Published Appellate Court Opinions

Following the robbery of a store in West New York, police retrieved surveillance video from a nearby building and sent a still photo from the video to the New Jersey Regional Operations Intelligence Center (NJROIC) to help identify the perpetrator using facial recognition technology (FRT).  When the NJROIC could not find a match, police sent all the raw video footage to the Facial Identification Section of the New York Police Department Real Time Crime Center (NYPD RTCC), where a detective captured a still image, compared it against the center's databases, and offered defendant as a possible match.

Police subsequently included the photo from the NYPD RTCC along with five filler photos to construct photo arrays to show two eyewitnesses.  The eyewitnesses identified defendant as the perpetrator, and he was subsequently charged.

Defendant sent the State a discovery demand containing thirteen items seeking information regarding the FRT used to identify him.  He also moved to suppress the out-of-court identifications by the eyewitnesses.  The trial court conducted a Wade[1] hearing and denied the suppression motion.  Meanwhile the State obtained documents from the NYPD RTCC answering two of the thirteen discovery demands.  Defendant moved to compel the State to answer the remaining discovery requests, arguing the discovery was:  necessary to impeach the eyewitness identification; impeach the police investigation; and exculpatory.  Defendant's motion included a declaration from an FRT expert, detailing why the information sought was relevant and explaining the vulnerabilities of FRT, including problems with its reliability.  The trial court denied the motion to compel.

On leave granted, defendant re-asserts the arguments made to the trial court.  Amici joins in defendant's arguments on appeal.

The court held the discovery dispute was a separate matter than the Wade hearing and defendant was entitled to the discovery to construct a defense and for impeachment purposes.  Discovery into the FRT was necessary because it is a novel and untested technology, and no New Jersey court has addressed the issue.  Moreover, the discovery sought was attainable because:  the State raised no proprietary objections; had already obtained some discovery from the NYPD RTCC; and the items sought regarded defendant's identification and reliability of the identification process.

The court reversed and remanded for entry of an order compelling the State to provide the eleven remaining items of discovery.  The trial court is authorized to enter a protective order, order the in-camera review of the materials received from the State, and hold a Daubert[2] hearing, if necessary.

[1]  United States v. Wade, 338 U.S. 218 (1967).

[2]  Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).

Plaintiff alleged his employer wrongfully terminated him based on a perceived disability in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.  The disability allegedly perceived by defendants was that plaintiff was "suffering from COVID-19."  A Law Division judge granted defendants' motion to dismiss pursuant to Rule 4:6-2(e), finding plaintiff had failed to plead a viable cause of action for perceived disability discrimination under the LAD. 

The court affirmed, agreeing that even assuming defendants believed plaintiff had COVID-19, the facts plaintiff had alleged in his pleadings – on July 23, 2020, plaintiff felt ill in that he felt "cold, clammy, and weak"; he was able to report to work and stay until the end of the day; the next day he was able to go to a free clinic to obtain a COVID-19 test; he did not allege he had gone to a hospital or a doctor's office or that he had otherwise sought medical attention or treatment; some unspecified time later, he reported he "was feeling better"; he was feeling well enough that he felt able to and offered to return to work; and he was terminated on July 29, 2020, after he had reported his condition had improved and he felt well enough to work – were not sufficient to establish a prima facie case under the LAD that he was terminated because his employer perceived he had a disability.

The court reverses the trial judge's denial of defendant's motion to suppress drugs police found following a motor vehicle stop based on observed traffic violations.  This case presents a novel question concerning the vehicle registration search exception to the warrant requirement.  That exception authorizes police to enter a lawfully stopped vehicle to conduct a pinpointed search for a registration certificate if the motorist is unable or unwilling to produce that document after having been provided a meaningful opportunity to comply with the police request for it.  State v. Terry, 232 N.J. 218, 222 (2018).  In this case, defendant parked and exited the vehicle before police could effectuate the stop.  The court addresses whether police may initiate a search under this "very narrow" exception when the detained motorist is outside the vehicle when police request the registration certificate, and the officer determines it would be unsafe to allow the motorist to reenter the vehicle to retrieve it. 

The court concludes that providing a detained motorist a meaningful opportunity to produce the registration certificate is an indispensable prerequisite to conducting a registration search—one that can only be excused when the motorist is unable or unwilling to comply with the police request for the vehicle credentials.  The court holds a motorist is not "unable" to produce a registration certificate within the meaning of the exception when the sole reason for such inability is a police officer's discretionary decision to prevent reentry.  The court reasons that any contrary interpretation of the registration search exception would undermine, if not eviscerate, the protection of privacy rights afforded by the meaningful-opportunity element by leaving its application to the mercy of unreviewable police discretion. The court declines to create a categorical exemption to the meaningful-opportunity requirement when police determine, in the exercise of their discretion, the motorist should not be allowed to reenter the stopped vehicle for reasons of officer safety. 

Although the police in this case were permitted for their own safety to place defendant in the police car and prevent him from reentering the detained vehicle throughout the investigative detention, that decision had the effect of foreclosing a warrantless registration search.  The court notes that strict enforcement of the meaningful-opportunity prerequisite in these circumstances would not deprive police the ability to investigate whether a car was stolen since they can obtain the information contained in the paper registration certificate by conducting a Motor Vehicle Commission database look-up.    

The court also addresses significant recent revisions to N.J.S.A. 39:3-29—the statute that prescribes a motorist's duty to possess and exhibit a registration certificate to police during a motor vehicle stop and that undergirds the registration search exception to the warrant requirement.  Under the revised statutory framework, motorists are no longer required to possess a paper copy of the vehicle registration certificate.  Rather, they are now permitted to keep and exhibit the registration certificate in either paper or electronic form.

To avoid the futility and needless privacy intrusion of a physical search for a paper document that may not even exist, and that need not be kept in the vehicle in any event, the court holds, prospectively, that police may not enter a detained vehicle under the authority of the registration search exception to search for a paper document without first asking the motorist whether the registration is kept in paper rather electronic form.

R.K. appeals from the denial termination of his registration obligations imposed by Megan's Law.  In June 2000, R.K. was convicted of endangering the welfare of a child and lewdness and was sentenced to a three-year term of probation conditioned upon 194 days in jail, which equaled time served, registration under Megan's Law, and Community Supervision for Life (CSL).

In April 2001, R.K. was convicted of engaging in prostitution as a patron, arising from an incident that took place in November 2000, less than seven months after he was convicted of endangering the welfare of a child. 

In February 2004, R.K.'s probation was revoked on multiple grounds, including committing the prostitution offense.  He was resentenced to a four-year prison term, which he completed on April 26, 2006.  He has not been convicted of any subsequent offense that has not been vacated. 

In December 2021, R.K. filed a motion to terminate his CSL and Megan's Law registration obligations.  The State opposed the motion, arguing R.K. does not meet the criteria for termination of Megan's Law registration obligations and that he remains a danger to the safety of others.  The trial court denied termination of his registration requirements.  R.K. appeals that decision.  The same order terminated CSL. 

On appeal, R.K. argues he is eligible under N.J.S.A. 2C:7-2(f) to terminate his Megan's Law registration requirements.  The court rejects his argument, finding it directly contrary to the clear and unambiguous language of N.J.S.A. 2C:7-2(f), established public policy, and the spirit of Megan's Law. 

N.J.S.A. 2C:7-2(f) allows Megan's Law registrants to apply for termination of registration requirements "upon proof that the person has not committed an offense with 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others." 

Within months of being sentenced to probation and released from jail, R.K. committed a prostitution offense, was convicted, and was sentenced.  The court holds that pursuant to the plain language of N.J.S.A. 2C:7-2(f), at the moment R.K. committed the new offense on November 27, 2000, he was permanently and categorically ineligible for termination of his Megan's Law registration requirements.  The fact he was subsequently found in violation of probation and resentenced to a prison term, which he has served, did not restart the clock for eligibility for termination of his registration requirements. 

The court granted defendant Shahaad I. Jones leave to appeal from an order denying his motion to suppress evidence — a handgun and large capacity magazine — seized without a warrant from his person.  The court finds the motion court erred by deciding the suppression motion without an evidentiary hearing because defendant's brief submitted in accordance with Rule 3:5-7(b) raised fact issues as to whether the warrantless search of defendant was justified under the plain view exception to the warrant requirement. 

The court also determined the motion court erred by concluding the statutory rebuttable presumption under N.J.S.A. 40A:14-118.5(q) — that, where law enforcement either fails to adhere to the statutory retention requirements found in N.J.S.A. 40A:14-118.3 to -118.5 for body worn camera (BWC) recordings, or intentionally interferes with a BWC's ability to accurately capture audio and video recordings, the law presumes exculpatory evidence was destroyed or not captured — applies only at trials and not at suppression hearings.  The court finds the plain language of N.J.S.A. 40A:14-118 does not support the motion court's determination and holds that because the statute expressly states the presumption is applicable in "criminal prosecutions," the rebuttable presumption applies in suppression hearings. 

The court reverses the motion court's order denying defendant's suppression motion and remands for further proceedings, including for a determination of whether defendant demonstrates an entitlement to the rebuttable presumption under N.J.S.A. 40A:14-118.5(q), and, if so, whether the State rebuts the presumption. 

In this appeal from summary judgment in a breach of contract action, defendants argue plaintiff law firm violated rules of professional conduct by failing to disclose in its retainer agreement the unit of incremental billing – one tenth of an hour – it would utilize during the course of representation.  Plaintiff and defendants entered two retainer agreements, both of which disclosed a required initial deposit, the hourly rates of each attorney at the firm, and which party was responsible for certain administrative costs. 

Plaintiff represented defendants for more than two years pursuant to the parties' retainer agreements, sending monthly and bimonthly invoices throughout the duration demonstrating work billed in increments of one-tenth of an hour.  When defendants refused to remain current with outstanding fees, plaintiff ceased representation and instituted the breach of contract action. The trial court granted summary judgment.  Defendants urged reversal on appeal.

The court affirmed summary judgment as properly granted, and held the retainer agreement was lawful and ethical where, among other things, it sufficiently apprised the clients of the express terms of the agreement in accordance with RPC 1.5(b), and the parties' course of conduct for two years demonstrated assent to those terms.

M.H., a Tier II registrant, filed a motion to terminate his Megan's Law obligations under N.J.S.A. 2C:7-2(f).  The court affirmed the denial of registrant's application as he committed a failure to report offense within fifteen years of his conviction. 

The court also rejected M.H.'s facial and as applied due process and equal protection challenges to subsection (f).  In doing so, the court relied principally on the reasoning set forth in Doe v. Poritz, 142 N.J. 1 (1995), which upheld as constitutional Megan's Law's registration and community notification provisions, and In re Registrant A.D., 441 N.J. Super. 403, 420 (App. Div. 2015).  The court also rejected registrant's reliance on State in Interest of C.K., 233 N.J. 44 (2018), as that case addressed a juvenile's challenge to subsection (g), and the authority relied upon by the court in concluding subsection (g) was unconstitutional to juveniles is inapplicable to M.H.'s challenges to subsection (f). 

          Plaintiffs are tenants at a luxury apartment building complex.  They claim they were defrauded by defendant landlords' knowingly false promises in its advertisements, brochures, and oral statements to prospective tenants that the apartment complex would have "elevated, 24/7 security" and that security personnel would be stationed 24/7 at a podium near each building's entrance.  Plaintiffs allege they relied on these representations in deciding to lease the apartments at the rent level charged. 

          Upon moving into the apartments, plaintiffs learned that the apartment complex's security cameras did not function, and security personnel were only stationed at the front of the building from approximately 11:00 a.m. to 5:00 p.m. on weekdays, with shorter hours on weekends, as opposed to being present 24/7, and at times were present during those hours when performing other assigned tasks. 

          The lease contained a three-day attorney review clause and had several addendums, including a waiver of the right to file a class action against the landlord.  The lease did not contain an arbitration agreement. 

          Plaintiffs filed a class action complaint alleging common law fraud and violations of the New Jersey Consumer Fraud Act against their landlord.  Prior to discovery or class certification, defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted, or, in the alternative, to strike plaintiffs' class action allegations.  Defendants argued the class action waiver in plaintiffs' lease agreements were clear and unambiguous and the lease was not a contract of adhesion.  Plaintiffs argued the lease was a contract of adhesion, the class waiver was unconscionable, and the caselaw upholding class action waivers were inapplicable because the contracts in those cases included an arbitration provision.  The trial court denied the motion in its entirety.  Defendants' motion for leave to appeal that interlocutory ruling was granted. 

          The court affirmed the denial of defendants' motion, holding that a waiver of the right to maintain a class action is unenforceable absent an arbitration agreement.  Noting that the class action waiver dismantled or disabled important procedures provided in our Part IV rules, and that the public policy of this state favors a class action where numerous claims involve a common nucleus of facts, the court adopts a bright-line rule that in the absence of an arbitration agreement, class action waivers are unenforceable as a matter of law and public policy. 

          In this appeal, the court considers the propriety of a Law Division order, excluding several allegations of sexual abuse against defendant that were memorialized in the child-victim's videorecorded statement to law enforcement.  The trial judge had admitted the entire statement under the tender-years exception to the hearsay rule, N.J.R.E. 803(c)(27).  At that time, the judge found the statement trustworthy, noting the alleged victim, who was eight years old when she gave her statement, would be called as a witness at trial.  

          Prior to trial, the State informed the defense the child was unable to recall all but one incident.  During the ensuing N.J.R.E. 104 hearing, the alleged victim, now fifteen years old, acknowledged she no longer recalled certain sexual conduct asserted in her tender-years statement.  The trial judge granted defendant's in limine motion, limiting the child's testimony to the only allegation she recalled, and ordered her videorecorded statement redacted accordingly.  The judge determined the child's lack of memory rendered her unavailable for cross-examination on the incidents she could not recall, thereby violating defendant's right of confrontation. 

           During jury selection in the now-adjourned trial, the court granted the State's emergent application to file a motion for leave to appeal, granted leave, and now reverses the Law Division order.  The court holds defendant's right of confrontation is not violated by admission of the child's entire videorecorded statement under N.J.R.E. 803(c)(27), previously deemed trustworthy by the trial judge, provided the victim testifies at trial and is subject to cross-examination.  The court therefore concludes the trial judge improperly parsed, and erroneously excluded, those alleged incidents the victim does not recall. 

Plaintiff information technology firm brought multiple claims against defendants, its former employee and the law firm that hired him as its in-house technology specialist.  Among other claims, plaintiff alleged the former employee breached his non-compete agreement with plaintiff by taking the job with the law firm, a long-term client of plaintiff.  Plaintiff also alleged the law firm tortiously interfered with the non-compete agreement between plaintiff and its former employee.  After a trial, the Chancery Division enforced the non-compete agreement and found the law firm had tortiously interfered with the agreement between plaintiff and its former employee.

The Chancery Division entered judgment against defendants for damages, including awarding of attorney's fees against the law firm as damages for its tortious interference.  Defendants appealed.

On appeal, the court held the Chancery Division properly awarded attorney's fees as damages for the law firm's tortious interference with contractual relations as an exception to the American Rule, pursuant to DiMisa v. Acquaviva, 198 N.J. 547 (2009).

Defendant appeals an order entered in the Family Part permitting the Division of Child Protection and Permanency to use expunged records obtained from the Monmouth County Prosecutor's Office in a Title 9 litigation concerning the alleged abuse and neglect of his son.  Defendant argues the trial court erred by authorizing the Division to utilize records that were expunged, sealed automatically, and precluded any subsequent use.  We conclude the Division was permitted to use the expunged records pursuant to N.J.S.A. 2C:52-19 because the statute allows the release and use of expunged records upon good cause shown and affirm.

          Registrants filed motions to terminate their Megan's Law registration requirement under N.J.S.A. 2C:7-2(f), arguing the fifteen-year offense-free requirement on juveniles adjudicated delinquent of qualifying Megan's Law offenses did not apply.  The court affirmed the denial of registrants' motions to terminate their Megan's Law obligations because both juveniles were age fifteen or older at the time of their sexual offenses and N.J.S.A. 2C:7-2(f) applies to every person required to register under Megan's Law, including juveniles.

     In 2017, a malware/cyberattack infected Merck's computer and network systems.  Prior to that date, someone had gained access to the computer systems of a Ukrainian company that had developed an accounting software called M.E. Doc used by Merck and other companies in Ukraine.  The malware was delivered into the accounting software.  Ultimately, over 40,000 machines in Merck's network were infected, resulting in "massive disruptions" to Merck's global operations.  The malware spread to at least sixty-four different countries, including Russia.  
     Merck sought coverage for its losses under defendants' "all risks" property insurance policies.  Defendants denied coverage under the "Hostile/Warlike Action" exclusion included in all their policies.  Although defendants conceded the word "warlike" might not be applicable, they asserted the word "hostile" should be read in the broadest possible sense, as meaning "adverse," "showing ill will or a desire to harm," "antagonistic," or "unfriendly."  Defendants contend that any action that "reflects ill will or a desire to harm by the actor" falls within the hostile/warlike action exclusion, as long as the actor was a government or sovereign power.
     The court found the plain language of the exclusion does not support defendants' interpretation.  The exclusion of damages caused by hostile or warlike action by a government or sovereign power in times of war or peace requires the involvement of military action.  The exclusion does not state the policy precluded coverage for damages arising out of a government action motivated by ill will. 
     The court also considered the history of the war exclusion, which has been included in policies for more than a century.  The few applicable cases reaffirm that similar exclusions have never been applied outside the context of a clear war or concerted military action.
     The court concludes the exclusion did not include a cyberattack on a non-military company that provided accounting software for commercial purposes to non-military consumers, regardless of whether the attack was instigated by a private actor or a "government or sovereign power."  Defendants could not assert the exclusion to bar coverage for Merck's losses.
 

     In this class action matter arising out of a contract dispute, plaintiffs appeal from a July 15, 2022 order granting defendants' motion to stay proceedings against Verizon and to compel arbitration in accordance with the arbitration agreement appearing in the Verizon Customer Agreement.  In an oral opinion of the same date, the trial judge first severed a limitation on damages provision from the agreement before enforcing the arbitration clause.  In reaching its decision, the court did not discuss any provision of the agreement other than the limitation on damages and severability clause.  Nor did the trial judge address why the reasoning of MacClelland v. Cellco P'ship, 609 F. Supp. 3d 1024 (N.D. Cal. 2022), which found the exact same arbitration clause unenforceable as permeated with unconscionability, should not apply with equal force here. 
     Exercising de novo review, the court held that the arbitration agreement is unenforceable in its entirety as it is permeated by provisions which are unconscionable and violative of New Jersey public policy.  The court affirmed the trial judge's determination striking the agreement's limitation on damages, reversed the order staying the proceedings and compelling arbitration, and remanded for proceedings consistent with its decision.
 

     Pursuant to N.J.S.A. 18A:66-36 (Section 36), a member of the Teachers' Pension and Annuity Fund (TPAF) who has "completed [ten] years of service" and has "separated voluntarily or involuntarily from . . . service[] before reaching service retirement age" is eligible to receive deferred retirement benefits, provided the separation was "not by removal for conduct unbecoming a teacher or other just cause."  N.J.S.A. 18A:6-7.1 permanently disqualifies teachers and other school employees who have been convicted of certain crimes from employment in all school systems under the supervision of the Department of Education. 
     Petitioner had accumulated eleven years of service credit when his teaching certificate was revoked by the State Board of Education based on a disqualifying criminal conviction under N.J.S.A. 18A:6-7.1. The conviction was the result of crimes he committed while employed at a mortgage company before he became a teacher and were unrelated to his position as a teacher.  The TPAF Board denied the petitioner's application for deferred retirement benefits, reasoning his separation from membership in the pension plan was based upon a "removal for conduct unbecoming a teacher."  
     The court reversed, relying on In re Hess, where the court held that under the equivalent Public Employees' Retirement System statute forfeiture of deferred pension benefits was "conditioned on an involuntary removal due to misconduct related to employment." 422 N.J. Super. 27, 37 (App. Div. 2011).  And, Masse v. Board of Trustees, Public Employees' Retirement System, where the Court distinguished between removal based on misconduct and forfeiture of pension rights "unrelated to [the employee's] service."  87 N.J. 252, 263 (1981). 

         In this medical malpractice litigation, plaintiff, individually and as executrix of her late husband's estate, moved to compel defendants to permit her expert to conduct an onsite inspection of decedent's electronic medical record (EMR).  Plaintiff contended that pursuant to Rule 4:18-1, she had the right to inspect and examine the "metadata" associated with the EMR, which exceeded more than 2,000 pages and had already been produced in PDF format by defendants.  Plaintiff agreed that defendants would control the log in to the computer system and the mouse guiding the expert's review.  Plaintiff also agreed not to access the system through the use of thumb drives or discs to copy any information.  Plaintiff also sought production of an "audit trail" of the EMR for nearly a full year after decedent's discharge.

         Defendants objected, arguing the discovery request was unduly burdensome and posed security risks and the risk of exposing other patient's EMR.  They argued that plaintiff should identify specific entries in the record for which she sought metadata, and they would produce it, subject to assertions of confidentiality or privilege.  Defendants also objected to producing the audit trail, claiming it, too, was unduly burdensome and irrelevant.

         The Law Division judge granted plaintiff's motion, and the court granted defendants leave to appeal.

         The court concluded that plaintiff was entitled to access metadata in decedent's EMR pursuant to Rules 4:10-2(f) and 4:18-1, and that defendants bore the burden of demonstrating the discovery request was unduly burdensome.  The court agreed with the motion judge's conclusion that defendants failed to do so, and the proposed inspection was reasonable.  The court affirmed that portion of the judge's order granting the inspection as modified by reasonable restrictions, including a time limit for the inspection of four hours.

         The court, however, reversed that portion of the judge's order requiring defendants to produce a post-discharge audit trail that extended beyond the date of the last entries made to decedent's EMR, finding plaintiff failed to demonstrate the potential for relevant information from such a broad request. 

Plaintiff appeals from the order of the Superior Court, Chancery Division, Family Part, Camden County's dismissing her domestic violence complaint against defendant.  The Family Part found plaintiff failed to satisfy her burden under the second prong of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).  On appeal, plaintiff argued the trial court misapplied the facts to the law regarding Silver's "second inquiry."

The court concluded plaintiff satisfied her burden under both prongs of Silver, and also held the Family Part erred when it considered whether plaintiff's current husband and defendant's father could protect her in the future, when the proper focus of a Silver "second inquiry" should be on defendant's likelihood to continue his course of abusive behavior, not whether external factors exist which might thwart defendant's efforts to continue the abuse.

The court reversed and remanded to the Family Part for entry of a final restraining order against defendant.

          The court affirms the New Jersey Commissioner of Education's final agency decision finding petitioner Stephanie Angus is entitled to sick leave under N.J.S.A. 18A:30-1 during the period the Board of Education of the Borough of Metuchen excluded Angus from working in her position as a tenured teacher, pursuant to a directive from the New Jersey Department of Health, because of her exposure to a person who tested positive for COVID-19.  The court determined Angus qualified for sick leave under N.J.S.A. 18A:30-1's plain language, which in part defines sick leave to include an absence from an employee's "post of duty . . . because he or she has been excluded from school by the school district's medical authorities on account of a contagious disease." 

          The court rejected the Board of Education's claim N.J.S.A. 18A:30-1 qualifies an employee for sick leave when the employee is excluded from school "on account of a contagious disease" only where the employee personally suffers from the disease.  The court reasoned the Board's interpretation is not supported by the statute's plain language.  The court also determined acceptance of the Board of Education's interpretation of N.J.S.A. 18A:30-1 would render the exclusion-from-work-on-account-of-a-contagious-disease sick leave qualification superfluous because the statute otherwise separately defines sick leave to include an employee's absence from work where the employee suffers a personal disability due to an illness.  

At issue in this appeal is whether a warrant is required to seize a vehicle pursuant to the plain-view exception.  The court granted the State leave to appeal from a Law Division order, which suppressed evidence seized from a motor vehicle that police believed defendant used during the commission of a fatal shooting.  The motion judge essentially reasoned police improperly impounded the car because probable cause did not arise spontaneously prior to the warrantless seizure.  The judge suppressed the evidence seized, following issuance of a warrant to search the car, as fruit of the poisonous tree.

The State argued police were permitted to seize the vehicle pursuant to the plain-view exception to the warrant requirement while they awaited issuance of the search warrant.  The State further contended the "unforeseeability and spontaneity" requirement espoused in State v. Witt, 223 N.J. 409 (2015), applies to the automobile – not the plain-view – exception to the warrant requirement. 

The court concludes the motion judge mistakenly conflated the discrete rules for the warrantless search and seizure of an automobile, and erroneously reintroduced the inadvertence prong of the plain-view exception to the warrant requirement, eliminated by our Supreme Court in State v. Gonzales, 227 N.J. 77 (2016).  The court therefore reverses the Law Division order and remands for further proceedings. 

Plaintiff Delaware River Joint Toll Bridge Commission (Commission) is a bi-state entity created by an interstate compact between the State of New Jersey and the Commonwealth of Pennsylvania and approved by the United States Congress.  In this matter, arising out of a construction project to replace the Scudder Falls Bridge that connects the two states, the court considered whether the Commission was authorized to approve, use, and enforce a project labor agreement (PLA) as a mandatory requirement in its bid specifications.  

This mandate required all bidding contractors and subcontractors to enter into a PLA with certain named unions affiliated with the local building and construction trades councils, recognizing those unions as the sole and exclusive bargaining representatives of the bidder's project workforce.

Defendant George Harms Construction Co. was prevented from bidding on the project because it was a party to a collective bargaining agreement with United Steel Workers (USW), which was excluded from the PLA.  Harms threatened to seek an injunction if the Commission did not add USW as a signatory union to the PLA.

Only one company bid on the project, submitting a bid $69 million over the projected cost of the project and $71 million more than Harms' projected bid.

The Commission sought a declaratory judgment permitting it to award the contract, including the PLA, to the successful bidder.  Harms answered and asserted numerous counterclaims, including a violation of competitive bidding laws.  The trial court dismissed the complaint as moot (the project was completed during the litigation) and granted summary judgment to the Commission on the counterclaims.

The court preliminarily determined the issue was not moot because of the importance of interstate compacts and the high likelihood that the Commission would use a PLA in a future contract.

The issue, then, was whether the Commission had the authority under its compact to approve and use a PLA in its bidding process.  The compact itself is silent on PLAs.  Therefore, the panel looked to the two states' treatment of PLAs.

The court engaged in an extensive analysis of the case law and legislative history in New Jersey and Pennsylvania regarding PLAs.  Currently New Jersey has a statute governing PLAs, N.J.S.A. 52:38-1 to -7.  Pennsylvania does not have any legislation.  The case law, emanating from the Commonwealth Court disfavors PLAs unless the project involves "extraordinary circumstances" and the PLA treats union and nonunion contractors evenly.  Therefore, New Jersey and Pennsylvania do not have parallel or substantially similar state legislation or common law regarding the use of PLAs.

The court concluded the Commission did not have the power to create and authorize use of the mandatory PLA for its project because: (1) there is no express authority for unilateral action in the compact; (2) New Jersey and Pennsylvania have not enacted complementary or parallel legislation and do not have similar common law on PLAs; and (3) the Commission has not consented to exercise of single-state jurisdiction.

The court affirmed the dismissal of the declaratory judgment complaint, albeit for different reasons than articulated by the trial court.  The court reversed the dismissal of the counterclaims and remanded to the trial court.