Back in Action

The appellate courts have not been idle since the most recent post on this blog. Opinions have been issued, the Supreme Court has taken up more cases for review, and the Appellate Division has entered an Order about scheduling in light of the Covid-19 situation. Here are some summaries:

The Supreme Court issued these opinions, the most recent of which (listed first below) was announced this morning:

Barila v. Cliffside Park Bd. of Educ., 241 N.J. 595 (2020). At issue, on cross-motions for summary judgment, was the effect of a 2015 collective bargaining agreement that reduced a cap on compensation for unused sick leave from the previous cap of $25,000 to $15,000. All seven Justices agreed that the courts had subject matter jurisdiction over the issue, disagreeing with the idea that the matter was within the exclusive jurisdiction of the Public Employee Relations Commission. But the Court split 4-3 on the merits. The majority opinion, written by Justice Patterson and joined by Justices LaVecchia, Fernandez-Vina, and Solomon, held that the lower cap applied. Justice Albin’s dissenting opinion, in which Chief Justice Rabner and Justice Timpone joined, contended that the previous higher cap was a vested right that was not explicitly undone by any language in the 2015 agreement. The majority thus reversed the decision of the Appellate Division.

Morales-Hurtado v. Reinoso, 241 N.J. 590 (2020). This per curiam opinion unanimously affirmed a ruling of the Appellate Division, reported at 457 N.J. Super. 170 (App. Div. 2018). That court held that a number of trial errors, including a remark in the opening statement of, and improper cross-examination and other conduct by, the defense, had deprived plaintiff of a fair trial. The Court also briefly addressed the circumstances in which one expert can rely on another, noting that this is permissible, but only if it is shown that the expert relied upon “actually holds the opinion attributed to him or her, which can be accomplished by means of a report by [that expert], his or her trial testimony, or other competent evidence.” The Court left that expert issue to the trial court at a new trial but required a hearing under Evidence Rule 104.

Nieves v. Adolf, 241 N.J. 567 (2020). This opinion by Justice LaVecchia held that the Tort Claims Act, N.J.S.A. 59:1-1 et seq., applied to plaintiff’s claim of legal malpractice by the Public Defender, and that plaintiff did not surmount the statute’s “verbal threshold” for a damage claim for pain and suffering, N.J.S.A. 59:9-2(d). That ruling affirmed the decision of the Appellate Division below. Justice Albin dissented in part.

State v. Bell, 241 N.J. 552 (2020). This matter was before the Court on leave to appeal, after the Appellate Division had denied such leave. Justice Solomon’s opinion for a unanimous Court held that, in the circumstances of this case, a prosecutor had not acted improperly in declining to give a grand jury that had indicted defendant for murder instructions about lesser included offenses. The Court’s opinion noted, however, that when grand jurors ask about lesser included offenses and there is a “rational basis” for instructing the grand jury about lesser included offenses, the “better practice” is to do so. Justice Solomon cited cases from other jurisdictions in his opinion, which affirmed the trial court’s exercise of discretion.

Here are summaries of some of the Appellate Division’s recent rulings, beginning with an opinion issued today:

State v. Ghigliotty, 263 N.J. Super. 355 (App. Div. 2020). Today’s opinion by Judge Haas addressed the question whether a reliability hearing under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which continues to apply in criminal cases even after In re Accutane Litigation, 234 N.J. 340 (2018), and prior cases went away from Frye in civil cases, was required under the circumstances of that case. The matter involved “the novel issue of whether a firearms toolmark identification use of untested three-dimensional (3D) computer imaging technology known as BULLETTRAX, in conjunction with the traditional technique of comparing evidence and test bullets using a comparison microscope,” called for a Frye hearing. Affirming the Law Division, the Appellate Division held that such a hearing was required.

State v. 1 Howe Street Bay Head, LLC, 463 N.J. Super. 312 (App. Div. 2020). This appeal consisted of over sixty consolidated cases. They all appealed from a Law Division decision that the New Jersey Division of Environmental Protection did not act wrongfully in taking easements over beachfront properties affected by Superstorm Sandy in order to reduce the risk of flooding. In an opinion by Judge Fasciale, the Appellate Division, applying de novo review, affirmed the Law Division’s decision.

Rios v. Meadowlands Hospital Medical Center, 463 N.J. Super. 280 (App. Div. 2020). Reversing a summary judgment for defendant in this retaliatory discharge action under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”), Judge Vernoia’s opinion held that plaintiff had offered “sufficient evidence establishing the good faith and reasonable basis prerequisite for a LAD retaliatory discharge claim.” The case turned on the proper interpretation of the standards of Carmona v. Resorts Int’l Hotel, Inc., 189 N.J. 354 (2007), on which the Law Division had relied.

Pareja v. Princeton Int’l Properties, 463 N.J. Super. 231 (App. Div. 2020). This appeal involved whether and to what extent the “ongoing-storm rule” applies in New Jersey. That rule, as Judge Fasciale described it near the beginning of his opinion for the Appellate Division, “arbitrarily relieves commercial landowners from any obligation to try to render their property safe while sleet or snow is falling,” based on the idea that doing so “would always be inexpedient and impractical.” The Appellate Division reversed summary judgment for the property owner and held that whether clearance of a property is a fact question for the jury based on reasonableness.

Other jurisdictions are split on this issue, and our own Supreme Court has not addressed the ongoing-storm rule, as Judge Fasciale detailed. Thus, this issue may wind up before the Court if the defense seeks further review.

The Third Circuit too has been active. One of its most interesting decisions came in McCafferty v. Newsweek Media Group Ltd., 955 F.3d 352 (3d Cir. 2020). The parents of a boy, C.M., who had been a vocal, and vitriolic, supporter of Donald Trump in his 2016 campaign for President, at a time when the boy was twelve years old, sued Newsweek for defamation and for allegedly casting the boy in a false light. The District Court granted a defense motion to dismiss, and the Third Circuit affirmed in an opinion by Judge Bibas that applied de novo review.

The only statements in Newsweek’s article about which plaintiffs complained were made by a professor who stated his opinion that (among other things) youngsters such C.M. were being “weaponized” by adults on “the hard right” whom he labeled “instigators … recruiting for a sort of boys’ and girls’ auxiliary, for what they believe to be a sacred crusade.” Judge Bibas ruled that those opinions were not actionable, and neither were “derogatory characterizations.” Nor did C.M., whose own actions to inject himself into public political discourse, during which he frequently appeared in the domestic and international media, plead actual malice as required. In short, Judge Bibas stated, “[i]n the rough-and-tumble of politics, C.M. must endure offensive opinions and heated rhetoric.” He had no valid claims here.

In certification news, the Supreme Court granted review of published Appellate Division decisions in two cases. The first is C.R. v. M.T., where the Appellate Division’s opinion appears at 461 N.J. Super. 341 (App. Div. 2019). The question presented on that appeal, as phrased by the Supreme Court Clerk’s office, is “What standard applies when determining whether a sexual act was ‘nonconsensual’ for the issuance of a restraining order under the Sexual Assault Survivor Protection Act, N.J.S.A. 2C;14-13 to -21”? Remanding the case to the trial court for reconsideration, the Appellate Division enunciated a standard that “to prove a lack of consent due to intoxication, an alleged victim must prove a ‘prostration’ of ‘faculties,'” not merely intoxication, even severe intoxication.

The other appeal is State v. Ramirez, which actually comprises two consolidated cases. The question presented there is “Did the jury instructions on accomplice liability require reversal of defendants’ convictions?” The Appellate Division, in an opinion reported at 462 N.J. Super. 1 (App. Div. 2019), reversed defendants’ convictions, remanded for a new trial, and “commend[ed] to the Supreme Court’s Committee on Criminal Model Jury Charges consideration of the need for model instructions regarding culpability as an accomplice under section 1(c)” of N.J.S.A. 2C:2-1.

Finally, the Appellate Division issued a Notice to the Bar that provides guidance as to the effect of Supreme Court Orders that toll dates due to the Covid-19 situation. In general, dates that fall within the tolling period of such Orders, the most recent of which tolls until April 26, are extended until the first business day following “the expiration of the current or any subsequent tolling period established by the Supreme Court.” The most recent March 27 Order of the Supreme Court tolled dates through April 26. But any due date that occurred before the tolled periods established by the Court’s March 17 or March 27 Orders are not extended, absent their submission and a motion to file as within time. “Deadlines fixed pursuant to orders filed in response to motions to extend brief due dates or to extend time to file a notice of appeal or motion for leave to appeal, and that fall within the tolled period, will be due on the date established by the court order.” Finally, “[d]ue dates for amicus curiae briefs set by the court are tolled.”