Sorry, you need to enable JavaScript to visit this website.

Search

  • Christine Savage v. Township of Neptune (087229) (Monmouth County & Statewide) A-2-23 Supreme May 7, 2024 Oral Argument A-2-23 A-2-23 Audio for A-2-23 Close Summary A-2-23 Through N.J.S.A. 10:5-12.8(a), a section of the LAD that was enacted in the wake of the “#MeToo movement,” the Legislature removed barriers that previously made it difficult for individuals to report abuse. Survivors of discrimination, retaliation, and harassment now have a legal right to tell their story -- a right that cannot be taken away by a settlement agreement. Because the scope of the agreement in this case would bar individuals from describing an employer’s discriminatory conduct, the agreement encompasses speech the LAD protects. The non-disparagement clause in the agreement is against public policy and cannot be enforced. 1. N.J.S.A. 10:5-12.8(a) provides in part that “[a] provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment (hereinafter referred to as a “non-disclosure provision”) shall be deemed against public policy and unenforceable against a current or former employee.” The law’s shorthand reference -- the phrase “non-disclosure provision” -- plainly draws its meaning from the words it refers back to, not from outside sources like Black’s Law Dictionary. When the Legislature sets out to define a specific term, as it did here, courts are bound by that definition. As a result, labels like “nondisclosure,” which is in the text, or “non-disparagement,” which is not, do not control the meaning of section 12.8. The operative terms of N.J.S.A. 10:5-12.8(a) ask whether a provision in an employment contract or a settlement agreement “has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment.” If it does, the agreement is “against public policy and unenforceable even if the details relating to a claim disparage an employer. (pp. 14-16) 2. The law’s structure reinforces the conclusion that it encompasses “non disparagement” provisions that would conceal details about discrimination claims. Subsection (c) of N.J.S.A. 10:5-12.8 expressly exempts particular types of clauses that might otherwise be barred by the plain language of (a), and the Legislature could have exempted non-disparagement agreements as well. But it did not. Certain language in section 12.8 -- the use of “relating to” and “a” in the phrase “relating to a claim of discrimination” -- also support a broad reading of the statute. And the Court explains how the statute’s legislative history, though not needed to understand section 12.8’s clear language, reinforces the law’s plain meaning. (pp. 16-20) 3. Paragraph 10 of the settlement agreement uses expansive language that encompasses speech about claims of discrimination, retaliation, and harassment. The scope of the agreement -- barring all statements that would tend to disparage a person -- is quite broad. It would prevent employees from revealing information that lies at the core of what section 12.8 protects -- details about claims of discrimination. In that way, the agreement directly conflicts with the LAD. The carveout at the end of paragraph 10 does not save the agreement. The last sentence states that “testimony or statements of Plaintiff related to other proceedings including lawsuits” is not precluded. Section 12.8’s protections, however, extend beyond statements made in pleadings or courtrooms. Survivors of discrimination and harassment have the right to speak about their experiences in any number of ways, and they can no longer be restrained by confidentiality provisions in employment contracts or settlement agreements. (pp. 21-22) 4. The Court reviews defendants’ specific objections to comments Savage made in a television interview. All of the challenged comments are protected under section 12.8, but paragraph 10 of the settlement agreement, if enforced, would have the effect of preventing Savage from making any of them. The non-disparagement clause in the settlement agreement conflicts with the LAD in that it encompasses and would bar speech the statute protects. It has the effect of concealing details relating to claims of discrimination, retaliation, and harassment, which is directly contrary to the LAD, and it is therefore against public policy and unenforceable. (pp. 22- 25) 5. The Court provides guidance for remand and explains that it upholds the Appellate Division’s conclusion that defendants are not entitled to attorney’s fees and costs, albeit for different reasons. (pp. 25-26) Close
  • NAOMI SIMMONS, ET AL. VS. THE CITY OF PATERSON, ET AL. (L-2078-17, PASSAIC COUNTY AND STATEWIDE) A-3250-21 Appellate May 8, 2024
  • MONICA GRAHAM VS. CAROLE L. VENETIANER (L-1964-18, MIDDLESEX COUNTY AND STATEWIDE) A-3573-21 Appellate May 8, 2024
  • IN THE MATTER OF P.T. JIBSAIL FAMILY LIMITED PARTNERSHIP, ETC. (NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION) A-0699-22 Appellate May 8, 2024
  • CHRISTOPHER BARNES VS. BRIEANNE DYAS (FM-15-0866-20, OCEAN COUNTY AND STATEWIDE) A-0938-22 Appellate May 8, 2024
  • A.F.L. VS. M.L. (FV-15-0412-23, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) A-1060-22 Appellate May 8, 2024
  • STATE OF NEW JERSEY VS. E.E. (21-03-0277, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) A-1216-22 Appellate May 8, 2024
  • IN THE MATTER OF THE CIVIL COMMITMENT OF J.P. (MECC00094522, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) A-1238-22 Appellate May 8, 2024
  • ASSET ACCEPTANCE, LLC, ETC. VS. CAMILLA A. TOFT (DC-012106-13, OCEAN COUNTY AND STATEWIDE) A-2827-22 Appellate May 8, 2024
  • ALBERT TERHUNE, JR. VS. PORT AUTHORITY OF NEW YORK AND NEW JERSEY (DIVISION OF WORKERS' COMPENSATION) A-3206-22 Appellate May 8, 2024
  • STATE OF NEW JERSEY VS. QURAN D. POWELL (16-04-0648, MONMOUTH COUNTY AND STATEWIDE) A-3382-22 Appellate May 8, 2024
  • STATE OF NEW JERSEY V. RAVEL STOKES 21-07-0507 Trial May 7, 2024 Summary 21-07-0507           The case at issue arises out of a homicide which was captured on a home surveillance system that took place during daylight hours in the City of Trenton.  The suspect can be seen on the video walking down the sidewalk seconds before he/she reaches the victim and shoots him in the head, causing his death.  The question presented was whether a proposed expert in the field of digital forensics should be permitted to testify and proffer an opinion at trial regarding the estimated height of the individual captured on the surveillance video based upon the application of a technique called reverse projection photogrammetry.           The court held a Rule 104 hearing at which time the State’s proposed expert testified.  Based on the evidence adduced at the hearing, the court ruled that the expert’s testimony was admissible pursuant to N.J.R.E 702.  In that regard: (1) the subject of the testimony was beyond the ken of the average juror and would assist the trier of fact to understand whether the height of the individual depicted in the video was consistent with the defendant’s height; (2) the expert was duly qualified in the field of digital forensics, including reverse projection photogrammetry; and (3) the expert’s testimony and opinions were reliable because they are “based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the field.” State v. Olenowski , ___ N.J. ___ (2023)(slip op. at 8). Close
  • State of New Jersey v. Andrew Higginbotham (088035) (Camden County & Statewide) A-57-22 Supreme May 8, 2024 Oral Argument A-57-22 A-57-22 Audio for A-57-22 Close Summary A-57-22 Subsection (c) of the definition of “portray a child in a sexually suggestive manner” in N.J.S.A. 2C:24-4(b)(1) is unconstitutionally overbroad because it criminalizes a large swath of material that is neither obscenity nor child pornography. Because defendant was not charged under subsections (a) or (b) of the definition of “portray a child in a sexually suggestive manner,” and did not challenge subsections (a) or (b) before the trial court or the Appellate Division, the Court does not reach the validity of those subsections. 1. Narrow categories of speech that are historically unprotected by the First Amendment include fighting words, obscenity, child pornography, incitement, defamation, true threats, and speech integral to criminal conduct. Child erotica is not on the list, but both obscenity and child pornography are relevant to this case. Under Miller v. California, something is obscene if (1) “the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest”; (2) “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law”; and (3) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. 15, 24 (1973). Whereas states may constitutionally proscribe the distribution of obscene material, possession of obscene material by the individual in the privacy of his own home is constitutionally protected. (pp. 13-14) 2. In New York v. Ferber, the Court recognized a separate exception to the First Amendment for child pornography. 458 U.S. 747, 764 (1982). The Court has upheld statutes that define child pornography as the portrayal of “sexual conduct” or “sexual acts” by children, which includes the lewd or lascivious exhibition of, or graphic focus on, a child’s genitals or pubic area. Id. at 751-53, 762. Child pornography need not meet the Miller obscenity standard to be proscribed; it is a separate type of speech that is categorically unprotected by the First Amendment. And unlike obscenity, states may constitutionally proscribe the possession and viewing of child pornography in the privacy of one’s home. But laws that ban images that “do not involve, let alone harm, any children in the production process,” violate the First Amendment unless they conform to the Miller obscenity standard. Ashcroft v. Free Speech Coal., 535 U.S. 234, 240-41 (2002). (pp. 14-17) 3. A court may hold a law facially overbroad under the First Amendment “[i]f the challenger demonstrates that the statute ‘prohibits a substantial amount of protected speech’ relative to its ‘plainly legitimate sweep.’” United States v. Hansen, 599 U.S. 762, 770 (2023). “[A] law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep.” Ibid. (pp. 17-18) 4. “[A]n item depicting the sexual exploitation or abuse of a child” was formerly defined as an image that “depicts a child engaging in a prohibited sexual act or in the simulation of such an act.” N.J.S.A. 2C:24-4(b)(1) (2017). In 2017, the Legislature amended N.J.S.A. 2C:24-4 to expand the definition to include an image that “portrays a child in a sexually suggestive manner,” which is defined in three ways in subsections (a) through (c). Subsections (a) and (b) use nearly identical language to criminalize any depiction of “a child’s less than completely and opaquely covered intimate parts” or “any form of contact with a child’s intimate parts,” whereas subsection (c) uses different language to criminalize other depictions of children “for the purpose of sexual stimulation or gratification of any person.” (pp. 19-21) 5. The first step in any overbreadth analysis is to construe the challenged statute to determine what it covers. Subsection (c) says nothing about obscenity. Although it incorporates Miller’s third prong by requiring that “the depiction does not have serious literary, artistic, political, or scientific value,” it says nothing about Miller’s first or second prongs. Subsection (c) therefore criminalizes a substantial amount of speech that does not legally constitute obscenity. Subsection (c) also strays far beyond the definition of child pornography set forth in Ferber. Where the criminalization depends only on whether “any person who may view the depiction” can use it “for the purpose of sexual stimulation or gratification,” and where the only limit is that the depiction lacks “serious literary, artistic, political, or scientific value,” large swaths of protected material are conceivably ensnared. Indeed, depictions of something other than sexual contact and less than completely covered intimate parts appear to be the only thing that subsection (c) can actually reach that subsections (a) and (b) do not. On its face, subsection (c) criminalizes only materials that do not constitute child pornography. Because the application of subsection (c) to images that constitute neither obscenity nor child pornography is realistic, not fanciful, and is substantially disproportionate to subsection (c)’s lawful sweep, subsection (c) is substantially overbroad. (pp. 23-27) 6. The Court explains why it rejects the State’s suggestion that limiting language from subsections (a) and (b) of the definition of “portray a child in a sexually suggestive manner” could be understood to apply to subsection (c) as well, noting that (a), (b), and (c) are disjunctive, that subsection (c) is not reasonably susceptible to the State’s limiting construction, and that the Court cannot re-write a plainly written legislative enactment. The Court also rejects the State’s claim that “everything that subsection (c) covers . . . fits within” the Supreme Court’s most recent definition of child pornography in United States v. Williams, 553 U.S. 285 (2008). In Williams, the Supreme Court proscribed “obscene material depicting (actual or virtual) children engaged in sexually explicit conduct, and any other material depicting actual children engaged in sexually explicit conduct.” Id. at 293. But subsection (c) proscribes far more than that. (pp. 27-34) 7. Because subsection (c) can be excised without impacting subsections (a) or (b), the Court holds that subsection (c) alone of the definition of “portray a child in a sexually suggestive manner” contained in N.J.S.A. 2C:24-4(b)(1) is unconstitutional. Defendant can be constitutionally prosecuted under New Jersey’s obscenity law but not under a different law that is unconstitutionally overbroad. (pp. 35-36) Close
  • IN THE MATTER OF THE CIVIL COMMITMENT OF R.H., SVP-487-08 (SVP-487-08, CAPE MAY COUNTY AND STATEWIDE) (RECORD IMPOUNDED) A-2374-21 Appellate May 9, 2024
  • MICHAEL CHESKI VS. BOARD OF TRUSTEES, ETC. (TEACHERS' PENSION AND ANNUITY FUND) A-3889-21 Appellate May 9, 2024
  • STATE OF NEW JERSEY VS. TATAREUS L. JOHNSON (21-03-0231, MORRIS COUNTY AND STATEWIDE) A-0771-22 Appellate May 9, 2024
  • EILEEN DONNERSTAG VS. WINCHESTER GARDEN, ET AL. (L-4436-20, ESSEX COUNTY AND STATEWIDE) A-1916-22 Appellate May 9, 2024
  • STATE OF NEW JERSEY VS. THOMAS PUMPHREY (13-09-0544 AND 14-09-0614, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) A-1949-22 Appellate May 9, 2024
  • STATE OF NEW JERSEY VS. KEITH I. HUNT (22-03-0293, PASSAIC COUNTY AND STATEWIDE) A-2042-22 Appellate May 9, 2024
  • LINDA D. SMITH VS. JOHN H. DORIA, ET AL. (L-1421-19 AND L-2490-19, CAMDEN COUNTY AND STATEWIDE) A-3138-22 Appellate May 9, 2024