Opinion Summaries

Tax Court:  New Jersey State Firemen’s Association v. Dir., Div. of Taxation, Philadelphia Contributionship Ins. Co., Germantown Insurance Co., Greater New York Mutual Ins. Co., and Strathmore Ins. Co., Docket No. 000151-2019, opinion by Sundar, P.J.T.C., decided January 30, 2023.  For plaintiff - Michael E. Sullivan (Parker McCay, P.A., attorney); for defendant, Dir., Div. of Taxation - Michael J. Duffy (Matthew J. Platkin, Attorney General of New Jersey, attorney), for remaining defendants and intervenor Strathmore Ins. Co. - Michael A. Guariglia and Jamie Zug (McCarter & English, LLP, attorney).

Held: Defendant, Division of Taxation’s (“Taxation”) decision via its web-published Notice in 2016, to extend the statutory cap on premiums applied when computing the insurance premium tax (IPT) for domestic and foreign companies, in calculating the fire insurance premium tax (FIPT) paid to plaintiff by foreign insurers, is contrary to the plain language and intent of the FIPT statute, N.J.S.A 54:18-1, thus is not entitled to any deference.  Its interpretation of the provision in N.J.S.A. 54:18A-2(a) that the FIPT is considered “a part of” the “payable” IPT as requiring the cap to apply in computing the FIPT is unreasonable because, (a) since 1945, this provision has been interpreted to simply mean that the IPT statute requires a credit for the FIPT paid so that a foreign insurer does not pay a tax on fire insurance premiums twice, and (b) it results in plaintiff receiving less than the mandated 2% FIPT on “all of the” fire insurance premiums earned in New Jersey.  The cap on premiums for purposes of computing the IPT need not, and should not, be extended in computing the FIPT unless the Legislature acts to amend the respective statutes.

Due to this holding, the court did not need to consider plaintiff’s arguments that Taxation’s decision violated the Administrative Procedures Act, or Taxation’s arguments that its Notice, as a public guidance document should be upheld under the temporary validity doctrine until it formally promulgates and finalizes regulations reflecting its changed position as to FIPT computation.  

The court granted NJSFA’s motion for partial summary judgment, invalidated the Notice, and denied Taxation’s motion for summary judgment.
 

Defendant contends he was subjected to discriminatory policing when he was stopped and frisked based on the be-on-the-lookout (BOLO) description of the person who committed an armed robbery in the vicinity minutes earlier.  The BOLO alert described the robber as a Black male wearing a dark raincoat.  However, the victim did not provide the race of the perpetrator when she reported the crime.  The State acknowledges it does not know why the police dispatcher assumed the robber was Black.

The court address three issues of first impression.  As a threshold matter, the court holds that decisions made and actions taken by a dispatcher can be attributed to police for purposes of determining whether a defendant has been subjected to unlawful discrimination in violation of Article I, Paragraphs 1 and 5 of the New Jersey Constitution. 

Second, the court holds that "implicit bias" can be a basis for establishing a prima facie case of police discrimination under the burden-shifting paradigm adopted in State v. Segars, 172 N.J. 481 (2002).  Reasoning that the problem of implicit bias in the context of policing is both real and intolerable, the court holds evidence that supports an inference of implicit bias shifts a burden of production to the State to provide a race-neutral explanation.  The State's inability to offer a race-neutral explanation for the dispatcher's assumption that the robbery was committed by a Black man constitutes a failure to rebut the presumption of unlawful discrimination under Segars.

Third, the court addresses whether and in what circumstances the independent source and inevitable discovery exceptions to the exclusionary rule apply to the suppression remedy for a violation of Article I, Paragraphs 1 and 5.  After balancing the cost of suppression against the need to deter discriminatory policing and uphold public confidence in the judiciary's commitment to safeguard equal protection rights, the court concludes the independent source doctrine does not apply in these circumstances.  That exception allows a reviewing court to redact unlawfully obtained information to determine whether the remaining information is sufficient to justify a search.  The court concludes that any such redaction remedy would undermine the deterrence of discriminatory policing and send a message to the public that reviewing courts are permitted to essentially disregard an equal protection violation so long as police also relied on information that was lawfully disseminated.  The court reasons that if simple redaction were permitted in these circumstances, the independent source exception might swallow the exclusionary rule.   

With respect to the inevitable discovery doctrine, the court holds it may apply in racial discrimination cases only if the State establishes by clear and convincing evidence that the discriminatory conduct was not flagrant.  Because the State concedes it does not know why the dispatcher assumed the robber was Black, it cannot meet that burden.  The court, therefore, reverses the denial of defendant's motion to suppress.   

Defendant, Smith & Wesson, appeals from a June 30, 2021 Chancery Division order directing it to respond to a subpoena issued the Attorney General and the Acting Director of the New Jersey Division of Consumer Affairs.  Defendant also appeals a second June 30, 2021, Chancery Division order denying its cross-motion to dismiss, stay, or quash the subpoena. 

Faced with defendant's first-filed federal complaint against plaintiffs' motion to quash the subpoena, and with plaintiffs' subsequently filed order to show cause to enforce the subpoena, the Chancery Division judge assumed jurisdiction, finding special equities which justified avoiding the first-filed doctrine.  The judge then found the subpoena valid.  Defendant appealed, arguing the judge erred by misapplying the first-filed doctrine and by rejecting its constitutional attacks on the subpoena.   

The court held that:  special equities exist which support avoidance of the first filed doctrine; NAACP v. Alabama does not require resolution of defendant's constitutional claims at this stage of the litigation; defendant's federal constitutional claims are not ripe for consideration; and the subpoena is valid.

Affirmed.

Defendant was initially charged with carjacking.  While he was awaiting trial, he sent a letter to the victim's home address, urging her to reconsider her identification of him as the robber.  That resulted in an additional charge of witness tampering.

The court rejects defendant's contention that the witness tampering statute, N.J.S.A. 2C:28-5(a), is overbroad and impermissibly vague on its face.  A person commits witness tampering if he or she knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to do one or more specified actions, such as testify falsely or withhold testimony.  Defendant contends the "reasonable person" feature renders the statute unconstitutional and, to avoid constitutional infirmity, the statute must be construed to require the State to prove he knew his conduct would cause a prohibited result. 

First addressing defendant's overbreadth challenge, the court reaffirms that preventing the intimidation of, and interference with, potential witnesses or informers in criminal matters is an important governmental objective.  The court also notes a defendant who is awaiting trial for a violent crime has no First Amendment right to communicate directly with the victim.  Were it otherwise, a court setting the conditions of pretrial release under the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, might be foreclosed from imposing a "no contact" order.  The court concludes the witness tampering statute is not overbroad weighing the importance of the exercise of speech against the gravity and probability of harm resulting from that speech.

With respect to defendant's vagueness challenge, the court declines to embrace a new rule that would categorically prohibit the Legislature from using a reasonable-person test to determine a defendant's culpability.  The court rejects the argument that the "reasonable person" feature in the witness tampering statute is analytically indistinguishable from the portion of the bias intimidation statute, N.J.S.A. 2C:16-1(a)(3), that was struck down on vagueness grounds in State v. Pomianek, 221 N.J. 66 (2015).  The invalidated portion of the bias intimidation statute employed a subjective test under which a defendant's culpability was determined from the perspective of the specific victim who was targeted.  That led the Supreme Court to conclude that "guilt may depend on facts beyond the knowledge of the defendant or not readily ascertainable by him [or her]."  Pomianek, 221 N.J. at 89.

The "reasonable person" standard employed in the witness tampering statute, in contrast, does not account for, much less depend on, what the victim actually perceived or believed.  Rather, the witness tampering statute uses an objective standard, effectively eliminating the concern expressed in Pomianek regarding idiosyncratic personal characteristics of the victim about which a defendant might be unaware. 

The court also notes the bias intimidation statute employed a convoluted culpability provision that focused on the victim's speculation as to the defendant's purpose.  That formulation had not been used in any preexisting statute and was never replicated in New Jersey or any other jurisdiction.  The objective "reasonable person" formulation employed in the witness tampering statute, in contrast, appears throughout the New Jersey Code of Criminal Justice.

Defendants – an attorney and law firm – have a client that produced a report, which asserts plaintiffs unlawfully conducted gambling-related business in forbidden countries. At the client's behest, the defendant attorneys forwarded the report to the New Jersey Division of Gaming Enforcement. When the media learned of the report, plaintiffs sued the defendant attorneys, as well as their anonymous client and other fictitious persons, alleging defamation and other torts. Plaintiffs successfully obtained an order compelling the defendant attorneys to provide their client's identity. The court granted the defendant attorneys' motion for leave to appeal.

Although RPC 1.6 generally imposes on attorneys the ethical obligation to refrain from disclosing a client's identity without the client's consent, the court held that this interest in preserving confidentiality cannot be used to thwart justice and, in appropriate circumstances, a client's right to anonymity may be overcome in favor of an injured party's right to seek redress in our courts. To resolve the conflict between these interests, there must be a deeper examination of the claim's merits than occurred here. The court, therefore, vacated the disclosure order and remanded for the judge's inquiry into the veracity of the report that lies at the heart of plaintiffs' civil action, leaving to the judge's discretion the methodology to be employed.

A heightened discovery standard governs a defendant’s motion for pre-incident mental health records from a sexual assault victim. The Court establishes the standard applicable to a formally filed motion and also outlines a less formal process through which defendants may make requests for discovery of the pre-incident mental health records of an alleged sexual assault victim by letter to the prosecutor’s office. So that the new procedural and analytical framework can be applied in this case, the Court vacates the orders under review and remands the matter for further proceedings.

The sentencing court, and not the MVC, has the appropriate jurisdiction over defendant’s motion for sentencing credit concerning the IID requirement.

The plain meaning of N.J.S.A. 59:8-3(b) dictates that child sexual abuse survivors who file a CSAA complaint against a public entity after December 1, 2019 -- even if their cause of action accrued much earlier -- need not file a TCA notice of claim before filing suit.

         In this opinion, the court addresses the novel issue of whether a party to a pending litigation may compel a non-party State agency to turn over its employees' State-issued and personal cell phones to that party's expert for forensic examination, even when the agency has already produced the relevant records from the devices.  Having reviewed this issue in light of the record, the arguments of the parties, and the applicable law, the court concludes that the trial court misapplied its discretion when it required the New Jersey Department of Health (Department) to give the cell phones to plaintiffs' expert for evaluation.  The trial court's order violated civil discovery rules and case law by requiring the production of materials not in the Department's possession, custody, or control, not allowing for privilege and confidentiality review, and being unnecessary and unduly burdensome.  The order also contravened the employees' constitutional right to privacy.  Therefore, the court reverses the trial court's order mandating that the Department turn over any State-issued or personal electronic devices for examination by plaintiffs' expert, and remands the matter for resolution of any outstanding issues relating to the completeness of the Department's response to plaintiffs' subpoena.

The court affirms Law Division orders consolidating and dismissing seven inverse condemnation actions against the Department of Environmental Protection under the entire controversy doctrine, leaving plaintiffs to their remedies in the DEP's condemnation action against their homeowners association, in which plaintiffs have been participating since 2019.

The case arises out of the State's acquisition of a perpetual storm damage reduction easement by eminent domain in the Association's unbuildable, two-and-a-half-acre beach lot along the Atlantic Ocean in Point Pleasant Beach as part of the Manasquan Inlet to Barnegat Inlet Storm Damage Reduction Project.  Plaintiffs are seven of the twenty-two homeowner members of the Association, each holding a non-exclusive easement appurtenant for recreational purposes in the Association's beach. 

When the court declared DEP had the authority to partially condemn the Association's beach for shore protection in 2016, it entered orders permitting members of the Association to present claims for severance damages allegedly caused to their homes by the partial taking of the beach lot before the condemnation commissioners.  Plaintiffs appeared at the commissioners' hearing in 2019 and have appealed from the commissioners' report and award.  They have an order in the condemnation action ensuring that among the issues to be tried to a jury will be "the separate just compensation due to each of the respective [plaintiffs] by reason of the taking . . . of property of each . . . and any damages to their respective residential lots."  Because plaintiffs' rights to separate awards for just compensation for the loss of value to their homes, if any, resulting from DEP's exercise of eminent domain as to the beach lot are fully protected through their participation in the earlier filed condemnation action, the court affirms dismissal of their inverse condemnation actions under the entire controversy doctrine.

          The court also affirms rejection of plaintiffs' claim that their recreational easements provided them the right to exclude non-Association members from the Association's beach, as neither the express wording of the easement nor the Association's reservation of the right to operate the beach commercially in a 2005 settlement of public trust litigation supports that claim.

The Court affirms as modified the judgment of the Appellate Division substantially for the reasons stated in Judge Susswein’s published opinion. The Court explains why it does not believe the Appellate Division’s proposed procedural rule is necessary.

HELD: L. 2021, c. 17 (Chapter 17), effective February 22, 2021, was enacted to continue the local property tax (LPT) exemption afforded to nonprofit hospitals, and to extend the same exemption to a nonprofit hospital-owned satellite emergency facilities (SECs), even if areas of the hospital and SECs are used by/leased to, for-profit medical providers “for medical purposes related to delivery of health care services directly to the hospital,” provided that such “portion of the hospital . . . is used exclusively for hospital services.”  The nonprofit hospitals and SECs should pay an annual community service contribution (ACSC) to the municipality in which the hospital beds of a nonprofit hospital are located or where an SEC is located.  Chapter 17 also bars imposing assessments for tax years 2014 through 2020, which would moot those years’ pending tax appeals all filed because of the alleged for-profit activity conducted by the hospital and/or the for-profit medical providers on the nonprofit hospital premises.  The law was enacted to mitigate the effects of a 2015 Tax Court decision which revoked the tax exemption of a nonprofit hospital’s property based on facts that the operations/activities of the plaintiff nonprofit hospital and the for-profit, private medical providers on the hospital property were too blurred.

The court here found that (1) the ACSC is not an ultra-vires payment-in-lieu of tax program; (2) the ACSC is not a local property tax for purposes of the Uniformity Clause of the New Jersey Constitution; (3) Chapter 17 is facially constitutional and does not violate the Exemption Clause of the New Jersey Constitution; (4) Chapter 17 is not an invalid special legislation, thus also does not facially violate the Equal Protection Clause of the federal and State constitutions; and (5) Chapter 17’s retroactivity is not manifestly unjust, thus, also does not violate the Due Process Clause of the federal and State constitutions.  The court further found there are no bases for imposing an injunction against Chapter 17 under any of the factors enunciated in Crowe v. DeGioia, 90 N.J. 126, 132-34 (1983).  The court therefore dismissed the complaint with prejudice.

Based on the text of the new statute and its legislative history, the Court concludes the Compassionate Release Act affords judges discretion to deny relief, in exceptional circumstances, even if the law’s medical and public safety conditions are satisfied. In individual cases, when the medical and public safety factors are met, courts can assess whether extraordinary aggravating factors exist that justify the denial of compassionate release. That high standard comports with the Legislature’s goal to make greater use of compassionate release. Absent any such circumstances, petitions for relief should be granted.

Based on the text of the new statute and its legislative history, the Court concludes the Compassionate Release Act affords judges discretion to deny relief, in exceptional circumstances, even if the law’s medical and public safety conditions are satisfied. In individual cases, when the medical and public safety factors are met, courts can assess whether extraordinary aggravating factors exist that justify the denial of compassionate release. That high standard comports with the Legislature’s goal to make greater use of compassionate release. Absent any such circumstances, petitions for relief should be granted.

In this appeal from proceeding filed in the Family Part involving the cremation remains and personal effects of the parties' son, who died unexpectedly and suddenly at age twenty, the mother unilaterally decided to have the body cremated without informing the father that their son had died, preventing him from participating in that decision and attending the memorial service.  The mother has sole possession of the cremation remains and the son's remaining personal effects and refuses to divide them with the father.  

The court concluded the father had ample opportunity to litigate Colleen's alleged alienation of their son's affection and interference with his parenting time and communication with his late son in the Family Part during the years leading up to his son's eighteenth birthday.  He chose not to do so, and instead waited until the dispute over the cremation remains and personal effects erupted more than two years after their son turned eighteen to first raise those issues.  The court deemed those issues waived and, in turn, concluded that a plenary hearing regarding the parties conduct during the last five years of their son's life is not required as the evidence overwhelming demonstrated the mother had a closer relationship with their son.  Applying a four-prong test, the court held the mother shall have control over the cremation remains.  

The court affirmed the termination of child support, retroactive to the date of death.  

The court also provides guidance on the proper procedure to be utilized in future similar disputes, by filing a complaint in the Probate Part, rather than applications in the Family Part.  

These consolidated appeals present an issue of first impression – whether plaintiffs state viable claims for breach of contract, unjust enrichment, conversion, or money had and received, because the universities they attended transitioned to total online instruction rather than an in-person, on-campus education experience for which they paid, during the statewide health emergency caused by the COVID-19 pandemic.  The universities contend they are immune from liability pursuant to the Emergency Health Powers Act (EHPA), N.J.S.A. 26:13-1 to -36, because their decisions to pause in-person instruction were made in compliance with the executive orders issued by the Governor during a public health emergency to limit the spread of COVID-19 among students, faculty, and the community.  

The court affirms the Rule 4:6-2(e) dismissal of plaintiffs' complaints for failure to state a claim upon which relief can be granted, concluding the universities are immune from liability under N.J.S.A. 26-13-19.  

In this appeal, plaintiff American Civil Liberties Union of New Jersey (ACLU) contended defendant County Prosecutors Association of New Jersey (CPANJ) is a public agency subject to records requests under the Open Public Records Act (OPRA) and the common law right of access.  The ACLU requested CPANJ to produce documents regarding CPANJ's funding, the context and contents of its meetings and events (including dates, times, and locations), and the people performing its operating functions.  CPANJ denied the records request in its entirety, contending it is "not a public agency subject to the dictates of OPRA or requests made under the common law right of access." 

The court held CPANJ is not a public agency subject to OPRA and is not a public entity subject to the common law right of access.  Therefore, disclosure of the requested records was properly denied.  

This case addresses the issue of whether sales tax should be included when calculating the "full retail value" of merchandise under New Jersey's shoplifting gradation statute.  N.J.S.A. 2C:20-11(c).  Defendant pled guilty to shoplifting an Xbox One with an advertised price of $499.99.  Shoplifting constitutes a crime of the third degree "if the full retail value of the merchandise exceeds $500 but is less than $75,000" and a crime of the fourth degree "if the full retail value of the merchandise is at least $200 but does not exceed $500."  N.J.S.A. 2C:20–11(c)(2) and (c)(3).    The State utilized sales tax in grading defendant's offense, and he was therefore charged with a third-degree offense.  

The court analyzed the theft statute, which specifically utilizes sales tax to calculate the "amount involved" in its statutory gradation scheme.  However, the court observed the shoplifting statute contains no such provision.  The court concluded because the Legislature did not determine sales tax should be included in the valuation of full retail value in enacting the shoplifting gradation statute, it was improper for sales tax to have been utilized to increase defendant's charge to a third-degree offense.   

Defendant's car was subjected to a warrantless search incident to an unrelated sting operation planned and carried out by New Jersey State Police.  The State Police detained defendant after a parking lot melee involving three other persons, including the target of the sting operation.  Due to the cold weather, state troopers detained defendant in his car.  After a state trooper opened defendant's car door and placed him inside, the trooper smelled the odor of marijuana.  Based on the trooper's detection of marijuana, the State Police sought defendant's consent to search the car.  After initially refusing, defendant consented, and the State Police conducted a search of the car.  The State Police found no marijuana in the car, but they recovered an illegal gun.  Defendant filed a motion to suppress the gun, arguing the initial entry into his vehicle constituted an unconstitutional search.  The trial court denied the motion, finding the State Police's justification that it was too cold to detain defendant outside was sufficient under the totality of the circumstances.

The Court held that the trial court mistakenly applied State v. Woodson, 236 N.J. Super. 537 (App. Div. 1989), and State v. Conquest, 243 N.J. Super. 528 (App. Div. 1990), and that the opening of the car door constituted an impermissible search.

Reversed and remanded.  

 Defendant was charged with first-degree murder, two weapons offenses, and hindering apprehension.  Tried to a jury, defendant was convicted of the lesser-included offense of second-degree passion-provocation manslaughter, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon, and not guilty of hindering apprehension.  The trial court found aggravating factors one, three, four, and nine, N.J.S.A. 2C:44-1(a)(1), (3), (4), and (9), and mitigating factor seven N.J.S.A. 2C:44-1(b)(7), but rejected mitigating factor nine, N.J.S.A. 2C:44-1(b)(9).  Following merger of the weapons counts, he was sentenced to a nine-and-one-half-year term, subject to the parole ineligibility and parole supervision imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2.  

The court addressed the judicial factfinding undertaken by the trial court as part of its sentencing analysis.  The court concluded that the trial court's findings regarding the degree of provocation and sufficient time to cool off before delivering the fatal blows were contrary to the jury's verdict and violated the doctrine of fundamental fairness.  
The court also held that aggravating factor four applies to a defendant taking "advantage of a position of trust or confidence" relating to the victim "to commit the offense," not to a minor's subsequent participation in an attempted coverup of the homicide.  

The court also addressed the need for a trial court to provide a detailed explanation of how it reconciles its application of aggravating factor three and mitigating factor seven, the weight assigned to those factors, and how those factors are balanced with respect to a defendant who had no prior juvenile or criminal history and no subsequent criminal history in the decade that elapsed before his arrest.  

 The court vacated defendant's sentence and remanded for resentencing, directing the trial court to not consider whether defendant was adequately provoked or had adequate time to cool off before inflicting the fatal blows, to not apply aggravating factor four, and to apply mitigating factor fourteen.  The court further directed that the trial court reconsider whether aggravating factor three applies and if so, the weight to be given to it.