The Supreme Court Takes on a Lot More Work

Today, the Supreme Court announced that it has granted review in nine more cases.  That is many more cases than are usually accepted for review at one time, though it has been 30 days since the Court last announced grants of review.  Six of the cases involve grants of certification, two are before the Court on leave to appeal granted, and one as a result of a dissent in the Appellate Division.  Here are the cases that the Court will consider:

Balducci v. Cige is an attorneys’ fee case.  The question presented, as phrased by the Supreme Court Clerk’s office, is “Among other issues, did the appellate panel create a new rule of professional conduct when addressing defendant’s challenge to the invalidation of his retainer agreement with plaintiff?”  The Appellate Division’s decision, reported at 456 N.J. Super. 219 (App. Div. 2018), was discussed here.  That court affirmed the decision of the Law Division that the attorney’s retainer agreement was void because the attorney did not explain its material terms, and that the attorney was limited to a fee based on quantum meruit.

In Investors Bank v. Torres, the question presented is “Can the right to enforce a lost promissory note be transferred to a third party?” In a reported opinion, 457 N.J. Super. 53 (App. Div. 2018), discussed here, the Appellate Division ruled that transfer was permitted.

State v. Olenowski presents this question: “Is Drug Recognition Experts (DRE) evidence – which, in this case, included testimony that defendant was under the influence of narcotics while driving – admissible under the standard articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)?”  The Appellate Division, in an unpublished opinion by a three-judge panel, found the evidence admissible.

Given that the Supreme Court moved away from the Frye standard in at least some civil cases as far back as the early 1990’s, as discussed most recently in In re Accutane Litig., 234 N.J. 340 (2018) [Disclosure:  I argued this case for plaintiffs in the Supreme Court], discussed here, one might wonder whether the Court will now abandon Frye altogether in criminal cases.  It is not clear whether that idea has been presented to the Court, and I offer no opinion as to whether such a ruling would be desirable.  But as a court of last resort, the Justices have the ability to leave Frye behind or otherwise alter the standards if they choose.

In S.C. v. New Jersey Department of Children & Families, the question presented is “Was the Division of Child Protection and Permanency’s finding of “not established” arbitrary, capricious, and unreasonable, under the circumstances presented; and, did the denial of an administrative hearing to challenge the finding of “not established” violate S.C.’s due process rights?”  A three-judge Appellate Division panel, with Judge Messano writing a separate opinion concurring in the judgment, affirmed the Division’s ruling.

One of the two leave to appeal cases is State v. Bell.  The question presented there is “Was defendant entitled to have the grand jury instructed on lesser included offenses to the charge of first-degree murder?”  An unpublished opinion by a three-judge panel of the Appellate Division affirmed defendant’s conviction, rejecting all his arguments, including the one raised by the question presented.

State v. Shaw presents another question in the criminal context: “Is defendant entitled to the dismissal of his indictment on the basis that the prosecution presented the case to three separate grand juries before one returned the indictment?”  A three-judge Appellate Division panel affirmed defendant’s conviction in an unpublished opinion.

Yet another criminal appeal is State v. R.Y., where the question presented is “In this trial involving charges of aggravated sexual assault and endangering the welfare of a child, did the trial court err in excluding hearsay statements made by one of the minor victims?”  In the Appellate Division, a two-judge panel, in an unpublished opinion, affirmed defendant’s conviction.

Having granted leave to appeal in In re Investigation of Burglary and Theft, the Court will face this question: “Under the circumstances presented, was the State entitled to detain J.P., an individual suspected of committing burglary and theft, for the purposes of obtaining a DNA sample through a buccal swab?”  A three-judge Appellate Division panel, in an unpublished opinion, affirmed the Law Division’s ruling that the State had not made a sufficient showing to justify the detention of J.P.  But the panel allowed the State to file a new application in the trial court.

Finally, in the case that is before the Court as of right due to an Appellate Division dissent, State v. Huang, the question presented is “In this matter arising from the dismissal of an indictment charging defendant with vehicular homicide and assault by auto, did the State make a prima facie showing of defendant’s recklessness?”  The Appellate Division, by a 2-1 vote, held that the Law Division had abused its discretion in dismissing the indictment.  The majority thus reversed the dismissal.  Judge Fuentes disagreed, and the case is before the Supreme Court by virtue of his dissent, which was longer than the majority opinion.