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Key Legal Developments

 
 



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


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)