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Key Legal Developments

 
 



COVID-19: Compilation of NJ Court Orders, Directives & Notices


07/28/20: D.C. and M.L. v. DMAHS and Essex Co. BSS—The New Jersey Appellate Division has issued a published Opinion (D.C. v. Div. of Med. Assistance & Health Servs., 2020 WL 4290056 (N.J. Super. Ct. App. Div. July 28, 2020)) confirming that before terminating an individual from any Medicaid program, NJ’s Medicaid agency, the Division of Medical Assistance and Health Services (DMAHS), is required to ensure that the person has been screened for eligibility for all other NJ FamilyCare programs. (NJ FamilyCare includes all Medicaid and CHIP (Children’s Health Insurance Program) programs.) The case involved a married couple, both of whom were disabled, whose sole income was $1516 in monthly Social Security Disability benefits. The couple became ineligible for their current Medicaid program in 2017 because of a change in circumstances.

When the couple received a Medicaid termination notice, they sought the assistance of Legal Services of New Jersey (LSNJ). Conceding that the couple were no longer eligible for their current Medicaid program, LSNJ argued that pursuant to federal law they must be screened for eligibility for all other Medicaid programs before they could be terminated. LSNJ further argued that since that screening process would show that both individuals were eligible for the Medicaid program for Specified Low-Income Medicare Beneficiaries (SLMB), they both must be transferred to SLMB with no gap in coverage. DMAHS rejected these arguments, stating that the couple could apply for SLMB after they were terminated, and seek retroactive benefits for the period during which they were without coverage while the agency processed their new application.

The Appellate Division agreed with LSNJ: “Because State Medicaid agencies are required under federal regulations to assess beneficiaries' eligibility for other Medicaid programs before terminating benefits, we agree that petitioners should have been transferred to the SLMB Program with no gap in coverage.” The court also rejected the proposed remedy of retroactive benefits, stating it “subverts the purpose of a pre-termination review, which is to prevent unwarranted lapses in Medicaid coverage, and undermines the fundamental tenet of a program designed to provide financial assistance to a ‘vulnerable population’ subsisting on a low fixed income.” The case is significant because it will require the NJ Medicaid agency to change termination procedures for thousands of NJ FamilyCare recipients to make sure that they are not improperly terminated.

06/29/20: Supplement to Directive # 02-16 - Expungement of Arrests Not Resulting in Conviction or Adjudication

Court Guidance on Automatic Expungement of Certain Dismissed Cases Under N.J.S.A. 2C:52-6

The Administrative Office of the Courts issued guidance on the process of “automatic” expungement of dismissed cases under N.J.S.A. 2C:52-6. Now, Municipal, Criminal and Family Courts are required to automatically order and process the expungement of such cases at the time of dismissal, acquittal or discharge without a conviction or adjudication. Previously, those seeking expungement were required to request an application from the court at the time of dismissal. Many missed this opportunity to expunge and bypass the petition process because they were unaware of their right to expunge a dismissed case in this manner. There is no change to the process of expungement for cases dismissed by way of diversion or supervisory treatment program.

06/25/20: Madhubala Agarwal v. Marvin Simms, Tynaja M. Graves and Shyquan Z. Dixon, DOCKET NO. A-3733-18T2 — Eviction case involving an illegal apartment. The dwelling in question involved a two unit building, which was illegally converted into a three unit building. The basement was illegally converted into an apartment, which the tenant/defendant leased.

The landlord/plaintiff filed for eviction based on nonpayment of rent. The tenant/defendant raised Marini defenses. The court subsequently entered judgment for possession because the defendant failed to post the rent money ordered by the court. A warrant of removal later issued, and a lockout was scheduled for September 27, 2018. A few days before the lockout, the municipality cited the landlord for a zoning violation for “a “[second] apartment created without a prior zoning approval and a [certificate of occupancy],” at the residence.” As a result, the defendants filed an order to show cause to vacate the judgment for possession. The defendants argued for the dismissal of the complaint or in the alternative, allow for the lockout to proceed after the receipt of relocation assistance by the landlord. On the return date of the order to show cause, the trial court found that pursuant to N.J.S.A. 2A:18-61.1(g)(3) and N.J.S.A. 2A:18-61.1h, the apartment was illegal, and ordered the landlord to pay relocation in the amount of six times the monthly rent of $1,501. The court, then, set a vacate date for January 2, 2019 and held that the move out date could be reconsidered if the relocation assistance funds were not paid.

Plaintiff failed to pay the monies as ordered by January 2, 2019. The defendant then notified the court of the plaintiff’s malfeasance in February 2019. The court consequently extended the lockout indefinitely, upon satisfactory payment of relocation monies by the landlord. Outraged by the trial court’s decision, the plaintiff subsequently appealed and argued that the judgment for possession should have been upheld since tenant was originally evicted nonpayment of rent, N.J.S.A. 2A:18-61.1(a). The appellate division was not swayed by the plaintiff’s argument. To determine whether the rent was legally due and owing pursuant to N.J.S.A 2A:18-61.1(a), the Court relied on the facts set forth by the trial court record and analyzed the holdings set forth in McQueen v. Brown, 342 N.J. Super. 120 (App. Div. 2001) and Miah v. Ahmed, 179 N.J. 511 (2004). In McQueen v. Brown, the Court found that the tenant owed rent pursuant to the lease, despite the landlord’s failure to obtain a certificate of occupancy. In determining whether a lease should be voided for failure to procure a certificate of occupancy, the Court set forth the following test, “Those factors include whether the public policy of the underlying law would be contravened, if voiding the lease will actually further that policy, the burden or detriment on the parties if the lease is voided, and the benefit the party seeking to avoid the bargain has enjoyed.” Id. The Court found that the lease could only be voided if there were “demonstrated serious housing violations, either at the inception of the lease, or thereafter.” Id. The Appellate Division discussed the holding and facts set forth in Miah v. Ahmed, which addressed whether a tenant, who was entitled to relocation assistance, could be evicted due to rent arrears, pursuant to N.J.S.A. 2A:18-61.1(g). The Court in Miah acknowledged the issue of rent arrears, but held “a landlord cannot reduce the relocation-assistance obligation by the amount of past-due rent or other damages owed by the tenant.” See id. According to the Court, the landlord, in this situation, can recoup the rents by suing the tenant civilly in a separate legal action. See id. Based on the foregoing, the appellate division held, “Here, plaintiff cannot evict defendants from an illegal apartment for nonpayment of rent because the rent is not "legally owing." Because the matter was filed as a non-payment of rent case under N.J.S.A. 2A:18-61.1(a), we dismiss the complaint without prejudice.”

06/18/20: Department of Homeland Security et al. v. Regents of the University of California et al.—In a 5-4 vote, the U. S. Supreme Court ruled against the Trump Administration in its effort to rescind the Deferred Action for Childhood Arrivals (DACA) Program.

06/15/20: Bostock v. Clayton County, Georgia—In this 6-3 historic decision, the U.S. Supreme Court ruled that Title VII of the 1964 Civil Rights Act protects gay, lesbian, and transgender individuals from employment discrimination, as prohibited disparate treatment on the basis of sex. Title VII defines an employer as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” State and local government employees are covered, so long as that employer has at least fifteen employees. Title VII’s application to religious organizations, schools, hospitals, etc. is limited by religious freedoms in the First Amendment to the Constitution.

06/10/20: New Jersey Division of Child Protection and Permanency v. A.O.J., In the Matter of the Guardianship of R.D.B. II, and D.L.J.M.,(A-4795-18T1), Decided June 5, 2020. Published (Fuentes, P.J.A.D) - In response to an incident of domestic violence and a history of “housing instability, alcohol use, and [a] history of prostitution,” A.O.J. faced the termination of her parental rights to her two sons. A.O.J. was assigned counsel by the Public Defender, Office of Parental Representation (OPR) after being found financially eligible. However, A.O.J. and her OPR attorney “[were] having problems.” According to A.O.J., she couldn't "even get in contact with her, let alone get a [c]ourt date." Upon hearing A.O.J.'s complaints about her assigned attorney, the judge said that he couldn't order OPR to give her different counsel and that "[his] hands [were] tied.” Without a formal notion certified by the attorney or a notice to A.O.J., the judge relieved the OPR attorney from her responsibilities to the case. From that point forward, the judge began to address A.O.J. directly and without legal representation. However, the judge would often suggest that she get private counsel.

A.O.J. did not attend her June 3, 2019 Guardianship Trial. Despite the judge saying that she would appoint the OPR attorney as A.O.J.'s standby counsel, the OPR attorney did not attend the trial either. A.O.J. was at work when the judge called her from the bench during her trial. A.O.J claimed that she didn't know the date of the trial. The court suggests that efforts were made to contact her about her court date. A.O.J. never attended her trial, and the results of the trial were as expected, resulting in the termination of A.O.J.'s parental rights to both of her children. A.O.J. appealed.

The superior appellate court reversed the judge's decision to terminate A.O.J.’s parental rights and remanded the question of guardianship for a new trial with a different judge. The appellate court held that the judge’s treatment of A.O.J.'s complaints about her attorney violated her constitutional and statutory right to counsel. The appellate court's judgement is based on the precedent established by the Supreme Court of NJ (SC) in Division of Child Protection and Permanency v. R.L.M. and J.J. (RLM), which states that the client "must invoke the right of self-representation clearly and unequivocally." In the case of A.O.J., the appellate court found the inference that A.O.J. had waived her constitutional and statutory right to counsel by presenting complaints about her appointed attorney lacking "any rational basis." The appellate court further quotes SC; going back to the RLM case, SC explicitly states that "[a] parent's complaint about his or her attorney... is not an invocation of the right of self-representation." In addition, RLM states that the "the court should conduct an inquiry 'to ensure the parent understands the nature of the proceeding as well as the problems she may face if she chooses to represent herself.’" However, the judge relieved A.O.J.’s OPR attorney without investigating A.O.J.’s educational background or knowledge in regards to guardianship trials and their procedures, violating SC’s outlined approach to managing criticism against assigned counsel.

The appellate court highlights how the absence of an attorney “irreparably impugned the fairness” of the trial. Ex parte conferences were held and hearsay evidence was accepted. [1], which would have been refuted and rejected by counsel with expert knowledge in evidence law, emphasizing the importance and necessity of legal representation in guardianship cases.

[1] The claim that the court had contacted A.O.J. to alert her of her court date was based on unacceptable hearsay evinence.

06/02/20: S.C. v. New Jersey Department of Children and Families (A-57-18-081870) Decided May 27th, 2020. (LaVecchia, J.) (Albin, J. Dissenting in part). - In May 2016, the Department of Children and Families (Department) received a report of alleged child abuse concerning one of Appellant (S.C.)’s children. After refusing to make a Mother’s Day card at school, her child (Luke), disclosed to a school official that “his mother hits his face, stomach, and buttocks.” Luke was noted by the school as a special needs student who had behavioral issues, but was improving. The Department conducted interviews with Luke, his two sisters, S.C., her husband, and officials at the children’s school. S.C. and her husband admitted to “lightly” hitting the children with an open hand. Upon further inquiry, the investigator did not observe bruises or marks on the children nor hazards within the home. The results of the investigation did not reveal that the parents were engaged in excessive corporal punishment defined by N.J.S.A. 9:6-8.21(c)(4)(b).The Department concluded the investigation, entering a determination of “Not Established.” The Department conveyed this information to S.C. in a letter stating that she would not have the opportunity to appeal the Department’s decision, or review and supplement the investigatory materials that the decision was based upon.

In July 2016, S.C. filed an appeal with the Appellate Division, arguing that a finding of “not established” violated her due process rights. A “not established” determination is found when there is “evidence that indicates that the child was harmed or was placed at risk of harm,” but the evidence does not meet the preponderance of the evidence standard. N.J.A.C.3A:10-7.3(c)(3). The Department may use information from “not established” findings for agency use, but is not made public, therefore was not injurious to S.C.’s reputation. The court found that a “not established” determination would not impinge upon S.C.’s due process rights, because investigatory findings do not require administrative hearings. The court acknowledged that the allegations made by Luke and the subsequent investigation by the Department provide “some evidence” that S.C. hit her children, and put them at risk of harm, therefore justifying the “not established” classification. The Department’s decision was affirmed by the Appellate Division. S.C. petitioned the Supreme Court of New Jersey, which granted the petition for certification.

The Supreme Court reversed the Appellate Division’s decision and remanded to the Department for clarification. The Court held that while an adjudicatory hearing is not necessary for a finding of “not established,” there must be meaningful notice of the Department’s finding and an informal opportunity for the party to be heard before a final investigatory decision is made. Here, the court found that S.C. did not receive adequate notice of the investigatory finding because the letter sent by the Department failed to disclose a summary of support for the finding. The Court also found that a party must be informed of their opportunity to rebut the Department’s final conclusion or supplement the record. The Court reversed the decision of the Appellate Division, and remanded for clarification of the Department’s standard of “not established” which the Court noted to be vague.

Justice Albin dissented in part, writing that the creation of a “not established” category surpasses the Department’s authority granted to it by the legislature under Title Nine. See N.J.S.A. 9:6-8. 10a; N.J.S.A. 9:6-8.40a. Previously, the Department made determinations of either “substantiated” which could not be expunged, or “unfounded,” which were eligible for expungement. The current four category scheme used by the Department, similarly enables “unfounded” determinations to be eligible for expungement, but does not afford the same eligibility of expungement to “not established” findings; despite the evidence not meeting the evidentiary standard for the Department to take further action. By 2017, over 70% of the Department’s findings were classified as “not established.” The dissent alludes to the notion that the Department created the “not established” category to bypass the expungement requirement set forth in N.J.A.C. 3A:10-7.3 (c)(4). In sum, the dissent holds that the “not established” category of determination should be struck down until revisited by the Legislature, and that the Department should revert to the two determination system previously used.

05/05/20: Gormley v. Gormley—This Appellate Division decision affirms the holding in a prior case that when the Social Security Administration has made a determination that someone is disabled (either for Disability Insurance or for SSI), that determination is given a presumption that it is correct in Family Court cases. That is, if someone has lost their income and ability to earn income due to a disability, a determination of disability from the SSA should be sufficient evidence to support a motion or application to reduce or stop child support and/or alimony. This case effectively overturns another case that suggested that the SSA determination of disability was not sufficient evidence.

05/04/20: C.C. v. J.A.H.—In this case, the plaintiff is a young woman who works in a gym. The defendant is a man who is a member of the gym. Their relationship consisted of conversations at the gym several times a week and many (1300) long and intimate texts over a five-week period. The parties never went on a date, and they never engaged in a physical relationship.

The trial court found that a dating relationship existed, and the Appellate Court affirmed. The court used Andrews v. Rutherford as a starting point, but acknowledged the flexibility encouraged in that case as well as the different standards and mores among cultures and generations, especially given the constant evolution of technology. The court also mentions that the purpose of the Prevention of Domestic Violence Act (PDVA) is to provide maximum protection to victims of domestic violence. Because of the amount and intense intimacy of the communications, the court concluded there was a dating relationship.

This case comports with the court’s general attitude favoring a broader definition of “victim” under the Act as opposed to a narrower one. Andrews v. Rutherford continues to be the springboard for an analysis of a dating relationship, but the analyses are usually very flexible in order to achieve the remedial purpose of the PDVA.

This case also demonstrates a way to successfully introduce the existence of a previous restraining order against a different victim. The court ruled it was not inadmissible hearsay because it was not offered to prove the truth of the matter but rather to show why the plaintiff took a certain action after she discovered the existence of the previous order.

04/16/20: Morales-Hurtado v. Reinoso – The NJ Supreme Court affirmed a decision of the Appellate Division that the cumulative effect of many errors in a personal injury action deprived plaintiff/appellant of a fair trial. The Court did not issue a plenary opinion but rather affirmed the judgment of the Appellate Division substantially for the reasons expressed in that court’s opinion. 457 N.J. Super 170 (App. Div. 2018).

Among those reasons was defense counsel’s cross-examination of plaintiff regarding when plaintiff came to the United States, his citizenship, whether he had been in the United States continually since his arrival, and his need for an interpreter. The Appellate Division determined that those questions raised the same concerns expressed in State v. Sanchez-Medina, 231 N.J. 452, 463 (2018), where the Court noted that “evidence of a defendant’s undocumented immigration status could appeal to prejudice, inflame certain jurors, and distract them from their proper role in the justice system.” The appellate court found that plaintiff’s attorney did not open the door to those questions, which were irrelevant. The App. Div. noted that, even if the questions could be considered relevant, their probative value was substantially outweighed by the risk of undue prejudice. See 457 N.J. Super. at 192.

04/08/20: Roseville Group LLC v. Dixon, A-4354-18T2 - The decision in this case highlights how acceptance of rent after a notice to terminate constitutes waiver, despite highly prejudicial facts. The holding in this case reaffirms the holding and ideals on waiver set forth in Carteret Properties v. Variety Donuts, Inc., 49 N.J. 116 (1969).

Landlord/plaintiff sought to evict tenant based on disorderly conduct that disturbs other tenants and breach of lease. The notices alleged that the tenant was in violation of the lease and that his conduct disturbed the peace and quiet enjoyment of other tenants and residents in the premises. Specifically, the notices claimed that he engaged in “drinking, doing drugs and/or permitting prostitution.” Tenant/defendant was served with both a notice to cease and a notice to quit with a termination date of March 31, 2019. Defendant paid the rent for April, which the landlord accepted.

Because the defendant failed to vacate the premises on March 31, 2019, the plaintiff subsequently filed for eviction based on holdover. The tenant/defendant filed a motion to dismiss the complaint, which included a certification by the tenant that the rent was fully paid. The trial court was not swayed by the defendant’s waiver argument and dismissed defendant’s motion, holding “it’s not a nonpayment ... case.” Instead, the court reviewed and focused on the facts set forth in the notices. The trial court relied on the testimony of the superintendent, who lived on the same floor as the defendant. The superintendent provided testimony on his observations of the persons coming in and out of the defendant’s apartment. Specifically, he testified that he observed the defendant’s guests engaging in drinking, illicit drug use, and prostitution. The plaintiff then sought to admit defendant’s yearly lease from October 2009. After the year ended, defendant never entered into a new lease. The defendant objected to the admission of this lease because the lease had expired and thus, not effective. The trial court rejected defendant’s argument and held that the terms of the expired yearly lease carried over into the terms of the defendant’s month-to-month tenancy. Based on the superintendent’s testimony and the terms of lease, the court held that defendant’s conduct violated the terms of the lease and caused a disturbance to the other tenants and residents in the premises.

The defendant appealed the trial court’s decision and argued that that the notices were deficient and lacked specificity; alcohol consumption was not a ground for removal; plaintiff could not seek to remove for breach of lease because there was no signed lease in effect; the testimony did not corroborate the evidence set forth in the notices; and acceptance of rent after the vacate date of the notice in quit created a new tenancy and constituted aiver. The Appellate Division upheld the trial court’s review of the notices, the lease, and facts of the case. However, the Appellate Division reversed the trial court’s decision, due to the fact that the landlord accepted rent after March 31, 2019, the vacate date on the notice to quit. The Appellate Division found that the trial court misapplied the law when it denied the defendant’s motion to dismiss the complaint based on acceptance of rent after a notice to terminate tenancy. The Court cited to the holding in Royal Assoc, v . Concannon, 200 N.J. Super. 84, 90 (App. Div. 1985) citing Carteret Properties v. Variety Donuts, Inc., 49 N.J. 116, 129 (1967), “[t]he acceptance of rent after a [n]otice to [t]erminate constitutes a wavier as a matter of law.”

04/06/20: July 2020 Bar Exam Cancelled; R. 1:21-3 Temporarily Relaxed - The Court has issued an Order cancelling the July 2020 bar exam. The Court and will reschedule the exam for a later date in the Fall (to be determined). In the interim “[o]n a temporary basis, Rule 1 :21-3 is relaxed and expanded for 2020 law school graduates who have not previously taken a bar examination. Those graduates may be authorized to practice law under the supervision of a licensed attorney who has been licensed to practice for at least three years.”

03/31/20: Operational Adjustments for Several Aspects of Civil and Criminal Practice (from NJ Courts)

03/26/20: DCPP v. T.S. and L.H., In the Matter of the Guardianship of A.H., (A-3227-18T3), Decided March 19, 2020. (Fuentes, P.J.A.D.) – In 2016, the Division removed an infant from T.S. and L.H., the infant’s parents, due to a physical altercation between them. The infant was placed with a resource parent, who worked as a Domestic Violence Liaison for the Division’s district office that was responsible for investigating the incident and managing the case. The Division’s own policy requires that, when an employee expresses an interest in becoming a resource parent of a child under the Division’s supervision, an Ethics Liaison Officer must be assigned to oversee all procedural matters and processes, and that the child’s case must be supervised by a local office other than the one where the employee is officially stationed. Although the Division’s records repeatedly indicated that the caseworkers and the supervisor were aware of the conflict of interest, DCPP failed to assign an Ethics Liaison Officer and did not transfer the case supervision to a different local office. In 2019, the Family Part conducted a guardianship trial in which two psychologists gave differing testimonies. The trial judge ruled to terminate T.S.’s parental rights and entered a judgment of guardianship for the child. T.S. appealed.

Appellate Court reversed and remanded the trial court’s decision on two grounds. First, Conflict of Interest law requires that public officials must “avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated.” N.J.S.A. 52:13D-12(a). To this end, the Division’s own DCF Policy Manual states that an Ethics Liaison Officer must be assigned to avoid conflicts of interest. Furthermore, the Division’s Area Director is responsible for deciding the office of supervision so that the child’s case is supervised by a local office other than where the employee is officially stationed, so that the assigned worker has no “professional, personal, or familial relationship” to the resource parent/employee. The Appellate Court found that “the Division case workers and supervisors who were responsible to manage this case from its inception were utterly oblivious of their ethical obligations under the standards established by the Legislature in the Conflict of Interest Law and the protocols adopted by the DCF in its Policy Manual.” Second, Appellate Division found that the trial judge failed to make key factual findings concerning inconsistent expert testimony by two psychologist and T.S.’s own testimony. At the trial, T.S. testified in her own defense denying the allegations against her. Two expert psychologists testified with disparate conclusions. The Family Part judge’s written statement of the decision did not address T.S.’s credibility or the expert testimonies. The Appellate Court was not able to discern how the judge reached the conclusion that the Division proved by clear and convincing evidence that termination of T.S.’s parental rights is warranted.

In conclusion, the Appellate Court stated that “[T]his case stands as a model of how not to investigate, manage, and adjudicate a guardianship trial.”

03/25/20: New interim process for filing emergent applications in court - The Supreme Court has approved interim procedures for use during the COVID-19 crisis to support prompt filing and handling of certain emergent applications that cannot be filed electronically, including making available the option of submitting such emergent applications by email.

03/23/20: NJ Supreme Court Orders Low-Risk County Inmates Released to Limit Coronavirus Spread (from New Jersey Law Journal) - Low-risk county jail inmates will be released from prison starting early Tuesday under an order from the New Jersey Supreme Court in response to concerns over the spread of the coronavirus in those facilities.

03/23/20: New Jersey Passes Law to Temporarily Allow Remote Notarization

Governor Murphy recently signed legislation to allow notary publics and certain other authorized officials the ability to notarize documents electronically, in light of the COVID-19 epidemic. (In New Jersey, attorneys, judges, mayors, commissioners, sheriffs, clerks of the court, legislators, and certified court reporters, are authorized to administer oaths or validate affidavits and affirmations, and therefore fall in the “other authorized officials” category. See N.J.S.A. 41:2-1.) Under the new law, an individual need not be physically present before a notary to have a document notarized, as long as they can provide satisfactory evidence of their identity.

“Satisfactory evidence” means:
a passport, driver’s license, or government issued nondriver identification card, which is current or expired not more than three years before performance of the notarial act; another form of government identification issued to an individual, which is current or expired not more than three years before performance of the notarial act, contains the signature or a photograph of the individual, and is satisfactory to the notary public or officer authorized to take oaths, affirmations, and affidavits, or authorized to take acknowledgements; or a verification on oath or affirmation of a credible witness personally appearing before the notary public or officer and known to the notary public or officer or whom the notary public or officer can identify on the basis of a passport, driver’s license, or government issued nondriver identification card, which is current or expired not more than three years before performance of the notarial act.
Additional conditions must be met if the remote individual is located outside the U.S.

Notarial acts may be provided using communication technology for a remotely located individual if:
  1. the notary public or officer
    1. has personal knowledge of the identity of the individual appearing before the notary public or officer, which is based upon dealings with the individual sufficient to provide reasonable certainty that the individual has the identity claimed;
    2. has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public or officer; or
    3. has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing;
  2. the notary public or officer is reasonably able to confirm that a record before the notary public or officer is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature.
The notary public or officer or a person acting on their behalf must create an audio-visual recording  (for example, through Zoom or Skype) of the performance of the notarial act.

The new law does not apply to documents that must be notarized and are related to adoption, divorce or other matters of family law.

It is effective immediately and will be withdrawn when the emergency public health order is rescinded.

03/18/20: AOC recently issued a directive on new order to show cause forms for dissolution, non-dissolution, and domestic violence dockets.

03/12/20: Employee Fired For Use of Medical Marijuana May Sue Under Law Against Discrimination

Plaintiff, a funeral director, used medical marijuana legally prescribed by his physician under New Jersey’s Compassionate Use Medical Marijuana Act [Compassionate Use Act] to treat a cancer diagnosis. The funeral home learned of his medical marijuana use when plaintiff was involved in a work related auto accident. The employer first required a blood test before allowing plaintiff to return to work, then told plaintiff he was fired because “they found drugs in your system” but ultimately sent a letter stating that he was fired because he did not disclose his use of medical marijuana.

Plaintiff filed suit claiming that the funeral home violated the Law Against Discrimination [LAD] by firing him because he had cancer, a disability, and was treating this disability with medical marijuana as permitted by the Compassionate Use Act. Defendants moved to dismiss the complaint. The trial court granted defendants’ motion ruling that the Compassionate Use Act “does not contain employment related protections for licensed users of medical marijuana.”

The Appellate Division reversed the dismissal of plaintiff’s complaint in a published opinion. Wild v. Carriage Funeral Homes, 458 N.J. Super 416 (App. Div. 2019) The Appellate Division noted that “plaintiff alleges a disability that qualified his use of medical marijuana” and that discriminating on the basis of disability in employment was illegal. Id. at 427. Although the Compassionate Use Act states that an employer does not have to “accommodate the medical use of marijuana in any workplace,” the Appellate Division stated that the LAD and Compassionate Use Act did not conflict because the provision in the Compassionate Use Act “neither created new employment rights nor destroyed existing employment rights” and “intended to cause no impact on existing employment rights”. Id. at 428. They also commented that plaintiff’s request for a reasonable accommodation involved medical marijuana use “off site or during off work hours.” After examining the complaint, the Appellate Division found that the complaint alleged sufficient facts to survive a motion to dismiss.

The New Jersey Supreme Court affirmed the Appellate Division opinion in a per curiam opinion. _ N.J. _ (March 10, 2020). The Court began by repeating the Appellate Division’s admonition that they were deciding whether “plaintiff has stated a claim sufficient to survive defendant’s motion to dismiss under Rule 4:6-2.” While the Court agreed with the Appellate Division’s conclusion that the LAD and Compassionate Use Act could be harmonized, they narrowed the harmony to the “use of medical marijuana” outside the workplace. They also disagreed with its conclusion that the “Compassionate Use Act intended to cause no impact on existing employment rights” First, The Court stated that it was the Compassionate Use Act that gave plaintiff the right to use medical marijuana.” If the Compassionate Use Act did not exist, plaintiff “would have no LAD claim for disability discrimination or failure to accommodate.” Second, the Court pointed to the no right to accommodation in the workplace provision as a potential limit.

The Court’s decision is narrow and cautious. Both the Appellate Division and the Court stress that they are deciding whether plaintiff can bring a case rather than ruling on whether plaintiff can prevail under the LAD. In addition, the Compassionate Use Act was amended in 2019 to prohibit “any adverse employment action against an employee who is a registered qualifying patient based solely on the employee's status” as a medical marijuana patient, JSA 24:6I-6.1, making the result in this case easier to achieve. But still significant in this case is what neither court mentioned-the status of marijuana as an illegal Schedule I drug under federal law.

01/22/20: New Law Restricts Use of Driver License Suspensions as Sanctions for Certain Crimes and Offenses - Governor Murphy recently signed into law measures which will substantially limit the use of driver license suspensions as a sanction for violating certain “non-moving” offenses. (Read more)

01/17/20: CROWN Act Strengthens NJLAD to Protect Against Hair Discrimination (from NJ.gov) - In December, a new law was passed in New Jersey prohibiting discrimination against individuals based on traits associated with race, including hair types and hairstyles.

The Create a Respectful and Open Workplace for Natural Hair Act or “CROWN” Act amends the New Jersey Law Against Discrimination, which protects individuals against discrimination in employment, housing, schools, and places of public accommodation. It expands the definition of race to include “traits historically associated with race including but not limited to hair texture, hair type and protective hairstyles,” such as braids, locks, and cornrows.

Legislative sponsors were compelled to act in the face of decades of discrimination against people of color because of their natural or styled hair. “The idea that someone could be dismissed from school or denied employment for wearing their hair exactly how it grows is mindboggling, but unfortunately that has been the case for black and brown individuals for far too long,” said Senator Sandra Cunningham, one of the primary sponsors.

The new law is effective immediately.

01/10/20: Expungement Reform Law Brings Sweeping Changes - On December 18, 2019, Governor Murphy signed into law a much-anticipated expungement reform bill (A5981/ S4154) that will bring sweeping changes to expungement eligibility and the expungement process. (Read more)

 

 

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