In Gannett Satellite Information Network, LLC v. Township of Neptune, (A-63-21/085719) (Decided June 30, 2023), the Supreme Court of New Jersey held that Gannett Satellite Information Network, LLC(Gannett) was not owed attorney’s fees in its records dispute with the Township of Neptune. The court unanimously declined to adopt an exception to the American Rule, under which each party pays its own legal fees, for common law right of access claims to public records.

Facts of Gannett v. Township of Neptune

In June 2015, Philip Seidle, a police officer employed by Neptune Township, killed his former wife. After the Monmouth County Prosecutor’s Office issued a report on the Seidle case that was based in part on Seidle’s IA files, Gannett submitted to the Township a request for records pursuant to both the Open Public Records Act (OPRA), and the common law, seeking copies of those files. After the Township denied the request, Gannett filed an action in the Law Division seeking a judgment directing the Township to release the requested records, as well as an award of attorneys’ fees and other remedies.

The trial court dismissed Gannett’s OPRA claim but ordered the release of the contested records, redacted in accordance with guidelines prescribed in the court’s opinion, on the sole basis of the common law right of access. The trial court granted a partial fee award.

Before oral argument in the Appellate Division, the Attorney General advised the appellate court that pursuant to the Internal Affairs Policy and Procedures Manual, a redacted version of Seidle’s IA files would be released.

The Appellate Division affirmed in part and reversed in part. First, it affirmed the trial court’s determination that Gannett had no claim under OPRA but was entitled to a redacted version of Seidle’s IA files pursuant to the common law. Second, it held that the New Jersey Supreme Court recognized a right to counsel fees in common law right of access cases under certain circumstances in Mason v. City of Hoboken, 196 N.J. 51, 57 (2008). On the facts presented, however, the Appellate Division reversed the trial court’s partial award of counsel fees.

NJ Supreme Court’s Decision in Gannett v. Township of Neptune

The Supreme Court of New Jersey held that Gannett is not entitled to an award of attorneys’ fees. However, it declined to adopt an exception to the American Rule for common law right of access claims to public records.

“Those claims impose significant burdens on municipal clerks and other records custodians; they require a careful balancing of competing interests and the application of an array of factors that can challenge even a seasoned judge,” Justice Anne Patterson wrote. “If we were to impose fee-shifting in this category of cases, we would venture far beyond the narrow exceptions to the American Rule that our courts have adopted to date.”

In reaching its decision,the New Jersey Supreme Court emphasized that the state’s courts have historically followed the American Rule, which provides that litigants must bear the cost of their own attorneys’ fees. Counsel fee awards, as exceptions to the American Rule, fall under four general categories: those granted pursuant to a fee-shifting statute, such as OPRA; those allowed by court rule, a narrow category; a tightly circumscribed common law exception in settings involving breaches of fiduciary duties; and those granted through a contractual agreement.

The New Jersey Supreme Court went on to note thatan award of attorneys’ fees in connection with common law claims would not fit within any of the four categories of actions in which such awards are authorized under current law. “Were we to accept such an argument, we would expand the narrow fiduciary exception to the American Rule far beyond its logical parameters, and the exception would swallow the rule,” Justice Patterson wrote. The court further found a request for information not subject to disclosure under OPRA, predicated on the common law right of access, is a “particularly inappropriate basis” for an award of attorneys’ fees as an exception to the American Rule. “When a public entity undertakes the balancing analysis required by our decisions on the common law right of access, it should be permitted to formulate a good-faith legal position on the disputed information and to litigate that position, without the risk of an award of attorneys’ fees in the event that a court later rejects it,” Justice Patterson wrote.

In Kathleen DiFiore v. Tomo Pezic (A-58/59/60-21/087091) (Decided June 15, 2023), the Supreme Court of New Jersey clarified the procedures regarding who may attend a defense medical examination (DME) — as well as whether and how such examinations may be recorded — when a plaintiff has alleged cognitive limitations, psychological impairments, or language barriers. According to the court, trial courts have the discretion to determine on a case-by-case basis what conditions, if any, to place on a DME.

The New Jersey Supreme Court reversed the Appellate Division’s decision to place the burden on the plaintiff to show special reasons why third-party observation or recording should be permitted in each case. Rather, the state’s highest court found that the defendant must move for a protective order under Rule 4:10-3 if they seek to prevent an DME from being recorded, or to prevent a neutral third-party observer from attending.

Facts of DiFiore v. Pezic

In cases in which the mental or physical condition of the plaintiff is in controversy, Rule 4:19 allows defendants to require plaintiffs to be physically or mentally examined by the defendants’ chosen expert. After examining the plaintiff, the selected doctor generally prepares a report opining on the plaintiff’s condition, which is used in evaluating the existence and extent of plaintiff’s injury, illness, or capacity. The doctor who conducted the DME will often testify at trial for the defense.

The New Jersey Supreme Court considered three consolidated cases. In each of the three personal injury actions, the defendants required the plaintiffs to submit to a DME. Plaintiffs, who had alleged cognitive limitations, psychological impairments, or language barriers, sought to record the examinations or to be accompanied by a third-party observer (TPO) at the examination. After various trial court rulings, the Appellate Division consolidated the cases.

The Appellate Division remanded all three cases for reconsideration in light of its six-part holding that (1) “a disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by trial judges on a case-by- case basis, with no absolute prohibitions or entitlements”; (2) “it shall be the plaintiff’s burden henceforth to justify to the court that third-party presence or recording, or both, is appropriate in a particular case” “despite contrary language” in B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998); (3) the range of options available “should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff”; (4) when defense examiners are concerned that TPOs or recordings “might reveal alleged proprietary information about the content and sequence of the exam, the parties shall cooperate to enter into a protective order, so that such information is solely used for the purposes of the case and not otherwise divulged”; (5) a court that permits a TPO to attend a DME “shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam”; and (6) “if a foreign or sign language interpreter is needed for the exam . . . the examiner shall utilize a neutral interpreter agreed upon by the parties or, if such agreement is not attained, an interpreter selected by the court.”

NJ Supreme Court’s Decision in DiFiore v. Pezic

The New Jersey Supreme Court affirmed with respect to the Appellate Division’s primary holding that trial courts should determine on a case-by-case basis what conditions, if any, to place on a DME, with no absolute prohibitions or entitlements.

The New Jersey Supreme Court also affirmed several other Appellate Division holdings, agreeing that video recording, in addition to audio recording, should be included in the range of options; that the parties shall enter into a protective order when a defense expert is concerned about the disclosure of proprietary information; that when third-party observation is permitted, the trial court shall impose reasonable conditions to prevent any disruption of or interference with the exam; and that, if a foreign or sign language interpreter is needed, a neutral interpreter shall be selected by the parties or, failing agreement, by the court. The New Jersey Supreme Court reversed the Appellate Division in declining to place the burden on the plaintiff to show special reasons why third-party observation or recording should be permitted in each case. It held instead that once the defendant issues notice to the plaintiff of a Rule 4:19 exam, the plaintiff should inform the defendant if they seek to bring a neutral observer or unobtrusively record the examination. If the defendant objects, the two sides should meet and confer to attempt to reach agreement. If agreement is impossible, the defendant may move for a protective order under Rule 4:10-3 seeking to prevent the exam from being recorded, or to prevent a neutral third-party observer from attending. According to the court, factors including a plaintiff’s cognitive limitations, psychological impairments, language barriers, age, and inexperience with the legal system may weigh in favor of allowing unobtrusive recording and the presence of a neutral third-party observer.

The Supreme Court of New Jersey recently granted certiorari in Passaic County v. Horizon Healthcare Services. The closely watched case involves whether the requirement that an enforceable arbitration provision must contain an express waiver of the right to seek relief in a court of law applies in suits involving sophisticated commercial parties.

Facts of Passaic County v. Horizon Healthcare Services

Starting in 2002, plaintiff County of Passaic contracted with defendant Horizon Healthcare Services, Inc. to manage the County’s self-funded health benefit plan; that relationship, in one form or another, lasted until December 31, 2019. The County filed this action in 2021, claiming, among other things, that Horizon breached their contract by failing to implement certain modified reimbursement rates.

Horizon quickly moved to compel arbitration based on a stipulation in their 2009 written agreement that “[i]n the event of any dispute between the parties to this Agreement arising under its terms, the parties shall submit the dispute to binding arbitration under the commercial rules of the American Arbitration Association.” In response, the County argued that the arbitration provision is unenforceable because it lacks an explicit waiver of access in accordance with the Supreme Court’s landmark decision in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014).

Appellate Division’s Decision

The Appellate Division affirmed the trial court’s grant of Horizon’s motion to compel. It held that arbitration provisions between sophisticated entities need not include an express warning of the implications of arbitration to be enforceable.

“We reject this argument and affirm because, even though the arbitration provision does lack such an explicit waiver, the county is a sophisticated contracting party and is not—as in Atalese and other authorities—an employee or consumer lacking sufficient bargaining power to resist the extraction of an agreement to arbitrate,” the court wrote.

In reaching its decision, the Appellate Division noted that Atalese, as well as other decisions from the New Jersey Supreme Court, focus on the unequal relationship between the contracting parties or the adhesional nature of the contract when holding that an arbitration agreement could not be enforced without an express waiver of the right to seek relief in a court of law. It also agreed with the Third Circuit Court of Appeals in recognizing that the New Jersey Supreme Court has adopted the stricter approach found in Atalese “only in the context of employment and consumer contracts.”

The Appellate Division went on to find that an express waiver of the right to seek relief in a court of law to the degree required by Atalese is unnecessary when parties to a commercial contract are sophisticated and possess comparatively equal bargaining power. While the court acknowledged that the New Jersey Supreme Court has not expressly limited Atalese’s insistence on an express waiver of the right to seek relief in a court of law, it insisted that the clues are there. As evidence, it noted that the New Jersey Supreme Court mentioned that the arbitration provision was contained in a consumer contract throughout the Atalese opinion.

“This concern for those not versed in the law or not necessarily aware of the fact that an agreement to arbitrate may preclude the right to sue in a court or invoke the inestimable right of trial by jury, on the other hand, vanishes when considering individually-negotiated contracts between sophisticated parties – often represented by counsel at the formation stage – possessing relatively similar bargaining power,” the court explained.

Issue before NJ Supreme Court

The New Jersey Supreme Court granted certiorari on May 22, 2023. The justices agreed to consider the following question:

Under the circumstances presented, was the arbitration clause unenforceable under Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014), because it lacked an explicit waiver of the right to seek relief in a court of law?

Oral arguments have not yet been scheduled. Please check back for updates.

In State v. Joao C. Torres (A-15-22/086812) (Decided May 4, 2023), the Supreme Court of New Jersey addressed when law enforcement may conduct warrantless searches of a person incident to an arrest. It adopted the two-factor test set forth in State v. Lentz, 463 N.J. Super. 54, 70 (App. Div. 2020), under which both (1) the delay itself and (2) the scope of the search must be objectively reasonable.

Facts of State v. Torres

While investigating an axe murder, police officers apprehended defendant Joao Torres (defendant or Torres) and confiscated his clothing, including a sweatshirt, at the police station. The confiscation began about three hours after defendant was taken into custody, following an interview during which he made incriminating statements connecting him to the homicide. During the interview, the officers noticed defendant picking at his fingers and rubbing his clothing. The lead detective also observed what his report described as possible biological evidence visible on defendant’s sweatshirt.

That evening, the State presented an after-hours application for a search warrant to an emergent duty judge. The police seized defendant’s sweatshirt and other garments before the judge approved the warrant, out of concern that dried blood or other biological evidence might dissipate.

Laboratory testing thereafter confirmed that the sweatshirt contained incriminating traces of the victim’s blood. Defendant moved to suppress the sweatshirt evidence, arguing its warrantless confiscation was unconstitutional. After a hearing, the judge denied the motion. Defendant entered a guilty plea. He then appealed, arguing that “the trial court erred in denying the motion to suppress the evidence seized as a result of the warrantless strip search.”

The Appellate Division held that the search was not a strip search but remanded “for more explicit findings of fact and conclusions of law” to justify the warrantless seizure. On remand, the trial court issued an amplified written opinion holding that the seizure of defendant’s clothing was valid as a search incident to arrest under the totality of the circumstances. The Appellate Division affirmed.

NJ Supreme Court’s Decision in State v. Torres

The New Jersey Supreme Court affirmed. In so ruling, the court adopted the two-factor test set forth in State v. Lentz, 463 N.J. Super. 54, 70 (App. Div. 2020), which authorizes delayed warrantless searches of a person incident to that person’s arrest so long as both (1) the delay itself and (2) the scope of the search were objectively reasonable.

“The Lentz standard protects, on the one hand, individual privacy rights while furthering, on the other hand, important governmental interests in public safety and the gathering of evidence for the prosecution of crimes,” the court wrote. Accordingly, it further found that the test satisfies the Fourth Amendment and comports with Article I, Paragraph 7 of the New Jersey Constitution.

In this case, the New Jersey Supreme Court found that the totality of circumstances establishes satisfied the reasonableness standard. In support, the court cited officers’ observation and video footage showing that defendant appeared to be removing some substance from his fingers and rubbing his clothing while he was being interviewed, as well as the risk that biological evidence would dissipate during the delay while the warrant application was processed.

“Here, the police had a reasonable basis to think defendant had a motive to destroy incriminating biological evidence and was deliberately trying to pick blood or other biological material off his fingers and clothes. Even if he wasn’t doing so intentionally, and he was instead only fidgeting as the defense submits, the fact remains that defendant’s conduct could have been destroying critical evidence in a homicide case,” the court wrote. “It was surely reasonable for the police to take steps to preserve that evidence after defendant’s statements furnished probable cause that he had killed Ernst.”

In State v. Anthony Miranda (A-67-21/086773) (Decided by May 3, 2023), the Supreme Court of New Jersey held that the exigent-circumstances exception to the warrant requirement failed to justify an officer’s search of the defendant’s bag or the seizure of the weapons in that bag.

Facts of State v. Miranda

On July 27, 2019, N.D. and her adult daughter and son appeared at the headquarters of the Borough of Highlands Police Department. They spoke with the two officers on duty that day, Captain George Roxby and Detective Nicholas Riker. N.D. told the officers that she and defendant had been dating since 2015. She stated that defendant had assaulted her and showed them photographs of injuries. She presented to the officers screenshots of threatening text messages that she attributed to defendant. N.D. reported that defendant had brandished two guns in front of her and her children. She said that defendant kept the guns in a “black drawstring-type bag” in the residential trailer in which she, her children, and defendant lived.

The officers contacted a judge, who entered a temporary restraining order against defendant and a search warrant for the residential trailer where defendant and N.D. lived. Roxby and Riker arrived at the residential trailer and knocked on the door. Defendant answered and was arrested. Roxby entered the residential trailer to execute the search warrant but found no weapons. He and N.D. joined N.D.’s children and another adult female family member outside. Roxby’s bodycam recorded the family member saying that “[h]e has a storage.” Roxby asked N.D., “you keep your stuff in there also, right?” N.D. answered affirmatively.

Roxby walked up the steps to the storage trailer. The door to the storage trailer was open, and the screen door was closed but unlocked. Roxby opened the screen door and entered the storage trailer, followed by N.D. Referring to a black bag that was initially off-camera, N.D. exclaimed, “[t]hat’s it.” Roxby then opened the bag. He removed a police badge, two guns, and ammunition. Roxby took the weapons and ammunition to police headquarters and secured them.

Defendant was indicted, and he moved to suppress the weapons found in the black bag in the storage trailer. The trial court denied defendant’s motion, concluding that N.D. had consented to the search of the storage trailer and the seizure of the weapons found in the black bag in that trailer, and that the black bag containing the weapons was in plain view. The Appellate Division affirmed.

NJ Supreme Court’s Decision in State v. Miranda

The Supreme Court of New Jersey reversed. It held that N.D. had apparent authority to consent to the officer’s search of the storage trailer. However, it also held that the exigent-circumstances exception to the warrant requirement does not justify the officer’s search of the black bag or his seizure of the weapons in that bag, and the denial of defendant’s motion to suppress constituted error.

The New Jersey Supreme Court first addressed whether N.D. had apparent authority to consent to the search of the trailer. As it explained, apparent authority arises when a third party (1) does not possess actual authority to consent but appears to have such authority and (2) the law enforcement officer reasonably relies, from an objective perspective, on that appearance of authority in view of the facts and circumstances known at the time of the search.

With regard to the storage trailer, the New Jersey Supreme Court found that N.D. did have apparent authority to consent to the search. In support, the court cited information known to Roxby about N.D.’s nexus to the storage trailer when he entered and searched it, including N.D.’s affirmations that she also kept belongings in the trailer; text messages attributed to defendant suggesting defendant considered the residential trailer to be N.D.’s, that N.D. had lived in that trailer and the community longer than defendant had, and that he planned an imminent move out of her home; and N.D.’s access to the storage trailer.

The New Jersey Supreme Court next turned to whether Roxby’s search of the bag found inside that trailer and his seizure of the weapons were constitutional. It ultimately concluded the State did not prove its claim that exigent circumstances justified the warrantless search of the black bag and the seizure of the weapons. “With defendant under arrest, Roxby had the opportunity to apply for and secure a warrant to search the bag and seize the weapons within it,” the court wrote. “The circumstances facing Roxby were not so urgent as to obviate the need to obtain a warrant.”

Based on its findings, the New Jersey Supreme Court further concluded that the defendant’s motion to suppress the weapons seized through that unlawful search should therefore have been granted. Because those weapons constituted the central evidence against defendant on the charge of unlawful possession of a weapon, it found that the defendant’s conviction must be vacated.

The Supreme Court of New Jersey recently heard oral arguments in State v. Jason M. O’Donnell, which involves the state’s bribery statute. The issue before court is whether a candidate who loses an election was still be convicted of accepting a bribe under NJSA 2C:27-2.

Facts of State v. Jason M. O’Donnell

Defendant Jason M. O’Donnell is charged with violating N.J.S.A. 2C:27-2, which imposes criminal liability on “person[s]” who offer or accept from another “[a]ny benefit as consideration” for, among many things, the performance of official duties. The indictment was based on evidence that, during his 2018 campaign for the office of Bayonne Mayor, O’Donnell agreed to accept from an attorney $10,000 in “street money” in exchange for becoming Bayonne’s tax attorney once defendant was elected. O’Donnell ultimately lost the election and, thus, never became mayor.

Because he never took office and was never able to perform his part of this alleged corrupt bargain, O’Donnell sought to dismiss the indictment, arguing that N.J.S.A. 2C:27-2 does not criminalize an unsuccessful candidate’s acceptance of a bribe. The trial court dismissed the indictment, but the Appellate Division reversed. “[W]conclude N.J.S.A. 2C:27- 2’s plain language reveals an intent to render unlawful what defendant is alleged to have done and that the statute imposes criminal liability on bribe-accepting but unsuccessful candidates for public office.”

In reaching its decision, the Appellate Division emphasized that the New Jersey Legislature “imposed criminal liability on ‘person[s],’ not just public officials and public servants who offer or accept bribes.” The court further stressed that adopting O’Donnell’s interpretation of N.J.S.A. 2C:27-2 “would be to declare open season on the bribing of candidates for public office.” 

“Defendant’s interpretation that candidates are not made criminally liable for accepting bribes in the performance of some future official act would mean, if correct, that a candidate could be bribed before, during, and after being elected, right up until taking the oath of office,” the court wrote.

Issues Before the NJ Supreme Court

The New Jersey Supreme Court granted certification on October 21, 2022. The justices agreed to consider the following question: “Does N.J.S.A. 2C:27-2, which imposes criminal liability for ‘bribery in official and political matters,’ apply to a candidate for political office who is not an incumbent and is ultimately not elected?

During oral arguments held on April 24, 2023, O’Donnell’s attorneys argued that prosecutors were interpreting the state’s anti-bribery statute too broadly. They maintained that although the words “party official” or “public servant” don’t appear in subsection D, the section under which O’Donnell is charged, the legislative history of the law demonstrates that the amendment was not intended to expand the statute’s scope to candidates. 

“During the relevant time period, Feb. 1, 2018, through May 3, 2018, Mr. O’Donnell was neither a public servant nor party official,” O’Donnell’s attorney argued.  “He was a mere candidate for office. A private citizen aspiring to office, not one that had any official duties at that time.”

New Jersey Deputy Solicitor General Angela Cai maintained that the statute does not require that the bribe taker be a public official when the bribe is taken. Rather, all that is required is for bribe to be accepted to solicit an official action. “Defendant’s focus on official status at the time of the illicit deal is wrong, his reading adds words into the statute that aren’t there,” Cai argued. Chief Judge Stuart Rabner appeared inclined to agree. He noted that N.J.S.A. 2C:27-2 is based on the Model Penal Code, which contains a footnote stating that a candidate could be guilty of bribery for receiving a campaign contribution “if the other requirements of the offense are met” including an understanding that official action would be taken after election. “Doesn’t that suggest that the statue covers candidates?” Justice Rabner asked. 

In New York v. New Jersey, the U.S. Supreme Court held that New Jersey can’t withdraw from its Waterfront Commission Compact with New York, at least not yet. The justices granted the State of New York’s motion for preliminary relief, enjoining the State of New Jersey from unilaterally withdrawing from the Compact.

Facts of New York v. New Jersey

New York v. New Jersey is a case of original jurisdiction and, thus, was filed directly with the U.S. Supreme Court. The issue before the justices is whether the Court should issue declaratory judgment and/or enjoin New Jersey from withdrawing from its Waterfront Commission Compact with New York, which grants the Waterfront Commission of New York Harbor broad regulatory and law-enforcement powers over all operations at the Port of New York and New Jersey.

In 1953, New Jersey and New York entered into the Waterfront Commission Compact—an agreement to combat problems of “crime, corruption, and racketeering on the waterfront of the port of New York.” In the Compact, the States established the Waterfront Commission of New York Harbor (Commission), a bi-state agency authorized to engage in both regulatory and law-enforcement activity on the New Jersey side of the port (relying on New Jersey’s police powers) and the New York side (relying on New York’s).

In 2018, the New Jersey Legislature recognized that the Commission was no longer fulfilling its mission to “investigate, deter, and combat criminal activity and influence in the port” and enacted legislation to facilitate its withdrawal. The Commission filed suit in district court challenging the withdrawal. While a district court enjoined New Jersey from withdrawing, the Third Circuit Court of Appeals reversed, holding that New Jersey’s sovereign immunity barred the Commission’s lawsuit. The U.S. Supreme Court denied certiorari, and the district court subsequently lifted its injunction.

On December 27, 2021, New Jersey gave formal notice of withdrawal, which triggered a transfer date of March 28, 2022.  On March 14, 2022, New York filed a motion for leave to file a bill of complaint, complaint, motion for preliminary injunction, and motion to expedite with the U.S. Supreme Court.

In its Motion for Preliminary Relief, New York argued that it would suffer substantial and irreparable harms absent an injunction preserving the status quo at the Port while the Court considers the Motion for Leave to File Bill of Complaint and, if that motion is granted, pending disposition of the case. “New Jersey has stated that it will seek to transfer to its Division of State Police the Commission’s assets and regulatory and law-enforcement powers—sovereign authorities that, under the Compact, belong jointly to New York and New Jersey,” New York argued. “Such actions will not only irreparably harm New York’s sovereign interests but will also likely upend security and stability at the East Coast’s largest port—which has operated as a unified whole for over six decades. Indeed, the exercise of conflicting authority by the New Jersey Division of State Police and the Commission sets the stage for chaos, labor strife, and disruptions to shipping operations.”

In its Brief in Opposition, New Jersey argued that New York’s motion failed on both the merits and the equities. First, New Jersey argued that the Compact permits it to withdraw. “[T]he drafters did not include any language in the Compact addressing whether either State may withdraw and reclaim its sovereign powers within its borders. That silence proves fatal to New York, because this Court has consistently refused to construe ‘silence’ in an interstate compact to strip the States of pre-compact authorities,” New Jersey argued. The State further maintained that the equities favor allowing it to withdraw, citing “[t]here is a good reason why New Jersey has been diligently trying to withdraw from the Compact for four years: the Commission has become ineffectual.”

Supreme Court’s Decision in New York v. New Jersey

On March 24, 2022, the U.S. Supreme Court granted New York’s motion for preliminary relief. Its brief unsigned order stated: “New Jersey is hereby enjoined from enforcing Chapter 324 or taking action to withdraw unilaterally from the Compact or terminate the Commission pending disposition of the motion for leave to file a bill of complaint and, if granted, disposition of the case.”

The Supreme Court is likely to consider the full merits of the case next term.

In In re Alleged Failure of Altice U.S., Inc., the Supreme Court of New Jersey held that Section 543(a)(1) of the Cable Act does not preempt the proration requirement in N.J.A.C. 14:18-3.8. According to the state’s highest court, the regulation does not regulate “rates for the provision of cable service,” but rather prevents cable companies from charging for cable service that customers have cancelled.

Facts of the Case

The statute at issue, N.J.A.C. 14:18-3.8, requires cable companies to refund or not charge customers who cancel cable service before the end of a billing cycle for cable service after the date of cancellation. Altice USA, Inc. (Altice) argues that N.J.A.C. 14:18-38’s proration requirement effectively regulates its “rates for the provision of cable service” and is therefore expressly preempted by 47 U.S.C. § 543(a)(1), a section of the federal Cable Communications Policy Act of 1984 (Cable Act). Accordingly, Altice maintains that, once its customers sign up for a monthly plan, they must pay for a full final month of cable service even if they terminate service before the month ends. The Board of Public Utilities (the BPU) and Division of Rate Counsel maintain that the regulation is a valid exercise of the State’s police power, which they argue the Cable Act explicitly authorizes.

In 2011, Cablevision Systems Corporation (Cablevision), Altice’s predecessor, petitioned the BPU for relief from various rules. BPU granted Cablevision’s request for relief from compliance with certain rules, expressly conditioned on Cablevision’s continuing to “prorate its bills pursuant to the requirements” of state law. As part of its request for relief, Cablevision submitted to the BPU sample customer bills that evidenced intent to continue prorating bills under N.J.A.C. 14:18-3.8. In 2015, Altice petitioned the BPU for approval of its merger with Cablevision Cable Entities. In May 2016, the BPU issued an Order approving the merger with the expectation that Altice would comply with N.J.A.C. 14:18-3.8.

Altice then began selling cable service to New Jersey residents. On its own, Altice selected a monthly rate and billed customers at that rate. Initially, Altice prorated bills for customers who cancelled service mid-month. In October 2016, Altice altered its practice and stopped prorating bills for customers who cancelled service before the end of a month without notifying the BPU. Hundreds of customers complained to the BPU about not receiving a refund for cancelled service, which led to this enforcement action.

In 2019, finding that Altice failed to prorate customer bills in violation of N.J.A.C. 14:18-3.8, the 2011 Relief Order, and the 2016 Merger Order, the BPU ordered Altice to cease and desist from failing to prorate monthly bills; refund affected customers; remit a one-time contribution to the Altice Advantage Internet program; and audit billing records.

Altice appealed the BPU’s cease-and-desist order to the Appellate Division. Focusing solely on preemption grounds, the appellate court invalidated the order.

NJ Supreme Court’s Decision

The New Jersey Supreme Court reversed. “We hold that Section 543(a)(1) of the Cable Act does not preempt the proration requirement in N.J.A.C. 14:18-3.8. The regulation does not regulate ‘rates for the provision of cable service,’ but rather prevents cable companies from charging for cable service that customers have cancelled. The regulation does not set the “rate” that companies can charge. It simply protects cable users from paying for service they no longer want,” the court wrote. “Furthermore, contrary to Altice’s alternative argument, neither Altice nor its predecessor sought or received a BPU waiver from prorating cable bills.”

In finding that Section 543(a)(1) does not expressly preempt N.J.A.C. 14:18-3.8, the New Jersey Supreme Court emphasized that Section 543 of the Cable Act prohibits rate regulation in competitive cable system markets — it does not expressly prohibit proration of bills. According to the court, it reached this conclusion by “deriving ordinary meaning from the text of N.J.A.C. 14:18-3.8 and Sections 543(a)(1) and 552(d)(1) of the Cable Act.”

The New Jersey Supreme Court went on to explain that a “rate” is not only the price or the unit of utility service sold; it is the ratio of price to unit, writing:

Here, the challenged regulation does not even indirectly affect the actual rate Altice charges; rather, it prohibits applying the service rate to a period after a customer cancels cable service. Altice sets its own competitive marketplace “rate.” If Altice sets a hypothetical monthly rate of $100 for cable service, and a customer cancels service halfway through a thirty-day month, the proration regulation requires Altice to charge that customer $50 rather than $100 because the customer terminated the service mid-month. Altice’s rate remains the same, and the customer is charged a proportion of the rate price equal to the proportion of the month for which service was provided.

The New Jersey Supreme Court also emphasized that Altice sets its own competitive marketplace “rate.” Moreover, N.J.A.C. 14:18-3.8’s proration requirement does not “regulate” that rate — that is, it does not fix, establish, adjust, or control Altice’s rate. The regulation merely uses the rate that the cable provider sets to enforce a price proportional to the quantity of service provided. The court also rejected the notion that that proration impliedly creates a new daily “rate” for the month of termination.

Finally, the New Jersey Supreme Court rejected the argument that the BPU excused Altice from complying with N.J.A.C. 14:18-3.8’s proration requirement. In support, it noted that both the 2011 Relief Order and the 2016 Merger Order memorialize Altice’s acknowledgment that it was obligated to continue prorating customer bills under the consumer protection regulation in N.J.A.C. 14:18-3.8.

In light of its decision, the New Jersey Supreme Court reinstated the BPU’s cease-and-desist order without prejudice and remanded to the appellate court to resolve Altice’s remaining argument that the BPU failed to follow proper procedures in the enforcement action.

In State v. Andre Higgs (A-28-21/085863) (Decided March 30, 2023), the Supreme Court of New Jersey ruled that the trial court made three errors that warranted a new trial for Defendant Andre Higgs, who had been convicted of murder. One of the errors involved being denied access to an on-scene police officer’s internal affairs file to support the Defendant’s theory that the officer fired his firearm first, which led the Defendant to involuntarily fire the gun in his hand. The New Jersey Supreme Court held that to ensure that defendants in criminal trials are provided with the discovery necessary to adequately prepare for trial, they must be allowed, under certain circumstances, to access documents in law enforcement’s internal affairs files. The court also adopted a procedure to be used going forward.

 Facts of State v. Higgs

Defendant Andre Higgs (Defendant) was tried and convicted for the murder of Latrena May, with whom he had a romantic relationship and shared a child. On the evening of May’s death, the Defendant and May were arguing on her front porch when East Orange Police Officer Kemon Lee approached them after hearing a woman’s voice shout “police” several times while he patrolled the area.

Officer Lee testified that shortly after exiting his patrol car, he asked May to come down from the porch, but the Defendant began shooting May. Officer Lee returned fire and shot the Defendant several times. According to the Defendant’s version of events, May pulled out a gun during their argument, and the Defendant took the gun away from her. He maintained that he tried to surrender as Officer Lee approached, but the officer fired his weapon at the Defendant, which led to the involuntary discharge of the gun in his hand, causing May’s death.

Prior to trial, the Defendant sought access to Officer Lee’s internal affairs file, which included prior incidents of the officer firing his weapon while on duty. Defendant argued that the prior incidents were relevant to his defense that Officer Lee fired first. The trial court denied access to the file. The State then sought to bar defendant from cross-examining Officer Lee about any prior shootings and the trial court granted the State’s motion.

The State also sought to impeach the Defendant on cross-examination with his prior indictable convictions. Four judgments of conviction were over 20 years old at the time of trial and one was over 14 years old. The trial court granted the State’s request, finding that a disorderly persons offense seven years prior to the trial was sufficient to “bridge the gap” between the old convictions and the present matter.

At trial, video from Officer Lee’s dashcam was played for the jury during the testimony of Officer Lee, the Defendant, and Detective Kevin Green, who was not present at the scene of the shooting. Detective Green testified, over objection, that he believed the dashcam footage depicted a gun in the Defendant’s back waistband as Officer Lee’s patrol car approached.

The Defendant was convicted of murder, among other offenses, and sentenced to life imprisonment. On appeal, the Appellate Division affirmed the Defendant’s convictions and sentence, finding no error with the trial court’s rulings.

NJ Supreme Court Decision in State v. Higgs

The New Jersey Supreme Court reversed as to all three issues raised on appeal and ordered a new trial. 

The New Jersey Supreme Court first held that the trial court erred in not allowing the Defendant access to Officer Lee’s internal affairs records and not allowing defense counsel to cross-examine Officer Lee regarding his prior on-duty shootings. “To ensure that defendants in criminal trials are provided with the discovery necessary to adequately prepare for trial, defendants must be allowed, under certain circumstances, to access documents in law enforcement’s internal affairs files. This is consistent with the State’s obligation to produce exculpatory and impeachment evidence, as the Attorney General has conceded in this matter,” the court explained. “That does not, however, mean that defendants should have unbridled access to internal affairs records.”

Going forward, the New Jersey Supreme Court adopted the following procedures, as set forth in the opinion summary. First, a defendant who seeks discovery of information from an internal affairs file must first file a motion with the trial court requesting an in camera review of that file. The motion must identify the specific category of information the defendant seeks and the relevance of that information to the defendant’s case. A general allegation that the defendant is in search of information relevant to a law enforcement officer’s credibility for impeachment purposes would be insufficient to obtain review of the file.

In order for a trial court to grant a motion to conduct an in camera review of an internal affairs file, the defendant must point to a specific category or type of evidence and assert that the evidence, if present in the file, has a relevant nexus to an issue in the case. According to the New Jersey Supreme Court, it anticipates that many defendants will be in a position to meet the relevancy standard. The court expressly declined to adopt the more stringent “peculiar evidence” standard articulated in State v. Harris, 316 N.J. Super. 384 (App. Div. 1998).

If the trial court determines as a threshold matter that the requested information, if present in the internal affairs file, would be relevant to the defendant’s case — for impeachment purposes or to support the defense’s theory, for example — the trial court must grant the defendant’s motion and conduct an in camera review of the internal affairs records outside the presence of the parties. The in camera review by the trial court would be solely for the purpose of determining whether the category of identified information exists in the internal affairs file. If, upon review, the trial court determines that the requested information is present in the file, both parties shall be allowed to review the relevant portion of the file, subject to any protective orders entered by the trial court. If the evidence sought is present in the file and relevant to the case, the court must balance its relevance against potential undue prejudice, as required in N.J.R.E. 403, prior to allowing that evidence in at trial.

The New Jersey Supreme Court went on to find that because the defense argued that Officer Lee discharged his firearm first, defense counsel could potentially be allowed to explore Officer Lee’s history of past shootings on cross-examination. The court further held that, on remand, the Defendant is entitled to access the internal affairs file as outlined above, and that evidence may be used to cross-examine Officer Lee subject to any objections pursuant to N.J.R.E. 403 or 404(b).

The New Jersey Supreme Court next held that it was error pursuant to N.J.R.E. 701 to allow the lay opinion testimony of Detective Green regarding the image on the dashcam video. According to the court, Detective Green’s testimony was based entirely on his lay opinion from watching the video, which was impermissible under N.J.R.E. 701. Because the video was already in evidence, the jury was able to view the video and determine for themselves what the video showed. Finally, the New Jersey Supreme Court held that the trial court erred in admitting the Defendant’s remote convictions because the State did not meet its burden of establishing that the probative value outweighed the prejudicial effect of admitting the old convictions. “The prior convictions did not involve dishonesty, lack of veracity, or fraud,” the court said. “It was an error to admit the remote convictions.”

In State v. Joseph S. Macchia (A-49-21/086334) (Decided March 16, 2023), the Supreme Court of New Jersey held that juries are not required to unanimously agree on why they reject a claim of self-defense or explain their reasoning. The court’s decision was unanimous.

Facts of State v. Macchia

Defendant Joseph S. Macchia (Defendant), an off-duty police officer, fatally shot Michael Gaffney outside a bar during a fight. At trial, Defendant testified that he acted in self-defense, shooting Gaffney because he believed Gaffney was reaching for his service weapon.

Pursuant N.J.S.A. 2C:3-4(b)(2), the State had the burden to prove that defendant did not justifiably use lethal force in self-defense by showing: (1) defendant’s belief “that such force [was] necessary to protect himself against death or serious bodily harm” was not reasonable; (2) defendant “provoked the use of force against himself in the same encounter” “with the purpose of causing death or serious bodily harm”; or (3) defendant knew that he could retreat in “complete safety.”

The jury unanimously rejected defendant’s claim of self-defense and unanimously found defendant guilty of second-degree reckless manslaughter. The Appellate Division affirmed. On appeal to the New Jersey Supreme Court, the Defendant argued that he is entitled to a new trial because the trial court failed to instruct the jury that it needed to agree unanimously on which one or more of the three reasons led it to reject his claim of self-defense.

NJ Supreme Court Decision in State v. Macchia

The New Jersey Supreme Court held that the unanimous verdict rejecting self-defense was sufficient to sustain Macchia’s conviction for reckless manslaughter. In so ruling, it rejected his argument that the jury was also required to unanimously agree as to why it rejected Macchia’s claim of self-defense.

In reaching its decision, the New Jersey Supreme Court noted that there are two crucial distinctions between an element of an offense for juror-unanimity purposes and the disjunctive means by which the State can disprove an affirmative defense such as self-defense. First, while the State must prove every essential element of the crime, it only needs to only disprove a single factor or triggering circumstance to overcome a claim of self-defense. Second, it is generally the defendant, not the State, who controls the shape and direction of a self-defense claim. “Because the State is in an ‘inferior tactical position’ in trying to disprove a defense, it would be unreasonable to require the State ‘to present for the jury’s unanimous agreement a definitive set of facts, neatly synthesized in a unified theory, designed to explain why the defendant’s conduct was not justified,’” the court explained.

The New Jersey Supreme Court also emphasized that its holding is consistent with the approach of every other court to have considered the question.  “All have held that a jury need not unanimously agree on the underlying basis for rejecting self-defense; it need only unanimously agree that the prosecution disproved self-defense beyond a reasonable doubt,” the court wrote. The New Jersey Supreme Court further found that a specific unanimity charge was unnecessary since the state was not relying on conflicting theories or evidence. Based on all of the above, the court held that the trial court properly instructed the jury on the State’s burden in disproving self-defense and no specific unanimity charge was required.