Published Appellate Court Opinions

The panel considers incumbent vendor Express Scripts, Inc.'s appeal of the Acting Director of the Division of Purchase and Property's final agency decision sustaining the Division's award of a three-year contract for Pharmacy Benefit Management to OptumRx, Inc. Although anticipated changes in Plan Design affecting the Contract make the question more difficult than it might otherwise appear, we conclude Optum's statement "reserv[ing] the right to modify Financial Contracted Terms based on changes by the State in formulary or any carve out of services set forth in the Agreement, including but not limited to Specialty Pharmacy services," constitutes a substantial deviation from a material, non-waivable price term in the Solicitation and thus reverse the decision of the Acting Director and order the Contract rebid as expeditiously as possible. Whether that can occur in sufficient time to allow the Vendor to prepare for open enrollment next October is a matter we leave to the Acting Director.

These consolidated appeals involve a challenge to decisions by two state agencies to finance a comprehensive renovation of the State Capitol complex. The agencies resolved to issue $300 million in bonds and to repay the bonds with rental payments pursuant to a lease of the State Capitol complex.

Plaintiff John S. Wisniewski, then a state legislator, filed a complaint challenging the agencies' actions on the basis that they violated the Debt Limitation Clause (DLC) of the New Jersey Constitution. At the time the complaint was filed, the bonds had already been sold and distributed into the marketplace. Consequently, the trial court dismissed the complaint as moot.

In No. A-4689-16, plaintiff appeals the trial court's determination that his complaint is moot. In Nos. A-4693-16 and A-4698-16, he appeals the final agency decisions. The panel finds the appeals are technically moot. Notwithstanding, the panel addresses the merits because the issue raised is a matter of significant public importance that is capable of repetition while evading review.

The panel concludes the issuance of the bonds to finance the renovations of the State Capitol complex did not violate the DLC. The panel further concludes the State Capitol Joint Management Commission acted within its delegated authority in approving the renovations and entering into the lease/leaseback agreement, and the New Jersey Economic Development Authority possessed the requisite authority to issue the bonds to fund the renovations.

In a prior appeal, State v. Kosch, 444 N.J. Super. 368 (App. Div.), certif. denied, 227 N.J. 369 (2016), the court vacated three of defendants' nine theft convictions and remanded for a new trial on those three theft-of-immovable-property counts; the court also held that "once those three counts are finally adjudicated, defendant should be resentenced on all " in light of potential merger issues, id. at 392-93. Without disposing of the three counts, which still remain unadjudicated, the judge reshaped the prior sentence and imposed the same aggregate prison term as before. Defendant appealed and the court reversed. Although the court recognized the new judgment was not a final order, the court granted leave to appeal out of time and reversed because the trial judge failed to comply with the "peremptory duty to obey" our mandate "precisely as it [was] written"; that mandate unambiguously precluded resentencing without an adjudication of the theft-of-immovable-property counts.

This appeal poses the legal question of whether N.J.S.A. 46:3-17.4, a statute that became effective in 1988, precludes a spouse's unsecured creditor from obtaining the forced partition of real property the spouse and his non-debtor spouse own together as tenants by the entirety. The panel affirms the trial court's ruling that the statute prohibits such non-consensual partition. The statute supersedes and nullifies earlier case law, such as Newman v. Chase, 70 N.J. 254, 262 (1976), which had allowed such a creditor's remedy in certain equitable circumstances.

The New Jersey Education Association challenged regulations pertaining to the disability retirement process for various State retirement systems. In upholding most of the regulations – except those requiring applicants to pay for subsequent independent medical examinations and related addenda – this court maintained the requirement that eligibility for disability retirement benefits requires members to show that they cannot work due to a disability.

In these appeals, consolidated for our opinion, plaintiff sued defendants under the Prevention of Cruelty to Animals Act (PCAA), N.J.S.A. 4:22-11.1 to -60, to recover civil penalties for acts that he contended constituted animal cruelty under its provisions. Plaintiff lacked standing to sue in his individual capacity and the cases were dismissed. He contends the complaints were filed as qui tam actions under N.J.S.A. 4:22-26 which provided, in relevant part, that a person who violates the PCAA shall pay a civil penalty according to a schedule in the statute "to be sued for and recovered, with costs, in a civil action by any person in the name of the New Jersey Society for the Prevention of Cruelty to Animals".

We decline to interpret N.J.S.A. 4:22-26 as authorizing private citizens, who otherwise would not have standing, to sue for civil penalties under the PCAA in qui tam actions against other parties, who they alleged may have committed acts of animal cruelty. The language relied on by plaintiff does not signal authority for qui tam litigation in light of the PCAA's other provisions nor was it supported by the legislative history or case law. We affirm the dismissal of these cases for lack of standing

The New Jersey Division Of Child Protection and Permanency (Division), and the Law Guardian on behalf of the two young children, appeal from the Family Part's order denying termination of parental rights following an extended eighteen-month trial at which twelve witnesses testified and hundreds of exhibits were admitted into evidence. This appeal involves the termination of parental rights of T.D., a mother suffering from multiple sclerosis and R.C., the father of her two youngest children, born in 2012 and 2014, and removed from the care of their parents shortly after birth. The trial judge found, in particular, that the Division did not provide meaningful services to the mother, who uses a wheelchair. Considering the limited standard of review of a decision not to terminate parental rights, we affirm.

This court consolidates these two insurance coverage cases for purposes of this opinion. The parties filed cross-motions for summary judgment. The motion judge reserved decision at the conclusion of oral argument and entered orders that same day that granted the insurers' motions for summary judgment and denied the insureds' cross-motions. The judge did not issue a written opinion or oral decision, nor make factual findings or conclusions of law as required by Rule 1:7-4(a). In a Final Judgment entered a month later, the judge dismissed the insureds' complaints with prejudice "for the reasons set forth in [the insurers'] motion papers."

Although the standard of review from the grant or denial of summary judgment is de novo, the function of an appellate court is to review the decision of the trial court, not to decide the motion tabula rasa. The requirements of Rule 1:7-4(a) are unambiguous and cannot be carried out by the motion judge by a nebulous allusion to "the reasons set forth in defendant[s]' motion papers." Reversed and remanded.

Defendant was sentenced to life imprisonment for murder in 2001, filed his first post-conviction relief petition in 2007, and filed his second petition in 2015. The Appellate Division ruled defendant's second petition was untimely under Rule 3:22-12's time limits. Those limits cannot be relaxed by invoking Rule 1:1-2. In 2009, the Supreme Court amended Rule 1:3-4(c) to prohibit enlargement of the time limits in Rule 3:22-12, and added Rule 3:22-12(c) prohibiting relaxation except as provided by Rule 3:22-12 itself. Moreover, in 2010, the Supreme Court amended Rule 3:22-4(b) and Rule 3:22-12(a)(2) to require second petitions to be filed within one year of specified events. Because that time limit applies "notwithstanding any other provision of this rule," it cannot be relaxed by showing excusable neglect and a fundamental injustice, as permitted for first petitions under the 2010 amendment. These amendments to the procedural rules of court apply to previously-convicted defendant, who had no vested right to file a petition fourteen years out of time.

In this case, we affirm the summary judgment dismissal of plaintiff's qui tam complaint which alleged defendant Steven Lonegan violated the New Jersey False Claims Act (FCA), N.J.S.A. 2A:32C-1 to -18, by submitting a false statement in a request for public campaign funds. Although the trial court dismissed on other grounds, we affirm the grant of summary judgment because we hold plaintiff lacks standing to bring the FCA complaint. We conclude the record clearly shows plaintiff is not the original source of the information supporting the allegations in his complaint.

In Pugliese v. State-Operated School District of City of Newark, 440 N.J. Super. 501 (App. Div. 2015), the court vacated and remanded for reconsideration anew an arbitrator's award sustaining tenure charges against appellants. In this appeal, the court had to construe N.J.S.A. 18A:6-14 and determine what impact its decision to remand had on the suspended educators' entitlement to back pay while the remand was pending. The statute provides for an educator's suspension without pay for 120 days or until the issuance of a final determination of the disputed tenure charges, whichever is sooner. If the matter is not resolved within 120 days, compensation must resume until a determination is reached. In this case, the court concluded that the entitlement to compensation after 120 days continues under the statute despite the fact there was an initial award terminating employment that was vacated and remanded, without a dismissal of the tenure charges.

N.J.S.A. 2C:44-3(a) permits imposition of an extended prison term when a defendant was convicted of at least two separate prior crimes but only if "the latest" of those crimes was committed or the defendant's "last release from confinement" occurred – "whichever is later" – within ten years of the charged crime. Because the last of defendant's prior crimes was committed in Florida ten years and three weeks before the crime charged here, and because defendant was not "confined" – he was sentenced in Florida to a probationary term and being on probation is not the same as being "confined" – the court reversed and remanded for further proceedings, including development of the State's late claim that the consequences of defendant's violation of the Florida probationary term within the ten-year period permits a finding of "confinement" within the meaning of N.J.S.A. 2C:44-3(a).

In these appeals, the court reviewed orders compelling arbitration because the automobile sales contracts executed by plaintiffs included an agreement to arbitrate all disputes. Although the record revealed disputed facts about contract-formation issues that the trial courts must be resolved before arbitration may be compelled, the court also recognized there was no dispute that the parties mutually agreed to rescind those sales contracts. Consequently, among other things, the court held that the trial judges erred in compelling arbitration of any claims relating to the agreements to rescind, which did not contain arbitration provisions. The orders under review were reversed and both cases remanded for trial court proceedings to determine, among other things, whether plaintiffs' claims were based on the sales contracts or on the agreements to rescind.

In these appeals, the court reviewed orders compelling arbitration because the automobile sales contracts executed by plaintiffs included an agreement to arbitrate all disputes. Although the record revealed disputed facts about contract-formation issues that the trial courts must be resolved before arbitration may be compelled, the court also recognized there was no dispute that the parties mutually agreed to rescind those sales contracts. Consequently, among other things, the court held that the trial judges erred in compelling arbitration of any claims relating to the agreements to rescind, which did not contain arbitration provisions. The orders under review were reversed and both cases remanded for trial court proceedings to determine, among other things, whether plaintiffs' claims were based on the sales contracts or on the agreements to rescind

In this appeal the court interprets two statutes concerning the right of Camden citizens to vote on the classification of their school district. That vote will determine whether members of the Camden City Board of Education (Board) are elected or appointed by the mayor. Plaintiffs contend that a vote on that issue was required in April 2014, under a 2010 amendment to the Municipal Rehabilitation and Economic Recovery Act (MRERA), N.J.S.A. 52:27BBB-63.1(c). Defendants counter that because the school district was placed into full State intervention in 2013, the classification vote is not required until the district satisfies certain performance indicators under the Quality Single Accountability Continuum Act (QSAC), N.J.S.A. 18A:7A-49(e). MRERA and QSAC contain provisions that set forth different frameworks for school district classification votes.

The court holds that the 2010 amendment to MRERA governs because its language is clear in granting Camden citizens the right to a school district classification vote, and nothing in QSAC restricts that right. Granting Camden citizens the right to a school district classification vote does not interfere with the State's full intervention because the Board will continue to serve in an advisory role until the conditions of QSAC are satisfied. Accordingly, the trial court's August 15, 2016 order dismissing plaintiffs' complaint is reversed. The case is remanded with direction that the trial court conduct a hearing within thirty days to determine when the school district classification vote will be held.

The case concerns the State's use, in a criminal prosecution, of defendant's answer filed in a parallel civil forfeiture action. As part of its proof that defendant was the occupant of a bedroom in which drugs were seized, the State introduced in evidence the defendant's forfeiture answer, in which he asserted that he owned $2900 in cash seized from the same bedroom. While rejecting defendant's Fifth and Sixth Amendment arguments, the court held that the process by which defendant was induced to file his answer in the civil forfeiture action was fundamentally unfair. Although the State should have been barred from introducing the answer, it was harmless error in light of the other evidence linking defendant to the premises.

The court also provided some procedural guidance for future forfeiture cases, and referred the issue to the Criminal and Civil Practice Committees for their consideration

The court holds the Jessica Lunsford Act, N.J.S.A. 2C:14-2, which imposes mandatory minimum sentencing and parole ineligibility requirements for aggravated sexual assault of a victim less than thirteen years old, does not violate the separation of powers doctrine by impermissibly impairing the State's right to engage in plea bargaining, nor does it impermissibly limit the trial court's authority to reject the plea agreement.

The court further holds the Jessica Lunsford Act was not superseded by the earlier enacted and later effective amendment to N.J.S.A. 2C:14-2(a)(7).

After determining defendant's plea allocution did not establish a factual basis for each element of theft by deception, N.J.S.A. 2C:20-4, because defendant did not admit he deceived the victims at the time he obtained their money, the court ruled the trial judge's reliance on the theft consolidation statute, N.J.S.A. 2C:20-2(a), to accept defendant's factual basis for a different form of theft was misplaced as that statute applies only in trial settings — not to plea proceedings.

Defendant's putative paramour filed a complaint against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, alleging he forcibly entered her residence and assaulted and threatened her. After considering the victim's sworn testimony, a Family Part judge issued an ex parte temporary restraining order (TRO) under N.J.S.A. 2C:25-28(g) and a warrant to search defendant's apartment and seize any firearms as authorized by N.J.S.A. 2C:25-28(j).

The police arrested defendant on fourth degree contempt, N.J.S.A. 2C:29-9(b)(1), when he refused to permit the officers to enter his apartment to execute the domestic violence search warrant. Once inside, the officers found in plain view cocaine and drug paraphernalia. Based on the sworn testimony of a detective, a Criminal Part judge issued a telephonic warrant to search the apartment for narcotics.

The remodeling of Courtroom No. 2 in Warren County has been the subject of years of litigation. The matter was first initiated by the Office of Public Defender (OPD), when it successfully objected to a criminal trial being conducted there, after renovations made in 2008. The OPD took the position that a defendant's right to a fair trial was prejudiced by the design of the courtroom. Warren County eventually filed an action for judgment under the Declaratory Judgment Act, N.J.S.A. 2A:16-5 to -62, that more recent modifications satisfied any constitutional concerns. The panel reversed the judge's decision that the OPD lacked standing to participate in the proceedings, remanded the case, and suggested the appointment of a special master to make findings and develop a more complete factual record under Rule 4:41-1.