Opinion Summaries

The CNA’s grievance procedure conflicts with -- and is thus preempted by -- the Title IX Regulations because 34 C.F.R. § 106.45(b) mandates that any grievance procedures beyond those specified in that section “must apply equally to both” the alleged victim and the alleged harasser, but the CNA’s arbitration process excludes the alleged victim. 

     The issue before us, one of first impression, is whether the Newark Board of Education (School Board) needs prior approval of the Commissioner of Education under the Educational Facilities Construction and Financing Act (EFCFA), N.J.S.A. 18A:7G-1 to -48, to pursue Superior Court litigation to enforce its contractual reversionary rights to property it transferred to the Newark Housing Authority pursuant to a Site Disposition and Development Agreement (agreement).  The agreement provided the School Board with rights of reversion if the property is not developed for "housing, redevelopment and economic development" purposes within three years of the school's transfer. 

     The School Board sued the Housing Authority and Friends of Team Charter Schools, Inc. (FTCS)—which purchased the property from the Housing Authority for use as a charter school—in the Chancery Division to enforce its reversionary rights because the property was not used in accordance with the agreement. 

     After FTCS's motion to dismiss was denied, it petitioned the Commissioner to require that the School Board obtain the Commissioner's approval under the EFCFA before the School Board can litigate its purported reversionary rights. The Commissioner denied relief, deciding that the School Board's litigation to reclaim ownership was "neither a school facilities project nor a land acquisition as contemplated under EFCFA and the related regulations; and that neither EFCFA nor the related regulations required [the School Board] to seek approval from the Commissioner prior to initiating the enforcement litigation."  The Commissioner added the EFCFA would only take effect if the School Board reacquired the property and used it for a school facilities project.

     We conclude that under our standard of review, the Commissioner's decision was not arbitrary, capricious, or unreasonable because the Commissioner properly interpreted the EFCFA.  The Commissioner did not–– nor do we––determine whether the School Board has reversionary rights to the property through its agreement with the Housing Authority. That must be decided in the School Board's pending Superior Court litigation. 

     In this case of first impression, the court addresses whether the New Jersey Earned Sick Leave Law ("ESLL"), N.J.S.A. 34:11D-1 to -13, required defendant County Concrete Corporation to provide paid sick leave to plaintiff-employees, on behalf of themselves and other similarly situated employees.  The court further examined the qualifications for employers to utilize the "construction industry" exemption at N.J.S.A. 34:11D-1 as well as the procedural and legal standards required to assert ESLL claims for similarly situated employees pursuant to N.J.S.A. 34:11D-5 and N.J.S.A. 34:11-56a.

     Defendant appeals from a Law Division order granting plaintiffs partial summary judgment determining defendant's leave policies were non-compliant with the employee notice requirements of the ESLL.  Defendant also appeals from the trial court's determinations (1) it was not entitled to the ESLL's "construction industry" exemption; (2) its paid leave policy was non-compliant with several sections of the ESLL; (3) awarding post-trial damages to the unnamed plaintiffs, comprised of 103 similarly situated employees.  Having considered the parties' arguments, the extensive factual record, and applicable legal principles, the court affirmed the trial court's order and judgment. 

     The court also referred suggested pre-trial procedures concerning ESLL claims to the Civil Practice Committee for consideration.

The Heck favorable-termination rule applies to civil rights claims brought under the CRA, or the CRA and TCA jointly, just as it does to claims brought under 42 U.S.C. § 1983.  Counts One, Two, and Three of plaintiffs’ complaint were timely filed because the claims accrued, and the statute of limitations began to run, on June 1, 2020.  However, any claim for false arrest/imprisonment would have accrued before May 27, 2020, and Count Four was therefore correctly dismissed as untimely. 

          In this matter, the court addressed whether the trial court erred in finding the parties have children in common, leading the trial court to dismiss plaintiff's complaint pursuant to the Victim's Assistance and Survivor Protection Act (VASPA), N.J.S.A. 2C:14-13 to -21.

          Plaintiff and S.S. divorced in 2019 and have since been involved in extensive post-judgment litigation regarding their two minor children.  He subsequently alleged defendant, who at the time was S.S.'s boyfriend and is now her husband, sexually abused the children.  Plaintiff filed an order to show cause concerning the alleged acts of abuse.  In March 2020, the trial court entered an order barring defendant "from any further contact with the children pending further order" of the court.  This order remains in effect to this day.

          In 2024, plaintiff filed a VASPA complaint against defendant alleging cyber harassment and obtained a temporary protective order (TPO).  The trial court entered an order to show cause directing plaintiff to show cause why his VASPA complaint and TPO should not be dismissed for lack of jurisdiction.  Following oral argument, the trial court determined it would only have jurisdiction over the VASPA matter "if the part[ies] could not be defined as . . . victim[s] of domestic violence" under N.J.S.A. 2C:14-14.  It explained it would not have jurisdiction if the parties had a "child in common" under N.J.S.A. 2C:25-19(d) of the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.

          The trial court then noted, relying on D.V. v. A.H., 394 N.J. Super. 388 (Ch. Div. 2007), although plaintiff and defendant do not "biologically" have children in common, "they [do] have . . . step-children in common."  It explained, while "child in common" is not defined under the PDVA, plaintiff and defendant were in a "family-like setting[]."  It ultimately found step-children fell within the meaning of a "child in common" under N.J.S.A. 2C:25-19(d).  Therefore, the trial court concluded it had no jurisdiction over the VASPA matter, dismissed the claim, and vacated the TPO.

          The court concluded the trial court improperly relied on D.V.  In distinguishing D.V., it noted the plaintiff and the defendant in that case both had parental rights, even though the plaintiff was not a biological parent.  394 N.J. Super. at 390.  The facts here are not analogous.  Not only does defendant not have any parental rights, but he has also been barred from having any contact with the children for over five years.  The court observed this was far afield from the "judicially joined" parties involved in D.V. Under the present circumstances, the court determined the parties do not have a "child in common" for the purposes of N.J.S.A. 2C:25-19(d), and plaintiff should have been permitted to proceed with his VASPA action.

          This appeal involves state constitutional challenges raised by plaintiffs, a labor union and an anti-smoking advocacy group of Atlantic City casino employees, to the casino exemption within the New Jersey Smoke-Free Air Act, N.J.S.A. 26:3D-59(e).  The Act generally prohibits smoking in indoor public places and workplaces in New Jersey but expressly excludes, among a few other places, certain designated areas within casinos and casino simulcasting facilities.  The Legislature has repeatedly considered, but not enacted, amendments to eliminate the casino exemption.

          Representing thousands of New Jersey casino workers exposed to secondhand smoke, plaintiffs brought suit in the Chancery Division, seeking injunctive and declaratory relief on the grounds that the exemption (1) violates a state constitutional "right to safety," (2) comprises unconstitutional "special legislation," and (3) denies equal protection under the New Jersey Constitution.  They emphasized the documented science and the legislative findings in the Smoke-Free Air Act confirming that sustained exposure to secondhand smoke can produce severe, and at times fatal, adverse health consequences. 

          Joined by intervenors from the casino industry and certain other labor unions, the State defendants argued the casino smoking exemption is constitutional as a valid legislative policy choice grounded in an irrefutable rational basis.  They principally contend the imposition of a ban will drastically reduce the number of casino patrons in Atlantic City and thereby cause a massive loss of casino revenues, jobs, and State tax proceeds.  To support that contention, respondents presented to the motion judge a 2021 industry-funded study projecting such drastic losses of patronage and revenues. Plaintiffs contend the industry study and its dire predictions of revenue loss are greatly exaggerated and unreliable.  They have presented a competing 2022 study that sharply critiques the industry study and makes its own contrary predictions.

          The motion judge considered these clashing assertions based solely on written submissions, without hearing any testimony and apparently without the benefit of any discovery.  The judge denied both preliminary and permanent injunctive relief and dismissed all of plaintiffs' claims with prejudice.  The judge did find that plaintiffs, in their arguments for a preliminary injunction, had shown irreparable harm may be caused to the employees through their continued exposure to secondhand smoke in their workplace. Nevertheless, the judge ruled their constitutional arguments unavailing.

          This court affirms the judge's denial of plaintiffs' request for a preliminary injunction, on the record as presented in the order to show cause.  The Supreme Court has yet to hold that right to pursue and obtain health and safety is a fundamental standalone right.  The court also affirms the judge's denial of preliminary injunctive relief on plaintiffs' "special legislation" claim. 

          However, in the distinctive circumstances presented here, this court vacates the premature disposition of the permanent injunction request and the dismissal of the lawsuit.  After discerning no fundamental right is at stake, the judge applied a mistaken "rational basis" approach to plaintiffs' state equal protection challenge without conducting a fulsome balancing of the competing interests under the three-factor test prescribed by our State Supreme Court.  The judge also improvidently accepted at face value respondents disputed economic contentions and the untested premise that ending the smoking exemption will inexorably result in drastic revenue and job losses. The case is accordingly remanded to develop the record, make appropriate findings, and perform the required constitutional balancing.

The LLA has grown -- along with New Jersey’s own growth and development -- into a “liberally construed . . . inducement” for landowners to open “their property for sport and recreational activities” without “fear of liability.” N.J.S.A. 2A:42A-5.1. Rollerblading, which is akin to “skating,” is the type of “recreational activity” contemplated by the Legislature, see id. at -2, just as Van Saun Park is the type of open and expansive “premises,” see id. at -3, for which this legislative grant of immunity is both intended and necessary. The LLA thus immunizes Bergen County for the accident at issue

The Court adopts the standard set forth in Section 51 of the Restatement (Third) of the Law Governing Lawyers for determining when an attorney owes a duty of care to a non-client. Here, the defendant attorney did not owe non-client plaintiff Helen Christakos a duty of care under either Section 51(2) or Section 51(3).

STATE AND LOCAL TAX – GROSS INCOME TAX ACT – W-2 WAGES AND COMMISSIONS -- BROKERS ACT -- INDEPENDENT CONTRACTOR AGREEMENT

Tax Court: Estate of Michael R. Monihan and Holly P. Monihan v. Dir., Div. of Taxation, Docket No. 012125-2021; opinion by Nugent, J.T.C., decided January  2026. For plaintiff - Howard Pashman, Esq., and Justin P. Kolbenschlag, Esq., (Pashman Stein Walder Hayden, PC, attorneys); for defendant – Judith O’Malley, Deputy Attorney General (Matthew J. Platkin, Attorney General of New Jersey, attorney).

HELD: Taxpayer’s independent contractor election under the Brokers Act, N.J.S.A. 45:15-1 to -34, was not a legitimate basis to challenge Taxation’s reclassification of Taxpayer’s 1099 commission income as W-2 income, due to the Legislature not intending to legislate tax classifications in the Brokers Act. 

Michael Monihan (Taxpayer), as a broker and broker-salesperson with Monihan Realty, Inc., had entered an independent contractor agreement (ICA) with the company.  In reliance on the ICA, Taxpayer reported his commissions earned from sales and rental of real estate as 1099 income.  Decided on cross-motions for summary judgment, the court rejected Taxpayer’s plain meaning interpretation of the Brokers Act’s “notwithstanding” clause, where Taxpayer suggested that the business affiliation elected must override any conflicting classifications from Gross Income Tax (GIT) Act, N.J.S.A. 54:5A-1 to 12-6, and its administrative withholding regulation, N.J.A.C. 18:35-7.  Per the court, the clause’s override of “any other law, rule, or regulation to the contrary” applies when there is a conflict between the overall statutory schemes of the Brokers Act and the GIT Act, not the results attained by their respective applications.  The court determined that the Brokers Act’s statutory scheme of regulating the licensing and business activities of the real estate professionals covered therein did not conflict with the GIT Act’s statutory scheme to tax expressly identified classes of income, specifically, N.J.S.A. 54A:5-1(a) and 1(b).  Thus, the Brokers Act does not supplant the GIT Act or N.J.A.C. 18:35-7. The court further found that Kennedy v. Weichert, 257 N.J. 290 (2024), where the Supreme Court interpreted the Brokers Act, is not determinative in assessing the validity of reclassification of Taxpayer’s commission income.  Taxation’s basis for reclassification was properly placed on N.J.A.C. 18:35-7.1, where Taxpayer is a corporate officer defined as an employee under the regulation.  The court thereby upheld Taxation’s reclassification of Taxpayer’s 1099 commissions as W-2 income, granted Taxation’s cross-motion for summary judgment, and denied Taxpayer’s motion for summary judgment. 

(34 pages)

     In 2020, plaintiff filed a complaint against defendant Roselle Board of Education, alleging violations of the New Jersey Child Sex Abuse Act, N.J.S.A. 2A:61B-1, negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and sought compensatory damages. Plaintiff alleged he was sexually abused on two occasions in 2004 and 2005 by a middle school math teacher.  He did not seek any treatment or counselling through the years or incur any medical expenses.

     On leave to appeal, the court affirmed the trial court's order granting defendant summary judgment because plaintiff could not establish he incurred the $3,600 monetary threshold of medical expenses to seek relief under the Tort Claims Act (TCA), N.J.S.A. 59:9-2(d).  C.W. v. Roselle Bd. of Educ., 474 N.J. Super. 644, 653 (App. Div. 2023).  Although plaintiff was barred from seeking pain and suffering damages, the court advised he was "not foreclosed from other available damages under the statute."  Ibid. 

     Back before the trial court, plaintiff conceded he was not seeking economic damages but instead non-economic damages for disability, impairment and loss of enjoyment of life.  The trial court again granted defendant summary judgment, finding the claimed damages were part of pain and suffering within the TCA and since plaintiff could not meet the monetary threshold, he could not pursue those damages.

     While plaintiff's second appeal was pending, the Legislature amended the TCA in March 2025 to eliminate the verbal and monetary thresholds in sexual abuse cases. See N.J.S.A. 59:2-1.3(a)(2); N.J.S.A. 59:9-2(d).  The legislation states the threshold amendment "shall take effect immediately."  P.L. 2025, c. 29.  Plaintiff submitted a supplemental merits brief asserting the amended TCA applied to his case under the time-of-decision rule as the matter was pending appeal at the time of its enactment, or alternatively, the amendment should apply retroactively to his claims.

     The court determined neither argument was applicable to plaintiff's circumstances.  The time-of-decision rule is only meant to apply when the Legislature intended for retroactive application.  In addition, the parties, trial court and this court had relied on the longstanding statute and fifty years of decisional law regarding the monetary threshold for medical expenses as a requisite for recovering damages against a public entity during the five years of this litigation.

     As to retroactivity, there was no express language that the Legislature intended its modification to be retroactive to pending cases and "[s]ettled rules of statutory construction favor prospective rather than retroactive application of new legislation" to avoid unfair outcomes. Pisack v. B & C Towing, Inc., 240 N.J. 360, 370 (2020) (quoting James v. N.J. Mfrs. Ins., 216 N.J. 552, 563 (2014)).  Nor was there any indication that the amendment was curative.

     After concluding the amendment was not retroactive and, therefore, not applicable to plaintiff's claims, the court affirmed the summary judgment order, declining to depart from the well-established law that plaintiff's claims of post-traumatic stress disorder and severe depression are considered as pain and suffering damages and fall within the limitations under N.J.S.A. 59:9-2(d).  Since plaintiff could not meet the monetary threshold under the then-existing TCA, summary judgment was warranted.

There are valid reasons not to disclose records in particular cases to ensure safety and security at correctional institutions and to avoid interfering with an inmate’s rehabilitation, among other concerns. See Thompson, 210 N.J. Super. at 123. But because the plain language of N.J.A.C. 10A:71-2.2 bars disclosure in all cases, it violates settled constitutional principles.

     At issue in this appeal is whether the commencement of an offender's mandatory parole supervision (MPS) term imposed pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, is tolled when an offender is released from incarceration in the Department of Corrections (DOC) but is detained in the custody of Immigration and Customs Enforcement (ICE).

     Upon service of his maximum term of incarceration, Wright was released from the DOC to ICE, where he was detained for over three years.  The New Jersey State Parole Board (Board) tolled the commencement of Wright's five-year MPS term until his release from ICE custody to the community.

     NERA requires both that the MPS term commence "immediately upon the defendant's release from incarceration" and that "[d]uring the term of MPS the defendant shall remain in release status in the community."  Because those two requirements could not co-exist in this case, the court looked to legislative intent to resolve the ambiguity in the statute.

      To combat parolee recidivism, the Legislature enacted NERA to increase prison time for offenders who commit the most serious offenses.  For NERA offenses, a sentencing court must impose an eighty-five-percent parole ineligibility term and a three- or five-year MPS term, during which the offender is supervised by the Board as if on parole. The Legislature required MPS because NERA offenders likely serve the maximum sentence imposed without reaching their discretionary parole eligibility date. 

     The goals of parole supervision are to protect the public and assist offenders to reintegrate into society as productive individuals.  Because an offender in ICE custody is neither in the community nor being supervised by the Board, the goals of NERA would be frustrated if MPS were deemed served during that time period.

     In affirming the Board's decision, the court distinguished this case from State v. Njango, 247 N.J. 533 (2021), because the fundamental fairness concerns implicated in that case are not present.

     This landlord-tenant case examines the rule of law first announced in Montgomery Gateway E. I. v. Herrera, 261 N.J. Super. 235 (App. Div. 1992).  In that case, the Appellate Division held that when a landlord renews a tenant's lease and accepts rent under that new lease, it waives its right to terminate the tenancy based on the tenant's prior nonpayment of rent. 

      In the present matter, the court reaffirms and applies the Montgomery Gateway rationale, rejecting the plaintiff-landlord's contention that its renewal of the lease and acceptance of rent could not have operated as a waiver of its eviction right because the lease renewal was compelled by federal statutes and regulations governing Section 8 subsidized housing.  The court rejects the premise of that argument, holding that federal statutory law, regulations, and a handbook issued by the U.S. Department of Housing and Urban Development (HUD) all make clear that plaintiff was not compelled to renew the lease and had the ability to terminate defendant's tenancy or allow the lease to become a month-to-month tenancy. Furthermore, plaintiff's lease with defendant, which was based on a HUD model lease, explicitly states that plaintiff may decline to execute a renewal lease at the end of the term.

     The court also rejects plaintiff's contention that because the tenant made payments toward rent arrears, thereby acknowledging her debt, she came to the court with unclean hands and should not have been allowed to secure a waiver of plaintiff's right to evict based on those past arrears.  The court holds that defendant's efforts to avoid eviction while simultaneously making payments toward the arrears do not constitute the sort of wrongdoing contemplated by the unclean hands doctrine. 

     Nor is the court persuaded by plaintiff's contention that the Montgomery Gateway waiver rule should not apply because it renewed the lease to preserve its Low-Income Housing Tax Credit.  The court concludes that any economic incentives associated with the Low-Income Housing Tax Credit have no bearing on the rationale that undergirds the Montgomery Gateway rule. 

     Finally, the court addresses the argument plaintiff raised for the first time on appeal that even if renewal was not actually required by law, plaintiff reasonably believed it was compelled to renew the lease.  The court is not persuaded by this novel argument, noting that even were it to assume for the sake of argument that a landlord's subjective belief matters, plaintiff's claimed belief that it had no choice but to renew its lease with defendant is not reasonable in light of the federal statutory law, regulations, the HUD Handbook, and the terms of the lease itself.

     Plaintiff appealed from the trial court's order finding defendant Monmouth County Society for Prevention of Cruelty to Animals (MCSPCA) is not a public agency under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.  The question before the court was whether the MCSPCA—a non-profit entity that provides humane law enforcement services for the Monmouth County Prosecutor's Office (MCPO) under a Memorandum of Understanding (MOU)—is a public agency required to disclose records under OPRA.  The court concluded the MCSPCA is not a public agency under OPRA because the MCPO is not a political subdivision under N.J.S.A. 47:1A-1.1, but rather an office. Therefore, the MCSPCA is an instrumentality of an office, analogous to the volunteer fire company in Verry v. Franklin Fire District No. 1, 230 N.J. 285 (2017), which our Supreme Court held did not fall within OPRA's definition of a public agency.

    The court concluded the MCSPCA derived its authority to perform law enforcement functions from the MCPO through an MOU.  The MCPO has the discretion to appoint the MCSPCA but was not required to do so.  Moreover, the MCPO is responsible to supervise the law enforcement functions of the MCSPCA.  N.J.S.A. 4:22-14.4(a)(2)(b).  This delegation of authority does not transform the MCSPCA into a public agency for the purpose of N.J.S.A. 47:1A-1.1.  

     The court was mindful the law enforcement responsibilities of the MCSPCA are considered traditional government functions. However, that was not dispositive of whether the MCSPCA is a public agency subject to OPRA under our jurisprudence. Volunteer fire companies also exercise a governmental function.  See Verry, 230 N.J. at 300; N.J.S.A. 40A:14-70.1(b).  Nevertheless, the Verry Court determined the volunteer fire department at issue there was not a public agency under OPRA's statutory framework.  230 N.J. at 288. 

     Lastly, the court observed plaintiff is not without recourse.  Law enforcement-related documents may be requested through the MCPO based on its supervisory authority over the MCSPCA as set forth in N.J.S.A. 4:22-14.4(a)(2)(b) and the MOU.

     Plaintiff, a former special counsel to the Borough of Englewood Cliffs, brought an action for defamation against defendants based on documents distributed to Borough residents in advance of the then upcoming election.  Defendants filed applications for an order to show cause, seeking dismissal of the case and counsel fees pursuant to the Uniform Public Expression Protection Act (UPEPA), N.J.S.A. 2A:53A-49 to -61.  After converting the applications to motions, the trial court denied defendants' motions, finding plaintiff sufficiently had pleaded the elements of a defamation claim to survive defendants' motions and that whether plaintiff would be able to prove those elements required further discovery.  

     On appeal, defendants argued the trial court erroneously had relied on only the motion-to-dismiss standard of Rule 4:6-2(e) and erred by denying defendants' motions and permitting discovery. 

     The court affirmed the order.  The court held the trial court had properly applied the motion-to-dismiss standard pursuant to N.J.S.A. 2A:53A-55(a)(3)(b)(i) of UPEPA and the summary-judgment standard pursuant to N.J.S.A. 2A:53A-55(a)(3)(a) and -55(a)(3)(b)(ii) of UPEPA.  The court also held the trial court had not erred in permitting discovery pursuant to N.J.S.A. 2A:53A-52(d) of UPEPA.

     Petitioner H.F. appealed from the Board of Trustees (Board) of the Police and Firemen's Retirement System's final agency decision (FAD), which denied his application for accidental disability retirement (ADR) benefits, under N.J.S.A. 43:16A-7(a)(1), based on an exacerbation of a preexisting mental health disorder.  The question presented on appeal is whether the Board correctly interpreted Richardson v. Board of Trustees, Police & Firemen's Retirement System factor 2(c)—which provides that a traumatic event must be "caused by a circumstance external to the member (not the result of preexisting disease that is aggravated or accelerated by the work)"—as requiring the member to establish "a new onset of a [mental] disease."  192 N.J. 189, 213 (2007).  The Board determined it was not enough for a member to prove a disabling exacerbation of a preexisting mental health disorder caused from a traumatic event. 

     H.F., a former Sheriff's Officer, had applied for ADR benefits after suffering a mental disability, Post-Traumatic Stress Disorder (PTSD), from the shooting of an armed suspect.  The Board found H.F. satisfied the Supreme Court's established "mental-mental category of injuries" standard because he was involved in a "terrifying or horror-inducing event" that presented "actual or threatened death or serious injury."  Patterson v. Bd. of Trs., SPRS, 194 N.J. 29, 48, 50 (2008).  While the Board awarded two other officers ADR benefits after the shooting, H.F.'s were denied.  In denying his application, the Board adopted the Administrative Law Judge's initial decision that Richardson factor 2(c) was not satisfied because it was "[un]likely" the traumatic shooting "directly caused [H.F.] . . . a completely new case of PTSD" and that he instead suffered an exacerbation of "pre[]existing, dormant" PTSD from his military service. 

     The court reversed, holding the Board's heightened interpretation was unsupported because Richardson factor 2(c) is satisfied when a member demonstrates he or she has suffered a disabling exacerbation of a preexisting mental health disorder caused by an external traumatic event, which was not a result of regular work duties.  The undisputed credible medical evidence established H.F. suffered a mental health disability, an exacerbation of PTSD, from the traumatic shooting that was external to his regular police duties.  The court remanded the matter to the Board, directing that H.F. be awarded ADR benefits.

The court previously issued an unpublished opinion, with a dissent.  The court is now publishing the opinion, omitting certain sections. 

Defendant Michael Owens appealed his conviction and sentence for first-degree murder.  The majority vacated defendant's murder conviction because the trial court failed to sua sponte instruct the jury on passion/provocation as a lesser-included offense of murder.  The majority also held that the trial court erred in not severing a charge of aggravated assault of another victim from the trial of the murder offense.  

The dissent disagreed and would have rejected defendant's argument that there was clear evidence of passionate provocation.   The dissent also discerned no abuse of discretion in the trial court's denial of defendant's motion to sever the aggravated assault charge from the murder charge.

The Court reverses the judgment of the Appellate Division in part, substantially for the reasons stated in Judge Gilson’s thoughtful dissent. The Court addresses the standard for whether to instruct on passion/provocation manslaughter.

        The Legislature enacted the Environmental Justice Law (EJLaw), N.J.S.A. 13:1D-157 to -161 to "correct [the] historical injustice" of "New Jersey's low-income communities and communities of color hav[ing] been subject to a disproportionately high number of environmental and public health stressors . . . ."  N.J.S.A. 13:1D-157.  To accomplish its stated purpose, the EJLaw requires certain polluting facilities seeking approvals under existing environmental laws for a new facility, for expansion of an existing facility, or for renewal of an existing facility's major source permit, to prepare and submit, after a process that includes public participation, an independent analysis of the facility's environmental and public health stressors or impacts on the local overburdened community, the environmental justice impact statement, and to propose all feasible measures to avoid direct facility contributions to those stressors. 

         The Legislature directed that the Department of Environmental Protection "shall adopt . . . rules and regulations to implement the provisions of this [A]ct." N.J.S.A. 13:1D-161(a). After conducting numerous public engagement sessions seeking input from various stakeholders, and researching other approaches to environmental justice taken by the federal government and other states, DEP published its proposed rules and regulations at N.J.A.C. 7:1C (EJRules) with an extended ninety-day public comment period.

         After receiving written and oral comments from 497 individuals and entities, and conducting five public hearings, DEP issued an extensive response to the public's comments and then adopted its EJRules with non-substantial changes, effective April 17, 2023.

In these appeals, heard back-to-back, appellants New Jersey Chapter of The Institute of Scrap Recycling Industries, Inc. and Engineers Labor Employer Cooperative of the International Union of Operating Engineers Local 825 appeal DEP's adoption of the EJRules, contending they  (1) are ultra vires and exceed the statutory authority provided in the EJLaw; (2) ignore the ordinary meanings of basic terms; (3) are unconstitutionally vague and/or overbroad; and (4) are arbitrary and capricious. Amicus curiae appeared on behalf of appellants and DEP. 

The court affirmed the adoption of the EJRules, concluding they harmonize the Legislature's remedial and preventative goals articulated in the EJLaw. 

     The court concluded Section 402(a) of the Ending Forced Arbitration of Sexual Assault and Harassment Act of 2021 (EFAA), rendered arbitration agreements unenforceable as to all causes of action in a multi-claim dispute where plaintiff has pled a viable claim relating to sexual harassment.  In doing so, the court rejected the trial courts' decisions to bar from arbitration only those claims for which the underlying conduct related specifically to sexual harassment.  Instead, the court relied on the text of the EFAA that bars from arbitration a "case which . . . relates to . . . the sexual harassment dispute," and adopted the majority view of published federal and state court opinions that have considered the issue. 

     The court agreed, however, with both courts' decisions that, through the indulgent lens of a Rule 4:6-2(e) application, as pled plaintiffs' sexual harassment claims are not time-barred.