A Busy Day at the Supreme Court- Six New Grants of Review

The Supreme Court announced that it has taken up six new cases. The Court granted certification in four of those matters. One case is before the Court on a grant of leave to appeal, and one other case involves an appeal as of right due to a dissent in the Appellate Division, as well as a grant of certification.

The appeal as of right is Players Place II Condominium Ass’n v. K.P. and B.F. The question presented there, as phrased by the Supreme Court Clerk’s office, is “Did defendants prove that they are entitled to an emotional support dog that exceeded the weight limit in the Association’s pet policy as a reasonable accommodation under the New Jersey Law Against Discrimination, and if not, should the dog be allowed to remain in the condominium unit?” The Chancery Division held that defendants had violated the pet policy but allowed them to keep the dog, based on equitable principles. The Appellate Division affirmed that decision by a 2-1 vote in an unpublished ruling. The dissenting opinion stated that the Association’s rules should have been enforced to bar the dog.

Merck & Co., Inc. v. Ace American Ins. Co. is the matter that is before the Court on leave to appeal. The question presented is “Did the ‘all risks’ property insurance policies cover damages from a cyberattack that infected thousands of plaintiff’s computers in its global network, or did the ‘Hostile/Warlike Action’ exclusion apply?” In an opinion reported at 475 N.J. Super. 420 (App. Div. 2023) and discussed here, the Appellate Division affirmed the Law Division’s grant of summary judgment to Merck, the policyholder.

The case with the longest title of those granted certification is In re Protest of Contract for Retail Pharmacy Design, Construction, Start-Up and Operation, Request for Proposal No. UH-P20-006/ In re Sumukha LLC Challenge of Post-Award Changes to RFP UH-P20-006. That case presents this question: “Is University Hospital a state administrative agency whose final decisions are directly appealable to the Appellate Division under Rule 2:2-3(a)(2)?” The Appellate Division’s opinion, reported at 474 N.J. Super. 630 (App. Div. 2023) and summarized here, ruled that University Hospital is not a state administrative agency. As a result, the panel dismissed the appeal.

In State v. Higginbotham, the question presented is “Is the child erotica amendment, L. 2017 c. 141, to the child endangerment statute, N.J.S.A. 2C:24-4, which criminalizes portraying a child in a sexually suggestive manner, unconstitutionally vague and overbroad under the First Amendment?” The Law Division denied defendant’s motion to dismiss the indictment on that ground, but the Appellate Division reversed in an opinion reported at 475 N.J. Super. 205 (App. Div. 2023), discussed here, and held that the statute was unconstitutional.

Yet another published Appellate division decision as to which the Supreme Court granted certification is Delaware River Joint Toll Bridge Comm’n v. George Harms Construction Co., Inc. The question for the Court in that appeal is “Is the Commission, a bi-state entity created by an interstate compact between New Jersey and Pennsylvania and approved by Congress, authorized to approve, use, and enforce a project labor agreement as a mandatory requirement in its bid specifications?” Reported at 475 N.J. Super. 317 (App. Div. 2023), the Appellate Division’s opinion held that the Commission was not so authorized.

Last, but certainly not least, is New Jersey Div. of Child Protection & Permanency v. B.P. That matter presents this question: “Under the circumstances presented, did the New Jersey Safe Haven Infant Protection Act, N.J.S.A. 30:4C-15.5 to -15.11, preclude a finding that defendant abused and neglected her daughter under N.J.S.A. 9.6-8.21(c)(4)?” A two-judge panel of the Appellate Division, in an unpublished per curiam opinion, affirmed the family Part’s ruling finding B.P. guilty of child abuse and neglect.