Opinion Summaries

The Court finds no evidence in University Hospital’s enabling statute that the Legislature intended the Hospital to be a “state administrative agency” under Rule 2:2-3(a)(2). University Hospital’s decisions and actions may not be directly appealed to the Appellate Division.

The TPAF Board acted arbitrarily, capriciously, and unreasonably when it denied Seago’s interfund transfer application. Under the unique facts of this case, equity requires that the TPAF Board grant Seago’s interfund transfer application. Seago’s reasonable and good-faith attempts to ensure that her interfund transfer application was timely filed, coupled with the absence of apparent harm to the pension fund, necessitate this outcome.

Although Beth left the hospital and did not return, Beth left Mia in a hospital where she was undoubtedly well taken care of and her needs were met.  Nothing in the facts suggest that Beth’s actions impaired Mia or put Mia in imminent danger of being impaired while she remained in the safety of the hospital’s care.  The Division therefore failed to meet its burden of establishing abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(a). 

     In this case of first impression, the court considers the limitations on property owners' liability under N.J.S.A. 39:3C-18, when certain classes of motor vehicles are operated on their premises.  Plaintiff in this matter claimed he sustained severe personal injuries when he struck a steel cable while riding his dirt bike on the quarry grounds owned by defendant property owners.  The cable was part of the machinery used in dredging the quarry.  The incident occurred on a Sunday afternoon, while the business was closed. 

     The motion judge dismissed plaintiff's complaint on summary judgment, concluding defendants were immune from liability under N.J.S.A. 39:3C-18 because plaintiff lacked express consent to operate his dirt bike on their property.  The judge summarily denied as moot plaintiff's motion for leave to file an amended complaint to assert allegations of willful and wanton misconduct. 

     Comparing N.J.S.A. 39:3C-18 to a similar statute under the Landowner's Liability Act, N.J.S.A. 2A:42A-1 to -10, the court concludes defendants did not act willfully to create a hazardous condition on their property by failing to lower the steel cable, within the meaning of N.J.S.A. 39:3C-18.  Because the court holds summary judgment was warranted under N.J.S.A. 39:3C-18, the court concludes the motion judge properly denied plaintiff's motion for leave to amend his complaint.

Chapter 212 is to be applied prospectively to conduct that occurred on or after August 6, 2019 -- Chapter 212’s effective date -- not retroactively to conduct that occurred before that date.  The trial judge properly dismissed the portions of the complaint relying on Chapter 212 but arising from conduct prior to its effective date.

An LSES rider does not fall within the definition of “pedestrian” for purposes of the No-Fault Act. Goyco is not entitled to PIP benefits.

The parties’ agreement to enter into an independent contractor business affiliation is enforceable under N.J.S.A. 45:15-3.2, and Kennedy, as an independent contractor, was not subject to the WPL pursuant to N.J.S.A. 34:11-4.1(b). The trial court therefore erred when it denied Weichert’s motion to dismiss the complaint

           This appeal presents a novel issue requiring the court to determine whether the New Jersey Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, or the common law right of public access, mandates disclosure of an attorney's identity when the attorney renders legal advice to a colleague or friend about an ongoing prosecution.  In the present matter, a municipal prosecutor sought counsel from an attorney who, in turn, rendered advice via email to the prosecutor's personal account.  The prosecutor, in turn, disclosed the contents of the email in open court and provided a printed copy of the email to the defense, but redacted the sender's name and email address.  The municipality thereafter denied a government records request for the unredacted email.

          Plaintiff Association for Governmental Responsibility, Ethics, and Transparency (AGREAT) appeals from the March 3, 2023 Law Division order denying its order to show cause to compel production of the email requested from defendants Borough of Mantoloking, its clerk, and its custodian of records.  The motion judge concluded the email did not fall within OPRA's definition of a government record.  The court affirms the order under review and further holds the email is not subject to disclosure under the common law.  The court also concludes, even if the email were a government record, the work product privilege and confidentiality exemptions under N.J.S.A. 47:1A-9(b) weigh against disclosure.

          Smith, J.A.D., filed a dissenting opinion, concluding:  the redacted email was a public record under OPRA; the redacted email was privileged pursuant to the work-product privilege, but an attorney waived that privilege in court; a balancing of the public's access to government records with the email sender's reasonable expectation of privacy under Doe v. Poritz, 142 N.J. 1 (1995), justifies disclosure of the name and email address of the sender.

Subsection (c) of the definition of “portray a child in a sexually suggestive manner” in N.J.S.A. 2C:24-4(b)(1) is unconstitutionally overbroad because it criminalizes a large swath of material that is neither obscenity nor child pornography. Because defendant was not charged under subsections (a) or (b) of the definition of “portray a child in a sexually suggestive manner,” and did not challenge subsections (a) or (b) before the trial court or the Appellate Division, the Court does not reach the validity of those subsections.
1. Narrow categories of speech that are historically unprotected by the First Amendment include fighting words, obscenity, child pornography, incitement, defamation, true threats, and speech integral to criminal conduct. Child erotica is not on the list, but both obscenity and child pornography are relevant to this case. Under Miller v. California, something is obscene if (1) “the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest”; (2) “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law”; and (3) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. 15, 24 (1973). Whereas states may constitutionally proscribe the distribution of obscene material, possession of obscene material by the individual in the privacy of his own home is constitutionally protected. (pp. 13-14)
2. In New York v. Ferber, the Court recognized a separate exception to the First Amendment for child pornography. 458 U.S. 747, 764 (1982). The Court has upheld statutes that define child pornography as the portrayal of “sexual conduct” or “sexual acts” by children, which includes the lewd or lascivious exhibition of, or graphic focus on, a child’s genitals or pubic area. Id. at 751-53, 762. Child pornography need not meet the Miller obscenity standard to be proscribed; it is a separate type of speech that is categorically unprotected by the First Amendment. And unlike obscenity, states may constitutionally proscribe the possession and viewing of child pornography in the privacy of one’s home. But laws that ban images that “do not involve, let alone harm, any children in the production process,” violate the First Amendment unless they conform to the Miller obscenity standard. Ashcroft v. Free Speech Coal., 535 U.S. 234, 240-41 (2002).
(pp. 14-17)
3. A court may hold a law facially overbroad under the First Amendment “[i]f the challenger demonstrates that the statute ‘prohibits a substantial amount of protected speech’ relative to its ‘plainly legitimate sweep.’” United States v. Hansen, 599 U.S. 762, 770 (2023). “[A] law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep.” Ibid. (pp. 17-18)
4. “[A]n item depicting the sexual exploitation or abuse of a child” was formerly defined as an image that “depicts a child engaging in a prohibited sexual act or in the simulation of such an act.” N.J.S.A. 2C:24-4(b)(1) (2017). In 2017, the Legislature amended N.J.S.A. 2C:24-4 to expand the definition to include an image that “portrays a child in a sexually suggestive manner,” which is defined in three ways in subsections (a) through (c). Subsections (a) and (b) use nearly identical language to criminalize any depiction of “a child’s less than completely and opaquely covered intimate parts” or “any form of contact with a child’s intimate parts,” whereas subsection (c) uses different language to criminalize other depictions of children “for the purpose of sexual stimulation or gratification of any person.” (pp. 19-21)
5. The first step in any overbreadth analysis is to construe the challenged statute to determine what it covers. Subsection (c) says nothing about obscenity. Although it incorporates Miller’s third prong by requiring that “the depiction does not have serious literary, artistic, political, or scientific value,” it says nothing about Miller’s first or second prongs. Subsection (c) therefore criminalizes a substantial amount of speech that does not legally constitute obscenity. Subsection (c) also strays far beyond the definition of child pornography set forth in Ferber. Where the criminalization depends only on whether “any person who may view the depiction” can use it “for the purpose of sexual stimulation or gratification,” and where the only limit is that the depiction lacks “serious literary, artistic, political, or scientific value,” large swaths of protected material are conceivably ensnared. Indeed, depictions of something other than sexual contact and less than completely covered intimate parts appear to be the only thing that subsection (c) can actually reach that subsections (a) and (b) do not. On its face, subsection (c) criminalizes only materials that do not constitute child pornography. Because the application of subsection (c) to images that constitute neither obscenity nor child pornography is realistic, not fanciful, and is substantially disproportionate to subsection (c)’s lawful sweep, subsection (c) is substantially overbroad. (pp. 23-27)
6. The Court explains why it rejects the State’s suggestion that limiting language from subsections (a) and (b) of the definition of “portray a child in a sexually suggestive manner” could be understood to apply to subsection (c) as well, noting that (a), (b), and (c) are disjunctive, that subsection (c) is not reasonably susceptible to the State’s limiting construction, and that the Court cannot re-write a plainly written legislative enactment. The Court also rejects the State’s claim that “everything that subsection (c) covers . . . fits within” the Supreme Court’s most recent definition of child pornography in United States v. Williams, 553 U.S. 285 (2008). In Williams, the Supreme Court proscribed “obscene material depicting (actual or virtual) children engaged in sexually explicit conduct, and any other material depicting actual children engaged in sexually explicit conduct.” Id. at 293. But subsection (c) proscribes far more than that. (pp. 27-34)
7. Because subsection (c) can be excised without impacting subsections (a) or (b), the Court holds that subsection (c) alone of the definition of “portray a child in a sexually suggestive manner” contained in N.J.S.A. 2C:24-4(b)(1) is unconstitutional. Defendant can be constitutionally prosecuted under New Jersey’s obscenity law but not under a different law that is unconstitutionally overbroad. (pp. 35-36)

Through N.J.S.A. 10:5-12.8(a), a section of the LAD that was enacted in
the wake of the “#MeToo movement,” the Legislature removed barriers that
previously made it difficult for individuals to report abuse. Survivors of
discrimination, retaliation, and harassment now have a legal right to tell
their story -- a right that cannot be taken away by a settlement agreement.
Because the scope of the agreement in this case would bar individuals from
describing an employer’s discriminatory conduct, the agreement
encompasses speech the LAD protects. The non-disparagement clause in
the agreement is against public policy and cannot be enforced.
1. N.J.S.A. 10:5-12.8(a) provides in part that “[a] provision in any
employment contract or settlement agreement which has the purpose or
effect of concealing the details relating to a claim of discrimination,
retaliation, or harassment (hereinafter referred to as a “non-disclosure
provision”) shall be deemed against public policy and unenforceable
against a current or former employee.” The law’s shorthand reference -- the
phrase “non-disclosure provision” -- plainly draws its meaning from the
words it refers back to, not from outside sources like Black’s Law
Dictionary. When the Legislature sets out to define a specific term, as it did
here, courts are bound by that definition. As a result, labels like “nondisclosure,”
which is in the text, or “non-disparagement,” which is not, do
not control the meaning of section 12.8. The operative terms of N.J.S.A.
10:5-12.8(a) ask whether a provision in an employment contract or a
settlement agreement “has the purpose or effect of concealing the details
relating to a claim of discrimination, retaliation, or harassment.” If it does,
the agreement is “against public policy and unenforceable even if the
details relating to a claim disparage an employer. (pp. 14-16)
2. The law’s structure reinforces the conclusion that it encompasses
“non disparagement” provisions that would conceal details about
discrimination claims. Subsection (c) of N.J.S.A. 10:5-12.8 expressly
exempts particular types of clauses that might otherwise be barred by the
plain language of (a), and the Legislature could have exempted non-disparagement
agreements as well. But it did not. Certain language in
section 12.8 -- the use of “relating to” and “a” in the phrase “relating to a
claim of discrimination” -- also support a broad reading of the statute. And
the Court explains how the statute’s legislative history, though not needed
to understand section 12.8’s clear language, reinforces the law’s plain
meaning. (pp. 16-20)
3. Paragraph 10 of the settlement agreement uses expansive language that
encompasses speech about claims of discrimination, retaliation, and
harassment. The scope of the agreement -- barring all statements that would
tend to disparage a person -- is quite broad. It would prevent employees
from revealing information that lies at the core of what section 12.8
protects -- details about claims of discrimination. In that way, the
agreement directly conflicts with the LAD. The carveout at the end of
paragraph 10 does not save the agreement. The last sentence states that
“testimony or statements of Plaintiff related to other proceedings including
lawsuits” is not precluded. Section 12.8’s protections, however, extend
beyond statements made in pleadings or courtrooms. Survivors of
discrimination and harassment have the right to speak about their
experiences in any number of ways, and they can no longer be restrained by
confidentiality provisions in employment contracts or settlement
agreements. (pp. 21-22)
4. The Court reviews defendants’ specific objections to comments Savage
made in a television interview. All of the challenged comments are
protected under section 12.8, but paragraph 10 of the settlement agreement,
if enforced, would have the effect of preventing Savage from making any of
them. The non-disparagement clause in the settlement agreement conflicts
with the LAD in that it encompasses and would bar speech the statute
protects. It has the effect of concealing details relating to claims of
discrimination, retaliation, and harassment, which is directly contrary to the
LAD, and it is therefore against public policy and unenforceable. (pp. 22-
25)
5. The Court provides guidance for remand and explains that it upholds the
Appellate Division’s conclusion that defendants are not entitled to
attorney’s fees and costs, albeit for different reasons. (pp. 25-26)

          The case at issue arises out of a homicide which was captured on a home surveillance system that took place during daylight hours in the City of Trenton.  The suspect can be seen on the video walking down the sidewalk seconds before he/she reaches the victim and shoots him in the head, causing his death.  The question presented was whether a proposed expert in the field of digital forensics should be permitted to testify and proffer an opinion at trial regarding the estimated height of the individual captured on the surveillance video based upon the application of a technique called reverse projection photogrammetry.

          The court held a Rule 104 hearing at which time the State’s proposed expert testified.  Based on the evidence adduced at the hearing, the court ruled that the expert’s testimony was admissible pursuant to N.J.R.E 702.  In that regard: (1) the subject of the testimony was beyond the ken of the average juror and would assist the trier of fact to understand whether the height of the individual depicted in the video was consistent with the defendant’s height; (2) the expert was duly qualified in the field of digital forensics, including reverse projection photogrammetry; and (3) the expert’s testimony and opinions were reliable because they are “based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the field.” State v. Olenowski, ___ N.J. ___ (2023)(slip op. at 8).

The State Constitution guarantees an affirmative right to speak freely. N.J. Const. art. I, ¶ 6. The guarantee extends to victims of harassment and discrimination who have a right to speak out about what happened to them. Although N.J.A.C. 4A:7-3.1(j) seeks to advance legitimate interests -- “to protect the integrity of the investigation, minimize the risk of retaliation . . . , and protect the important privacy interests of all concerned” -- it reaches too far in trying to achieve those aims and chills constitutionally protected speech. The rule is overbroad under the State Constitution, and the Court strikes the relevant part of the regulation.

1. New Jersey’s Constitution provides broader protection for free expression than the Federal Constitution and practically all others in the nation. (pp. 12-13)

2. The overbreadth doctrine considers the extent of a law’s deterrent effect on legitimate expression. A law is facially invalid on overbreadth grounds if the statute prohibits a substantial amount of protected speech relative to its plainly legitimate sweep. The United States Supreme Court’s application of the overbreadth doctrine in United States v. Stevens illustrates the principle. The Court found that the statute challenged in that case created an offense “of alarming breadth” because, although it purported to criminalize animal cruelty, the statute did not actually require “that the depicted conduct be cruel,” such that hunting periodicals could run afoul of the law. 559 U.S. 460, 474-76 (2010). The Court explained that it “would not uphold an unconstitutional statute based on the Government’s representation that it would use the statute “to reach only ‘extreme’ cruelty,” and that it could not rewrite the statute “to conform it to constitutional requirements.” Id. at 480-81. Because “the presumptively impermissible applications of [the law] far outnumber[ed] any permissible ones,” the Court held that the law was “substantially overbroad, and therefore invalid under the First Amendment.” Id. at 481-82. (pp. 14-17)

3. Consistent with the Supreme Court’s approach, the “first step” in this appeal is to examine the text of the regulation to construe its scope. See id. at 474.  The critical language in N.J.A.C. 4A:7-3.1(j) has few, if any, limits. It directs state actors to ask victims and witnesses not to speak with anyone about any aspect of any investigation into harassment or discrimination. That request encompasses a great deal of protected speech, and it has no time limit. One exception appears in the text of the rule -- victims and witnesses can disclose information if “there is a legitimate business reason to” do so -- but the regulation does not offer guidance about what that means. And the regulation does not require that victims be told they are free to decline to follow the request, that they can consult with an attorney about it, or that there will be no repercussions if they exercise their protected right to free speech. Although framed as a request, there is an inherent power imbalance between the investigator who makes the request and the witness who hears it, with the result that many employees will undoubtedly give up their right to speak freely.  (pp. 17-20)

4. Counsel for the Attorney General proposed revisions that would help address the regulation’s broad scope, but the Court cannot expand and rewrite the final sentence to render it constitutional. Id. at 481. The regulation is unconstitutionally overbroad.  The Court acknowledges the State’s good-faith representations that the regulation can be narrowed, but it cannot rely on those representations to uphold the rule. See id. at 480. The Court strikes the last sentence of N.J.A.C. 4A:7-3.1(j) on overbreadth grounds based on the broad protections in the State Constitution. The Court explains why its opinion in R.M. v. Supreme Court of New Jersey, 185 N.J. 208 (2005), does not alter its analysis here. (pp. 20-22)

5. In striking part of the regulation, the Court does not question the principles the regulation tries to foster. The concerns addressed by confidentiality are entirely legitimate and are also important considerations in criminal and internal affairs investigations.  The Court stresses that nothing in its opinion should be construed to limit requests for confidentiality by investigators in those settings. (pp. 22- 23)

This appeal concerns two ordinances of the Borough of Highland Park that amended its municipal code to allow cannabis retailers, consumption lounges, and delivery services to operate in the Borough, subject to operating, licensing, and tax regulations.  Although the ordinances were enacted under express authority delegated by the Legislature through New Jersey's recreational marijuana statute, the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (known as CREAMMA), N.J.S.A. 24:6I-31 to -56, several concerned residents of the Borough challenged the ordinances in the Law Division as preempted by the federal Controlled Substances Act (CSA), 21 U.S.C. § 801.  They also claimed the ordinances are inconsistent with the New Jersey Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and other state and federal laws.  The Law Division judge dismissed the complaint as procedurally untimely and also substantively deficient for failure to state a claim.

In the published portion of this opinion, the court reverses the Law Division’s dismissal of the complaint as untimely under Rule 4:69-6(a), but affirms the dismissal of plaintiffs' preemption claims.  As to the former, the issues presented concern sufficient matters of public interest to qualify under Rule 4:69-6(c) for an enlargement of the 45-day filing period.  As to the latter, the court concludes that, as other state courts have found, the text of the CSA and federal marijuana enforcement policies do not require a finding of conflict preemption of CREAMMA or the Borough's ordinances.

In the unpublished portion of this opinion, the court remands plaintiffs' remaining state-law claims, which were dismissed without an opportunity for discovery and without a possible evidentiary hearing, if one proves necessary to resolve expert opinion and credibility issues.

Pursuant to the Solar Act of 2021, N.J.S.A. 48:3-114 to -120, the Legislature directed the Board of Public Utilities to create a solar facilities program for awarding contracts for grid supply solar facilities and net metered solar facilities greater than five megawatts.  In addition to setting renewable energy goals for the State, the Act directs the development of policy for grid supply solar siting so as not to compromise the State's commitment to preserving and protecting open space and farmland. 

To that end, the Board developed a competitive solar incentive (CSI) program in coordination with the New Jersey Department of Environmental Protection, the Department of Agriculture, and the State Agriculture Development Committee to issue recommendations and a straw proposal on siting requirements.  After a four-year process, which included extensive stakeholder engagement, the Board issued an order that launched the CSI Program. 

N.J.S.A. 48:3-119(c) sets forth seven categories of land where solar facilities shall not be sited unless authorized by a waiver.  N.J.S.A. 48:3-119(c)(7) prohibits siting solar facilities on certain agricultural soils where the grid supply solar facility exceeds the Statewide threshold of 2.5% of such soils unless authorized by the waiver process pursuant to N.J.S.A. 48:3-119(f).  N.J.S.A. 48:3-119(f) describes the waiver process but also states that in no case shall a grid supply solar facility occupy more than 5% of the unpreserved land containing prime agricultural soils and soils of Statewide importance located within any county's designated agricultural development area.

Appellant moved for reconsideration, arguing the Board misinterpreted the siting provisions of the Act codified in N.J.S.A. 48:3-119.  Among other arguments raised by appellant before the Board and on appeal, appellant claimed the Board misinterpreted the Act and ignored the legislative history.  Appellant alleged the 5% per county limit could be exceeded if the 2.5% Statewide limit was not exceeded.  The Board interpreted the siting provisions independently and held the 5% per county limit on development could not be waived. 

The court affirmed the Board's ruling and found the plain language of the Act demonstrated N.J.S.A. 48:3-119(f)'s limit on solar development to 5% of a county's agricultural land was unambiguous.  The 2.5% Statewide limit expressed in N.J.S.A. 483-119(c)(7) served a different purpose and was not a means for a solar developer to exceed the 5% per county restriction.  Moreover, applying the per county limit only after the Statewide limit has been reached could lead to the development of the entirety of a county's agricultural lands.

Given the Act's unambiguous language, the court did not need to resort to the legislative history.  Even so, the legislative history showed the Legislature intended to minimize the potential adverse environmental impacts of solar development and the Legislature never revised the 5% per county limit or stated the per county limit could be waived in either version of the bill before it became law. 

The Board's interpretation of the Act balanced the Legislature's intent to preserve the State's vital natural resources while encouraging the development of clean solar energy.  

The plain language of N.J.S.A. 2C:14-16(a)(2) creates a standard that is permissive and easily satisfied. Here, plaintiff testified that a sexual assault “destroyed” her, she was intensely traumatized, and she was “terrified” for her safety. The family court found her testimony credible. Based on that testimony, the court held plaintiff had demonstrated a “possibility of future risk” to her “safety or well-being.” The Court affirms.

1. “Any person alleging to be a victim of nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt at such conduct,” who is not eligible for a restraining order as a “victim of domestic violence” under the Prevention of Domestic Violence Act of 1991 (PDVA) may apply for a protective order under SASPA. N.J.S.A. 2C:14-14(a)(1), -16. The standard for granting a SASPA protective order differs depending on whether the applicant seeks a temporary or final order. Importantly, an FPO does not require a showing that it is “necessary to protect the safety and well-being” of the victim like a TPO does, see N.J.S.A. 2C:14-15(a); rather, an FPO requires only the “possibility of future risk to the safety or well-being of the alleged victim,” N.J.S.A. 2C:14-16(a)(2). (pp. 14-18)
2. The permissive standards for a SASPA TPO and a PDVA temporary restraining order (TRO) are nearly identical, as are the procedures for seeking a PDVA final restraining order (FRO) and a SASPA FPO. Notably, both SASPA FPOs and PDVA FROs require consideration of a list of non-exhaustive factors, but SASPA lists only two such factors -- “(1) the occurrence of one or more acts of nonconsensual sexual contact, sexual penetration, or lewdness . . . ; and (2) the possibility of future risk to the safety or well-being of the alleged victim,” N.J.S.A. 2C:14-16(a) -- whereas the PDVA lists six, see N.J.S.A. 2C:25-29(a). The Legislature could have duplicated the second factor for a PDVA FRO -- “[t]he existence of immediate danger to person or property,” N.J.S.A. 2C:25-29(a)(2) -- in SASPA, but it did not. In addition, the consequences to a defendant of a PDVA FRO are drastically different from the consequences to a respondent of a SASPA FPO. (pp. 18-22)
3. Applying ordinary definitions of the terms used in N.J.S.A. 2C:14-16(a)(2), the statute’s plain language requires a court to consider whether there is a chance that a survivor may be exposed to physical
   danger, risk, or injury, or may be exposed to something emotionally unwelcome or unpleasant that could make the survivor feel uncomfortable, unhealthy, or unhappy. Because the language of factor two is centered on the safety or well-being of the victim-survivor, a survivor’s own testimony regarding possible future risks to their safety or emotional well-being can suffice. The Court’s reading of the plain text of factor two as creating a lenient and easy-to-satisfy standard is reinforced by context: the “possibility of future risk” required for a SASPA FPO is less demanding than the “necessary” protection required for a SASPA TPO or the “immediate danger” required for a PDVA FRO. Applying that standard, the Court defers to the trial court’s factual findings because they are supported by substantial evidence and finds no error in the court’s legal conclusion. (pp. 22-26)
4. The Court explains why it is not persuaded by Martin’s claims of error, why it disagrees with the concurrence’s view of N.J.S.A. 2C:14-16(e) and (f), and why it declines to adopt either the six PDVA factors or the standard established for PDVA FROs for use in the SASPA context. Finally, the Court explains that its discussion of Clara’s testimony is not intended to imply that such evidence of psychological symptoms or treatment is necessary to satisfy N.J.S.A. 2C:14-16(a)(2). (pp. 26-33)

The Borough of Englewood Cliffs retained Thomas J. Trautner and Chiesa Shahinian & Giantomasi PC, (collectively CSG), Albert Wunsch III, and Jeffrey Surenian and Jeffrey Surenian and Associates, LLC, (collectively Surenian) to represent it in affordable housing litigation.  After judgment was entered for developer 800 Sylvan Avenue, LLC. (Sylvan), a settlement was reached between the Borough and Sylvan.  Thereafter, political control of the Borough Council majority changed hands and the newly constituted Council sued CSG, Wunsch, and Surenian, alleging professional malpractice, breach of contract, unjust enrichment, civil conspiracy, and aiding and abetting arising from their representation of the Borough in the litigation.  The Borough also sued Sylvan, alleging claims of conspiracy and aiding and abetting. 

The trial court granted defendants' Rule 4:6-2(e) motions to dismiss the Borough's complaint with prejudice.  The trial court subsequently granted defendants' motion for sanctions, ordering the Borough to pay their attorney's fees and costs for filing a frivolous lawsuit.  The Borough appeals, arguing the sanction applications were procedurally deficient; as a public entity, it is immune from paying sanctions under the FLS; and the trial court abused its discretion in finding the Borough's lawsuit was frivolous.[1]

The court rejects the Borough's arguments and affirms based on our interpretation of the FLS that the Borough is not immune from sanctions, defendants' applications for sanctions were procedurally compliant with Rule 1:4-8, and the trial court did not abuse its discretion in imposing sanctions against the Borough.

[1] After their merit briefs were filed, the Borough and Jeffrey Surenian and Jeffrey Surenian and Associates, LLC filed a stipulation of dismissal dismissing all claims and counterclaims, including but not limited to claims for attorney's fees.

         M.R. appealed from a final decision of the Department of Corrections (DOC), denying his application for a certificate of eligibility for compassionate release under the Compassionate Release Act (CRA), N.J.S.A. 30:4-123.51e.  The DOC denied his application because two licensed physicians designated by the commissioner of the DOC had rendered medical diagnoses in which they found M.R. had neither a terminal condition nor a permanent physical incapacity as defined by the CRA.   

         M.R. argued on appeal the CRA and related regulations required the designated physicians to examine him physically and the DOC's decision was arbitrary, capricious, and unreasonable because the physicians had not physically examined him and had failed to make certain findings required under the CRA.  The court disagreed, concluding that, while a physician may request a physical examination, the CRA and related regulations did not require one.  The court also concluded the physicians had made the requisite findings.  Accordingly, the court affirmed the DOC's decision. 

On leave granted, in this medical negligence matter, we consider whether N.J.S.A. 2A:53A-41(a) under the New Jersey Medical Care Access and Responsibility and Patients First Act (Act), N.J.S.A. 2A:53A-37 to -42, requires plaintiffs to serve an affidavit of merit (AOM) from a physician board certified in both specialties if defendant physician is board certified in two specialties, and the treatment claimed to be negligent involves both specialties.

Plaintiffs rely on Buck v. Henry, 207 N.J. 377 (2011), in asserting they need only provide an AOM from a physician who specializes in either of the defendant doctor's specialties.  The trial court agreed and denied defendants' motions to dismiss for failure to provide the proper AOM and for reconsideration.

Defendant physician is board certified in internal medicine and gastroenterology.  He certified that his care and treatment of plaintiffs' decedent involved both specialties.  Plaintiffs only served an AOM from a physician board certified in internal medicine.

In considering defendants' dismissal motions, the trial court cited to two sentences from Buck:  "A physician may practice in more than one specialty, and the treatment involved may fall within that physician's multiple specialty areas.  In that case, an [AOM] from a physician specializing in either area will suffice."  Id. at 391.

Because the facts presented here are distinguishable from Buck and the discrete ruling in Buck was not specific to this issue, and in considering the legislative purpose of the Act, and the principles of law espoused in the subsequent cases of Nicholas v. Mynster, 213 N.J. 463, 480-88 (2013), and Pfannenstein ex. rel. Estate of Pfannenstein v. Surrey, 475 N.J. Super. 83, 90-91 (App. Div.), certif. denied, 254 N.J. 517 (2023), we conclude plaintiffs must serve an AOM from a physician board certified in each of defendant doctor's specialties.  We are also guided by the kind-for-kind, credential equivalency requirement articulated in N.J.S.A. 2A:53A-41(a).  Therefore, we reverse the court's orders denying defendants' motions to dismiss for a deficient AOM and for reconsideration.

However, because plaintiffs raised the issue of a waiver from the AOM requirement, and the issue was fully briefed and discussed during oral argument before the trial court, we remand for the court to determine the waiver argument on its merits.

CPANJ is neither a public agency under N.J.S.A. 47:1A-1.1 nor a public entity subject to the common law right of access. The ACLU’s factual allegations do not support a claim against CPANJ under OPRA or the common law.

1. OPRA applies only if the entity to which a request is directed meets the statutory definition of a public agency. For purposes of OPRA, the terms “public agency” or “agency” denote the entities specified in N.J.S.A. 47:1A-1.1, which include “any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions.” The term “political subdivision” denotes a division of a state that exists primarily to discharge some function of local government, such as a county or municipality, as well as certain entities formed by counties and municipalities, such as parking authorities. The ACLU argues that CPANJ is an instrumentality of the county prosecutors. Accordingly, the core question in this appeal is whether a county prosecutor constitutes a “political subdivision” for purposes of OPRA. (pp. 14-22)

2. A county is indisputably a “political subdivision of the State” as defined in OPRA, N.J.S.A. 47:1A-1.1. The status of the counties themselves as political subdivisions under OPRA, however, has no bearing on the analysis. A county prosecutor is distinct from the county that the prosecutor serves for purposes of OPRA’s reach. A county prosecutor, like the Attorney General, is a constitutional officer who serves by virtue of gubernatorial nomination and Senate confirmation. Although a county exercises considerable control over the fiscal operations of the county prosecutor’s office, a county prosecutor’s law enforcement function is unsupervised by county government or any other agency of local government. In short, the county prosecutor is not the alter ego of the county itself, and does not constitute a “political subdivision” as that term is used in N.J.S.A. 47:1A-1.1. CPANJ, meanwhile, constitutes an organization in which the county prosecutors are members and is not the alter ego of the prosecutors themselves. Because a prosecutor does not meet the definition of a “political subdivision” under N.J.S.A. 47:1A-1.1’s plain language, CPANJ is not a public agency for purposes of OPRA. The ACLU’s factual allegations do not support its assertion that CPANJ is a public agency within the meaning of N.J.S.A. 47:1A-1.1. Because the ACLU did not seek the documents from a public agency in accordance with N.J.S.A. 47:1A-5 and -6, the Court does not reach the question whether the documents identified in its request constitute “government records” under OPRA. (pp. 22-26)

3. A public record under the common law is one that is made by a public official in the exercise of the official’s public function, either because the record was required or directed by law to be made or kept, or because it was filed in a public office. Here, the ACLU identifies no statute, regulation, or other mandate requiring CPANJ to create or maintain the requested documents. It suggests no statutory or regulatory mandates of any kind addressing the records at issue. The ACLU does not allege that CPANJ maintains public documents in a public office; indeed, it does not dispute CPANJ’s assertion that it maintains no office at all. The ACLU identifies no precedential decision discussing, let alone upholding, a request for public documents served on a private entity such as CPANJ. In short, the ACLU asserts no factual allegations that would suggest that CPANJ constitutes an entity upon which a common law right of access request for documents may properly be served. The Court does not reach the question whether the documents that the ACLU requested from CPANJ would be considered common law public documents if requested from a public entity. (pp. 26-29)

Plaintiffs’ good faith and fair dealing claim properly survived summary judgment, but the jury was not correctly charged or asked to rule on that claim. The trial judge failed to instruct the jury that the only underlying contract to which the implied covenant could attach to had to be one beyond the rights afforded by the Bylaws. Adding to the significant uncertainty created by the jury charge and verdict sheet are the improper admission into evidence of the privileged emails and the improper remarks by plaintiffs’ attorney. Those errors, cumulatively, had the capacity to lead the jury to reach a verdict it would not have otherwise reached and thus deprived Valley of a fair trial.

1. A claim for breach of the covenant of good faith and fair dealing that is implied by law into every contract requires a plaintiff to demonstrate that the defendant’s alleged misdeeds prevented the plaintiff from enjoying the full benefit of a particular bargain. Although medical staff bylaws impose reciprocal legal obligations and rights between those who agreed to be bound, those obligations do not give rise to a traditional contract, to a claim for the traditional contract remedy of damages, or to a separate breach of the implied covenant claim. Instead, when a hospital violates its medical staff bylaws, equitable relief may be available. Thus, plaintiffs here would have been entitled to a hearing if Valley had violated the Bylaws by failing to provide one in the first place; the jury, however, expressly found that Valley did not violate the Bylaws. The Bylaws cannot constitute the underlying contract for purposes of plaintiffs’ separate breach of the implied covenant claim. (pp. 28-34)

2. Just as the Bylaws here offer no ground for a breach of an implied covenant of good faith and fair dealing claim, Valley’s administrative healthcare decision to award exclusive privileges to a particular group cannot on its own give rise to a claim for breach of the implied covenant of good faith and fair dealing. A hospital may not act in bad faith and simultaneously serve a “genuine” healthcare objective based on “reasonable and reliable” information. See Desai, 103 N.J. at 91-93. Physicians who are adversely affected by a hospital’s administrative healthcare decision may challenge that decision by arguing that it was not made in accordance with the standard set forth in Desai. Here, however, the trial judge concluded that plaintiffs’ challenge to the Valley’s grant of exclusive privileges was “subsumed” with their implied covenant claim. As a result, the legal principles related to Valley’s administrative decision became relevant only as to its defense to the implied covenant claim, and not as an asserted basis for money damages. (pp. 34-38)

3. The final basis advanced in the course of this litigation for finding that Valley was bound to act in good faith and deal fairly with plaintiffs is an alleged implied contract between the parties, one that goes “beyond the Bylaws.” Plaintiffs allege that, from Valley’s initial offer to join and collaboratively build Valley’s neuroscience department and from the parties’ course of dealings since plaintiffs joined, it can be reasonably inferred that an implied contract existed between plaintiffs and Valley that would allegedly support their expectation to indefinitely maintain their privileges and rights absent a valid administrative healthcare decision providing otherwise. In the event that plaintiffs could demonstrate that all the fundamental elements of contract formation had been established, their theory of an agreement beyond the rights afforded by the Bylaws would be contractual in nature. Among the three possible sources to support plaintiffs’ claim here -- the Bylaws, Valley’s administrative healthcare decision, and the alleged implied-in-fact contract between plaintiffs and Valley -- the only alleged source of mutual obligation to which the implied covenant of good faith and fair dealing could properly attach to is the implied-in-fact contract. (pp. 38-41)

4. The Court explains how the evidence in the record, taken in the light most favorable to plaintiffs, was sufficient to raise a factual dispute as to whether there was an implied-in-fact contract between plaintiffs and Valley and whether Valley acted in bad faith in revoking certain of plaintiffs’ privileges, such that the claim properly survived summary judgment. Although the claim properly reached the jury, however, the jury charge and verdict sheet did not properly instruct the jurors on the elements of the claim. Notably, the jury was given no law on how to measure Valley’s defense to the implied covenant claim, and consideration of the jury charge as a whole raises significant doubt as to whether the jury found the underlying contract for plaintiffs’ implied covenant claim to be some implied or oral agreement beyond the Bylaws, or just the Bylaws. The jury could have come to a different result had it been correctly instructed on the contract claims, especially because the underlying contract on the implied covenant claim -- purportedly an endless right to treat “unassigned” ER patients with special tools -- was not in writing. (pp. 41-52).

5. The emails between Valley and its general counsel for the purpose of legal advice, rather than business purposes, are protected by the attorney-client privilege. Valley did not place its general counsel’s pre-litigation legal advice “in-issue,” nor did it call its general counsel as a witness. Valley’s inadvertent disclosure of the emails -- allegedly consisting of 352 pages -- in the course of an exchange of about 57,000 documents in roughly two months did not amount to waiver of the attorney-client privilege. The parties’ discovery agreement’s claw-back provision anticipated precisely such an inadvertence. And admission of the emails into evidence was not harmless. Select emails in many ways became the centerpiece of plaintiffs’ case. On remand, if plaintiffs attempt to introduce emails from the batch Valley attempted to claw back, the judge should conduct a document-by-document review to determine whether the emails are privileged and thus not admissible. (pp. 52-58)

6. Certain comments by plaintiffs’ trial counsel in summation were improper. Plaintiffs’ trial counsel knew that Valley had evidence of sixty cases of patient transfers. The summation remarks implied, however, that there was evidence of only two cases of patient transfers, and that inaccurate statement impacted Valley’s contention that it made a valid healthcare decision. (pp. 58-61)

7. The cumulative errors here deprived Valley of a fair trial and warrant a new one. The Court sets forth specific guidance for the remand proceedings. (pp. 61-62)