Opinion Summaries

The court granted leave to appeal to review an order entered in this matrimonial action that denied plaintiff the opportunity to appear at the trial and testify by contemporaneous video transmission from his home in India. Recognizing that the court rules neither authorize nor prohibit such relief, the court identified and described the factors a judge should consider in ruling on the propriety of allowing a witness to testify remotely, and remanded so that plaintiff may provide the trial judge with a more fulsome application for the relief he requested.

The new rule stated in Cain and Simms was intended to apply prospectively to guide future trials, not retroactively to proceedings conducted prior to those decisions. At the time of defendant’s trial, the governing law authorized the use of hypothetical questions such as the questions posed to the State’s experts in this case. And in light of the distinctions between Melendez and the present case, there was no error in the trial court’s admission of defendant’s notice of motion for a writ of replevin and certification.

In light of the federal and state requirements to obtain a follow-up sample, the State has shown that the physical characteristics sought in this case cannot practicably be obtained by any means other than investigative detention pursuant to Rule 3:5A-1. The Court therefore reverses the judgment of the Appellate Division.

The 2018 legislation amending the Towing Act does not have retroactive effect, and the Court agrees with the Appellate Division’s construction of the pre-2018 Act. The Court affirms the Appellate Division’s thorough and thoughtful decision as to exhaustion of administrative remedies, derivative immunity, and the remand as to the Towing Act and CFA claims, all substantially for the reasons expressed in Judge Gilson’s opinion. The Court separately addresses whether plaintiffs can pursue claims under the TCCWNA and finds that plaintiffs are unable to state a claim under that statute. The Court therefore reverses the judgment of the Appellate Division on that issue but affirms as to all others.

In this special civil part action, defendant Southeastern Pennsylvania Transportation Authority filed an answer but did not plead any affirmative defenses and never moved to dismiss for lack of personal jurisdiction prior to trial. Despite SEPTA's waiver of the defense, the trial judge raised it on his own at the trial's outset, and, after hearing brief argument, dismissed the claim against SEPTA for lack of personal jurisdiction.

In reversing the dismissal of the claim against SEPTA and remanding for a trial on the merits, the court concluded that once the defense of lack of personal jurisdiction is waived, a judge is not empowered to resurrect it.

The actions of the police amounted to the functional equivalent of interrogation. As a result, A.A. should have been advised of his Miranda rights in the presence of his mother. To hold otherwise would turn Presha and the safeguards it envisioned on their head. To address the special concerns presented when a juvenile is brought into custody, police officers should advise juveniles of their Miranda rights in the presence of a parent or guardian before the police question, or a parent speaks with, the juvenile. Officers should then let the parent and child consult in private. That approach would afford parents a meaningful opportunity to help juveniles understand their rights and decide whether to waive them. Because A.A.’s inadmissible statements comprised a substantial part of the proofs against him, a new hearing is necessary.

Tax Court: Saulwil, Inc. v. Dir., Div. of Taxation, Docket No. 014062-2013; Samuel and Louise Hammer v. Dir., Div. of taxation, Docket No. 014061-2013; opinion by Sundar, J.T.C.,decided January 10, 2020. For plaintiff – Robert A. Fee (Robert A. Fee, Esq., attorneys); for defendant - Heather Lynn Anderson (Gurbir S. Grewal, Attorney General of New Jersey, attorney).

Held: Defendant’s decision that the books and records of corporate plaintiff were inadequate, which therefore required that its reported sales be increased using an estimated markup, was unreasonable and unsupportable. Therefore,defendant’s final determination assessing additional sales tax on the corporate plaintiff based on its markup methodology is reversed. Also reversed is defendant’s final determination imposing additional gross income tax upon the individual plaintiffs on the constructive receipt of the deemed additional corporate sales.

In this case of first impression, the court considers whether a workers' compensation judge can order an employer to reimburse its employee for the employee's use of medical marijuana prescribed for chronic pain following a work-related accident.

Because the court concludes the order does not require M&K to possess, manufacture or distribute marijuana, but only to reimburse petitioner for his purchase of medical marijuana, the court discerns no conflict between the federal Controlled Substance Act, (CSA), 21 U.S.C. § 841, which makes it a crime to manufacture, possess or distribute marijuana, and the New Jersey Compassionate Use Medical Marijuana Act (MMA), N.J.S.A. 24:6I-1 to -29.

Furthermore, M&K's compliance with the order does not establish the specific intent element of an aiding and abetting offense under federal law. The court also concludes M&K is not a private health insurer. Therefore, it is not excluded under the MMA from reimbursing the costs of medical marijuana.

Here, where petitioner has demonstrated the severity and chronic nature of his pain, his attempts to unsuccessfully alleviate the pain with multiple surgeries and medical modalities, and the validated efficacy of the prescribed medical marijuana, the court finds the use of medical marijuana is reasonable and necessary. Finding no legislative or legal barrier to an employer's reimbursement of its employee's expense for medical marijuana in a workers' compensation setting, the court affirms the order.

During the three-year interim period between passage of the amendment to the Wiretap Act in 2010 and the effective date of the Court’s Earls decision in 2013, individuals possessed a reasonable expectation of privacy in cell-phone location information cognizable under our State Constitution. As in other contexts, exceptions to the constitutional warrant requirement -- such as consent or exigent circumstances -- apply to securing cell-phone records. Therefore, in 2011, our Constitution required law-enforcement officers to obtain either a warrant or court order for cell-phone location information in accordance with the standards of N.J.S.A. 2A:156A-29 or to satisfy one of the exceptions to the warrant requirement. It also follows that, under Article I, Paragraph 7, the exclusionary rule applies to unconstitutional searches and seizures of cell-phone records. Here, the State did not obtain a warrant or court order and failed to satisfy its burden of proving that exigent circumstances justified the warrantless search, requiring suppression of defendant’s cell-phone records.

After the court's affirmance of an abuse/neglect determination, defendant – with new appellate counsel – moved for reconsideration, claiming: (1) the court did not adequately review the record as evidenced by its short, three-paragraph opinion, and (2) the court ought to reopen the record so defendant may now assert arguments that prior appellate counsel was ineffective.

In finding no merit in the first contention, the court rejected defendant's theory that suggested the size of an appellate opinion reflects the time and effort expended by the court in considering the record and the issues. The court found that the second argument presented a novel question as to how a defendant in an abuse/neglect matter should pursue a claim of ineffectiveness of appellate counsel. The court determined that a reconsideration motion in the appellate court is not an inappropriate method but – because Rule 2:6-11(a) provides only a ten-day window for seeking such relief – the appellate ineffectiveness argument could also be pursued by way of a Rule 4:50 application in the trial court. Because the ineffectiveness arguments posed here warranted further factual development, the court remanded the matter to the trial court.

Tax Court: Plaza Twenty Three Station, LLC v. Township of Pequannock, Docket Nos. 002870-2018; 002215-2019; 000062-2019; opinion by Bianco, J.T.C., decided January 9, 2020; published opinion January 22, 2020. For plaintiff – Daniel P. Zazzali and Michael D. Benak (McCarter & English, LLP, attorneys); for defendant – Robert H. Oostdyk, Jr. (Murphy McKeon, PC, attorneys).

HELD: The court invalidated the 2018 and 2019 local property tax assessments, along with a 2018 added assessment, imposed by defendant upon the subject property owned by plaintiff. The court found that these assessments were based on and carried forward, the 2017 added assessment, which this court had held constituted an unconstitutional spot assessment, the same being based on the 2017 sale of the subject property.

The firm did not breach any fiduciary duty where the firm was not made aware, nor did it have any basis on which it reasonably should have been aware, of plaintiff or of a claim by plaintiff to the funds. As such, there was no relationship between the firm and plaintiff on which a fiduciary duty was owed. On that issue, the Court affirms the judgment of the Appellate Division. However, defendants cannot be found to have engaged in conversion in this matter. Where, as here, a law firm lawfully holds in trust wired funds for its client’s real estate transaction, which funds are received with no limiting direction or instruction and for which the firm receives no demand from the non-client, the firm’s disposition of the trust funds in accordance with the client’s instructions does not give rise to a claim for conversion. The Court rejects the reasoning that under these circumstances the obligation to make a demand is excused and reverses as to the conversion claim.

The court rejects defendant's argument that the imposition of an eight-year custodial sentence after serving almost five years of special probation was an unconstitutional judicial extension of the statutory ten-year maximum custodial sentence, contrary to Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and Blakely v. Washington, 542 U.S. 296, 303 (2004). Years served on special Drug Court probation are not equivalent to incarceration. Special Drug Court probation is an extraordinary rehabilitative opportunity, provided to defendants who choose to accept it with the clear explanation that a violation could result in the imposition of the maximum term of incarceration.

Plaintiff, John Doe, initiated this tort action in New Jersey against the Archdiocese of Philadelphia and St. Charles Borromeo Seminary (hereinafter “Archdiocese defendants”). The Archdiocese defendants filed a motion to dismiss plaintiff’s complaint raising the defenses of lack of personal jurisdiction, statute of limitations and forum non conveniens. The motion was initially denied and a plenary hearing on the issue of the statute of limitations was scheduled; however, that hearing was adjourned nearly one year as the court permitted an additional period of discovery. The Archdiocese defendants subsequently renewed their prior motion seeking a decision as to whether Pennsylvania or New Jersey law applies. The choice-of-law question raised in the motion is particularly important because under Pennsylvania law, plaintiff’s mental state cannot toll the statute of limitations. After oral argument, the court determined it would not violate the Archdiocese defendants’ due process rights to subject them to in personam long-arm jurisdiction of the courts of New Jersey. Additionally, the court conducted a forum non conveniens analysis, and found New Jersey to be an appropriate forum for this action. The court next must determine if New Jersey’s statute of limitations precludes further adjudication of this claim. A plenary hearing, pursuant to Lopez v. Swyer, 62 N.J. 267 (1973), will be scheduled.

Under the reasoning of Garrity v. New Jersey, 385 U.S. 493 (1967), a defendant’s statements in an answer to a civil forfeiture action cannot be introduced in a parallel criminal proceeding in the State’s case in chief. Like the Appellate Division, the Court finds the error was harmless in light of other strong evidence connecting defendant to the apartment. The Court also agrees that criminal defendants who have been served with civil forfeiture complaints are entitled to enhanced notice of certain issues. The Court outlines several points about notice and refers the matter to the Civil and Criminal Practice Committees for further review.

The court considered whether it was proper pre-trial for the trial court to review in camera a statement taken by defendant's investigator of a State's witness and redact inculpatory portions. Defendant requested this procedure as he only wanted to use the portions of the statement that were favorable to him. The State was only provided with the redacted statement.

The court concluded the process employed by the trial court was contrary to the intent established under Rule 3:13-3 and State v. Williams, 80 N.J. 472 (1979). The panel stated if a defendant wishes to use a statement or information taken from a State's witness, he or she must decide prior to trial, advise the State, and produce the statement.

Redaction of the statement prior to disclosure is only appropriate for any asserted work product privileged information. If defendant refuses to declare his or her intentions prior to trial regarding a statement, a trial court must consider the appropriate remedy under Rule 3:13-3(f). The procedure employed here deprived the State and its witness of the opportunity to assess the veracity of the statement.

This appeal stems from a pregnancy discrimination suit brought by a female police officer against her employer. Plaintiff contends the employer violated the New Jersey Pregnant Workers Fairness Act ("PWFA"), a statute that has yet to be construed in a published opinion.

The PWFA amended the New Jersey Law Against Discrimination, effective January 2014, to explicitly prohibit pregnancy-based discrimination in employment and in other contexts. Among other things, the PWFA obligates employers, subject to an "undue hardship" exception, to provide "reasonable accommodations" in the workplace to pregnant women upon their request, and to not "penalize" such women because of their pregnant status. N.J.S.A. 10:5-12(s).

When plaintiff found out she was pregnant, she told her supervisors her doctor recommended she be taken off patrol. She asked to be transferred to a light-duty or less strenuous position within the Police Department. Plaintiff was consequently assigned to non-patrol duty, pursuant to the Department's maternity assignment policy. That policy allows pregnant officers to work a maternity assignment, but on the condition that the officer use up all of her accumulated paid leave time (e.g., vacation, personal, and holiday time) before going on the changed assignment. The maternity assignment policy differs from the Department's policy providing light-duty assignments for nonpregnant injured officers, because only the latter policy gives the Police Chief the authority to waive the loss-of-leave-time condition.

This court vacates the trial court's entry of summary judgment in favor of defendants. The Department's maternity assignment policy, as written, unlawfully discriminates against pregnant employees as compared to nonpregnant employees who can seek and obtain a waiver of the loss-of-leave-time condition. Such nonequal treatment violates the PWFA. The court upholds plaintiff's facial challenge to the policy and directs the trial court to grant her requests for declaratory and injunctive relief, leaving other remedial issues to be decided below.

The court vacates summary judgment in the employer's favor with respect to reasonable accommodation issues. There are genuine issues of material fact for a jury to resolve as to the reasonableness of the loss-of-leave-time condition and whether that condition is so harsh as to comprise an impermissible "penalty." The jury also must evaluate the employer's assertions of undue hardship and plaintiff's claims for monetary damages.

This court affirmed the denial of parole to a convicted murderer of a State Trooper. On remand, the full Board questioned Acoli about his rehabilitative efforts and his previous assertion that he was unconscious during the 1973 shooting. The Board found his responses were insincere, rehearsed, shallow, emotionless, contradictory, and implausible. After finding he lacked insight into his criminal behavior, the Board determined there was a substantial likelihood that Acoli would commit another crime if released at this time.

Judge Rothstadt dissented.

Tax Court: Jesse Wolosky v. Fredon Twp. and Michael & Penny Holenstein, Docket Nos. 008267-2016; 009548-2017; 010326-2018; opinion by Bianco, J.T.C., decided December 18, 2019. For plaintiff – Walter M. Luers (Walter M. Luers, LLC, attorneys); for defendant Fredon Twp. - William E. Hinkes (Hollander, Strelzik, Pasculli, Hinkes, Wojcik, Gacquin, Vandenberg & Hontz, L.L.C., attorneys); for defendants Michael and Penny Holenstein - Tara Ann St. Angelo (Gebhardt & Kiefer, P.C., attorneys); for the Amicus Curiae, Association of Municipal Assessors of New Jersey - John R. Lloyd (Chiesa Shahinian & Giantomasi, P.C., attorneys).

Tax Court: City of Plainfield v. Borough of Middlesex, Docket No. 000160-2019; opinion by Sundar, J.T.C., decided December 24, 2019. For plaintiff - John S. Wisniewski (Wisniewski & Associates, L.L.P., attorneys); for defendant - Michael P. O’Grodnick (Savo, Schalk, Gillespie, O’Grodnick & Fisher, P.A., attorneys).

Held: Property owned by plaintiff, City of Plainfield, located in defendant, Borough of Middlesex, is exempt from local property tax under N.J.S.A. 54:4-3.3. The exemption is not lost because a portion of the property is undisputedly used by defendant and the general public for public purposes, and the remainder is retained in its natural wooded state.