Powering Up Again

The power outage resulting from last week’s storm put a crimp in much of that week. So it is time once again to catch up with our Supreme Court and Appellate Division, each of whom took highly consequential actions during that time. Some of those are summarized below.

State v. G.E.P., 243 N.J. 362 (2020). This case (actually, four consolidated cases) addressed whether and to what extent the Court’s decision in State v. J.L.G., 234 N.J. 265 (2018), should apply retroactively. In J.L.G., the Court “reassessed” its prior decision in State v. J.Q., 130 N.J. 554 (1993), which had held that expert testimony about Child Sexual Abuse Accommodation Syndrome (“CSAAS”), could be admitted at a criminal trial to show “traits found in victims of such abuse to aid juries in evaluating specific defenses.” J.L.G. then rejected the use of CSAAS evidence, holding that (subject to a limited exception) it lacked “a sufficiently reliable basis in science to be the subject of expert testimony.” In a unanimous opinion by Justice Solomon, the Court in G.E.P. accorded pipeline retroactivity to its ruling in J.L.G.

In re Brady, 243 N.J. 395 (2020). This matter, which involved the question of whether and to what extent former Judge Carla Brady should be disciplined for what the Advisory Committee on Judicial Conduct found was her violation of multiple rules of the Code of Judicial Conduct (“ACJC”), has received substantial publicity for years. The matter revolved around Judge Brady’s alleged harboring of her boyfriend, a fugitive from two arrest warrants (one of which was for a violent crime), at her home. The facts were sharply disputed, but the ACJC found Judge Brady guilty of violating the Code and recommended her removal as a judge.

In an unusual result for a judicial discipline case, which normally results in a unanimous Supreme Court opinion, the Court split 4-2 (Justice Timpone did not participate). The Court gave the ACJC decision de novo review and required clear and convincing evidence in order to find any Code violation.

A per curiam opinion, to which Chief Justice Rabner and Justices Patterson and Solomon subscribed, found that there was clear and convincing evidence to support the ACJC’s conclusion that Judge Brady had violated the Code. But rather than removing her from office, the majority opted for a three-month suspension from her judicial duties. Justice Fernandez-Vina filed a concurring opinion, stating that he would have removed Judge Brady from office, but since the Court had previously foreclosed that option, he was voting for the three-month suspension. Justices Albin and LaVecchia, each of whom filed a separate dissenting opinion, opined that there was not clear and convincing evidence to support the charges. Judge Brady’s initial seven-year term as a judge expired in April 2020, and she was not re-appointed, so the discipline was somewhat academic.

The Court also heard an oral argument well over two hours long in New Jersey Republican State Committee v. Murphy. Since the Court granted direct certification and imposed an extremely accelerated briefing schedule, it is to be expected that a decision will be issued soon.

Finally, the Supreme Court issued omnibus Rule amendments that become effective on September 1, 2020. Though there are some significant changes to non-appellate Rules, including the placement of motions to dismiss for failure to state a claim on the same schedule as motions for summary judgment, the amendments to appellate rules are few. Amended Rule 2:4-3 adds motions “for reconsideration of an order granting pretrial detention pursuant to Rule 2:9-13” to the list of motions that toll the time for taking an appeal or filing a notice of petition for certification. And amended Rules 2:9-3 and 2:9-10 provide that an appeal by the State under N.J.S.A. 2C;35-14(c) in a criminal case will no longer be a basis for a stay of execution of a sentence, and will no longer stay “the entry of final judgment for purposes of an appeal or cross-appeal by the defendant.”

Carl v. Johnson & Johnson, 464 N.J. Super. 446 (App. Div. 2020). In another highly publicized case, a mass tort matter in which plaintiffs allege that Johnson & Johnson’s Baby Powder causes ovarian cancer, the Appellate Division reversed a ruling of the Law Division that excluded plaintiffs’ experts under In re Accutane, 234 N.J. 340 (2018). [Disclosure: Along with co-counsel, I argued the Accutane matter in the Appellate Division and the Supreme Court on behalf of the plaintiffs there.] In a monumental opinion, Judge Alvarez applied the test of Accutane and laid out the evidence surrounding the opinions of plaintiffs’ experts in great detail. She concluded that plaintiffs’ experts met the Accutane standards and that the Law Division had abused its discretion by “select[ing] defendants’ scientific methodologies over plaintiffs’, a process well beyond the gatekeeping function” to which Accutane limits trial judges. The Law Division also improperly “chose between plaintiffs’ and defendants’ experts based on [the Law Division’s] assessment of the credibility of their opinions. Defendants will undoubtedly seek Supreme Court review of this decision, but its detail and fact-intensive nature may make it difficult to induce the Court to take this case up.

Hocutt v. Minda Supply Co., 464 N.J. Super. 361 (App. Div. 2020). Judge Susswein wrote the panel’s opinion in this case. The result was an affirmance of the Law Division’s grant of summary judgment in this workplace injury case. The Appellate Division agreed with the Law Division that it was proper to apply the Workers’ Compensation Act, N.J.S.A. 34:15-1 et seq. (“WCA”), as plaintiff’s sole remedy. Judge Susswein found unpersuasive plaintiff’s contentions that (a) he was not employed by defendant but instead by a leasing agency, and (b) even if he were deemed an employee of defendant, the WCA could not apply because plaintiff was injured by an intentional act of the employer.

In re Guardianship of DiNoia, 464 N.J. Super. 562 (App. Div. 2019). In this case, the Sussex County Division of Social Services, Adult Protective Services, appealed an award of attorneys’ fees to court-appointed counsel for Sally DiNoia, who had been adjudicated as being incapacitated. The parties disputed whether the de novo standard of review or the abuse of discretion standard applied to the Appellate Division’s review of the fee award. Writing for the panel, Judge Firko held that deferential review was the proper test, since a fee award was authorized by Rule 4:86-4(e) as an exception to the general “American Rule” that each party bears its own attorneys’ fees. Applying the abuse of discretion standard, the panel affirmed the fee award.