Due to a personal matter, there have been no posts on this blog since June 2. This post will summarize some of the decisions from our appellate courts since that date.
Separately, Governor Murphy nominated Fabiana Pierre-Louis to fill the Supreme Court seat currently held by Justice Timpone when he reaches retirement age in November of this year. A separate post, on another day, will discuss that nomination.
Finally, the Supreme Court granted certification in one new case, Haley v. Board of Review. The question presented there, as phrased by the Supreme Court Clerk’s office, is “Was claimant entitled to unemployment compensation under the circumstances presented, including that his separation from work stemmed from his pretrial incarceration for a charge on which the grand jury ultimately did not return an indictment?” In an opinion reported at 462 N.J. Super. 222 (App. Div. 2020), a three-judge panel of the Appellate Division affirmed the Board of review’s final decision that denied the claim for unemployment.
Among the recent Supreme Court decisions are the following:
Whelan v. Armstrong International, Inc., 242 N.J. 311 (2020). By a 5-2 vote, the Court held that defendants who manufacture or distribute products that include components that contain asbestos can be strictly liable in certain circumstances for failure to warn of the dangers not only of their own components but those of third parties. Justice Albin wrote the majority opinion, in which Chief Justice Rabner and Justices LaVecchia, Solomon, and Timpone joined. Justice Patterson authored the dissent, joined in by Justice Fernandez-Vina.
In re Request to Modify Prison Sentences, etc., 242 N.J. 357 (2020). This unanimous opinion, written by Chief Justice Rabner, arose out of a motion by the ACLU and the Office of the Public Defender, occasioned by the COVID-19 virus, for various forms of relief for persons held in state prisons or juvenile facilities. Finding no basis in caselaw or Court Rule for a judicially-ordered furlough or parole program, the Court noted that Governor Murphy’s Executive Order No. 124 creates a mechanism to identify candidates for furlough or parole. The Court engrafted due process protections onto the regime created by the Executive Order and allowed individual inmates to seek relief thereunder.
State v. Horton, 242 N.J. 428 (2020). The jury in this multi-count criminal case announced that it had reached a partial verdict. One of those jurors, who had a pre-planned vacation, needed to leave the jury. Instead of taking the partial verdict, the Law Division excused that juror and reconstituted the jury with a replacement juror. Defendant was convicted. He appealed, based on the juror substitution, but the Appellate Division found no error. On further review, the Supreme Court reversed in a per curiam opinion. The Court said “[w]e have rich and fulsome jurisprudence on the issue of juror substitution in the face of a jury having reached a partial verdict. Quite simply, substitution is impermissible. The proper course is for the trial court to take the partial verdict and declare a mistrial on the open counts.”
State v. J.V., 242 N.J. 432 (2020). In this unanimous opinion by Justice Timpone, the Court held that the new juvenile waiver statute, N.J.S.A. 2A:4A-26.1, did not apply retroactively to a juvenile who was waived to adult court, pled guilty, and was sentenced, all before the statute became effective. The plain language of the statute (“This act shall take effect on the first day of the seventh month following enactment.”) “is clear evidence that the Legislature intended the statute to apply prospectively only.”
The Appellate Division has also been busy. Among its recent decisions are the following:
Rubin v. Tress, 464 N.J. Super. 49 (App. Div. 2020). This was a Special Civil Part suit for unpaid legal fees. Plaintiff’s complaint was dismissed for failure to provide the pre-action notice required by Rule 1:20A-6. Plaintiff claimed that he had sent that notice, but he refused to provide it to defense counsel before service of an Answer and a discovery demand. The Special Civil Part dismissed the case based on that “discourtesy.” On appeal, the Appellate Division, speaking through Judge Accurso, affirmed the dismissal, but on a different ground. The panel did so because plaintiff ” failed to comply with Rule 4:18-2, which requires service of any document referred to in a pleading that is’ neither annexed thereto nor recited verbatim therein’ within five days of written demand.” That Rule is one that does not get a lot of play in judicial opinions, but should now be more widely known.
Carrington Mortgage Services, LLC v. Moore, 464 N.J. Super. 59 (App. Div. 2020). This opinion by Judge Sabatino affirmed the Chancery Division’s refusal to vacate a default judgment in this mortgage foreclosure matter. Defendants asserted that the case was barred by the entire controversy doctrine, as there had been a prior federal court suit concerning insurance coverage. The panel observed that the entire controversy doctrine is not “limitless” and is subject to “equitable considerations.” The Chancery Division had noted that there was no authority “that a bank was required to bring a foreclosure action in a federal proceeding or, in the alternative, that ‘the bank had an obligation to attempt to obtain insurance benefits.’ Judge Sabatino found “no legal or equitable basis to hold that the foreclosure claims had a sufficient transactional nexus to the Moores’ insurance disputes to require them to be asserted in the federal case.”
Simmons v. Mercado, 464 N.J. Super. 77 (App. Div. 2020). This was an Open Public Records Act case. Plaintiffs sought documents maintained by the Judiciary, into which City of Millville police entered information. The documents included complaints and summonses of several different types, as well as the department’s “arrest listings.” The Law Division summarily ruled for plaintiffs, but the Appellate Division reversed in an opinion by Judge Fisher. The panel held that the materials sought were not “government records” of the City. “[I]t is to the judiciary that plaintiffs must direct their request for the production of such records,” Judge Fisher said.
State v. Stoveken, 464 N.J. Super. 86 (App. Div. 2020). The “question of first impression” presented in Judge Gilson’s opinion for the Appellate Division today, was “is a grand jury subpoena sufficient to access prescription drug information maintained in New Jersey’s Prescription Monitoring Program (PMP)”? The panel held that “a properly issued grand jury subpoena is sufficient to obtain information concerning an investigation into a prescriber,” and that the subpoenas issued in these two consolidated cases were valid.
The Third Circuit also issued some opinions recently. One of them was Waterfront Commission of New York Harbor v. Governor of New Jersey, 961 F.3d 234 (3d Cir. 2020). After New Jersey passed legislation to withdraw from the Waterfront Commission Compact, a bilateral agreement between the States of New Jersey and New York, the Waterfront Commission sued the Governor of New Jersey in New Jersey federal court. The District Court denied the Governor’s motion to dismiss and granted summary judgment to the Waterfront Commission. But the Third Circuit reversed and dismissed the case. “[B]ecause New Jersey is the real, substantial party in interest, its immunity should have barred the District Court from exercising subject matter jurisdiction. Accordingly, this case must be dismissed.” So wrote Chief Judge Smith for the unanimous panel.