The courts were closed on Tuesday for Election Day, and they will be closed tomorrow for Veterans’ Day. Even in this short week, the Appellate Division issued three published opinions. Here are summaries of those rulings:
Board of Education of the Borough of Kinnelon v. D’Amico, ___ N.J. Super. ___ (App. Div. 2023). Judge Whipple’s opinion in this case today addressed the issue of whether the final agency decision of the Department of Education correctly removed D’Amico from her position on the Kinnelon Board of Education. The removal arose from the fact that D’Amico, the parent of a child in need of special education services, had filed several “ten-day notice letters” advising the Board that she “will seek” reimbursement for enrolling her child in a non-public school if the Board did not address alleged deficiencies in the child’s educational program in public school. The Board asserted that D’Amico thereby had a conflict that disqualified her from service on the Board. Applying de novo review, Judge Whipple disagreed with the Board. The ten-day notice letters were not, by themselves, an actual demand for payment. “To request tuition reimbursement from a board of education, parents must also request a due process hearing, which is ‘an administrative hearing conducted by an administrative law judge.’ N.J.A.C. 6A:14-2.7(a).” Thus, “although the D’Amicos have put the Board on notice that they retain an intention to seek reimbursement for their child’s private school costs, they have done little else to follow through with that intent.” In other words, the assertion of conflict was premature. However, Judge Whipple said, if the D’Amicos filed a timely due process request for tuition reimbursement, “a line would be crossed requiring disqualification from the Board.” The panel distinguished the situation in Bd. of Educ. of City of Sea Isle City v. Kennedy, 196 N.J. 1 (2008), where the Supreme Court said that “a demand for ‘specific monetary relief’ could be considered ‘a substantial conflict between a board member and the board,” which would require disqualification.
In the Matter of the Expungement Application of K.M.G., ___ N.J. Super. ___ (App. Div. 2013). Chief Judge Sumners aptly summarized the issue in this appeal in the first sentence of his opinion for the Appellate Division. “In this appeal of first impression, we must determine whether the ‘clean slate’ statute, N.J.S.A. 2C:52-5.3, which permits an expungement of a New Jersey criminal record if ten years have passed ‘from the date of the person’s most recent conviction,’ applies to a conviction from another state.” The Law Division expunged K.M.G.’s New Jersey criminal record even though K.M.G. had a 2017 misdemeanor conviction in Virginia. That court concluded that the statute applied only to New Jersey convictions. The Appellate Division disagreed. Applying de novo review and “well-settled rules of statutory construction,” Chief Judge Sumners observed that “‘conviction’ simply means ‘conviction,’ in New Jersey or elsewhere,” and even if that were not so, ignoring the Virginia conviction violated the intent of the Legislature and common sense. “As a matter of common sense, petitioner should not be rewarded through an expungement of her New Jersey criminal record for what amounts to a disorderly persons offense because the offense took place in another state.” Chief Judge Sumners cited other Appellate Division cases where the court addressed statutory language regarding expungements and avoided absurd results. The outcome here was to reverse the expungement, a seemingly correct result.
Animal Protection League of New Jersey v. New Jersey Fish & Game Council, ___ N.J. Super. ___ (App. Div. 2023). This appeal addressed the validity of an emergency rule, as part of a Comprehensive Black Bear Managment Policy (“CBBMP”), that permitted a two-week black bear hunt to begin on December 8, 2022. In an opinion by Judge Rose, the Appellate Division voided the emergency rule. The panel ruled that “the State violated the emergency rulemaking requirements under section N.J.S.A. 52:14B-4(c) of the [Administrative Procedure Act], both by failing to demonstrate enactment of the rule was necessary on fewer than thirty days’ notice and the hunt was necessary to avert imminent peril.” The Supreme Court had denied an emergent application to stay the bear hunt, but had emphasized the importance of the issues raised. As quoted by Judge Rose, the Supreme Court said “In denying the emergent application for a stay, the Court at this time takes no position on, and does not approve of the use of, the emergency rulemaking process here. In past years, the . . . Council has adopted [CBBMPs] that authorized black bear hunts after public notice and comment, and those policies have led to legal challenges. Appellants’ appeal can proceed in the Appellate Division, which will address the merits of appellants’ arguments relating to the use of emergency rulemaking in this matter. We request that this appeal be expedited.” As a result, it would not be surprising to see this case return to the Supreme Court.