Another Short Week, and Another Catch-Up Post

In the past two weeks, an Appellate Division brief and a Supreme Court petition consumed much time. So, in this shortened Thanksgiving week, it’s time to catch up on the many opinions that our appellate courts issued during that time. These included the first Supreme Court opinions since September and several Appellate Division decisions. Here are summaries:

Keim v. Above All Termite & Pest Control, ___ N.J. ___ (2023). This unanimous opinion by Justice Fasciale addressed “whether an employee’s car accident occurred ‘in the course of employment’ and is therefore compensable under the Workers’ Compensation Act (the Act), N.J.S.A. 34:15-1 to -147.” At issue was the “authorized vehicle rule, of N.J.S.A. 34:15-36. An employee is “in the course of employment” under that rule, Justice Fasciale said, “when (1) the employer authorizes a vehicle for operation by the employee, and (2) the employee’s operation of that identified vehicle is for business expressly authorized by the employer.” Here, the defendant employer “provided a vehicle and authorized the employee, Keim, to operate that vehicle to replenish supplies at a particular location as needed. Keim was thus ‘in the course of employment’ when he drove his authorized vehicle to obtain the supplies and was injured in a serious car accident. As a result, he is entitled to benefits under the Act.” The Court affirmed the ruling of the Appellate Division in that regard.

State v. Tiwana, ___ N.J. ___ (2023). Justice Solomon authored this opinion for a unanimous Court. His introduction section concisely stated the key facts, the procedural history, and the Court’s conclusion: “Following a car crash near the Holland Tunnel that left two police officers in critical condition, an investigating detective visited defendant, the driver of the car that struck the officers’ vehicles, in the hospital. The detective approached and introduced himself to defendant and advised her that he was investigating the collision. In response, defendant complained of chest pain and stated that she ‘only had two shots [of alcohol] prior to the crash.’ The trial court suppressed defendant’s statement and the Appellate Division affirmed. Both courts found that a custodial interrogation occurred at the hospital and that the detective’s failure to give Miranda [v. Arizona, 384 U.S. 436 (1966)] warnings rendered defendant’s statement inadmissible. We now reverse. As the parties agree, defendant was in custody at the hospital in light of the police presence around her bed area. But no interrogation or its functional equivalent occurred before her spontaneous and unsolicited admission. Miranda warnings were therefore not required, and defendant’s statement — that she ‘only had two shots prior to the crash’ — is admissible at trial.”

Division of Child Protection & Permanency v. D.C.A., ___ N.J. ___ (2023). Termination of parental rights calls for evaluation of a four-prong test stated in N.J.S.A. 30:4C-15.1(a). As Justice Patterson wrote in her unanimous opinion, “[t]he second prong requires a court to decide whether ‘[t]he parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm.’ N.J.S.A. 30:4C-15.1(a)(2). Under the fourth prong, a court determines whether “[t]ermination of parental rights will not do more harm than good.’ N.J.S.A. 30:4C-15.1(a)(4).” The issue was whether a 2021 amendment that deleted from the second prong language stating that “[s]uch harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child” precluded a court from considering that same factor under the fourth prong, which the 2021 amendment did not alter. The courts below did do that, and they terminated the parental rights at issue. The Supreme Court affirmed. “Based on the plain language of the 2021 Amendment, we concur with the trial court and Appellate Division that the Legislature did not intend to bar trial courts from considering evidence of the child’s relationship with the resource family when they address the fourth prong of N.J.S.A. 30:4C-15.1(a). We agree with the Appellate Division that the trial court properly considered the relationships between the children and their resource families when it considered the fourth prong of the best interests test, N.J.S.A. 30:4C-15.1(a)(4), and that its determination as to all four prongs of that test was grounded in substantial and credible evidence in the record.”

State v. Olenowski, ___ N.J. ___ (2023). This opinion saw the first dissent of the current Term. The decision here was a follow-on to State v. Olenowski, 253 N.J. 133 (2023), discussed here. There, in an opinion by Chief Justice Rabner, the Court adopted a multi-factor test for the reliability of expert testimony modeled to some extent on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court then remanded the matter to the Special Master that it had appointed, so that he could apply the new test to the question of whether a Drug Recognition Expert (“DRE”) twelve-step protocol for determining whether an automobile driver was under the influence of drugs, analogous to the blood alcohol level test used for cases involving driving while intoxicated by alcohol. The Special Master found that the DRE satisfied the Court’s new test and was admissible under New Jersey Evidence Rule 702. The case came back to the Court on appeal from the Special Master’s ruling. By a unanimous vote, the Court concluded that de novo review was the proper standard for review of Daubert-based rulings such as the one before the Court, while the abuse of discretion standard should apply to other expert issues in criminal appeals. That was “akin to the approach adopted by the Alaska Supreme Court,” one of many cases from other jurisdictions that the Court’s opinion, written by Judge Sabatino, canvassed. But the Court split on the issue of whether the DRE met the new reliability standard. The majority held that it did, but subject to certain limitations, in an opinion by Judge Sabatino that Justices Patterson, Solomon, Wainer Apter, and Faciale joined. Justice Pierre-Louis, joined by Chief Justice Rabner, the author of the prior Olenowski decision, were the dissenters.

State v. Silvers, ___ N.J. Super. ___ (App. Div. 2023). The day after Judge Sabatino’s opinion in Olenowski appeared, he issued an opinion for the Appellate Division in this case. The issue was whether and to what extent police officers should be excluded from the jury pool in a criminal case. The Law Division denied a defense request to exclude two police officers who worked for municipalities other than the one where the crime occurred, but in the same county. The defense argued that because interaction with the county prosecutor’s office is inherently a “necessary component of their jobs as police officers,” such officers should be excluded from the jury pool. The Appellate Division affirmed the rejection of this argument. Judge Sabatino noted that in State v. Reynolds, 124 N.J. 559 (1991), the Supreme Court had rejected a categorical policy of exclusion of police officers for cause but left it to trial judges to make case-by-case decisions. “Extending the nuanced approach of Reynolds, we hold that a per se finding of cause to strike a criminal juror in law enforcement should only apply to employees of the same police department or prosecutor’s office that investigated or prosecuted the charged offense.” The panel offered non-exhaustive factors to guide trial courts. As to this particular case, the Appellate Division affirmed the trial court’s decision not to strike for cause one of the police officers. It was error, though, not to strike the other, but since that officer did not get on the jury, the error was harmless. Accordingly, the court upheld defendant’s conviction and sentence.

C.P. v. The Governing Body of Jehovah’s Witnesses, ___ N.J. Super. ___ (App. Div. 2023). This was a child abuse case. Judge Firko wrote the panel’s opinion, which affirmed the denial of a defense motion for summary judgment. Suffice it to say that the facts and procedural history are unusual, enough so that the opinion goes through the entire controversy doctrine, judicial estoppel, the statute of limitations, and multiple versions of relevant statutes that were amended over time. Check it out.

In the Matter of Estate of Jones, ___ N.J. Super. ___ (App. Div. 2023). Judge Gooden Broen authored the opinion in this probate dispute. The case centered on the disposition of United States EE savings bonds. Relevant to that were a divorce settlement agreement (DSA”) “and federal law regarding savings bonds. The Chancery Division granted the Estate’s motion for partial summary judgment against the former wife of the decedent, applying the DSA. The Appellate Division reversed. “[W]e disagree with the judge’s legal determinations regarding the interpretation of the DSA as well as the application of state law to the disposition of federal savings bonds in the circumstance of this case. As to the latter, we agree with Jeanine’s contention that the judge erred in applying state law to decide the bonds’ disposition because state law was preempted by controlling federal law.”