The Supreme Court of New Jersey has agreed to determine whether Jersey City’s 1% payroll tax is constitutional. Earlier this year, the Appellate Division held in Mack-Cali Realty Corp. v. State of New Jersey that the ordinance was unconstitutional, concluding that it ran afoul of the Commerce Clause.

Facts of Mack-Cali Realty Corp. v. State of New Jersey

In November 2018, the Jersey City city council unanimously approved an ordinance establishing a one percent payroll tax to be paid by employers. The ordinance was authorized under Assembly Bill No. 4163, which amended the Local Tax Authorization Act (LTAA) to allow any municipality having a population over 200,000 to impose and collect an employer payroll tax. Any municipality that has adopted an employer payroll tax may create an exception for wages of employees who are residents of the municipality, which Jersey City elected to do.

The goal of the new law is to offset reductions in school aid. Accordingly, it requires that employer payroll tax revenues be paid to the school district on a monthly basis if the municipality has a median household income of $55,000 or more. Presently, Jersey City is the only municipality that is both eligible to impose an employer payroll tax and meet the median household income threshold which triggers the requirement to use employer payroll tax revenues for school purposes.

Under Jersey City Ordinance 18-133 (Ordinance), the city may impose a payroll tax on employers conducting business within Jersey City if they have a payroll in excess of $2,500 in any calendar quarter and employ non-resident employees working within Jersey City or supervise employees from within Jersey City. The term “payroll” is defined as “the total remuneration paid by employers to employees…for services…performed with the City of Jersey City; or…performed outside of the City of Jersey City but…supervised…in Jersey City.”

Plaintiffs — real estate developers and urban renewal entities in Jersey City; business owners with operations in Jersey City; labor unions, which members provide personnel and services to Jersey City businesses and some of which have members that live in Jersey City; and business trade associations — challenged Jersey City Ordinance 18-133. Plaintiffs filed a verified complaint and order to show cause seeking to declare the Ordinance and the 2018 amendments to the LTAA violated the United States and New Jersey Constitutions. They also alleged the Ordinance was ultra vires, void for vagueness and violated contractual rights certain plaintiffs had under tax abatement agreements with the City pursuant to the Long-Term Tax Exemption Law (LTTEL).

Appellate Division’s Decision in Mack-Cali Realty Corp. v. State of New Jersey

The trial court ruled that the statutory amendments were constitutional, and the Ordinance was a valid, constitutional exercise of the City’s authority. The Appellate Division reversed with regard to the Plaintiffs’ Commerce Clause claims. It held that the Ordinance and the LTAA violate the Due Process Clause and Commerce Clause of the U.S. Constitution.

According to the appeals court, the Ordinance could hypothetically allow taxing authorities in different states to both impose a payroll tax on the same employee. For instance, if a resident of New York City came to work for an employer in Jersey City, the employer could be taxed by both taxing authorities. As emphasized by the panel, “neither the statute nor the ordinance provides a mechanism to resolve disputes if two taxing entities, in different states, impose a payroll tax on the same employee.”

The Appellate Division stayed its order 45 days for the parties to “seek further review,” which they did.

Issues Before New Jersey Supreme Court

The New Jersey Supreme Court granted certification on September 27, 2021. The justices agreed to decide the following question: “Did the ‘residency exemption’ in Jersey City’s payroll tax violate the Commerce Clause of the United States Constitution?”

Oral arguments have not yet been scheduled.

In Pritchett v. State (A-5-20/084451) (Decided August 12, 2021), the Supreme Court of New Jersey held that trial courts reviewing a punitive damages award issued by a jury against a public entity defendant must apply heightened scrutiny.

Facts of Pritchett v. State

Plaintiff Shelly Pritchett worked for the Juvenile Justice Center (JJC), which runs the state’s juvenile correctional facilities. She was diagnosed with multiple sclerosis. When her second request for unpaid leave was denied, her supervisor refused to explain the denial or put the denial in writing. On November 1, 2011, Pritchett learned that she would be subject to disciplinary proceedings — which would result in her termination without a pension — if she did not resign by the end of the week. Pritchett applied for retirement disability benefits on November 4. Weeks later, her union representative informed the JJC that Pritchett believed she was forced into retirement against her will. The JJC’s Equal Opportunity Office expressed its opinion that the JJC “failed to engage in the interactive process,” which “resulted in a violation of the State Anti-Discrimination Policy,” but opined that Pritchett’s “request for reinstatement [was] mooted by [her] approval for disability retirement.”

Pritchett filed a complaint alleging the State violated the New Jersey Law Against Discrimination (LAD). The jury awarded Pritchett compensatory damages in excess of $1.8 million and punitive damages of $10 million, and the State challenged the punitive damages award. The trial court determined that the punitive damages amount was high but that no miscarriage of justice occurred. The Appellate Division affirmed in large part but remanded for reconsideration of the punitive damages award, calling upon the trial court to consider the factors discussed in Baker v. National State Bank, 161 N.J. 220 (1999), and BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).

The State petitioned for certification, arguing that the Appellate Division’s remand instructions were flawed in part because they failed to include direction to the trial court, consistent with this Court’s holding in Lockley v. Department of Corrections, 177 N.J. 413 (2003), to apply heightened scrutiny when reviewing awards of LAD punitive damages against public entities.

NJ Supreme Court’s Decision in Pritchett v. State

The New Jersey Supreme Court affirmed, although with modifications. “We agree with the State that the Appellate Division’s remand instructions require modification. In reviewing the punitive damages award, the trial court failed to apply the heightened scrutiny called for in Lockley and underscored in the companion case of Green v. Jersey City Board of Education, 177 N.J. 434 (2003). The Appellate Division’s instructions did not correct that inadequacy,” Justice Jaynee LaVecchia wrote. “While we commend the Appellate Division

for instructing the trial court to consider the Baker/BMW factors more fully, the Appellate Division’s remand instructions should have also alerted the trial court to the principles of Lockley and Green that apply in this matter.”

In reaching its decision, the New Jersey Supreme Court confirmed that punitive damages are available against public entities for violation of the New Jersey Law Against Discrimination (NJLAD), as well as the Conscientious Employee Protection Act (CEPA) just as they are available from private entities. It went on to highlight the fact that a “court’s responsibility to review awards of punitive damages for reasonableness is heightened when such damages are awarded against a public entity” because it is funded by taxpayers. Thus, the trial judge “must scrutinize with great care the amount of the award to determine whether it is proportionate to the harm suffered by the plaintiff.”

The New Jersey Supreme Court instructed the trial court on remand, and all trial courts reviewing a punitive damages award issued by a jury against a public entity defendant, to review the award under the heightened scrutiny required in Lockley and underscored in the companion case of Green v. Jersey City Board of Education, 177 N.J. 434 (2003). As the court noted, in Green, which involved a CEPA claim against a public entity, the court drew from Lockley and stressed that it “set rigorous standards for the calculation of punitive damages against a public entity, recognizing that ‘public monies are the source of the award.’”

Finally, the New Jersey Supreme Court found the Appellate Division’s discussion of the Baker/BMW factors to be substantially correct. The Due Process Clause imposes outer limits on the allowable size of an award of punitive damages, and the Appellate Division appropriately instructed the trial court, on remand, to substantially consider the factors advanced in BMW and incorporated into New Jersey law by Baker.

In the consolidated cases of State v. Mark Melvin (A-44-19/083298) (Decided September 23, 2021) and State v. Michelle Paden-Battle (A-13-20/084603) (Decided September 23, 2021), the Supreme Court of New Jersey addressed whether a trial judge can consider a defendant’s alleged conduct for crimes for which a jury returned a not guilty verdict during sentencing. The court concluded that fundamental fairness prohibits courts from doing so.

Facts of State v. Melvin

A jury found Melvin guilty of second-degree unlawful possession of a handgun and, after two trials, not guilty of the most serious charges against him, including first-degree murder and first-degree attempted murder. At his second sentencing, the trial court — notwithstanding the jury’s not-guilty verdicts on the murder charges —determined that the evidence at trial supported the conclusion that Melvin shot the victims.

Citing United States v. Watts, 519 U.S. 148 (1997), the trial judge found that it was within the court’s broad discretion at sentencing to consider all circumstances of the case, including evidence that Melvin was the shooter. Despite the jury’s verdict, the trial court found that Melvin not only possessed the weapon, but used it to shoot three people. The trial court sentenced Melvin to a term of sixteen years’ imprisonment with an eight-year period of parole ineligibility. The Appellate Division affirmed that sentence.

Facts of State v. Paden-Battle

A jury found Paden-Battle guilty of kidnapping, conspiracy to commit kidnapping, and felony murder. The jury acquitted Paden-Battle of the remaining seven counts, including first-degree murder and conspiracy to commit murder.

At sentencing, the same judge who presided over Melvin’s case again relied on Watts to make findings of fact, by a preponderance of the evidence, that Paden-Battle, despite having been acquitted of the most serious murder charges, was the mastermind who orchestrated the victim’s murder. The trial court stated that Paden-Battle falsified her testimony and found that she was the moving force behind the murder and ordered her co-conspirators to act. The trial court sentenced Paden-Battle to a sixty-year sentence. On appeal, the Appellate Division vacated Paden-Battle’s sentence and remanded the matter for resentencing, holding that the trial court enhanced her sentence based on its belief — a belief contrary to the jury’s verdict — that Paden-Battle ordered the execution.

NJ Supreme Court’s Decision in State v. Melvin and State v. Paden-Battle

The New Jersey Supreme Court reversed in Melvin and affirmed in Paden-Battle. In support of its decision, the court cited Article I, Paragraph 1 of the New Jersey Constitution, which

bestows upon all citizens certain natural and unalienable rights. According to the court, the doctrine of fundamental fairness, which “protects against arbitrary and unjust government action,” flows from those rights and prohibits courts from subjecting a defendant to enhanced sentencing for conduct as to which a jury found that defendant not guilty.

The New Jersey Supreme Court first concluded that the Supreme Court’s decision in Watts, in which the justices held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence,” did not control. In support, it cited United States v. Booker, 543 U.S. 220 (2005), in which the Court appeared to limit Watts and minimize its precedential value. It also noted that the practice of relying on acquitted conduct in sentencing “has not gone unquestioned among federal judges, and approaches to the issue among state courts have been decidedly mixed.”

To resolve the case, the New Jersey Supreme Court turned to the New Jersey Constitution, emphasizing that the guarantee of the right to a criminal trial by jury is “inviolate.” The court wrote:

In order to protect that right, we cannot allow the finality of a jury’s not-guilty verdict to be put into question. To permit the re-litigation of facts in a criminal case under the lower preponderance of the evidence standard would render the jury’s role in the criminal justice process null and would be fundamentally unfair. In order to protect the integrity of our Constitution’s right to a criminal trial by jury, we simply cannot allow a jury’s verdict to be ignored through judicial fact-finding at sentencing. Such a practice defies the principles of due process and fundamental fairness.

With regard to Melvin, the jury determined that he had a gun but acquitted him of all charges that involved using the gun —or even having the purpose to use it unlawfully. Accordingly, the New Jersey Supreme Court found that the jury’s verdict should have ensured that Melvin retained the presumption of innocence for any offenses of which he was acquitted. In Paden-Battle’s case, the New Jersey Supreme Court noted that notwithstanding the jury’s not-guilty verdict as to conspiracy to commit murder and murder, the trial court determined that Paden-Battle had in fact “orchestrated,” “was the mastermind,” “the supervisor,” and “the driving force in this kidnapping and execution of Regina Baker.”

Thus, the New Jersey Supreme Court went on to hold that “the findings of juries cannot be nullified through lower-standard fact findings at sentencing.” It further explained:

The trial court, after presiding over a trial and hearing all the evidence, may well have a different view of the case than the jury. But once the jury has spoken through its verdict of acquittal, that verdict is final and unassailable. The public’s confidence in the criminal justice system and the rule of law is premised on that understanding. Fundamental fairness simply cannot let stand the perverse result of allowing in through the back door at sentencing conduct that the jury rejected at trial.

The New Jersey Supreme Court also emphasized that although it was overruling the trial court’s reasoning and reliance on Watts, it found its approach to be reasonable. “That reliance was a reasonable approach adopted by a number of other jurisdictions with regard to an issue that this Court had yet to consider,” the court wrote. “Although we have found today — as is true with regard to many constitutional issues — that our State Constitution offers greater protection against the consideration of acquitted conduct in sentencing than does the Federal Constitution, the sentencing court’s approach at the time was not unreasonable.”

In New Jersey Division of Child Protection and Permanency v. J.R.-R. (A-56/57-19) (Decided September 27, 2021), the Supreme Court of New Jersey clarified that in a case where the Division of Child Protection and Permanency (DCPP) has established that a child has been abused or neglected while in the care of his parents, the family court can’t shift the burden of proof to the parents to prove their non-culpability.

Facts of New Jersey Division of Child Protection and Permanency v. J.R.-R.

Following his admission to a hospital, DCPP sought temporary custody of ten- month-old “Gabriel,” alleging he was an abused or neglected child as defined in N.J.S.A. 9:6-8.21(c). Specifically, DCPP charged Gabriel’s parents, “Jenny” and “George,” with causing multiple injuries to Gabriel, some consistent with Shaken Baby Syndrome.

At an abuse and neglect hearing conducted in the Family Part, the court heard testimony from DCPP caseworkers and medical experts. The family court first determined that DCPP had proven that Gabriel had been abused and neglected and that his parents had been his sole caretakers when he suffered his injuries. Relying on In re D.T., 229 N.J. Super. 509, 517 (App. Div. 1988), and the doctrine of conditional res ipsa loquitur, the court then held that the burden of persuasion had shifted to each of the parents to establish that they were not culpable.

In light of that legal paradigm, the court evidently determined that Jenny and George had not satisfied their burden. The court found — without specifically identifying “who actually failed to supervise” or “who actually caused the injuries” — that both Jenny and George were responsible for the abuse and neglect of Gabriel under Title Nine. The Appellate Division affirmed, holding that the family court properly applied the conditional res ipsa doctrine to shift the burden of proof to the parents. It further concluded that sufficient credible evidence in the record supported the court’s abuse and neglect findings. The New Jersey Supreme Court granted Jenny’s and George’s petitions for certification.

NJ Supreme Court’s Decision in New Jersey Division of Child Protection and Permanency v. J.R.-R.

The New Jersey Supreme Court unanimously reversed. In reaching its decision, the New Jersey Supreme Court emphasized that the Judiciary has no commission to exercise equitable powers to alter the statutory burden of proof set forth by the Legislature. “We have no authority to import the burden-shifting equitable doctrine of conditional res ipsa loquitur from our tort law into Title Nine, a comprehensive and carefully conceived statutory scheme in which the Legislature has determined that DCPP (Division of Child Protection and Permanency) bears the burden of proving by a preponderance of the evidence that a parent or guardian has committed an act of child abuse or neglect” Justice Barry Albin wrote.

The New Jersey Supreme Court also rejected the Appellate Division cases that have imported the doctrine of conditional res ipsa loquitur from the state’s common law into a comprehensive statutory scheme to relieve DCPP of its burden of proving that a particular parent abused or neglected a child. Justice Albin wrote:

DCPP’s burden of proof, as established by Title Nine, represents one facet of our Legislature’s chosen balance between the welfare of children and the rights of parents. The burden-shifting approach in Anderson — akin to “conditional res ipsa” — is solely a creature of our common law and developed in the context of a medical malpractice case for a “narrow set of factual circumstances.” See Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 465 (1999). We will not upset the Legislature’s chosen design for Title Nine by injecting a common law burden-shifting doctrine into a determination of whether a parent committed a statutory violation of child abuse or neglect. If the Legislature intended such a burden-shift in Title Nine, it undoubtedly would have said so explicitly.

In light of its decision, the New Jersey Supreme Court remanded for a new hearing on the abuse and neglect charges. “We do not pass judgment on the weight or the sufficiency of the evidence presented by DCPP. We hold only that the family court must conduct a new hearing, follow the dictates of Title Nine, and determine whether DCPP has carried the burden of persuasion by a preponderance of the evidence that either or both parents committed an act of abuse or neglect as defined in N.J.S.A. 9:6-8.21,” Justice Albin explained. “In making that determination, the court may draw reasonable inferences consistent with N.J.S.A. 9:6-8.46(a)(2).”

In C.R. v. M.T. (A-58-19/083760) (Decided September 28, 2021), the Supreme Court of New Jersey addressed what standard should apply in determining whether an alleged sexual assault victim was too intoxicated to give consent under the Sexual Assault Survivor Protection Act of 2015 (SASPA). It concluded that the standard should be no different than the standard for consent for an alleged victim in a criminal sexual assault case — a showing that sexual activity occurred without the alleged victim’s freely and affirmatively given permission to engage in that activity.

Facts of C.R. v. M.T.

In June 2018, plaintiff “Clara” and defendant “Martin” engaged in sexual activity after a night of drinking. Plaintiff alleges she was too intoxicated to give consent, but defendant claims that the entire encounter was consensual. Plaintiff filed for a temporary restraining order pursuant to SASPA.

SASPA offers relief in the form of a civil protective order to alleged victims of nonconsensual sexual contact. A person may apply for, and the court may issue, a protective order under SASPA “regardless of whether criminal charges based on the incident were filed and regardless of the disposition of any such charges.” The statute requires consideration of at least two factors, commonly referred to as the two “prongs” of SASPA: “(1) the occurrence of one or more acts of nonconsensual sexual contact . . . against the alleged victim; and (2) the possibility of future risk to the safety or well-being of the alleged victim.”

After conducting a hearing, the trial court found both parties’ accounts to be “equally plausible.” Applying the preponderance of the evidence standard, the court concluded that Clara’s extreme voluntary intoxication rendered her “temporarily incapable of understanding the nature of her conduct” and that she had therefore been subjected to nonconsensual sexual contact within the meaning of SASPA’s first prong. Turning to the second SASPA prong, the judge noted the lack of evidence that Martin sought to contact Clara after their encounter. Nonetheless, recognizing that SASPA was intended to provide protection to victims of nonconsensual sexual contact, as well as the possibility that Martin “may now harbor a grudge against [Clara] which would probably not have occurred but for these proceedings,” the court concluded that “it is more likely than not that a final restraining order is appropriate.”

The Appellate Division reversed and remanded. It held that the proper standard to assess whether plaintiff was incapable of consent due to intoxication was the prostration of faculties standard, a standard utilized only when criminal defendants assert intoxication as a defense to negate the requisite mens rea to commit a crime.

NJ Supreme Court’s Decision in C.R. v. M.T.

The Supreme Court of New Jersey reversed. “We hold that the appropriate standard to determine whether sexual activity was consensual under SASPA is not the prostration of faculties standard, which focuses on the mental state of the defendant, but rather the standard articulated in a criminal case almost three decades ago in State in Interest of M.T.S., 129 N.J. 422 (1992), which is applied from the perspective of the alleged victim.

As the court went on to explain, the standard set forth in M.T.S. requires a showing that sexual activity occurred without the alleged victim’s freely and affirmatively given permission to engage in that activity. The court further clarified in M.T.S. that “permission may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances.”

According to the New Jersey Supreme Court, the standard for consent for an alleged victim in a SASPA case should be no different than the standard for consent for an alleged victim in a criminal sexual assault case. “Given the history of sexual assault in the law, as painstakingly detailed in M.T.S., a holding that alleged victims of sexual assault seeking a protective order should be held to the same standard as criminal defendants seeking to assert a defense would, quite frankly, set our law back decades to a time when alleged victims were the ones essentially put on trial,” the court wrote. “Applying the prostration of faculties standard in determining whether sexual activity was consensual is simply inconsistent with the standard set forth in M.T.S.”

In further support of its decision, the New Jersey Supreme Court emphasized that the prostration of faculties standard is and has only ever been applied to alleged criminals seeking to evade culpability. “That concept has no place in the Court’s jurisprudence as applied to alleged victims of sexual assault seeking a protective order,” the court wrote.

The New Jersey Supreme Court remanded the case to the trial court for assessment under the standard articulated in M.T.S. It specifically directed the trial court to expand upon its abbreviated discussion of prong two and make additional findings of fact that support a determination that the prong has been satisfied, or not, in deciding whether to issue the final restraining order.

In Bozzi v. Jersey City, (A-12-20/084392) (Decided September 20, 2021), the Supreme Court of New Jersey held that owning a dog is a substantially public endeavor in which people do not have a reasonable expectation of privacy that exempts their personal information from disclosure under the privacy clause of the state’s Open Public Records Act (OPRA).

Facts of Bozzi v. Jersey City

Plaintiff Ernest Bozzi requested copies of defendant Jersey City’s most recent dog license records pursuant to OPRA and the common law right of access. Plaintiff, a licensed home improvement contractor, sought the information on behalf of his invisible fence installation business. Plaintiff noted that Jersey City may redact information relating to the breed of the dog, the purpose of the dog, and any phone numbers associated with the records. He sought only the names and addresses of the dog owners.

In denying the OPRA request, Jersey City cited two grounds. First, Jersey City maintained that the disclosure would be a violation of the citizens’ reasonable expectation of privacy, contrary to N.J.S.A. 47:1A-1, by subjecting the dog owners to unsolicited commercial contact. Second, it expressed concern that such a disclosure may jeopardize the security of both dog-owners’ and non-dog-owners’ property. Bozzi subsequently filed suit.

The trial court found the dog licensing records were not exempt and ordered Jersey City to provide the requested information. Despite finding no objectively reasonable privacy interest, the trial court went on to analyze the seven privacy factors set forth in Doe v. Poritz, 142 N.J. 1 (1995), finding each of them to be neutral or in support of plaintiff’s position. The Appellate Division affirmed, relying on Bozzi v. Borough of Roselle Park, 462 N.J. Super. 415 (App. Div. 2020), a nearly identical case involving the same OPRA requestor.

NJ Supreme Court’s Decision in Bozzi v. Jersey City

The New Jersey Supreme Court affirmed. “We affirm the judgment of the Appellate Division and find that owning a dog is a substantially public endeavor in which people do not have a reasonable expectation of privacy that exempts their personal information from disclosure under the privacy clause of OPRA,” Justice Faustino Fernandez-Vina wrote. “Owning a dog is, inherently, a public endeavor.

In his opinion, Justice Fernandez-Vina emphasized that the privacy clause of OPRA “directs agencies to safeguard personal information that, if disclosed, ‘would violate [a] citizen’s reasonable expectation of privacy.’” He further explained that the court reviewed the privacy clause in Brennan v. Bergen Cnty. Prosecutor’s Off., 233 N.J. 330, 339-40 (2018) and “concluded from the Legislature’s express exemption of names and addresses in certain contexts that, beyond those ‘select situations,’ there is no ‘overarching exception for the disclosure of names or home addresses.’”

Justice Fernandez-Vina also noted that the Brennan Court found that legislative inaction particularly significant in light of the recommendations in a 2004 report from the Privacy Study Commission, which placed issues like the one presented in the case squarely before the Legislature, and the Legislature declined to act on them. “We found in Brennan, and we continue to find here, that the Legislature’s inaction with respect to the recommended exemptions strongly cautions against creating a judicial exemption in this context,” he wrote.

The opinion went on to explain that when an OPRA request does not fall within an express exemption, a records custodian may still assert that the requested information should not be disclosed under the privacy clause. The clause requires the presentation of “a colorable claim that public access to the records requested would invade a person’s objectively reasonable expectation of privacy.” According to Justice Fernandez, “the key to such a claim has been a distinction between actions and information typically kept private versus those extended to the public.” Only after finding a privacy interest is a court required to look to the Doe factors to balance the need for disclosure against the privacy interest at stake.

Applying those principles, the court concluded that Jersey City had failed to present a colorable claim that the disclosure of the requested dog license records would invade a dog owner’s reasonable expectation of privacy. In support, the court cited that the records are government records “kept on file in the course of . . . official business” and do not fall into any of the express exemptions in N.J.S.A. 47:1A-1.1. It further found that the commercial nature of plaintiff’s request was immaterial.

As Justice Fernandez-Vina went on to explain, OPRA’s privacy clause may nonetheless require a balancing of the twin aims of OPRA — government transparency and an obligation to safeguard personal information — if disclosure would “violate [a] citizen’s reasonable expectation of privacy.” Here, the court concluded there is no reasonable expectation of privacy in owning or licensing a dog. “Owning a dog is, inherently, a public endeavor,” he wrote. “Owners and their dogs are regularly exposed to the public during daily walks, grooming sessions, and veterinarian visits. Dog owners who continually expose their dogs to the public cannot claim that dog ownership is a private undertaking.”

“Because Jersey City has not established a colorable claim that public access to the names and addresses of dog owners would violate a reasonable expectation of privacy, the court need not conduct an extended Doe analysis,” Fernandez-Vina further continued. “The court agrees with the evaluation of the trial court that the factors collectively favor disclosure.”

While plaintiff in the case requested only the names and addresses of dog owners, the court stressed that there are other parts of the dog licensing records that would give rise to security concerns. It advised that any similar disclosure of dog records should not include breed information or the purpose of the animal, and the names of dogs may need to be excluded.

In State v. Rasheem W. McQueen (A-11-20/084564) (Decided August 10, 2021), the Supreme Court of New Jersey held that the right of privacy extends to an arrestee’s call on a police line from the stationhouse when neither party to the call is aware that the police are recording their conversation. Accordingly, it upheld the suppression of the recording of the stationhouse conversation.

Facts of State v. McQueen

Rasheem McQueen was arrested after driving off when Piscataway police officers attempted to stop him for traffic violations. At police headquarters, McQueen was permitted to make a call on a landline in the “report writing room.” No one told him the call would be recorded — as were all outgoing calls from headquarters. No sign was posted warning that all calls were recorded. No one stood over McQueen to listen to the conversation, and he “mumbled on the phone, hiding what his conversation was.”

Later that day, a detective recovered a gun found outside the home near where McQueen had been stopped and became “suspicious” about the call McQueen had made from headquarters. Without securing a warrant or a subpoena, or consent from McQueen, detectives listened to McQueen’s recorded conversation. The recording revealed that McQueen called Myshira Allen-Brewer and told her to look for his “blicky” — apparently a slang name for a handgun — near where the gun was found.

McQueen was transferred to the Middlesex County Adult Correction Center (Correction Center), from where he made further telephone calls to Allen-Brewer on a clearly designated recorded line. During telephone calls placed from the Correction Center, an automated message advises the parties that their conversation is being recorded, and inmates receive written notification of the warning as well. In their conversations, McQueen again told Allen-Brewer to look for the “blicky.” A recording of those Correction Center conversations was secured through a grand jury subpoena.

Both McQueen and Allen-Brewer were indicted on multiple counts, and both moved to suppress their telephone conversations recorded by the Piscataway Police Department and the Correction Center. The motion judge suppressed the recorded calls and dismissed the indictment against Allen-Brewer.

The Appellate Division reversed the suppression of the Correction Center calls and reinstated the charges against Allen-Brewer. The panel, however, split on the legality of the seizure of the police station call, with the majority affirming the suppression of that call.

NJ Supreme Court’s Decision in State v. McQueen

The Supreme Court of New Jersey unanimously affirmed. “We hold that McQueen and Allen-Brewer had a reasonable expectation of privacy in their conversation in the absence of fair notice that their conversation would be monitored or recorded,” Justice Barry Albin wrote. “The recorded stationhouse telephone conversation was not seized pursuant to a warrant or any justifiable exigency and therefore must be suppressed.”

In reaching its decision, the court emphasized that right of privacy, and particularly privacy in one’s telephone conversations, is among the most valued of all rights in a civilized society. It further noted that Article I, Paragraph 7 of the New Jersey Constitution broadly protects the privacy of telephone conversations in many different settings.

The New Jersey Supreme Court went on to find that an arrestee has a reasonable expectation of privacy in a call made from a police station in the absence of notice that the conversation may be monitored or recorded. In support, the court first found that police monitoring of telephone conversations — without consent, a warrant, or other appropriate judicial authorization — empowers the government to arbitrarily peer into the most private sanctums of people’s lives in violation of the privacy protections afforded by Article I, Paragraph 7. Second, it cited that the State provided no factual support and “scant judicial authority” for the notion that New Jersey’s residents have a widespread understanding that all outgoing telephone calls from a police station are recorded. Third, the court determined that requiring notice of recording does not undermine and may enhance institutional security and public safety by deterring the unlawful use of the stationhouse line. Fourth, the court found that the right to notice of monitoring or recording accords with basic notions of fairness and decency. Fifth, the court noted that the fruits of an unlawful search can’t provide an after-the-fact justification for the search. Sixth, and finally, the court determined that McQueen and Allen-Brewer had an expectation of privacy in their conversation that “society is prepared to recognize as reasonable.”

Because the New Jersey Supreme Court found that McQueen and Allen-Brewer enjoyed a reasonable expectation of privacy in the police station call, the Piscataway police had to comply with the warrant requirement of Article I, Paragraph 7, in the absence of one of the specifically established and well-delineated exceptions to the warrant requirement, such as consent or exigent circumstances. “Here, the Piscataway police did not secure either a warrant for the seizure of the recorded conversation or McQueen’s or Allen-Brewer’s consent to monitor or record their call. Nor has the State attempted to justify the seizure based on exigent circumstances,” Justice Albin wrote. “Therefore, the McQueen/Allen- Brewer stationhouse conversation must be suppressed.”

The New Jersey Supreme Court further clarified that police departments that record or monitor outgoing calls of arrestees must give them reasonable notice of that practice. According to the court, reasonable notice may be satisfied in different ways. For example, the police could have an arrestee read and sign a form that explains the practice or could post a prominent sign by the telephone. The court also noted that forms or signs must take account of language differences, and attorney conversations may not be monitored.

In Bonay Goldhagen v. Susan Pasmowitz (A-17-20/084668) (Decided August 5, 2021), the Supreme Court of New Jersey held that the Dog Bite Statute’s strict liability standard applies to the claim of an independent contractor who agrees to care for a dog. According to the court, the statute’s plain language reveals no legislative intent to recognize an exception to strict liability under the Dog Bite Statute for any category of injured plaintiffs.

Facts of Goldhagen v. Pasmowitz New Jersey’s Dog Bite Statute, N.J.S.A. 4:19-16, establishes a strict liability cause of action that a plaintiff injured by a dog bite may assert against the dog’s owner. In this appeal, the Court considers whether the Dog Bite Statute includes an exception, based on primary assumption of the risk, for independent contractors hired to care for a dog.

In July 2015, defendant Susan Pasmowitz’s Rottweiler mix, Louie, bit plaintiff Bonay Goldhagen, causing a severe facial injury. At the time of the incident, plaintiff was a groomer and kennel assistant employed at a pet care facility where defendant boarded Louie and her other dog, Otis. Defendant told plaintiff and the facility’s manager that Louie had “nipped” or “bit” her son, and she urged caution in handling the dog. Defendant completed an intake form that was displayed outside the kennel housing Louie and Otis. The intake form indicated that defendant’s dogs “Must eat separately” — a notation underlined and emphasized with an asterisk — and that staff should “sit with Otis to eat.”

Plaintiff admitted that she did not review the intake form for defendant’s dogs until after Louie bit her. According to plaintiff, a kennel staff member told her that the dogs needed to be fed separately. Plaintiff testified that the facility was very busy and “only had one accommodation for the dogs, so in order to separate them somebody would have to go in and sit with one of them.” Plaintiff stated that when she was sitting next to Otis after putting the dogs’ food bowls down in their kennel, she turned around to look at Louie, and he bit her.

Plaintiff asserted a claim based on the Dog Bite Statute, as well as common-law claims for absolute liability and negligence. The trial court granted defendant’s motion for summary judgment, relying on an independent contractor exception to strict liability under the Dog Bite Statute recognized by the Appellate Division in Reynolds v. Lancaster County Prison, 325 N.J. Super. 298 (App. Div. 1999). The trial court denied plaintiff’s cross-motion for partial summary judgment on the issue of liability with respect to her common-law claims. The Appellate Division affirmed the grant of summary judgment to defendant and denial of plaintiff’s cross-motion.

NJ Supreme Court’s Decision in Goldhagen v. Pasmowitz

The New Jersey Supreme Court reversed the Appellate Division’s holding that the Dog Bite Statute’s strict liability standard does not apply to the claim of an independent contractor who agrees to care for a dog. “The statute’s plain language reveals no legislative intent to recognize an exception to strict liability under the Dog Bite Statute for any category of injured plaintiffs,” the court wrote.

In reaching its decision, the New Jersey Supreme Court found that the Appellate Division improperly recognized in Reynolds an exception to the Dog Bite Statute for an independent contractor hired to care for a dog. “Nothing in the provision suggests that the Legislature intended to exclude any category of dog owners from statutory liability, let alone any indication that claims asserted by independent contractors who have agreed to care for a dog are exempt from the statute’s general rule,” the court wrote. “[T]he Legislature’s choice not to incorporate assumption of the risk into the Dog Bite Statute for independent contractors — or any other category of plaintiffs — signals its intent not to limit the statute’s strict liability rule.

The New Jersey Supreme Court further found that the Comparative Negligence Act applies to plaintiff’s strict liability claim under the Dog Bite Statute. As the court explained, when a plaintiff pursues a strict liability claim under the Dog Bite Statute and the defendant asserts the plaintiff’s negligence as a defense under the Comparative Negligence Act, the plaintiff’s negligence may bar the statutory claim, or diminish her recovery of damages in that claim. In this case, the court found that the plaintiff’s status as a professional experienced in the care of dogs is relevant to an allocation of fault under the Act.

Finally, the New Jersey Supreme Court held that genuine issues of material fact warrant the denial of plaintiff’s motion for partial summary judgment on her common-law claims. “There remain significant factual disputes, however, regarding the information that defendant provided to plaintiff and her employer regarding the risk posed by the dog, plaintiff’s conduct before and during the incident, and other relevant issues,” the court wrote. “Defendant’s assertion of a defense based on the Comparative Negligence Act and her presentation of prima facie evidence supporting that defense preclude the entry of partial summary judgment on liability based on the Dog Bite Statute.”

In State v. Bennie Anderson (A-15/16-20) (084365) (Decided August 11, 2021), the Supreme Court of New Jersey held that the forfeiture of defendant’s pension under N.J.S.A. 43:1-3.1 does not constitute a fine for purposes of an excessive-fine analysis under the Federal or State Constitutions. Because the forfeiture is not a fine, the court did not reach the constitutional analysis for excessiveness.

Facts of State v. Anderson

Defendant Bernie Anderson was employed by Jersey City in the Tax Assessor’s office. His position gave him the opportunity to alter property tax descriptions without the property owner filing a formal application with the Zoning Board. In December 2012, defendant engaged in an illicit transaction where he accepted a $300 bribe in exchange for altering the tax description of a property from a two-unit dwelling to a three-unit dwelling. Defendant retired from his position in March 2017 and was granted an early service retirement pension. In November 2017, defendant pled guilty in federal court to violating 18 U.S.C. § 1951(a), interference with commerce by extortion under color of official right. Defendant was sentenced to two years of probation and ordered to pay a fine. Based on defendant’s conviction, the Employees’ Retirement System of Jersey City reduced his pension.

The State filed an action in state court to compel the total forfeiture of defendant’s pension pursuant to N.J.S.A. 43:1-3.1. The trial court entered summary judgment for the State, finding that the forfeiture of defendant’s pension did not implicate the constitutional prohibitions against excessive fines because the forfeiture of pension benefits did not constitute a fine. The Appellate Division affirmed the grant of summary judgment to the State, but on different grounds. It concluded that the forfeiture of defendant’s pension was a fine, but that requiring defendant to forfeit his pension was not excessive.

NJ Supreme Court’s Decision in State v. Anderson

The Supreme Court of New Jersey affirmed the judgment upholding the forfeiture of defendant’s pension. “We conclude, as did the trial court, that defendant was not subjected to a fine. Accordingly, our conclusion on that first inquiry eliminates the need to assess whether the forfeiture constitutes an excessive fine. As a result, we need not review or express an opinion on the test for excessiveness employed by the Appellate Division,” the court wrote.

The court first addressed asking whether, under New Jersey law, the defendant had a property right in his pension such that the forfeiture of that “right” is a “fine” within the meaning of the Eighth Amendment or the State Constitution. As explained by the court, for many years, the seminal case on pension forfeiture was Uricoli v. Board of Trustees, Police & Firemen’s Retirement System, 91 N.J. 62 (1982), in which the court determined that an inflexible forfeiture rule was not clearly expressed in the language of the pension statute. Instead, the court identified factors to consider and balance when determining whether to impose a pension forfeiture, in the absence of any perceived legislative intent for mandatory forfeiture.

In 2007, the Legislature added N.J.S.A. 43:1-3.1 — the statute pursuant to which the State seeks forfeiture of defendant’s pension. N.J.S.A. 43:1-3.1(a) provides that a public employee “who is convicted of any crime set forth in subsection (b) of this section, or of a substantially similar offense under the laws of another state or the United States . . . shall forfeit all of the pension or retirement benefit earned.” (emphasis added). Also in effect at that time was N.J.S.A. 43:1-3(a), which provides that “[t]he receipt of a public pension or retirement benefit is hereby expressly conditioned upon the rendering of honorable service by a public officer or employee.” Subsection (b) of N.J.S.A. 43:1-3 empowers boards of trustees to order full or partial pension forfeiture upon dishonorable service, and subsection (c) lists factors — similar to the Uricoli factors — for determining whether misconduct breached the honorable service requirement.

The New Jersey Supreme Court went on to emphasize that, in the wake N.J.S.A. 43:1-3.1, the court could no longer conclude that the Legislature did not, unequivocally and categorically, condition the receipt of a pension on the rendering of uniformly honorable service. “The flexible analysis that the Legislature has left in place within section 3 does not give rise to ambiguity about the legislative scheme. Section 3 makes honorable service a condition of a right to a pension, and section 3.1 makes forfeiture of any right to a pension the result when honorable service is not provided due to conviction of an enumerated offense,” the court wrote.

The New Jersey Supreme Court concluded that because forfeiture of a pension is automatic and mandatory upon the commission of certain offenses under section 3.1, it is clear that defendant did not possess a property right in his pension protected by the Federal or State Constitutions. The court wrote:

In short, this case turns on the legislative decision in 2007 to take discretion away from courts and administrative agencies when public employees commit any of the identified offenses. The trial court correctly noted that and faithfully applied the law as written. And, as the court’s analysis noted, New Jersey’s approach to treat public pensions as quasi-contractual rights rooted in statute, and not as property rights, is consistent with the majority of courts to have addressed this issue.

Based on the foregoing, the New Jersey Supreme Court concluded that the first prong to an excessive-fine analysis — whether the forfeiture here was a “fine” within the meaning of the Eighth Amendment — “proves to be an impediment that defendant cannot overcome.” It held that the forfeiture of defendant’s pension under section 3.1 does not constitute a fine for purposes of an excessive-fine analysis under the Federal or State Constitutions.

Because the New Jersey Supreme Court held that the forfeiture was not a fine, it further concluded that “there is no reason to embark on a constitutional analysis for

excessiveness.” Accordingly, it declined to review the Appellate Division’s analysis for excessiveness and we vacate that portion of its opinion.

In State v. Carter (A-66-19/083221) and State v. Roman-Rosado (A-67-19/084074) (Decided August 2, 2021), the Supreme Court of New Jersey addressed when police officers can stop motorists with covered license plates. Under the court’s unanimous decision, if a frame conceals or obscures a marking in a way that it can’t reasonably be identified or discerned, the driver would be in violation of N.J.S.A. 39:3-33, which requires that all markings on a license plate be legible or identifiable. “In practice, if a registration letter or number is not legible, the statute would apply; but if a phrase like ‘Garden State’ is partly covered but still recognizable, there would be no violation,” the court held.

Facts of the Cases

The relevant statute, N.J.S.A. 39:3-33, reads in part as follows: “No person shall drive a motor vehicle which has a license plate frame or identification marker holder that conceals or otherwise obscures any part of any marking imprinted upon the vehicle’s registration plate…” According to the New Jersey Supreme Court, more than 100,000 drivers annually have been ticketed for violating the statute in recent years. It is unclear how many more drivers are stopped by the police pursuant to the statute, and charged with other offenses or let go without a ticket.

The defendants, Darius Carter and Miguel A. Roman-Rosado, were both stopped while driving. The stops were pretextual: officers stopped each defendant because part of their license plates were covered, but the purpose was to try to develop a criminal investigation. The police found contraband in both cases, which formed the grounds for defendants’ convictions.

Defendants argue that if section 33 is read expansively, the statute is unconstitutionally vague and overly broad, and also invites discriminatory enforcement. The State opposes those arguments and relies in the alternative on Heien v. North Carolina, 574 U.S. 54 (2014), for the proposition that a stop and conviction based on an officer’s reasonable but mistaken interpretation of the law should be upheld.

Defendant Darius Carter was stopped in September 2014. The words “Garden State” were covered on his car’s license plate, and the basis for the stop was a suspected violation of section 33. Carter was driving without a license, and the police learned that he had two outstanding arrest warrants. The police arrested Carter and later found heroin and a small amount of cocaine on him. Carter moved to suppress the drugs seized. The parties did not dispute that a license plate frame covered the words “Garden State” on the plate, and neither party argued that any other part of the plate was covered.

The trial court denied the motion to suppress, concluding the stop was pretextual but that the law unambiguously barred concealing any markings on a license plate, not just the plate’s registration numbers. The Appellate Division affirmed, finding that the statute’s

plain language “expressly prohibits even the partial concealment of any marking on the license plate,” including the words “Garden State.”

In April 2016, a police officer stopped the car Miguel Roman-Rosado was driving. The officer testified he “was on a proactive detail” — “stop[ping] a lot of cars for motor vehicle infractions and . . . then try[ing to] develop criminal investigations from that.” While driving right behind Roman-Rosado, the officer noticed a bracket around the rear license plate that covered about ten or fifteen percent of the words “Garden State.” The officer stopped the car based on a suspected violation of section 33 and learned that Roman-Rosado had two outstanding arrest warrants. After spotting a garment wrapped around something bulky, the officer found an unloaded handgun. Roman-Rosado moved to suppress the gun as the fruit of an unlawful stop.

The trial court denied the motion. The court acknowledged there were minimal obstructions on the plate — a portion of the bottom of “Garden State” as well as the top of the “N” and the “J” in New Jersey — but found that the statute barred the “obstruction of any marking on the” plate. The Appellate Division reversed, finding that the plate’s markings were not concealed or obscured within the meaning of the statute. The court found that there was no reasonable basis for the police to stop Roman-Rosado’s car, that the subsequent search of the car was unconstitutional, and that the handgun should have been suppressed.

NJ Supreme Court’s Decision

The New Jersey Supreme Court agreed that section 33, if read broadly, raises serious constitutional concerns. “If the proposed broad reading of (the law) section 33 were the standard, tens if not hundreds of thousands of New Jersey drivers would be in violation of the law,” Chief Justice Stuart Rabner wrote on behalf of the unanimous court.

“Drive on any highway in the state to see that a large number of license plate frames cover the very top of the letters ‘N’ and ‘J’ in ‘New Jersey’ or the bottom of the letters in ‘Garden State,’” the Chief Justice added. “Under the State’s interpretation… countless drivers could all be stopped by the police and be exposed to a fine or possible jail sentence. That reading of the law is at odds with the view that the Legislature ‘writes motor-vehicle laws in language that can be easily grasped by the public so that every motorist can obey the rules of the road.’”

The New Jersey Supreme Court also found that limitless discretion could invite pretextual stops, like the stops in both cases here. It further emphasized that a broad interpretation of the statute could also lead to arbitrary and discriminatory enforcement.

Accordingly, the court held that section 33 requires that all markings on a license plate be legible or identifiable. “That interpretation is consistent with the plain meaning of the statute’s wording,” Rabner wrote. “If a license plate frame or holder conceals or obscures a marking such that a person cannot reasonably identify or discern the imprinted information, the driver would be in violation of the law.” He further explained:

In other words, a frame cannot cover any of the plate’s features to the point that a person cannot reasonably identify a marking. So, for example, if even a part of a single registration letter or number on a license plate is covered and not legible, the statute would apply because each of those characters is a separate marking. If “Garden State,” “New Jersey,” or some other phrase is covered to the point that the phrase cannot be identified, the law would likewise apply. But if those phrases were partly covered yet still recognizable, there would be no violation.

Applying the above test, the New Jersey Supreme Court went on to find that Roman-Rosado did not violate the statute. As Chief Justice Rabner noted, the officer who stopped Roman-Rosado testified that only ten or fifteen percent of the words “Garden State” were obstructed, and he conceded he could clearly identify the phrase on the license plate. In Carter’s case, however, it is undisputed that “Garden State” was entirely covered. Accordingly, the court found that the plate violated the statute, and law enforcement officers had the right to stop Carter.

Because Roman-Rosado did not violate the statute, the New Jersey Supreme Court evaluated the reasonable mistake of law doctrine. In conducting its analysis, the court declined to adopt the U.S. Supreme Court’s holding in Heien, in which the Supreme Court held that a police officer’s mistake of law can give rise to the reasonable suspicion needed to justify a traffic stop under the Fourth Amendment.

According to the New Jersey Supreme Court, the State Constitution is designed to protect individual rights, and it provides greater protection against unreasonable searches and seizures than the Fourth Amendment. Under Article I, Paragraph 7 of the State Constitution, it is simply not reasonable to restrict someone’s liberty for behavior that no actual law condemns, even when an officer mistakenly, although reasonably, misinterprets the meaning of a statute. Because there was no lawful basis to stop Roman-Rosado, the court found that evidence seized as a direct result of the stop must be suppressed.