Published Appellate Court Opinions

This case presents the unsettled legal question of whether a campus police officer who has been terminated by a State university or college because of alleged non-criminal misconduct may challenge his termination through what is known as "special disciplinary arbitration" administered by the Public Employment Relations Commission ("PERC" or "the Commission"), pursuant to N.J.S.A. 40A:14-209 and -210.

The legal issue arises in the context of an attempt by the New Jersey Institute of Technology ("NJIT") to terminate one of its campus police officers for alleged misconduct in using force to apprehend a potential juvenile offender who was bicycling through the university grounds. Over NJIT's objection, PERC referred the dispute to a special disciplinary arbitrator.

This court affirms PERC's determination that the NJIT police force is a "law enforcement agency" within the meaning of N.J.S.A. 40A:14-200. However, NJIT officers nonetheless are not eligible for special disciplinary arbitration because that option is restricted by N.J.S.A. 40A:14-150 to officers who work for municipal police departments in jurisdictions that are not part of the civil service system.

In addition, even if that statutory restriction under N.J.S.A. 40A:14-150 did not pertain, the officer in this case is ineligible because he has not been suspended without pay, as required by N.J.S.A. 40A:14-209 and -210.

The court determines a settlement agreement between defendant Cumberland County and a former County employee resolving a preliminary notice of disciplinary action (PNDA) against the employee is not a government record under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, but instead is a personnel record exempt from disclosure under section 10 of the statute, N.J.S.A. 47:1A-10. The court rejects the argument of plaintiff Libertarians for Transparent Government that the settlement agreement was properly released in redacted form as not supported by the language of section 10 or the history of excluding personnel and pension records from public access contained in Executive Orders 9 (Hughes), 11 (Byrne) and 21 (McGreevey).

The court reverses the trial court order that released the redacted settlement agreement and remands for the court to consider whether Libertarians is entitled to the agreement, either in whole or in part, under the common law right of access to public records, see Bergen Cty. Improvement Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 520 (App. Div. 2004).

This case examines the scope of Rule 3:11, which requires law enforcement to make a detailed record of an out-of-court identification. The court focused on an unusual live identification event that took place almost two years after the robbery and two weeks before trial. The prosecutor asked the robbery victim to come to the courthouse and sit in a hallway while defendant and other jail inmates were led past her. This event was not electronically recorded and no verbatim account was made of the dialogue between the victim and prosecutor's office representatives who accompanied her. Defendant argued this event corrupted the victim's memory, rendering her subsequent in-court identification inadmissible.

The State did not seek to introduce evidence of the hallway event at trial and characterized it as "trial prep." The court nonetheless concluded it was an out-of-court "identification procedure conducted by a law enforcement officer" within the meaning of Rule 3:11(a) and therefore should have been recorded. The court remanded for the trial court to make detailed findings concerning whether the hallway procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

In this insurance coverage case, the court interprets a policy provision that excludes damage claims "arising out of any act of 'assault' or 'battery' committed by any person," including claims "arising out of . . . any act or omission in connection with the prevention or suppression of such 'assault' or 'battery.'" The court concludes that the exclusion barred an insured tavern's demand for a defense and indemnification arising out of one patron's fatal shooting of another. Specifically, the exclusion encompassed claims by the estate of the deceased patron that the tavern negligently hired, trained, and retained staff, and negligently failed to maintain a place free of reasonably foreseeable criminal activity. Those claims related to acts or omissions in connection with preventing the assault or battery of the victim. In reaching its conclusion, the court distinguished L.C.S., Inc. v. Lexington Insurance Co., 371 N.J. Super. 482 (App. Div. 2004).

This interlocutory appeal concerns the appropriate procedures under the current statute, N.J.S.A. 2A:4A-26.1, for evaluating whether a juvenile charged with a very serious offense should be waived to the Criminal Part and prosecuted as an adult.

On leave granted, the juvenile in this case, defendant Z.S., appeals the Family Part judge's order sustaining a prosecutor's decision to waive him to the Criminal Part to face a jury trial for committing first-degree aggravated sexual assault upon a minor.

The court vacates the trial judge's order because of several critical deficiencies in the processes that resulted in Z.S.'s waiver. Among other things, the prosecutor's written statement of reasons in support of waiver was incomplete, conclusory, and utilized obsolete 2000 guidelines that do not track the controlling factors under the revised 2016 waiver statute.

In addition, the prosecutor failed to explain in writing in advance of the waiver hearing why the extensive mitigating psychological evidence marshalled by the defense, documenting Z.S.'s intellectual disabilities and mental health issues, was inconsequential.

The trial judge also misapplied his discretion by declining to adjourn the waiver hearing at defense counsel's request, with the State's acquiescence, after she had been released from the hospital for pneumonia only two days earlier and was still feeling ill and having difficulty breathing.

Because of these grave procedural shortcomings, the court remands this matter for a renewed waiver hearing. The opinion also offers guidance on how best to proceed in such waiver matters under the revised 2016 statute.

The court considers whether interest on a jury award of compensation for the condemnation of property by the Commissioner, Department of Transportation (Commissioner), is subject to the fixed six percent per annum interest rate established in N.J.S.A. 27:7-22. The court held that N.J.S.A. 27:7-22, which applies only when property is condemned by the Commissioner, was impliedly repealed by the subsequently enacted N.J.S.A. 20:3-50. That provision of the Eminent Domain Act of 1971 established uniform standards for the condemnation of property by all State entities. Because of the implied repeal of N.J.S.A. 27:7-22, interest on an award of compensation for the condemnation of property by the Commissioner must be determined in accordance with N.J.S.A. 20:3-32. That statute vests in the trial court broad discretion to establish an interest rate based on evidentiary submissions. This discretion includes the authority to determine when the rate of interest should be simple or compound.

The court considers, on leave granted, the denial of defendant Our Lady of Lourdes Medical Center, Inc.'s motion to dismiss the complaint filed in the name of plaintiff Carolyn Repko ten months after her death and granting the motion of her estate to amend the complaint to substitute itself as plaintiff after the running of the statute of limitations. Because a complaint by a dead person is a nullity, leaving nothing for an amended complaint to "relate back" to under Rule 4:9-3, the court reverses the denial of Lourdes' motion and remands for entry of an order dismissing the complaint with prejudice

In this appeal, the court affirmed the trial court's granting of counsel fees to a former court-appointed attorney in this guardianship action involving Sally DiNoia. The counsel fee application was opposed by Sussex County counsel. The amount awarded was $43,397.20. The County of Sussex, Division of Social Services, Adult Protective Services (APS) appealed the order.

Appellant filed a verified complaint seeking to declare Sally DiNoia incapacitated and for the appointment of a guardian over her person and property under the Adult Protective Services Act (the Act), N.J.S.A. 52:27D-406 to -425. The matter was highly contentious and Sally's son, John DiNoia, was enjoined from interfering with her care and treatment. An order was entered adjudging Sally an incapacitated person and appointing her daughter as guardian.

The court agreed with the trial court that John failed to cooperate with orders of the court and filed numerous applications, which were essentially frivolous, requiring responses from counsel. Additionally, the court determined that APS neglected to perform its statutory duties and failed to conduct a financial investigation and analysis of Sally's assets and debts as required by Rule 4:86-2(b).

Applying a deferential standard of review, the court held that the trial court was authorized to compel APS payment of fees for a court-appointed attorney. The court held, as a matter of law, that the trial court was authorized under Rule 4:86-4(e) and the Act to require APS to pay the fees of the court-appointed attorney for Sally. Further, the court found that whether the trial court erred in requiring APS to pay fees was subject to review under an abuse of discretion standard. Therefore, the court affirmed the decision of the trial court.

The New Jersey Workers Compensation Act (WCA), N.J.S.A. 34:15-1 to -146, generally prohibits employees from suing their employers for injuries sustained in workplace accidents. This case probes the boundaries of the ]"intentional wrong" exception to that general rule.

Plaintiff suffered serious injury while riding as a passenger on a forklift in defendant's warehouse. It was a common practice at the warehouse for workers to ride on the forklift while another worker drove the forklift. This practice violates workplace safety regulations promulgated by the U.S. Department of Labor Occupational Safety and Health Administration (OSHA).

The court first addressed plaintiff's contention that the WCA does not bar his lawsuit because he was not employed by defendant but rather by an employee leasing agency. The court applied the five-part test announced in Kelly v. Geriatric & Medical Services, Inc., 287 N.J. Super. 567, 571–72 (App. Div. 1996), and determined that plaintiff was a "special employee" of defendant and thus subject to the exclusive remedy of workers compensation.

The court turned next to plaintiff's contention that he is not barred from suing defendant because the company's practice of allowing, if not encouraging, workers to stand on moving forklifts was an intentional wrong, thereby exempting this case from the exclusive remedy of workers' compensation. Plaintiff argued defendant's misconduct constitutes intentional wrong because it occurred repeatedly. The court rejected the argument that violative conduct is an intentional wrong merely because it is an ongoing practice. The court interpreted Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985) as narrowing the circumstances when the intentional wrong exemption applies in recognition that reckless or negligent conduct often reflects a "deliberate" business decision by employers to promote speed and efficiency at the expense of workplace safety. The court concluded the intentional wrong exception would significantly erode the legislative preference for the workers' compensation remedy if all a plaintiff must show is that the negligent or reckless conduct was committed repeatedly.

The court surveyed a series of Supreme Court cases that applied the Millison analytical framework and concluded that defendant's violative conduct was not sufficiently egregious to rise to the level of an intentional wrong. The court noted the cases following Millison that found intentional wrong involved violative conduct that was not just committed on multiple occasions but was repeated in the face of efforts by government regulators or others to put a stop to the practice. An employer's wrongful conduct is especially egregious when deception is used to conceal the repetition.

In this case, there were no prior forklift-related accidents or injuries, no prior OSHA citations pertaining to forklift operations, and no prior complaints from workers about unsafe forklift practices. Nor did defendant attempt to conceal its violative practice or otherwise deceive safety investigators. The court thus concluded that plaintiff failed to show his injury was substantially certain to occur and that the circumstances of its infliction were more than a fact of life of industrial employment.

Post Accutane, the court reversed summary judgment granted to defendants regarding plaintiffs' claims that their use of Johnson & Johnson baby powder had a causal connection to their development of ovarian cancer. In re: Accutane, 234 N.J. 340 (2018). The cases were the first two selected to be tried in the talc-based baby powder multi-county litigation.

Applying the analytical structure found in the Federal Judicial Center's Reference Manual on Scientific Evidence (Third Ed. 2011), the court concluded, after detailed consideration of the experts’ lengthy N.J.R.E. 104 hearing testimony and reports, that their methodology was generally recognized in the field and the data upon which they relied was generally accepted for that use in the field. See Accutane, 234 N.J. at 352-53, 390. The experts hypothesized a connection between the migration of talc and inflammation to explain the development of ovarian cancers like plaintiffs’. The trial judge's suppression of their opinions was an abuse of discretion, as he failed to limit his decision to whether their methodology and data were generally accepted and relied upon in the relevant scientific field and instead rejected the merits of the opinions themselves, finding them less credible than those of defendants’ experts

In this direct appeal from a judgment of conviction, the court addressed several issues raised by defendant in a longer unpublished opinion affirming defendant's convictions. The two issues of first impression in New Jersey addressed in its published opinion are: (1) whether discharge from probation constitutes "release from confinement" for the purpose of triggering the ten-year time limit under N.J.R.E. 609(b)(1)'s more stringent standard for the admissibility of prior convictions for impeachment purposes; and (2) whether a "no-permit" affidavit prepared by a non-testifying police witness is testimonial and thereby subject to the Confrontation Clause. As to the former, the court held that the plain language of N.J.R.E. 609, coupled with the construction of identical language by the federal courts and sister states, as well as prior interpretation of confinement by New Jersey State courts in related and unrelated contexts, compel the conclusion that probation does not qualify as confinement as required under N.J.R.E. 609(b)(1). As to the latter, the court determined that the "no-permit" affidavit was not testimonial under the primary purpose test, and its admission without the testimony of the affiant who conducted the permit search did not violate the Confrontation Clause. The court reasoned that the affidavit established the absence of an objective fact, rather than detailing the criminal wrongdoing of defendant.

Applying the three-step sequential analysis of Beauchamp v. Amedio, 164 N.J. 111, 118 (2000), in this legal malpractice action to ascertain the last possible date a motion to permit a late tort claim notice could have been filed to preserve plaintiff's medical malpractice claim, we reverse, on leave granted, the denial of third-party defendant attorney's motion to dismiss his predecessor's contribution claim. Because the Beauchamp analysis makes clear that plaintiff's claim was irretrievably lost by the first lawyer who represented her, a year before the second lawyer entered his appearance, the first lawyer could have no claim for contribution against his successor. Accordingly, the second lawyer's motion to dismiss the third-party complaint for contribution and indemnification should have been granted as a matter of law.

In this appeal of an award of counsel fees in a class action consumer fraud lawsuit that resulted in a settlement, the court held that the trial court mistakenly exercised its discretion when it relied on personal experience in private practice as well as unpublished decisions to reduce the hourly rates for the participating attorneys. In support of the fee application, class counsel submitted certifications by the lead attorneys, both highly experienced in class action consumer protection litigation, attesting that the hourly rates were consistent with their standard hourly rates and had been previously approved in several New Jersey state and federal cases. The claimed rates were further bolstered by supporting certifications from three experienced unaffiliated practitioners, certifying that the hourly rates billed were reasonable and consistent with rates charged in the community by lawyers of comparable experience. The court concluded that class counsel's submissions, which were not contested by defense counsel but were rejected by the trial court, mirrored the methodology deemed acceptable in Rendine v. Pantzer, 141 N.J. 292 (1995), governing the award of attorney's fees under a fee-shifting statute.

Appellants' Medicaid benefits under the New Jersey FamilyCare Aged, Blind, and Disabled (ABD) Program were terminated by the Department of Human Services, Division of Medical Assistance and Health Services (the Division). Prior to termination, appellants applied for benefits under another Medicaid Program, the Specified Low-Income Medicare Beneficiaries (SLMB) Program, but the Division rejected their application. Although appellants qualified for the SLMB Program, they were advised their application could not be processed until the ABD Program benefits were terminated. Because State Medicaid agencies are required under federal regulations to assess beneficiaries' eligibility for other Medicaid programs before terminating benefits, the court held that the Division was required to conduct an ex parte pre-termination review, and, based on appellants' undisputed eligibility, transition them from the ABD Program to the SLMB Program with no gap in coverage. As a result, the court reversed the Division's final agency decision and remanded for further proceedings.

In this appeal, the court considers whether the performances of defendant's plea attorneys were deficient by: (1) negotiating an agreement that required defendant to plead guilty as a condition of admission to pretrial intervention (PTI), when the Guideline to the Rule in effect at the time of defendant's plea prohibited such a requirement by the State; and (2) failing to advise defendant, a non-citizen of the United States, that his acknowledgment of guilt subjected him to removal proceedings – even though the charges would be dismissed upon defendant's successful completion of PTI. Because the record does not reveal the substance of the plea negotiations between the State and defense counsel, nor the advice counsel rendered to defendant about the immigration consequences of his guilty plea, the court vacates the post-conviction relief court's order and remands for an evidentiary hearing.

The sole issue presented in plaintiff's appeal from the grant of summary judgment to defendants is whether the Casino Control Act, which grants the Division of Gaming Enforcement authority to regulate gaming-related advertising, N.J.S.A. 5:12-70(a)(16), preempts plaintiff's Consumer Fraud Act (CFA) and common law claims alleging a casino hotel falsely advertised a poker tournament. Based on its review of the two statutes, and relevant case law, including the Supreme Court's test for determining preemption of the CFA in Lemelledo v. Beneficial Management Corp.,

A municipal board of education (BOE) challenged the grant of a use and bulk variances by a local zoning board of adjustment (ZBA) to permit construction of multi-family residential structures. The BOE alleged it had standing to bring the suit because the additional families would further tax an already overcrowded school district. In addition, the BOE argued that the ZBA violated the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, because it failed to include on its meeting agenda any item reflecting its intention to adopt a memorializing resolution. The trial court rejected these arguments, and this court affirmed.

The court concluded that the BOE lacked standing, because it was not an "interested party," N.J.S.A. 40:55D-4, based on a generalized claim that more families might overburden the school district. The court also concluded that the ZBA did not violate the OPMA, because it included the particular meeting as a "special meeting" on its annual published notice of meetings. See Witt v. Gloucester Cty. Bd. of Chosen Freeholders, 94 N.J. 422, 433 (1983) (holding that "[p]ublication of an agenda . . . is required only in those instances where no annual notice has been provided in accordance with N.J.S.A. 10:4-18

In these consolidated pretrial detention appeals, the court concludes that the Criminal Justice Reform Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26, does not authorize a court to detain arrestees who are undocumented immigrants in order to thwart their potential removal from the country by federal immigration officials. Construing the Act in light of its legislative history and persuasive federal authority, the court concludes the risk of a defendant's failure to appear justifying detention must arise from the defendant's own misconduct, not the independent acts of a separate arm of government that may prevent a defendant from appearing. Inasmuch as the trial court detained defendants in part out of concern that their possible removal from the country would prevent their appearance at trial, the detention orders are reversed and the matters remanded for reconsideration.

The Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26, strikes a balance: it authorizes the pretrial detention of persons charged with serious crimes who pose a risk of flight, danger, or obstruction that cannot be offset by conditions, but guarantees such detained persons the right to a speedy trial. A defendant cannot be detained for more than 180 days after indictment and the start of trial, unless the court finds (1) defendant's release would pose a "substantial and unjustifiable risk" to the safety of a person or the community;and (2) the failure to commence trial was not due to unreasonable delays by the prosecutor. N.J.S.A. 2A:162-22(a)(2)(a).

In this appeal the court holds that the trial court properly exercised its discretion in balancing the risk to the community and defendants' right to a speedy trial when it ordered the release of two defendants three years after they had been detained and found that the failure to commence the trial was due to unreasonable delays caused by the State.