainty, a trial court should carefully scrutinize a new business’s claim that a defendant’s tortious conduct or breach of contract prevented it from profiting from an enterprise in which it has no experience and should bar that claim unless it can be proven with reasonable certainty. The Court remands these matters so that the trial court may decide defendants’ motions in accordance with the proper standard.

Plaintiff Estate brought a preemptive action seeking to enjoin defendant, M.A.-V., from filing a sexual abuse complaint using decedent’s actual name rather than initials. Defendant had provided to the Estate’s executors a copy of a proposed complaint that contained specific allegations of sexual abuse alleged to have been committed by decedent against defendant in 1988, when defendant was thirteen years old. Plaintiff argued the statute governing Actions for Sexual Abuse, N.J.S.A. 2A:61B-1, section (f)(1), was intended to protect confidentiality of alleged perpetrators as well as victims. To obtain the injunction plaintiff would have to satisfy the four-part test of Crowe v. De Gioia, 90 N.J. 126 (1992). The court held plaintiff could not satisfy the second prong, that "the legal rights underlying plaintiff’s claim are well-settled." The court ruled the issue of whether the Sexual Abuse statute afforded a sexual abuse defendant the right to demand confidentiality had been decided in T.S.R. v. J.C., 288 N.J. Super. 48, 53 (App. Div. 1996) ("[T]he statute grants only the plaintiff-victim the option of refusing to disclose identifying information.").

Plaintiffs' complaint alleged wrongful eviction under the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, fraud, negligent misrepresentation, and other claims. Defendants filed an answer and counterclaim, asserting plaintiffs' negligence caused damage to the property and rendered portions of it "unusable." The parties cross-moved for summary judgment on the wrongful eviction cause of action, and the judge granted defendants summary judgment and denied plaintiffs' motion.

Defendants then made an offer of judgment, which plaintiffs accepted the next day. Plaintiffs' proposed order for judgment was limited to "the remaining counts" of the complaint and sought to preserve appeal of the interlocutory summary judgment orders. Defendants objected, citing Rule 4:58-4(c), which provides: "If a claimant asserts multiple claims for relief or if a counterclaim has been asserted against the claimant, the claimant's offer shall include all claims made by or against that claimant. If a party not originally a claimant asserts a counterclaim, that party's offer shall also include all claims by and against that party." (emphasis added). The judge entered defendants' proposed order of judgment that was not limited to "the remaining counts" of the complaint.

Plaintiffs appealed, in part arguing the interlocutory orders were appealable despite their acceptance of defendants' offer of judgment, citing, as they did in the Law Division, our decision in City of Cape May v. Coldren, 329 N.J. Super. 1, 10 (App. Div. 2000). The court affirmed the order of judgment without considering the merits of plaintiffs' arguments regarding the interlocutory orders by distinguishing Coldren on its facts and noting that decision was issued prior to adoption of Rule 4:58-4(c). Plaintiffs' acceptance of the offer of judgment settled all claims "by and against" defendants, including any claims dismissed on summary judgment.

Fulton Bank (the Bank) foreclosed on a mortgage recorded prior to the filing of Iron Gate at Galloway's Homeowners' Association's (HOA) Declaration of Covenants. The HOA was created and the Declaration filed pursuant to Galloway Township's major subdivision approval of the relevant lots. The Bank sold the remaining lots after foreclosure, but at closing refused to pay the HOA fees accrued during its period of ownership. The Bank filed a motion under the foreclosure docket number, contending it owed no fees because foreclosure on the earlier-filed mortgage effectively nullified the Declaration of Covenants. The court concluded that the Bank was liable for the fees in arrears because the Declaration constituted an equitable servitude running with the land, as outlined in Highland Lakes Country Club & Cmty. Ass'n v. Franzino, 186 N.J. 99 (2006).

The policy’s broad and unambiguous language makes clear that a causal relationship is not required in order for the exclusionary clause to apply; rather, any claim "in any way connected with" the insured’s operations or activities in a county identified in the exclusionary clause is not covered under the policy. Richfield’s operations in an excluded county are alleged to be connected with the injuries for which recovery is sought, so the exclusion applies. Admiral has no duty to defend a claim that it is not contractually obligated to indemnify.

A psychiatric hospital can involuntarily hold a patient for up to twenty-four hours for screening and up to an additional seventy-two hours to make an emergent application to the court to continue involuntary psychiatric commitment. The issue raised here is when the law starts counting the time. To decide the issue the court had to address the role of the County Adjuster and the Public Defender. These are new issues.

This opinion addresses the legal framework as to how to work through the issues and decide whether to issue an order for involuntary commitment. In this case, the court decided that admission to a hospital was not the same as being held involuntarily and that the procedures followed by the hospital were proper. So, the involuntary commitment was granted.

In this matter of first impression, the court considered whether the holding in State v. Cain, 224 N.J. 410 (2016), prohibiting expert witnesses from opining on a defendant's state of mind in drug cases, should also apply to grand jury proceedings. The court concluded that Cain's holding does apply to grand jury proceedings because concerns about the prejudicial effect of such testimony on petit jury deliberations are equally present during one-sided grand jury presentations, if not more so. Consequently, the court reversed in part the trial court order denying defendant's motion to dismiss the indictment charging defendant with numerous drug-distribution related offenses and remanded for further proceedings because a police officer testified before the grand jury, based on his training and experience, that defendant had possessed controlled dangerous substances with the intent to distribute them.

The Compassionate Release Statute does not require that an inmate prove that he is unable to perform any activity of basic daily living in order to establish a "permanent physical incapacity" under N.J.S.A. 30:4-123.51e(l). Rather, the statute requires clear and convincing evidence that the inmate’s condition renders him permanently unable to perform two or more activities of basic daily living, necessitating twenty-four-hour care.

The court reverses and remands the decision by the State Parole Board to deny state prison inmate Eugene Berta parole and to set a future eligibility term (FET) of seventy-two months. The court applies principles recently reaffirmed by the New Jersey Supreme Court in State v. Acoli, 250 N.J. 431 (2022). The court, however, does not grant parole as in Acoli, but rather remands for the Board to reconsider its decision and, if it chooses again to deny parole, to more fully explain its reasons for doing so and for imposing such a lengthy FET.

In 1984, Berta was convicted of murdering his girlfriend and was sentenced to a life term with a thirty-year period of parole ineligibility. The Board denied his first application for parole in 2015. The latest denial of parole was based on three supposedly negative circumstances: (1) Berta was committed to incarceration for multiple offenses; (2) he has a "serious" and "persistent" history of institutional disciplinary infractions; and (3) his continued denial of guilt constitutes "insufficient problem resolution."

The court concludes the Board improperly relied on the first two purportedly negative circumstances. Berta's jury trial convictions for murder and possession of a firearm for an unlawful purpose were merged at the sentencing hearing and thus he was not committed to state prison based on multiple offenses. As to Berta's record of institutional infractions, the court concludes that the Board was unreasonable in characterizing Berta's infraction history as persistent given that he has been infraction-free for nearly twenty years.

As to Berta's denial of guilt, the court concludes that the Board has yet to satisfactorily explain why that circumstance, viewed in context with his overall rehabilitative efforts, establishes by a preponderance of the evidence that he is substantially likely to re-offend. While Berta's ongoing refusal to accept responsibility for the murder he committed is a relevant circumstance, the court holds that admitting guilt is not a categorical prerequisite to parole. Accordingly, the Board shoulders the burden to explain why Berta's refusal to acknowledge his guilt foreshadows that he will commit a future crime. Although the court recognizes the Board's expertise in assessing inherently subjective circumstances such as "negative attitudes" and "insufficient problem resolution," it is not enough for the Board to state a conclusion, especially in view of in-depth psychological evaluations that show that Berta presents a low risk of re-offense.

The court also addresses the Board's decision to impose an FET almost three time as long as the presumptive twenty-seven-month FET that applies to inmates convicted of murder. The Board is authorized to set a higher FET only "if the future parole eligibility date which would be established pursuant to [N.J.A.C. 10A:71-3.21(a)] is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future behavior." (emphasis added). The court views the "clearly inappropriate" standard to be a high threshold to vault. To impose a higher FET, the Board must overcome the presumption by explaining why a twenty-seven-month FET is clearly inappropriate. Furthermore, the court holds that the Board cannot simply pick a number out of thin air. The court stresses that: (1) an FET must not be imposed as a form of punishment; and (2) the decision to impose an FET beyond the presumptive FET, like the underlying decision to deny parole, must be tied directly to the goal of reducing the likelihood of future criminal behavior. The court also emphasizes that it will not permit the Board to use Berta's ongoing refusal to admit guilt as an artifice to convert his life sentence into a sentence of life without parole.

Judge Geiger joins in the result and issues a concurring opinion.

The Commissioner’s finding that East Bay did not supply sufficient information to prove the workers’ independence under the ABC test’s prong C was not arbitrary, capricious, or unreasonable, but rather was supported by the absence of record evidence as to that part of the test. The Court is satisfied that all sixteen workers in question are properly classified as employees, and it remands to the Department for calculation of the appropriate back-owed contributions.

Tax Court: Jaguar Land Rover North America v. Director Division of Taxation and Township of Mahwah; Docket No. 014046-2018; opinion by Bianco, J.T.C., decided July 29, 2022. For plaintiff – Joseph E. Bock, Esq. (Spiotti & Associates, P.C., attorney); for defendant Director, Division of Taxation – Anthony D. Tancini, Esq. (Matthew J. Platkin, Acting Attorney General of New Jersey, attorney); for defendant Township of Mahwah – Nylema Nabbie (Cleary Giacobbe Alfieri Jacobs, LLC, attorney).

In interpreting an exemption under the Statewide Non-residential Development Fee Act, N.J.S.A. 40:55D-8.1 to -8.7, the court found that an urban transit hub must be located within one-half mile radius surrounding the mid point of a New Jersey Transit Corporation, Port Authority Transit Corporation or Port Authority Trans-Hudson Corporation rail station platform area and be specifically delineated by the New Jersey Economic Development Authority (NJEDA). The court found that while the Subject Property was within one-half mile of a qualifying rail station, it was not specifically delineated by the NJEDA and thus was ineligible for the exemption under N.J.S.A. 40:55D-8.4(b)(4). Because the court found the Statute to be unambiguous and plain on its face, it declined to consult extrinsic sources in its interpretation of the statute.

We granted Academy Express LLC's application to file an emergent motion to stay New Jersey Transit's award or execution of a contract for regular route local bus services in Hudson County pending Academy Express's appeal of NJ Transit's decision to award the contract to Orange, Newark, Elizabeth Bus Inc. (ONE Bus) and permitted ONE Bus to intervene as an interested party, entering a temporary stay pursuant to Rule 2:9-8 pending our disposition of the motion. Having considered the briefs and oral argument — and without prejudice to the merits panel's ultimate disposition of the matter — we deny the motion and dissolve our temporary stay, concluding Academy Express has not demonstrated a reasonable probability of success on the merits.

The powers of NJ Transit are "vested in the voting members of the board." N.J.S.A. 27:25-4(e). The corporation has been statutorily exempted from the need to bid the contracting-out of bus routes, N.J.S.A. 27:25-6(b), N.J.S.A. 27:25-11(g)(3)(d), and may choose the proposal the Board determines to be "the most advantageous to the corporation, price and other factors considered," N.J.S.A. 27:25-11(c)(1),(2). The Board also has broad discretionary authority to reject any proposal when it determines "it is in the public interest to do so," N.J.S.A. 27:25-11(c), and "shall" consider the "adequacy of performance by a carrier or its affiliates under other contracts . . . with NJ Transit" under its "contracting out" regulations, N.J.A.C. 16:85-2.3(a)(4).

Given that broad authority, NJ Transit could certainly consider the recently settled qui tam action against Academy Express and its affiliated companies and determine it was in the public interest to reject a proposal from a carrier that had only weeks before entered into a multi -million-dollar settlement with the State in a massive fraud case involving the same routes covered by these contracts. See Keyes Martin & Co. v. Dir., Div. of Purchase & Prop., 99 N.J. 244, 262 (1985) (upholding Director's rejection of a bid "in the public interest" based on an appearance of wrongdoing attributable to a possible conflict of interest).

In this class action matter arising out of the purchase of a vehicle, the court considers whether defendants' material breach of an arbitration agreement––the failure to pay the administration fees––precludes them from asserting the waiver of the right to pursue a class action in the subsequent Superior Court litigation.

The arbitration agreement clearly informed consumer purchasers they were waiving their right to pursue a class action in court and in arbitration. Although defendants cannot compel arbitration because of their failure to pay the requisite fees, their breach of the agreement does not eradicate the other provisions to which plaintiff agreed––namely the waiver of the right to pursue a class action in court. This court affirmed the orders denying class certification.

The municipal court found the defendant guilty of violating N.J.A.C. 5:23-2.32(a), a regulation enacted under the Uniform Construction Code Act that prohibits unsafe structures. The municipal court then ordered his building demolished. The defendant appealed to the Law Division, which on de novo review found that the municipal court lacked the authority to order the building’s demolition. The Law Division then dismissed the complaint after finding that the municipality failed to follow the procedures that would have allowed the municipal court to impose a fine.

Crystal Point may assert direct claims against Kinsale pursuant to the Direct Action Statute in the setting of this case. Based on the plain language of N.J.S.A. 17:28-2, however, Crystal Point’s claims against Kinsale are derivative claims, and are thus subject to the terms of the insurance policies at issue, including the provision in each policy mandating binding arbitration of disputes between Kinsale and its insureds. Crystal Point’s claims against Kinsale are therefore subject to arbitration.

In the midst of the COVID-19 pandemic, the parties in this legal malpractice action exchanged minimal discovery before the court issued its notice pursuant to Rule 4:36-2, advising that discovery would end in sixty days and any application for an extension must be made before the discovery end date (DED). Thirty days later, the court issued a trial date.

The parties secured a consensual sixty-day discovery extension, see Rule 4:24-1(c), but when defendants moved before expiration of the DED for a further extension, the judge denied the motion, concluding the exceptional circumstances standard applied because a trial date was set, and defendants failed to meet that standard. Plaintiff's motion for reconsideration was similarly denied, but not before defendants sought summary judgment, essentially arguing the lack of expert opinion doomed plaintiff's complaint. The judge granted defendants summary judgment.

The court reversed. The court construed Rule 4:24-1(c), which states a judge shall grant an extension motion upon good cause if made before the DED, but also states a court may grant a discovery extension only in exceptional circumstances once an arbitration or trial date is set. The court concluded that while court administrators may send notices setting future arbitration and trial dates before discovery ends, the plain language of the Rule, read in pari materia with other rules, requires judges to apply the good cause standard if the motion for a discovery extension is made before the DED. Plaintiff met the good cause standard.