Appellate Division Roundup

The Appellate Division does not issue many opinions in August, as the judges clean up remaining inventory. But there have been some significant published opinions in the last two weeks. Here are summaries of some of those rulings:

Harvard v. State, 460 N.J. Super. 433 (App. Div. 2019). Plaintiff in this appeal was a Special Civil Part Officer in the Atlantic/Cape May County vicinage. The vicinage learned of numerous violations of directives of the Administrative Office of the Courts upon an investigation of plaintiff’s financial record. The Assignment Judge of the vicinage terminated plaintiff’s employment.

Plaintiff then sued the vicinage, asserting violations of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14 (“CEPA”), the Civil Rights Act, N.J.S.A. 10:6-1 to -2 (“CRA”), and his substantive and procedural due process rights. The vicinage won summary judgment. Plaintiff appealed, and the Appellate Division, speaking through Judge Hoffman affirmed, substantially on the opinion of the Law Division, employing the de novo standard of review.

In short, the CEPA claim failed because plaintiff was an independent contractor, not an employee of the vicinage for CEPA purposes, and he was not a “whistleblower.” His complaints to the vicinage that formed the predicate for the CEPA claim “did not concern the health, safety, or welfare of the public and did not report a public harm.” Instead, they “concerned a private disagreement over his accounting practices, commissions, and reputation,” which was not actionable under CEPA.

Plaintiff’s CRA claim was rejected because the vicinage was not a “person” that could be sued. The constitutional claims failed because “plaintiff had no entitlement to continued employment,” and he was afforded sufficient process.

Shaw v. Shand, 460 N.J. Super. 592 (App. Div. 2019). This was an interlocutory appeal from a Law Division decision granting partial summary judgment that a home inspector could not be sued under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., because such inspectors are “learned professionals,” who are exempt from CFA liability. In a lengthy and scholarly opinion by Judge Mitterhoff, the Appellate Division reversed.

Judge Mitterhoff analyzed the CFA and the learned professional doctrine in detail. The panel declined to follow Plemmons v. Blue Chip Ins. Servs., Inc., 387 N.J. Super. 551 (App. Div. 2006), on which the Law Division had relied heavily. That case had held that ‘semi-professionals” (there, an insurance broker) were exempt under the learned professional exception.

In a concurring opinion, Judge Sabatino acknowledged that he had been on the panel in Plemmons. But he stated that he had meanwhile “changed [his] mind.” While noting, in any event, that there was a distinction between the stringency of licensure requirements for insurance brokers and that for home inspectors, Judge Sabatino suggested that “this case may well present a suitable opportunity for the [Supreme] Court to provide helpful updated guidance on the contours of the learned professional doctrine.” I believe that the Court will take up that suggestion.

Rozenblit v. Lyles, 461 N.J. Super. 20 (App. Div. 2019). Judge Fuentes wrote the panel’s opinion in this labor case. The issue was the legality of a collective bargaining agreement between the Jersey City Board of Education and the Jersey City Education Association, Inc. (“JCEA”). The specific provision of that agreement in question was one that requires the Board “to pay the salaries and benefits of two teachers selected by the members of the JCEA to serve as ‘president. . .and his/her designee,’ and to allow them to devote all of their work-time to the business and affairs of the JCEA.” The provision also required the Board to continue to grant the president of the JCEA “adequate office and parking facilities.”

The Law Division rejected the challenge to this provision, which was brought by two taxpayers, one of whom paid real estate taxes to Jersey City. But the Appellate Division reversed. Declining to address the constitutional challenge that plaintiffs had raised, Judge Fuentes held that N.J.S.A. 18A:30-7, which the panel found was the relevant statute, did not authorize the payments at issue.

That statute dealt with absences from work for reasons other than sick leave. The JCEA president and designee were not, Judge Fuentes said, absent from work. “They reported to work every day to an office located on property provided by the school district to attend to the affairs of the JCEA.” The provision at issue was thus uneforceable as against public policy.

Merrill Creek Reservoir v. Harmony Tp., 461 N.J. Super. 32 (App. Div. 2019). This was an appeal from the Tax Court. Judge Accurso’s opinion contains a lengthy recitation of the detailed facts. The panel upheld the ruling of the Tax Court that had adopted a “trend analysis” valuation methodology. Judge Accurso observed that the standard of review is deferential, that the Tax Court found both parties’ experts “generally credible,” but found the Township’s expert’s approach “most appropriate” on the facts.

Since that “trend analysis” was “an accepted methodology,” there was no basis to reverse the Tax Court’s approval of it. The fact that it is rarely used did not discredit that methodology here. Quoting prior Supreme Court cases, Judge Accurso noted that there is “no single approach that must be followed in valuing real property,” and “no rigid rule.”