Published Appellate Court Opinions

This case of first impression resolves the proper means to attempt to rescind a certificate of dissolution and termination of a New Jersey limited liability company (LLC), which allegedly has been filed in error or without authorization.  The statutory scheme for LLCs, N.J.S.A. 42:2C-1 to -94, contains no provision authorizing the New Jersey Department of the Treasury to perform such a rescission.

The Department accordingly declined plaintiffs' request to rescind a certificate of dissolution and termination that plaintiffs allege had been improperly filed by a former LLC member, advising that such relief can only be obtained through a court proceeding.  Plaintiffs then filed a civil action in the Law Division, which transferred the dispute to this court.

The court concludes the LLC statutes do not empower the Department to rescind such certificates administratively, in the absence of a court order directing such relief.  However, the court holds that our trial courts possess the jurisdiction and authority to grant such relief, with a proper showing of justification by the applicant and upon appropriate notice to interested or affected parties.

The court reverses an interlocutory Law Division order suppressing handguns and a large-capacity ammunition magazine police found in a locked glove box during a traffic stop.   The case presents two questions of first impression under New Jersey law.  Are police permitted to search a glove box under the automobile exception based solely on the odor of marijuana emanating generally from the passenger compartment without first determining whether the odor is coming specifically from the vicinity of the glove box?  And does the New Jersey automobile exception extend to a glove box that is intentionally locked, manifesting a heightened expectation of privacy in its contents?  

Applying principles explained in State v. Cohen, 254 N.J. 308, 328 (2023), the court holds that the smell of marijuana emanating from the passenger compartment provided probable cause to search the entire interior for marijuana, which includes the glove box, since that was a place within the passenger compartment where marijuana could be concealed.  The court declines to create a new rule that would essentially require police to follow a scent trail or pre-inspect containers in the passenger compartment before opening them. 

The court likewise rejects defendants' contention that by locking the glove box, defendants manifested a heightened expectation of privacy comparable to that which applies to a home, taking the glove box outside the realm of the automobile exception.  The court also holds it does not matter under the automobile exception whether the contents of the locked glove box were accessible to the vehicle occupants.  In this respect, the automobile exception is different from the search-incident-to-arrest exception, which limits the scope of a warrantless search to areas "within [the arrestees'] immediate control," see Chimel v. California, 395 U.S. 752, 763 (1969). 

Finally, the court rules that by using a key to open the locked glove box, rather than breaking it open, the "intensity" with which the warrantless search was executed was eminently reasonable and lawful.       

          Defendant Jeffrey Walker entered into a plea agreement with the State after misappropriating health care insurance premiums from his company's employees instead of paying them to the insurance carrier.  In return for defendant's plea to third-degree theft by illegal retention, N.J.S.A. 2C:20-9; and third-degree misappropriation of entrusted property, N.J.S.A. 2C:21-15 and agreement to pay restitution to his victims of $72,471.35, the State agreed to recommend five years of non-custodial probation.  Defendant was then sentenced in accordance with the plea agreement.

         Defendant's probation ended and the then-outstanding balance of his restitution was transferred to collections.  At the time of the appeal, defendant had paid only $27,746 of the money he misappropriated, still owing $45,595.35.  Defendant learned his restitution had been prorated among all the victims, and the prorated restitution owed to the victims not yet located had escheated to the State in case they were later located.

         Defendant filed a post-conviction relief ("PCR") petition to return the escheated funds and pay the victims who had been located.  Defendant then argued it would be in the interest of justice that his restitution obligation be deemed completed once the located victims were fully paid.

         The court rejected defendant's proposal to essentially renegotiate individual restitution settlements as it emphasized the restitution amount and framework was part of a plea agreement negotiated with the State and approved by the trial court.  To extinguish defendant's obligation to pay the full restitution would unjustly reward defendant for his failure to timely pay the full restitution amount within the negotiated five years.  Defendant's proposal would allow him to keep some of the fruits of his offense and deprive his victims of compensation for the losses suffered.  It would also run counter to the remunerative, rehabilitative, deterrence, and punitive goals of restitution.  As a result, the court affirmed the trial court's denial of PCR.

In State v. Comer, the New Jersey Supreme Court held juvenile offenders, prosecuted as adults and convicted of murder, are constitutionally entitled to reconsideration of their sentences after twenty years' imprisonment.  249 N.J. 359, 369-70 (2022).  In these consolidated appeals, all three defendants were eighteen years of age or older when they were prosecuted and convicted of murder, and were sentenced to prison terms ranging from thirty years with a thirty-year parole disqualifier to life with a forty-year parole bar.  Having exhausted their appeals and collateral review, defendants filed pro se applications with the motion courts for the reduction or change of sentence under Rule 3:21-10.  The motion courts denied their applications on the papers, without appointing counsel. 

On appeal, defendants contend, as did other similarly situated youthful offenders before them, the Court's decision in Comer should extend to youthful offenders between the ages of eighteen and twenty when they committed their offenses.  Defendants therefore argue their lengthy sentences should receive the same constitutional protection as juvenile offenders prosecuted and convicted as adults.  Defendants further contend the motion courts should have assigned counsel rather than denying their pro se applications without a hearing. 

The court declined defendants' invitation to extend Comer's holding, concluding the Supreme Court's decision was limited to juvenile offenders tried and convicted of murder in adult court, and the Court neither explicitly nor implicitly extended this right of sentence review to offenders between the ages of eighteen and twenty.  Citing its limited institutional role as an intermediate appellate court, the court expressed its obligation to follow precedential opinions of the United States Supreme Court and the New Jersey Supreme Court.  Noting defendants' arguments lacked merit under Comer and were not particularly complex, the court further concluded the motion courts properly decided their applications without assignment of counsel.  Accordingly, the court affirmed all three orders under review.

     This matter involves a defendant sex offender's motion to modify his judgment of conviction (JOC) and Sex Offender Restraining Order (SORO) issued pursuant to Nicole's Law, N.J.S.A. 2C:14-2 and 2C:44-8.  The SORO prohibited defendant from having any contact with the two victims—his step-daughters—his ex-wife, and their two minor biological children.  Defendant moved to modify the JOC and SORO to allow him to have contact and parenting time with his two minor biological children through a third party.

     Applying the framework established in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), this court concludes that based on similarities between a SORO and a final restraining order issued under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, the factors set forth in Carfagno are applicable to use in considering an application to modify or vacate a SORO, determining the continued necessity of a SORO.

     In this interlocutory appeal, defendants Blue Ocean Waters, LLC and its members Piyush Viradia and Jiten Parikh seek to vacate two orders of the Chancery court.  First, its January 18, 2023 order granting partial summary judgment to plaintiff AC Ocean Walk, LLC to judicially dissociate Blue Ocean Waters and dissolve the parties' partnership agreement under the Uniform Partnership Act (UPA), N.J.S.A. 42:1A-1 to -56.  Second, its March 13, 2023 order denying defendants' motion for reconsideration and amending the partial summary judgment order to reflect that the partnership had dissolved on October 10, 2020.

     We affirm the January 18, 2023 order granting judicial dissociation and dissolution of the parties' partnership agreement.  Defendants' failure to respond to AC Ocean Walk's September 30, 2020 notice of breach of the agreement is a clear indication that judicial dissociation was appropriate under N.J.S.A. 42:1A-31(e) as "it [was] not reasonably practicable to carry on the business in partnership with the partner."  Although no case law in our State has interpreted the "not reasonably practicable" standard for judicial dissociation of a partner, our conclusion is supported by the interpretation of like statutes in other jurisdictions.

     We, however, reverse the March 13, 2023 order by amending the effective date of the dissociation and dissolution to coincide with the date of January 18, 2023 order.  Based on the record before us and the plain language of N.J.S.A. 42:1a-39(e)(3), judicial dissolution occurs when there "is a judicial determination that . . . it is not otherwise reasonably practicable to carry on the partnership business in conformity with the partnership agreement."  Again, in the absence of our State's case law defining the effective date of dissociation and dissolution under N.J.S.A. 42:1A-39(e)(3), our conclusion is supported by the interpretation of like statutes in other jurisdictions.

This dispute involves whether a party to a contract waived its right to compel arbitration by its conduct in a lawsuit it initiated.

Plaintiffs appeal from the trial court's denial of their motion to compel arbitration of claims against defendants for nonpayment of residential construction services they rendered.  The parties' contract, which was drafted by plaintiffs, contained a provision calling for disputes to be resolved through binding arbitration.

The motion judge ruled that plaintiffs waived their contractual right to arbitrate.  Among other things indicative of such a waiver, the record shows that: (1) plaintiffs filed claims in the Law Division beyond those necessary to assert a lien under the Construction Lien Law (CLL), N.J.S.A. 2A:44A-1 to -38; (2) asserted in their Rule 4:5-1(b)(2) certification accompanying their complaint that no arbitration was contemplated; and (3) waited to move to compel arbitration after receiving the benefit of significant discovery, while failing to comply reciprocally with defendants' discovery demands.

Applying the multifactor test prescribed in Cole v. Jersey City Medical Center, 215 N.J. 265, 280-81 (2013), this court concludes that plaintiffs waived their right to compel arbitration.  In the course of doing so, however, the court rejects defendants' contention that the United States Supreme Court's opinion in Morgan v. Sundance, Inc., 596 U.S. 411, 417-19 (2022), eradicates the Cole factor that considers whether the party opposing arbitration was prejudiced by the movant's delay.  Prejudice remains one of the pertinent, but not individually dispositive, Cole factors after Morgan.  However, that particular factor is not controlling in this case, given the totality of the circumstances that otherwise, on balance, further establish waiver.

P.S.: Please note that the court is simultaneously issuing with Marmo two unpublished opinions applying the Cole waiver factors and citing Marmo. 

     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.

           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.

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 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.

This appeal addresses whether the trial court erred by admitting into evidence a statement defendant had made to police and barring in part the testimony of defendant's expert witness. 

Several months after the drug-induced death of the victim, a police detective interviewed defendant, eliciting from her information about her cell-phone usage before he advised her of her Miranda rights and information regarding her drug-selling activity and contact with the victim after he advised her of her rights.  The detective told defendant he was "not holding anything back" and was "laying it all out . . . on the table" but never mentioned the death of the victim and repeatedly used the present tense when discussing her.   Defendant confessed to selling heroin to the victim.  The parties did not raise before the trial court the admissibility of defendant's statement, and the statement was admitted into evidence. The trial court granted the State's pretrial motion to bar defendant's expert witness from testifying about drug use and addiction, finding him qualified only in toxicology and not in those fields.  A jury convicted defendant of committing a first-degree drug-induced death crime, in violation of N.J.S.A. 2C:35-9(a), along with other drug-related crimes. 

The court finds the trial court (1) committed plain error by admitting defendant's statement without first conducting a Rule 104 hearing to determine under a totality-of-the-circumstances test the voluntariness of defendant's statement and Miranda waiver; (2) erred in admitting the pre-Miranda questions and answers but that that error did not rise to the level of plain error because other evidence was admitted regarding defendant's cell-phone usage; and (3) abused its discretion by limiting defendant's expert testimony without conducting a Rule 104 hearing regarding the expert witness's qualifications and opinions.  The court remands the case and instructs the trial court to conduct evidentiary hearings regarding the voluntariness of defendant's statement, the qualifications of defendant's expert witness, and the admissibility of his opinions.   Whether defendant's convictions are affirmed or vacated for a new trial depends on the outcomes of those hearings.

     At issue in this interlocutory appeal is the propriety of a pretrial order compelling the administration of psychotropic medication in an attempt to restore competency, without a defendant's consent, when the accused has not been deemed a danger to self or others.  With defendant's constitutional rights in view, the court applies the four-pronged test enunciated by the United States Supreme Court in Sell v. United States, 539 U.S. 166 (2003), and concludes the motion judge erroneously determined the State satisfied the second Sell prong.  The court therefore reverses the order under review. 

     In doing so, the court departs from the majority of federal appellate courts and holds the standard of review under the Sell test is mixed; the court therefore reviews the motion court's legal conclusions de novo and its factual findings for clear error as to each Sell prong.  Having resolved the issues by applying the Sell standard, the court does not reach the constitutional arguments urged by defendant and amici curiae.

In this automobile insurance coverage dispute, the court considered defendant Wausau Underwriters Insurance Company's appeal from Law Division orders granting summary judgment to plaintiff Britney Motil, entitling her to $100,000 in underinsured motorist (UIM) insurance coverage, and denying reconsideration.  

This appeal presented the novel issue of whether plaintiff was entitled to UIM coverage as a "covered driver" injured in an automobile accident while driving a "covered auto" with an identified alternate garaging address under her parents' automobile policy.  Defendant disclaimed coverage, under the policy's uninsured motorist (UM)/UIM endorsement step-down provision, because plaintiff was neither a named insured nor a defined family member.  After a de novo review, the court concluded there was ambiguity between the declaration and the policy's step-down provision of $15,000 in UIM coverage because the declaration plainly provided:  $100,000 UM/UIM coverage for each person; plaintiff was a covered driver; the UM/UIM premium charged was the same for each vehicle; and plaintiff's vehicle was a covered vehicle with an alternate garaging address.  Further, the court concluded the policyholder's reasonable expectation of $100,000 UIM coverage should be afforded.  

The court affirmed the Law Division's orders finding plaintiff was entitled to $100,000 in UIM insurance coverage and denying reconsideration.

         In these cases that were consolidated for the purpose of issuing a single opinion, defendants appeal from their convictions following municipal court appeals because the Law Division decided their appeals without conducting hearings or permitting briefing.

         In both cases, the Law Division determined briefing was not required and, because defendants did not request argument, decided the appeals based solely on its review of the municipal court transcripts and the police body camera video introduced as evidence in the municipal court trials.  The court found it "is incumbent on counsel to . . . tell the court why briefing is necessary and to request argument if they want it."  On appeal, defendants argued the court deprived them of their rights to due process and counsel.

         The court reversed, concluding Rules 3:23-4 and -8 require that the Law Division schedule and conduct a hearing on a municipal appeal.  There is no requirement that a defendant request a hearing.  The court also noted, although the proceeding is technically designated an appeal, the Law Division must conduct a trial de novo on a municipal appeal.  At the trial de novo, the Law Division must make its own findings of fact and conclusions of law and, if the court finds the State proved its case beyond a reasonable doubt, sentence the defendant anew.

          The court also concluded, based on the arguments raised by defendants, it would be appropriate to permit, if not require, the parties to file briefs in these cases.  Finally, to avoid any appearance of bias or prejudice, the court required the appeals be assigned to a different judge on remand.

This appeal concerns issues of preclusion and the relationship between the statutory systems for the Commissioner of Education and the State Board of Examiners revoking or suspending an educator's certificate to teach in the New Jersey public schools under N.J.S.A. 18A:6-17.1, and the separate arbitration process specified since 2012 in N.J.S.A. 18A:6-38 to -39 2 (the TEACHNJ law) for a school district terminating or disciplining a teacher for improper conduct.

Appellant, a tenured teacher, was charged by the local board of education with unbecoming conduct.  The school board sought to terminate his employment in the district.  The contested matter was tried before an arbitrator.  The arbitrator found appellant had engaged in unbecoming conduct, but she imposed a milder sanction of a one-year suspension.  The arbitrator's decision was not challenged in court by either appellant or the school board.  The Board of Examiners then pursued the revocation of appellant's license based on his same improper conduct, and it is anticipated that contested case will be tried in the Office of Administrative Law.

Appellant contends the Board of Examiners and the Commissioner—even though they were not parties to the tenure arbitration—have no authority to pursue the revocation of his license because the arbitrator only suspended his employment for one year.  Among other things, appellant invokes a doctrine of "industrial double jeopardy" to support his preclusion argument.  He also contends the revocation proceedings violate his constitutional and civil rights.

The matter was presented to a Law Division judge, who confirmed the arbitration award but rejected appellant's arguments for preclusion.

This court affirms the trial court's decision and holds the Board of Examiners and the Commissioner are not precluded by the arbitration outcome from pursuing the revocation of appellant's teaching certificate.  The statewide teacher certificate revocation process authorized in N.J.S.A. 18A:6-38 and -39 operates separately from the teacher tenure arbitration process under N.J.S.A. 18A:6-17.1.  The manifest legislative intent is for the two statutes to be administered independently of one another.  The proceedings involve non-identical parties, and also different stakes, procedures, and avenues and standards of appellate review. 

The court rejects appellant's assertion of industrial double jeopardy and his claims of the violation of his constitutional and civil rights.

Plaintiff, who was fired from her job as a physician, appeals from an order of the Superior Court, Law Division staying her complaint against defendants pending arbitration.  Plaintiff's claims included allegations of sexual assault, intentional infliction of emotional distress, and a statutory retaliation claim under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.

Defendants moved to compel arbitration pursuant to plaintiff's employment contract.  The trial court granted the motion, finding the contract's arbitration clause was valid and enforceable.

The court engaged in a de novo review of the employment contract using well-settled contract principles, and it held the mandatory arbitration clause was ambiguous and therefore unenforceable against plaintiff.  Holding the arbitration clause unenforceable, the court declined to reach the question of whether the Federal Arbitration Act applies.

In a separate opinion concurring with the result, a member of the panel would reverse for a different reason, discerning no ambiguity in the arbitration provision and concluding, unlike the contract at issue in Antonucci v. Curvature Newco, Inc., 470 N.J. Super. 553 (2022), the present contract is not governed by the FAA.  Accordingly, plaintiff's LAD claims would not be arbitrable pursuant to N.J.S.A. 10:5-12.7.