Opinion Summaries

Tax Court: Metz Family Ltd. Partnership v. Township of Freehold, Docket Nos. 001064-2015; 000482-2016; 000783-2017;opinion by Sundar, J.T.C., decided October 20, 2020. For plaintiff - Daniel J. Pollak and Michael Rienzi (Brach Eichler, L.L.C. attorney); for defendant - Martin Allen and Wesley E. Buirkle (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, P.C., attorney); for the Monmouth County Board of Taxation and the Director, Division of Taxation - Abiola G. Miles and Michelline Capistrano Foster (Gurbir S. Grewal, Attorney General of New Jersey, attorney).

Held: Defendant’s motions to require joinder of the Monmouth County Board of Taxation and the Director, Division of Taxation under R. 4:28-1 are granted. Only these two governmental entities can explain why they considered, verified, and certified the annual assessments in the defendant to be “reassessments” excepted from the application of the Chapter 123 ratio (or the average ratio), which is an issue of first impression and involves significant public interest.

Charged with numerous weapons and drug offenses, defendant moved in the trial court for the suppression of evidence – guns, ammunition, drugs, and drug paraphernalia – seized pursuant to a search warrant based on information police obtained during a warrantless entry into defendant's home. The trial judge denied the suppression motion, finding the police conducted a permissible protective sweep of the home. The court disagreed with the trial judge's application of State v. Davila, 203 N.J. 97 (2010), concluding that the police lacked both a reasonable and articulable suspicion of danger and a legitimate purpose for remaining on the premises, since defendant was arrested outside the home and handcuffed before police conducted the sweep.10/

Defendant was convicted in municipal court of driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50(a). In a de novo appeal pursuant to Rule 3:23-8, the Law Division found defendant guilty, but reduced the period of license suspension from nine months to seven months because the municipal court judge improperly relied on defendant's lack of credibility to support a lengthier period of license suspension. In this appeal, defendant argues the Law Division should have vacated his municipal court conviction and remanded the matter for a new trial.

This court also notes the Law Division's failure to follow the standard in State v. Robertson, 228 N.J. 138 (2017) when it stayed the execution of defendant's sentence pending the outcome of this appeal.

In these five consolidated appeals, petitioners and intervenors mount a facial challenge to Attorney General Grewal's Directives 2020-5 and 2020-6, which ended New Jersey's decades-long practice of shielding the identities of law enforcement officers receiving major discipline for misconduct

The court upholds the Directives, finding the Attorney General acted within his authority under the Law and Public Safety Act of 1948, the Criminal Justice Act of 1970, and N.J.S.A. 40A:14-181, and not in violation of Executive Order 11 (Byrne), OPRA, or any right of plaintiffs'. The court's conclusion that the Directives constitute a valid exercise of the Attorney General's authority does not preclude any officer from bringing an as-applied challenge to publication of his or her name pursuant to Directives 2020-5 or 2020-6 for discipline finalized before release of those Directives.

This case presents the unsettled legal question of whether a campus police officer who has been terminated by a State university or college because of alleged non-criminal misconduct may challenge his termination through what is known as "special disciplinary arbitration" administered by the Public Employment Relations Commission ("PERC" or "the Commission"), pursuant to N.J.S.A. 40A:14-209 and -210.

The legal issue arises in the context of an attempt by the New Jersey Institute of Technology ("NJIT") to terminate one of its campus police officers for alleged misconduct in using force to apprehend a potential juvenile offender who was bicycling through the university grounds. Over NJIT's objection, PERC referred the dispute to a special disciplinary arbitrator.

This court affirms PERC's determination that the NJIT police force is a "law enforcement agency" within the meaning of N.J.S.A. 40A:14-200. However, NJIT officers nonetheless are not eligible for special disciplinary arbitration because that option is restricted by N.J.S.A. 40A:14-150 to officers who work for municipal police departments in jurisdictions that are not part of the civil service system.

In addition, even if that statutory restriction under N.J.S.A. 40A:14-150 did not pertain, the officer in this case is ineligible because he has not been suspended without pay, as required by N.J.S.A. 40A:14-209 and -210.

Tax Court: Grace Ashkenazi v. Borough of Deal, Docket Nos.003252-2016; 000434-2017; 000107-2018; 001026-2019, opinion by Sundar, J.T.C., decided October 2, 2020. For plaintiff – Michael I. Schneck (Schneck law Group, LLC, attorney); for defendant – Martin M. Barger (Barger & Gaines, attorney).

Held: Plaintiff’s appraiser’s sales comparison approach as a valuation methodology for the subject property, a 11,330 square-feet single-family home located on a 2.54-acre lot, is rejected due to the quantum of adjustments and reliance on a computer-generated linear regression computation as the basis for certain adjustments. The court agrees with defendant’s appraiser (who found the subject property’s value to be lesser than the assessment for each tax year) that the cost approach was the most credible valuation methodology and accepts his land value conclusions. Based on the cost data included in plaintiff’s appraiser’s report, and other credible cost provisions, and after using higher depreciation rates than used by defendant’s appraiser, the court finds the value of the subject property at an amount lesser than defendant’s appraiser value conclusions for each tax year. The court will decide the issue of whether the average ratio should apply in a separate hearing.

In this appeal, the court considered a condominium association's standing to sue defendants alleged to have been involved in the design, manufacture, and installation of the condominium's windows. The motion judge found the association lacked standing because the master deed declares without ambiguity that the windows are part of the units. The court agreed with that understanding of the master deed and the limits it places on the association's window claims, but the court also recognized that any claim against these defendants based on allegations that their actions altered the buildings' exterior appearance in a way that violated a historic preservation easement could be asserted because the association is bound by the easement and would have a sufficient stake in that claim's outcome. Additionally, the court rejected the motion judge's finding that the association was limited to suing only the unit owners for damages caused to the common elements; that determination is inconsistent with the nature of the association's relationship to the common elements and to the unit owners.

Tax Court: National Winter Activity Center v. Dir., Div. of Taxation, Docket No. 008480-2017; opinion by Bianco, J.T.C., decided September 25, 2020. For plaintiff – Cara A. Parmigiani (Law Office of Cara A. Parmigiani LLC, attorney); for defendant - Joseph A. Palumbo (Director, Division of Taxation, attorney); for movant – Joshua A. Zielinski (O’Toole Scrivo, LLC, attorneys).

The court held that the movant, Vernon, satisfied the requirements for intervention as of right under R. 4:33-1, and granted Vernon’s motion to intervene, finding that Vernon has a legitimate interest in the subject of the litigation due to its authorization to use the funds in its municipality to further the purposes of the Fair Housing Act (N.J.S.A. 52:27D-301 to 329.9). The court also found that Vernon’s interest in the litigation was not adequately represented by the named defendant, the Director, and that the Municipality’s presence is necessary in cases where it is the ultimate user of the funds. Further, the court decided that Vernon’s application is timely because Vernon did not have actual notice of the pending litigation. The court rejected the Plaintiff’s motion to transfer the fees held in escrow by Vernon to the State because Vernon is the ultimate user of the funds, given that Vernon has obtained authorization to assess and maintain Non-Residential Development Fee funds under N.J.S.A. 52:27D- 329.2(a),(b).

Tax Court: Erin B. O’Connell v. Township of Neptune, Docket No. 009646-2020, opinion by Sundar, J.T.C., decided September 23, 2020. For plaintiff – Erin B. O’Connell (self-represented);for defendant – Gene J. Anthony (Law Offices of Gene J. Anthony, attorney).

Held: Defendant’s motion to dismiss plaintiff’s complaint as untimely filed is denied. Although plaintiff’s complaint to the Tax Court was filed on June 30, 2020, thus, beyond the deadline for filing complaints from the judgment of a county board of taxation, she benefits from the filing deadline extension due to COVID-19. Such extension was specifically provided for by the Orders of the New Jersey Supreme Court which culminated into law (L. 2020, c. 35). Although that law specifically excepts the tolling of appeal deadlines for properties which are located in Monmouth County (since Monmouth County participates in the Assessment Demonstration Program), and plaintiff’s property is located in Monmouth County, it does not affect the court’s conclusion. This is because the law applies only to “appeals filed with a county board of taxation,” and not as here, to appeals filed with the Tax Court from a county board of taxation’s judgment.

An underage adult defendant may be held civilly liable to a third-party drunk driving victim if the defendant facilitated the use of alcohol by making his home available as a venue for underage drinking, regardless of whether he is a leaseholder or titleholder of the property; if the guest causing the crash became visibly intoxicated in the defendant’s home; and if it was reasonably foreseeable that the visibly intoxicated guest would leave the residence to operate a motor vehicle and cause injury to another. The duty the Court recognizes today was foreshadowed by precedent and therefore will apply in the case of Zwierzynski.

The New Jersey Arbitration Act (NJAA), which provides a default procedure for the selection of an arbitrator and generally addresses the conduct of the arbitration, clearly expresses the Legislature’s intent that an arbitration agreement may bind the parties without designating a specific arbitrator or arbitration organization or prescribing a process for such a designation. N.J.S.A. 2A:23B-11(a), -15. Under principles of New Jersey law that generally govern contracts, the Agreement at issue is valid and enforceable.

The court determines a settlement agreement between defendant Cumberland County and a former County employee resolving a preliminary notice of disciplinary action (PNDA) against the employee is not a government record under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, but instead is a personnel record exempt from disclosure under section 10 of the statute, N.J.S.A. 47:1A-10. The court rejects the argument of plaintiff Libertarians for Transparent Government that the settlement agreement was properly released in redacted form as not supported by the language of section 10 or the history of excluding personnel and pension records from public access contained in Executive Orders 9 (Hughes), 11 (Byrne) and 21 (McGreevey).

The court reverses the trial court order that released the redacted settlement agreement and remands for the court to consider whether Libertarians is entitled to the agreement, either in whole or in part, under the common law right of access to public records, see Bergen Cty. Improvement Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 520 (App. Div. 2004).

This case examines the scope of Rule 3:11, which requires law enforcement to make a detailed record of an out-of-court identification. The court focused on an unusual live identification event that took place almost two years after the robbery and two weeks before trial. The prosecutor asked the robbery victim to come to the courthouse and sit in a hallway while defendant and other jail inmates were led past her. This event was not electronically recorded and no verbatim account was made of the dialogue between the victim and prosecutor's office representatives who accompanied her. Defendant argued this event corrupted the victim's memory, rendering her subsequent in-court identification inadmissible.

The State did not seek to introduce evidence of the hallway event at trial and characterized it as "trial prep." The court nonetheless concluded it was an out-of-court "identification procedure conducted by a law enforcement officer" within the meaning of Rule 3:11(a) and therefore should have been recorded. The court remanded for the trial court to make detailed findings concerning whether the hallway procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

In this insurance coverage case, the court interprets a policy provision that excludes damage claims "arising out of any act of 'assault' or 'battery' committed by any person," including claims "arising out of . . . any act or omission in connection with the prevention or suppression of such 'assault' or 'battery.'" The court concludes that the exclusion barred an insured tavern's demand for a defense and indemnification arising out of one patron's fatal shooting of another. Specifically, the exclusion encompassed claims by the estate of the deceased patron that the tavern negligently hired, trained, and retained staff, and negligently failed to maintain a place free of reasonably foreseeable criminal activity. Those claims related to acts or omissions in connection with preventing the assault or battery of the victim. In reaching its conclusion, the court distinguished L.C.S., Inc. v. Lexington Insurance Co., 371 N.J. Super. 482 (App. Div. 2004).

The Ordinance is sustained subject to the Court’s further modifications to comply with current legislative enactments. The Court concludes that state law permits the creation by ordinance of this civilian board with its overall beneficial oversight purpose. The Court holds that this review board can investigate citizen complaints alleging police misconduct, and those investigations may result in recommendations to the Public Safety Director for the pursuit of discipline against a police officer. In addition, the review board may conduct its oversight function by reviewing the overall operation of the police force, including the performance of its IA function in its totality or its pattern of conduct, and provide the called-for periodic reports to the officials and entities as prescribed by municipal ordinance. However, to the extent some investigatory powers that the City wishes to confer on its oversight board conflict with existing state law, the Court modifies the Appellate Division’s judgment. The board cannot exercise its investigatory powers when a concurrent investigation is conducted by the Newark Police Department’s IA unit. An investigation by the IA unit is a function carefully regulated by law, and such an investigation must operate under the statutory supervision of the police chief and comply with procedures established by Newark’s Public Safety Director and the mandatory guidelines established by the Attorney General. Concurrent investigations would interfere with the police chief’s statutory responsibility over the IA function, and the review board’s separate investigatory proceedings would be in conflict with specific requirements imposed on IA investigations and their results. The Court also invalidates the conferral of subpoena power on this review board.

This interlocutory appeal concerns the appropriate procedures under the current statute, N.J.S.A. 2A:4A-26.1, for evaluating whether a juvenile charged with a very serious offense should be waived to the Criminal Part and prosecuted as an adult.

On leave granted, the juvenile in this case, defendant Z.S., appeals the Family Part judge's order sustaining a prosecutor's decision to waive him to the Criminal Part to face a jury trial for committing first-degree aggravated sexual assault upon a minor.

The court vacates the trial judge's order because of several critical deficiencies in the processes that resulted in Z.S.'s waiver. Among other things, the prosecutor's written statement of reasons in support of waiver was incomplete, conclusory, and utilized obsolete 2000 guidelines that do not track the controlling factors under the revised 2016 waiver statute.

In addition, the prosecutor failed to explain in writing in advance of the waiver hearing why the extensive mitigating psychological evidence marshalled by the defense, documenting Z.S.'s intellectual disabilities and mental health issues, was inconsequential.

The trial judge also misapplied his discretion by declining to adjourn the waiver hearing at defense counsel's request, with the State's acquiescence, after she had been released from the hospital for pneumonia only two days earlier and was still feeling ill and having difficulty breathing.

Because of these grave procedural shortcomings, the court remands this matter for a renewed waiver hearing. The opinion also offers guidance on how best to proceed in such waiver matters under the revised 2016 statute.

Pfizer’s Agreement and related communications informed Skuse that if she remained a Pfizer employee more than sixty days from her receipt of that Agreement, she was deemed to assent to it. Those communications clearly and unmistakably explained the rights that Skuse would waive by agreeing to arbitration, thus complying with waiver-of-rights case law, and Pfizer’s delivery of the Agreement by e-mail did not warrant its invalidation. Pfizer’s use of the word “acknowledge” was appropriate in the circumstances of this case, given the terms of Pfizer’s arbitration policy and other expressions of assent that immediately preceded that request. Pfizer should not have labeled its communication explaining its arbitration agreement a “training module” or training “activity,” but that is not a basis to invalidate the Agreement. The Agreement was valid and binding, and the Court concurs with the trial court’s decision to enforce it.

The health insurance premium contribution rates paid by the Association’s members were preempted by statute and therefore non-negotiable. PERC’s construction of Chapter 78 comports with the statute’s language and the Legislature’s stated objective to achieve a long-term solution to a fiscal crisis.

The court considers whether interest on a jury award of compensation for the condemnation of property by the Commissioner, Department of Transportation (Commissioner), is subject to the fixed six percent per annum interest rate established in N.J.S.A. 27:7-22. The court held that N.J.S.A. 27:7-22, which applies only when property is condemned by the Commissioner, was impliedly repealed by the subsequently enacted N.J.S.A. 20:3-50. That provision of the Eminent Domain Act of 1971 established uniform standards for the condemnation of property by all State entities. Because of the implied repeal of N.J.S.A. 27:7-22, interest on an award of compensation for the condemnation of property by the Commissioner must be determined in accordance with N.J.S.A. 20:3-32. That statute vests in the trial court broad discretion to establish an interest rate based on evidentiary submissions. This discretion includes the authority to determine when the rate of interest should be simple or compound.

The court considers, on leave granted, the denial of defendant Our Lady of Lourdes Medical Center, Inc.'s motion to dismiss the complaint filed in the name of plaintiff Carolyn Repko ten months after her death and granting the motion of her estate to amend the complaint to substitute itself as plaintiff after the running of the statute of limitations. Because a complaint by a dead person is a nullity, leaving nothing for an amended complaint to "relate back" to under Rule 4:9-3, the court reverses the denial of Lourdes' motion and remands for entry of an order dismissing the complaint with prejudice