Opinion Summaries

The process for the expungement of a voluntary or involuntary commitment can be found in N.J.S.A. 30:4-80.8 to -80.11. The statutory scheme does not prohibit additional applications if a first petition is unsuccessful. The relevant language in the statute requires a petitioner seeking expungement to present his or her personal history since the hospitalization, as well as his or her present circumstances, and reputation in the community. N.J.S.A. 30:4-80.8; N.J.S.A. 30:4-80.9. Therefore, the court concludes the dismissal of a petition entered after an evidentiary hearing should be designated as "without prejudice."

Following the denial of his motion to suppress physical evidence, defendant pled guilty to first-degree robbery, N.J.S.A. 2C:15-1. Police officers seized the evidence following an investigatory stop of an automobile in which defendant was a passenger. The arresting officer testified he stopped the car because he was advised two black men had robbed a store. The officer used a spotlight mounted to his car to illuminate the interiors of passing vehicles as he traveled to the store. In one car, he observed three black men who did not react to the light. The officer stopped the car based on those observations. The court holds that knowledge of the race and gender of criminal suspects, without more, does not establish a reasonable articulable suspicion that the men in the car had robbed the store. Accordingly, the court reverses defendant's conviction, vacates his sentence, and remands for further proceedings.

Tax Court: B & D Assoc., LTD. v. Township of Franklin Docket Number 6112-2017 and 6387-2018, opinion by Brennan, J.T.C.,decided October 26, 2020. For plaintiff – Lawrence S. Berger (Berger & Bornstein LLC, attorneys); for defendant – Gregory B. Pasquale (Shain Schaffer PC, attorneys)

Held: The municipality’s summary judgment motion was denied.Municipality’s summary judgment motion challenged a property owner’s standing to pursue tax appeals during a time when the property was in foreclosure and tax payments were made by the mortgagee. The Tax Court found that an owner of real property has a sufficient stake in the property’s tax assessment while it holds title to the property and therefore qualifies as an aggrieved taxpayer pursuant to N.J.S.A. 54:3-21. The court held that plaintiff had standing to appeal the 2017 and 2018 tax assessments as it held title to the property until at least August 8, 2018, which was beyond the October 1 valuation date and the April 1 filing date for those years.

Based on the facts of this case, the Court affirms the judgment of the Appellate Division substantially for the reasons expressed in that court’s opinion.

In this appeal from a contested private adoption matter, the court reversed the termination of the biological mother's parental rights and vacated the judgment of adoption in favor of the child's stepmother. The court held the evidence did not support the finding that the biological mother had failed to affirmatively assume the duties of a parent, and found error in the trial court's reliance upon the biological mother's child support arrears as proof of intentional abandonment of financial obligations. Further, the court held the trial court impermissibly shifted the burden of proof, relied on hearsay, and erroneously imported the "best interest" standard applicable to Title 30 guardianship proceedings.

On leave granted, defendant, a Mississippi attorney (and his associated law firms), appeal from the denial of his motion to dismiss plaintiff's complaint for lack of personal jurisdiction. R. 4:6-2(b). Defendant was admitted pro hac vice to represent plaintiff in a federal lawsuit filed in the federal district court for the district of New Jersey alleging, among other things, RICO claims against the New Jersey Attorney General and other state officials. The federal suit was ultimately dismissed; the Third Circuit affirmed the dismissal.

Plaintiff initiated this suit alleging malpractice and excessive billing in defendant's representation of him in the prior federal action. As he did before the Law Division, defendant, who never physically appeared in New Jersey in connection with the federal suit, argued that he never personally availed himself of the privileges of doing business in New Jersey, lacked requisite minimum contacts with the state, and that requiring him to defend himself in state court in New Jersey offended traditional notions of fair play and substantial justice

The court affirmed the Law Division's denial of the motion to dismiss, finding particular significance in defendant's pro hac vice admission, since it required defendant to abide by certain New Jersey Court Rules, including, a limit on contingent fees, financial contribution to the Client Security Fund, and an obligation to abide by the Rules of Professional Conduct as adopted by our Supreme Court.

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).