In Patricia Delvecchio v. Township of Bridgewater, the Supreme Court of New Jersey held that an aggrieved public employee could rely on the testimony of a treating physician, who has not been designated as an expert witness, to establish the existence of a disability for a claim under the New Jersey Law Against Discrimination (LAD). 

The Facts of the Case

Plaintiff Patricia A. Delvecchio was employed by the Township of Bridgewater (Township) as a dispatcher for the Police Department (Department). At that time, the Township maintained three shifts for police dispatchers, including a midnight shift, and required dispatchers to work each of the shifts on a rotating basis. In 2003, plaintiff developed inflammatory bowel syndrome (IBS), and began treatment with Dr. Gary Ciambotti (Ciambotti), a gastroenterologist. Ciambotti wrote to plaintiff’s supervisors and stated that her symptoms would be exacerbated by an assignment to the midnight shift. While the Township initially provided her with a steady afternoon shift, it later stated that it could not guarantee that she could entirely avoid midnight shifts.

In September 2006, plaintiff began treatment with Dr. Joseph Rochford (Rochford), a psychiatrist, who diagnosed her with anxiety and panic attacks. He also provided a note to the Township stating that midnight shift assignments would exacerbate the plaintiff’s stress condition. On December 24, 2007, plaintiff declined her supervisor’s request that she work a midnight shift, and another dispatcher was required to remain on duty to cover the shift. The Township asked plaintiff to resign, citing the burden imposed on other employees who covered the remaining shifts. The plaintiff refused, and accepted another position with the Township as a records clerk, but at a lower salary. On September 16, 2009, the Township terminated plaintiff’s employment for neglect of duty and chronic/excessive absenteeism.

The plaintiff subsequently filed a complaint for disability discrimination and retaliation under the LAD. In response to defendants’ discovery requests, plaintiff stated that she had not retained any expert witnesses, but identified Ciambotti and Rochford as treating physicians who were expected to testify. At trial, the court did not permit Ciambotti to provide testimony regarding his diagnosis and treatment for plaintiff since he had not prepared an expert report. The court also limited Rochford’s testimony by precluding any opinion regarding plaintiff’s diagnosis. The jury ultimately ruled in favor of the Township.

The trial court rejected the plaintiff’s request for a new trial. However, the Appellate Division reversed and remanded for a new trial on the ground that the trial court had improperly restricted Ciambotti’s testimony.

The Court’s Decision

The New Jersey Supreme Court held that the testimony of a treating physician is admissible to support a plaintiff’s disability claim under the LAD, “provided that the proponent gives notice of the testimony to the adverse party, responds to discovery requests in accordance with the Rules of Court, and the testimony satisfies N.J.R.E. 701 and other applicable Rules of Evidence.”

In this case, because the plaintiff provided the information that defendants requested in discovery regarding the proposed treating physician witnesses, the court concluded that “the trial court should have permitted her to present the vital testimony of these witnesses.”

As explained by the court:

Treating physicians have been consistently permitted to offer medical testimony regarding the diagnosis and treatment of their patients. When treating physicians are called to offer such testimony, they are not testifying as expert witnesses, but, instead, are offering factual evidence and opinion evidence governed by N.J.R.E. 701. The Rule allows a court to admit testimony of a lay witness in the form of opinions or inferences provided that the testimony is rationally based on the perception of the witness, and will assist in understanding the witness’s testimony or in determining a fact in issue.

Nonetheless, the court did note an important restriction — the testimony of a treating physician is limited to issues relevant to the diagnosis and treatment of the individual patient. Accordingly, “if a particular claim requires medical testimony extending beyond the plaintiff’s own diagnosis and treatment, the plaintiff may require the testimony of an expert.”

For more information about the case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

An Ocean County Superior Court Judge recently considered whether the court has the authority to impose an obligation upon municipalities to satisfy the affordable housing need which arose from the end of the second round housing cycle in 1999 to the present. In his opinion, Judge Mark Troncone held that municipalities must consider the so-called “gap period.” 

As we have previously discussed on this blog, on March 10, the Supreme Court of New Jersey transferred the administration of affordable housing rules back to the courts. In doing so, the court effectively stripped the Council on Affordable Housing (COAH) of any power after failing to promulgate affordable housing rules.

In the latest decision, Judge Troncone considered how municipalities should determine their housing quotas. A municipality-commissioned report by Econsult Solutions estimates a statewide obligation of 155,000 units, while the Fair Share Housing Center projects nearly 350,000. The difference is largely attributable to whether the 15-year gap period is taken into consideration. The court largely ruled against the municipalities.

“The New Jersey Supreme Court found the ‘obligation to meet the prospective lower income housing need of the region is, by definition, one that is met year after year in the future, throughout the years of the particular projection used in calculating prospective need,'” Troncone wrote. “Therefore, New Jersey’s affordable housing need is cumulative and there can be no gaps in time left unaddressed. This obligation is clear and, moreover, one that has been acknowledged without objection by both COAH and the municipalities themselves in the past.”

Judge Troncone’s decision is not binding outside of Ocean County. However, Superior Court Judge Douglas Wolfson in Middlesex County reached a similar conclusion last fall. “New Jersey’s affordable housing need is cumulative, and there can be no gaps in time left unaddressed,” he wrote. Both judges also relied on expert testimony by Richard B. Reading. He is serving as a court-appointed special master in the counties of Ocean, Atlantic, Mercer, Monmouth, Essex, Somerset, Hunterdon and Warren.

While both judges held that communities should be able to address the need over time, the two judges did not agree regarding whether a municipality’s gap-period obligation should be subject to the statutory cap of 1,000 units per 10-year housing cycle. In the latest ruling, Judge Troncone ruled in the affirmative. “No municipality shall be required to address a fair share obligation beyond 1000 units for the upcoming ten (10) year third round cycle. Therefore, the 1999 to 2015 gap component coupled with the present and prospective need components are subject to the 1000 unit cap,” he wrote.

As the rulings highlight, the process for determining municipal affordable housing obligations is riddled with complex questions. We will continue to monitor the issue and provide updates as the courts issue decisions.

For more information about the affordable housing case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

As the New Year begins, we will be taking a look back at the public law developments that took place in 2015. In the area of land use, there were a number of legal developments that impacted both public entities and private developers.

Below is a brief recap of some of our most important blog posts:

Affordable Housing Lawsuits

Issues surrounding the state’s affordable housing requirements were a major issue in 2015 and will continue to evolve in the coming year. On March 10, the Supreme Court of New Jersey transferred the administration of affordable housing rules back to the courts. In doing so, the court effectively stripped the Council on Affordable Housing (COAH) of any power after failing to promulgate affordable housing rules. Under the order, the Fair Share Housing Center (FSHC) or any other interested party may file a challenge to a town’s constitutional compliance against a municipality. This summer, a Middlesex County judge issued the first affordable housing ruling under the new legal scheme articulated by the New Jersey Supreme Court. Superior Court Judge Douglas Wolfson’s decision in In The Matter of Adoption of Monroe Twp. Hous. Element & Fair Share Plan and Implementing Ordinances was recently upheld by the Appellate Division.

Cell Tower Siting Applications

In January, the U.S. Supreme Court ruled against a Georgia municipality in T-Mobile South LLC v. City of Roswell, which involved the city’s denial of a cell tower application. The Court held that the federal Telecommunications Act mandates that municipalities provide a written explanation when denying a request, and that the explanation must be issued essentially contemporaneously with notice of the denial.

Challenging Land Use Ordinances

In Griepenburg v. Township of Ocean, the Supreme Court of New Jersey addressed the power of municipalities to zone property consistent with their Master Plan and Municipal Land Use Law (MLUL) goals. It held that plaintiffs must exhaust their administrative remedies before being able to attack municipal land use ordinances in court, which represented a dramatic change in the law and may preclude challenges brought for the sole purpose of challenging the validity of a land use ordinance.

Conflicts of Interest in Development Approvals

In Grabowsky v. Twp. of Montclair, the Supreme Court of New Jersey held that municipal officials could be disqualified from voting on redevelopment matters if they belong to organizations that may be impacted by the project. Under the newly established conflict of interest rule, when a public official serves in a substantive leadership role in an organization that brings or opposes a zoning application or that is the owner of property within 200 feet of the property in dispute, he or she is precluded from voting on the matter.

Permit Extension Act to Sunset

In 2008, New Jersey first passed the Permit Extension Act, which suspends the running of the period of any covered permit or approval in existence during the “extension period.” Although the statute has been extended several times, given that the New Jersey legislature has taken no further action, it will likely sunset at the end of the year. For local governments and developers, it is imperative to begin the process of assessing the expiration dates of permits that were previously subject to the Permit Extension Act.

To learn more about the New Jersey land use developments discussed above, we encourage you to click through to the relevant blog post. You can also contact a member of Scarinci Hollenbeck’s public law practice with any questions regarding how the developments may impact your municipality or agency.

As 2015 comes to a close, we will be taking a look back at the major public law issues that impacted New Jersey municipalities and other public entities. Particularly in the area of employment law, where this year saw a number of legal developments, including new laws and precedential court decisions.

Ban on Criminal Background Checks

On March 1, 2015, New Jersey’s “ban the box” law went into effect. The New Jersey Opportunity to Compete Act prohibits employers from inquiring into an applicant’s criminal history during the initial employment application process. It also precludes employers from publishing job advertisements stating that they will not hire workers who have been arrested for or convicted of a crime. Prior to the law’s enactment, many New Jersey municipalities, including Newark and Atlantic City, had adopted their own “ban the box” ordinances. The new statute supersedes any county or municipal ordinance, resolution or rule regarding inquiries into job applicants’ criminal histories, except to the extent the ordinances regulate municipal operations.

Municipal Sick Leave Laws

New Jersey municipalities continued to adopt sick leave ordinances in 2015. Most recently, voters in Elizabeth approved a law that will require employers to provide sick leave to all workers. In total, 10 cities and towns in New Jersey require businesses to provide pay sick leave to their workers. In Jersey City, one of the first municipalities to require paid sick leave, the sick leave ordinance was recently expanded to apply to businesses with less than ten employees. Efforts to adopt a statewide sick leave law are ongoing, with much of the debate surrounding whether the proposed state employment law would supersede municipal ordinances.

Section 1983 Retaliation Claims

In February, the Third Circuit Court of Appeals ruled in Heffernan v. City of Paterson that public employees must provide some evidence that they actually exercised their First Amendment rights in order to sustain a retaliation claim under 42 U.S.C. § 1983. The case is now before the U.S. Supreme Court. The specific question to be addressed is “whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.” Oral argument is scheduled for January 19, 2016.

New Jersey Sexual Harassment Law

Although the case did not involve a public employer, municipalities should be aware of the New Jersey Supreme Court’s decision in Aguas v. State of New Jersey. In a precedential decision, the state’s highest court addressed two significant issues that impact sexual harassment/hostile workplace claims. In what is regarded as being a win for employers, the court followed federal legal precedent by holding that having a strong anti-harassment policy in place can shield businesses from liability so long as the worker did not suffer an adverse employment action. However, with regard to the definition of a supervisor for purposes of a hostile work environment sexual harassment claim, the court declined to adopt the U.S. Supreme Court’s narrow definition of supervisor, as set forth in Vance v. Ball State University. Rather, the court adopted the more flexible definition applied by the Equal Employment Opportunity Commission (EEOC) for purposes of imposing vicarious liability.

To learn more about the New Jersey public employment developments discussed above, we encourage you to click through to the relevant blog post. You can also contact a member of Scarinci Hollenbeck’s public law practice with any questions regarding how the developments may impact your municipality or agency.

On October 20, 2014, the Council on Affordable Housing (COAH) reached a deadlock and failed to adopt the proposed “third round regulations.” A motion to table the regulations for 60 days also failed by a three to three vote.

The Supreme Court of New Jersey required COAH to adopt Third Round Rules on or before October 22, 2014 so that they could be published in the November 17, 2014, New Jersey Register. The board has missed the first deadline and, absent emergency action, appears poised to miss the second.

As we have previously discussed on the Scarinci Hollenbeck Government & Law Blog, COAH’s third round regulations have been the subject of intense debate and frequent litigation for over a decade. Last September the New Jersey Supreme Court rejected the previous iteration of COAH’s “third round” rules, which proposed a “growth share” methodology for assessing prospective need in allocating a municipality’s fair share of the region’s need for affordable housing. It set a deadline of February 26, 2014 for COAH to issue new regulations in compliance with the Fair Housing Act.

After COAH missed previous rulemaking deadlines, several groups, including Fair Share Housing Center, filed suit to enforce the court’s order. In March, the court again established a timeline for the adoption of the regulations. In accordance with the order, COAH issued a new set of draft regulations in May and scheduled a public comment period, during which the proposed rules were met with widespread criticism.

The impact of COAH’s failure to implement the rules is still unclear. In its March 14 order, the New Jersey Supreme Court outlined what could happen if COAH failed to implement new rules. The court expressly authorized motions in aid of the litigant’s right to lift the protections provided to municipalities in accordance with the Fair Housing Act N.J.S.A. 52:27D-313. If such a request is granted, the court provided that actions may be commenced on a case-by-case basis or in the form of “builder’s remedy” challenges.

The Fair Share Housing Center, filed a motion in aid of litigants rights with the Supreme Court on October 31, 2014. The motion asks that the Supreme Court allow various trial courts, rather that COAH, to “be responsible” for implementing the Fair Share Housing Act. Such a ruling would lift the restrictions in place on the “builder remedy” lawsuits.

Given the potential impact of COAH’s actions, we will be closely following this issue and any resulting court action. Please stay tuned for updates.

For more information about COAH or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

The Appellate Division of the New Jersey Superior Court recently ruled that an Essex County sheriff’s officer was entitled to accidental disability benefits after being pierced with a hypodermic needle when attempting to take a suspect into custody. The court concluded that the Board of Trustees of the Police and Firemen’s Retirement System’s decision was predicated on an incorrect application of the prevailing legal standards regarding accidental disability benefits.

The Facts of the Case

Essex County Sheriff’s Officer Frank Caminiti was pierced with a hypodermic needle while attempting to subdue a suspect. Following the incident, Caminiti was prescribed an AIDS cocktail, which doctors said could possibly prevent him from contracting the disease. The doctors also told him “not to have any saliva contact with [his] children for at least six months” and to avoid all sexual relations with his wife until after he had had two negative HIV tests.

The medications made Caminiti very ill, and eventually required the addition of a drug given to cancer patients to counteract the effects of chemotherapy and lessen the nausea. He also suffered emotional and psychological trauma, including insomnia, nightmares and thoughts of suicide. He eventually retired from the force and applied for accidental disability benefits.

Caminiti’s initial claim was denied.  The Appellate Division affirmed the denial.  Caminiti filed a petition for Certification.  While the petition was pending, the Supreme Court of New Jersey decided Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (2008), and Richardson v. Board of Trustees, Police & Firemen’s Retirement System, 192 N.J. 189 (2007), which changed the legal standard for determining eligibility to receive accidental disability benefits.

In Richardson, the New Jersey Supreme Court established a multi-part test for accidental disability benefits. Claimants must show that they are permanently and totally disabled, as a direct result of an undesigned and unexpected traumatic event, that is identifiable as to time and place, caused by a circumstance external to the claimant, occurred during and as a result of regular or assigned duties, and was not the result of their negligence.  Moreover, claimants must be mentally or physically incapacitated from performing their usual or any other duty.  Based on Richardson, the Supreme Court remanded Caminiti’s case to the Board for reconsideration.

Shortly thereafter, the Supreme Court decided Patterson.  In Patterson, the state Supreme Court held that to obtain accidental disability benefits for a mental injury precipitated by an exclusively mental stressor, a member must satisfy the standards in Richardson. In addition, the disability must result from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person.

On remand, the Board again denied the application, finding that although Caminiti met the Richardson factors, the needle piercing was not an event that is objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury as required under Patterson. Caminiti again appealed.

The Appellate Division’s Decision

The Appellate Division concluded that the Board’s denial of Caminiti’s application mischaracterized the factual record and misapplied the standards established by the Supreme Court in Patterson and Richardson. The Appellate Division specifically found that the Patterson standard is inapplicable where an applicant suffers both a physical and psychiatric injury.

In its opinion, the Appellate Division highlighted that the Richardson factors explicitly allow a member to qualify for accidental disability benefits based on being “mentally or physically incapacitated” as a result of a traumatic event. Moreover, it found that “the Board’s insistence that appellant must meet the additional Patterson requirement ignores or undervalues that appellant underwent extensive medical treatment for the injury he received.”

As noted by the Appellate Division, Caminiti’s injury was not minor, as the Board concluded. “In addition to the physical impact of the potentially lethal needle prick, he endured many weeks of physical discomfort associated with the medications prescribed to prevent the transmission of HIV.”  Accordingly, the Board’s analysis should have ended with an application of the Richardson factors, which it acknowledged Caminiti had satisfied.

For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group.

The Appellate Division recently upheld regulations promulgated by the New Jersey Department of Environmental Protection (NJDEP) known as the “waiver rules.” The controversial rules allow the agency to waive compliance with environmental regulations under certain circumstances, including if it there is a conflict among regulations; if they impose an undue economic burden; if there is a public emergency; or if there is a net environmental benefit if the waiver is issued.

The Facts of the Case

The rules in question were made possible through an Executive Order signed by Gov. Chris Christie. It gave state agencies the authority to “adopt rules for ‘waivers’ which recognize that rules can be conflicting or unduly burdensome and shall adopt regulations that allow for waivers from the strict compliance with agency regulations and such waivers shall not be inconsistent with the core missions of the agency.”

Several environmental groups challenged the resulting NJDEP waiver rules, arguing that the agency exceeded its authority. They further maintained that guidance documents regarding how to obtain a waiver were invalid because the NJDEP did not follow the rulemaking process mandated by the Administrative Procedures Act (APA).

The Court’s Decision

The Appellate Division upheld NJDEP’s waiver rules. In doing so, it noted that “[a]gency regulations are accorded a presumption of validity and reasonableness,” but also acknowledged that “an administrative agency may not give itself authority not legislatively delegated.”

Within this framework, the court determined that the NJDEP did have the power to waive certain regulations. It was not swayed by arguments that the New Jersey Legislature did not explicitly grant the agency a “general” power to waive its own regulations. Rather, the panel viewed that authority as “otherwise implicit in the Legislature’s delegation of broad rulemaking power to the agency.”

“In sum, we conclude that the waiver rules contain adequate regulatory standards that guide DEP in deciding waiver rule applications,’’ the panel stated in its 54-page opinion.

However, the court ruled against NJDEP on another important aspect of the case. The Appellate Division sided with the environmental groups regarding the guidance documents posted to the NJDEP’s website. As explained by the court, “[T]hese postings do more than implement the waiver rule; they establish rules of the game. By elaborating upon and clarifying the very standards by which applicants will be held and the outcomes of their applications determined, these newly posted measures will have a substantial impact on the regulated community as well as the public in general.  As such, they form integral, substantive components of the waiver rules, subject to rulemaking in accordance with the APA.”

Accordingly, the NJDEP has removed the guidance documents from its site and will need to readopt them under the APA process, including the opportunity for public comment.  As for the waiver rules, the environmental groups have already indicated that they plan to appeal the decision to the New Jersey Supreme Court.  It seems likely that NJDEP will appeal that part of the decision related to its guidance practices.  If that aspect of the ruling is upheld, it could have broad ramifications for the many other NJDEP programs that rely extensively on guidance.

For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group.

Beach replenishment efforts are needed up and down the New Jersey shoreline in the wake of Superstorm Sandy. In an effort to help municipalities gain easements for these projects, proposed legislation aims to limit condemnation awards to the owners of oceanfront homes.

The bill, S-2618/A-3896, would amend the “Eminent Domain Act of 1971” to provide that just compensation for an easement over a portion of beachfront property condemned for the purpose of dune construction or beach replenishment must include consideration of the increase in value to the entire property due to the added safety and property protection provided by the dune or replenished beach.  It would also specify that any additional rights of the public to access property held in the public trust arising as a result of the easement, or the dune construction or beach replenishment, would not be considered to cause a diminution in the value of the entire property.

The legislation was prompted by a New Jersey appellate court decision that upheld a $375,000 judgment in favor of oceanfront homeowners who claimed that newly constructed sand dunes diminished the value of their property. Harvey and Phyllis Karan maintained that a 22-foot dune built on their property blocked their ocean view and decreased the value of their nearly $2 million property by $500,000. Harvey Cedars meanwhile contended that the couple should only be compensated $300 because they received a “special benefit” from the dune, namely storm protection.

Under NJ eminent domain law, the value of special benefits may be subtracted from the compensation owed, while general benefits may not. General benefits arise from the fulfillment of the public object that justified the taking. Meanwhile, special benefits arise from the peculiar relation of the land in question to the public improvement.

Ultimately, the appellate court found that “the benefit conferred on defendants’ property—added protection from damage due to storms—was the object of the dune project, was not different in kind from the benefit conferred on the island as a whole, and was only potentially different in degree from the benefit conferred on properties located further inland.” Therefore, no offset was warranted.

The case, Borough of Harvey Cedars v. Harvey Karan and Phyllis Karan, is currently pending before the New Jersey Supreme Court, though no hearing date has been set. The legislation has been referred to the Assembly Environment and Solid Waste Committee and Senate Environment and Energy Committee. We will provide updates on both as they become available.

For more information about the proposed dune restoration legislation and how it may impact your NJ municipality, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group.

Even though they have important jobs, 9-1-1 operators are not infallible. In Wilson v Jersey City, the New Jersey Supreme Court held that emergency service providers are entitled to immunity from lawsuits unless they recklessly disregard the safety of the public in a way that is “willful and wanton.”  In turn, the Supreme Court asked the Appellate Division to take a look at how the emergency calls in the Wilson case were handled.

So what is “willful and wanton” conduct?

In Wilson, a neighbor called 9-1-1 because someone was “fighting or something” next door.  The caller gave the incorrect address, leading the police to the wrong event location. The police left, not finding the victims of a brutal attack.  In the meantime, the neighbor called again but told another operator that the emergency happened the day before. After being told that he had to clear the emergency line, he did not call back the regular police line.  Approximately 36 hours after the first call, a young surviving victim was found.

The survivor filed suit against the City, claiming that the operators did not follow exactly their own rules and regulations.  Last week, the Wilson Court found that there was no evidence of “willful and wanton” conduct in the handling of the calls. Simply failing to follow the City’s rules and regulations was not enough to prove “willful and wanton” conduct. The dismissal of Plaintiffs’ Complaint was upheld, ending the litigation.

So what is “willful and wanton” conduct?  It may depend. A lot can happen in the “fast-paced and fluid world of 911 operators.”

There are hundreds of recognized emergency call centers in New Jersey. The decisions in the Wilson case surely will impact each of them.

Scarinci Hollenbeck is committed to helping these call centers train their personnel so they are ready and prepared to answer any call. If you have any questions or comments feel free to contact us anytime.

Judicial nominees who withdraw their names when they know they don’t have the votes for confirmation are never remembered very long. Philip Kwon, on the other hand, has made his mark on New Jersey legal history by either becoming the first or one of very few nominees to the New Jersey Supreme Court who was rejected by the Senate Judiciary Committee since the Constitution of 1947.

The New Jersey Senate Judiciary Committee failed to confirm Kwon in March by a vote of 7 to 6.   Fortunately for Kwon, the facts that led the Senate to reach its negative vote are likely to be forgotten by the end of the year.  The fact that he was voted down, however, will likely now become a consideration by all Governors and for all New Jersey judicial nominees from this point forward.

During Kwon’s judicial confirmation hearing, Democratic members of the Senate committee raised concerns about his past affiliation with the Republican Party and his family’s liquor store business. They questioned why Mr. Kwon’s mother and wife had regularly deposited cash from the business to its bank account in varying amounts just under $10,000—the threshold for reporting deposits to the Internal Revenue Service. Kwon claimed he didn’t know about the deposits until they were flagged by the store’s bank. He further maintained that the deposits were not structured to avoid taxes, although several members of the committee appeared unconvinced. The family paid $160,000 to settle civil charges brought by the federal government.

The New Jersey Senate Judiciary Committee also called Kwon’s political affiliation into question. Kwon registered as an independent last year after moving to New Jersey. He had previously been registered as a Republican for over ten years. Kwon’s political leanings were relevant because a partisan balance has historically been maintained on the state’s highest court. The court is currently comprised of two Democrats, two Republicans, and one Independent. Kwon was appointed to fill one of two vacancies, and Christie’s second nominee, Bruce A. Harris, is a Republican.

Ultimately, the committee’s decision may have also been an attempt to thwart Christie’s attempt to shape the court in his own image. Kwon worked under Christie at the U.S. Attorney’s Office. The governor has also frequently complained that the activist court acts like “a superior branch of government, not a co-equal branch.”

Following the hearing, Republicans characterized the hearing as a “lynch mob.” Meanwhile, Democrats maintained that they were simply doing their job to carefully vet New Jersey Supreme Court nominees.

The truth to what really happened is more likely attributed either to bad staff work or to a political double cross.  Either someone on the Governor’s staff did not know that they lacked the votes to get Kwon through the committee, or they thought they had a commitment for the votes and one of the Democrats reneged.  Not even Chris Christie would be so reckless to tarnish someone’s reputation for the rest of his career on a hope that bullying a nomination for the Supreme Court would get it passed in a Democrat controlled New Jersey Senate Judiciary Committee.