In City of Austin, Texas v. Reagan National Advertising of Austin, LLC, the U.S. Supreme Court held that the City of Austin’s sign ordinance, which regulates “off-premises” signs more strictly than “on-premises” signs, was facially content-neutral. Accordingly, the Court remanded the case to the lower court to apply intermediate rather than strict scrutiny as the proper standard to apply to the legal challenge.

Challenge to Off-Premises Sign Ordinance

Like many municipalities across the United States, the City of Austin, Texas (City), specially regulates signs that advertise things that are not located on the same premises as the sign, as well as signs that direct people to offsite locations. These are known as off-premises signs. The City’s sign code at the time of this lawsuit prohibited construction of new off-premises signs. Grandfathered off-premises signs could remain in their existing locations as “nonconforming signs,” but could not be altered in ways that increased their nonconformity. On-premises signs were not similarly restricted. 

Respondents, Reagan National Advertising of Austin, LLC, and Lamar Advantage Outdoor Company, L.P., own billboards in Austin. When Reagan sought permits to digitize some of its billboards, the City denied its applications. Reagan filed suit in state court, alleging that the City’s prohibition against digitizing off-premises signs, but not on-premises signs, violated the First Amendment’s Free Speech Clause. The City removed the case to federal court, and Lamar intervened. 

The District Court held that the challenged sign code provisions were content-neutral under Reed v. Town of Gilbert, 576 U.S. 155 (2014), reviewed the City’s on-/off-premises distinction under intermediate scrutiny, and found that the distinction satisfied that standard. The Fifth Circuit Court of Appeals reversed, holding that the on-/off-premises distinction was facially content-based because a government official had to read a sign’s message to determine whether the sign was off-premises. The court then reviewed the City’s on-/off-premises distinction under strict scrutiny, and it held that the City failed to satisfy that onerous standard. 

Supreme Court’s Decision

By a vote of 6-3, the Supreme Court reversed the ruling by the Fifth Circuit Court of Appeals. The Supreme Court held that the distinction between on-premises signs and off-premises signs in the city’s sign code is facially content-neutral under the First Amendment and, therefore, subject to immediate scrutiny.

In reaching its decision, the Supreme Court found that the Court of Appeals’ interpretation of Reed—to mean that a regulation cannot be content-neutral if its application requires reading the sign at issue—is too extreme an interpretation of this Court’s precedent. “This rule, which holds that a regulation cannot be content-neutral if it requires reading the sign at issue, is too extreme an interpretation of this Court’s precedent. Unlike the regulations at issue in Reed, the City’s off-premises distinction requires an examination of speech only in service of drawing neutral, location-based lines. It is agnostic as to content,” Justice Sonia Sotomayor wrote. “Thus, absent a content-based purpose or justification, the City’s distinction is content-neutral and does not warrant the application of strict scrutiny.”

The Supreme Court further emphasized that unlike the sign code in Reed, the City’s sign ordinances do not single out any topic or subject matter for differential treatment. A sign’s message matters only to the extent that it informs the sign’s relative location. Thus, the City’s on-/off-premises distinction is more like ordinary time, place, or manner restrictions, which do not require the application of strict scrutiny. 

Justice Sotomayor further noted that the Court’s precedents and doctrines have consistently recognized that restrictions on speech may require some evaluation of the speech and nonetheless remain content neutral. “Most relevant here, the First Amendment allows for regulations of solicitation…To identify whether speech entails solicitation, one must read or hear it first,” she wrote.

The Court rejected Reagan’s argument that the City’s sign code defines off-premises signs on the basis of function or purpose and is therefore content-based and subject to strict scrutiny, concluding that this stretches Reed’s “function or purpose” language too far. “In other words, a regulation of speech cannot escape classification as facially content-based simply by swapping an obvious subject-matter distinction for a ‘function or purpose’ proxy that achieves the same result,” Justice Sotomayor wrote. “That does not mean that any classification that considers function or purpose is always content-based. Such a reading of ‘function or purpose’ would contravene numerous precedents.” 

Finally, the Court emphasized that the Supreme Court’s determination that the City’s ordinance is facially content-neutral does not end the First Amendment inquiry. “If there is evidence that an impermissible purpose or justification underpins a facially content-neutral restriction, for instance, that restriction may be content-based,” Justice Sotomayor explained. “Moreover, to survive intermediate scrutiny, a restriction on speech or expression must be ‘narrowly tailored to serve a significant governmental interest.’” The Court remanded the case to the lower court to review the ordinance under the proper standard.

Key Takeaway

The Supreme Court’s decision is good news for New Jersey municipalities. If the justices had determined that the ordinance was a content-based restriction, municipal sign ordinances making a distinction between on-/off-premises would be subject to strict scrutiny review and likely deemed unconstitutional under the First Amendment. Under intermediate scrutiny, municipalities must be prepared to demonstrate that a sign ordinance is drawn narrowly to advance a significant government interest.

If you have questions, please contact us

For more information about the Supreme Court’s decision or how your municipality may be impacted by the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group. 

In Kathleen M. Moynihan v. Edward J. Lynch (A-64-20/085157) (Decided March 8, 2022), the Supreme Court of New Jersey held that N.J.S.A. 25:1-5(h)’s provision compelling parties to seek the advice of counsel — and therefore retain counsel — before signing a palimony agreement violates the substantive due process guarantee of the New Jersey Constitution.

Facts of Moynihan v. Lynch

Plaintiff Kathleen Moynihan and defendant Edward Lynch were involved in a long-term “marital-style relationship.” The parties met in 1997 and developed a romantic relationship. In the beginning, Lynch occasionally slept at Moynihan’s home. In 2000, Moynihan and her children moved to a home in Bordentown. Moynihan made the down payment on the home, which Lynch purchased with a mortgage and titled in his name. The parties shared the financial responsibilities of the home. Over time, Lynch moved into the home and became more active in the life of the Moynihan family. The parties discussed marriage but never wed.

In 2007, Lynch placed the title of the home into a trust and named Moynihan as the beneficiary upon his death. In 2013, Lynch converted his ownership of the home into a joint tenancy with rights of survivorship, naming himself and Moynihan on the deed. Sometime between 2012 and 2014, the parties entered into a handwritten agreement drafted by Lynch, which provided that, within five years of vacating their jointly owned home, Lynch would pay off the mortgage, deed it over to Moynihan, pay her $100,000, and, within two years of vacating the home, pay the real estate taxes on the property for two years. In 2015, the parties parted ways, and Lynch refused to abide by their written agreement.

Moynihan filed a complaint seeking enforcement of the written agreement and an alleged oral palimony agreement that she claimed the parties had entered before the Legislature in 2010 amended N.J.S.A. 25:1-5 to include subparagraph (h). That amendment mandated that palimony agreements be reduced to writing and “made with the independent advice of counsel.” She challenged N.J.S.A. 25:1-5(h) on constitutional grounds and urged enforcement as a typical contract; alternatively, she sought enforcement of the agreement on equitable grounds. Lynch denied the existence of an oral palimony agreement and asserted that the written agreement was unenforceable because the parties did not receive the independent advice of counsel before entering it.

The trial court found that N.J.S.A. 25:1-5(h)’s attorney-review requirement did not contravene Moynihan’s constitutional rights. The court determined that the written agreement was not a palimony agreement but more akin to an “orderly removal” in a landlord/tenant matter and enforced the agreement. The court also found that the couple did not enter an enforceable oral palimony agreement. The Appellate Division reversed, but it upheld the finding that the parties did not reach an oral palimony agreement. The Court granted certification

NJ Supreme Court’s Decision in Moynihan v. Lynch

The New Jersey Supreme Court reversed the judgment of the Appellate Division enforcing the written agreement; however, it affirmed its judgment that sufficient credible evidence in the record supports the trial court’s finding that the parties did not enter an oral palimony agreement.

“We agree with the Appellate Division that Lynch and Moynihan signed a written palimony agreement. We also find that N.J.S.A. 25:1-5(h) did not retrospectively alter a preexisting contract and therefore did not constitute legislation impairing a contract,” Justice Barry T. Albin wrote. “We hold, however, that N.J.S.A. 25:1-5(h)’s attorney-review requirement contravenes the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution.”

As the Court explained,the Statute of Frauds generally requires that certain agreements be signed by the party against whom enforcement is sought. In 2010, the New Jersey Legislature amended the Statute to include palimony agreements. Prior to the amendment, New Jersey’s common law recognized that an unwed couple could enter into a palimony agreement and courts enforced oral palimony agreements involving “marital-type relationships” where one party induced the other to enter or remain in the relationship by a promise of support. Unlike other provisions of the Statute of Frauds, N.J.S.A. 25:1-5(h) includes a requirement that each party to the palimony agreement secure the “independent advice of counsel.”

As Justice Albin emphasized, no other law in this state conditions enforceability of an agreement between private parties on attorney review. Furthermore, none of the jurisdictions that enforce palimony agreements mandate that the parties consult with attorneys before entering into such agreements.

“N.J.S.A. 25:1-5(h) compels individuals to retain attorneys before they can enter a palimony agreement — a contract no more complicated than other family law or commercial contracts that do not require attorney review,” Justice Barry Albin wrote. “N.J.S.A. 25:1-5(h)’s attorney-review requirement interferes with an individual’s right of autonomy, singles out written palimony agreements from among all other agreements for differential treatment, and has no parallel in the legislative history of this state.”

The New Jersey Supreme Court went on to strike down the attorney-review requirement, concluding that it infringes on the right of personal autonomy — the right to make decisions without the compelled participation of an attorney.

“The State generally cannot compel a person to accept counsel in a criminal or civil case. Because individuals generally have a constitutional right to represent themselves in our criminal and civil courts, it follows that generally they can enter a contract no more complex than others without an attorney. The attorney-review requirement also unduly burdens those who cannot afford counsel — those with little or no income — denying them the opportunity to enter contracts available to their more affluent counterparts,” Justice Albin wrote. “No sound reason has been given for the public need to compel attorney review of palimony agreements to the exclusion of all other agreements. We therefore conclude that N.J.S.A. 25:1-5(h)’s provision compelling parties to seek the advice of counsel — and therefore retain counsel — before signing a palimony agreement violates the substantive due process guarantee of our State Constitution.”

The New Jersey Supreme Court went on to strike down the attorney-review requirement in N.J.S.A. 25:1-5(h). “In light of the nature and importance of the right of willing parties to enter palimony agreements without the burden of attorney participation, we conclude that the imposition of an attorney review requirement is an arbitrary government restriction that contravenes Moynihan’s substantive due process rights,” Justice Albin wrote. 

Under the court’s decision, alimony agreements must still be in writing and signed, if not by both parties, at least by the party against whom the agreement is to be enforced. The New Jersey Supreme Court enforced the palimony agreement as written in this case. It further found sufficient credible evidence in the record supports the trial court’s determination that Lynch did not make an explicit or implied oral promise to support Moynihan for life. Accordingly, the parties did not have an oral palimony agreement before 2010.

In State v. Anthony Sims, Jr. (A-53-20/085369) (Decided March 16, 2022), the New Jersey Supreme Court rejected an Appellate Division ruling requiring police officers, prior to interrogation, to inform an arrestee of the charges that will be filed against him, even when no complaint or arrest warrant has been issued identifying those charges. According to the New Jersey Supreme Court, the expansion of the rule stated in State v. A.G.D., which required law enforcement officers to inform a suspect that a criminal complaint has been filed or arrest warrant has been issued before interrogating him, is “unwarranted and impractical.”

Facts of State v. Sims

Defendant Anthony Sims, Jr. challenges his conviction of attempted murder and weapons offenses arising from the April 9, 2014 shooting of a twenty-eight-year-old man, P.V., outside his grandmother’s home. On April 13, 2014, four days after the shooting, detectives went to the hospital and met with P.V., who identified defendant as the man who shot him in a recorded statement. On April 14, 2014, prior to the issuance of any complaint or warrant or the filing of formal charges against defendant, detectives arrested defendant and conducted a videorecorded interview.

Defendant was read his Miranda rights and he waived those rights. In an interview that lasted just over two hours, defendant gave a statement in which he said that he knew P.V., that he was aware of the shooting, and that his girlfriend owned a vehicle that matched the description of a vehicle observed near the scene of P.V.’s shooting. Defendant denied that he was involved in the shooting.

Defendant moved to suppress his April 14, 2014 statement to police. Based on the totality of the circumstances, the trial court held that defendant’s waiver of his Miranda rights was knowing and voluntary, and accordingly denied defendant’s motion.

The Appellate Division vacated defendant’s convictions and remanded for a new trial. A divided panel held that the police officers who interrogated defendant violated his Miranda rights. The Appellate Division majority relied on the New Jersey Supreme Court’s decision in State v. A.G.D., 178 N.J. 56 (2003), in which the court held that a Miranda waiver is invalid if police do not inform a defendant that a criminal complaint has been filed or an arrest warrant has been issued against him. It also invoked the New Jersey Supreme Court’s decision in State v. Vincenty, 237 N.J. 122, 134 (2019), in which it held that if charges have been filed against a suspect prior to his interrogation, law enforcement officers should provide him with a “simple declaratory statement” identifying those charges before questioning him.

The Appellate Division majority construed A.G.D. and Vincenty to require that a defendant who has been arrested “be advised of the ‘actual’ and ‘specific’ charges he is facing,” whether or not any such charges have been formally filed.” It reasoned that a defendant, “[o]nce arrested,” must be “informed of the charge for which he was being placed under arrest before deciding whether to waive his right against self-incrimination.” The Appellate Division majority held that “in response to defendant’s inquiry as to whether he was arrested, the interrogating officers not telling defendant the charges for which he was arrested did not satisfy the requirements of A.G.D. and Vincenty.”

NJ Supreme Court’s Decision in State v. Sims

The New Jersey Supreme Court reversed. In so ruling, it rejected the new rule prescribed by the Appellate Division .

As the New Jersey Supreme Court explained, in State v. A.G.D., it departed from the totality-of-the-circumstances rule and required law enforcement officers to inform a suspect that a criminal complaint has been filed or arrest warrant has been issued before interrogating him. The court reasoned that the failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights.

“The rule announced in A.G.D. is clear and circumscribed. If a complaint-warrant has been filed or an arrest warrant has been issued against a suspect whom law enforcement officers seek to interrogate, the officers must disclose that fact to the interrogee and inform him in a simple declaratory statement of the charges filed against him before any interrogation,” the court explained. “The officers need not speculate about additional charges that may later be brought or the potential amendment of pending charges.”

The New Jersey Supreme Court went on to find that the Appellate Division’s expansion of the rule stated in A.G.D. is “unwarranted and impractical.” As the court explained:

The principle stated in A.G.D. stands in stark contrast to the Appellate Division’s expanded definition of an arrestee’s Miranda rights. The Appellate Division’s rule relies not on an objective statement of the charges pending against the arrestee, but on an officer’s prediction, based on information learned to date in a developing investigation, of what charges may be filed.

The New Jersey Supreme Court also raised concern that an officer acting in good faith might inadvertently misinform an arrestee as to the charges that he will eventually face. “We do not share the Appellate Division’s conclusion that law enforcement officers can resolve any ambiguities or disputes about charging decisions before a judicial officer has reviewed the showing of probable cause and issued a complaint-warrant or arrest warrant,” the court wrote.

The New Jersey Supreme Court also rejected the argument that failing to adopt the Appellate Division’s new rule, law enforcement officers will deliberately delay seeking a complaint-warrant or arrest warrant in order to avoid disclosing to an arrestee the charges that he faces. “In a case in which there is evidence of such bad-faith conduct on the part of law enforcement officers, the trial court should consider such conduct as part of the totality-of-the-circumstances test,” the court wrote. “The potential for improper conduct by law enforcement to evade A.G.D. and Vincenty, however, does not justify abandoning the core principles of those decisions.” Based on the foregoing, the New Jersey Supreme Court affirmed the trial court’s application of the totality-of-the- circumstances standard to deny defendant’s motion to suppress his statement. According to the court, the Defendant was read his Miranda rights and waived those rights verbally and in writing.

Police officers accused of misconduct do not have an automatic right to appeal an order denying qualified immunity in an action under the New Jersey Civil Rights Act (NJCRA), according to a recent decision by the Supreme Court of New Jersey. Rather, a defendant seeking to challenge a trial court’s order denying qualified immunity prior to final judgment must proceed by motion for leave to file an interlocutory appeal in accordance with Rules 2:2-4 and 2:5-6. As the New Jersey Supreme Court’s decision in Harris v. City of Newark highlights, New Jersey law continues to differ from federal law, which does allow for interlocutory appeals on this issue.

Assertion of Qualified Immunity

Plaintiff Hamid Harris (Plaintiff or Harris) alleged that Donald Stabile, a Newark Police Department detective, falsely accused him of four armed robberies and unlawfully arrested him in connection with those robberies based on an improperly issued arrest warrant. After the charges against Harris were dismissed, he filed a lawsuit under the NJCRA alleging claims against Stabile for false arrest, false imprisonment, and malicious prosecution and an NJCRA claim against Stabile and Newark police officer Angel Romero (collectively, the “Defendants”) for civil rights conspiracy. The Defendants asserted the defense of qualified immunity to those claims and moved for summary judgment.

The doctrine of qualified immunity “shields law enforcement officers from personal liability for civil rights violations when the officers are acting under color of law in the performance of official duties,” unless the officers’ “performance is not objectively reasonable.” Qualified immunity can be asserted as a defense against actions brought under the NJCRA, as well as federal causes of action for a violation of civil rights under 42 U.S.C. § 1983.

Nonetheless, the trial court found that the Defendants were not entitled to qualified immunity because Stabile did not have probable cause to arrest the Plaintiff, and because Stabile’s belief that the Plaintiff committed the robberies was objectively unreasonable. The Defendants subsequently filed a notice of appeal, asserting that Rule 2:2-3(a)(3) authorized them to appeal as of right the trial court’s decision denying qualified immunity. They also moved for leave to file an interlocutory appeal pursuant to Rule 2:5-6. The Appellate Division ruled that “[t]he appeal is interlocutory as it is not from a final order” and dismissed the defendants’ notice of appeal.

NJ Supreme Court Rejects Appeal as of Right

The New Jersey Supreme Court affirmed. It held that because the trial court’s order was a decision premised on factual findings as well as legal conclusions, it was not an exclusively legal determination. Thus, the trial court’s order rejecting as a matter of law a claim of qualified immunity should not be designated as a final order appealable as of right under Rule 2:2-3(a).

“We view the trial court’s order in this case to be a decision premised on factual findings as well as legal conclusions, not an exclusively legal determination,” Justice Anne Patterson wrote. “We conclude that a trial court’s order rejecting as a matter of law a claim of qualified immunity should not be designated as a final order appealable as of right under Rule 2:2-3(a), and that federal law does not require the contrary result. In an NJCRA action, a defendant seeking to challenge a trial court’s order denying qualified immunity prior to final judgment must proceed by motion for leave to file an interlocutory appeal in accordance with Rules 2:2-4 and 2:5-6.”

As the New Jersey Supreme Court explained, the application of the defense of qualified immunity is generally a legal question for the court rather than the jury that should be raised before trial. New Jersey case law, however, recognizes an exception to the rule that qualified immunity issues are legal issues to be decided by the court when the case involves disputed issues of fact. In this case, the court found that the trial court’s denial of summary judgment was premised on factual disputes as well as the court’s legal conclusions; thus, it was not an exclusively legal determination. In support, the New Jersey Supreme noted that the trial court identified factual disputes regarding the Plaintiff’s false arrest and false imprisonment civil rights claims and witnesses’ identifications of the Plaintiff, and the court stated that those factual disputes precluded summary judgment on the issue of qualified immunity.

With regard to whether a trial court’s purely legal determination denying qualified immunity should be appealable as of right under Rule 2:2-3(a), the New Jersey Supreme Court declined to add legal determinations denying the defense of qualified immunity to the narrow class of interlocutory orders subject to direct appeal under Rule 2:2-3(a). In reaching its decision, the court emphasized that a motion for leave to appeal pursuant to Rules 2:2-4 and 2:5-6 provides a meaningful opportunity for interlocutory appellate review and protects the public entity’s interest in avoiding trial costs and potential liability. Additionally, it concluded that the New Jersey Legislature’s purpose in enacting the NJCRA would not be advanced by appeal as of right.

The New Jersey Supreme Court also rejected the Defendants’ contention that federal law mandates an appeal as of right from a legal determination rejecting qualified immunity. In support, it cited that a state may adopt or reject the collateral order doctrine even in actions brought in state court under 42 U.S.C. § 1983, and is “clearly free” to adopt or reject that doctrine in state court actions premised on state civil rights statutes such as the NJCRA.

“In our view, applying the collateral order doctrine to NJCRA claims would engender substantial delay in the resolution of civil rights litigation, encourage piecemeal litigation, and undermine judicial economy,” Justice Patterson wrote. “We view our current appellate procedure to effectively balance the interests of the parties and promote judicial economy in NJCRA actions. We decline to adopt the collateral order doctrine for such claims.”

The New Jersey Supreme Court also disagreed with the Defendants’ contention that Rule 2:2-3(a), as applied to the case, is preempted by federal law. “Rule 2:2-3(a) does not determine the outcome of this appeal, let alone raise the specter of inconsistent dispositions of civil rights claims in state and federal court,” Justice Patterson wrote. “The Rule does nothing more than affect the procedure for and timing of the defendants’ appeal of the trial court’s order denying qualified immunity, which is subject to discretionary appellate review under Rule 2:2-4 and to an appeal as of right after a final judgment under Rule 2:2-3(a).”

Key Takeaway

Under the New Jersey Supreme Court’s decision in Harris v. City of Newark, a defendant seeking to challenge a trial court’s order denying qualified immunity prior to final judgment in an NJCRA action must proceed by motion for leave to file an interlocutory appeal in accordance with Rules 2:2-4 and 2:5-6.

In Aleice Jeter v. Sam’s Club (A-2-21/085880) (Decided March 17, 2022), the Supreme Court of New Jersey clarified when the “mode of operation” rule applies. Under the “mode of operation” rule, plaintiffs who bring premises liability claims against businesses that employ self-service models do not need to show that the business owner had actual or constructive knowledge of a dangerous condition to establish negligence. The New Jersey Supreme Court ultimately held that the rule does not apply to the sale of grapes in closed clamshell containers because selling grapes in this manner does not create a reasonably foreseeable risk that grapes will fall to the ground in the process of ordinary customer handling

Facts of Jeter v. Sam’s Club

Plaintiff Aleice Jeter brought suit against Sam’s Club after sustaining injuries when she slipped on one or more grapes in the Linden, New Jersey store. At Sam’s Club, grapes are sold in closed clamshell containers secured with tape; accordingly, Sam’s Club filed a motion in limine on the eve of trial to bar plaintiff from requesting a mode of operation jury instruction.

The trial court conducted an N.J.R.E. 104(a) hearing and determined that the mode of operation rule did not apply. It reasoned that because Sam’s Club “elected to sell grapes, not loosely, but in containers, that will certainly be less of a danger.” The court then analyzed the case under traditional negligence principles. After that sua sponte review, the court concluded there was no evidence to support actual or constructive knowledge of the alleged dangerous condition. The court therefore dismissed the case, even though Sam’s Club had not filed a motion for summary judgment. The Appellate Division affirmed the trial court’s judgment.

NJ Supreme Court’s Decision in Jeter v. Sam’s Club

The New Jersey Supreme Court also affirmed. “We agree with the trial and appellate courts that the mode of operation rule does not apply to the sale of grapes in closed clamshell containers,” Justice Lee Solomon wrote. “Selling grapes in this manner does not create a reasonably foreseeable risk that grapes will fall to the ground in the process of ordinary customer handling.”

While it upheld the trial court’s judgement, the New Jersey Supreme Court found that “the procedure followed by the trial court is troubling and should not be repeated,” emphasizing that it was improper for the trial judge to convert an untimely motion in limine into a motion for summary judgment. As Justice Solomon explained, “Dispositive motions should not be made or decided on the eve of trial, without providing the parties with a reasonable opportunity to present their cases through testimony and argument. The trial court should not have reached the merits of plaintiff’s traditional negligence claim on its own and without giving the parties any further opportunity to present evidence in support of their positions.”

With regard to the substantive issues of the case, Justice Solomon explained that mode of operation is a judicially created rule that relieves a plaintiff of the burden of proving actual or constructive notice of a dangerous condition in circumstances in which, as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents. He went on to note that in Prioleau v. Ky. Fried Chicken, 223 N.J. 245, 248 (2015), the court reaffirmed that the rule is limited to the self-service setting, where customers are independently handling merchandise without the assistance of employees. In Prioleau, the court further clarified that the rule applies wherever “there is a nexus between self-service components of the defendant’s business and a risk of injury in the area where the accident occurred,” and whether the injury resulted from employee handling, customer negligence, or the “inherent qualities of the merchandise itself.”

Applying the above legal principles, the New Jersey Supreme Court concluded that the mode of operation rule did not apply to the sale of grapes in closed clamshell containers. In support, the court cited that Sam’s Club is a self-service business. While there was geographic proximity between plaintiff’s fall and the self-service sale of grape containers, the court noted that Sam’s Club permitted only the self-service sale of pre-packaged sealed grape containers, not grapes, on the display.

The New Jersey Supreme Court also found it compelling that Sam’s Club elected not to sell grapes in open-top, vented plastic bags, like those found to create a foreseeable risk of spillage in Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 561, 566 (2003), and found no nexus between plaintiff’s fall on grapes and Sam’s Club’s self-service sale of grape containers. The court was not persuaded by the argument that Sam’s Club knew its customers occasionally opened the grape containers in the store because the clamshell package itself was secure and because customers were not permitted to open the containers — doing so was tampering with the product. 

In Rivera v. Union County Prosecutor’s Office (A-58-20/084867) (Decided March 14, 2022), the Supreme Court of New Jersey held that the Open Public Records Act (OPRA) does not permit access to internal affairs reports, but those records can and should be disclosed under the common law right of access — subject to appropriate redactions — when interests that favor disclosure outweigh concerns for confidentiality. The New Jersey Supreme Court went on to provide guidance on how to conduct that balancing test.

Facts of Rivera v. Union County Prosecutor’s Office

In February 2019, an attorney made a complaint to the Union County Prosecutor’s Office on behalf of employees of the Elizabeth Police Department. The complaint alleged that Police Director James Cosgrove, the civilian head of the Department for more than two decades, used racist and sexist language to refer to employees on multiple occasions. In response, the Prosecutor’s Office conducted an internal affairs investigation. On April 16, 2019, the Office sustained the complaints; ten days later, the Attorney General issued a public statement describing the investigation and its conclusion and calling upon Cosgrove to resign, which he did.

In July 2019, plaintiff Richard Rivera filed a request for records with the Prosecutor’s Office based on OPRA and the common law. As relevant here, plaintiff asked for “all internal affairs reports regarding” Cosgrove. The Prosecutor’s Office denied the request on the ground that it was “exempt from disclosure under OPRA” and not subject to disclosure under the common law.

Plaintiff filed a complaint in 2019 against the Prosecutor’s Office and its records custodian, relying on OPRA and the common law. The Prosecutor’s Office answered, citing the need for confidentiality based on witnesses’ expectations of privacy and the need to preserve the Office’s ability to gather facts in similar investigations. The City of Elizabeth intervened and likewise stressed the importance of confidentiality, noting that witnesses’ identities could be determined even with redactions and that disclosure would make it less likely that employees would report alleged workplace policy violations.

The trial court concluded the internal affairs report should be made available under OPRA. The Appellate Division reversed, finding that the requested materials were not exempt as “personnel records” under OPRA (N.J.S.A. 47:1A-10), but that they could not be disclosed under OPRA on other grounds (N.J.S.A. 47:1A-1, -9(a) and (b)). Next, the Appellate Division rejected plaintiff’s common law claim, determining that defendant’s interest in preventing disclosure outweighed plaintiff’s right to the documents.

NJ Supreme Court’s Decision in Rivera v. Union County Prosecutor’s Office

The New Jersey Supreme Court reversed. It held that OPRA does not permit access to internal affairs reports, but those records can and should be disclosed under the common law right of access — subject to appropriate redactions — when interests that favor disclosure outweigh concerns for confidentiality. The court further found that the internal affairs report at issue in the case should be disclosed after the trial court reviews it and redacts parts that raise legitimate confidentiality concerns.

Writing on behalf of the New Jersey Supreme Court, Chief Justice Stuart Rabner first addressed whether internal affairs reports are exempt under OPRA. The court concluded that IA reports are exempt from public disclosure pursuant to Section 9(b) of OPRA, which states that OPRA “shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law.”

In reaching its decision, the New Jersey Supreme Court noted that the Attorney General’s Internal Affairs Policy and Procedures manual (IAPP), which was first issued in 1991, addresses complaints of police misconduct. The IAPP contains a confidentiality provision that only allows for disclosure in certain limited circumstances. In 1996, the Legislature enacted N.J.S.A. 40A:14-181, which directs all law enforcement agencies to “adopt and implement guidelines which shall be consistent with the” IAPP manual. As Chief Justice Rabner explained, “section 181, a statute, effectively recognizes a grant of confidentiality established by the IAPP, and OPRA may not abrogate that grant of confidentiality.”

Chief Justice Rabner next turned to the common law right of access, noting that the Court has previously looked to the common law to consider the release of law enforcement records that were not accessible under OPRA. He went on to explain the difference between OPRA and the common law right of access and emphasized that a requestor must make a greater showing than OPRA requires when seeking documents under the common law right of access. As set forth in N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229 N.J. 541, 578 (2017), the requestor must establish an interest in the subject matter of the material; and the requestor’s right to access must be balanced against the State’s interest in preventing disclosure.

In Loigman v. Kimmelman, 102 N.J. 98 (1986), the New Jersey Court identified six factors to consider in balancing those interests. However, as Chief Justice Rabner noted, they largely examine only one side of the test — the need for confidentiality — which “should be balanced [against] the importance of the information sought to the plaintiff’s vindication of the public interest.”

In Rivera, the New Jersey Supreme Court provided guidance regarding the second half of the balancing test as applied to IA records. It advised that the public interest in transparency may be heightened in certain situations depending on a number of considerations, including: (1) the nature and seriousness of the misconduct; (2) whether the alleged misconduct was substantiated; (3) the nature of the discipline imposed; (4) the nature of the official’s position; and (5) the individual’s record of misconduct.

Applying the above factors, the New Jersey Supreme Court found that the public interest in disclosure is great. “As someone at the highest echelon of the department, [Cosgrove’s] behavior had the capacity to influence others and set the tone for the department,” Chief Justice Rabner wrote. “His position could also cast doubt on the department’s internal affairs process and its ability to monitor itself, and raise questions about whether others knew what was happening.”

He added: “Racist and sexist conduct by the civilian head of a police department violates the public’s trust in law enforcement. It undermines confidence in law enforcement officers generally, including the thousands of professionals who serve the public honorably.”

Based on the foregoing, the New Jersey Supreme Court concluded that the IA report should be disclosed after the trial court reviews it and redacts parts that raise legitimate confidentiality concerns.

In Libertarians for Transparent Government v. Cumberland County, (A-34-20/084956) (Decided March 7, 2022), the Supreme Court of New Jersey held that a settlement agreement between a former corrections officer and his employer, defendant Cumberland County, may be disclosed under the Open Public Records Act (OPRA), subject to redaction. According to the court, the settlement agreement fell under OPRA’s exception under which “an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension” is considered a government record.

Facts of Libertarians for Transparent Government v. Cumberland County

In October 2017, a woman incarcerated at the Cumberland County Jail filed a lawsuit against the County and several corrections officers, including Tyrone Ellis, alleging she had been forced to engage in non-consensual sex acts on a regular basis.

To learn more about the allegations, plaintiff Libertarians for Transparent Government (Libertarians) obtained minutes of the public meeting of the Board of the Police and Firemen’s Retirement System at which the Board considered Ellis’s application for special retirement. According to the minutes, the County originally sought to terminate Ellis, who had been charged with a disciplinary infraction. When he submitted his resignation, the County warned that it intended to continue to prosecute the disciplinary matter. Ellis, in turn, “agreed to cooperate” with the County’s investigation of four other officers suspected of similar misconduct. “As a result of his cooperation, Cumberland County agreed to dismiss the disciplinary charges and permit Mr. Ellis to retire in good standing” with a reduced pension.

Libertarians sent the County an OPRA request seeking the settlement agreement and Ellis’s “name, title, position, salary, length of service, date of separation and the reason therefor’ in accordance with N.J.S.A. 47:1A-10.” The County declined to produce the settlement agreement, claiming it was a personnel record exempt from disclosure. In response to the request for information, the County stated in part that “Officer Ellis was charged with a disciplinary infraction and was terminated.”

Libertarians filed a complaint in Superior Court, and the trial court ordered the County to provide a redacted version of the settlement agreement. The County appealed, and the Appellate Division reversed the trial court’s judgment.

NJ Supreme Court’s Decision in Libertarians for Transparent Government v. Cumberland County

The New Jersey Supreme Court reversed, reinstating the trial court’s order. “Most personnel records are confidential under OPRA. But under the law’s plain language, certain items qualify as a government record including a person’s name, title, ‘date of separation and the reason therefor,’” the court wrote. “To the extent that information appears in a settlement agreement, the record should be available to the public after appropriate redactions are made.”

As the court explained, the appeal turns on the first exception to Section 10 of OPRA, which addresses personnel records. While most personnel records are exempt from disclosure under the law, the statute has three exceptions. The exception relevant to the case states: “an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record.”

According to the court, “a plain reading of the text calls for disclosure of a settlement agreement that contains such information once the document has been redacted.” The court further explained:

Section 10 can also be analyzed in a more nuanced way that leads to the same outcome. The provision exempts personnel records, including records relating to a grievance, from disclosure. Ibid. Yet section 10 also provides an exception to that exemption by declaring that a person’s “date of separation and the reason therefor,” along with certain other details, constitute a “government record.” Ibid. Either way, records that contain those details, kept by a public agency, must be made available for inspection with appropriate redactions.

The New Jersey Supreme Court further held that other OPRA exemptions raised by the County do not prevent disclosure either. “OPRA safeguards an individual’s personal information when disclosure would violate a person’s reasonable expectation of privacy,” the court wrote. “Section 10, once again, specifically calls for the release of the information sought here, and any additional exempt or confidential information would be subject to redaction.”

The New Jersey Supreme Court also emphasized that its reading of the statute comports with OPRA’s command to construe the statute “in favor of the public’s right of access.”

“OPRA enables the public to play a role in ‘guarding against corruption and misconduct.’ This case underscores those principles,” the court wrote. “In response to plaintiff’s OPRA request, the County stated that Ellis was terminated because of his misconduct as a corrections officer. The trial judge, who reviewed the settlement agreement in-camera, called the statement a misrepresentation. In reality, according to the minutes of the Retirement Board, after Ellis admitted that he had ‘inappropriate relationships with two inmates,’ he was allowed to retire in good standing with only a partial forfeiture of his pension. Without access to actual documents in cases like this, the public can be left with incomplete or incorrect information.”

The New Jersey Supreme Court recently clarified when police internal affairs (IA) reports must be disclosed to the public under both the Open Public Records Act (OPRA) and the common law right of access. The court ultimately concluded that while OPRA does not permit access to internal affairs reports, records can and should be disclosed under the common law right of access — subject to appropriate redactions — when interests that favor disclosure outweigh concerns for confidentiality. 

The decision in Rivera v. Union County Prosecutor’s Office is very important for all municipalities because it suggests that not only will law enforcement agencies be forced to be more transparent, but they might also have to rethink the way they discipline employees given the heightened potential for public access and criticism…

The full version of this article was originally posted on Scarinci Hollenbeck’s website. View the full article here: https://scarincihollenbeck.com/client-alert/nj-supreme-court-decision-on-disclosure-of-ia-records

Print version of the full article can be found here: https://res.cloudinary.com/scarinci-hollenbeck/images/v1647541189/wp.scarincihollenbeck/03-17-2022-Dettmer-and-Teijido-Client-Alert/03-17-2022-Dettmer-and-Teijido-Client-Alert.pdf?_i=AA

In State v. Christopher Radel (A-44-20) and State v. Keith Terres (A-45-20) (Decided January 20, 2022), the Supreme Court of New Jersey held that when an arrest occurs outside a home, the police may not enter the dwelling or conduct a protective sweep in the absence of a reasonable and articulable suspicion that a person or persons are present inside and pose an imminent threat to the officers’ safety.

Facts of the Cases

In both cases, police officers, armed with arrest warrants, apprehended the suspects outside of homes — defendant Christopher Radel as he carried laundry to his car parked in his driveway, and Tyler Fuller as he was brought to the ground on the front porch of defendant Keith Terres’s mobile home from which he had fled.

In the Radel case, the officer in charge ordered a protective sweep of 81 Browertown for purposes of officer safety because there were weapons and other persons “potentially on the property.” Sergeant Robert Prall came to that conclusion because two vehicles were parked in the driveway; the home’s windows had coverings, obstructing a view into the residence; the blue-jacketed person the other sergeant observed in the backyard may not have been the same person who exited the front door; and the order directed the officers to retrieve the firearms.

During the approximately five-minute sweep, no one was found inside. In carrying out the sweep, however, the officers observed in plain view imitation firearms, butterfly knives, hatchets, bows and arrows, a ballistic vest, simulated police identification badges, marijuana, drug paraphernalia, a glass pipe, and a safe capable of storing firearms.

In the Terres case, police seeking to arrest Tyler Fuller struggled with and arrested two other men, one of whom informed them that Fuller might be in Keith Terre’s trailer with another male. Once there, the detectives split up to cover different sides of the trailer. Peering through one of the trailer’s windows, one observed Fuller and told him to get to the ground and that he was under arrest. Disobeying that command, Fuller ran through the front door. He was intercepted by an officer, who got Fuller face down and handcuffed on the trailer’s deck within five feet of the door and attempted to pull a hypodermic needle from Fuller’s pants pocket.

Another detective shouted into the trailer, commanding that anyone inside was to come to the front door. With no response, he stepped into the trailer and saw a cross bow hanging inside and arrows scattered about. He conducted a quick search of each room for the presence of the other man mentioned earlier. During the sweep, the detective observed behind a washer and dryer a three- to four-foot wide and three-foot deep hole in the floor partially covered by plywood. The hole appeared large enough for a person to hide under the residence. When the detective looked into the hole, he saw a handgun and the barrels of either shotguns or rifles. He did not touch any of the weapons. The sweep of the trailer lasted approximately three to five minutes.

The trial judges presiding over those cases denied defendants’ motions to suppress the evidence uncovered during the protective sweeps. In the Radel case, the Appellate Division reversed, finding that the protective sweep did not pass constitutional muster. In the Terres case, the Appellate Division affirmed, concluding that officer safety justified an immediate protective sweep.

NJ Supreme Court’s Decision

The New Jersey Supreme Court affirmed the Appellate Division’s decisions. “The two cases before us present bookends — one in which a protective sweep was not warranted, the Radel case, and the other in which a sweep was constitutionally justified, the Terres case,” Justice Barry Albin wrote on behalf of the unanimous court.

The New Jersey Supreme Court first held that “when an arrest occurs outside a home, the police may not enter the dwelling or conduct a protective sweep in the absence of a reasonable and articulable suspicion that a person or persons are present inside and pose an imminent threat to the officers’ safety.”

“Entering a home to conduct a protective sweep when an arrest is made outside a dwelling should be the rare circumstance, in light of the special constitutional protections afforded the home,” Justice Albin explained. “Nevertheless, when objective facts provide the police with a reasonable and articulable suspicion that their lives may be placed in imminent danger by a person or persons inside the home, officers will be justified in entering the dwelling to carry out a protective sweep to safeguard their lives.”

The New Jersey Supreme Court went on to explain that “[t]his sensible balancing of the fundamental right to privacy in one’s home and the compelling interest in officer safety will depend on an objective assessment of the particular circumstances in each case.” According to the court, some factors that may be considered in determining whether a protective sweep is justified when an arrest is made outside the home are (1) whether the police have information that others are in the home with access to weapons and a potential reason to use them or otherwise pose a dangerous threat; (2) the imminence of any potential threat; (3) the proximity of the arrest to the home; (4) whether the suspect was secured or resisted arrest and prolonged the police presence at the scene; and (5) any other relevant circumstances. Entry into the home and a protective sweep cannot be based on a self-created exigency by the police.

The New Jersey Supreme Court went on to apply the above principles to determine whether the protective sweeps in the Radel and Terres were constitutional. In Radel, the court found that the protective sweep was not justified. In support, the court noted that the police executed a controlled arrest in the driveway — a distance from the home’s entrance — with watchful eyes on the front and rear doors of the house. It also emphasized that officers did not face a discernible threat and had no specific information that another person was in the house, nor was there information from which they could reasonably infer that someone inside posed an imminent danger. “Nothing unforeseeable occurred at the scene; no danger arose that mandated an entry of the home without a warrant,” Justice Albin wrote.

On the other hand, in Terres, the New Jersey Supreme Court found that there was a reasonable basis for entry into the home based on a “very real and potential danger.” As Justice Albin explained, the officers on the scene faced “unexpected and fast-evolving circumstances that signaled danger and the need for prompt action to safeguard their lives.” He added; “The officers received a warning to be careful and that another male was with Fuller in Terres’s trailer — a clear signal of a potential threat; they had been told that Fuller was staying in a building where loose bullets and shell casings were observed; Fuller fled the trailer when he was arrested within feet of the open front door; and the situation was fluid and not stabilized as Trooper Hershey attempted to retrieve a hypodermic needle from Fuller’s pocket.”

New Jersey’s state-level vaccine mandates continue to hold up against legal challenges. On February 11, 2022, the Appellate Division upheld Governor Phil Murphy’s vaccination mandate that applies to all State and County Correctional Police Officers. Four days later, the Supreme Court of New Jersey denied the New Jersey State Police Benevolent Association’s (PBA) request to stay the order in New Jersey State Policemen’s Benevolent Association v. Murphy.

Facts of the Case

On January 19, 2022, Governor Murphy issued Executive Order 283, which imposes a vaccination mandate for all workers in “covered high-risk congregate settings,” including jails and prisons. The order requires covered workers – absent the approval of an application for an exemption – to obtain their “first dose of the primary series” of a COVID-19 vaccine by February 16, 2022, and to submit proof “that they are up to date with their COVID-19 vaccinations by March 30, 2022, or within 3 weeks of becoming eligible for a booster dose, whichever is later.” The order also requires “covered settings” to establish a disciplinary process for non-compliance that may include termination from employment.

Executive Order 283 also requires “covered settings” to continue mandating regular testing for workers already subject to testing under Executive Order 252 until the submission of sufficient proof of vaccination. Executive Order 283 (EO 283) does not mandate testing after proof of vaccination is submitted, but it does not foreclose it. The order states that of the many driving forces behind these requirements was the desire to raise the protective floor through vaccinations for “congregate and health care settings because of the significant risk of spread and vulnerability of the populations served.”

EO 283’s vaccination mandate prompted the New Jersey State Police Benevolent Association (PBA) and the New Jersey Superior Law Enforcement Association (SOA), on behalf of their memberships, to appeal to the Appellate Division, arguing the Governor: lacked the authority to mandate vaccinations; acted arbitrarily by failing to adequately tailor the executive order to the magnitude of the emergency; failed to comply with statutory procedural requirements; and violated the constitutional rights of its’ members.

Appellate Division’s Decision

The Appellate Division dismissed the appeal, holding that Gov. Murphy was well within his authority when issuing EO 283. 

“It is beyond rational dispute that the Governor possessed the authority to issue Executive Order 283 under the Civilian Defense and Disaster Control Act, N.J.S.A. App. A:9-33 to -63 (the Disaster Control Act), which ‘vests the Governor with broad powers to provide for the health, safety and welfare of the people of the State during any emergency,’” Appellate Division Judge Clarkson S. Fisher wrote. 

Judge Fisher went on to explain that the Disaster Control Act defines an emergency as including a “disaster,” which is “any unusual incident resulting from natural or unnatural causes which endangers the health, safety or resources of the residents of one or more municipalities of the State, and which is or may become too large in scope or unusual in type to be handled in its entirety by regular municipal operating services.” According to the court, “COVID-19 certainly fits the bill.”

The Appellate Division also found that the Governor was empowered by the Emergency Health Powers Act (the Emergency Health Act), which authorizes the Governor to “take all reasonable and necessary measures to prevent the transmission of infectious disease.” Additionally, it rejected arguments that Chapter 103 limited the Governor’s power to re-declare on January 11, 2022, the presence of a public health emergency under the Emergency Health Act.

The Appellate Division next turned to the argument that the present circumstances obligated the Governor to impose less onerous requirements and that the order is not tailored to the circumstances. “Urging the lesson of Kubrick’s ‘Dr. Strangelove,’ the SOA seems to believe we all need to ‘learn to stop worrying and love the virus,'” Judge Fisher wrote. He added:

In other words, this argument suggests that once disasters and emergencies are with us for more than a short while, they cease to be disasters and emergencies and simply become a way of life. We find, however, nothing in the Disaster Control Act or any of our jurisprudence that would support such an illogical or dangerous contention. Indeed, it may be far more logical to assume that the duration of the pandemic is not so much a product of the virus but a product of an unreasoned and unreasonable resistance to vaccinations of some of our fellow citizens that may be the very thing preventing our emergence from this pandemic and a return to normalcy.

After concluding that Governor was and continues to be empowered to take steps in the face of the ongoing COVID-19 emergency, the Appellate Division addressed whether the steps incorporated in EO 283 are consistent with that undertaking. “From a purely operational perspective, the lack of vaccinations has had a profound effect on the JJC’s and the DOC’s abilities to fulfill their functions,” Judge Fisher wrote. “This circumstance provided ample reason for the inclusion of appellants’ members within Executive Order 283.” 

The appeals court also emphasized that prisons and places of incarceration are, by their very nature, closed facilities that inevitably foster the spread of COVID-19. 

“These simple truths alone, fully supported by scientific evidence and simple logic, demonstrate that any argument that the governor issued an order with no rational connection to the disaster by imposing a vaccination mandate for appellants’ members is specious and unworthy of further discussion,” Judge Fisher said.

If you have questions, please contact us

For more information about the Appellate Division’s decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group at 201-896-4100.