Back From the Dead

To date, 2022 has not been kind to this blog. Down for a period of time due to malware, and then only partially restored, the blog is now fully ready for the new year. But the New Jersey appellate law world did not stop during that time. Here are some summaries of developments, decisional and otherwise, since January 1:

The legislative term expired, and with it Governor Murphy’s nomination of Rachel Wainer Apter to fill Justice LaVecchia’s seat on the Supreme Court. After the new legislative term began, the Governor announced that he would renominate her for the seat. There is talk of a “package deal” regarding that nomination and a forthcoming nomination to fill the seat of Justice Fernandex-Vina, who will reach the mandatory retirement age of 70 next month. Some potential appointees for that seat have been mentioned, but a nomination is still to be made.

In the Matter of Establishment of Congressional Districts by the New Jersey Redistricting Commission is a case brought before the Supreme Court under original jurisdiction. Plaintiffs are Republican members of the Redistricting Commission who object to the Commission’s decision to adopt the Democrats’ redistricting map rather than that proposed by Republicans. That occurred when retired Justice John Wallace, the “tiebreaking” member and Chairperson of the Commission, voted in favor of the Democrats’ map. On January 4, the Supreme Court issued an Order that quoted Justice Wallace’s orally expressed rationale for his vote, stated that “[a] more detailed statement of reasons would assist the Court,” and “respectfully request[ed” that Justice Wallace “amplify the grounds for his decision and present that amplification to the parties and to the Court by January 11, 2022.” The Order relied, “[b]y analogy,” on Rule 2:5-1(b), which “allows a trial judge or agency head to submit ‘an amplification of a prior [oral] statement [or] opinion’ when an appeal is taken.” Justice Wallace provided that amplification on January 11.

The Supreme Court has issued just one opinion, in the consolidated cases of State v. Comer and State v. Zarate, ___ N.J. ___ (2022). The issue was whether the murder statute, which mandates a sentence of at least 30 years without parole, is unconstitutional as applied to juveniles. By a 4-3 vote, the Court ruled that the statute, as applied to juveniles, would violate Article I, Paragraph 12 of the New Jersey Constitution absent “judicial surgery” to add a procedure “to preserve the homicide statute because we have no doubt the Legislature would want the law to survive.” That procedure was a “look-back,” under which juveniles sentenced for murder can petition for review of their sentences after they have served two decades in prison. At that time, courts are to assess factors laid out by the Supreme Court of the United States in Miller v. Alabama, 567 U.S. 460, 476-78 (2012). Chief Justice Rabner wrote the majority opinion, in which Justices LaVecchia, Albin, and Pierre-Louis joined. The dissenters, with Justice Solomon writing for himself and Justices Patterson and Fernandez-Vina, contended that the statute does not unconstitutionally treat juveniles, and that the majority, in announcing the “look-back,” erroneously exercised a power reserved to the Legislature. Both cases were remanded for resentencing.

The Appellate Division issued three published opinions so far in 2022;

State v. Herrera, ___ N.J. Super. ___ (App. Div. 2022). This case arose out of convictions for leaving the scene of a fatal motor vehicle accident, in violation of N.J.S.A. 2C:11-5.1, and endangering an injured victim, which is a crime under N.J.S.A. 2C:12-1.2. The State appealed the Law Division’s decision to impose concurrent sentences for those offenses. Defendant cross-appealed, contending that the two convictions should have been merged. In an opinion by Judge Susswein, the Appellate Division agreed that the convictions “constitute[d] a single offense and should have been merged.” That “render[ed] academic the question of whether consecutive sentences should have been imposed.” The panel remanded the case for amendment of the conviction.

Steiner v. Steiner, ___ N.J. Super. ___ (App. Div. 2022). Judge Fisher’s opinion in this matrimonial appeal involved parties who were married in 1955. The decision was issued on December 15, 2021 as an unpublished opinion, but was approved for publication on January 12, 2022. The appellant husband, a well-known real estate developer, argued that entry of a judgment of divorce was improper, that the trial judge erroneously excluded certain evidence, and that an attorneys’ fee award to the wife was improper. The Appellate Division affirmed on all issues except the fee award, which the panel vacated and remanded for further proceedings.

Kopec v. Moers, ___ N.J. Super. ___ (App. Div. 2022). This case actually involved ten appeals on the same issue: whether appellant Weinberger Divorce & Family Law Group LLC could enforce the terms of its retainer agreements to obtain judgment against former clients for unpaid attorneys’ fees or, in the alternative, compel the clients to submit to binding arbitration to resolve the fee disputes. The cases were pending in the Family Parts of four different counties. At the trial level, the law firm’s motions for summary judgment to enforce the retainer agreement were denied. On the firm’s appeal, the Appellate Division affirmed in an opinion by Judge Enright. The law firm’s motion papers had failed to include a statement of material facts, as required by Rule 4:46-2(a). And apart from that, “the proofs it submitted were inadequate to permit a judge to determine whether the fees sought were reasonable.” The certifications submitted by the firm did not adequately address the factors of Rule of Professional Conduct 1.5(a) that go to whether a fee is reasonable. Finally, the retainer agreement’s arbitration provision was “confusing and misleading” in various ways, and also violated Rule 1:20A-6, which gives clients, not lawyers, the right to invoke fee arbitration proceedings.