In State v. Charudutt J. Patel (A-13-18/081069) (Decided August 7, 2019), the Supreme Court of New Jersey clarified the applicable standards for both indigent and non-indigent defendants who seek relief from an enhanced custodial sentence for a second or subsequent driving while intoxicated (DWI) based on a claimed denial of notice of the right to counsel in an earlier DWI case.

The case expands on State v. Laurick, 120 N.J. 1 (1990), in which the New Jersey Supreme Court held that a defendant is not subject to an enhanced custodial sentence for a second or subsequent DWI conviction if he was not advised of his right to counsel in an earlier DWI proceeding and entered an uncounseled guilty plea or went to trial without counsel.

Facts of State v. Patel

In 2015, defendant Charudutt Patel was charged in two separate instances with DWI. Patel had twice before been convicted of DWI. In 1994, he pled guilty to DWI in the Piscataway Municipal Court. In 2010, Patel pled guilty to DWI in the North Brunswick Municipal Court. Because of the passage of more than ten years between the first and second convictions, Patel was sentenced as a first-time offender.

The two 2015 DWI charges exposed Patel to potential third and fourth DWI convictions. However, Patel alleged that his 1994 conviction in the Piscataway Municipal Court was uncounseled and therefore could not be used for custodial enhancement purposes pursuant to Laurick. Thus, for Laurick purposes, Patel contended that he stood before the court as a second-time offender, and he moved to bar the use of his allegedly uncounseled 1994 DWI guilty plea to enhance any custodial sentence in the pending DWI cases.

In support of his Laurick motion, Patel filed two certifications averring that he was indigent at the time of his 1994 DWI guilty plea, that he appeared in the Piscataway Municipal Court without an attorney, and that the municipal court judge did not advise him of his right to retain one. Patel did retain an attorney in 2010 to represent him on the DWI charge in North Brunswick. In 2016, no documents remained in the Piscataway Municipal Court to disprove Patel’s certifications.

The court denied Patel’s Laurick motion. In a motion for reconsideration, Patel asserted that in 1994, “the Judge never advised me that I had a right to retain an attorney nor did he advise me that I had a right to an appointed attorney at no charge. Therefore, I simply pled guilty.”

The court denied the motion for reconsideration, stating that in the absence of municipal court records, Patel’s certifications were insufficient to prove that he was denied notice of his right to counsel 22 years earlier and that, in any event, he should have filed his Laurick motion in 2010 when he was charged with his second DWI in North Brunswick.

He then pled guilty to the third DWI incident, in exchange for which other charges, including the fourth DWI charge, were dropped. The Appellate Division affirmed.

NJ Supreme Court’s Decision in State v. Patel

The Supreme Court of New Jersey reversed and remanded the matter for proceedings consistent with its opinion. In reaching its decision, the court acknowledged that since Laurick, lower courts have struggled to establish clear standards for both indigent and non-indigent defendants who seek relief from an enhanced custodial sentence for a second or subsequent DWI based on a claimed denial of notice of the right to counsel in an earlier DWI case.

“The present case provides us with the opportunity to give clearer guidance to indigent and non-indigent DWI defendants who face an enhanced custodial sentence based on an earlier uncounseled DWI conviction,” the court wrote. It went on to hold that to secure relief from an enhanced custodial sentence for a subsequent DWI conviction, a non-indigent defendant must establish that in the earlier uncounseled DWI proceeding:

(1) he was not advised or did not know of his right to counsel and (2) had he known of his right to counsel, he would have retained a lawyer. A defendant contending he was indigent must establish that in the earlier uncounseled DWI proceeding (1) he was not advised and did not know of his right to appointed counsel, (2) he was entitled to the appointment of counsel under the applicable financial means test, R. 7:3-2(b), and (3) had he been properly informed of his rights, he would have accepted appointed counsel.

Applying the new standard, the New Jersey Supreme Court concluded that Patel had satisfied his burden of showing that his prior uncounseled DWI conviction was caused by the municipal court’s failure to advise him of his right to counsel. It explained:

In the present case, the Piscataway Municipal Court has indicated that no record remains of whether Patel’s 1994 DWI guilty plea was uncounseled or whether Patel was given notice of his right to counsel and, if indigent, the right to appointed counsel. Patel filed three certifications in the Piscataway Municipal Court in support of his application to bar the use of his 1994 DWI conviction to enhance his custodial term. He attested that the court never advised him of his right to retain an attorney or, if indigent, his right to an appointed attorney at no charge; that had he known that he had the right to an appointed attorney, he “would have taken advantage of that option”; that at the time he appeared in court he was unemployed, “barely scraping by,” and had no money to hire a lawyer; and that he entered his guilty plea without the assistance of counsel.

Based on the foregoing, the court found that “Patel has made clear in his certifications that had he been advised of his right to counsel, he would have sought the assistance of counsel — preferably appointed counsel — and, if he had resources, retained counsel.” It added: “Patel’s assertions — like those of the defendant in Laurick — have gone unrebutted.”

In J.H. v. R&M Tagliareni, LLC, (A-6-18/081128) (Decided July 31, 2019), the Supreme Court of New Jersey held that landlords do not have a duty to cover radiators in their apartment buildings. The case arose from the injuries to a nine-month old child, who was severely burned when he came into contact with a radiator in his apartment.

Facts of J.H. v. R&M Tagliareni, LLC

On March 30, 2010, a nine-month-old infant, J.H., suffered permanent scarring when he was burned by an uncovered, free-standing cast iron loop radiator in an apartment owned and managed by defendants R&M Tagliareni, LLC, and Robert & Maria Tagliareni, II, LLC. J.H.’s father placed J.H. in a twin bed to sleep with his ten- year-old stepsister. The bed did not have rails and was adjacent to a steam-heated radiator that did not have a cover. The next morning, J.H. was discovered lying on the floor with his head pressed against the hot radiator.

J.H. and his guardian ad litem filed suit, alleging defendants’ negligence was the cause of J.H.’s injuries. At his deposition, Robert Tagliareni testified that none of his tenants at the property were ever burned by coming into contact with a radiator, and none ever asked for a radiator cover or complained about not having one. Myles Pryor, an inspector for the Bureau of Housing Inspection, inspected defendants’ apartment building and its individual units in 2010. Pryor testified that he has seen radiators that do not have any sort of radiator cover on them and that he would not issue a violation to a property owner for not having covers on radiators. Based on his training as a housing inspector, Pryor testified that it is his understanding that there is no requirement under the Hotel and Multiple Dwelling Law that radiators be covered.

The trial court held that the defendants did not owe a common law duty of care to place a cover on the apartment’s radiator and were not required by a regulation that governs “heating systems” (N.J.A.C. 5:10-14.3(d)) to cover the radiator with insulating material. The statute provides: “The heating system, including such parts as heating risers, ducts and hot water lines, shall be covered with an insulating material or guard to protect occupants and other persons on the premises from receiving burns due to chance contact.”

The Appellate Division reversed, concluding that, under the common law, defendants maintained sufficient control over the heat emanating from the radiator such that a duty of care was owed to J.H. Regarding the regulatory issue, the Appellate Division concluded that plaintiffs should be allowed to argue at trial that N.J.A.C. 5:10-14.3(d) imposed a duty of care upon defendants, and that the duty was breached.

Majority Decision in J.H. v. R&M Tagliareni, LLC

The Supreme Court of New Jersey reversed. [According to the majority, it was “unpersuaded that N.J.A.C. 5:10-14.3(d) imposes any regulatory duty on landlords to cover in-unit radiators with insulating material or a cover.” As Justice Faustino Fernandez-Vina explained:

The regulatory scheme provides no evidence of an express or implied intent to include radiators as part of the “heating system” required to be insulated. Having concluded that no such regulatory duty has been imposed, and because the tenants in this case maintained exclusive control over the heat emanating from the radiator, we decline to impose on landlords a new common law duty to cover all in-unit radiators.

In reaching its decision, the majority concluded that in-unit radiators are not covered by N.J.A.C. 5:10-14.3(d). “Although ‘heating system’ is not otherwise detailed, the list of what it includes — besides the unstated but obvious heating source itself — mentions only heating risers, ducts, and hot water lines. The items listed are all of a kind — they are beyond the control of the end user and are in the exclusive control of the landlord,” Justice Fernandez-Vina wrote. “Had the DCA determined that radiators required covering, the agency possessed the knowledge and expertise to include them in N.J.A.C. 5:10-14.3(d), and could have easily done so.”

The court went on to also reject the plaintiffs’ common-law claim, emphasizing that a landlord has a duty to exercise reasonable care to guard against foreseeable dangers arising from use of those portions of the rental property over which the landlord retains control. “Absent control over property or equipment, it violates a sense of fairness to hold a landlord liable for harm caused by an item in the tenant’s control,” Justice Fernandez-Vina wrote.

Dissent in J.H. v. R&M Tagliareni, LLC

Chief Justice Stuart Rabner authored a dissent, which was joined by Justice Barry T. Albin. “Landlords have a duty to use reasonable care to guard against foreseeable hazards to tenants that arise from areas within the landlord’s control,” Chief Justice Rabner wrote.

“Based on those principles, landlords should have a duty to take reasonable steps to prevent the serious harm that scalding hot radiators can cause,” Rabner added. “A simple radiator cover, available at most home improvement stores for a modest cost, can prevent the foreseeable risk that countless apartment dwellers face. It can spare a child from being scalded and scarred.”

In L.R. v. Camden City Public School District,the Supreme Court of New Jersey addressed the extent to which school districts must provide information to requestors on settlement agreements with parents of special education students under the Open Public Records Act (OPRA) and the New Jersey Public Records Act (NJPRA). The six participating justices split 3-3. Thus, the Appellate Division’s decision was affirmed by an equally divided court. Accordingly, a document containing information relating to an individual student, even if that document has been stripped of personally identifiable information, is not subject to release, absent a court order.

Facts of L.R. v. Camden City Public School District

The litigation arose from several consolidated lawsuits filed by a parent of New Jersey students and the Innisfree Foundation. In the cases, the plaintiffs sought copies of documents, including settlement agreements and records of the provision of special services to qualified students. The school districts, Cherry Hill, Hillsborough, Parsippany-Troy Hills, and Camden City, refused to disclose the requested records. In support, they relied on statutory and regulatory provisions designed to protect the privacy of student records.

Although the federal regulations permit disclosure of redacted education records to third parties without parental consent, when all personally identifiable information is removed, the Family Educational Rights and Privacy Act of 1974(FERPA) does not  preclude individual states from adopting stricter privacy protections. At the same time, the NJPRA requires local boards of education to safeguard the reasonable privacy interests of parents and students against the opposing interests of third parties who may seek access to student records. 

The cases resulted in divergent rulings in the trial courts. The judge in the Hillsborough case held that the plaintiff advocacy organization’s request must be declined under the regulations of the New Jersey Department of Education (DOE), N.J.A.C. 6A:32-7.1 to -7.8.  Conversely, the judges in the Cherry Hill and Parsippany-Troy Hills cases ruled that the applicable laws and regulations allow the plaintiff-requestors access to the records, provided that the students’ personally identifiable information was redacted from them. Finally, the trial judge in the Camden City case dealt with the separate issues posed by a parent’s access to her own child’s records, “access logs” for those records, and other documents possessed by the school district that refer to her child. The judge ordered the school district to produce an unredacted copy of the access logs, but not other records.

The Appellate Division held that that the disputed records constituted “student records” protected from disclosure under the NJPRA. It further held that the plaintiffs could be entitled to redacted copies of the requested records, provided that on remand those plaintiffs either: (1) establish they have the status of a “[b]ona fide researcher” within the intended scope of N.J.A.C. 6A:32-7.5(e)(16); or (2) obtain from the Law Division a court order authorizing such access pursuant to N.J.A.C. 6A:32-7.5(e)(15). On appeal, the New Jersey Supreme Court agreed to consider two issues: the Appellate Division’s construction of the term “student record” under N.J.A.C. 6A:32-2.1, and the standard to be applied when a requestor seeks a “court order” pursuant to N.J.A.C. 6A:32-7.5(e)(15). 

Concurring Opinion

Three members of the New Jersey Supreme Court agreed with the Appellate Division that a “student record” under N.J.A.C. 6A:32-2.1 retains its protected status under New Jersey law notwithstanding the school district’s redaction of “personally identifiable information,” as required by FERPA and its regulations. “Although New Jersey school districts are required to comply with FERPA and its regulations, no New Jersey statute or regulation authorizes the disclosure of student records after redaction of personally identifiable information or provides that school districts satisfy New Jersey’s privacy mandate if they adhere to federal law,” Justice Anne Patterson wrote in an opinion joined by Justices Jaynee LaVecchia and Lee Solomon. “To the contrary, the text and history of New Jersey’s student record privacy regulations suggest that those regulations are intended to be distinct from — and stricter than — those imposed by FERPA and federal regulations.”

In reaching its decision, the concurring court members specificallyconcluded that, as currently drafted, N.J.A.C. 6A:32-2.1 includes in the definition of a “student record” a document containing information relating to an individual student, even if that document has been stripped of personally identifiable information that might identify the student in compliance with federal law. “The Commissioner of Education has issued no rule, or even informal guidance, providing that the redaction of personally identifiable information from a student record is sufficient to satisfy the NJPRA’s student privacy goals,” Justice Patterson wrote. “To date, the Department of Education simply has not taken the regulatory steps necessary to provide that a ‘student record’ … loses its privacy protection if a school district redacts the document.”

The New Jersey Supreme Court went on to identify non-exclusive factors that should govern a court’s determination when a requestor, not otherwise authorized by statute or regulation to have access to a given student record, seeks a court order mandating disclosure of that record pursuant to N.J.A.C. 6A:32-7.5(e)(15). They include: (1) the type of student record requested; (2) the information that the student record contains; (3) the potential for harm in any subsequent nonconsensual disclosure of the student record; (4) the injury from disclosure to the relationship between the educational agency and the student and his or her parents or guardians; (5) the extent to which disclosure will impede the educational agency’s functions by discouraging candid disclosure of information regarding students; (6) the effect disclosure may have upon persons who have provided such information; (7) the extent to which agency self-evaluation, program improvement, or other determinations will be chilled by disclosure; (8) the adequacy of safeguards to prevent unauthorized disclosure; (9) the degree of need for access to the student records; and (10) whether there is an express statutory or regulatory mandate, articulated public policy, or other recognized public interest militating toward access. The court emphasized  that not all of the factors will apply in every case and that “additional factors” not identified by the court may be relevant to a given case. 

Dissent

Justice Barry Albin authored a dissenting opinion, which was joined by Chief Justice Stuart Rabner and Justice Walter Timpone. The dissenters argued that the court should defer to the DOE’s reasonable interpretation that a redacted record that cannot be linked to a pupil is not a student record and therefore can be disclosed pursuant to an OPRA request.

“The views expressed by the DOE at oral argument are in accord with its position that once a student record has been properly redacted, it is no longer a student record under its regulation,” Justice Albin wrote. “This Court should defer to the DOE’s reasonable interpretation of the NJPRA because of its ‘experience and specialized knowledge’ in the area of public education and because policy decisions concerning the proper balance between protecting the privacy interests of student records and making school districts accountable to the public fall within its purview.”

What’s Next?

All of the justices agreed that the New Jersey Legislature should intervene. “This protracted litigation illustrates an urgent need for greater clarity in the law governing public access to educational records,” Justice Patterson wrote. “New Jersey’s current NJPRA regulations state general principles, but provide scant guidance to both requestors seeking access under OPRA and the common law.”

For more information about the New Jersey Supreme Court’s decision in L.R. v. Camden City Public School District or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

In State v. A.T.C., (A-28-18/081201) (Decided August 8, 2019), the Supreme Court of New Jersey held that the Jessica Lunsford Act (JLA) does not violate the separation of powers doctrine provided that certain conditions are satisfied. Specifically, the State must present a statement of reasons explaining its decision to depart from the twenty-five year mandatory minimum sentence specified in N.J.S.A. 2C:14-2(a), and the court must review the prosecutor’s exercise of discretion to determine whether it was arbitrary and capricious. 

Facts of State v. A.T.C.

The case involved a facial constitutional challenge to the Jessica Lunsford Act (JLA). The JLA imposes a term of incarceration of 25 years to life, with a period of parole ineligibility of at least 25 years, on an offender convicted of an aggravated sexual assault in which the victim is less than 13 years old. The JLA also authorizes a prosecutor, “in consideration of the interests of the victim,” to waive the twenty-five-year mandatory minimum and offer the defendant a negotiated plea agreement in which the term of incarceration and the period of parole ineligibility may not be less than fifteen years. The sentencing court may accept that negotiated plea agreement, and if it does so, it must sentence the defendant in accordance with that agreement. The Attorney General subsequently issued the Uniform Plea Negotiation Guidelines to Implement the Jessica Lunsford Act, (JLA Guidelines), which govern the exercise of prosecutorial discretion under the statute.

Defendant A.T.C. was arrested and charged with possession and distribution of child pornography. Defendant admitted that his computer files included pornographic videos of his girlfriend’s daughter, that he had recorded those videos beginning when the child was ten years old, and that he had digitally penetrated the victim’s vagina.

Pursuant to a plea agreement that the prosecutor offered in accordance with N.J.S.A. 2C:14-2(d), defendant pled guilty to aggravated sexual assault of a child less than 13 years of age. Defendant moved to modify his sentence, contending in relevant part that the JLA contravenes the separation of powers doctrine by vesting in the prosecutor sentencing authority constitutionally delegated to the judiciary. He argued that, in contrast to other sentencing statutes that the New Jersey Supreme Court has upheld against separation of powers challenges, the JLA affords prosecutors the discretion to determine the precise number of years, within a range of 15 to 25 years, that a defendant will serve in prison.

The trial court denied defendant’s motion. There was no discussion at defendant’s plea hearing or sentencing hearing as to why the “interests of the victim” warranted a departure, or the degree of the departure, from the JLA’s mandatory 25-year term. Consistent with the plea agreement, the court imposed a term of 20 years’ incarceration, with twenty years’ parole ineligibility, for defendant’s conviction of one count of first-degree aggravated sexual assault of a victim less than 13 years of age.

The Appellate Division rejected defendant’s separation of powers challenge to the JLA’s mandatory sentencing provisions. The New Jersey Supreme Court granted defendant’s petition for certification, “limited to defendant’s facial challenge to N.J.S.A. 2C:14-2(d) as unconstitutional for violating the separation of powers doctrine.”

New Jersey Supreme Court’s Decision in State v. A.T.C.

The New Jersey Supreme Court held that the JLA does not violate separation of powers principles provided that “(1) the State presents a statement of reasons explaining the departure from the twenty-five year mandatory minimum sentence specified in N.J.S.A. 2C:14-2(a), and (2) the sentencing court reviews the prosecutor’s exercise of discretion to ‘protect against arbitrary and capricious prosecutorial decisions.’” The court remanded the matter to the sentencing court so that the prosecutor may provide a statement of reasons for the decision to waive N.J.S.A. 2C:14-2(a)’s 25-year term of incarceration and parole disqualifier “in consideration of the interests of the victim,” and the court may determine whether that decision was arbitrary and capricious.

In reaching its decision, the New Jersey Supreme Court articulated three core principles from the its prior resolution of separation of powers challenges to statutes granting sentencing discretion to prosecutors: 1. The Attorney General must promulgate uniform statewide guidelines designed to channel that discretion and minimize sentencing disparity between counties, taking into account the legislative objective in the sentencing statute; 2. In order to facilitate effective judicial review, the prosecutor must provide a written statement of reasons for his or her exercise of prosecutorial discretion; and 3. The sentencing court maintains oversight to ensure that prosecutorial discretion is not exercised in an arbitrary and capricious manner.

Applying these principles to the JLA, the court acknowledged that no statutory provision or Guideline ensures that the court is informed of the prosecutor’s reasoning when it determines whether to accept or reject a plea agreement offered pursuant to N.J.S.A. 2C:14-2(a). Accordingly, it found there was one necessary addition to the JLA Guidelines: a requirement that prosecutors provide a statement of reasons for a decision to offer a plea bargain in which the term of incarceration or period of parole ineligibility is less than that prescribed in N.J.S.A. 2C:14-2(a).

As the court explained:

The JLA Guidelines should be amended to instruct prosecutors to provide the sentencing court with a statement of reasons for a decision to offer a defendant, in a plea agreement, a term of incarceration or a term of parole ineligibility between fifteen and twenty-five years. Such a statement is essential to effective judicial review for the arbitrary and capricious exercise of prosecutorial discretion under N.J.S.A. 2C:14-2(d).

So that the standard the new Jersey Supreme Court adopted could be applied in the case, the court remand to the sentencing court for further proceedings in accordance with its opinion.

In Sergeant First Class Frank Chiofalo v. State (A-30-18/081607) (Decided July 16, 2019), the Supreme Court of New Jersey sided with state trooper who alleges that he faced retaliation in the wake of the Death Race 2012 scandal. In doing so, the court made it clear that whistleblowers seeking to rely on the state’s Conscientious Employee Protection Act (CEPA) should not face an uphill battle.

Conscientious Employee Protection Act

As the court explained in D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 120 (2007), CEPA ensures that employees are “protected from retaliation and employers are deterred from activities that are illegal or fraudulent, or otherwise contrary to a clear mandate of public policy.”  CEPA is a remedial statute, and as such it “should be construed liberally to effectuate its important social goal.” Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 555 (2013).

N.J.S.A. 34:19-3(c)(2) protects employees who “[o]bject[] to, or refuse[] to participate in any activity, policy or practice which the employee reasonably believes . . . is fraudulent or criminal.” Meanwhile, Subsections (c)(1) and (c)(3), respectively, protect employees who take similar action with regard to activities, policies, or practices they reasonably believe are “in violation of a law, or a rule or regulation promulgated pursuant to law” or are “incompatible with a clear mandate of public policy.”

In Dzwonar v. McDevitt, 177 N.J. 451, 461-69 (2003), the New Jersey Supreme Court summarized generally what a plaintiff must set forth to establish a prima facie case pursuant to N.J.S.A. 34:19-3(c):

(1) he or she reasonably believed that his or her employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a “whistle-blowing” activity described in N.J.S.A. 34:19- 3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action.

The court further stated that either “the court or the plaintiff” must identify the statute, regulation, rule, or public policy that closely relates to the complained-of conduct. However, it also emphasized that a plaintiff need not “allege facts that, if true, actually would violate that statute, rule, or public policy.” Rather, a plaintiff is required only to “set forth facts that would support an objectively reasonable belief that a violation has occurred.”

Facts of Chiofalo v. State

Plaintiff Frank Chiofalo, a then-member of the New Jersey State Police (NJSP), filed a CEPA complaint against his employer and certain supervisors (collectively, defendants). As the Assistant Administrative Officer of Troop B of the NJSP, Chiofalo was required to log documents that came in and out of headquarters and to collect reports from the Troop B commander. Chiofalo alleges he faced retaliation for his engagement in protected activity related to two incidents.

The first pertained to a claimed refusal to destroy internal NJSP documents. On March 20, 2012, a sergeant and a trooper participated in an unsanctioned high-speed escort of collection of high-end sports cars on the Garden State Parkway, for which they later became subjects of internal review. A “letter of appreciation” from one of the escorted civilians extended thanks for the officers’ help (the Civilian Letter). On April 18, 2012, Major Edward Cetnar, Deputy Branch Commander of Field Operations, sent an internal memorandum (the Cetnar Memo) noting that the Civilian Letter had been included in the trooper’s personnel file and adding, “[p]lease convey to [the trooper] my appreciation for a job well done.” On April 23, 2012, the officers were suspended without pay pending investigation into the escort.

On Friday, April 27, 2012, the Civilian Letter and the Cetnar Memo were received by Chiofalo, who presented them the following Monday to Major Robert Cuomo, the commander of Troop B, and asked what to do with the documents. In his deposition, Chiofalo stated “[Cuomo] said ‘It does not exist,’” to which Chiofalo replied, [“I]t does exist I have it in my hand. . . . I’m not going to get rid of it.[”] According to Chiofalo, that exchange made it “pretty clear” to him that Cuomo was asking Chiofalo “to get rid of” the documents, and that in stating he was “not going to get rid” of the documents, he was refusing to participate in a criminal or fraudulent act.

Chiofalo claimed that the second protected activity occurred during an interaction with Cuomo in which he accused Cuomo of not reporting his vacation time. According to Chiofalo, Cuomo “questioned why [Chiofalo] was taking two weeks off in July.” In response, Chiofalo stated that “[he] earned [his] vacation time and when [he] take[s] it, they dock it out of [his] bank” and that “[he] take[s] [his] time, unlike others.” According to Chiofalo, when he stated “unlike others” he was referring to Cuomo and to his suspicion that Cuomo was not properly reporting all of the time that he took off.

Defendants filed a motion for summary judgment, alleging that Chiofalo failed to set forth a prima facie case under CEPA. The court denied the motion, and a jury later awarded Chiofalo $455,000 in compensatory and punitive damages. On appeal, the defendants argued that Chiofalo failed to identify a specific law or policy that prohibited Cuomo’s conduct. The Appellate Division agreed, holding that a CEPA plaintiff must first find and enunciate the specific terms of a statute or regulation, or the clear expression of public policy, which would be violated if the facts as alleged are true, which Chiofalo failed to do. “Chiofalo had failed to identify any law or regulation that he believed Cuomo violated in allegedly ordering Chiofalo to destroy documents,” the court stated. It further found that Chiofalo’s statement to Cuomo “was hardly ‘whistleblowing’ as contemplated by CEPA.” Based on the foregoing, the appeals vacated the judgment.

New Jersey Supreme Court’s Decision in Chiofalo v. State

The New Jersey Supreme Court affirmed in part and reversed in part. “We do not agree that the trial court erred in refusing to grant defendants summary judgment on one of plaintiff’s two bases for whistleblowing charges,” the court held.

The court first held that Chiofalo had stated a prima facie whistleblower claim under CEPA with respect to his allegations that he was instructed by a supervisor to destroy internal state police documents.  While the court acknowledged that “the better practice in CEPA actions brought under (c)(2), or its similarly worded counterpart in (a)(2), surely is to identify the statutory or other basis for claiming objected-to behavior is criminal or fraudulent,” it noted that it was “aware of no case that requires plaintiff to precisely cite the statutory source of perceived criminal activity.”

The court went on to note that while “criminal” or “fraudulent” activity is often apparent and commonly recognizable, the parties and the court need to have a common understanding of the legal principle that the plaintiff reasonably believed was being violated to enable joinder. Accordingly, if a defendant questions the source of law relied on by the plaintiff, that source should be provided by the plaintiff.

“We do not expect whistleblower employees to be lawyers on the spot; once engaged in the legal process, and with the assistance of counsel or careful examination by the court, however, the legal underpinnings for claimed behavior that is perceived as criminal or fraudulent should be able to be teased out sufficiently for identification purposes,” the court clarified. “Indeed, we note that NELA (the National Employment Lawyers Association of New Jersey) had no difficulty identifying statutory and regulatory provisions that pertained in this matter.”

Applying these principles to the case, the court highlighted that at no point during the trial or post-trial motions did defendants argue that the CEPA claim was deficient for plaintiff’s failure to identify a specific law, rule, regulation or public policy that was violated by the alleged acts. “More specifically, defendants never asked for a criminal code citation to support a claim under (c)(2) or some legal citation to support the claim of fraud,” the court wrote. Therefore, the court held that it would be unfair to reassess the summary judgment record based on arguments that were not advanced and that relate to a point the parties appeared to take for granted — namely, that refusal to participate in the destruction of documents would support a CEPA claim if plaintiff reasonably believed that the destruction was ordered or occurred. The New Jersey Supreme Court went on to affirm the dismissal of Chiofalo’s claim with regard to his allegation that his troop commander had engaged in fraudulent timekeeping of his vacation time. “[W]e agree with the Appellate Division that Chiofalo’s alleged statement to Cuomo that ‘[he] take[s] [his] time, unlike others’ was simply too amorphous to constitute ‘whistleblowing’ as contemplated by CEPA.’”

The Supreme Court of New Jersey recently agreed review the Appellate Division’s decision in Justin Wild v. Carriage Funeral Holdings, Inc. d/b/a Feeny Funeral Home, LLC. The case involves whether the protections afforded by the New Jersey Law Against Discrimination extend to medical cannabis users.

Facts of the Case

Plaintiff Justin Wild sued his former employer, defendant Carriage Funeral Holdings, Inc. (Carriage), under the NJLAD. The suit alleges that the unlawful discrimination arose from Wild’s use of medical marijuana, permitted by the Compassionate Use Act, as part of his cancer treatment.

In 2013, Wild began working for Carriage as a licensed funeral director. In May 2016, while working a funeral, a vehicle he was driving was struck by a vehicle that ran a stop sign. Sustaining injuries, Wild was taken by ambulance to a hospital emergency room. At the hospital, plaintiff advised a treating physician that he had a license to possess medical marijuana. The physician responded that “it was clear [plaintiff] was not under the influence of marijuana, and therefore no blood tests were required.”

Carriage learned of Wild’s medical marijuana use following the accident. Wild informed his employer that he used marijuana to alleviate his cancer pain, but only did so during non-work time. Carriage required Wild to take a blood test prior to returning to work. Wild appeared for a blood test and explained that he would test positive because of the prescribed marijuana and pain killers he was prescribed following the accident. 

In a June 3, 2016 letter, Carriage advised Wild he was being terminated. The letter stated that the reason was not Wild’s marijuana use, but his failure to disclose his use of medication, which might adversely affect his ability to perform his job duties. According to a Carriage policy, “employees must advise their immediate supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely.”

Wild subsequently filed suit. Among other allegations, Wild claimed Carriage could not lawfully terminate his employment without violating the NJLAD, despite the results of his drug test, because he had a disability (cancer) and was legally treating that disability, in accordance with his physician’s directions and in conformity with the Compassionate Use Act. In granting defendants’ motion to dismiss, the trial judge determined that the Compassionate Use Act “does not contain employment-related protections for licensed users of medical marijuana” and, in accepting plaintiff’s own allegations, the adverse employment action was taken due to a positive drug test and a violation of Carriage’s drug use policy.

Appellate Division’s Decision

The Appellate Division reversed. “[W]e reject the essential holding that brings this matter here and conclude that the Compassionate Use Act’s refusal to require an employment accommodation for a user does not mean that the Compassionate Use Act has immunized employers from obligations already imposed elsewhere,” Judge Clarkson Fisher Jr. wrote. “It would be ironic indeed if the Compassionate Use Act limited the Law Against Discrimination to permit an employer’s termination of a cancer patient’s employment by discriminating without compassion. We reverse.”

In reaching its decision, the Appellate held that the Compassionate Use Act’s refusal to require an employment accommodation for a medical marijuana user does not mean that the Compassionate Use Act has immunized employers from obligations already imposed under other statutes, such as the NJLAD. Judge Fisher explained:

The Compassionate Use Act neither created new employment rights nor destroyed existing employment rights; it certainly expressed no intent to alter the LAD. Just as the Compassionate Use Act imposes no burden on defendants, it negates no rights or claims available to plaintiff that emanate from the LAD.

Issues Before New Jersey Supreme Court

The New Jersey Supreme Court has agreed to consider the following question:

Does the New Jersey Compassionate Use Medical Marijuana Act — which declares that “nothing” in the Compassionate Use Act “require[s]” an employer to accommodate a medical marijuana user, N.J.S.A. 24:6I-14 — preclude a claim by an employee against an employer based on, among other things, the Law Against Discrimination?

The court has not yet scheduled oral arguments in the case. 

In S.L.W. v. New Jersey Division of Pensions and Benefits, the Supreme Court of New Jersey held that children of Police and Firemen’s Retirement System (PFRS) members are not required to meet a dependency requirement to be entitled to survivor benefits. According to the court, its conclusion is consistent with the PFRS’s underlying policy goal of financially protecting the family members of its deceased members.

Legal Background

Under N.J.S.A. 43:16A-12.1, when members of the Police and Firemen’s Retirement System (PFRS) die after retirement, their children and widowed spouses are eligible to receive survivor benefits. N.J.S.A. 43:16A-1(21)(d) defines a “child” eligible for survivor benefits as a deceased member’s or retirant’s unmarried child “of any age who, at the time of the member’s or retirant’s death, is disabled because of an intellectual disability or physical incapacity, is unable to do any substantial, gainful work because of the impairment and [her or] his impairment has lasted or can be expected to last for a continuous period of not less than 12 months, as affirmed by the medical board.”

The PFRS statute includes an enabling clause allowing the State Treasurer to “promulgate any rules and regulations necessary to accomplish the purposes of this act.” N.J.A.C. 17:4-3.7 provides: “Proof of dependency shall be established by the filing of an affidavit of dependency, supported by the deceased and the claimant’s income tax returns, for the period immediately preceding the death or accident.”

Facts of S.L.W. v. New Jersey Division of Pensions and Benefits

Plaintiff S.L.W., an adult woman with disabilities, sought survivor benefits after her father, a longtime member of the New Jersey law enforcement community, passed away in 2012. As detailed in court documents, S.L.W.’s father retired after a long career in law enforcement and began receiving pension retirement benefits from PFRS. S.L.W. also worked in law enforcement until 2008 when a drunk driver plowed into her patrol car while she was on duty. Her injuries led to her physical disability and, concurrently, her inability to work. Going forward, S.L.W. relied on her father for upwards of 90% of her living expenses but indicated on her income taxes that no one could claim her as a dependent.

S.L.W.’s father died in June 2012. About a year and a half later, she submitted an application for survivor benefits under his pension plan. In late June 2014, the New Jersey Division of Pensions and Benefits(Division) informed S.L.W. that she did not meet its interpretation of the word “child” for PFRS purposes because she had been emancipated and employed prior to her disability. The letter concluded that, even if the Division’s interpretation of “child” was incorrect, S.L.W. was still bound to prove dependency under N.J.A.C. 17:4-3.7.

In July 2014, S.L.W. filed a letter-appeal with the PFRS Board of Trustees (Board) disputing the Division’s explanation that she must provide tax returns showing her father had claimed her as a dependent. The Board held a hearing on the matter in early August 2014 and decided S.L.W. did not qualify for survivor benefits. Nevertheless, the Board referred the matter to the Office of Administrative Law for an evidentiary hearing.

An Administrative Law Judge (ALJ) concluded S.L.W. did not qualify as a “child” under N.J.S.A. 43:16A-1(21)(d) and dismissed S.L.W.’s appeal. In November 2016, the Board adopted the recommendations of the ALJ. S.L.W. appealed the Board’s decision. The Appellate Division agreed with the ALJ’s determination that S.L.W. did not properly establish dependency but found that S.L.W.’s emancipation did not disqualify her as a “child” under N.J.S.A. 43:16A-1(21)(d).

Court’s Decision in S.L.W. v. New Jersey Division of Pensions and Benefits

The New Jersey Supreme Court held that the Legislature did not intend for children of PFRS members to meet a dependency requirement to receive survivor benefits. In support, it cited the PFRS statute’s plain language and legislative history.

The court also noted that in Saccone v. PFRS, 219 N.J. 369 (2014), it previously “recognized strong public policy favoring the financial protection of a public employee’s family,” including protecting “a public employee’s ability to provide adequately for the well-being of his disabled child after his death.” Accordingly, in that case, the court concluded, “the survivor benefits statute, like the entire PFRS pension scheme, should be interpreted in light of its remedial character. The statute should be construed in a manner that furthers its fundamental purpose.”

With regard to of N.J.S.A. 43:16A-1(21)(d), the court emphasized that the “literal reading” supports S.L.W.’s argument: the plain language definition of “child” makes no mention of any dependency requirement for survivor benefits. “The PFRS’s survivor benefits statute manifests a strong commitment to the financial well-being of a deceased PFRS member’s or retirant’s surviving spouse and children,” the court wrote. “Correspondingly, the inclusion of N.J.S.A. 43:16A- 1(21)(d), specifically providing for children with disabilities and impairments that inhibit a child’s ability to work, demonstrates the PFRS scheme’s desire to use the delayed compensation benefits earned by members of PFRS to support their family members with disabilities. We see nothing in the statute’s plain language that requires the Division to limit those protections.”

The court further noted that the legislative history supports its finding. “The history of the family member definitions and the present-day plain language of those definitions demonstrate that the Legislature knows how to impose a clearly defined dependency requirement when it so desires,” the court wrote. “So, it is implausible to impute a dependency requirement to qualify as a child when the law expressly outlines that requirement only for parents. We decline to conclude the statute’s definition of child holds any implied, presumed, or suggested dependency requirement.”

Because the court couldn’t find S.L.W. eligible for survivor benefits as she has not yet had the opportunity to prove she meets all the requirements for those benefits, it remanded the case to determine whether S.L.W. is otherwise eligible for survivor benefits.

In G.A.-H. v. K.G.G., (A-25/26-18/081545) (Decided June 26, 2019), the Supreme Court of New Jersey held that the employer and co-worker of a man who sexually abused a minor can’t be held liable for failing to report the abuse to law enforcement.

According to the court, no reasonable trier of fact could find that the defendant knew or had special reason to know that his co-worker was engaged in a sexual relationship with a minor. Accordingly, he had no duty to report the alleged abuse and the employer could not be held liable.

Facts of G.A.-H. v. K.G.G.

The case revolved around three main issues: whether the defendant, “Arthur,” was obligated to report that his co-worker “Kenneth” was engaged in a sexual relationship with a minor; whether their employer, GEM Ambulance, LLC (GEM), is vicariously liable for Arthur’s failure to report; and whether GEM negligently retained, trained, or supervised Arthur or Kenneth.

According to court documents, Kenneth groomed the plaintiff to trust him and began having sexual intercourse with her in September 2010, when she was 15 and he was 44. When this illegal relationship was ongoing, Kenneth worked for GEM as an emergency medical technician (EMT). While Kenneth was working, he would sometimes park a GEM ambulance near the plaintiff’s bus stop and, from there, he would walk her to her bus stop. No other GEM EMT interacted with the plaintiff on these occasions, and her bus stop could not be seen from the GEM vehicle.

Kenneth often bragged to co-workers that he was in a “relationship,” but he never identified the plaintiff by her real name or age. Kenneth often stated various ages when telling his co-workers how old his “girlfriend” was, but he never mentioned an age below the age of consent. Kenneth and Arthur worked together on several shifts, during which Kenneth would show Arthur the pictures and videos of a naked female that Kenneth had on his phone. Arthur would quickly look away from Kenneth’s phone, which was a “flip phone” with a small screen.

Kenneth’s abuse of the plaintiff ended in February 2011, when she informed her mother about her relationship with Kenneth. Plaintiff’s mother notified the police of Kenneth’s actions. Kenneth thereafter pled guilty to various criminal offenses. Plaintiff subsequently filed suit against Kenneth, Arthur, and GEM, among others, in February 2015. She maintained that Arthur should have reported Kenneth to supervisors at GEM and that GEM was vicariously liable for Arthur’s failure to report Kenneth’s conduct and also negligent in retaining, training, and supervising Arthur and Kenneth.

The trial court entered default judgment against Kenneth. The trial court granted Arthur and GEM summary judgment, holding that Arthur had no duty to report Kenneth and, moreover, that no facts created a reasonable basis for Arthur to believe Kenneth was engaged in a sexual relationship with a minor. The trial court further held that there was no basis for liability to attach to GEM.

The Appellate Division vacated the trial court’s grants of summary judgment and remanded for further development of the record, concluding that “the common law does not necessarily preclude the imposition of” a duty to report that a co-worker is engaged in a sexual relationship with a minor and the record here was not sufficiently developed to determine whether Arthur knew of Kenneth’s illicit sexual relationship with the plaintiff. In support, the appeals court cited J.S. v. R.T.H., 155 N.J. 330, 334, 342 (1998), in which the New Jersey Supreme Court held that a spouse with “knowledge or special reason to know” that her spouse was sexually abusing children had a duty to prevent or report that abuse.

Court’s Decision in G.A.-H. v. K.G.G.

The New Jersey Supreme Court reversed. It concluded that no reasonable trier of fact could find that Arthur knew or had special reason to know that Kenneth was engaged in a sexual relationship with a minor. Based on its conclusion, the court did not address whether a co-worker or employer with knowledge or a special reason to know that a co-worker or employee is engaged in a sexual relationship with a minor has a legal duty to report that co-worker or employee.

“We need not decide whether that duty should apply to co- workers because no reasonable trier of fact could find that Arthur knew or had special reason to know that Kenneth was engaged in an illegal sexual relationship with a minor,” Justice Faustino Fernandez-Vina wrote on behalf of the court.

With regard to whether Arthur knew Kenneth was engaged in a sexual relationship with a minor or a special reason to know that Kenneth was engaged in a sexual relationship with a minor, the court concluded that factual support was lacking. As Justice Fernandez-Vina explained:

It is often difficult to know someone’s age based upon appearance alone. Plaintiff claims Arthur should have known she was below the age of consent because Kenneth showed him the pictures and videos of plaintiff on Kenneth’s phone. Nothing in the record suggests that Arthur viewed any pictures or videos of plaintiff. But, even assuming he did, in order for Arthur to know that plaintiff was below the age of consent, he would have had to perceive the difference between someone who is above or below the age of consent based upon appearance alone and from a small cellphone image. A small cellphone image of a naked female does not give rise to a “special reason to know” that Kenneth was engaged in a sexual relationship with a minor. Because Arthur did not commit a tort, the court further concluded that GEM could not be held vicariously liable for his conduct. It further held that the record did not adequately support plaintiff’s claim for negligent retention, training, or supervision. “Although plaintiff

In Sun Life Assurance Company of Canada v. Wells Fargo Bank, N.A., (A-49-17/080669) (Decided June 4, 2019), the Supreme Court of New Jersey held that Stranger-Originated Life Insurance (STOLI) policies violate public policy and are void at the outset. The court further held that a party may be entitled to a refund of premium payments it made on such a policy, depending on the circumstances.

Facts of Sun Life Assurance Company of Canada v. Wells Fargo Bank, N.A

In April 2007, Sun Life Assurance Company of Canada received an application for a $5 million insurance policy on the life of Nancy Bergman. The application listed a trust as the sole owner and beneficiary of the policy. Ms. Bergman’s grandson signed as trustee. The other members of the trust were all investors, and all strangers to Ms. Bergman. The investors paid most if not all of the policy’s premiums.

Sun Life received an inspection report that listed Ms. Bergman’s annual income as more than $600,000 and her overall net worth at $9.235 million. In reality, her income was about $3000 a month, and her estate was later valued at between $100,000 and $250,000. Although Ms. Bergman represented that she had no other life insurance policies, five policies were taken out on her life in 2007, for a total of $37 million.

Sun Life issued the policy on July 13, 2007. At the time, the trust was the sole owner and beneficiary. The policy had an incontestability clause that barred Sun Life from challenging the policy — other than for non-payment of premiums — after it had been “in force during the lifetime of the Insured” for two years. About five weeks after the policy was issued, the grandson resigned as trustee and appointed the investors as successor co-trustees. The trust agreement was amended so that most of the policy’s benefits would go to the investors, who were also empowered to sell the policy.

More than two years later, the trust sold the policy, and the investors received nearly all of the proceeds from the sale. Wells Fargo Bank, N.A. eventually obtained the policy in a bankruptcy settlement and continued to pay the premiums.

After Nancy Bergman passed away in 2014, Wells Fargo sought to collect the policy’s death benefit. Sun Life investigated the claim, uncovered the discrepancies noted above, and declined to pay. Instead, Sun Life sought a declaratory judgment that the policy was void ab initio (from the beginning). Wells Fargo counterclaimed for breach of contract and sought the policy’s $5 million face value; if the court voided the policy, Wells Fargo sought a refund of the premiums it paid.

The District Court partially granted Sun Life’s motion for summary judgment. After first concluding that New Jersey law applied, the court held “that this was a STOLI [(stranger-originated life insurance)] transaction lacking insurable interest in violation of [the State’s] public policy. . . . As such, it should be declared void ab initio.” The court also granted Wells Fargo’s motion to recover its premium payments, reasoning that “Wells Fargo is not to blame for the fraud here” and that “[a]llowing Sun Life to retain the premiums would be a windfall to the company.”

Both parties appealed. Finding no dispositive New Jersey case law, the Third Circuit Court of Appeals certified two questions of law to the New Jersey Supreme Court:

1. Does a life insurance policy that is procured with the intent to benefit persons without an insurable interest in the life of the insured violate the public policy of New Jersey, and if so, is that policy void ab initio?
2. If such a policy is void ab initio, is a later purchaser of the policy, who was not involved in the illegal conduct, entitled to a refund of any premium payments that they made on the policy?

Court’s Decision in Sun Life Assurance Company of Canada v. Wells Fargo Bank, N.A.

The New Jersey Supreme Court answered both questions in the affirmative.

The court first held that a life insurance policy procured with the intent to benefit persons without an insurable interest in the life of the insured does violate the public policy of New Jersey. Moreover, such a policy is void at the outset.

“We find that STOLI policies run afoul of New Jersey’s insurable interest requirement and are against public policy. It would elevate form over substance to conclude that feigned compliance with the insurable interest statute — as technically exists at the outset of a STOLI transaction — satisfies the law,” Chief Justice Stuart Rabner wrote. “Such an approach would upend the very protections the statute was designed to confer and would effectively allow strangers to wager on human lives.”

The New Jersey Supreme Court further held that a party may be entitled to a refund of premium payments it made on the policy, depending on the circumstances. “Among other relevant factors, courts should consider a later purchaser’s participation in and knowledge of the original illicit scheme,” Chief Justice Rabner wrote.

n Frances Green v. Monmouth University, (A-63-17/080612) (Decided May 7, 2019), the Supreme Court of New Jersey held that Monmouth University is entitled to charitable immunity in a lawsuit involving an injury suffered at a Martina McBride concert on campus in 2012. According to the Court, the “concert was promoting the University’s educational objectives and purposes at the time of Green’s injury, and as a result, Monmouth University is afforded charitable immunity.”

Charitable Immunity

New Jersey’s Charitable Immunity Act provides that it “shall be deemed to be remedial and shall be liberally construed so as to afford immunity to” nonprofit entities “organized for religious, charitable, educational or hospital purposes.”

As set forth in Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 342 (2003), the New Jersey Supreme Court has determined that “an entity qualifies for charitable immunity when it (1) was formed for nonprofit purposes; (2) is organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works.”

Facts of Frances Green v. Monmouth University

Plaintiff Frances Green brought suit against Monmouth University, a non-profit educational institution, for injuries she allegedly sustained while attending a Martina McBride concert that was held in a University facility but was open to the public. Monmouth University and Thoroughbred Management, Inc. (TMI), a for-profit corporation, entered into an agreement that allowed TMI to use the University’s Multipurpose Activity Center (MAC) for the McBride concert. In addition, guests were charged a “facility fee” of $3.00 per ticket, the proceeds of which were split evenly between the University and TMI. The Vice President also testified that the University did not expect to make money on its fee but instead hoped to cover its direct costs.

While attending the concert, Green was climbing a set of stairs in an area that she alleges was poorly lit. As Green stepped onto what appeared to be a solid surface, her foot slipped down to the step below, causing her to fall forward. Her face struck the back of a seat in one of the rows adjacent to the stairs. A University police officer walked to where Green fell and observed a rubber strip sticking out from the step.

Green filed a complaint against the University. The trial court granted summary judgment in favor of the University. Noting that the University’s resolution states that the University’s purposes include holding concerts for the general public to advance the cause of education and wholesome recreation, the court determined that the McBride concert fell “squarely within those purposes.” In addition, the court concluded that, even though Green was not a University student, she was a beneficiary of its educational purpose when she attended the concert. Accordingly, trial court held that charitable immunity applied against Green’s claim.

In a split decision, the Appellate Division affirmed the trial court’s decision. The dissenting judge determined immunity to be inappropriate in light of the income the University derived from the concert and the disputed question of whether McBride’s concert was an “artistic performance” that served the University’s educational goals.

Green appealed, and the New Jersey Supreme Court granted certiorari. As the New Jersey Supreme Court highlighted, the case hinged on whether, in hosting the concert, the University was engaged in performing the educational objectives it was organized to promote and whether Green was “a direct recipient of those good works” when she attended the concert.

Court’s Decision in Frances Green v. Monmouth University

The New Jersey Supreme Court affirmed.“We hold that the underlying concert was promoting the University’s educational objectives and purposes at the time of Green’s injury, and as a result, Monmouth University is afforded charitable immunity,” Justice Faustino Fernandez-Vina wrote.

In reaching its decision, the panel concluded that courts should not be in the business of deciding what music constitutes “educational” music and what does not. “By accepting the premise that all music is art, regardless of whether it is country music, classical music, rap or some other type, courts can avoid going down the proverbial rabbit hole of determining what music is considered artistic, and what is not,” Justice Fernandez-Vina wrote. “Nor does it matter whether the music comes from a mainstream, commercially successful performer or a nonprofit group. The outcome is the same.”

The court also found that Monmouth University’s decision to rent out the MAC to host the Martina McBride concert did not result in the loss of the University’s charitable immunity. “A charitable entity should be allowed to contract with third-party for-profit entities to help facilitate the logistics of establishing and running a charitable event — like a concert — inasmuch as certain third parties undoubtedly have certain resources, contacts, and expertise that a charitable entity may not possess,” Fernandez-Vina wrote.

“If hiring third-party professionals triggers the loss of an entity’s immunity status, non-profits in turn will be dissuaded from presenting religious, charitable, or educational events, which is contrary to the Legislature’s intent,” he added.

The court also emphasized that its decision was not at all based on whether the University here made a profit or lost money on the concert. “The Legislature could have set up the Charitable Immunity Act to turn on such issues, but it did not,” Fernandez-Vina wrote.