Getting Current With the Appellate Division

The past few days have been especially busy ones in my practice. The Appellate Division has likewise been quite busy issuing published opinions as January turned to February. Here are summaries of those opinions.

City of Newark v. Township of Jefferson, ___ N.J. Super. ___ (App. Div. 2021). [Disclosure: My firm represents the City of Newark, but not in this case or matters of this type]. This opinion by Judge Mawla involved an appeal from the Tax Court, whose opinion appeared at 31 N.J. Tax. 303 (Tax Ct. 2019). The issue was the validity of the assessment of the subject property (approximately 4,036 acres of watershed land) in certain years. Though “[o]riginal assessments are entitled to a presumption of validity,” and the Appellate Division rejected three of the four arguments that Newark advanced, the fourth argument carried the day for Newark. “[T]he assessment was defective and not entitled to the presumption of validity because it was primarily based on a settlement discussion rather than the value of the property. The assessment was also problematic because the assessor relied on another sale he failed to verify. The trial judge made no findings regarding the validity of the assessment methodology and the record does not support its validity.” The panel reversed and remanded the case for “reconsideration and further findings,” including “an independent finding of the value of the property for tax purposes.”

Lapsley v. Township of Sparta, 466 N.J. Super. 120 (App. Div. 2021). Judge Mitterhoff wrote the panel’s opinion in this workers’ compensation case. Lapsley, a Sparta librarian, clocked out of the library and walked to her car, which was parked in an adjacent parking lot owned by the Township. While on her way, she was struck by a snowplow. “The compensation judge concluded that petitioner’s injuries were compensable pursuant to the premises rule, N.J.S.A. 34:15:36, which provides that ‘[e]mployment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer. . . .'” After canvassing cases under the “premises rule” and its predecessor, the “going and coming rule,” Judge Mitterhoff noted that Lapsley had not been required by her employer to park in that lot. Since “[a] critical factor in the evolution of Workers’ Compensation off-premises parking lot cases … is the degree of control the employer exercises over the employee’s use of the lot,” it was improper to apply the “premises rule,” as doing so “would be an unwarranted and overbroad expansion of public-entity exposure for workers’ compensation claims.”

H.V.D.M. v. R.W., ___ N.J. Super. ___ (App. Div. 2021). Judge Whipple aptly encapsulated the essence of this Family Part appeal in her opening paragraph. “In this appeal we address the predicate state court findings necessary for a federal petition for Special Immigrant Juvenile Status (SIJS). Specifically, a state court must analyze the five prongs of the federal regulations set forth in 8 C.F.R. § 204.11(c)(2020) under state law before an applicant can file a petition to the United States Citizenship and Immigration Services (USCIS) for SIJS. The trial court concluded that a child, Daria, was not dependent on the New Jersey courts due to the existence of a Canadian custody order that awarded custody to plaintiff, her paternal grandmother, H.V.D.M. (Helen).” Judge Whipple found error in the ruling that the child was not dependent on the New Jersey courts. The panel reversed the dismissal of the complaint and remanded for further findings.

In re Protest of Contract Award for Project A1150-08, N.J. Executive Statehouse Comprehensive Renovation and Restoration, ___ N.J. Super. ___ (App. Div. 2021). This public bidding case involved what Judge Geiger labeled “an issue of first impression—whether a prime contractor bidder is required to name its building control systems subcontractor in its bid.” But because “the contract award has already been made, performance of the Project is well under way, and substantial expenditures of time and resources have been incurred by the State” and the successful bidder, the panel dismissed the appeal as moot. But Judge Geiger went on to find appellant’s arguments to be without merit in any event.

State v. Pickett, ___ N.J. Super. ___ (App. Div. 2021). ” TrueAllele is technology not yet used or tested in New Jersey; it is designed to address intricate interpretational challenges of testing low levels or complex mixtures of DNA. TrueAllele’s computer software utilizes and implements an elaborate mathematical model to estimate the statistical probability that a particular individual’s DNA is consistent with data from a given sample, as compared with genetic material from another, unrelated individual from the broader relevant population.” The State proposed to use this technology at defendant’s criminal trial. Defendant sought to challenge the reliability of True Allele, seeking information that the company that developed the technology considered trade secrets, including “the software’s source code and related documentation.” The Law Division denied defendant access to the trad e secrets. But today, in an opinion by Judge Fasciale, the Appellate Division reversed. Citing prior New Jersey authority as well as out of state cases, Judge Fasciale said “Hiding the source code is not the answer. The solution is producing it under a protective order. Doing so safeguards the company’s intellectual property rights and defendant’s constitutional liberty interest alike.”