Rarer Than a Purple Cow: Denial of Certification, Reconsideration, and Then a Grant of Certification

On this date in 1991, a rarity occurred.  In Perini Corp. v. Greate Bay Hotel & Casino, Inc., 127 N.J. 546 (1991), the Supreme Court had denied both a petition and a cross-petition for certification.  Reconsideration was sought, and the Court then granted the petition on November 12, 1991.  Perini Corp. v. Greate Bay Hotel & Casino, Inc., 127 N.J. 533 (1991). 

When the case was decided, Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479 (1992), the pattern of unusual events continued.  Unlike the Supreme Court of the United States, which often fractures into more than two opinions, the Supreme Court of New Jersey rarely does so.  Here, however, the Court split three ways.  Justice O’Hern wrote the Court’s opinion, in which Justice Clifford and Judge Keefe, temporarily assigned, joined.  Chief Justice Wilentz, joined by Judge Stein, also temporarily assigned, filed a separate opinion concurring in the result.  Justices Handler and Stein concurred in part and dissented in part.  The case concerned “the extent to which a court may invalidate an arbitration panel’s award that was allegedly based on a mistaken determination of law,” as the first sentence of Justice O’Hern’s opinion stated.  The main opinion and the Chief Justice’s concurrence in the result only adopted differing standards, neither of which commanded a clear majority.  The muddled result made it likely that the Court would have to clarify the issue in another case.

That opportunity came less than two years later, when the Court decided Tretina v. Fitzpatrick & Assocs., 135 N.J. 349 (1994).  Once again, the Court produced three opinions.  This time, the majority of the Court opined that the standard of review was not that contained in the main opinion in Perini, but that the correct standard was articulated in the concurrence authored by Chief Justice Wilentz and joined by Judge Stein.  The vote was 4-3, with the majority opinion being issued per curiam and joined in by Chief Justice Wilentz and Justices Clifford, Pollock and Garibaldi.  Justice Stein filed a dissent, in which Justices O’Hern and Handler joined. 

The third opinion was by Justice Clifford, the only Justice to have changed his mind between Perini and Tretina.  He explained that he had done a “demi-pirouette” because he had “succumbed to the persuasive force” of the Chief Justice’s concurrence in Perini.  Justice Clifford then quoted what he called “that reassuring old turkey, “The matter does not appear to me now as it appears to have appeared to me then,” a remark that he drew from an 1872 opinion of a British judge.

All in all, therefore, Perini had an extraordinary history.  And it all began with the Court, on this date, doing what it almost never does and reconsidering its decision not to grant review.