This Week in the Supreme Court

The Supreme Court issued its first three opinions of the new Term this week. Here are summaries of those rulings:

Bozzi v. City of Jersey City, ___ N.J. ___ (2021). This was the first opinion of the Term, and it resulted in a 5-2 split. Justice Fernandez-Vina wrote the majority opinion, which affirmed the rulings of the Law Division and the Appellate Division held that Jersey City had wrongfully denied plaintiff’s Open Public Records Act (“OPRA”) request for the names and addresses of dog owners reflected in Jersey City’s dog license records. Jersey City had relied on OPRA’s exception that protects records whose disclosure would violate a citizen’s “reasonable expectation of privacy.” Plaintiff was in the business of installing “invisible fences” to keep dogs from roaming, and he sought the dog license information to further that business.

The majority concluded that “owning a dog is a substantially public endeavor in which people do not have a reasonable expectation of privacy that exempts their personal information from disclosure under the privacy clause of OPRA.” Justice Fernandez-Vina explained the many ways in which dog ownership is “a public endeavor,” including that dog owners walk their dogs in public, celebrate them on social media, and otherwise let the public see that they have a dog. Plaintiff did not seek to learn the breed or name of any dog, which would have implicated privacy concerns. And the fact that plaintiff sought dog owner names and addresses to advance his business was “immaterial.” Plaintiff had “the same right to [the records] as anyone else.”

The majority opinion, which applied de novo review to the statutory interpretation issue presented, aligned the Court with Bozzi v. Borough of Roselle Park, 462 N.J. Super. 415 (App. Div. 2020), another case on the same issue brought by this same plaintiff. That case was discussed here. The Court mentioned that decision but did not expressly rely on it as the Appellate Division in this case had. Justice Pierre-Louis authored the dissent, in which Justice Albin joined.

In re Robertelli, ___ N.J. ___ (2021). This was an attorney disciplinary case in which Justice Albin wrote the opinion for a unanimous Court. The case centered on an alleged violation of Rule of Professional Conduct 4.2, which forbids any contact, including via social media, between an attorney or the attorney’s office with an opposing party who is represented by counsel. In 2008, Robertelli’s paralegal had messaged on Facebook a person who had brought a personal injury claim against Robertelli’s client. Not knowing that the contact had come from a person in Robertelli’s office, the recipient of the Facebook message agreed to “friend” the sender. This occurred in 2008.

Applying de novo review, the Court reversed the ruling of the Disciplinary Review Board that Robertelli had violated RPC 4.2, as the applicable standard of clear and convincing evidence had not been satisfied. Robertelli had testified that, in 2008, he did not know how Facebook functioned or even what “friending” was. He also had not instructed his paralegal to contact the opposing client, via Facebook or otherwise. And in 2008, no jurisdiction had issued a reported ethics opinion as to whether seeking to “friend” an opposing, represented party violated RPC 4.2. Accordingly, there was insufficient basis to find a violation in this case.

In his 40-page opinion, however, Justice Albin made clear that although Robertelli may have had a good faith misunderstanding in 2008, “when Facebook was in its infancy,” about whether contacting a represented opposing party via Facebook was an ethical violation, “there should be no lack of clarity today about the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms. When represented Facebook users fix their privacy settings to restrict information to “friends,” lawyers cannot attempt to communicate with them to gain access to that information, without the consent of the user’s counsel.” He cited a number of ethics opinions around the country that, in the time after 2008, had so held. Attorneys and their staffs are now on notice.

State v. Melvin, ___ N.J. ___ (2021); State v. Paden-Battle, ___ N.J. ___ (2021). Justice Pierre-Louis wrote the Court’s unanimous opinion in these consolidated cases. They presented “a common legal issue: whether a trial judge can consider at sentencing a defendant’s alleged conduct for crimes for which a jury returned a not guilty verdict.” In a lengthy and careful opinion, Justice Pierre-Louis answered “no.” In short, as she explained, New Jersey’s doctrine of “fundamental fairness prohibits courts from subjecting a defendant to enhanced sentencing for conduct as to which a jury found that defendant not guilty.” Her opinion also discussed in detail cases from federal courts and other state courts, a mixed and confusing bag, on this issue.