|Posted Date||Name of Case (Docket Number)||Type|
|Sept. 26, 2023||
JUSTIN ZIMMERMAN, ACTING COMMISSIONER, ETC. VS. MICHAEL PATRICK DIVINEY, ET AL. (NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE)
In these consolidated matters, appellants are public adjusters who challenge final agency decisions by the commissioner of the Department of Banking and Insurance, finding appellants' contracts violated the New Jersey Public Adjuster's Licensing Act (PALA), N.J.S.A. 17:22B-1 to -20 and regulations enacted by the commissioner governing the conduct of public adjusters. N.J.A.C. 11:1-37.1. The commissioner found appellants violated PALA because their contracts did not comply with N.J.A.C. 11:1-37.13(b)(5), which requires every public adjuster contract include "(i) [t]he procedures to be followed by the insured if [they] seek to cancel the contract, including any requirement for a written notice; [and] (ii) [t]he rights and obligations of the parties if the contract is cancelled at any time[.]" The commissioner found appellants violated these regulations because their contracts did not contain language permitting consumers to cancel their contracts at any time.
The court reviewed PALA's legislative history and found no evidence the Legislature intended public adjuster contracts contain provisions for cancellation at any time. The plain language of the regulations only requires that public adjuster contracts set forth the procedures to be followed in the event of a cancellation and advise consumers of their rights in the event of cancellation. Therefore, the commissioner misinterpreted the regulations, and her findings were ultra vires of her authority under PALA. As a result, the court reversed the findings appellants violated N.J.A.C. 11:1-37.13(b)(5)(i) and (ii) and remanded for a recalculation of the penalties and costs imposed on appellants.
|Sept. 13, 2023||
STATE OF NEW JERSEY VS DARRYL NIEVES (17-06-0785 AND 17-11-1303, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)
In these matters, the court considered the scientific reliability of expert testimony that shaking alone can cause the injuries associated with shaken baby syndrome (SBS), also known as abusive head trauma (AHT). The State sought to admit the testimony to prove aggravated assault and child endangerment charges against defendants Darryl Nieves and Michael Cifelli, fathers of infant sons who exhibited associated symptoms while in their respective fathers' care. Following a hearing in the Nieves matter pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the trial judge concluded that expert testimony of shaking-only SBS/AHT was not scientifically reliable and barred admission of the evidence at trial. The trial judge in the Cifelli matter adopted the finding.
The court affirmed the judge's decision in Nieves, holding that the State failed to establish SBS/AHT's general acceptance within the medical community through expert testimony, supporting authoritative scientific studies, and judicial opinions. Where, as here, the underlying theory integrates multiple scientific disciplines, the proponent must establish cross-disciplinary validation to establish reliability. The State failed to do that here. Despite its seeming acceptance in the pediatric medical community, the evidence showed a real dispute surrounding the hypothesis that the biomechanical principles underlying SBS/AHT actually supported the conclusion that shaking only can cause the injuries associated with SBS/AHT.
|Sept. 12, 2023||
C.V. v. Waterford Township Board of Education
(A-24-22 ; 087260)
The Court reverses the Appellate Division’s judgment because it conflicts with Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993), and L.W. v. Toms River Regional Schools Board of Education, 189 N.J. 381 (2007). Under Lehmann, sexual touching of areas of the body linked to sexuality happens, by definition, because of sex. The Court affirms the denial of plaintiffs’ motions to amend their complaint and to obtain certain records.
|Sept. 6, 2023||
S.B.B. VS. L.B.B. (FV-20-1159-21, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
In this matter, the court considered whether defendant's act of making and disseminating a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divorce, and asking community members to "press" her husband to deliver the get constituted the predicate act of harassment, in violation of N.J.S.A. 2C:33-4(a), to justify the issuance of a final restraining order under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The court held that defendant's communication was protected by the Free Speech Clause of the First Amendment and the New Jersey Constitution and did not fall into any of the narrow exceptions—incitement to imminent violence or true threats—which would rob it of its protected status. The court likewise concluded that because defendant's communication was not impermissibly invasive of plaintiff's privacy and was animated by a legitimate purpose, the acquisition of a get, rather than a purpose to harass, it was not violative of the harassment statute. Lastly, the court held that plaintiff's allegation that there was a general tendency of violence toward get refusers in the Jewish community was inapposite because the claim was not supported by the record and because the theoretical possibility that a third party will commit a criminal act cannot render otherwise permissible speech unlawful. As a result, the court vacated the final restraining order entered against defendant.
|Aug. 31, 2023||
IN THE MATTER OF PROPOSED CONSTRUCTION OF COMPRESSOR STATION, ETC. (NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION)
The court interprets Exemption 11 of the Highlands Act, N.J.S.A. 13:20-28(a)(11), which exempts entirely from all provisions of the Act and "any rules or regulations" adopted by the DEP pursuant to it:
the routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines, rights of way, or systems, by a public utility, provided that the activity is consistent with the goals and purposes of this act,
to exempt only "routine" upgrades to a utility's lines, rights of way or systems in the Preservation Area, rejecting the DEP's interpretation that "routine" modifies only "maintenance and operations" and does not modify "upgrade."
Applying its interpretation, the court vacates the Highlands Applicability Determination issued to the Tennessee Gas Pipeline Company exempting its proposed compressor station in the Preservation Area from permitting review and remands the matter to the DEP for consideration of whether Tennessee's new compressor station can qualify as a "routine upgrade" to its pipeline system, thus bringing it within Exemption 11.
|Aug. 28, 2023||
STATE OF NEW JERSEY VS. DENNIS F. GARGANO, JR., ET AL. (17-02-0034, OCEAN COUNTY AND STATEWIDE)
During the investigation of an alleged drug distribution network, the State Police obtained wiretap orders authorizing the interception of communications on various cellular phones pursuant to the New Jersey Wiretapping and Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to -37. By leave granted, the State challenged an order suppressing all intercepted communications that followed the interception of a privileged marital communication between one of the defendants and his codefendant spouse. The trial court entered the order under N.J.S.A. 2A:156A-21, which in pertinent part mandates the suppression of "the entire contents of all intercepted wire, electronic[,] or oral communications obtained during or after any interception" that is "unlawfully intercepted" or "not made in conformity with" the wiretap order or authorization. N.J.S.A. 2A:156A-21(a) and (c).
The court affirms the order based on its interpretation of the Act. The State concedes that at the time of the interception of the initial privileged marital communication, N.J.R.E. 509 did not include a crime-fraud exception, and, as a result, the initial and subsequent 305 intercepted privileged marital communications are inadmissible at defendants' trial under the then-extant version of N.J.R.E. 509. The State argues interception of the initial privileged marital communication did not trigger the mandatory suppression of all subsequent wiretap interceptions during the investigation under N.J.S.A. 2A:156A-21 because interception of the privileged marital communication was neither unlawful nor made in violation of the wiretap orders.
The court concludes that not every interception of a privileged marital communication is unlawful and requires application of N.J.S.A. 2A:156A-21's suppression remedy. The court finds incidental interceptions of privileged communications during the mandatory intrinsic minimization process attendant to the execution of every wiretap order are anticipated by, and authorized by, the Act, and do not trigger N.J.S.A. 2A:156A-21's suppression remedy.
The court holds that, because the State Police knew the initial interception was of a communication between married spouses, made no effort to minimize the interception, and monitored the communication beyond the time necessary to determine if it was privileged, the interception was unlawful under the Act and violated the wiretap order, which expressly required minimization. The court rejects the State's argument suppression is not required because the initial marital communication, and the 305 subsequent marital communications, were intercepted based on the good faith but erroneous belief the crime-fraud exception recommended by the Court in State v. Terry, 218 N.J. 224 (2014), and later enacted, N.J.S.A. 2A:84A-22(2)(e), L. 2015, c. 138, § 2, eff. Nov. 9, 2015, would apply retroactively such that the interceptions would be supported on that basis.
|Aug. 22, 2023||
MORRIS PROPERTIES, INC., ET AL. VS. JONATHAN WHEELER, ET AL. (L-0238-19, ATLANTIC COUNTY AND STATEWIDE)
In this legal-malpractice case, the corporate plaintiff and its president appeal from an order granting defendants' summary-judgment motion. The trial court found plaintiffs' expert had failed to analyze how defendants' alleged breaches of the standard of care would have impacted a potential jury verdict or settlement and had not opined that defendants' alleged malpractice proximately caused any damages. The judge also dismissed the president's individual claim because the undisputed facts showed she and defendants did not have an attorney-client relationship.
The court affirms, holding plaintiffs had not established proximate cause as a matter of law and that expert testimony was necessary in this case to prove proximate causation and damages. With respect to the president's individual claim of legal malpractice, the court holds she failed to demonstrate the existence of an attorney-client relationship between herself and defendants.
|Aug. 18, 2023||
AVA SATZ VS. ALLEN SATZ (FM-02-2630-18, BERGEN COUNTY AND STATEWIDE)
Defendant appeals from Family Part orders enforcing provisions of a marital settlement agreement (MSA). A critical area of dispute centered on plaintiff's desire to obtain a get—a divorce recognized under Jewish religious law through a process known as a beis din proceeding. Before a verdict was reached in the Family Part divorce trial, the parties reached an agreement on all issues, including each party's obligations with respect to participation in beis din proceedings.
The court rejects defendant's argument that the Family Part judge violated his First Amendment rights by ordering him to participate in beis din proceedings and to sign an arbitration agreement with the beis din. The court acknowledges the fundamental principle that civil courts may not become entangled in religious proceedings. The First Amendment's Establishment Clause bars a state from placing its support behind a religious belief, while the Free Exercise Clause bars a state from interfering with the practice of religion. U.S. Const. amend. I. The court concludes the Family Part judge was asked to enforce a civil contract, not a religious one. The court holds the MSA is a legally binding contract based on ample consideration from both parties and entered into knowingly and voluntarily. The Family Part judge therefore had the lawful authority to enforce the agreement as written.
New Jersey Supreme Court precedent permits civil courts to resolve controversies involving religious groups if resolution can be achieved by reference to neutral principles of law and does not require the interpretation of religious doctrine. Defendant agreed in the MSA to abide by the beis din ruling, whatever that might be. The Family Part judge did not interpret religious doctrine and scrupulously avoided entanglement with religion because the judge applied well-established principles of civil contract law, not rabbinical law. The latter body of law remained solely within the province of the beis din and was not interpreted or applied by the Family Part judge.
The court concludes that the orders defendant challenges served the secular purpose of enforcing the parties' contractual obligations under the MSA, which in turn serves the secular purpose of encouraging divorce litigants to resolve their disputes by negotiating and entering an MSA.
|Aug. 15, 2023||
State v. Oscar R. Juracan-Juracan
(A-32-22 ; 087849)
In a criminal jury trial, there is a presumption that foreign language interpretation services will be provided in person, which is consistent with the New Jersey Judiciary’s longstanding practice. The Court sets forth guidelines and factors to assist trial courts in deciding whether VRI should be used during criminal jury trials, and it remands the matter for the trial court to reconsider whether VRI is appropriate in the current case after assessing those factors.
|Aug. 14, 2023||
Victoria Crisitello v. St. Theresa School
(A-63-20 ; 085213)
The “religious tenets” exception of N.J.S.A. 10:5-12(a) -- “it shall not be an unlawful employment practice” for a religious entity to follow the tenets of its faith “in establishing and utilizing criteria for employment” -- is an affirmative defense available to a religious entity when confronted with a claim of employment discrimination. Here, it is uncontroverted that St. Theresa’s followed the religious tenets of the Catholic Church in terminating Crisitello. St. Theresa’s was therefore entitled to summary judgment and the dismissal of the complaint with prejudice.