New Jersey Superior Court, Appellate Division - Published Opinions Decisions 2018

INTERACTIVE BROKERS, LLC v. RICHARD W. BARRY
Date: December 31, 2018
Docket Number: a4197-17
STATE OF NEW JERSEY v. SIWAN R. BROWN
Date: December 27, 2018
Docket Number: a2838-16
M.G. v. S.M.
Date: December 26, 2018
Docket Number: a1290-17
DIAMOND BEACH, LLC v. MARCH ASSOCIATES, INC.
Date: December 24, 2018
Docket Number: a1704-17
H.R. v. THE NEW JERSEY STATE PAROLE BOARD
Date: December 20, 2018
Docket Number: a2843-16
OASIS THERAPEUTIC LIFE CENTERS, INC v. PETER G. WADE
Date: December 10, 2018
Docket Number: a0711-17
IN THE MATTER OF REGISTRANT H.D.
Date: December 7, 2018
Docket Number: a5321-16
JUAN MORALES-HURTADO v. ABEL V. REINOSO
Date: December 6, 2018
Docket Number: a2120-15
NEW JERSEY TRANSIT CORPORATION v. SANDRA SANCHEZ
Date: December 4, 2018
Docket Number: a0761-17
R.L.U. v. J.P.
Date: December 4, 2018
Docket Number: a4823-16
RICHARD W. TULLY, JR v. PETER MIRZ
Date: November 29, 2018
Docket Number: a0241-17
ANTHONY MALACOW v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Date: November 28, 2018
Docket Number: a1587-17
ANNA BERMEO v. MARIO BERMEO
Date: November 21, 2018
Docket Number: a1312-17
METRO COMMERCIAL MANAGEMENT SERVICES v. NANCY VAN ISTENDAL
Date: November 19, 2018
Docket Number: a0275-17
INVESTORS BANK v. JAVIER TORRES
Date: November 16, 2018
Docket Number: a3029-16
STATE OF NEW JERSEY v. ROBERT ANDREWS
Date: November 15, 2018
Docket Number: a0291-17
STATE OF NEW JERSEY v. JAMES HARRIS
Date: November 15, 2018
Docket Number: a3694-15
STATE OF NEW JERSEY v. CALVIN BASS
Date: November 14, 2018
Docket Number: a0407-17
P.H. v. L.W.
Date: November 13, 2018
Docket Number: a5345-16
STATE OF NEW JERSEY v. ISAAC D. JERDAN
Date: November 9, 2018
Docket Number: a0099-17
STATE OF NEW JERSEY v. JOSE M. FELICIANO
Date: November 9, 2018
Docket Number: a0266-17
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.M.
Date: November 9, 2018
Docket Number: a0957-16
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.E.H.
Date: November 9, 2018
Docket Number: a2575-17
LENORE N. ZANGRILLI v. JASON D. ZANGRILLI
Date: November 9, 2018
Docket Number: a3815-17
C.S. v. L.S.
Date: November 9, 2018
Docket Number: a3904-16
DERICK LECOMPTE v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Date: November 9, 2018
Docket Number: a4435-16
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.C.
Date: November 9, 2018
Docket Number: a5252-16
STATE OF NEW JERSEY v. DAWN A. PARKER
Date: November 9, 2018
Docket Number: a5375-16
STATE OF NEW JERSEY v. ALEXIS NUNEZ
Date: November 9, 2018
Docket Number: a5598-16
STATE OF NEW JERSEY v. QUIASIA N. CARROLL
Date: November 8, 2018
Docket Number: a0152-18
DEUTSCHE BANK TRUST COMPANY AMERICAS v. DEBBIE A. WEINER
Date: November 8, 2018
Docket Number: a2110-17
DEXTER RAMPERSAUD v. RONALD A. HOLLINGSWORTH
Date: November 1, 2018
Docket Number: a2897-16
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.O.
Date: October 30, 2018
Docket Number: a1871-16
STACI PIECH v. GLENN LAYENDECKER
Date: October 19, 2018
Docket Number: a1417-16
MARILYN FLANZMAN v. JENNY CRAIG, INC.
Date: October 17, 2018
Docket Number: a2580-17
STATE OF NEW JERSEY v. RICKY BROWN
Date: October 17, 2018
Docket Number: a3619-17
L.E. v. THE PLAINFIELD PUBLIC SCHOOL
Date: October 5, 2018
Docket Number: a3638-16
CHARLES WRIGHT v. v. APPELLATE DIVISION BANK OF AMERICA, N.A.
Date: October 4, 2018
Docket Number: a2358-15
ESTATE OF MARY VAN RIPER v. DIRECTOR, DIVISION OF TAXATION
Date: October 3, 2018
Docket Number: a3024-16
JASON DEVER v. DEBRA HOWELL
Date: September 20, 2018
Docket Number: a0468-17
PALISADIUM MANAGEMENT CORP v. BOROUGH OF CLIFFSIDE PARK
Date: September 14, 2018
Docket Number: a4370-15
LINDA COWLEY v. VIRTUA HEALTH SYSTEM
Date: September 6, 2018
Docket Number: a4004-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.K.
Date: August 31, 2018
Docket Number: a2734-15
LISA BALDUCCI v. BRIAN M. CIGE
Date: August 30, 2018
Docket Number: a3068-16
CHRISTOPHER C. CONA v. TOWNSHIP OF WASHINGTON,
Date: August 29, 2018
Docket Number: a5067-15
STATE OF NEW JERSEY v. RICHARD W. BERNARDI, SR.
Date: August 28, 2018
Docket Number: a0752-17
IN THE MATTER OF REGISTRANT G.H.
Date: August 6, 2018
Docket Number: a2388-16
ARTHURG. WHELAN v. ARMSTRONG INTERNATIONAL INC.
Date: August 6, 2018
Docket Number: a3520-13
S.T v.
Date: August 6, 2018
Docket Number: a5525-13
PERSONAL SERVICE INSURANCE COMPANY , v. RELIEVUS
Date: August 3, 2018
Docket Number: a2393-16
STATE OF NEW JERSEY IN THE INTEREST OF A.A
Date: July 31, 2018
Docket Number: a4098-16
STATE OF NEW JERSEY v. KEVIN BROWN
Date: July 23, 2018
Docket Number: a0777-16
STATE OF NEW JERSEY JEROME SHAW, JR.
Date: July 23, 2018
Docket Number: a2058-15
THERESA WEAR and RICHARD WEAR v. SELECTIVE INSURANCE COMPANY
Date: July 20, 2018
Docket Number: a5526-15
REGINA LITTLE, v. KIA MOTORS OF AMERICA
Date: July 18, 2018
Docket Number: a0794-15
IN THE MATTER OF BELLEVILLE EDUCATION ASSOCIATION
Date: July 16, 2018
Docket Number: a5104-14
STATE OF NEW JERSEY v. PEDRO C. ANICAMA
Date: July 13, 2018
Docket Number: a0452-16
MTK FOOD SERVICES, INC v. SIRIUS AMERICA INSURANCE COMPANY
Date: June 29, 2018
Docket Number: a1309-17
G.A.-H. v. K.G.G.
Date: June 22, 2018
Docket Number: a2126-16
STATE OF NEW JERSEY v. TYRONE ELLISON
Date: June 20, 2018
Docket Number: a2216-16
PAOLO MARANO v. CLIFFORD J. SCHOB, M.D.
Date: June 20, 2018
Docket Number: a3915-16
STATE OF NEW JERSEY v. NADIR BAPTISTE
Date: June 19, 2018
Docket Number: a0147-16
MARYANN POSTIGLIONE v. WILLIAM J. BARRY
Date: June 19, 2018
Docket Number: a0200-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.C.
Date: June 19, 2018
Docket Number: a0328-17
U.S. BANK TRUST, N.A. v. MRS. EDWIN P. GANT
Date: June 19, 2018
Docket Number: a0696-16
AIDA MINEROS v. DIANA LONDON
Date: June 19, 2018
Docket Number: a1091-15
THOMAS W. KENYON v. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY
Date: June 19, 2018
Docket Number: a1159-16
C.G. v. A.K.
Date: June 19, 2018
Docket Number: a1390-16
A.K. v. C.K.
Date: June 19, 2018
Docket Number: a1391-16
KATHLEEN M. HILTS v. BOARD OF REVIEW DEPARTMENT OF LABOR
Date: June 19, 2018
Docket Number: a1709-16
CITY COUNCIL OF THE CITY OF ORANGE TOWNSHIP v. WILLIS EDWARDS III
Date: June 19, 2018
Docket Number: a3729-15
DIVIAION OF CHILD PROTECTION AND PERMANENCY v. A.E.
Date: June 19, 2018
Docket Number: a4191-15
CAPITALONE, N.A. v. JAMES I. PECK, IV
Date: June 18, 2018
Docket Number: a0582-16
BERNICE PISACK v. B & C TOWING, INC.
Date: June 14, 2018
Docket Number: a2546-16 GILSON, J.A.D. These three appeals involve the non-consensual towing of vehicles and raise questions concerning the Predatory Towing 3 A-2546-16T4 ...
STATE OF NEW JERSEY v. J.T.
Date: June 13, 2018
Docket Number: a4041-11
DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.D.
Date: June 11, 2018
Docket Number: a3127-15
STATE OF NEW JERSEY v. STEPHEN MANDEL
Date: June 6, 2018
Docket Number: a5442-16
BRIAN J. RICE v. CHRISTINA M. MILLER
Date: June 5, 2018
Docket Number: a2513-16
WILLIAM QUAIL v. SHOP-RITE SUPERMARKETS, INC.
Date: June 4, 2018
Docket Number: a1164-16
STATE OF NEW JERSEY v. NOEL E. FERGUSON
Date: June 1, 2018
Docket Number: a2893-17 CARROLL, J.A.D. These appeals stem from the tragic death of a young New York man from a heroin overdose. In New Jersey, N.J.S.A. 2C:35- 9(a) ...
DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.H.
Date: May 29, 2018
Docket Number: a0396-17
SARAH B. BISER v. RICHARD L. LEVINE
Date: May 29, 2018
Docket Number: a0724-16
IN THE MATTER OF THE ESTATE OF ALICIA A. HEFFLEY, DECEASED
Date: May 29, 2018
Docket Number: a1025-16
VALERIE GIARUSSO v. WILLIAM G. GIARUSSO, SR.
Date: May 29, 2018
Docket Number: a1063-15
RACEWAY REALTY, LLC v. EDISON TOWNSHIP ZONING BOARD OF ADJUSTMENT
Date: May 29, 2018
Docket Number: a1271-16
STATE OF NEW JERSEY IN THE INTEREST OF C.P.
Date: May 29, 2018
Docket Number: a2136-16
JP MORGAN CHASE v. HARRY HENRY
Date: May 29, 2018
Docket Number: a2733-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. V.R.
Date: May 29, 2018
Docket Number: a3418-16
ABCBAIL BONDS v. CHARLES LAWRENCE, SR.
Date: May 29, 2018
Docket Number: a3993-16
FEDERAL NATIONAL MORTGAGE ASSOCIATION v. LAWRENCE SILVERMAN
Date: May 29, 2018
Docket Number: a4388-16
TIMOTHY ELLIS v. HILTON UNITED METHODIST CHURCH
Date: May 22, 2018
Docket Number: a0793-16
E&HS TEEL CORPORATION v. PSEG FOSSIL, LLC
Date: May 21, 2018
Docket Number: a1600-15
STATE OF NEW JERSEY v. MARIANNE MCINTYRE-CAULFIELD
Date: May 18, 2018
Docket Number: a1277-17
HARRY SCHEELER v. ATLANTIC COUNTY MUNICIPAL APPELLATE DIVISION JOINT INSURANCE FUND
Date: May 16, 2018
Docket Number: a2092-15 REISNER, P.J.A.D. These three appeals, which we consolidated for purposes of this opinion, present the same issue: Does a person who is not a resident or domiciliary of New Jersey have standing to file a request for public records under the Open Public Records Act (OPRA), or are rights under OPRA restricted to "citizens" of New Jersey? We conclude that the reference to "citizens" – found in N.J.S.A. 47:1A-1 and nowhere else in OPRA — expresses the 3 A-2092-15T2 Legislature's general intent to make New Jersey government records open to the public, rather than expressing an intent to limit access to only New Jersey residents or domiciliaries. Because the more specific provisions of OPRA refer to "any person," and because OPRA is to be construed broadly to achieve the Legislature's over-arching goal of making public records freely available, we conclude that the right to request records under OPRA is not limited to "citizens" of New Jersey. Accordingly, we affirm the October 8, 2015 and December 24, 2015 orders on appeal in A-2092-15.1 We reverse the orders on appeal in A-2704-15 and A-2716-15, and remand those cases to the trial court for further proceedings consistent with this opinion. I The appeals present a purely legal issue, as to which our review is de novo. See Manalapan Realty, LP v. Twp. Comm. of 1 In A-2092-15, defendants raise additional legal challenges to the order directing them to turn over attorney billing records, subject to the right to redact privileged materials, and to the counsel fee awarded to plaintiff. See N.J.S.A. 47:1A-1.1; N.J.S.A. 47:1A-5(e); N.J.S.A. 47:1A-6. Those issues were thoroughly and correctly addressed by Assignment Judge Ronald E. Bookbinder in his August 31, 2016 supplemental written opinion, issued pursuant to Rule 2:5-1(b). Defendants' arguments are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(1)(E). 4 A-2092-15T2 Manalapan, 140 N.J. 366, 378 (1995). However, we set forth some brief background concerning each case. In A-2092-15, Harry Scheeler, an open government activist who moved from New Jersey to North Carolina in 2014, submitted an OPRA request seeking records from Atlantic County Municipal Joint Insurance Fund (ACMJIF), ACMJIF's fund administrator, and its records custodian (collectively, defendants). Specifically, he sought records concerning legal bills submitted for payment for lawsuits filed against Hamilton Township, Atlantic County. Defendants provided some of the records, but declined to provide what they characterized as "confidential and privileged memos" for ongoing litigation. After Scheeler filed an OPRA lawsuit in Burlington County, defendants contended that he had no standing to request documents under OPRA because he was not a citizen of New Jersey. In a series of well-reasoned written opinions, Judge Bookbinder concluded that the right to request public records under OPRA is not limited to New Jersey citizens. He also found that the "confidential memos" were not memoranda at all, but were simply detailed legal invoices. The judge concluded that OPRA required defendants to produce them, but he permitted defendants to redact any attorney-client privileged material or work product. Defendants subsequently produced the records, 5 A-2092-15T2 with redactions. The judge also awarded Scheeler counsel fees for the litigation, pursuant to OPRA. See N.J.S.A. 47:1A-6. In A-2716-15, Scheeler filed a similar OPRA lawsuit against the City of Cape May, seeking records concerning government spending on legal services. In that case, another trial judge dismissed the complaint, reasoning that only New Jersey citizens had standing to request public records under OPRA. The judge was particularly concerned with the burden Scheeler's requests placed on local government resources, asking rhetorically: At the time the OPRA was adopted, did the members of the New Jersey Legislature contemplate that they were authorizing an out of state gadfly to repeatedly bombard local governments with demands to produce public records? In A-2704-15, the Lawyers' Committee for Civil Rights Under Law (LCCR), a national non-profit civil rights organization, sought records from the Atlantic City Board of Education (Board), concerning school level enrollment and disciplinary data. The same judge who dismissed Scheeler's case against Cape May also dismissed LCCR's OPRA complaint against the Board on standing grounds. II The issue presented in these three appeals revolves around a phrase used in the first paragraph of N.J.S.A. 47:1A-1. The municipal defendants rely on the following language: 6 A-2092-15T2 The Legislature finds and declares it to be the public policy of this State that: government records shall be readily accessible for inspection, copying, or examination by the citizens of this State [N.J.S.A. 47:1A-1 (emphasis added).] In construing a statute, we first consider its language. In re Kollman, 210 N.J. 557, 568 (2012). Ordinarily, if the statutory language is unambiguous, our task is complete and we need not look further. DiProspero v. Penn, 183 N.J. 477, 492-93 (2005). However, if a word or phrase is ambiguous, we then consider the context in which the language appears, the language of the statute as a whole, the statute's purpose, and its history. See Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012). In construing a statute, we must be faithful to the Legislature's intent in enacting it. See Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 540-41 (2012). We should, therefore, avoid literal interpretations of words or phrases that will produce an absurd result, contrary to the legislative purpose. Id. at 541. In using the term "citizens of this State," the Legislature arguably created an ambiguity in N.J.S.A. 47:1A-1. However, we conclude that any ambiguity is easily resolved. Reading N.J.S.A. 47:1A-1 sensibly, bearing in mind the context in which 7 A-2092-15T2 the phrase "citizens of this State" is used, the terms the Legislature used in the rest of OPRA, and considering the statute's history and purpose, we cannot conclude that the Legislature intended to preclude out-of-state residents from making OPRA requests. The term "citizen" appears in the above-quoted section of N.J.S.A. 47:1A-1, and in its last paragraph: [A] public agency has a responsibility and an obligation to safeguard from public access a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy . . . . [Ibid. (emphasis added).] Clearly the term "citizen" in the last paragraph does not refer to New Jersey residents. It would produce an absurd result if the government were only required to protect personal information of New Jersey residents and could freely disseminate medical records, school transcripts, and other personal information of out-of-state residents. It is more logical to construe the term "citizen" as simply meaning "a person" or "an individual." Although OPRA has an extensive definitions section, N.J.S.A. 47:1A-1.1, "citizen" is not defined. Other than in N.J.S.A. 47:1A-1, the term does not appear anywhere else in the 8 A-2092-15T2 statute. Rather, the remaining sections of OPRA use the term "person" or "requestor." Significantly, section five of OPRA, which specifically addresses the obligation to produce records, uses the terms "person" or "requestor." N.J.S.A. 47:1A-5(a) provides that a government records custodian "shall permit the record to be inspected, examined, and copied by any person during regular business hours . . . ." (emphasis added). Subsection (b) provides that "[a] copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation." N.J.S.A. 47:1A-5(b) (emphasis added). Subsection (c) permits "[t]he requestor" to review and object to a charge for copying public records. N.J.S.A. 47:1A-5(c). Subsections (f) and (i) indicate that anonymous OPRA requests are permitted, which appears incompatible with a state residency requirement. N.J.S.A. 47:1A-5(f) and (i). See A.A. v. Gramiccioni, 442 N.J. Super. 276, 283 (App Div. 2015); see also N.J.S.A. 47:1A-2.2(c) (prohibiting anonymous requests for certain information about crime victims). The OPRA section concerning enforcement provides that "[a] person who is denied access to a government record by the custodian of the record, at the option of the requestor, may" file a lawsuit in Superior Court or file a complaint with the 9 A-2092-15T2 Government Records Council (GRC). N.J.S.A. 47:1A-6 (emphasis added). Further, "[a] requestor" who prevails in an OPRA action is entitled to counsel fees. N.J.S.A. 47:1A-6. See also N.J.S.A. 47:1A-7(b) and (d) (GRC is to address an OPRA complaint filed by "any person" and offer mediation where "any person" files a complaint). Although N.J.S.A. 47:1A-1 refers to protecting the privacy rights of a "citizen," a more specific section of OPRA that addresses personnel records refers to "any individual." Notwithstanding the provisions of [OPRA] or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record [N.J.S.A. 47:1A-10 (emphasis added).] This further supports our view that "citizen," as used in N.J.S.A. 47:1A-1, was not intended as a restrictive term. The purpose and history of OPRA support our construction. OPRA embodies "the State's policy in favor of broad access to public records." N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 555 (2017). The Legislature intended "to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent 10 A-2092-15T2 in a secluded process." Ibid. (quoting Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)). The predecessor to OPRA, the Right to Know Law (RTKL), L. 1963, c. 73, provided considerably narrower rights of public access to government records. N. Jersey Media, 229 N.J. at 565- 66. In replacing the RTKL with OPRA, the Legislature expressed its intent to expand the public's right of access to public records, beyond that permitted by the RTKL. Id. at 566. "When it enacted OPRA, the Legislature replaced the RTKL's more restrictive view of public access with the current, far broader approach." Id. at 566. Unlike in OPRA, the term "citizen" was used throughout the RTKL, including the specific provisions defining who could request and obtain records and who could enforce the statute. See N.J.S.A. 47:1A-2; N.J.S.A. 47:1A-2.1; N.J.S.A. 47:1A-4 (repealed by OPRA, L. 2001, c. 404).2 We conclude that in replacing the term "citizen" with "person" in the analogous sections of OPRA, the Legislature signaled its intent to broaden rather than limit the right of public access.3 See In re Zhan, 2 While addressing a different issue, our Supreme Court stated in dicta that "[t]he RTKL has no standing requirement other than New Jersey citizenship." Keddie v. Rutgers, 148 N.J. 36, 44 (1997). (continued) 11 A-2092-15T2 424 N.J. Super. 231, 237 (App. Div. 2012) ("The term 'any person' is clearly broader than the term 'citizen.'"). The Statement to Senate Bill No. 2003, which was adopted as OPRA, also lends some support for that view, because the Statement referred to "the public" rather than to state citizens. Sponsor's Statement, Statement to Senate Bill No. 2003 (2000). "The bill amends N.J.S.A. 47:1A-1 to affirmatively state that: the public has a right of access, with certain exceptions, to all government records . . . ." Sponsor's Statement, Statement to Senate Bill No. 2003 (2000). Moreover, in the same paragraph of N.J.S.A. 47:1A-1 that contains the phrase "the citizens of this State," the Legislature directed that "any limitations on the right of access accorded by [OPRA], shall be construed in favor of the (continued) 3 Defendants' reliance on McBurney v. Young, 569 U.S. 221 (2013), is misplaced. In one sentence, the Court listed OPRA as one of several state statutes that limited record access to citizens of the state. McBurney, 569 U.S. at 226. The sentence was dicta, with no accompanying rationale, and it is not binding on us. See Becker v. Baron Bros., 138 N.J. 145, 165 (1994) ("Although we often look to the decisions of federal courts for guidance, we are not bound by their decisions in respect of our own state law."). Likewise, we owe no deference to legal opinions of the GRC, which has issued contradictory advice on this issue. See Paff v. Galloway Twp., 229 N.J. 340, 356-57 (2017); N.J.S.A. 47:1A-7(e). Nor can we attribute significance to bills introduced prior to OPRA, but never adopted. See Jersey City Chapter, Prop. Owner's Protective Ass'n v. Jersey City, 55 N.J. 86, 95-96 (1969). 12 A-2092-15T2 public's right of access." N.J.S.A. 47:1A-1. Thus, any doubts about the meaning of the phrase should be resolved in favor of public access, and hence in favor of construing the phrase as a generality rather than an intentional limit on standing. 4 See Serrano v. South Brunswick Twp., 358 N.J. Super. 352, 366 (App. Div. 2003) (ambiguities in OPRA are to be resolved in favor of public access). On this appeal, the amici curiae present a variety of policy arguments in support of their respective interpretations of the statute. For example, the amici representing the news media argue that making government records open to all requestors, regardless of their geographic location, enables out-of-state news organizations to uncover and report on information of importance to this state's inhabitants. The municipal amici contend that providing copies of public records 4 It is not unusual for the Legislature to express a general intent that a statute should improve conditions for this State's citizens or inhabitants, while using different terms in the rest of the statute. For example, the Law Against Discrimination (LAD) states the Legislature's concern about discrimination "against any of [this state's] inhabitants." N.J.S.A. 10:5-3. However, that does not mean that the LAD only protects New Jersey residents and allows discrimination against visitors from other states. The LAD's specific provisions addressing discrimination in housing, employment and public accommodations prohibit discrimination against any "person," or any "individual." See N.J.S.A. 10:5-4; N.J.S.A. 10:5-12. 13 A-2092-15T2 to requestors from all over the country, and potentially from all over the world, would place an undue burden on their limited resources. However, it is not our role to make policy, but to discern the Legislature's policy and honor it in our construction of statutes. See In re Town of Harrison, 440 N.J. Super. 268, 301 (App. Div. 2015). Concerns about OPRA's practical ramifications should be directed to the Legislature. Affirmed in A-2092-15; reversed and remanded in A-2704-15 and A-2716-15. We do not retain jurisdiction. 14 A-2092-15T2
JOHN S. WISNIEWSKI v. PHIL MURPHY
Date: May 10, 2018
Docket Number: a4689-16 CARROLL, J.A.D. These consolidated appeals involve a challenge to decisions by two state agencies to finance a comprehensive renovation of the State Capitol complex. The agencies resolved to issue $300 million in bonds and to repay the bonds with rental payments pursuant to a lease of the State Capitol complex. Plaintiff John S. Wisniewski, then a state legislator, filed a complaint challenging the agencies' actions on the basis that they violated the Debt Limitation Clause (DLC) of the New 2 A-4689-16T2 Jersey Constitution. At the time the complaint was filed, the bonds had already been sold and distributed into the marketplace. Consequently, the trial court dismissed the complaint as moot. In No. A-4689-16, plaintiff appeals the court's determination that his complaint is moot. In Nos. A-4693-16 and A-4698-16, he appeals the final agency decisions. We agree the appeals are technically moot. Notwithstanding, we address the merits because the issue raised is a matter of significant public importance that is capable of repetition while evading review. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm the final agency decisions. I. The State House Complex (SHC) is composed of an annex plus two wings, the executive (ESH) and the legislative (LSH). ESH houses the offices of the governor, lieutenant governor, governor's counsel, state treasurer and executive staff members. Built in 1772, ESH is a four-story building that includes the most historic and oldest sections of the SHC. It contains historical and architectural pieces such as original wood wainscoting and plaster cornices, portraits, art work and historic objects, and is open to viewing by the public. ESH has 3 A-4689-16T2 not been comprehensively renovated since the 1950s, and it has significant structural problems. N.J.S.A. 52:31-39(a) provides that the State Capitol Joint Management Commission (JMC) must: (1) maintain, monitor and preserve the architectural, historical, cultural and artistic integrity of any completed project for the restoration, preservation and improvement of the State capitol complex and to safeguard any related artifacts, documents and objects; (2) maintain custody of the State capitol complex, with exclusive jurisdiction with respect to its management and operation, including maintenance, repair, renovation, improvement, security, parking, furnishing, artifact displays, and space utilization; Pursuant to N.J.S.A. 52:31-37, the JMC consists of eight members, four from the executive branch and four from the legislative branch. On April 24, 2012, the JMC approved a $38 million exterior repair of ESH. The repairs were referred to as the "exterior envelope restoration." The State Division of Property Management and Construction (DPMC) made a request for proposals (RFP) for an architectural engineering firm and selected Nelson and Preservation Design Partnership, LLC (Nelson/PDP) to begin work on the envelope in 2013. The envelope repairs were not completed, however, because it became clear that "patchwork" 4 A-4689-16T2 repairs were not sufficient and a more comprehensive renovation was necessary. As of 2015, the repairs that were necessary in 2012 and 2013 had still not been completed. On January 12, 2017, then-State Treasurer, Ford M. Scudder, reported to the Senate Economic Growth Committee about the need for a comprehensive restoration of ESH that included both exterior and interior repairs. On January 25, 2017, Nelson/PDP submitted a project overview noting the severe deterioration of ESH and proposing a comprehensive renovation. Nelson/PDP's plan proposed to address life safety issues, eliminate waste, and protect and restore the historic integrity of ESH. On January 31, 2017, the JMC adopted a resolution authorizing a full renovation of the SHC. On April 25, 2017, Nelson/PDP submitted an extensive report detailing the deterioration, the necessary repairs, and the costs of the project. That same day, the JMC adopted a resolution to fully renovate the SHC at a price not to exceed $300 million, and also agreed to enter into a contract with the New Jersey Economic Development Authority (NJEDA) for the lease and leaseback of the SHC. The JMC authorized the State Treasurer to execute the lease and sublease agreements. The cost of the renovation was $284 million, which included a historic renovation of ESH ($173 million) and modernizing and 5 A-4689-16T2 upgrading the building infrastructure of LSH ($20 million). The project also included $55 million for "contingencies." Christopher Chianese was a member of the JMC and the Director of the DPMC, which oversees leasing, construction management and construction procurement on behalf of the State. According to Chianese, ESH had not been renovated after the 1950s and, by 2017, had deteriorated significantly. Exterior issues included roofing, inferior structural support, deteriorated windows, chimneys, skylights, foundational problems, HVAC problems, deteriorating cornices that permitted water infiltration, fire hazards, asbestos, and security concerns. Some of these problems required emergency repairs. After the JMC approved the renovation, the NJEDA was required to approve the project's financing. The lease agreement provided that the JMC would lease ESH to the NJEDA for a term of thirty years for $1.00. The sublease agreement called for the JMC to sublease ESH back from the NJEDA. Debt service on the bonds sold by the NJEDA would be payable from the rent paid by the JMC pursuant to the sublease. During the events in question, John J. Rosenfeld served as Director of the Bonds and Incentives Department for the NJEDA. Rosenfeld submitted a certification stating it is common practice to issue bonds secured by a lease agreement pursuant to 6 A-4689-16T2 which the State pays rent. In her capacity as Senior Vice president for Governance, Communications, and Strategic Initiatives at the NJEDA, Maureen Hassett described the process used in approving the bond resolution and the lease agreement. On May 11, 2017, the NJEDA approved the State lease revenue bond resolution to fund the renovation (the bond resolution). The bond resolution authorized the sale of two sets of bonds: (1) State lease revenue refunding bonds 2017 Series A (the Series A bonds) and (2) State lease revenue bonds, 2017 Series B (the Series B bonds) (collectively, the bonds). The following statement appears on the face of the bonds: Neither the State of New Jersey nor the JMC is obligated to pay and neither the faith and credit nor taxing power of the State of New Jersey is pledged to the payment of, the principal or redemption price, if any, of or interest on the bonds. The bonds are a special, limited obligation of the [NJEDA], payable solely out of the revenues or other receipts, funds or moneys of the [NJEDA]. . . . The Series A bonds, in the amount of $42.775 million, financed the cost of defeasing or redeeming outstanding bonds that financed previous projects at the SHC. The Series B bonds, in the amount of $300 million, financed the new renovation. Also on May 11, 2017, the NJEDA entered into a bond purchase contract with RBC Capital Markets, LLC (the underwriter) for the purchase of the bonds. The underwriter had 7 A-4689-16T2 been selected by an RFP. On May 12, 2017, the underwriter sold the bonds to RBC Municipal Products who, in turn, sold the bonds to a trust. The trust then sold the bonds to individual investors. The same day, legislative counsel authored an opinion letter that the bond sale did not violate the New Jersey Constitution. Plaintiff promptly filed a verified complaint and order to show cause on May 12, 2017, seeking injunctive relief and a declaratory judgment that the agencies' resolutions to sell the bonds and sign the leases were invalid. Plaintiff named as defendants the NJEDA, the JMC, the Governor, the Department of the Treasury and the Treasurer. At a status conference on May 17, 2017, plaintiff first discovered the bonds had already been issued. On May 26, 2017, defendants filed a motion to dismiss on the basis that the action was moot because the bonds had already been sold. Defendants also contended the trial court lacked jurisdiction over challenges to final agency decisions. Plaintiff opposed the motion and moved to amend his complaint. On June 14, 2017, the trial court denied plaintiff's motion to amend his complaint and granted defendants' motion to dismiss, finding the action was moot because the bonds had already been sold. 8 A-4689-16T2 In the interim, it was determined that the extensive renovations could not be completed while the building was occupied. Consequently, all ESH employees were evacuated as of June 1, 2017. Any delay in completing the project was estimated to result in a cost to New Jersey taxpayers of approximately $8- $10 million per year because the deterioration would become more difficult to repair. II. In these consolidated appeals, plaintiff challenges: (1) the trial court's June 14, 2017 order granting defendants' motion to dismiss and denying plaintiff's motion to amend the complaint; (2) the April 25, 2017 JMC resolution approving the $300 million plan to renovate the SHC; and (3) the May 11, 2017 NJEDA bond resolution to finance the renovation. Plaintiff contends the trial court erred in finding his complaint was moot. Alternatively, plaintiff argues that even if the case is moot, the court should still have adjudicated it as a matter of substantial importance that is likely to reoccur and capable of evading review in the future. Further, plaintiff asserts the decisions of the two state agencies violate the DLC, and urges us to invalidate the final agency decisions on that basis. 9 A-4689-16T2 Defendants counter that the appeals should be dismissed as moot because no practical remedy exists after the bonds have been sold and the renovations have commenced. They dispute plaintiff's assertion that the matter is one of substantial importance that is likely to reoccur. They further contend the JMC was well within its delegated power when it approved the SHC renovations and secured the required funding, and the NJEDA similarly acted within its statutory authority in issuing the bonds for the renovation project. A. We first address the issue of mootness. An issue is considered "moot when our decision . . . can have no practical effect on the existing controversy." Redd v. Bowman, 223 N.J. 87, 104 (2015) (citation omitted); Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 258 (App. Div. 2006). "When a party's rights lack concreteness from the outset or lose it by reason of developments subsequent to the filing of suit, the perceived need to test the validity of the underlying claim of right in anticipation of future situations is, by itself, no reason to continue the process." State v. Davila, 443 N.J. Super. 577, 584 (App. Div. 2016) (quoting JUA Funding Corp. v. CNA Ins./Cont'l Cas. Co., 322 N.J. Super. 282, 288 (App. Div. 1999)). "[C]ourts of this state do not resolve issues that have 10 A-4689-16T2 become moot due to the passage of time or intervening events." Ibid. (alteration in original) (quoting City of Camden v. Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999)). In limited instances, courts will address the merits of appeals that have become moot, electing to do so "where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review." Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996); see also Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010). We may decline to dismiss a matter on mootness grounds in order to address an important matter of public interest. Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 484 (2008). Before continued jurisdiction will be invoked in moot cases there must be an "issue of great public importance compelling definitive resolution despite mootness[.]" Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303 (1975). In the present case, relying on Spadoro v. Whitman, 150 N.J. 2 (1997) (Handler, J., concurring in part, dissenting in part), the trial court found plaintiff's complaint was moot. The court reasoned that the bonds were already disseminated into the financial market, the sale of the bonds did not create any constitutional problems, and judicial relief was not appropriate. 11 A-4689-16T2 In Spadoro, the plaintiff challenged the Bond Financing Act of 1997 (the Bond Act), which authorized the sale of bonds worth $2.7 billion to pay for state pension obligations. Ibid. The Court determined the matter was moot because the bonds had already been sold. Id. at 13. Although Justice Handler concurred with the majority that the case was moot, he nevertheless authored a dissenting opinion arguing that the matter "should be adjudicated because of the importance of the underlying issue and the possibility of its recurrence." Id. at 3. He elaborated: I concur in the Court's conclusion that events surrounding the issuance of the bonds have rendered the case essentially moot. "[F]or reasons of judicial economy and restraint, courts will not decide cases in which the issue is hypothetical, a judgment cannot grant effective relief, or the parties do not have concrete adversity of interest." Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976). This appeal is not moot in the more traditional sense in that there is no case or controversy to adjudicate, but it is effectively or practically moot in the sense that it would be inappropriate for the Court to provide effective relief at this time. Whether based on the doctrine of mootness or laches, courts are reluctant to act when circumstances have changed such that the provision of judicial relief would be inequitable or otherwise inappropriate. [Id. at 13.] 12 A-4689-16T2 Justice Handler noted that in Spadoro, the plaintiff did not vigorously pursue the litigation inasmuch as he did not immediately appeal the trial court's decision and did not seek a stay while the matter was on appeal to the Supreme Court. Ibid. In fact, after the trial court's decision, the State made extensive preparations to sell the bonds. Ibid. However, before the Supreme Court decided whether to hear the appeal, the bonds had already been sold. Id. at 14. Justice Handler noted: Although the Court could perhaps undo much of what the State has accomplished since the passage of the Bond Act, the many intricate and involved transactions undertaken by the State in reliance on the statute and the trial court's opinion and the certain prospect of substantial government disruption, in combination with the lateness of the appeal, would make judicial relief problematic. [Ibid.] Here, plaintiff contends the fact the bonds were disseminated into the marketplace should not serve as an impediment to a ruling that they were improperly issued in violation of the New Jersey Constitution. According to plaintiff, the bonds may be redeemed and purchasers, sellers, trustees, and investors were on notice of this eventuality. In response, defendants cite In re Petition for Referendum to Repeal Ordinance 2354-12 v. Township of West Orange, 223 N.J. 589, 602 (2015), for the proposition that once bonds have been 13 A-4689-16T2 disseminated, it is nearly impossible to recall them. The Court in Ordinance 2354-12 stated with respect to municipal bonds: We cannot dismiss, however, a possible scenario in which a bond ordinance, even past the twenty-day limitation period, must be declared void in the manifest interest of justice. Only in the most extraordinary of circumstances -- circumstances that are not presented here and difficult to envision, should a court entertain a request . . . challenging an ordinance authorizing the issuance of municipal bonds. [Ibid.] Defendants argue that many transactions have already been consummated, and millions of dollars have already been spent on the renovation, in reliance on the sale of the bonds. Also, a revocation of the lease agreements would undermine the security for the bonds, which are paid by the monthly rental payments. We agree that, pursuant to Ordinance 2354-12 and Spadoro, only the most "extraordinary of circumstances" would warrant entertaining a challenge to bonds that have already been sold and distributed into the marketplace. We acknowledge that Ordinance 2364 applies to municipal bonds, but the principles expressed in that case apply equally to State-issued bonds. In Spadoro, despite Justice Handler's dissenting opinion, he agreed with the majority that the matter was moot because of the many small transactions that had already occurred in the marketplace in reliance on the bonds. Spadoro, 150 N.J. at 14. As was 14 A-4689-16T2 stated in Ordinance 2354-12, it would be difficult to envision circumstances that would be so extraordinary as to warrant a recall of the bonds. Such circumstances do not exist here. Accordingly, we agree plaintiff's appeal is technically moot. Notwithstanding this determination, we observe an important distinction between the present case and Spadoro, where the plaintiff did not pursue the matter vigorously. In fact, in Spadoro, the trial court upheld the bond sale, and we affirmed in an unpublished opinion. Spadoro, 150 N.J. at 3. However, the plaintiff never requested a stay, and while the matter was pending review by the Supreme Court, the bonds were sold. Ibid. Here, however, plaintiff filed a complaint the day after the bond resolution was passed. Although plaintiff vigorously pursued the matter and did not delay in filing the complaint, the sale of the bonds had already occurred the same day the resolution was passed. Because the bonds were sold immediately, there was no time after the agency resolution during which plaintiff could have filed an action that would not have been rendered moot by virtue of such sale, thus precluding the opportunity for a meaningful challenge to the bond resolution. It is true, as defendants contend, that a substantial renovation of the SHC is unlikely to occur again in the foreseeable future. Nevertheless, NJEDA's sale of bonds on the 15 A-4689-16T2 same day it passes a resolution is likely to reoccur in the future when NJEDA effectuates a sale of bonds for other state agencies. Moreover, we recognize the inherent potential for abuse should NJEDA utilize same-day sales to render moot any possible challenges to its bond resolutions and effectively prevent judicial review of the agency's actions. The trial court properly recognized that the matter is one of substantial importance, as it involved plaintiff and other state legislators asserting constitutional challenges to state agency resolutions.1 Accordingly, because we conclude the matter is of substantial importance, likely to reoccur in the future, and capable of evading review, we proceed to address the merits of plaintiff's claim that the final agency decisions violate the New Jersey Constitution.2 1 In addition to plaintiff's action, two similar actions were filed by other State legislators: one by Senators Raymond J. Lesniak, Christopher (Kip) Bateman, and Michael J. Doherty, and another by Senator Richard J. Codey. All three actions were consolidated in the trial court; however, those other legislators do not join in plaintiff's appeal. 2 Because we elect to address the merits of plaintiff's appeal, and the matter is now properly before us, we need not reach plaintiff's argument that the trial court lacked jurisdiction to hear an appeal of a final agency decision and the matter should be decided by this court. See Prado v. State, 186 N.J. 413, 422 (2006) (noting that R. 2:2-3(a)(2) vests the Appellate Division with exclusive jurisdiction of an appeal of a final State administrative agency decision). See also R. 1:13-4(a) (allowing transfer of action from court that lacks jurisdiction (continued) 16 A-4689-16T2 B. The DLC of the New Jersey Constitution provides that the Legislature may not create "a debt or debts, liability or liabilities of the State" that exceed one percent of the amount appropriated in a given fiscal year unless "submitted to the people at a general election and approved by a majority of . . . [New Jersey] voters." N.J. Const. art. VIII, § 2, ¶ 3. The DLC's "animating principle is to prevent well-meaning state actors from presently binding the State to enforceable future financial obligations over a certain amount . . . unless voter approval has been secured." Burgos v. State, 222 N.J. 175, 203- 04 (2015). In essence, the DLC "prevent[s] one Legislature from incurring debts which subsequent Legislatures would be obliged to pay, without prior approval by public referendum[.]" N.J. Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 14 (1972). In 2008, the DLC was amended as a result of the Supreme Court's decision in Lance v. McGreevey, 180 N.J. 590 (2004). The 2008 amendment provided that, prospectively, the Legislature could not enact a law that authorizes creation of a debt that (continued) to the proper court); R. 1:13-4(b) ("If any action transferable under paragraph (a) because of lack of jurisdiction over the subject matter is appealed without having been transferred, the appellate court may decide the appeal . . . ."). 17 A-4689-16T2 has a pledge of an annual appropriation from the Legislature as the means to repay the debt. N.J. Const. art. VIII, § II, ¶ 3. Notably, the DLC is not implicated when debt is created by an independent authority, distinct from the State that has its own source of revenue. Lonegan v. State, 174 N.J. 435, 446 (2002) (Lonegan I). For example, Enourato v. New Jersey Building Authority, 90 N.J. 396, 402 (1982), involved the New Jersey Building Authority (BA), which built and operated office facilities for state agencies. The Court noted that so long as the bonds stated on their face that they did not create a financial obligation for the State, they did not contravene the DLC. Ibid. To repay the debt on the bonds, the BA used rents paid by the State. Ibid. The Court found the BA was independent of the State and did not create debt for the State, and therefore, the bonds issued did not violate the DLC, notwithstanding the fact that the rent payments were ultimately paid by the State. Id. at 409-10. Similarly, in New Jersey Sports, 61 N.J. at 10, another independent authority, the New Jersey Sports & Exposition Authority, sold bonds to construct a sports complex. The Court found the Authority was financially self-sustaining and could issue bonds to finance construction, given that the interest and 18 A-4689-16T2 principal of the bonds was paid from moneys collected from use of the sports facility. Ibid. In Lonegan I, 174 N.J. at 448-50, the Court expressed that the relevant factors in Enourato and New Jersey Sports were the legal autonomy of the issuing authority and the specific language on the bonds that disclaimed any enforceable obligation on the part of the State. The Court stated it generally sustains the issuance of debt that is not backed by the State when the debt is incurred by an independent authority that has a separate source of revenue. Id. at 439. Thus, the DLC does not apply when the State is not legally obligated. Ibid. In Lonegan v. State, 176 N.J. 2, 18 (2003) (Lonegan II), the Court discussed the status of lease arrangements where the "Legislature appropriates the rental payments from general revenues pursuant to a lease agreement, which payments then are used to retire bonds issued to finance the construction of the leased facilities." The Court noted that "[a]s with other types of appropriations-backed debt, the State is not legally bound to make the rental payments and can opt not to do so." Ibid. The Court concluded that the restrictions of the DLC do not apply to this type of "appropriations-backed debt." Id. at 21. Plaintiff argues that, in Spadoro, Justice Handler warned against courts permitting the sidestepping of the DLC by 19 A-4689-16T2 substituting an independent authority (such as the NJEDA) as the debtor, instead of the State. It is true that Justice Handler raised this concern, and took issue with the fact that the NJEDA did not have a separate source of income other than the sale of bonds. Spadoro, 150 N.J. at 10. But in Spadoro, the bonds were used to pay for pensions. Here, the separate source of revenue is the funds generated by rental of the SHC. The lease- leaseback transaction provides a stream of revenue, subject to appropriation, to satisfy the NJEDA's obligations to the bondholders. Thus, in rejecting plaintiff's argument, we draw guidance from Enourato, where the Court held that leasing property is a reasonable way to repay bond debt. Enourato, 90 N.J. at 409. Enourato favorably cited Clayton v. Kervick, 52 N.J. 138 (1968), which discussed this issue: In [Clayton], as here, the Legislature created an independent authority empowered to borrow money and issue bonds that were not the liabilities of the State or any political subdivision. In Clayton, the New Jersey Educational Facilities Authority built school facilities with the borrowed money and leased them to schools, whose rental payments were used to repay the Authority's creditors. The Court held that the Authority's debts were not debts of the State, despite "[t]he fact that the rentals were admittedly geared to satisfy the bonded indebtedness and enable the State ultimately to become the owner of the buildings[.]" 20 A-4689-16T2 [Enourato, 90 N.J. at 409.] Moreover, as noted, Lonegan II also stands for the proposition that the Legislature's appropriation of amounts for rent payments is not considered as the State's assumption of the debt. Lonegan II, 176 N.J. at 21. So long as the independent authority does not look to the State to repay the debt, it does not run afoul of the DLC. Here, consistent with Enourato and Lonegan II, we conclude the issuance of the bonds to finance the SHC renovation did not violate the DLC. This is so because the debt was assumed by the NJEDA, an independent authority, the bonds were used to fund capital expenditures, the bonds stated on their face the State would not be indebted, and the NJEDA had a separate source of revenue, the rental payments, to pay the debt. Plaintiff additionally argues that the final agency decisions of the NJEDA and the JMC should be reversed because the agencies lacked the authority to sell the bonds and lease the SHC. We disagree. Ordinarily, an appellate court will reverse the decision of an administrative agency only if it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. Mazza v. Bd. of Trs., Police & Firemen's Retirement Sys., 143 N.J. 22, 25 (1995). An 21 A-4689-16T2 appellate court, however, is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue" not involving either interpretation of its enabling legislation, or the exercise of agency expertise. Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Courts accord wide discretion to administrative agencies to decide "how best to approach legislatively assigned administrative tasks." In re Failure by the Dep't of Banking & Ins., 336 N.J. Super. 253, 262 (App. Div. 2001). "[P]owers expressly granted to an administrative agency should be liberally construed so that the agency can fulfill the Legislature's purpose." Bd. of Educ. of Upper Freehold Reg'l Sch. Dist. v. State Health Benefits Comm'n, 314 N.J. Super. 486, 492 (App. Div. 1998) (quoting In re Solid Waste Utility Customer Lists, 106 N.J. 508, 516 (1987)). In addition, "an agency's express authority is augmented by such incidental authority as may be reasonably necessary or appropriate to effectuate the expressly delegated authority." Ibid. Thus, "an agency's authority encompasses all express and implied powers necessary to fulfill the legislative scheme that the agency has been entrusted to administer." In re Virtua-W. Jersey Hosp. Voorhees for Certificate of Need, 194 N.J. 413, 422-23 (2008). Administrative agencies possess wide discretion 22 A-4689-16T2 and authority to select the means and procedures by which to meet their statutory objectives. Texter v. Dep't of Human Servs., 88 N.J. 376, 383 (1982). As noted, the JMC is authorized to maintain, monitor, preserve and improve the SHC, and to safeguard artifacts, documents and objects. N.J.S.A. 52:31-39(a). It also maintains custody of the SHC, with exclusive jurisdiction for maintenance, repair, renovation, improvement, security, parking, furnishing, artifact displays, and space utilization. Ibid. The JMC is also authorized to "enter into agreements with other State agencies or private vendors for the performance of any function or the provision of any service relating to the custody, management or operation of the [SHC]." N.J.S.A. 52:31-40 (emphasis added). Here, the JMC acted within its delegated authority by approving a renovation of the SHC. Acquiring funds to accomplish the renovation was an implied power of the JMC. Entering the lease agreements that would generate rental payments was consistent with the JMC's responsibility to maintain, preserve, and improve the SHC. In sum, the final agency decisions were in keeping with the agencies' expressly delegated authorities, were not arbitrary, capricious or unreasonable, and were supported by the evidence in the record. 23 A-4689-16T2 Affirmed. 24 A-4689-16T2
NET2 FUNDS, LLC v. HARTZ MOUNTAIN INDUSTRIES INC
Date: May 9, 2018
Docket Number: a0223-15
LAWRENCE G. BOTTS, III v. LAFAYETTE CAMPBELL, LLC
Date: May 9, 2018
Docket Number: a0664-16
STATE OF NEW JERSEY v. OMAR LEWIN
Date: May 9, 2018
Docket Number: a0713-16
STATE OF NEW JERSEY v. WILLY EMMANUEL
Date: May 9, 2018
Docket Number: a1859-16
NADER B. GHATAS v. MAMDOH A. HANA
Date: May 9, 2018
Docket Number: a1952-16
ALLCAN EXCEL ACADEMY v. CITY OF EAST ORANGE
Date: May 9, 2018
Docket Number: a2109-16
STATE OF NEW JERSEY v. LENROY LAURANCE
Date: May 9, 2018
Docket Number: a2290-16
VERONICA CARTER v. SANJAY LALLA, M.D.
Date: May 9, 2018
Docket Number: a2553-16
STATE OF NEW JERSEY v. ROBERT J. KOSCH, JR.
Date: May 9, 2018
Docket Number: a2982-16
TONI L. LICCIARDELLI v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Date: May 9, 2018
Docket Number: a3109-16
STATE OF NEW JERSEY v. CHRIS HARDLEY
Date: May 9, 2018
Docket Number: a4964-13
RAUL AUGUSTIN JIMENEZ V. RAUL ANIBAL JIMENEZ
Date: May 8, 2018
Docket Number: a2495-16
STUART GOLDMAN v. CRITTER CONTROL OF NEW JERSEY
Date: May 7, 2018
Docket Number: a1392-16 SUTER, J.A.D. We consolidate these two appeals for the purpose of this opinion. In Goldman v. Critter Control of New Jersey, A-1392-16 (Critter Control), plaintiff Stuart Goldman appeals from the September 6, 2016 order that dismissed with prejudice the complaint he filed against defendants Critter Control of New Jersey, Kewin, Inc. d/b/a Critter Control of New Jersey, Robert McDonough and Evan Windholz (Critter Control defendants). In this complaint, plaintiff sought civil penalties under the Prevention of Cruelty to Animals Act (PCAA), N.J.S.A. 4:22-11.1 to -60. Plaintiff also appeals from the November 4, 2016 order that denied reconsideration and his motion to amend the complaint. 2 A-1392-16T2 In Goldman v. Carlstrom, Hill, and Simplicity Farms, A-3906- 16 (Simplicity Farms), plaintiff appeals from the April 19, 2017 order that dismissed his complaint with prejudice against defendants Madison Carlstrom, Matthew Hill and Simplicity Farms (Simplicity Farm defendants) and denied his motion to file a second amended complaint. We consolidate these appeals because plaintiff sought statutory penalties under N.J.S.A. 4:22-26 in both complaints based on allegations of animal cruelty against defendants and both complaints were dismissed for lack of standing. The factual allegations are based on plaintiff's complaints. We affirm the orders for reasons that follow. I Plaintiff is the former chief humane law enforcement officer for the Monmouth County Society for the Prevention of Cruelty to Animals (Monmouth SPCA). He also is a trustee for two non-profit animal welfare organizations. In Critter Control, plaintiff alleged that in May 2015, he learned from a resident of Matawan that Critter Control defendants trapped a female adult raccoon and removed it from the roof of a house. Although Critter Control defendants claimed the raccoon was not lactating, a few days later baby raccoons were discovered 3 A-1392-16T2 in the gutters of the same house. Plaintiff alleged the baby raccoons had gone without sustenance for a week. Plaintiff filed a complaint "by way of . . . qui tam" against Critter Control defendants, seeking "damages and civil penalties" for violations of N.J.S.A. 4:22-26 for "animal cruelty, animal abuse, negligence, recklessness, [and] negligent infliction of emotional distress." He alleged that Critter Control defendants violated N.J.S.A. 4:22-26(a)(4) by failing, "as the owner or a person otherwise charged with the care of a living animal or creature, to provide the living animal or creature with necessary care, or otherwise cause or procure such an act to be done." A person who violates that statute "[s]hall forfeit and pay a sum" according to a schedule set forth in the statute, to be sued for and recovered, with costs, in a civil action by any person in the name of the New Jersey Society for the Prevention of Cruelty to Animals or a county society for the prevention of cruelty to animals, as appropriate, or, in the name of the municipality if brought by a certified animal control officer or animal cruelty investigator. [N.J.S.A. 4:22-26 (emphasis added).] Penalties for a violation of N.J.S.A. 4:22-26(a)(4) range from $500 to $2000. Plaintiff's complaint demanded compensatory and 4 A-1392-16T2 consequential damages, statutory civil penalties, punitive damages and attorney's fees. Critter Control defendants filed a motion to dismiss the complaint, asserting that plaintiff lacked standing. On September 6, 2016, the trial court granted their motion and dismissed the complaint with prejudice. The statute was "plain and unambiguous," according to the trial court's rider to its order, providing that "only select organizations, not individuals, may pursue a civil remedy under the statute." Because plaintiff brought the complaint "in his individual name, not in the name of the [New Jersey] SPCA, a county society for the prevention of animals, or Monmouth County," plaintiff lacked standing to proceed with the lawsuit. Plaintiff's reconsideration motion, captioned as "Stuart Goldman in the name of the Monmouth [SPCA]," also asked to amend the complaint to show that he was filing it in the name of the Monmouth SPCA. He certified that the Monmouth SPCA had no objection to his lawsuit. The motions were denied. In Simplicity Farms, plaintiff's April 2016 complaint alleged that Simplicity Farm defendants violated N.J.S.A. 4:22-26(a)(1)2 2 This section provides penalties for a person who shall "[o]verdrive, overload, drive when overloaded, overwork, abuse, or needlessly kill a living animal or creature, or cause or procure, by any direct or indirect means, including but not limited 5 A-1392-16T2 and N.J.S.A. 4:22-26(a)(4) by mistreating horses. The complaint alleged improper medical treatment of the horses, beatings, lack of food, and lack of medical attention, resulting in the death of a colt. Plaintiff disagreed with the Monmouth SPCA's decision not to pursue criminal or civil charges against Simplicity Farm defendants. Plaintiff's complaint purported to be a qui tam action that sought compensatory damages, statutory civil penalties, punitive damages and attorney's fees. On January 9, 2017, defendants' unopposed motion to dismiss was granted. Plaintiff asked for reconsideration and to amend the complaint's caption as "Stuart Goldman in the name of the Monmouth County [SPCA]." Although the trial judge vacated the January 9, 2017 dismissal in order to consider plaintiff's opposition, she nonetheless granted defendants' motion to dismiss on April 19, 2017, for lack of standing and denied as futile plaintiff's motion to amend the complaint. The trial court concluded that the Legislature intended to have "uniform rules and regulations" for the enforcement of animal cruelty laws. If the complaint were allowed to proceed, the effect would "eviscerat[e] all of the sections of the statute . . . to through the use of another living animal or creature, any such acts to be done." 6 A-1392-16T2 regarding the appointment, training, [and] supervision of agents who have been determined [to] have the ability to engage in that function." The judge rejected plaintiff's contention that a private individual had authority under N.J.S.A. 4:22-26 to investigate or prosecute allegations of animal cruelty. On appeal in Critter Control, plaintiff alleges he had standing to sue in the name of the Monmouth SPCA as a qui tam action and that the court erred by not granting his motion for reconsideration to allow him to amend the complaint with the proper caption. Also, he claims the court erred by not granting relief under Rule 4:50-1. In Simplicity Farms, plaintiff contends his complaint should not have been dismissed because the statute authorizes "any person in the name of" the SPCA to file a civil action. His proposed second amended complaint was not "futile" because it was a qui tam action. We find no merit in these arguments. II "Standing is a threshold requirement for justiciability." Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 421 (1991). "[S]tanding to assert the rights of third parties is appropriate if the litigant can show sufficient personal stake and adverseness so that the [c]ourt is not asked to render an advisory 7 A-1392-16T2 opinion." Estate of F.W. v. State of N.J., Div. of Youth and Family Servs., 398 N.J. Super. 344, 353 (App. Div. 2008) (alteration in original). A litigant generally cannot assert the rights of a third party. Ibid. Our review of orders that dismiss claims for lack of standing is de novo. Courier-Post Newspaper v. County of Camden, 413 N.J. Super 372, 381 (App. Div. 2010). Plaintiff does not have standing to sue Critter Control defendants or Simplicity Farm defendants in his individual capacity. He did not claim to own, control or have any financial interest in any of the animals involved in these cases. Plaintiff filed the complaints in his name and not in the name of the New Jersey SPCA or Monmouth SPCA. The complaint in Critter Control was dismissed because plaintiff did not have standing as an individual to sue those defendants. We find no error in that order because the complaint did not conform to the statute. Simplicity Farms was dismissed based on the judge's finding that plaintiff did not have standing because N.J.S.A. 4:22-26 did not authorize him to file a qui tam action. We agree. We decline to construe N.J.S.A. 4:22-26 as authorizing private citizens, who otherwise would not have standing, to sue for civil penalties under the PCAA in qui tam actions against other parties, who they allege may have committed acts of animal cruelty. 8 A-1392-16T2 A "qui tam3 action" is defined as: an action brought by an informer, under a statute which establishes a penalty for the commission or omission of a certain act, and provides that the same shall be recoverable in a civil action, part of the penalty to go to any person who will bring such action and the remainder to the state or some other institution. [Black's Law Dictionary 1126 (5th ed. 1979).] It is a "process whereby an individual sues or prosecutes in the name of the government and shares in the proceeds of any successful litigation of settlement." Charles Doyle, Qui Tam: The False Claims Act and Related Federal Statutes 1 (Cong. Research Serv., Report R40786, 2009), https://fas.org/sgp/crs/misc/R40785.pdf. "In matters of statutory interpretation, our review is de novo." Verry v. Franklin Fire Dist. No. 1, 230 N.J. 285, 294 (2017) (citing Saccone v. Bd. of Trs. of Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014)). "The Legislature's intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005). "We ascribe to the 3 "Qui tam is short for qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning, who pursues this action on our Lord the King's behalf as well as his own." State ex rel. Hayling v. Corr. Med. Servs., Inc., 422 N.J. Super. 363, 368 n. 2 (App. Div. 2011). 9 A-1392-16T2 statutory words their ordinary meaning and significance and read them in context with related provisions so as to give sense to the legislation as a whole." Ibid. (citations omitted). If the statute is ambiguous, "we may turn to extrinsic evidence, 'including legislative history, committee reports, and contemporaneous construction.'" Id. at 492-93 (quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004)). Plaintiff contends that the legislature intended N.J.S.A. 4:22-26 to authorize qui tam law suits because it provides that "any person in the name of the New Jersey [SPCA]" or county SPCA can sue for civil penalties. We analyze the PCAA "in context with related provisions." Id. at 492 (citing Chasin v. Montclair State Univ., 159 N.J. 418, 426-27 (1999)). The PCAA recently was amended by L. 2017, c. 331, effective August 1, 2018, to transfer the "power of humane law enforcement from the New Jersey [SPCA] and county societies for the prevention of cruelty to animals (county societies) to a county prosecutor animal cruelty task force in each county, and a municipal humane law enforcement officer appointed in each municipality." S. Econ. Growth Comm. Statement to S. 3558 (Nov. 30, 2017). The new legislation established a "county prosecutor animal cruelty task force" that will be "responsible for animal welfare within the 10 A-1392-16T2 jurisdiction of the county, and enforce and abide by the animal cruelty laws of the state." Ibid. Because these amendments are not yet in effect, we review Critter Control and Simplicity Farms under the PCAA prior to its 2017 amendment. Under the PCAA, the New Jersey SPCA granted charters to form county societies for the prevention of cruelty to animals and "establish bylaws and uniform standards and guidelines." N.J.S.A. 4:22-11.3. It appointed agents "for enforcing all laws and ordinances enacted for the protection of animals and for the investigation of alleged acts of cruelty to animals within the State." N.J.S.A. 4:22-11.4(e). All "humane law enforcement officers" were trained "in accordance with mandatory uniform standards, guidelines, and procedures for the operation of all county societies." N.J.S.A. 4:22-11.8(b). Both the New Jersey SPCA and county societies could sue and be sued in court. N.J.S.A. 4:22-11.4(h); N.J.S.A. 4:22-11.7(h). The PCAA provides for criminal and civil penalties. N.J.S.A. 4:22-17 sets forth acts that are unlawful and the range of permissible fines and/or terms of imprisonment. N.J.S.A. 4:22-26 sets forth acts that constitute animal cruelty and civil penalties for violations. N.J.S.A. 4:22-26 provides that the civil penalties 11 A-1392-16T2 can be "sued for and recovered . . . by any person in the name of the New Jersey [SPCA]."4 The penalties for violations of N.J.S.A. 4:22-26 "shall be enforced and collected in a summary manner under the 'Penalty Enforcement Law of 1999,' [N.J.S.A. 2A:58-10]." N.J.S.A. 4:22- 32. The PCAA also provides that all fines, penalties and moneys imposed and collected . . . shall be paid by the court or by the clerk or court officer receiving the fines, penalties or money, within thirty days and without demand, to (1) the county society for the prevention of cruelty to animals of the county where the fines, penalties or moneys were imposed and collected, if the county society brought the action or it was brought on behalf of the county society to be used by the county society in aid of the benevolent objects for which it was incorporated, or (2) in all other cases, the New Jersey [SPCA], to be used by the State society in aid of the benevolent objects for which it was incorporated. [N.J.S.A. 4:22-55.] Plaintiff rests his argument on the phrase "any person in the name of the New Jersey [SPCA]" in N.J.S.A. 4:22-26. He notes the "any person" language was maintained despite the legislation's 4 This section was amended by L. 2017, c. 331, § 13: to provide that the civil suit for penalties is "by any person in the name of the municipality or in the name of the county prosecutor animal cruelty task force of the county, wherein the defendant resides or where the offense was committed." 12 A-1392-16T2 recent amendments. This language by itself does not signal authority for qui tam litigation in light of the legislation's other provisions. We will therefore look to other extrinsic sources to aid our interpretation. Early versions of the statute give some support to plaintiff's cause. In 1868, the legislation allowed "one-half of the fines and forfeitures collected through the instrumentality of the society, its members or agents" to accrue to the "benefit of said society" for its purposes. L. 1868, c. 335, § 5. In 1880, the legislation expressly used the term "qui tam," providing that for proceedings under the act, "it shall not be necessary to endorse the summons or warrant as in qui tam actions with the time of the issuing of same, or the title of the act under which it is issued." L. 1880, c. 157, § 21. That same 1880 law prohibited certain acts of cruelty to animals in Section 13 and imposed penalties "not to exceed one hundred dollars together with costs, . . . to be sued for and recovered in an action of debt, with cost of suit by any person or persons, in the name of the New Jersey [SPCA]." Section 15 of the 1880 law continued to require all fines, penalties or moneys collected under the act to be shared. One-half was to be paid "to the informer, complainant or prosecutor" and the other half was 13 A-1392-16T2 paid to the local SPCA if in existence or to the State SPCA, if not. L. 1880, c. 157, § 15. In N.J. S.P.C.A. v. Russ, 83 N.J.L. 450, 451 (E. & A. 1912), the Court held that a proceeding under Section 13 of the 1880 law was a civil proceeding, not a criminal one. Citing to Section 15, the Court noted that an action for a penalty is a qui tam action where "a portion of [the penalty] when recovered goes to the informer." Ibid. The issue before the Court in Russ was not whether the 1880 version of the PCAA authorized qui tam law suits; it was whether a proceeding under Section 13 of that Act was civil or criminal. Even if Russ provided some insight on the issue before us, the Court apparently did not take note of a 1908 amendment that changed the payment structure in Section 15. As of April 10, 1908, "[n]o part of any fine, penalty or money imposed or collected for any offense in violation of any act for the prevention of cruelty to animals shall be paid by any court to the complainant, informer or prosecutor, but all such fines, penalties or moneys shall be paid" to the county SPCA where the offense occurred. L. 1908, c. 148, § 2.5 After 1908, no fines, penalties or moneys collected 5 In 1929, Section 15 was amended again and Section 2 of the 1908 law was repealed. The 1929 legislation continued to provide that none of the moneys were to be paid to a claimant or informer. 14 A-1392-16T2 were shared with any entity other than the various SPCA organizations. See N.J.S.A. 4:22-55. Because the Court in Russ held that qui tam actions involved a sharing of moneys recovered, the 1908 amendment undercut Russ's construction of the statute as authorizing qui tam lawsuits. The penalties for violations of N.J.S.A. 4:22-26 are to be "enforced and collected in a summary manner" under the Penalty Enforcement Law (PEL), N.J.S.A. 2A:58-10. That has been the case at least since 1953 when the PCAA was amended to reflect the PEL. See L. 1953, c. 5, § 69. The PEL authorizes "an administrative agency of the State" that has been awarded a "fixed amount of money as a civil penalty," following the opportunity for a hearing under the Administrative Procedures Act (APA), N.J.S.A. 52:14B-1 to -15, to record the final order as a judgment. If a statute or ordinance authorized a civil penalty, the PEL authorizes a summary action in the Superior Court. Judgments for civil penalties are to be paid to the State Treasurer unless the statute provides another disposition. "An action under the [PEL] . . . is civil in nature." Game v. Scipio, 88 N.J. Super. 315, 319 (App. Div. 1965) (concerning the enforcement of penalties for violating the Fish and Game Code). There is no indication that the PEL was intended for private 15 A-1392-16T2 individuals to enforce statutory penalties for public entities. Thus, reference to the PEL indicates that the Legislature did not contemplate enforcement of its provisions by individuals. It makes little sense for plaintiff to be able to file a civil action and then not be able to enforce a judgment or keep any portion of the penalties. The PCAA authorized enforcement of the animal cruelty laws by the New Jersey or county SPCAs; authorized the SPCA to promulgate uniform bylaws and guidelines; required humane officers to be trained in these "mandatory uniform standards, guidelines and procedures"; authorized the imposition of civil penalties; dedicated all of the penalties to the SPCAs; allowed collection of the penalties pursuant a law that allows administrative agencies to collect penalties; and long ago, removed language referencing qui tam actions or informers. Given the many amendments of this legislation, we decline to interpret the PCAA as authorizing qui tam lawsuits. Qui tam suits must be expressly authorized by legislation. See In re N.J. Firemen's Ass'n Obligation to Provide Relief Applications Under Open Pub. Records Act, 443 N.J. Super. 238, 258 (App. Div. 2015) (quoting R.J. Gaydos Ins. Agency, Inc. v. Nat'l Consumer Ins. Co., 168 N.J. 255, 271 (2001)) (stating our courts 16 A-1392-16T2 "have been reluctant to infer a statutory private right of action where the Legislature has not expressly provided for such action"). The New Jersey False Claims Act, N.J.S.A. 2A:32C-1 to -18, permits such law suits, N.J.S.A. 2A:32C-5(b), where the complainant has "direct and independent knowledge of the information on which the allegations are based." Brennan v. Lonegan, ___ N.J. Super. ___, ___ (App. Div. 2018) (slip op. at 7) (citing N.J.S.A. 2A:32C- 9(c)). In contrast to that law, however, the PCAA does not give the government (or SPCA) the opportunity to review the complaint and then decide whether to intervene, does not bar other persons from intervening, does not provide for a stay of an action if it interferes with a government investigation or prosecution, does not allocate penalty proceeds, nor provide a statute of limitations. Cf. In re Enf't of N.J. False Claims Act Subpoenas, 444 N.J. Super. 566, 568, (App. Div. 2016), aff'd o.b., 229 N.J. 285, 290 (2017); N.J.S.A. 2A:32C-5; N.J.S.A. 2A:32C-7. The PCAA has no provision to address frivolous lawsuits filed by individuals in the name of the SPCA. Just as important, qui tam actions filed by individuals under the PCAA would conflict with the uniform enforcement of animal welfare laws evident throughout the PCAA. The cases cited by plaintiff provide little assistance. Russ, 83 N.J.L. at 450, was brought by the New Jersey SPCA, not by an 17 A-1392-16T2 individual. Its characterization of the PCAA as a qui tam statute was dicta and overlooked the 1908 legislation that changed how fines, penalties and moneys were paid. In State v. Bernstein, 189 N.J. Super. 212 (App. Div. 1983), the defendant was criminally prosecuted in conjunction with a civil claim for animal abuse under N.J.S.A. 4:22-26. The SPCA prosecuted the appeal of the civil claim even though the complaint was filed in the name of the State. The SPCA was added as a party. We did not discuss whether the action was filed as a qui tam lawsuit. In Lanni v. City of Bayonne, 7 N.J. Super. 169, 172 (App. Div. 1950), the court rejected the qui tam recovery of fines in prosecuting zoning ordinance violations, but cited N.J.S.A. 4:22- 26 as an example where such recovery was available. Because the issue there did not involve the PCAA, the court's statement was not binding. See Bandler v. Melillo, 443 N.J. Super. 203, 211 (App. Div. 2015). Sawran v. Lennon, 19 N.J. 606, 612 (1955), provided that qui tam actions are civil and not criminal in nature, but the case did not involve the statute here or animal cruelty laws. We find unpersuasive plaintiff's citation to N.J.S.A. 4:22- 26.1. That statute concerns the confiscation and forfeiture of 18 A-1392-16T2 animals by an officer or agent of the SPCA where there has been a violation of specific portions of the PCAA. It does not refer to N.J.S.A. 4:22-26. Plaintiff contends that the PCAA allows him to file lawsuits to enforce animal protection laws even where the SPCA investigated the allegations and chose not to do so. We find nothing in the legislative history and the PCAA's many amendments that would support this result. Indeed, the new amendments to the PCAA shift enforcement responsibilities to the county prosecutor task forces and militate against plaintiff's contention that the law allows for private enforcement actions. In sum, we decline to construe the PCAA as authorizing qui tam lawsuits. Finally, we discern no misapplication of discretion by the trial judges in denying plaintiff's motions to amend the complaints because the amendments would have been futile in light of his lack of standing. See Bustamonte v. Borough of Paramus, 413 N.J. Super. 276, 298 (App. Div. 2010). Affirmed. 19 A-1392-16T2
IN RE ADOPTION OF N.J.A.C. 17:1-6.4, 17:1-7.5 and 17:1-7.10.
Date: May 7, 2018
Docket Number: a2171-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.D.
Date: May 3, 2018
Docket Number: a4918-15 KOBLITZ, J.A.D. The New Jersey Division Of Child Protection and Permanency (Division), 3 and the Law Guardian on behalf of the two young children, appeal from the Family Part's June 30, 2016 order denying termination of parental rights following an extended eighteen- month trial at which twelve witnesses testified and hundreds of 3 A reorganization of the Department of Children and Families under L. 2012, c. 16, effective June 29, 2012, changed the name of the Division of Youth and Family Services to the Division of Child Protection and Permanency. We use the term "Division" throughout this opinion to refer to both names. 2 A-4918-15T1 exhibits were admitted into evidence.4 The trial judge found that the Division did not provide reasonable services to the mother, who used a wheelchair. Considering our standard of review of a decision not to terminate parental rights, we affirm. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014).5 This appeal involves the termination of parental rights of T.D., a mother suffering from multiple sclerosis (MS) and R.C., the father of her two youngest children, B.C. (Belle) and A.G. (Alice), born in 2012 and 2014, and removed from the care of their parents shortly after birth.6 The trial judge found the Division failed to establish any of the four prongs required to terminate parental rights. N.J.S.A. 30:4C-15.1(a). Although the trial judge may have erred in his analysis of the first two prongs of the four-prong best-interests-of-the-child test, the trial judge did not mistakenly conclude that the Division failed to establish, by clear and convincing evidence, the third and fourth prongs. 4 We consolidated these appeals on September 7, 2016. 5 On November 9, 2016, we entered an order staying overnight visitation and final reunification until "appropriate assessments and evaluations are completed and supervised family visitation and a therapeutic program can be implemented by the trial court . . . ." 6 The children were placed in different resource homes. According to our review of the Division records, it appeared that neither placement had a high likelihood of permanence. 3 A-4918-15T1 I. Although no medical records were ever placed into evidence, T.D. was evidently diagnosed with MS in 2007 or 2008, when she was in her early thirties. She was confined to a wheelchair. We must set forth the Division's involvement with this family in some detail to fully explain our decision. We include some of the history involving Mary, an older daughter not involved in this appeal, because it sheds light on the Division's failure to provide handicap-accessible services to T.D. A. The Division first became involved with T.D. in October 2008, just after her daughter Mary turned six. A Division investigation found Mary to be well-groomed and the family home, a three bedroom apartment, to be clean with working utilities. T.D. reported that she had a "nurse" come every day to assist with cooking and household tasks. The Division's assessment noted that T.D. had MS and "limited mobility" but that she was "caring for her children to the best of her ability," and it concluded that the allegation of neglect was unfounded. A year later, Mary's paternal aunt called the Division to report concerns that Mary was not being cared for properly. The Division concluded that the allegations of neglect were unfounded, 4 A-4918-15T1 but noted T.D. "is wheelchair bound and relies on homemakers to do the house cleaning and cooking," and that she "cannot enforce the house rules and does not appear to have a strong hold on her children's behavior."7 Two months later, in January 2010, the paternal aunt again called the Division with concerns. The caseworker observed that the apartment had a bad odor, broken furniture, trash and dog feces on the floor, roaches on the kitchen counter top, and no food in the refrigerator. The Division worker saw an "empty whiskey bottle in the living room underneath a chair by the front window," which T.D. said belonged to her father. T.D. confirmed that a "home aide service provider" came daily. The Division performed a Dodd removal,8 placing Mary with her paternal aunt. The Division stated it would "[c]ontact the home health aide to verify their involvement with the family." A Division worker acknowledged at trial that the deplorable condition of the home showed that the home health aide was not 7 T.D.'s teen-aged son was then living at the home. He has since aged out of the litigation. 8 "'A Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)). 5 A-4918-15T1 doing her job, but the Division did not address the issue or replace the provider with one of the other services used by the Division. T.D. stipulated that her home had been in a deplorable condition rendering it unsafe and unfit for children to occupy. The court ordered her to (1) undergo psychological and substance abuse evaluations, (2) attend parenting skills training at Community Access, and (3) cooperate with homemaker services. The sole reason for ordering the substance abuse evaluation was the presence of the empty whiskey bottle in the apartment during the Division's visit. At a later hearing in March 2010, Judge Spatola directed the Division to confirm that Community Access either had the ability to transport T.D., who used a wheelchair, to its office or to provide services in T.D.'s home. The judge stressed that handicap accessibility "is important." Judge Spatola noted that providing a "teaching homemaker" two days a week in addition to the existing daily home health aides "would be a good idea" because such a person would offer a different service than the existing caregivers and "might be able to assist [T.D.] in learning techniques to help her." The Division did not follow up on this judicial suggestion. Briana Cox, Psy.D., evaluated T.D. in April 2010. Dr. Cox noted that T.D. "may be caring for her children to the best of her 6 A-4918-15T1 ability, but that does not necessarily mean that she is meeting their needs." In particular, Dr. Cox raised concerns that T.D. (1) "demonstrated a tendency to deny or minimize" problems, (2) was "uncooperative with testing demands," (3) "appear[ed] to have little control of the children," (4) reported taking medication, including oxycodone, that could interfere with her ability to be alert and focused, and (5) had a serious medical condition that required her to have assistance with her own needs and made it "unlikely that she can meet the needs of her children." Dr. Cox concluded: "At this time, it does not appear that [T.D.] is capable of parenting independently." She made the following recommendations: 1. It is recommended that [the Division] obtain [T.D.]'s medical records and consult with her treating physician about her physical limitations and what she can be expected to do on her own. 2. It is recommended that a medical professional review her medications and advise [the Division] about the side effect of drugs such as oxycodone and the expected limitations on functioning as a result of using that, or other drugs. 3. It is recommended that [T.D.] have a substance abuse evaluation. It is recommended that her use of prescribed medication be investigated. 4. It is recommended that she complete parenting classes. 7 A-4918-15T1 5. It is recommended that she participate in individual therapy to address the impact of MS on her psychological functioning and assist with adjustment. It is recommended that this therapy be provided in-home. 6. It is recommended that [the Division] investigate relative resources in order to provide [T.D.] with assistance in caring for her children on a regular basis. 7. It is recommended that [Mary] and [T.D.'s older son] participate in psychological evaluations to determine if they have any needs at this time. 8. It is recommended that home health aide services continue in the home. 9. It is recommended that [T.D.] maintain appropriate housing. 10. [T.D.] may benefit from a support group for individuals who have been diagnosed with MS. 11. It is recommended that [T.D.] be reevaluated in 6-12 months to determine if she has been able to benefit from services. It is recommended that [the Division] obtain records from her participation in services and provide the evaluator with those records at the time of the new evaluation. Dr. Cox's trial testimony was consistent with her report. Dr. Cox testified that her "goal in this report" was to provide professional insight as to services "the Division should supply to [T.D.] to assist her in addressing anything that might exist to achieve reunification." 8 A-4918-15T1 In September 2010, the Division was ordered to "obtain [T.D.]'s medical records for medical consult as to potential side effects and limitations of functions as it pertains to [T.D.]'s parenting." Medical records were not obtained. T.D. participated in the court-ordered substance abuse treatment. Saint Michael's Medical Center reported that T.D. had been admitted into an outpatient substance abuse treatment program meeting three times per week. The results of T.D.'s urine screens and oral swabs were all negative, and the clinician reported that "[w]hen [T.D.] is in attendance, she actively participates in the program." On December 3, 2010, the clinician wrote to the Division, stating that T.D. had been present for only one treatment after September 7, 2010, due to problems with transportation. She explained: "On numerous occasions the transportation service that was transporting [T.D.] to and from treatment failed to pick her up on time. Consequently, [T.D.] was left waiting for many hours until the van service could be contacted." A few weeks later, the clinician advised the Division that T.D. had successfully completed her substance abuse treatment and was "being routinely discharged . . . with a status of 'Completion'," noting that only a brief course of therapy was 9 A-4918-15T1 appropriate because T.D. had "barely met the requirement for a diagnosis due to a lack of substance use history." A Division caseworker, who worked with the family beginning in March 2010, testified at a hearing in December 2010 that T.D.'s "excuse for not attending services" was lack of transportation. T.D. was approved for transportation services through Access Link by September 2010, and the worker advised T.D. that she should use that service for visits and to attend court-ordered services. In November 2010, T.D. informed the caseworker more than once that Access Link was not working for her "because they don't assist her getting out of her house and she has to wait a block from her house when she needs a ride." She also reported having difficulty with the fees charged. When the worker asked how T.D. was getting to substance abuse treatments at Saint Michael's without Access Link, T.D. said "that she was using Medicaid transportation services and she got away by telling them that she needed a ride for a medical appointment." T.D. was referred to Family and Children's Services (FCS) for individual therapy, but she had transportation difficulties there as well. FCS agreed to provide transportation through a service called "ON TIME." T.D. consistently attended both individual therapy and visitation with Mary at FCS when the ON TIME service was provided. During a status conference in April 2011, at which 10 A-4918-15T1 T.D. appeared telephonically, Division counsel noted that "since that has been arranged, [T.D.] has been consistent with visitation," but that "they can only do it biweekly." At the April 2011 status conference, Division counsel stated that if T.D. "gets connected with Access Link and she can get to the [Division] office," she could have visitation on the weeks FCS did not cover. Counsel explained: "But we can't transport her. It's a liability issue. We have no ability to transport her ourselves." The Division attempted to schedule parenting skills classes for T.D. at FCS so that the same transportation could be provided, but FCS was not able to accommodate the request. The issue of T.D.'s medical records was also raised. Division counsel stated that T.D. never provided the records; T.D. asserted that she was never asked to provide them. T.D. promised to cooperate by signing any form the Division needed to obtain records. The resulting order stated that the Division "shall obtain [T.D.]'s medical records for medical consult as to potential side effects and limitations of functions as it pertains to [T.D.]'s parenting." The Division did not obtain these records. T.D.'s individual counseling and therapeutic visitation at FCS progressed well for several months. On May 25, 2011, FCS reported to the Division that T.D. "has been consistent in her 11 A-4918-15T1 attendance at therapy sessions and has demonstrated motivation towards achieving her treatment plan goals." On August 22, 2011, T.D.'s new therapist provided a generally favorable update. The therapist's "impressions" were: [T.D.] is actively participating in her therapy sessions and is motivated to comply with services in order to obtain custody of her daughter [Mary]. She appears to be making strides towards improving her own life so that she can be more independent and subsequently be able to have her daughter back in her care. FCS reported positively on the visitation sessions between T.D. and Mary that had taken place between the end of March and early June 2011. T.D. continued successful bi-weekly therapeutic visits with Mary at FCS through the summer of 2011. Alexander Iofin, M.D., conducted a psychiatric evaluation of T.D in February 2011. He believed incorrectly that T.D. had failed to complete her substance abuse treatment. Dr. Iofin noted that, due to T.D.'s MS, "it is unlikely that she can meet the needs of her children when she needs assistance to meet her own needs." He opined she has "psychiatric problems as a result of her significant neurological problems, primarily in the realm of multiple sclerosis." He concluded: [A] letter from the treating neurologist with prediction of the course of multiple sclerosis, and specific data about treatment of multiple sclerosis, certainly will be helpful to consider, with necessity for the neurologist to comment on her functional 12 A-4918-15T1 limitations. If necessary this should be supported by data from an occupational therapist to have a better idea about the scope of functional limitations that certainly are in existence with [T.D.] right [sic], and it is unlikely to anticipate that these limitations will improve to any significant degree. Dr. Iofin opined that T.D. "is only able to provide minimally adequate care for her children if she has external support and services provided to her on an ongoing basis." Dr. Iofin's trial testimony was consistent with his report, although he acknowledged he did not observe symptoms of any psychological disorder in T.D. during the forty-five to fifty minutes he spent with her. At a hearing in October 2011, T.D. agreed to sign new medical releases. The Division did not follow up to secure the records. B. The father of the two little girls who are the focus of this appeal, R.C., testified at trial that he met T.D. in 2010 when they lived across the street from each other and helped her because she "was really bad off." In 2011, R.C. met Division caseworkers at the home, but did not "feel comfortable" telling them anything about himself because he was not involved in Mary's case and it was his "right as a human being and an American citizen" to refuse to provide information. In December 2011, T.D. and R.C. advised the Division that T.D. was pregnant with R.C.'s child. R.C. said he was not planning 13 A-4918-15T1 to reside with T.D. and would "not allow" the Division to take his baby. Two workers visited T.D.'s home the following day and spoke to T.D. and R.C. R.C. reportedly told one worker that he planned to raise the baby once it was born and would not cooperate with the Division. R.C. also said he believed the Division discriminated against T.D. because she was handicapped. The worker testified that when she saw R.C. in person, he "would have mood swings" and sometimes be very loud and "screaming." Another worker reported that R.C. "pointed at [T.D.] and said 'that one is mine, y'all ain't taking that one. I'm going to the chair for that one.'" T.D. was successfully engaging in services. On January 4, 2012, FCS reported that T.D. had completed thirty-two therapy sessions with two therapists, making her "fairly consistent in her attendance." T.D. "has made progress toward her treatment goals and is increasingly more open to discussing challenges that she faces with her chronic medical condition," even though "[p]reviously she had denied that her illness impacted her ability to function independently." "She acknowledged that certain physical tasks are more difficult for her but seems to believe that she is capable of caring for her daughter [Mary] and has expressed that she feels that her friends and family would be able to provide her with adequate support as needed." 14 A-4918-15T1 T.D. was also taking parenting classes. Her therapist reported that "although it was a challenge for her to obtain transportation and continues to be a challenge for her to travel with her medical condition, she is complying with the recommended service." In early February 2012, however, FCS suspended services to T.D. solely because she "needed assistance with going to the restroom." Around the same time, R.C. provided his real name and date of birth. At the end of February 2012, T.D. called the Division to advise that she was in labor and Belle was later born at the hospital. The Division's concerns about R.C. at the time of Belle's birth included his "extensive [c]riminal [h]istory that includes endangering the welfare of a child and threatening to kill someone," a history of substance abuse and that he "declared in the presence of [a Division worker] that he would go to the 'electric chair for that one' when pointing to [T.D.]'s womb." Although the Division visited T.D.'s apartment and reported that the apartment "appeared clean and neat," it initiated a Dodd removal of newborn Belle "based on mom's mental and medical health issues," R.C.'s "extensive criminal and [Division] history," "the lack of a paternity test proving [R.C. is] the father, and the conditions of the home . . . ." Human Services Police (HSP) 15 A-4918-15T1 officers went to the hospital, found Belle with both parents, and took custody of the infant. According to the Division, R.C. "stated that his threats were not physical, but that he will make sure that the people involved get fired." R.C. testified that four or five HSP officers came with a worker to remove Belle and that one "extracted his revolver and told me not to move." R.C. believed that the Division's actions violated the law, which he understood to be that the Division "cannot take healthy newborn babies from parents who love and want their children for risk factors only." The judge permitted T.D. weekly visits with Mary and Belle at the Division office, transported by R.C. Over the next few months, T.D. attended visits at the Division office. R.C. repeatedly telephoned the caseworkers, stressing that the Division had acted illegally, asking that Belle be returned, and making accusations of bias and conspiracy. Over the next eleven months, T.D. and R.C. largely declined to participate in any services other than visitation, which occurred sporadically. R.C. was adamant that he did not need services, but he did express continued willingness to transport T.D. anywhere she needed to go. R.C. continued to call the Division worker multiple times a day even after the Division obtained a restraining order 16 A-4918-15T1 prohibiting telephone calls. The worker acknowledged that R.C. never did "anything physical" and that the Division "was willing to allow him to be a [t]axi [d]river for [T.D.] to take to the Division," even after the restraining order was entered. At trial, a Division supervisor acknowledged that R.C. threatened to take legal action, ensure Division workers were fired, and "use[d] a lot of foul language," but "never made any physical threats of harm." She never feared for her safety. In October 2013 a new judge granted the Division's motion to (1) restrain R.C. from coming within 1000 feet of the Division's Newark office, (2) limit R.C.'s contact with the Division to written contact with counsel, and (3) suspend R.C.'s visits with Belle pending psychological and psychiatric evaluations. The court suspended services as to both T.D. and R.C. until they indicated a "willingness to participate." C. Alice was born in March 2014. She was discharged from the hospital into the care of T.D. and R.C. three days later. R.C. testified Alice was "perfect" and he took care of all of her needs, including purchasing supplies and taking her to the doctor for a check-up. The Division was unaware of Alice's birth until the end of the month, when the Division learned that T.D. had "posted on 17 A-4918-15T1 Facebook that she just gave birth to a child." The Division went with the police to the home that day and performed a Dodd removal. Following Alice's removal, R.C.'s antagonistic communications with the Division continued. Trial was held between December 2014 and June 2016. Various evaluations took place during the course of the trial. Court procedures contemplate a termination trial will be completed in thirty days and a decision rendered within two weeks thereafter. Children in Court Operations Manual, § 1706-07 (revised June 23, 2017). Unfortunately for the children, who were in placement the entire time, this matter was elongated. In March 2015, R.C. submitted to a combined psychological and bonding evaluation performed by Mark Singer, Ed.D. At that point, R.C. had not seen Belle for over a year and had not seen Alice since her removal. R.C. told Dr. Singer during the evaluation that he had "only threatened [Division workers] with the [four] corners of law." Dr. Singer concluded that although R.C. "appears to be committed to" T.D., "his presentation involved themes of paranoia, aggression, impulsivity, and tangential/confused thought processes." Dr. Singer was particularly concerned about R.C.'s "verbal behavior during the bonding evaluation," which Dr. Singer considered "suggestive of an individual who is experiencing a 18 A-4918-15T1 thought disorder and has poor reality testing, in addition to having limited ability to display empathy to the children." Dr. Singer also evaluated T.D., noting she "clearly has physical and sensory limitations" and "presented tangential and in a confused manner at times." At trial, Dr. Singer said T.D. would need twenty-four-hour assistance to be able to parent. Dr. Singer concluded that "the currently obtained data does not suggest that [T.D.], nor [R.C.], either individually or collectively, are viable parenting option [sic] for these children and they are not likely to become viable parenting options for the children in the foreseeable future." He recommended that visitations should take place in a therapist's office, with the parents meeting individually with the therapist first (therapeutic family visitation), which the judge ordered in June 2015. The June order further provided that "[i]n the meantime and until such counseling is available," R.C. would be allowed weekly visits with Belle and Alice at the Division's Newark office. The Division was ordered to monitor and record the visits, as well as to provide transportation for both T.D. and R.C. The Division made only one attempt in the next nine months to comply with the "therapeutic family visitation" provision in the June 2015 order. Between June 2015 and January 2016, the 19 A-4918-15T1 Division took no steps to locate a therapeutic visitation provider. The Division then contacted a single provider who, after being advised that R.C. made threats during visits, declined. By May 2016, after the judge had again ordered therapeutic family visitation, those visits were finally taking place. Sean Hiscox, Ph.D., performed psychological and bonding evaluations on behalf of the Law Guardian between April and October 2015. Dr. Hiscox noted that T.D. "was cooperative, pleasant, and generally forthcoming." He noted that "[h]er thinking was sometimes tangential and hard to follow, but there were no overt signs of a psychotic disorder." He had "significant concerns about her parental fitness," due primarily to her physical condition and indications of "some cognitive problems." Dr. Hiscox was also concerned about T.D.'s "poor perspective" regarding her daughters' "current situations," giving as an example T.D.'s stated belief that Belle would not experience any emotional harm if separated from the resource mother who had cared for her for the first three and a half years of her life. This demonstrated T.D. had impaired empathy and would not be able to meet her children's emotional needs. Dr. Hiscox concluded that T.D. was "unable and/or unwilling to provide minimally adequate care to her children." 20 A-4918-15T1 Dr. Hiscox acknowledged at trial that he was unable to complete testing on T.D. Dr. Hiscox was unable to form an opinion as to R.C.'s parental fitness because R.C. had refused to cooperate with the psychological evaluation, but after reviewing the case background and observing him at the bonding evaluations, Dr. Hiscox had "concerns about his emotional stability and ability to parent." As to the bonding evaluations, Dr. Hiscox concluded that Belle and Alice had "weak relationships" with both T.D. and R.C. He noted that T.D. was primarily focused on Mary and "was often completely unaware of" the younger girls' whereabouts, "which in a home setting would be worrisome." R.C. initiated contact with the younger children, but he was sometimes "intense and intrusive, which at times caused them to be uncomfortable." Dr. Hiscox concluded that neither Belle nor Alice would experience emotional harm if their relationships with T.D. and R.C. were terminated. II. In his sixty-seven page decision, the trial judge determined the Division had failed to establish by clear and convincing evidence that T.D.'s and R.C.'s parental rights should be terminated. The judge found R.C. to be credible, noting that he "was not evasive" and his testimony, "although not concise, made sense." "His testimony was quite understandably at times 21 A-4918-15T1 emotionally charged, but in the opinion of the [c]ourt, appropriately so under the circumstances." The judge found the caseworkers, although generally credible, did not provide credible testimony with regard to R.C.'s threats. He noted both a failure to recall and personal animosity on the part of the workers. The judge also noted that "several Division employees testified that [R.C]. had left multiple voice mail messages threatening their safety," but did not find this testimony credible, particularly because the Division had been ordered to produce recordings of the alleged threats but failed to do so. Regarding the experts, the judge found the testimony of Drs. Cox, Singer, and Hiscox to be "clear, candid and credible." However, the judge concluded that "they were not provided with all of the documentary information necessary to be able to properly formulate conclusions based upon the record." The judge found Dr. Iofin "to be not credible," argumentative, evasive, and inconsistent. The judge noted that "[t]hrough cross examination it became clear that his opinion was grounded in what can best be described as a subjective and tortured analysis of the 'facts' as he thought they should be." The judge wrote: According to a Division witness, [Belle] was removed from the care and custody of her mother and father even though there were no issues with their residence, knowing that the 22 A-4918-15T1 most recent conviction the Division was aware of occurred in 1990, some 21 years in the past, and before [R.C.] was offered any services. The finding that "the most recent conviction" of R.C. that the Division knew of "occurred in 1990" conflicts with the record regarding R.C.'s criminal history and the Division's knowledge of it. The appellate record contains two judgments of conviction. In 1993, R.C. pled guilty to third-degree interfering with the custody of a child, (1) N.J.S.A. 2C:13-4(a)(1), and fourth-degree resisting arrest, (2) N.J.S.A. 2C:29-2, and was sentenced to four years' probation. In early 2007, R.C. pled guilty to third-degree terroristic threats, N.J.S.A. 2C:12-3(a). He was sentenced to five years in prison with a two-and-one-half-year parole bar. A Division supervisor noted on March 1, 2012, that she discussed the Division's concerns regarding his "extensive criminal history" with R.C. and specifically asked him "why he served three years in state prison for threatening to kill someone." R.C. told her "he threatened to kill his ex-girlfriend and since he had a criminal history, he received a longer sentence than he should have." Thus, the Division was aware of the 2007 conviction at the time of Belle's removal. The judge addressed the four prongs the Division was obliged to establish at the guardianship trial. Regarding prongs one and 23 A-4918-15T1 two, which require the Division to prove that a child's safety, health or development has been or will continue to be endangered and the parent is unwilling or unable to remedy the risk, the judge held that "the Division did not prove, even by a preponderance of the evidence, that either [T.D.] or [R.C.] are not able to parent either of their children at the current time and will not be able to do so in the foreseeable future." He found: At trial, the Division employees who made the decision to remove [Belle] from the care and custody of her parents provided no credible testimony to support the purported risk posed by [T.D.]. With regards to the purported risk posed by [R.C.], although he had a decade-old criminal conviction and another conviction that was subject to discussion, there was no credible testimony provided by any Division employee that [R.C.] had a "drug problem". As to his purported "history with the Division", [a caseworker] conceded at trial that his "history" amounted to him calling the Division in the past to make referrals about other people. Rather than review the Division records during the two (2) weeks that the Division was contemplating the situation, the Division simply decided to accept the "red flags" that "popped up on the computer" when [R.C.]'s name was searched. The judge also found that the record did not support the Division's representations, at the time of Alice's removal in March 2014, that (1) T.D. was "found to not be competent to care for a child;" (2) R.C. was in a gang, might have weapons due to gang affiliation, and was convicted of (as opposed to arrested 24 A-4918-15T1 for) endangering the welfare of a child; or (3) there was a history of domestic violence between T.D. and R.C. The court found that T.D.'s "physical impairment was never proven to even remotely place any of her children at risk." It noted that Alice had lived with her parents for two weeks without incident and stated that T.D. "could never have placed Belle at risk because she was removed from her care at birth." The judge stated R.C. was helpful to T.D. in her efforts to comply with services prior to Belle's birth. The judge found that Belle's removal at birth and Alice's uneventful two-week residence with him showed that R.C. never placed any child in danger. A discussion of prong three, including the facts relevant to the reasonableness of the Division's services, was the primary focus of the judge's opinion. The judge wrote that he must determine whether T.D., who was physically disabled, "was properly provided with individualized treatment, and a full and fair opportunity to services that would allow her to benefit from or participate in services that are equal to those extended to individuals without disabilities." The judge detailed numerous ways in which the Division failed to address T.D.'s disability or to offer her properly individualized treatment. The judge noted that, when Mary was removed in 2010, Judge Spatola had "made it clear that the Division would need to locate 25 A-4918-15T1 a service to assist [T.D.] in learning how to deal with her disability in terms of home making skills" and mentioned potential agencies to contact. However, "[d]uring the trial, the Division did not offer any witness testimony as to what efforts, if any, the Division took to follow up on Judge Spatola's information." The judge also relied on the ten recommendations that Dr. Cox had made in 2010 and noted that their "explicit purpose" was "to assist [T.D.] with her reunification efforts." The judge found the Division's efforts were "feeble" rather than reasonable. For example, regarding Dr. Cox's recommendation that the Division obtain T.D.'s medical records "and consult with her treating physicians about her physical limitations and what she can be expected to do on her own," the judge noted the Division either never obtained medical records or, if it did, failed to review them or provide them to its experts. Similarly, in February 2012, FCS strongly recommended "comprehensive services geared towards her physical difficulties," but again the judge found the Division failed to prove that it made any effort to provide them. In addition, the judge found that, to meet the standard of reasonable services, the Division was obliged to provide T.D. with either in-home services or a viable transportation option. The judge stated: The Division ignored the recommendation of Dr. Cox that in light of her MS, [T.D.] should 26 A-4918-15T1 receive services in her home. The record is silent as to the Division doing anything to accommodate/consider this very real and obvious impediment to the Division's cookie- cutter approach to [T.D.]'s situation. The Division also ignored the obvious fact that the curb-to-curb service provided by Access Link would not be a viable option for a person with MS who is wheel-chair bound and without a ramp from her house to her walkway. The judge also noted, "[f]or reasons that could not be rationally explained by any Division representative," his June 2015 order for therapeutic visitation was effectively ignored by the Division for nine months except for a single, failed phone call. As to prong three, the judge held: Starting with the Division expecting the wheel-chair bound [T.D.] to make her appointments by way of public transportation and "bus cards", right up through the Division ignoring a very explicit order dated June 26, 2015, that required the Division to retain a therapeutic visitation expert to engage the family in therapy, the record is replete with evidence of failures by the Division to provide [T.D.] with recommended services and barren of evidence that meaningful services were actually supplied. Regarding prong four, requiring the Division to establish that the termination of parental rights will not do more harm than good, the judge considered the bonding evaluations performed by Drs. Singer and Hiscox. He noted that the materials provided to 27 A-4918-15T1 the experts were deficient and their opinions therefore untrustworthy. III. The Division and Law Guardian argue that the trial judge erred in denying its guardianship petition and holding that it failed to establish each of the four prongs of N.J.S.A. 30:4C-15.1 by clear and convincing evidence. The United States Supreme Court has held that biological parents' relationships with their children "is an interest far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). To protect that interest, courts impose "strict standards for the termination of parental rights," but parental rights are "not absolute." R.G., 217 N.J. at 553 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999)). Parental rights can be trumped by the State's parens patriae obligation to guard the health, safety, and welfare of children. Ibid.; In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "The best-interests-of-the-child standard codified at N.J.S.A. 30:4C-15.1(a) 'aims to achieve the appropriate balance between parental rights and the State's parens patriae responsibility.'" R.G., 217 N.J. at 554 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007)). The Division has the burden of proof by clear and convincing evidence 28 A-4918-15T1 because the consequences of finding that a child's best interests are served by the termination of the parental bond are permanent and irreversible. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004). The statute requires the Division to prove: (1) The child's safety, health or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to the termination of parental rights; and (4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).] This four-pronged test is fact-sensitive, and evidence used to satisfy one prong can also be used to satisfy another. K.H.O., 161 N.J. at 348; see also R.G., 217 N.J. at 553 ("These elements are not discrete and separate; they overlap to offer a full picture of the child's best interests."). 29 A-4918-15T1 Our review of a trial court decision in a termination of parental rights case is limited. R.G., 217 N.J. at 552. "In such cases, the trial court's factual findings should be upheld when supported by adequate, substantial, and credible evidence." Ibid. Reviewing courts should generally defer to the trial court's credibility determinations because the trial judge "has the opportunity to make first-hand credibility determinations about the witnesses who appear on the stand" and thus "has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). "Moreover, by virtue of its specific jurisdiction, the Family Part 'possess[es] special expertise in the field of domestic relations' and thus 'appellate courts should accord deference to [F]amily [Part] factfinding.'" R.G., 217 N.J. at 553 (quoting Cesare v. Cesare, 154 N.J. 394, 412-13 (1997)). In a case such as this one, where the Division is the appellant, our Supreme Court has noted that even "greater deference is owed" to the trial court's determination "because a termination of parental rights is final and cannot be re-visited by the court." Ibid. A. The Division argues that the trial judge erred in finding it had failed to meet its burden as to prongs one and two. During a 30 A-4918-15T1 guardianship trial, the Division must establish under the first statutory prong of the statute that the health, safety, and development of a child has been or would continue to be endangered if a relationship with the parents was allowed to continue. J.C., 129 N.J. at 10. Our Supreme Court has held that a parent's inability to provide care is harmful and can endanger the health of a child. K.H.O., 161 N.J. at 346, 352. Under the second prong, the trial judge is permitted to consider whether the parents would correct their conduct within the reasonably foreseeable future. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). The first two prongs, N.J.S.A. 30:4C-15.1(a)(1) and (2), are "the two components of the harm requirement" and "are related to one another." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Therefore, "evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." Ibid. Our Supreme Court has explained that "the best interests standard does not concentrate on a single or isolated harm or past harm as such." K.H.O., 161 N.J. at 348 ("Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development."). Although the 31 A-4918-15T1 presence of physical or sexual abuse establishes harm, the absence of such abuse is not dispositive and "serious emotional injury and developmental retardation" also constitutes an injury to the child. A.W., 103 N.J. at 605. Here, the judge heard considerable testimony regarding R.C.'s purported "threats" to the Division and found that R.C. never made an actual threat to the physical safety of any Division worker. This finding is supported by sufficient credible evidence, because the clear tenor of R.C.'s repeated calls was to demand the return of his daughters and to rant about retribution through legal channels. Even at his angriest, R.C. did not take physical actions toward workers. Moreover, as the trial judge found, the workers who testified that he spoke about guns or blowing up the federal building could easily have misheard, in light of his fast and rambling manner of speech. The judge, however, was mistaken in not recognizing that the information the Division was able to glean about R.C.'s criminal history prior to Belle's birth provided legitimate reason for concern. The judge excluded the Promis/Gavel criminal court report from evidence because it revealed more than convictions, but the report was relevant to show the Division was aware of R.C.'s 1993 conviction for interfering with custody and 2007 conviction for threatening violence. Such prejudicial evidence may be excluded 32 A-4918-15T1 from lay jurors under N.J.R.E. 403. However, as professional jurists, Family Part judges are capable of reviewing this information and objectively determining its relevancy and probative value. The judge's conclusion that there was no evidence of harm or risk of harm to the children in T.D. or R.C.'s care was not entirely correct. The Division was aware of R.C.'s recent criminal conviction, T.D.'s difficulty in raising Mary, and R.C.'s failure to cooperate with the Division. Regardless of any error in evaluating the first two prongs, however, the soundness of the decision as to the remaining prongs prevent reversal. B. The Division and Law Guardian argue the trial judge erred in holding the Division failed to prove the third prong of the best- interests test because it "has provided more than reasonable efforts, over the course of six years, to [T.D.] and [R.C.]." Pursuant to N.J.S.A. 30:4C-15.1(a)(3), the court must determine whether the Division made "reasonable efforts" aimed at the reunification of the family. K.H.O., 161 N.J. at 353. Reasonable efforts include: (1) consultation and cooperation with the parent in developing a plan for appropriate services; 33 A-4918-15T1 (2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification; (3) informing the parent at appropriate intervals of the child's progress, development and health; and (4) facilitating appropriate visitation. [N.J.S.A. 30:4C-15.1(c).] The reasonableness of the Division's efforts depends on the facts in each case. D.M.H., 161 N.J. at 390. "Services that may address one family's needs will not be helpful to another." Ibid. The judge found here that the Division took a "cookie-cutter" approach to dealing with T.D. and fell short of providing reasonable services. In particular, the Division failed to adequately take her MS into account when providing services. This finding was amply supported by the evidence. The primary reason for Mary's removal was the filthy condition of T.D.'s home, but the Division did not work with T.D. to ensure that competent home health services were in place. Before Belle's birth, various experts and service providers recommended providing home services to T.D., but the Division did not do so until the middle of trial in 2015, when visits were ordered to take place in the home. Also, the Division was aware that using Access Link created a problem for T.D., but it continued to insist that she use that 34 A-4918-15T1 service when transportation was not available through Medicaid, FCS, or R.C. Until T.D. became pregnant with Alice and ceased participating in services altogether, she was consistent about attending and participating in visits and services whenever she had transportation that actually accommodated her disability. The Division's approach of repeatedly insisting that she simply use Access Link failed to take her individual needs into account. The more global problem with the reasonableness of the Division's efforts to reunify T.D. with Belle and Alice was that it evidently accepted Dr. Cox's opinion that T.D. could not parent independently because of her MS. The Division never obtained T.D.'s medical records, although it was ordered to do so repeatedly, so it never determined the full extent of her physical limitations or what types of supports or services she might need to enable her to parent successfully. Despite any stereotypical misconceptions suggesting otherwise, parents with physical disabilities often parent children successfully. Without medical records, there is no way to determine how helpful those records might have been. The Division's failure to provide reasonable services to T.D. and its attitude towards her disability continued after R.C. entered the picture and infected the Division's relationship with him as well. Moreover, the Division failed to implement court- 35 A-4918-15T1 ordered therapeutic family visitation until nearly a year had passed and the judge had ordered it a second time. Additionally, the Division's inability to prove its case against T.D. made termination of R.C.'s rights harmful to the children. "Two parents are better than one, even if one parent falls far below the ideal . . . ." N.J. Div. of Youth & Family Servs. v. D.S.H., 425 N.J. Super. 228, 242 (App. Div. 2012). C. The fourth prong, that termination would not do more harm than good, requires the court to determine whether the best interests of the child would be served by the termination of parental rights. E.P., 196 N.J. at 108. Prong four "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007) (emphasis added). Here, at the time of the bonding evaluations, the girls had had very little contact with their parents. The experts opined that severing the parental bond would therefore not harm the children. Proof of the fourth prong cannot overcome the lack of proof concerning another prong. IV. A. The Division and the Law Guardian complain of other errors. They argue that some of the judge's credibility determinations 36 A-4918-15T1 were so unjust, wide off the mark, and clearly mistaken that they should be overturned. They contend that the judge should have (1) disbelieved R.C. and believed Division witnesses on the issue of R.C.'s alleged threats, and (2) found Dr. Iofin to be credible. These arguments are directly at odds with long-settled appellate standards of review. Reviewing courts recognize that "a trial judge who observes witnesses and listens to their testimony, develops 'a feel of the case' and is in the best position to 'make first-hand credibility judgments about the witnesses who appear on the stand.'" Slutsky v. Slutsky, 451 N.J. Super. 332, 344 (App. Div. 2017) (quoting E.P., 196 N.J. at 104). "In contrast, review of the cold record on appeal 'can never adequately convey the actual happenings in a courtroom.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012)). The judge backed up his credibility determinations by reference to substantial evidence in the record. B. The Division also argues that the trial judge erred in (1) precluding the rebuttal testimony of R.C.'s putative adult daughter, and (2) determining that testimony by Mary at trial was not needed, given her prior discussions with the judge in chambers. The Law Guardian also argues that due process required the trial 37 A-4918-15T1 judge to (1) draw a negative inference from R.C.'s failure to participate in a psychological examination, and (2) consider R.C.'s criminal history. Appellate courts review "the trial court's evidentiary rulings for abuse of discretion." State v. Gorthy, 226 N.J. 516, 539 (2016). An evidentiary ruling will be reversed only if it "was so wide off the mark that a manifest denial of justice resulted." Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016). Although we agree the judge incorrectly analyzed the Division's knowledge of R.C.'s criminal record and ignored R.C.'s refusal to cooperate with a psychological evaluation, these errors did not affect his findings regarding the Division's failure to make reasonable efforts to unify the family. The Division and Law Guardian argue R.C.'s adult daughter should have been allowed to testify to rebut that R.C. "was a good parent." The judge acted within his discretion to deny the request to call R.C.'s daughter on rebuttal, as his ability to parent was not an unexpected issue raised by R.C. Rebuttal evidence is appropriate "when necessary because of new subjects introduced on direct or cross-examination" of witnesses. State v. Cook, 330 N.J. Super. 395, 418 (App. Div. 2000). The Division also contends that Mary should have been permitted to testify "mainly to describe the living conditions she 38 A-4918-15T1 endured during her time with [T.D.], her role in caring for [T.D.] and her statements during therapy." The Law Guardian argues that Mary was a party to the case at that time and should have been required to testify. Both parties essentially accepted during trial that the judge had already heard from Mary through interviews that would be made part of the trial record. "'Trial judges are given wide discretion in exercising control over their courtrooms' and have 'the ultimate responsibility of conducting adjudicative proceedings in a manner that complies with required formality in the taking of evidence and the rendering of findings.'" N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 366 (2017) (quoting Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002)). Moreover, "[t]he protection of children from undue trauma when testifying is an important public policy goal." State v. T.E., 342 N.J. Super. 14, 29 (App. Div. 2001) (quoting State v. Smith, 158 N.J. 376, 385 (1999)). We will not second-guess the judge's decision to shield Mary from further involvement in the litigation. The Law Guardian's argument that the judge evidenced "bias against women" is without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(1)(E). 39 A-4918-15T1 The trial judge's determination that the Division did not provide reasonable services to the parents is well-supported by credible evidence in the record. Without meeting this third prong, the Division was unable to prove its case. Affirmed. 40 A-4918-15T1
ESTATEOF RONALD DOERFLER and STEPHANIE E. DOERFLER
Date: May 1, 2018
Docket Number: a3352-15a335 FUENTES, P.J.A.D. On October 29 and 30, 2012, Super-Storm Sandy made landfall near Atlantic City, sixty miles south of the Borough of Mantoloking. The storm brought wind gusts as high as eighty miles per hour. The devastation caused to our shore communities by this fury of nature is well-documented.1 On February 19, 2014, plaintiff Stephanie Doerfler filed a complaint against Chubb Insurance Company of America (Chubb) alleging breach of contract and bad faith in connection with a homeowner's insurance policy. Chubb filed a responsive pleading that asserted a number of affirmative defenses, including that Doerfler's loss was not covered because of the surface water exclusion in the policy. On 1 See N.J. Dep't of Env't. Prot., Office of Science, Damage Assessment Report on the Effects of Hurricane Sandy on the State of N.J.'s Nat. Res. (May 2015). 2 A-3352-15T2 September 5, 2014, the court severed Doerfler's claims for breach of contract and bad faith.2 On October 17, 2014, Doerfler and the Estate of Ronald Doerfler (collectively the Estate) filed a complaint alleging similar claims against defendant Federal Insurance Company (Federal).3 In its responsive pleading, Federal also asserted as an affirmative defense the insurance policy's exclusion for loss caused by surface water. In an order dated March 16, 2015, the court severed the Estate's bad faith claim and suspended discovery related to it, pending the outcome of the breach of contract claim. Defendants are members of the Chubb Group of Insurance Companies. Plaintiffs purchased identical Chubb Masterpiece homeowners' insurance policies. Doerfler's policy insured her residential property located on Ocean Avenue in the Borough of Mantoloking, including the personal property kept therein. The policy was in effect from November 16, 2011, to November 16, 2012; the dwelling was insured for $904,000 and the contents kept therein 2 In that order, the court also denied without prejudice defendant's motion to dismiss Count II of plaintiff's complaint alleging bad faith, suspended discovery related to the claims raised in Count II "until adjudication or resolution of the breach of contract claim" and dismissed plaintiff's "claim for an award of counsel fees in Count I of the amended complaint[.]" 3 The Estate originally named Chubb as defendant. The Estate amended the complaint to substitute Federal once the error was discovered. 3 A-3352-15T2 for $361,600. The Estate's policy purchased by Ronald Doerfler, now deceased, also insured property located on Ocean Avenue in Mantoloking, and was in effect from October 1, 2012, to October 1, 2013. The policy insured the dwelling for $2.441 million and the contents of the house for $976,400. After joinder of issue on the breach of contract claim, the parties cross-moved for summary judgment. The matter came for oral argument before a different judge on February 5, 2016. The transcript of the oral argument session reflects an active and probing discussion between counsel and the motion judge. The discussion focused on the language of the exclusion provision in the policies: [W]e do not cover any loss caused by: flood, surface water, waves, tidal water, overflow of water from a body of water, . . . ; or spray from any of these even if driven by wind. The exclusions section defined the words "caused by" to "mean any loss that is contributed to, made worse by, or in any way results from that peril." The motion judge reserved decision at the conclusion of oral argument. In two orders entered on February 5, 2016, the same day of the oral argument session, the motion judge granted defendants' motions for summary judgment; in two other orders entered the same day, the judge denied plaintiffs' cross-motions for summary 4 A-3352-15T2 judgment. The judge did not issue "an opinion or memorandum decision, either written or oral," nor make any factual findings or state any conclusions of law as required by Rule 1:7-4(a). On March 14, 2016, the judge entered a Final Judgment Order "in favor" of defendants Chubb and Federal and "against" plaintiffs Doerfler and the Estate "on all issues and claims relating to the liability of the defendant[s] to the plaintiff[s] as alleged in Count I and II of plaintiff[s]' Amended Complaint[s] for the reasons set forth in defendant[s]' motion papers." (emphasis added). In light of this uncontested procedural history, we are compelled to reverse and remand this matter to the Law Division, not because we conclude there are material issues of facts in dispute which should be decided by a jury, or because we disagree with the motion judge's legal analysis or conclusions of law; we reach this decision because the motion judge failed to make any findings of facts or reach any conclusions of law, as mandated by Rule 1:7-4(a). Eighteen years ago, our colleague and former Acting Administrative Director of the Courts, Judge Ciancia, wrote: [N]either the parties nor we are well-served by an opinion devoid of analysis or citation to even a single case. Cross[-]motions for summary judgment do not preclude the existence of fact issues. See O'Keeffe v. Snyder, 83 N.J. 478, 487 (1980). The obligation to make specific findings on summary judgment motions in accordance with [Rule] 1:7-4 has been explicitly stated in [Rule] 4:46-2 since 1972. 5 A-3352-15T2 A trial judge is obliged to set forth factual findings and correlate them to legal conclusions. Those findings and conclusions must then be measured against the standards set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). [Great Atl. & Pac. Tea Co., Inc. v. Checchio, 335 N.J. Super. 495, 498 (2000).] Although our standard of review from the grant of a motion for summary judgment is de novo, Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2014), our function as an appellate court is to review the decision of the trial court, not to decide the motion tabula rasa. Rule 1:7-4(a) provides, in relevant part: The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right[.] [emphasis added.] These requirements are unambiguous and cannot be carried out by the motion judge by a nebulous allusion to "the reasons set forth in defendant[s]' motion papers." Reversed and remanded. We do not retain jurisdiction. 6 A-3352-15T2
WILLIAM J. BRENNAN v. STEVEN LONEGAN
Date: April 27, 2018
Docket Number: a1767-16
ROTHSTADT, J.A.D. In Pugliese v. State-Operated School District of City of Newark, 440 N.J. Super. 501 (App. Div. 2015), we vacated and 2 A-3689-15T1 remanded for reconsideration anew an arb
Date: April 27, 2018
Docket Number: a3689-15
STATE OF NEW JERSEY v. MICHAEL CLARITY
Date: April 26, 2018
Docket Number: a4831-16
NRGREMA LLC v. CREATIVE ENVIRONMENTAL SOLUTIONS CORP.
Date: April 25, 2018
Docket Number: a5432-15 OSTRER, J.A.D. These related appeals, consolidated for our opinion, raise a novel issue under the Construction Lien Law (CLL), N.J.S.A. 2A:44A-1 to -38, pertaining to the demolition, not the construction, of a structure. In particular, we must decide whether the value of salvage recovered by the demolition contractor enlarges the lien fund available to unpaid subcontractors who file lien claims. The contract at issue did not require the property owner to pay a fixed price to the prime contractor for the demolition. Instead, the contractor paid the owner for the right to demolish the building and to salvage materials. We conclude the ultimate market value of the salvage materials, transferred to the contractor in return for its demolition work, constitutes an element of the "contract price," N.J.S.A. 2A:44A-2, and enhances the size of the "lien fund" available to lien claimants, N.J.S.A. 2A:44A-9. However, the net value of the fund is 3 A-5432-15T3 reduced by the contractor's cash payment to the owner. We also hold that the CLL requires a signatory of a corporation's lien claim to demonstrate he or she is a corporate officer pursuant to the corporation's bylaws or board resolution. We therefore modify the trial court order that the lien fund here consisted of the value of the salvage ultimately retrieved from the demolition site; and reverse the order that an employee of one of the lien claimants informally designated a "financial director" had sufficient authority to file a lien claim on behalf of his employer. We also affirm the trial court's denial of attorney's fees to one of the lien claimants. I. The litigation arises out of the demolition of a power generating station in South Amboy known as the Werner Generating Station. NRG REMA, LLC (NRG) is the property owner. NRG sought bids from firms willing to undertake the demolition project. Some bidders wanted NRG to pay them from $400,000 to $6.6 million to demolish the generating station. Six others were willing to pay for the right to demolish the structure, offering $250,000 to $1.4 million. Those bidders counted on profiting from the resale of salvaged metals and equipment. But that upside was fraught with risk. It was 4 A-5432-15T3 difficult to estimate the amount of such material, and the ease of extracting it. NRG made no promises on that score. NRG selected Werner Deconstruction, LLC (Werner), which agreed to pay NRG $250,000 and to demolish the generating station, in return for the salvage. NRG claims it rejected more remunerative bids than Werner's because of its demonstrated capacity to finish the job on time. According to their contract, title to "Salvage Materials" – defined as "equipment, parts, components and materials . . . to be salvaged during demolition, excavation or other operations" – vested in Werner when it paid NRG, which it evidently did on May 10, 2012. 1 If NRG terminated the contract for cause, title to all Salvage Materials remaining on site would revert to NRG. NRG also retained a security interest in the Salvage Materials, which NRG could exercise if it terminated the contract while Werner was in bankruptcy. Werner posted a $2 million letter of credit, upon which NRG could draw if Werner defaulted. The prime contract imposed no payment obligation on NRG after it conveyed title to the Salvage Materials. The value of the Salvage Materials was a factor in the parties' respective rights and duties if NRG terminated the 1 The trial court found the transfer occurred on May 10, 2012. The wire transfer actually reflects multiple dates, including April 13, and May 10. 5 A-5432-15T3 contract for cause. Werner would be liable for NRG's costs of completion, minus revenue NRG reasonably obtained for the remaining Salvage Materials. Werner would also be entitled to a credit for its pre-termination costs, minus revenue it realized from the Salvage Materials. Four days after executing the prime contract, Werner subcontracted with BTU Solutions DE, LLC (BTU).2 Essentially, BTU stepped into Werner's shoes to perform the prime contract. BTU initially projected that costs of roughly $4.5 million would generate $13 million in salvage-related revenue. But, it did not turn out that way. BTU overestimated the amount of salvageable metal and equipment, and underestimated the cost of recovery. Some copper cable that BTU expected to find apparently already had been removed from the long-defunct station. Other cable was encased in asbestos and more costly than anticipated to salvage. Extraction of steel from the site was also more complicated than anticipated. Shortfalls in the revenue stream that BTU anticipated would fund its expenses, required BTU to borrow working capital, incurring additional costs. 2 The declaratory judgment complaint was filed on behalf of NRG and "BTU Solutions Group, LLC," although the BTU-Werner contract refers to "BTU Solutions DE, LLC." 6 A-5432-15T3 Then, Superstorm Sandy hit in October 2012. The site filled with salt water, destroying otherwise salvageable equipment, dispersing asbestos throughout the site, and further complicating remediation. Several months thereafter, BTU entered into its subcontract with Site Enterprises, Inc. (Site), which agreed to perform demolition work after the storm in return for $3.7 million. BTU struggled to pay its subcontractors, including Site. On December 26, 2013, Site filed a lien claim for $450,000, asserting it had not been paid, and ceased work.3 BTU did not begin selling significant quantities of Salvage Materials until 2014.4 In March 2014, BTU contracted for environmental consulting services from Creative Environmental Solutions Corp. (Creative). Before a year passed, Creative filed its lien claim on December 24, 2014 in the amount of $350,000. It was signed by Ross Sikarev. He was Creative's "financial director," a title he received at an informal dinner meeting with Creative's 3 The calculation of Site's lien claim is the subject of a separate lawsuit, presently awaiting decision in the trial court. The outcome of that lawsuit does not affect our analysis of the present appeals. 4 The sales were actually made by a subcontractor that BTU hired after Site ceased work; that subcontractor retained the revenue as its payment for work. However, for ease of reference, we will attribute the sales to BTU. 7 A-5432-15T3 president, Victoria Drozdov. No formal meeting of Creative's board, amendment to its by-laws, or corporate resolution confirmed Sikarev's authority to sign a lien claim on Creative's behalf. The NRG-Werner contract, and the Werner-BTU subcontract required Werner and BTU to ensure the project was lien-free. However, neither company paid Site's and Creative's lien claims. After Site's lien filing, but before Creative's, BTU removed over 8000 tons of ferrous metal, for which it received $2,093,014.5 After Creative's lien claim, BTU removed just 181 more tons of ferrous material. The record indicates that BTU received $29,418 in return. Meanwhile, in April 2014, Werner submitted a change order for $52,427 for removing oil from the project. NRG approved it over a year later. Eventually, Creative filed an action to foreclose on its lien against NRG's property (No. A-0567-16). Thereafter, NRG and BTU filed a declaratory judgment action (No. A-5432-15) against Creative, Site and others, to establish that the lien fund was limited to $52,427, the change order amount. The trial court consolidated the two actions. 5 We have rounded numbers to the nearest dollar. 8 A-5432-15T3 After motion practice, the trial court concluded that the lien fund was $2,093,014, rather than $52,427 as NRG contended. Furthermore, the judge rejected NRG's argument that Creative's lien was invalid because an authorized officer did not sign it. Consistent with those findings, the court granted Creative summary judgment in its action against NRG and BTU, entitling Creative to a lien of $350,604 plus interest, and entitling it to foreclose on NRG's property. The court denied NRG's cross- motions for summary judgment for a declaration that the lien fund was limited to $52,427. Although the court initially granted Creative's request for counsel fees under N.J.S.A. 2A:44A-15(a), the court vacated the order upon NRG's motion for reconsideration. NRG and BTU6 now jointly appeal the trial court's rulings concerning the value of the lien fund as to Site and Creative. They also appeal the trial court's ruling as to the propriety of Creative's signatory on its lien claim. Creative cross-appeals the denial of its motion for counsel fees. Site is solely a co-respondent and has not sought any affirmative relief on appeal. 6 For convenience, we will refer to the two appellants as NRG, in discussing their arguments on appeal. 9 A-5432-15T3 II. We exercise de novo review of the trial court's grant of summary judgment, and apply the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Issues of statutory construction are likewise subject to our plenary review. Cashin v. Bello, 223 N.J. 328, 335 (2015). We must interpret the CLL in a "nuanced way." See Craft v. Stevenson Lumber Yard, Inc., 179 N.J. 56, 67 (2004). It is "something of an overstatement" to simply say we must strictly construe the statute because it is in derogation of common law. Ibid.7 We must read the statute "sensibly," mindful of its underlying goals and policies. Id. at 68; see also Thomas Group, Inc. v. Wharton Senior Citizen Hous., Inc., 163 N.J. 507, 517 (2000). We are also guided by more general principles of statutory construction that require us to discern the Legislature's intent by focusing first on the plain language of the statute. If the meaning is plain, our job is done. In re Kollman, 210 N.J. 557, 568 (2012). However, if it is not, we may resort to extrinsic 7 Thus, the Craft Court reconciled the competing canons that suggest strict construction because the statute is in derogation of common law, but liberal construction because it is remedial. The latter task is further complicated by the statute's multiple and sometimes competing remedial goals, as we note below. 10 A-5432-15T3 legislative materials for guidance. Ibid. We may also consider such materials if the plain meaning would lead to an absurd result, State v. Harper, 229 N.J. 228, 237 (2017), or would violate "the overall statutory scheme . . . ." DiProspero v. Penn, 183 N.J. 477, 493 (2005). There are two, sometimes competing, goals of the CLL: to provide a source of security to those who provide construction services and materials, and to protect property owners who have met their obligations. The main purpose of the CLL — to help secure payment to contractors, subcontractors, and suppliers who provide work, services, material, or equipment pursuant to a written contract — is achieved by empowering them to file lien claims and thus protect the value of the work and materials they have provided. A secondary goal of the Act is to ensure the rights of property owners who have met their financial obligations and to preclude imposing upon them the burden of double payment for work and materials. [Craft, 179 N.J. at 68 (citations omitted).]8 See also Legge Indus. v. Joseph Kushner Hebrew Acad., 333 N.J. Super. 537, 555 (App. Div. 2000) (stating that "[t]he Lien Law attempts to protect both the owner and the supplier," and a 8 The CLL in particular was also designed to remedy the shortcomings in the prior Mechanics Lien Law. See Thomas Group, 163 N.J. at 512-14; see also Report and Legislative Recommendations of the Mechanics' Lien Law Study Commission (Sept. 1982) 5-11; 41 Robert S. Peckar, N.J. Practice, Construction Law, § 12.38 (1998). 11 A-5432-15T3 court must "balanc[e] the competing interests in the light of the [CLL's] apparent purposes"). The Court has recognized that the size, sophistication and "innocence" of parties varies. Craft, 179 N.J. at 78. "[T]he mere status of the parties as owners versus contractors and suppliers does not weigh on the equity scale." Ibid. When the owner and lien-holding contractor are equally innocent in the case of a prime contractor's default, and they offer "equally plausible interpretations of the Act," a court may apply a "tie- breaker" that favors the contractor. Id. at 80-81. However, if "one interpretation advances the principles undergirding the Act, and one does not, it is the better interpretation that must prevail, regardless of the outcome." Id. at 81. Turning to the statutory language, in order to provide payment security to contractors and subcontractors, the CLL generally grants them a right to a lien, attached to the owner's real property, "for the value of the work or services performed, or materials or equipment furnished in accordance with the contract and based upon the contract price . . . ." N.J.S.A. 2A:44A-3(a). Lien claims pertain to a "written contract for improvement" of real property. N.J.S.A. 2A:44A-8 (Construction Lien Claim form). "Improvement" to real property includes 12 A-5432-15T3 "demolition or removal of any building or structure . . . ." See N.J.S.A. 2A:44A-2.9 But, the amount of the lien is tied to the owner's contractual payment obligation. "An amount of a lien on an interest of a person . . . shall be limited to the amount that person agreed in writing to pay, less payments made . . . in good faith prior to the filing of the lien." N.J.S.A. 2A:44A- 3(f). The lien claim "shall not exceed the unpaid portion of the [claimant's] contract price . . . ." N.J.S.A. 2A:44A-9(a). A "[c]ontract" is a written agreement "evidencing the respective responsibilities of the contracting parties, including, but not limited to, price or other consideration to be paid, and a description of the benefit or improvement to the real property subject to a lien." N.J.S.A. 2A:44A-2. "Contract price" is the "amount specified in a contract for the provision of work, services, material or equipment." Ibid. To protect the owner against double-payments, the lien fund is limited, for first or second tier claimants, to "the earned amount of the contract between the owner and contractor minus any payments" made before the claimant serves the lien. N.J.S.A. 2A:44A-9(b)(1). For third tier claimants, the lien 9 NRG does not dispute that the demolition increased the value of its property, and constituted an improvement that was lienable. 13 A-5432-15T3 fund is limited to the lesser of the lien fund for first or second tier claimants, or "the earned amount of the contract between the contractor and the subcontractor to the contractor, minus any payments" made before the claimant serves the lien. N.J.S.A. 2A:44A-9(b)(2). The "'earned amount of the contract' is the contract price" if the party has completed performance; or "the value, as determined in accordance with the contract," of the partial performance provided. N.J.S.A. 2A:44A-9(e). "The contract price is the beginning point for a determination of the measure of a lien fund because it is within the four corners of that contract that the contractor, the subcontractors, and suppliers provide services or materials to enhance the value of the owner's property." Craft, 179 N.J. at 77. No lien fund exists if, when the lien is filed, the owner has "fully paid the contractor for the work performed or for the services, material or equipment provided." N.J.S.A. 2A:44A- 9(d). "[T]he CLL remedy strikes a balance between the interests of owners, subcontractors and suppliers by securing payment from the moneys owed by the owner to the contractor." Craft, 179 N.J. at 80 (emphasis in original). If the owner owes no money to the contractor "no lien fund exists." Ibid. 14 A-5432-15T3 On the other hand, the lien fund is not reduced by, among other things, "payments yet to be earned upon lodging for record of the lien claim . . . ." N.J.S.A. 2A:44A-9(c)(2). The CLL is not intended "to permit a property owner to defeat a supplier's lien claim by knowingly or negligently advancing payments to the contractor that are not due." Craft, 179 N.J. at 70; see AEG Holdings, LLC v. Tri-Gem's Builders, Inc., 347 N.J. Super. 511, 515 (App. Div. 2002) (stating "a property owner's maximum liability is not reduced by payments made to the contractor that were not earned and due before the subcontractor's lien was filed" (citing Legge, 333 N.J. Super. at 547)). III. A. To resolve this appeal, we must ascertain how the CLL treats the value of salvage recovered from a demolition project.10 The parties present plausible but competing interpretations. Site asks rhetorically, "What contractor would do a multi- million dollar demolition and asbestos abatement for no money?" 10 We leave for another day whether the principles we enunciate would apply equally to a renovation project, which we understand to involve partial destruction and improvement of an existing structure. See N.J.S.A. 2A:44A-2 (defining "[i]mprovement" to include "renovation"). We also do not address another form of "salvage" — the materials that a contractor may bring onto a site, but are unused or leftover in the process of construction. 15 A-5432-15T3 Site contends the gross revenue BTU realized from selling the Salvage Materials set the contract price in the prime contract. Site and Creative argue, since NRG transferred title to the Salvage Materials before significant work began, it constituted a prepayment that did not reduce the lien fund. NRG does not dispute that the right to the Salvage Materials was contractual consideration for Werner's agreement to demolish the generating station and pay NRG $250,000. However, NRG rejects the notion that the Salvage Materials' ultimate resale value set the "price" NRG paid. NRG contends that the NRG-Werner contract defines the lien fund. NRG contends non-monetary consideration is not payment. Until NRG agreed to the change order, it "agreed to pay" nothing. See N.J.S.A. 2A:44A-3(f). Also, according to NRG, the "contract price" and the "earned amount of the contract," which define the size of a lien claim, were zero. N.J.S.A. 2A:44A-9(a), -9(b). Supporting Site's and Creative's position, the CLL evidently recognizes non-monetary consideration in defining a "contract." A "contract" is an agreement evidencing the contracting parties' "respective responsibilities," including "price," which apparently refers to monetary amounts, "or other consideration to be paid," which may refer to non-monetary consideration like salvage. N.J.S.A. 2A:44A-2 (emphasis added). 16 A-5432-15T3 "Contract price" in turn means "the amount specified in a contract," ibid., which arguably incorporates such non-monetary consideration. "Contract price" then defines the size of the lien claim. The CLL grants a lien "for the value of the work or services performed, or materials or equipment furnished in accordance with the contract and based upon the contract price . . . ." N.J.S.A. 2A:44A-3(a) (emphasis added). Also, "[t]he amount of a lien claim shall not exceed the unpaid portion of the contract price of the claimant's contract for the work, services, material or equipment provided." N.J.S.A. 2A:44A-9(a) (emphasis added). Yet, in support of NRG's position, the CLL defines "lien fund" in monetary terms. It is "the pool of money from which one or more lien claims may be paid." N.J.S.A. 2A:44A-2 (emphasis added). The CLL requires contractors to file claims that "substantially" adhere to a prescribed form, which describes the contract price solely in terms of dollars. See N.J.S.A. 2A:44A-8 (Construction Lien Claim form, ¶4). Monetary payments are also implied by use of the word "amount" in the provision limiting the "amount of a lien" on an owner's property "to the amount [the owner] agreed in writing to pay, less payments made . . . ." N.J.S.A. 2A:44A-3(f). Likewise, the "lien fund shall not exceed . . . the earned amount of the 17 A-5432-15T3 contract between the owner and the contractor" in the case of first or second tier claimants. N.J.S.A. 2A:44A-9(b)(1). The import of Site's and Creative's contentions is that salvage constitutes a form of payment by the owner that enhances the lien fund.11 The NRG-Werner contract apparently presents an atypical (but possibly recurrent) case – in which the contractor deems the salvage so valuable that the contractor is willing to pay the owner for the right to undertake a demolition project. However, Site's and Creative's reasoning would presumably apply to any case in which salvage is transferred, even if it comprises a far less substantial portion of the total consideration.12 In such a case, the value of salvage would still enhance both the total contract price and the lien fund calculation. B. We resolve the facial ambiguity in the statute in the subcontractors' favor. To reach that result, we need not rely solely on the established "tie-breaker" principle favoring 11 Site avoids the issue whether the lien fund also includes the $52,427 change order, since the $2,093,014 amply covers its lien. 12 For example, the bidders who offered to undertake the demolition only if NRG paid them as much as $6.6 million may have also proposed to acquire title to the salvage. If so, the total price would have included both the cash payment and salvage value. 18 A-5432-15T3 contractors. See Craft, 179 N.J. at 80.13 Deeming the value of the Salvage Materials an element of the contract price is consonant with the CLL's dual goals. It vindicates the interest of contractors, subcontractors and suppliers in receiving payment for the value of their work. In the extreme case before us, salvage was the only form of payment (putting aside the modest change order). As Site aptly noted, Werner and BTU did not agree to perform the work for free. Including salvage value as part of the contract price and the lien fund also need not disserve an owner's interest in avoiding double-payment, so long as the owner takes appropriate measures to avoid premature transfer of salvage value. NRG could have transferred title to salvage as the contract progressed, or withheld transfer until the project's completion, or withheld transfer at least until salvage was actually recovered and ready for resale.14 NRG could have taken steps to protect subcontractors like Site, which claimed it performed 13 We assume the parties are equally "innocent." See Craft, 179 N.J. at 78-79 (stating that "[i]n the absence of a claim of improper dealing" both the owner and lien-filing subcontractor were "innocent" for purposes of the Court's analysis, despite competing contentions that the other could have taken steps "that might have avoided this situation"). 14 We acknowledge the possibility that a contractor would want to retain the salvage for later sale, or perhaps reuse it in its own projects. However, the market value of the salvage when recovered could be utilized. 19 A-5432-15T3 $450,000 of uncompensated work before BTU sold the lion's share of Salvage Materials. Instead, NRG prepaid the entirety of the consideration owed Werner at the outset of the contract's performance.15 We acknowledge the total amount and value of the salvage was uncertain at the time of contract, and remained uncertain throughout the project.16 It would have been difficult for NRG to calculate what amount of interim payments of salvage to transfer commensurate with partially completed work. Thus, deeming salvage value part of the contract price would inject a level of complexity and uncertainty that is at odds with one of the CLL's fundamental goals. See Thomas Group, 163 N.J. at 516 (stating that CLL was designed "to simplify the lien-filing process"); see also Study Commission at 3 (expressing the goal 15 Furthermore, NRG failed to enforce Werner's obligation to assure the project was lien-free, after Creative filed its lien, but before over $2 million in salvage was sold. Neither Site nor Creative contend they are third-party beneficiaries of Werner's promise. 16 We presume that the wide disparity in the bids NRG received reflected the difficulty in estimating the value of salvage in advance. Neither Site nor Creative contend the lien fund should be defined by a preliminary estimate of value. Notably, no estimate was incorporated in the NRG-Werner contract. As it turned out, the salvage value here was evidently far less than the cost of demolition. We recognize that different equitable considerations may apply if salvage value turns out to exceed expectations, and exceed the cost of construction or the increase in owner's property value. However, we confine ourselves to the facts before us. 20 A-5432-15T3 "to remove uncertainty, lack of clarity and ambiguity" in current law and to establish rights that "clearly limited to specified amounts"); N.J. Practice, Construction Law § 12.48 (stating "[t]he price must be calculable from the terms of the contract"). Yet, the NRG-Werner contract reflects that the parties considered it practicable to assign a value to the Salvage Materials. In case of termination for cause, Werner was entitled to its costs minus its salvage-related revenue, and NRG was entitled to its costs of completion, minus revenue NRG reasonably obtained for the salvage that remained. We are mindful of the adage that "one man's (or woman's) junk is another's treasure." Certainly, an owner and contractor may value salvage differently. However, based on the provision addressing termination for cause, it is evident that both parties here accepted actual market value of the salvage as a common measure. The primary equitable principle underlying the CLL is that a property owner should not enjoy the benefits of labor or materials without paying for them. See Craft, 179 N.J. at 68; Thomas Group, 163 N.J. at 517 (referring to "the law's overall intent to permit contractors to file liens and thus protect the value of the work they have provided"). Site contends that 21 A-5432-15T3 subcontractors are not privy to the terms of contracts between owners and contractors, and was "in the dark" about the salvage- for-demolition arrangement in this case. If subcontractors are unaware of an unusual payment arrangement like the one in the NRG-Werner contract, they are poorly positioned to protect themselves. Although the lien fund is defined as a "pool of money," the over $2 million received for the salvage created such a pool. See N.J.S.A. 2A:44A-2 (defining "lien fund"). Furthermore, the "maximum amount for which [NRG] c[ould] be liable" included that value. Ibid. Hypothetically, had NRG removed copper or equipment from the site after it transferred title to Werner, or had NRG encumbered the salvage and impaired Werner's title, NRG would have been liable for an amount equal to its value. Although the Court observed that the CLL "secur[es] payment [to contractors] from the moneys owed by the owner to the contractor," Craft, 179 N.J. at 80 (emphasis in original) (citation omitted), the Court simply described a situation involving the typical form of consideration. We reject NRG's contention that it owed nothing to Werner, simply because it owed it no money. Its contract clearly obliged it to transfer title to the Salvage Materials. The non- monetary "consideration to be paid" – the Salvage Materials – 22 A-5432-15T3 was the contract price. See N.J.S.A. 2A:44A-2 (defining "contract"). It was set forth "within the four corners" of the NRG-Werner contract. See Craft, 179 N.J. at 77. The only reason why NRG owed nothing when Site and Creative performed their work was that NRG pre-paid Werner. See Legge, 333 N.J. Super. at 549. The CLL's legislative history does not specifically address the issue of how to value salvage from demolition when it is part of the contract's consideration. However, we may infer an intent to consider salvage value as a form of consideration from the Legislature's rejection of statutory language that the Mechanic's Lien Law Study Commission recommended. The Commission proposed to limit the lien claim amount "to the contract price, or any portion therefore, for the work, services, material or equipment provided in accordance with the contract at the time of the filing of the lien, less the amount of salvage value of any recoverable material not incorporated in the improvement." Study Commission, Appendix A at 9 (emphasis added). We understand that the highlighted language may have been meant to refer to unused materials brought onto a project site, as opposed to materials removed in demolition. Nonetheless, by rejecting the proposed reduction, the Legislature deemed the value of that form of salvage a part of a 23 A-5432-15T3 contractor's consideration. See State v. Crawley, 90 N.J. 241, 245-46 (1982) (inferring legislative intent from rejection of provision proposed by Criminal Law Revision Commission). C. Although we conclude that Salvage Materials' value is an element of the contract price, we part company with the trial court's calculation that the lien fund for both Site and Creative was $2,093,014. We turn first to the contract price. By its $250,000 up- front payment, Werner effectively discounted the contract price — that is, the value of the Salvage Materials — by that $250,000 payment. Also, another $29,418 in metals were sold after BTU received the $2,093,014. Thus, the contract price was $1,872,432 ($2,093,014 + $29,418 - $250,000), before the change order. However, as NRG made those payments before they were earned — because NRG transferred title at the outset of the contract performance — they do not reduce the lien fund. See Craft, 179 N.J. at 70; AEG Holdings LLC, 347 N.J. Super. at 514- 15; Legge, 333 N.J. Super. at 549. Both Site and Creative were third tier lien claimants. A "third tier lien claimant" is "a subcontractor to a second tier lien claimant or a supplier to a second tier lien claimant." N.J.S.A. 2A:44A-2. A "second tier lien claimant" is a 24 A-5432-15T3 subcontractor or supplier to a contractor, who is in direct privity with the owner. Ibid. Calculating the applicable lien fund required ascertaining the lesser of two amounts as of the time the lien claim was served. N.J.S.A. 2A:44A-9(b)(2). The first amount is the amount earned under the contract between NRG and Werner (the first tier contractor). Although the total amount to be earned for completion of the contract included the $1,872,432 net value of Salvage Materials, the lien fund calculation required calculating the work completed and amount earned when the lien claim was served. As we have noted, the "earned amount of the contract" where performance was incomplete is "the value, as determined in accordance with the contract, of the work performed and services, material, or equipment provided." N.J.S.A. 2A:44A- 9(e). However, the parties did not agree on a schedule of progress payments. Also, NRG prepaid the contract price. Therefore, the amount earned, or value of the work, reasonably depends on calculating the percentage of completion, and applying that to the net value of Salvage Materials. Although 25 A-5432-15T3 this amount would generally be reduced by payments made before the lien claim were filed, NRG's prepayments are excluded.17 Applying the same principles, the court must calculate the second amount, which is the amount earned under the contract between Werner and BTU, minus any payments Werner made to BTU, excluding prepayments. The court must compare the two amounts, and use the lesser as the measure of the lien fund. The court must also calculate the lien fund for each claimant, if the "earned amount of the contract" increased during the period between Site's and Creative's filings. N.J.S.A. 2A:44A-9(f). In that case, the lien fund available for Creative should be "calculated from the date of the increase." Ibid. We note that NRG conceded that the lien fund should also include the $52,427 it agreed to pay in May 2015 for the removal 17 As the issue was not briefed before us, we leave it to the trial court to determine, in the first instance, the appropriate measure of "percentage of completion." We note one conceivably might rely on the percentage of costs incurred, as compared to the total costs for completion. Cf. Zulla Steel, Inc. v. A & M Gregos, Inc., 174 N.J. Super. 124, 134 (App. Div. 1980) (adopting "the percentage approach" to calculating damages incurred by contractor prevented from completing work); Goldman v. Shapiro, 16 N.J. Super. 324, 327 (App. Div. 1951) (stating, in case where contractor prevented from completing work, "the measure of the contractor's damages is generally, for the work actually performed, such a proportion of the entire price as the fair cost of that work bears to the fair cost of the whole work"). 26 A-5432-15T3 of oil, pursuant to a change order. Since the oil was removed after Site served its claim, the amount appears to be relevant only to calculating the lien fund available to Creative. The lien fund is "the earned amount of the contract . . . minus any payments made prior to service of a copy of the lien claim." N.J.S.A. 2A:44A-9(b) (emphasis added). We are constrained to remand for an appropriate calculation. In sum, the value of the Salvage Materials enhanced the value of the lien fund. Although it was non-monetary consideration, it was an essential component of the price NRG agreed to pay, and the amount Werner earned for demolition of the generating station. IV. NRG separately contends that Creative's lien claim was invalid because Sikarev was not properly authorized to sign it. We agree. Creative is a closely held New York corporation established in 1992. According to Victoria Drozdov, Creative's sole shareholder and president, Sikarev was appointed "Financial Director" about six months after he was hired. His appointment occurred at a dinner meeting with Victoria Drozdov and her husband Mark, a technical director and corporate vice- 27 A-5432-15T3 president.18 The appointment was not memorialized in any formal corporate writing. Mark Drozdov said he considered Sikarev an officer, equivalent to a chief financial officer. Sikarev used the "Financial Director" title and also said he deemed himself an officer. He was a "very important person" in the company, according to Victoria Drozdov. Claimants must file a lien claim "in substantially" the form the CLL prescribes. N.J.S.A. 2A:44A-8. "A lien shall not attach or be enforceable unless the lien claim . . . is . . . filed in the manner and form provided by this section and [N.J.S.A. 2A:44A-8] . . . ." N.J.S.A. 2A:44A-6(b)(1); see N.J.S.A. 2A:44A-6(a)(1) (mandating "[t]he lien claim form as provided by section 8 . . . shall be signed, acknowledged and verified by oath of the claimant . . . ."); see also N.J.S.A. 2A:44A-15(a) (stating that "[i]f . . . the lien claim is not lodged for record in substantially the form . . . in accordance with this act, the claimant shall forfeit all claimed lien rights . . . ."). 18 Mark and Victoria Drozdov said the meeting occurred in 2008. Sikarev made conflicting statements. He certified that he met the Drozdovs and became "Financial Director" in 2008, but testified in his deposition that he assumed the role in 2009. 28 A-5432-15T3 Section 8 prescribes a form that requires a signatory to appear before a notary. N.J.S.A. 2A:44A-8. The notary must be satisfied that the signatory is "the Secretary (or other officer/manager/agent) of the Corporation (partnership or limited liability company)." N.J.S.A. 2A:44A-8 (Suggested Notarial for Corporate or Limited Liability Claimant) (emphasis omitted). The signatory must swear or affirm before a notary that he or she possessed "authority to act on behalf of the Corporation (partnership or limited liability company) . . . ." Ibid. The signatory "by virtue of its Bylaws, or Resolution of its Board of Directors (or partnership or operating agreement)" must have "executed" the lien claim. Ibid.19 19 The prescribed notary's statement states in full: SUGGESTED NOTARIAL FOR CORPORATE OR LIMITED LIABILITY CLAIMANT: On this ___ day of _____ 20__, before me, the subscriber, personally appeared (person signing on behalf of claimant(s)) who, I am satisfied is the Secretary (or other officer/manager/agent) of the Corporation (partnership or limited liability company) named herein and who by me duly sworn/affirmed, asserted authority to act on behalf of the Corporation (partnership or limited liability company) and who, by virtue of its Bylaws, or Resolution of its Board of Directors (or partnership or operating agreement) executed the within instrument on its behalf, and thereupon acknowledged that claimant signed, sealed (continued) 29 A-5432-15T3 The CLL's procedural requirements were intended to be stringently applied. See N.J. Practice, Construction Law, § 12.38. The Mechanic's Lien Law Commission proposed adherence to one uniform form of lien. Study Commission at 23. Mindful of the "serious ramifications to the property owner" as well as the potential liability to a claimant who files an improper lien claim, the Commission proposed that only duly authorized officers, not mere agents, sign lien forms on behalf of corporations. Id. at 19-20. The original CLL required a signature by a "duly authorized officer" of a corporate lien claimant. L. 1993, c. 318, § 6. Applying the original version of the statute, the Supreme Court "recognize[d] that harm to a corporation or its shareholders or prejudice to interested parties" could result when an individual, who "is not an officer[,]" signs a lien form on behalf of a company. D.D.B. Interior Contr., Inc. v. Trends Urban Renewal Ass'n, Ltd., 176 N.J. 164, 170 (2003). Based on equitable considerations and the Legislature's failure to define "duly authorized officer," the Court declined to invalidate a lien claim filed by an attorney whom a corporation authorized in (continued) and delivered same as claimant's act and deed, for the purposes herein expressed. [N.J.S.A. 2A:44A-8 (emphasis omitted).] 30 A-5432-15T3 writing to file a lien claim on its behalf as an attorney-in- fact. Id. at 169-70. However, the Court held: in the future when a corporation intends to appoint an attorney to sign, acknowledge and verify a lien claim, that corporation must comply with its certificate of incorporation and bylaws to ensure that the attorney executing those duties is a corporate officer. Execution of a power of attorney will be deemed inadequate to vest an attorney-in-fact with the authority of a "duly authorized officer . . . ." [Id. at 170.] Removing any uncertainty as to what was required to "duly authorize" an officer, the Legislature dropped the "duly authorized officer" language from section 6, and instead required compliance with the section 8 form, which requires authorization through by-laws or board resolution. See L. 2010, c. 119, § 3, codified at N.J.S.A. 2A:44A-6; L. 2010, c. 119, § 5, codified at N.J.S.A. 2A:44A-8.20 Turning to Creative's lien claim, Sikarev described himself as an "officer/shareholder" of the corporation. The suggested notarial was modified to state that the notary was satisfied Sikarev was "an officer/shareholder" and "by virtue of 20 The 2010 amendments generally followed recommendations of the New Jersey Law Revision Commission. N.J. Law Revision Comm'n, Final Report Relating to Construction Lien Law (Dec. 31 2009). However, the Law Revision Commission's comments did not expressly address this change. Ibid. 31 A-5432-15T3 [Creative's] Bylaws or Resolution of its Board of Directors . . . executed" the lien claim.21 However, Creative never amended its bylaws to designate Sikarev as an officer, nor did its Board adopt a resolution approving Sikarev's appointment. The record contains no other writing establishing his position. We recognize that N.J.S.A. 2A:44A-8 requires that a lien claim "be filed in substantially the . . . form" prescribed, and the reference to bylaws or a board resolution is found in what the section describes as a "suggested notarial." (Emphasis added). Yet, Creative's lien claim did not substantially conform to the prescribed form. Creative made no effort at all to adopt a bylaw, or a board resolution, appointing Sikarev to be a corporate officer; nor does the record reflect that Sikarev presented any other evidence of his appointment to the notary. We do not interpret the reference to a "suggested" notarial statement to mean the notarial statement is optional. Section 6 requires that the "lien claim form as provided by section [2A:44A-8] shall be signed, acknowledged and verified by oath of the claimant setting forth . . . the claimant's identity 21 Since a virgule generally means "or," see Danco, Inc. v. Commerce Bank/Shore, N.A., 290 N.J. Super. 211, 217 (App. Div. 1996), Sikarev asserted he was an officer or a shareholder. However, Creative does not contend Sikarev was authorized to sign the form based on the status as a shareholder. The record evidence demonstrated that he certainly was not the latter; Victoria Drozdov was the sole shareholder. 32 A-5432-15T3 . . . ." N.J.S.A. 2A:44A-6(a)(1)(b). The word "suggested" evidently refers to the precise wording of the form. The notary's statement is designed to verify the signatory's identity and authority, as section 6 requires. Therefore, a corporate signatory must present to the notary evidence of his authority as an officer by virtue of bylaws or board resolution. That was not done here. As Creative did not memorialize Sikarev's appointment in its corporate bylaws or a board resolution, we need not address whether New York law permitted Creative to appoint an officer as "Financial Director" in the first place. We note that Creative relies on the authority of its "board [to] elect or appoint a president, one or more vice-presidents, a secretary and a treasurer, and such other officers as it may determine, or as may be provided in the bylaws." N.Y. Bus. Corp. Law § 715(a) (Consol. 2018) (emphasis added); but see Syracuse Television, Inc. v. Channel 9, Syracuse, Inc., 273 N.Y.S.2d 16, 28 (Sup. Ct. 1966) (holding that corporation's business manager was not an officer); American Express Co. v. Lopez, 340 N.Y.S.2d 82, 83 (Civ. Ct. 1973) (holding that chairman of the board of directors had authority to bind corporation, although "[a] chairman is not one of the usual officers designated in section 715 of the Business Corporation Law of New York" because the statute 33 A-5432-15T3 elsewhere "recognize[d] the existence of such an office and accept[ed] it for certain purposes as an alternative to the presidency" (citing N.Y. Bus. Corp. Law §§ 104, 508 (Consol. 2018))). Nor need we assess Creative's contention that New York corporation law recognizes the informal actions of closely held corporations. The issue is not whether, under New York law, Sikarev could bind his corporation based on an informal appointment over dinner.22 We must ask whether he was appointed with sufficient formality to qualify as a signatory of a lien claim under New Jersey law; and whether he presented evidence of that appointment to the notary. The answer to both questions is no. In sum, we reverse the court's order finding Creative's lien was properly filed, and declare it invalid under N.J.S.A. 2A:44A-6 and -15. Particularly in light of that conclusion, Creative's cross-appeal from the court's order denying it 22 We note that Leslie, Semple & Garrison, Inc. v. Gavit & Co., 439 N.Y.S.2d 707, 709 (App. Div. 1981), upon which Creative relies, held that a closely held corporation could not use its non-compliance with a corporate formality to avoid a contract it entered, as its avoidance would work an injustice on the other party. The court observed that the law did not intend "this shield for minority shareholders be converted to a sword to be wielded for the benefit of sole stockholders against third parties." Ibid. The case does not approve the informal actions of a corporation over the objection of third parties. 34 A-5432-15T3 attorney's fees warrants no discussion. R. 2:11-3(e)(1)(E). The court's order in that respect is affirmed. Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. 35 A-5432-15T3
JANELL GOFFE v. FOULKE MANAGEMENT CORP.
Date: April 24, 2018
Docket Number: a2658-16 FISHER, P.J.A.D. The plaintiffs in these two actions claim they were victimized by the wrongful conduct1 of defendant car dealers. Their sales contracts incorporated arbitration provisions which were enforced by motion in both cases. Because the record establishes the sales contracts, even if fully and mutually formed, were rescinded, and because plaintiffs' claims seem to mostly if not entirely relate to defendants' performance of the parties' agreements to rescind, which did not contain 1 Plaintiffs in both actions allege that defendants engaged in common-law fraud and also violated the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, the New Jersey Truth-in- Consumer Contract Warranty and Notice Act, N.J.S.A. 56:12-14 to -18, the New Jersey Plain Language Act, N.J.S.A. 56:12-1 to -13, and the federal Truth-in-Lending Act, 15 U.S.C. §§ 1601 to 1667f. 2 A-2658-16T4 arbitration provisions, we reverse the orders dismissing these actions and remand. I Soon after the filing of these two actions – Robinson v. Mall Chevrolet and Goffe v. Foulke Management Corporation – defendants moved to dismiss based on their contention that plaintiffs were contractually required to arbitrate the pleaded claims. The factual circumstances that we consider in reviewing the orders granting those motions appear in the complaints and the certifications filed in opposition to those motions. 2 Although the two cases present numerous similarities, we briefly discuss separately what occurred in each. A In opposing the motion to dismiss in her case, Sasha Robinson recounted her dealings with Mall Chevrolet. She asserted that on Saturday, November 5, 2016, she telephoned Mall Chevrolet to inquire about a vehicle; she was then told that if she made a purchase she would have two days to return the vehicle if she changed her mind. Robinson visited the showroom 2 In her suit and in her merits brief here, Goffe refers to prior difficulties Foulke may have had with the Attorney General. Not to be outdone, defendants allege plaintiff's representatives have engaged in unethical conduct. We will not participate in or mention further these ad hominem attacks. 3 A-2658-16T4 later that day and decided to purchase a 2016 Malibu. In consideration, Robinson agreed to pay $25,620 at the rate of $546 per month; as further consideration, she conveyed to Mall Chevrolet a vehicle she allegedly jointly owned with her mother, Tijuana Johnson. Robinson was also told that Johnson would be required to co-sign in order to complete the transaction. At the same time, Robinson signed several documents for the purchase of the Malibu. One was a Motor Vehicle Retail Order Agreement (MVRO), which set forth the purchase price and information about the trade-in3; the MVRO identified both Robinson and Johnson as the purchasers and declared that the contract "shall not become binding until accepted by dealer or his authorized representative." According to Robinson, the dealer's representative had not signed the contract documents by the time she left the showroom with the new vehicle. The MVRO also contained Robinson's "acknowledge[ment]" that she RECEIVED, READ, UNDERST[OO]D AND . . . SIGNED THE ARBITRATION AGREEMENT WHICH APPLIES TO THIS TRANSACTION. Robinson signed the MVRO directly below this language. 3 According to these documents, the traded-in vehicle was valued at $5500 and Robinson was still obligated to pay $8605.59 on that vehicle; the net negative value of that vehicle was factored into the purchase price. 4 A-2658-16T4 The arbitration provision directed in bold print that Robinson READ THIS ARBITRATION AGREEMENT CAREFULLY. IT LIMITS CERTAIN OF YOUR RIGHTS, INCLUDING YOUR RIGHT TO MAINTAIN A COURT ACTION. The arbitration provision declared that both parties "have an absolute right to demand that any dispute be submitted to an arbitrator in accordance with this agreement" and that "[i]f either . . . file[d] a lawsuit, counterclaim, or other action in a court, the other party has the absolute right to demand arbitration following the filing of such action." The document also expressed that both parties are giving up the right to continue a lawsuit, counterclaim, or other action in court, including the right to a jury trial, in the event the other party exercises the right to demand arbitration pursuant to this agreement. In addition, the document included a waiver of the right to trial by jury: "You and we expressly waive all right to pursue any legal action to seek damages or any other remedies in a court of law, including the right to a jury trial." These provisions purported to encompass "all claims and disputes" between the parties and listed the covered disputes as including: any claims or disputes relating to the "purchase of any goods or services" from the seller; any "negotiations" between the parties; any claims relating to "this transaction"; 5 A-2658-16T4 all claims based on state and federal statutes, including CFA claims; "any claim or dispute based on an allegation of fraud or misrepresentation, including fraud in the inducement of this or any other agreement"; and any breach of contract claim. It asserted that claims "arising out of, in connection with, or relating to . . . whether the claim or dispute must be arbitrated," and claims regarding "the validity of this arbitration agreement," are to be submitted to arbitration. Robinson signed but, according to her opposing certification, she was not given a copy of these documents. She paid a $1000 security deposit by debit card, turned over the traded-in vehicle, and left with the new Malibu. She was advised to return with her mother so she too could sign the sales contract; that never occurred. Instead, on the following Monday, Robinson returned with Johnson and advised she was returning the Malibu because the cost was too exorbitant. Mall Chevrolet's representatives told Robinson she could not return the Malibu, that the representation about being able to rescind the deal within two days was a mistake, and that Robinson was bound by the documents she signed. Robinson claims Mall Chevrolet's representatives then attempted various coercive tactics to close the deal, 6 A-2658-16T4 including retaining the $1000 security deposit and the traded-in vehicle; they also offered to lower the monthly charges. Mall Chevrolet eventually agreed to return the trade-in but initially refused to return the deposit, relenting only after Robinson and Johnson filed this lawsuit. B Like Robinson, Goffe also opposed a defense motion to compel arbitration by recounting the events that inspired her lawsuit. On October 7, 2016, she arrived at Cherry Hill Mitsubishi in response to an internet advertisement for a 2013 Buick Verano, listed for $15,800. She discussed the matter with a sales representative, defendant Antonio Salisbury, who advised that financing – calling for $390 monthly payments and a $1000 down payment – was approved. Goffe was instructed to make a $250 payment that day, with the remainder due fourteen days later. The transaction also required a trade in of Goffe's vehicle. Goffe signed several documents, including an MVRO and arbitration provision.4 The documents are identical to those signed by Robinson that we quoted above. Goffe signed the documents in the same places as Robinson, thereby signaling that 4 Cherry Hill Mitsubishi claims Goffe also signed a "Spot Delivery Agreement" which explained the transaction was contingent upon obtaining financing approval; Goffe disputes she signed such a document. 7 A-2658-16T4 she read and understood the documents and, also, that she actually received copies. Like Robinson, Goffe's opposing certification asserts that she was not given copies of any documents she signed. Goffe paid $250, canceled the insurance on her trade-in, and purchased insurance for the Buick. The dealership provided a temporary registration and Goffe drove the Buick off the lot. Goffe returned to the dealership two weeks later with the remainder of the down payment. Salisbury then informed her that financing had not been approved and she could only retain the Buick if she agreed to make a $3000 down payment and commit to monthly payments of $400 instead of $390. Goffe refused and canceled the deal; the dealership returned the traded-in vehicle but did not immediately return Goffe's initial $250 down payment. She was only reimbursed after commencing this suit. II In similar oral decisions citing little more than "the policy in favor of arbitration," both motion judges determined the claims were arbitrable. They both entered orders of dismissal.5 5 Contrary to N.J.S.A. 2A:24-4, neither judge stayed the actions pending arbitration but instead simply dismissed them. We assume there was some sort of stat-driven basis for entering orders of (continued) 8 A-2658-16T4 Plaintiffs appeal and pose for our consideration essentially the same arguments: the sales contracts were contingent on events that never occurred and, therefore, should no longer bind the parties; the sales contracts and their incorporated arbitration provisions are unconscionable and unenforceable because the process of extracting those agreements was barred by N.J.S.A. 56:8-2.22, which requires that copies of contracts be provided to consumers at the time of execution; and the orders should be reversed because of critical fact issues that should have been resolved in the manner suggested by Guidotti v. Legal Helpers Debt Resolution, LLC, 716 F.3d 764, 774-75 (3d Cir. 2013), which authorizes limited discovery and evidentiary hearings to resolve disputes about arbitrability in appropriate cases. Mall Chevrolet cross-appeals in the Robinson matter, arguing that the judge erred in not dismissing Johnson's claims on standing grounds. We permitted NAACP Camden County East's filing of amicus briefs and its participation at oral argument in both matters. (continued) dismissal rather than orders staying the actions. In any event, the labels appended to those orders do not impact the manner in which they should be reviewed. 9 A-2658-16T4 Amicus's arguments chiefly address the effect of N.J.S.A. 56:8- 2.22 in such matters. III We first consider certain general federal principles that lurk over our consideration of the issues raised in plaintiffs' appeals. A The Federal Arbitration Act (FAA) creates a "body of federal substantive law" that – due to federal supremacy concepts – is "applicable in state and federal courts." Southland Corp. v. Keating, 465 U.S. 1, 12 (1984). The FAA was enacted as a "response to widespread judicial hostility to arbitration agreements," AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011), and represents "a congressional declaration of a liberal federal policy favoring arbitration agreements," Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983).6 This federal substantive law recognizes the "fundamental principle that arbitration is a matter of contract," Rent-A- Center, W., Inc. v. Jackson, 561 U.S. 63, 67 (2010), a concept 6 The "nearly identical" New Jersey Arbitration Act has also been recognized as favoring parties' arbitration agreements. Atalese v. U.S. Legal Servs. Grp., LP, 219 N.J. 430, 440 (2014). 10 A-2658-16T4 that logically leads to another: courts will not compel arbitration of disputes when parties "have not agreed to do so," Volt Info. Scis. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 478 (1989); Atalese, 219 N.J. at 442. Consequently, the FAA expressly authorizes courts to disregard arbitration provisions "upon such grounds as exist at law or in equity for the revocation of any contract," 9 U.S.C. § 2, and courts are to compel arbitration only when "satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue," 9 U.S.C. § 4. The policy that favors arbitration does not, however, exist in a vacuum. A party's claim that arbitration of a dispute is required is – we again emphasize – a matter influenced by contract law. Rent-A-Center, 561 U.S. at 67. Parties must have agreed to arbitrate before a judge may compel them to arbitrate. Whether parties had a meeting of the minds on that subject, and whether a party, who has ostensibly agreed to waive the right to trial by jury, has clearly and unambiguously consented to arbitration will be influenced by state contract principles. Atalese, 219 N.J. at 442, 444. So, courts do not offend the federal policy favoring arbitration when applying state contract principles to determine whether interactions at the formative stage ripened into an enforceable contract or, if so, whether 11 A-2658-16T4 the parties later agreed to rescind their contract and, with it, its incorporated arbitration provision. These circumstances are implicated here. B In considering the orders under review against the backdrop of these principles and in light of the documents these parties are claimed to have executed, we find no infirmity in the content of the arbitration provision or the manner in which that content was conveyed to these consumers. In bold and conspicuous print, the provisions emphasize that, by fixing their signatures on defendants' documents, plaintiffs – and defendants too – agreed to arbitrate all related claims and waived their rights to trial by jury regardless of the legal basis for the claim. We see nothing in the arbitration provisions in question that would run afoul of our decisional law's insistence upon a clear and conspicuous expression of that intent. See, e.g., Morgan v. Sanford Brown Inst., 225 N.J. 289, 307-09 (2016); NAACP of Camden Cty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 428 (App. Div. 2011); 12 A-2658-16T4 Rockel v. Cherry Hill Dodge, 368 N.J. Super. 577, 579-81 (App. Div. 2004).7 Standing alone and without consideration for the surrounding events, we recognize that the particular arbitration provisions included within the parties' sales contracts are capable of being enforced. IV The issues raised, however, cannot be decided solely by reference to the arbitration provisions, nor by reference to the "policy in favor of arbitration," upon which both trial judges relied with little additional analysis.8 The circumstances 7 Because our jurisprudence insists upon clarity in such circumstances, sellers have learned to disclose their attempt to obtain the consumer's agreement to arbitration without the deceptive approaches of the past. See, e.g., Tom Waits, Step Right Up (Asylum Records 1976) ("You got it buddy; the large print giveth, and the small print taketh away"). They undoubtedly are willing to more conspicuously extract such waivers from consumers because they have the backing of the Supreme Court of the United States which has exalted the FAA to a point that it tramples all highly valued state interests. See Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530, 533 (2012) (holding that state law prohibiting arbitration provisions in nursing home contracts had no bearing on the enforcement of the FAA's policy in favor of arbitration). 8 Other public policies were certainly implicated by these contract documents. Plaintiffs' complaints assert consumer fraud violations, and the eradication of consumer fraud ranks high in the public interest. Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255, 264 (1997). Indeed, that public interest is not a mere state interest, as consumer rights have also been (continued) 13 A-2658-16T4 surrounding the execution of the documents in question raise legitimate questions about the enforceability of defendants' otherwise acceptable arbitration provisions, namely: (a) whether, in Robinson, an enforceable sales contract was ever formed; (b) whether, in both cases, defendants complied with N.J.S.A. 56:8-2.22, and (c) whether – with the agreements to rescind reached by the parties in both cases – the arbitration provisions contained in the sales contracts were also rescinded. In approaching these issues, we first observe that the trial judges in both cases ruled, with little additional analysis, that the arbitration provisions were enforceable because public policy favors arbitration. Because defendants sought summary dispositions of these questions, as well as the dismissal of the complaints, the judges were obligated to assume the truth of plaintiffs' allegations. Indep. Dairy Workers Union (continued) championed by congressional enactments, such as the federal Truth-in-Lending Act, 15 U.S.C. §§ 1601 to 1667f, upon which plaintiffs rely here. Arbitration agreements and orders that compel arbitration also eviscerate the cherished right to trial by jury – a right so revered that its deprivation was cited by the Declaration of Independence for our break from Great Britain. The federal arbitration jurisprudence that has been developed by the Supreme Court of the United States has exalted the FAA's policy in favor of arbitration over these many other important rights and substantial public interests. While we may disagree with the high Court's promotion of the importance of arbitration, we may not disregard the Court's precedents and we resolve the issues presented by fully applying the FAA's binding principles. 14 A-2658-16T4 v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956); Seidenberg v. Summit Bank, 348 N.J. Super. 243, 249-50 (App. Div. 2002). And because we agree with the Guidotti approach as a proper methodology for resolving similar arbitrability questions – for reasons we discuss later, see Section V(B) below – we conclude that the judge erred in dismissing these complaints for the purpose of resolving the pleaded disputes in arbitration. A We find in the Robinson record a genuine dispute as to whether the parties entered into an enforceable contract. Mall Chevrolet has consistently phrased both in the trial court and here – as if to concede their discussions with Robinson and the executed documents never ripened into a binding contract – that Robinson's disputes arise from her "attempt[] to purchase a vehicle" (emphasis added). In addition, although disputed, Robinson asserted that Mall Chevrolet required Johnson's participation as a co-signor – and it is undisputed that Johnson never signed. To be sure, Robinson gave Mall Chevrolet a cash deposit and her vehicle – which Robinson claims she jointly owned with her mother – and drove off with the Malibu, but the contract documents acknowledged that the act of taking possession of the new vehicle was "subject to" a number of terms, including approval of the financing aspects of the 15 A-2658-16T4 contract. If financing was not approved, the documents memorialized that Robinson retained the right to continue to possess the vehicle only if she paid the purchase price or obtained her own financing; absent that, Robinson was required to "surrender the vehicle." In short, even if Johnson's involvement in the transaction was not necessary or material – as defendant contends but Robinson disputes – Robinson retained the right to rescind the contract if financing was not approved. Because there were factual disputes about the need for Johnson's signature and because the contract appears to have made enforceability of the sales contract conditioned upon financing approval or some other agreement about payment that never occurred, arbitration could not be compelled absent factual findings that would favor Mall Chevrolet on those questions. So, unless we're going to let the tail wag the dog, if the parties never reached an enforceable sales contract, they could not be said to have agreed to arbitrate any disputes arising from that incomplete contractual relationship. At the very least, the Robinson judge was required to conduct an evidentiary hearing to resolve these obstacles to arbitration. 16 A-2658-16T4 B While the Robinson case has the added attraction noted above, both cases present another factual obstacle to arbitration. Plaintiffs, as well as amicus, emphasize the potential impact of N.J.S.A. 56:8-2.22 on the arbitrability of plaintiffs' claims. That CFA provision makes it "an unlawful practice" for a party to a sales contract to request a consumer's signature on a document "as evidence or acknowledgement of the sales transaction" "unless" that party "shall at the same time provide the consumer with a full and accurate copy of the document so presented for signature." Ibid. Both Robinson and Goffe asserted in opposition to defendants' motions to compel arbitration that – despite what the contract documents actually state or purport to acknowledge – they were not given copies of the documents they signed. As a consequence, they argue the provisions of those sales contracts – including the arbitration provisions – are unconscionable and should not be enforced. Although the effect of a violation of N.J.S.A. 56:8-2.22 has not been considered in any reported decision,9 we cannot 9 One unpublished opinion found it unnecessary to consider whether such a violation would render it unfair or inequitable to compel arbitration pursuant to the contract that had not been (continued) 17 A-2658-16T4 imagine the Legislature imposed such a requirement without likewise anticipating a remedy for its violation. We conclude such a violation should be treated no differently than we have treated failures to provide written estimates as required by regulation. Although in Scibek v. Longette, 339 N.J. Super. 72, 82 (App. Div. 2001), we did not express a hard-and-fast rule that would address the failure of a seller to provide a written estimate as legally required10 – a circumstance similar to that in question here – we did recognize that "the prophylactic value of the [CFA] to deter future violations would be diminished were we to discard" the brightline applied by the trial court in Huffmaster v. Robinson, 221 N.J. Super. 315, 322 (Law Div. 1986), which barred a seller's recovery for a violation of such a regulation. We also reject the argument that this dispute itself is a matter for resolution by an arbitrator. To have an enforceable contract with an included enforceable arbitration provision, a seller – like defendants here – must provide to a consumer the (continued) provided. In light of Rule 1:36-3, we do not cite that unpublished decision. 10 That limitation was based on a concern that this requirement could also be wielded as a sword and not just a shield, i.e., that a consumer might accept goods or services only to avoid payment through reliance on this requirement. Id. at 82. That circumstance, however, is not presented here. 18 A-2658-16T4 contract documents they signed. Whether that did or didn't occur here is a question of disputed fact; those disputes in both cases must be resolved by the trial judges before arbitration may be enforced. Any other approach risks a possibility that a CFA violator might receive the benefit of the very contract extracted in violation of the CFA. C Both cases also question whether an arbitration provision may survive and govern disputes arising from the parties' dealings after they mutually agreed to rescind the very sales contract that contained an arbitration provision. Because the parties' dealings, which are similar in this regard, both culminated in agreements to rescind their sales contracts, we must consider whether disputes arising from their agreements to rescind must nevertheless be arbitrated. As a general matter, we conclude that arbitration of those later disputes cannot be compelled. By agreeing to return to square one – in legal terms, the status quo ante – defendants implicitly agreed to rescind all plaintiffs' obligations just as plaintiffs agreed to a rescission of all defendants' promises. As observed in one of the leading treatises, "[a]bsent evidence to the contrary, the legal effect of rescission is the discharge of all rights and duties on the part of both parties with 19 A-2658-16T4 respect to the contract that has been rescinded." Corbin on Contracts (2003), Vol. 13, § 67.8 at 49 (emphasis added); see also Williston on Contracts (4th ed. 2003), Vol. 29, § 73.15 at 49. Our Connecticut colleagues have held that when parties mutually agree to rescind a contract that contains an obligation to arbitrate they cannot be compelled to arbitrate questions arising from the agreement to rescind. Smith & Smith Bldg. Corp. v. DeLuca, 654 A.2d 368, 370 (Conn. App. 1995). We agree. By mutually agreeing to rescind the sales contracts, the parties likewise agreed to rescind the arbitration provision absent some manifest intention to retain that particular aspect of the rescinded agreement. See Gillette v. Cashion, 21 N.J. Super. 511, 516 (App. Div. 1952) (recognizing that once rescinded, a contract may be renewed only by express agreement or by conduct "evidencing such an intention"). Because defendants have offered no evidence to suggest that the agreement to arbitrate survived their mutual abandonment of the sales contracts, there can be no doubt that the arbitration provisions were discarded in the process just as the promise to pay for the vehicle or the promise to allow the plaintiffs to retain the vehicles upon a commitment to pay the purchase price were also discarded. The parties' factual contentions can only be interpreted as if the parties actually tore up their sales contracts and rescinded 20 A-2658-16T4 them in their entirety. As our Supreme Court recognized in County of Morris v. Fauver, 153 N.J. 80, 97 (1998), an agreement to rescind consumes the entire contract; in quoting Merickel v. Erickson Stores Corp., 95 N.W.2d 303, 306 (Minn. 1959), the Court held that such a rescission means that "what has been done is wholly undone and no contract provisions remain in force to bind either of the parties." V Having established how the scope of the sales contracts' arbitration provisions should be viewed in these circumstances, and having recognized the existence of certain relevant disputed questions of fact regarding the formation of the sales contracts, we turn to consider how those claims should be resolved, i.e., by arbitrators or by the trial courts. This first requires consideration of defendants' argument that the question of arbitrability should be decided in arbitration. A We are mindful that contractual questions may arise when a court is asked to consider whether parties agreed to allow an arbitrator to determine whether they agreed to arbitrate. See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942-43 (1995) (recognizing that just as "the arbitrability of the 21 A-2658-16T4 merits of a dispute depends upon whether the parties agreed to arbitrate that dispute," the question "who has the primary power to decide arbitrability turns upon what the parties agreed about that matter"). When analyzing whether the parties agreed to arbitrate the question of arbitrability, courts "should apply ordinary state-law principles that govern the formation of contracts" but courts also "should not assume that the parties agreed to arbitrate arbitrability unless there is 'clea[r] and unmistakabl[e]' evidence that they did so." Id. at 944 (quoting AT&T Techs. v. Commcn's Workers of Am., 475 U.S. 643, 649 (1986)). The question here, however, is broader. We have identified factual questions that must be decided before determining whether the parties entered into enforceable contracts that contained arbitration provisions. Only a finding that an enforceable sales contract was finally formed would give rise to the question whether they agreed to arbitrate the arbitrability of the particular disputes arising from that contract. It would defy logic to conclude only an arbitrator may determine whether contracts with arbitration provisions were ever formed or only an arbitrator may determine whether – when there was no dispute that the contracts containing the arbitration provisions were rescinded – claims relating to the agreements to rescind must be 22 A-2658-16T4 arbitrated. And we see nothing in the precedents that bind us to suggest otherwise. Rent-A-Center enforced as written a particular contractual provision that clearly delegated the authority to determine arbitrability to an arbitrator; that determination, however, rendered arbitrable questions about the "validity" of the contract. 561 U.S. at 72. That decision does not hold that questions about whether a contract was even formed must also be arbitrated; the Court recognized that there was no dispute in the matter before it "whether any agreement between the parties 'was ever concluded.'" Id. at 70 n.2. On the other hand, our Supreme Court recognized in Morgan that "whether the parties formed a contract – that is, whether the parties concluded an agreement" – was not an issue to be arbitrated despite the presence of a delegation clause. 225 N.J. at 306. We conclude that the factual disputes that must be resolved before it might be said that the parties "formed" or "concluded" the contract containing the so-called delegation provisions – such as the circumstances relating to the impact of Johnson's unwillingness to sign off on Robinson's contract with Mall Chevrolet and the failure of both dealers to provide Goffe and Robinson with copies of the signed documents – are not arbitrable. To hold otherwise, would give defendants full benefit of an aspect of a 23 A-2658-16T4 contract without first showing that the contract was ever fully "formed" or "concluded." Only if those factual disputes about formation are resolved by the trial courts in defendants' favor may those courts then consider whether any of those claims relating to the contracts of sale – as opposed to the agreements to rescind – are arbitrable. B Having found the existence of roadblocks to arbitration that can only be resolved by the trial court, we turn to the question of how the trial courts should now proceed. With these factual disputes that must be determined before ascertaining whether there are any arbitrable issues, the judges must permit limited discovery and, if necessary, evidentiary hearings. In Guidotti, 716 F.3d at 767, the plaintiff opposed a motion to compel arbitration, claiming that the full contract, with its incorporated arbitration clause, was not provided to her until after she signed the documents.11 The court held that a "restricted inquiry into factual issues" was necessary to "properly evaluate whether there was a meeting of the minds on the agreement to arbitrate." Id. at 774 (quoting Moses H. Cone Mem'l Hosp., 460 U.S. at 22). In other words, the court 11 That particular issue is also raised here. See Section IV(B), above. 24 A-2658-16T4 recognized that a motion to dismiss is inappropriate if the party invoking the arbitration provision fails to establish "on its face that the parties agreed to arbitrate," or if the opposing party has come forth with reliable evidence calling mutual assent into question that is more than a "'naked assertion . . . that it did not intend to be bound' by the arbitration agreement, even though on the face of the pleadings it appears that it did." Id. at 774 (citation omitted). The second scenario comes into play "when the complaint and incorporated documents facially establish arbitrability but the non-movant has come forward with enough evidence in response to the motion to compel arbitration to place the question in issue." Ibid. Under either scenario, "a 'restricted inquiry into factual issues' will be necessary to properly evaluate whether there was a meeting of the minds on the agreement to arbitrate," and the non-movant must have the opportunity to conduct limited discovery. Ibid. (quoting Moses H. Cone Mem'l Hosp., 460 U.S. at 22). The Guidotti holding is not limited to contract formation issues. "[A]ny time the court must make a finding to determine arbitrability, pre-arbitration discovery may be warranted." Id. at 775 n.5. Although our courts have yet to expressly adopt this approach, we conclude that it befits our jurisprudence and 25 A-2658-16T4 should be followed in like matters, such as these cases now before us. The trial court's flexible powers also extend to conducting proceedings designed to separate arbitrable claims from nonarbitrable claims. Here, we sense the possibility that plaintiffs may have pleaded causes of action that would include arbitrable claims if the preliminary factual questions we have recognized are resolved in defendants' favor – in that they arise from the sales contract or the negotiations leading to the formation of those sales contracts – as well as claims that are not arbitrable, such as claims relating to defendants' performance of the agreements to rescind, i.e., after agreeing to rescind they nevertheless withheld some part of the consideration plaintiffs originally provided. The complaints filed by Robinson and Goffe are similar in that they both allege all the operative facts – from the time they made contact with defendants until they were refused or delayed in receiving the consideration they previously provided – and then they both set forth the same six causes of action, see n.1, above, which each incorporate all the facts alleged at the outset. The trouble with that approach is that it inhibits the court's separation – if warranted – of claims that are arbitrable from those that are not. To the extent some of these 26 A-2658-16T4 claims are based on discussions or representations made during the contract-formation stage, they may very well be arbitrable. But, if there are claims included within plaintiffs' complaints that are based on defendants' conduct subsequent to the formation of the agreements to rescind, they are not. Recently, in a similar circumstance, we recognized a trial court's authority to compel the filing of amended pleadings for the purpose of better ascertaining those claims that are arbitrable and those that are not. Greenbriar Oceanaire Cmty. Assoc., Inc. v. U.S. Home Corp., 452 N.J. Super. 340, 345-46 (App. Div. 2017). The same approach may be taken here, or the courts might, consistent with Giudotti, call for limited discovery or an evidentiary hearing to ensure that the claims are litigated in the proper forum. We commend these procedures to the trial judges going forward. VI We turn lastly to Mall Chevrolet's cross-appeal, which focuses on Johnson's claims. Johnson is in a unique position. She signed nothing and had no dealings with Mall Chevrolet. Because she did not agree to arbitrate, the Robinson judge erred in compelling her to arbitrate. Mall Chevrolet does not appear to argue to the contrary; indeed, in its merits brief, Mall Chevrolet expressed 27 A-2658-16T4 its "agree[ment]" that Johnson "did not sign the contract documents and was not a party to the contract including the arbitration agreement." Mall Chevrolet argues, however, that – arbitrable or not – Johnson has no cognizable action, phrasing that contention in standing terms. Mall Chevrolet claims that the judge should have dismissed Johnson's claims on their merits. Although the judge dismissed the complaint, he did so only in the sense that the arbitration provision precluded Johnson's pursuit of her claims in court; the judge did not express any view as to whether Johnson failed to assert a cognizable cause of action. In considering this standing argument as it applies to Johnson's CFA claim,12 we start with an understanding that standing to sue under the CFA is viewed "broadly in order to accomplish [the CFA's] remedial purpose, namely, to root out consumer fraud." Lemelledo, 150 N.J. at 264. An actionable CFA claim requires that the claimant suffer "any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful" by the CFA. N.J.S.A. 56:8-19. This language, 12 Mall Chevrolet has not argued why – even if we were to agree that Johnson cannot maintain a CFA claim – Johnson would not have standing to assert her other causes of action. Consequently, we decline to consider those claims at this stage. 28 A-2658-16T4 as our Supreme Court has observed, "unmistakably makes a claim of ascertainable loss a prerequisite for a private cause of action" and to have "standing under the Act." Weinberg v. Sprint Corp., 173 N.J. 233, 251 (2002). It appears Johnson had no dealings with Mall Chevrolet, a fact that prohibited the order compelling arbitration of her claims but also raises concerns about whether she possesses a cognizable CFA claim. The CFA does not require "direct contractual privity between the consumer and the seller of the product or service," Port Liberte Homeowners Ass'n v. Sordoni Constr. Co., 393 N.J. Super. 492, 505 (App. Div. 2007), but it does require a "causal relationship . . . between the ascertainable loss and the unlawful practice," Roberts v. Cowgill, 316 N.J. Super. 33, 41 (App. Div. 1998); see also Feinberg v. Red Bank Volvo, Inc., 331 N.J. Super. 506, 511 (App. Div. 2000), and requires proof that the loss was "actual," Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005). Normally, that loss may be viewed as having occurred "when a consumer receives less than what was promised," Romano v. Galaxy Toyota, 399 N.J. Super. 470, 479 (App. Div. 2008), but an "out- of-pocket loss or a demonstration of loss in value" will also suffice, Thiedemann, 183 N.J. at 248. In this spirit, we conclude that the wrongful detention of property may constitute 29 A-2658-16T4 an ascertainable loss so long as the damage is, in the words of Thiedemann, "quantifiable or measurable." Ibid. Johnson claims she sustained ascertainable losses in two distinct ways. First, she asserts she was a co-owner of the vehicle Robinson traded in and that defendant's delay in returning that vehicle – once the parties agreed to rescind the sales contract – harmed her as well as Robinson. The value of that brief detention13 has not been shown, but the offering of such evidence at this stage would be premature. In our view, when faced with an immediate motion to compel arbitration, Johnson could not have been expected to offer evidence of the loss incurred when Mall Chevrolet delayed returning the vehicle. We are satisfied that, at this stage, it was enough to avoid dismissal for Johnson to allege that Mall Chevrolet wrongfully delayed returning the vehicle once Robinson and Mall Chevrolet agreed to rescind the sales contract. Although the alleged delay in returning the vehicle may not have had a great value, it was not nothing. 13 There appears to be a factual dispute about whether or how long Mall Chevrolet delayed a return of the traded-in vehicle. Mall Chevrolet claims it was "immediately returned" but Robinson and Johnson dispute this without providing any further information about the length of the delay. We leave these questions for the future. 30 A-2658-16T4 The existing factual record casts serious doubt as to whether Johnson suffered any other ascertainable loss. She alludes to Mall Chevrolet's delay in returning the cash deposit, but that deposit was made by Robinson – as Johnson appears to concede by referring to it as "my daughter's deposit." But we need not draw any firm conclusion on this point. At this stage, in resolving the issues raised in the cross-appeal – that Johnson lacked standing and that her complaint should have been dismissed on its merits – it is enough to say that she has alleged an ascertainable loss without our need to determine whether all claimed ascertainable losses are legally sufficient. For these reasons, the order compelling Johnson to arbitrate her claims cannot stand and the argument raised in Mall Chevrolet's cross-appeal that there are other reasons to dismiss Johnson's complaint are without merit. VII In summary, we reverse the dismissal orders in both matters and remand for further proceedings in conformity with this opinion. We also affirm the order denying Mall Chevrolet's motion to dismiss Johnson's complaint in the Robinson matter on the other grounds asserted by Mall Chevrolet in its cross- appeal. 31 A-2658-16T4 For the reasons we have expressed, the trial courts need to make certain factual determinations before they would be empowered to compel arbitration of any aspect of these actions. When the dust settles, and if the judges determine there are both arbitrable and non-arbitrable claims to be adjudicated, they should determine the order in which the arbitrable and nonarbitrable claims should proceed or whether they should proceed simultaneously. Greenbriar Oceanaire, 452 N.J. Super. at 345-46. We reverse the orders under review in both matters and remand for proceedings in conformity with this opinion. And we do not retain jurisdiction. 32 A-2658-16T4
STATE OF NEW JERSEY v. LUIS MELENDEZ
Date: April 23, 2018
Docket Number: a1301-15
DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.W.
Date: April 19, 2018
Docket Number: a0095-16
STATE OF NEW JERSEY v. FELIX A. MERCADO
Date: April 19, 2018
Docket Number: a0219-16
JEFFREY A. WICHOT v. SHERIFF RICHARD BERDNIK
Date: April 19, 2018
Docket Number: a0559-15
MUNTERS CORPORATION v. ENVIRO-SCIENCES
Date: April 19, 2018
Docket Number: a0942-16
WELLS FARGO BANK, NATIONAL ASSOCIATION v. TODD MARRAZZO
Date: April 19, 2018
Docket Number: a0998-16
IRENE KURC v. ALL STAR ONE
Date: April 19, 2018
Docket Number: a3316-16
STATE OF NEW JERSEY v. JOHN GORMAN
Date: April 19, 2018
Docket Number: a3481-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.M.
Date: April 19, 2018
Docket Number: a3706-16
STATE OF NEW JERSEY v. MELVIN A. OWENS
Date: April 19, 2018
Docket Number: a4057-15
STATE OF NEW JERSEY v. A.T.C.
Date: April 19, 2018
Docket Number: a4302-15
STATE OF NEW JERSEY v. LUIS E. GAMBOA-APARICIO
Date: April 19, 2018
Docket Number: a4705-15
KYUNG PAK v. NJ FITNESS FACTORY, INC
Date: April 19, 2018
Docket Number: a5084-16
STATE OF NEW JERSEY v. JAMES HEMENWAY
Date: April 16, 2018
Docket Number: a0622-15
INRE: VICINAGE 13 OF THE NEW JERSEY SUPERIOR COURT
Date: April 16, 2018
Docket Number: a4293-15
STATE OF NEW JERSEY v. RENE M. RODRIGUEZ
Date: April 12, 2018
Docket Number: a5077-15 OSTRER, J.A.D. Each defendant in these five back-to-back appeals by the State was convicted of fourth-degree operating a motor vehicle during a period of license suspension. N.J.S.A. 2C:40-26. The statute prescribes a sentence of a "fixed minimum" term of at least 180 days without parole eligibility. N.J.S.A. 2C:40- 26(c). We must decide whether the trial court exceeded its authority by ordering that defendants serve such sentences intermittently, under N.J.S.A. 2C:43-2(b)(7). The State contends the intermittent sentences are illegal. It argues a minimum period of parole ineligibility precludes an intermittent sentence. Having reviewed the plain language of the two statutes and the pertinent case law, we disagree. 3 A-5077-15T3 However, to satisfy the mandated term of days, a defendant must serve continuous twenty-four-hour periods to satisfy each day of the 180-day mandated term. We therefore modify the sentences of Eric L. Lowers in A-5146-15 and Stephen E. Nolan in A-5147-15; remand for the trial court to reconsider the sentence of Courtney D. Swiderski in A-5160-15; and reverse the sentences of Rene M. Rodriguez in A-5077-15 and Elizabeth A. Colon in A- 5078-15, who were sentenced only to nights, and remand those matters for resentencing. I. Four defendants pleaded guilty to violating N.J.S.A. 2C:40- 26(b). Appearing before the same judge, they admitted they drove a motor vehicle while their licenses were suspended for a second or subsequent conviction of driving while under the influence (DUI), N.J.S.A. 39:4-50. A fifth defendant pleaded guilty to violating N.J.S.A. 2C:40-26(a). She admitted driving a motor vehicle while her license was suspended for DUI. It evidently was the second time she did so during that suspension. The court initially sentenced three defendants — Rene Rodriguez, Eric Lowers and Courtney Swiderski — to serve their 180-day term in a treatment program or home detention.1 However, 1 Rene Rodriguez, Eric Lowers, and Stephen Nolan also pleaded guilty to violating N.J.S.A. 39:3-40. The sentences for the (continued) 4 A-5077-15T3 we reversed those sentences in light of State v. Harris, 439 N.J. Super. 150 (App. Div. 2015) and State v. French, 437 N.J. Super. 333 (App. Div. 2014), and remanded for resentencing. State v. Rodriguez, No. A-2541-14 (App. Div. July 29, 2015) (ESOA calendar); State v. Lowers, No. A-4260-13 (App. Div. June 22, 2015) (ESOA calendar); State v. Swiderski, No. A-2496-14 (App. Div. July 29, 2015) (ESOA calendar). Ultimately, each defendant pleaded guilty based on the court's promise of a sentence that would allow each defendant to serve 180 days intermittently, over the State's objection. Three defendants – Stephen Nolan, Eric Lowers and Courtney Swiderski – specifically reserved the right to withdraw their guilty pleas if their intermittent sentences were invalidated. Rene Rodriguez pleaded guilty to two separate indictments charging violations of N.J.S.A. 2C:40-26(b). The first charged a violation on July 11, 2012, in Pennsauken; the second on November 16, 2013, in Cherry Hill.2 They were the second and third times he was caught driving while his license was (continued) Title 39 violations were ultimately merged into the sentences for the fourth-degree crimes, but the mandatory penalties survived. 2 The second indictment included a drug possession charge, which was dismissed as part of his plea agreement. 5 A-5077-15T3 suspended. Rodriguez had three DUI convictions, the last in 2010. Rodriguez was fifty-five years old when sentenced. The court found that his lack of a prior criminal record and his amenability to probation outweighed the risk of his reoffending and the need to deter. See N.J.S.A. 2C:44-1(b)(7), (10) (mitigating factors); N.J.S.A. 2C:44-1(a)(3), (9) (aggravating factors). The court sentenced Rodriguez to two concurrent terms of two years of probation, conditioned on service of concurrent 180-day parole-ineligible terms of imprisonment, to be served "at night[] on . . . Monday, Tuesday, Wednesday and Thursday of each week." The court found that the sentence would accommodate his work schedule and promote his success on probation. Rodriguez reportedly had worked for a computer service firm for sixteen years. The court did not specify when Rodriguez was required to report to the jail each night, or when he would be released each morning. However, he evidently would not be required to serve any continuous twenty-four-hour period in custody. Also, the court did not specify how each nightly stint would count toward the 180-day minimum. 6 A-5077-15T3 In Elizabeth Colon's plea allocution, she admitted that she had been previously convicted of DUI.3 Like Rodriguez, Colon was sentenced to two years of probation, conditioned upon service of the 180-day jail term "at night on Monday, Tuesday, Wednesday and Thursday of each week." Colon had worked at a frozen dessert shop for eleven years. She was a manager, but still earned a very modest income. She was twenty-eight years old at sentencing. She had three prior municipal court convictions for loitering, disorderly conduct and breach of the peace, the last in 2013. The court found the likelihood she would respond affirmatively to probationary treatment outweighed the slight risk she would reoffend, and the need to deter. See N.J.S.A. 2C:44-1(b)(10) (mitigating factor); N.J.S.A. 2C:44-1(a)(3), (9) (aggravating factors). As in Rodriguez's sentencing, the court did not expressly address how each nightly stint would count toward the 180-day minimum. 3 Colon's indictment charged a violation of N.J.S.A. 2C:40-26(b), which requires at least two prior DUI convictions. Colon only admitted to one. Although her indictment was not formally amended, her judgment of conviction stated she was convicted of N.J.S.A. 2C:40-26(a), which requires only one DUI, but two or more instances of driving while suspended for that DUI. However, in her allocution, Colon did not mention a prior instance of driving while suspended. We note the record on appeal does not include any defendant's driver abstract, which would indicate each defendant's prior motor vehicle violations. However, the trial court apparently possessed the abstracts, based on the references to them in the sentencing hearings. 7 A-5077-15T3 Eric Lowers had three prior DUI convictions.4 The last was in 2005. According to his presentence report, he had one municipal court conviction from 1997 that resulted in a fine (although the court stated he had three municipal court convictions). Forty-six years old at sentencing, Lowers lived with his wife and one child. He paid child support for another. Two adult children lived outside the home. Employed for sixteen years as a heavy equipment operator through a local union, he currently worked at a Philadelphia refinery. He was his household's principal breadwinner. He also assisted his ailing grandmother during the week. The court sentenced Lowers to serve his 180-day term from Friday evening until Sunday evening of each week. No probation was imposed. The court found that his lack of a prior criminal history or his law-abiding behavior for a substantial period of time, and his character and attitude outweighed the risk he would reoffend and the need to deter. See N.J.S.A. 2C:44- 1(b)(7), (9) (mitigating factors); N.J.S.A. 2C:44-1(b)(3), (9) (aggravating factors). The court noted that the intermittent 4 In his allocution to the fourth-degree offense, Lowers admitted the offense was committed on January 2, 2013. However, the indictment stated that offense occurred on October 5 of the preceding year. In a later allocution to violating N.J.S.A. 39:3-40, he admitted he was driving on October 5. Defendant had six prior convictions for driving while on the revoked list, the last one in 1999, but none while suspended for DUI. 8 A-5077-15T3 sentence would enable Lowers to maintain his employment and to continue to support those who depended on him. Stephen Nolan had at least three DUI convictions, according to his attorney. He was in his early fifties when he entered his guilty plea. He had a high school education, and earned a very modest income working for a printing company. He was the sole support of his wife and son. He and his wife were in poor health. His attorney stated that if he were sentenced to a continuous term, he would lose his job and health insurance, and his family would be forced to turn to public assistance. Consistent with Nolan's request, the court sentenced him to serve his 180-day parole-ineligible term from Friday evening to Sunday evening each week. No probation was imposed. The court explained that an intermittent sentence would allow defendant to keep his job and his health insurance. The court found his lack of a prior criminal record and his character and attitude outweighed the risk of reoffending and the need to deter. See N.J.S.A. 2C:44-1(b)(7), (9) (mitigating factors); N.J.S.A. 2C:44-1(a)(3), (9) (aggravating factors). Courtney Swiderski, thirty-four years old at sentencing, had two prior DUI convictions. In accord with her plea agreement, her imprisonment was a condition of a two-year term of probation. She was sentenced to serve her 180-day term on 9 A-5077-15T3 Saturdays and Sundays. The court found that her lack of a criminal record, her character and attitude, and her amenability to probationary treatment outweighed the risk of her reoffending and the need to deter. See N.J.S.A. 2C:44-1(b)(7), (9), (10) (mitigating factors); N.J.S.A. 2C:44-1(b)(3), (9) (aggravating factors). The court found an intermittent sentence would enable her to preserve her long-term employment as a medical receptionist, and to enhance her prospects for success on probation. In each of the five cases, the trial court stayed service of the sentence pending appeal. II. On appeal, the State, by the Camden County Prosecutor, contends that N.J.S.A. 2C:40-26 implicitly mandates a continuous term, and supersedes the more general authorization in N.J.S.A. 2C:43-2(b)(7) for intermittent sentences. Both the State and the Attorney General, as amicus curiae, analogize intermittent periods of release to parole, which N.J.S.A. 2C:40-26 prohibits during the minimum 180-day term. The State and the Attorney General argue that an intermittent sentence fails to fulfill the Legislature's punitive purpose in enacting N.J.S.A. 2C:40-26. 10 A-5077-15T3 Defendants5 and the New Jersey Public Defender, as amicus curiae, respond that a parole-ineligible term is not incompatible with an intermittent sentence. They argue parole and intermittent periods of release fundamentally differ. In particular, intermittent periods of release, unlike parole, do not reduce the overall period of custody. Some defendants and the Public Defender argue that intermittent sentences will have a greater deterrent effect than a continuous sentence. III. The Code of Criminal Justice provides that the general authority to impose intermittent sentences must yield to specific sentencing provisions to the contrary. N.J.S.A. 2C:43-2. The crux of this appeal is whether such contrary provisions include the mandate of a 180-day parole-ineligible term for fourth-degree driving while suspended, N.J.S.A. 2C:40- 26. The power to impose intermittent sentences is found in the section authorizing various sentencing dispositions. N.J.S.A. 2C:43-2. Among other options, a court may sentence a defendant "[t]o imprisonment at night or on weekends with liberty to work or to participate in training or educational programs." N.J.S.A. 2C:43-2(b)(7). That general authority bows to contrary 5 Defendant Colon has not filed a brief. 11 A-5077-15T3 provisions in N.J.S.A. 2C:43, and the Code more broadly. N.J.S.A. 2C:43-2(b). Subsection (a) of N.J.S.A. 2C:43-2 states that persons shall be sentenced in accord with N.J.S.A. 2C:43, "[e]xcept as otherwise provided by this code . . . ." Also, a court may impose an intermittent sentence (or another authorized sentence type) "[e]xcept as provided in subsection a. of this section and subject to applicable provisions of the code." N.J.S.A. 2C:43-2(b). Thus, we must examine the mandatory 180-day sentencing provision for fourth-degree driving while suspended, to determine if it is incompatible with an intermittent sentence. The mandatory sentencing provision expressly supersedes "the term of imprisonment provided under N.J.S.[A.] 2C:43-6" – which prescribes a prison term of zero to eighteen months for a fourth-degree offense – and "the provisions of subsection e. of N.J.S.[A.] 2C:44-1" – which establish a presumption of non- incarceration for most third and fourth-degree first-time offenders. N.J.S.A. 2C:40-26(c). However, it does not expressly override N.J.S.A. 2C:43-2(b)(7). Thus, our focus is on the meaning and implication of the language that the "sentence imposed shall include a fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole." N.J.S.A. 2C:40-26(c). 12 A-5077-15T3 We are obliged to give effect to the Legislature's intent. State v. Harper, 229 N.J. 228, 237 (2017). Our analysis begins with the statute's plain language. "If it clearly reveals the Legislature's intent, the inquiry is over." Ibid.; see also In re Kollman, 210 N.J. 557, 568 (2012) ("If the plain language is clear, the court's task is complete."). We ascribe to words their "ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citations omitted). We must avoid literalism that would lead to absurd results, or violate the overall statutory scheme and its goals. Perrelli v. Pastorelle, 206 N.J. 193, 200-01 (2011). When the face of a statute is thereby unclear, or ambiguous, we may resort to extrinsic legislative materials to discern legislative intent. Harper, 229 N.J. at 237. If ambiguity remains, despite such review, it must be resolved in favor of a criminal defendant. State v. Regis, 208 N.J. 439, 452 (2011). Turning to the statutory language, we find no basis for the argument that an intermittent sentence under N.J.S.A. 2C:43- 2(b)(7) violates the parole ineligibility term mandated by N.J.S.A. 2C:40-26. Simply put, periodic release under an intermittent sentence is not parole. 13 A-5077-15T3 The essential nature of parole is release from custody before a prisoner has completed his or her imposed term, subject to conditions that, if satisfied, will reduce the prisoner's total period of confinement. "Parole is a period of supervised release 'by which a prisoner is allowed to serve the final portion of his sentence outside the gates of the institution on certain terms and conditions, in order to prepare for his eventual return to society.'" State v. Black, 153 N.J. 438, 447 (1998) (quoting State v. Oquendo, 262 N.J. Super. 317, 324 (App. Div.), rev'd on other grounds, 133 N.J. 416 (1993)). Parole may reduce real time in custody for a flat sentence by as much as two-thirds, not counting commutation time and work credits that may further reduce the parole eligibility term. N.J.S.A. 30:4-123.51(a); N.J.A.C. 10A:71-3.2(a), -3.2(g).6 However, a defendant sentenced to a county jail term must serve at least sixty days before parole eligibility. N.J.S.A. 30:4- 123.51(g). A prisoner who violates the conditions of his or her release risks the revocation of parole, and the return to custody for the balance of his or her custodial term. State v. Franklin, 175 N.J. 456, 470 (2003). 6 For example, with such credits, a first-time offender sentenced to a flat three-year term is eligible for parole after nine months. See New Jersey Parole Board, Parole Eligibility Basic Calculations at 17 (2002) (parole eligibility table for first- time offenders). 14 A-5077-15T3 By contrast, periods of release during service of an intermittent sentence do not reduce the total time of confinement. Rather, they simply interrupt the days of custody. As our late, esteemed colleague noted while sitting in the trial court, "The duration of [a] custodial term remains the same whether it is served consecutively or on weekends." State v. Silva, 236 N.J. Super. 90, 92 (Law Div. 1989) (Rodriguez, J.). Thus, he rejected the State's contention that weekend service of a plea-bargained 180-day custodial sentence for a school zone offense, N.J.S.A. 2C:35-7, was a "lesser term of imprisonment" under N.J.S.A. 2C:35-12. Id. at 91-93. As John M. Cannel notes, "[S]ubsection b(7) merely authorizes flexibility in the way imprisonment is to be served . . . ." Cannel, N.J. Criminal Code Annotated, cmt. 7 on N.J.S.A. 2C:43-2 (2017). Furthermore, the State's and the Attorney General's intermittent-release-is-like-parole argument fails because an intermittent sentence does not subject a defendant to parole- like conditions or supervision. Nor does N.J.S.A. 2C:43-2(b)(7) authorize a court to modify an intermittent sentence, based on an offender's behavior during periods of release. We also reject the contention that implicit in the mandate of a 180-day sentence is the requirement that the days be served without interruption. The statute does not say so expressly. 15 A-5077-15T3 By contrast, in multiple other provisions, the Legislature expressly stated when a period of days shall be "consecutive days." See, e.g., N.J.S.A. 2C:7-2(a)(2); N.J.S.A. 2C:46- 2(a)(2); N.J.S.A. 2C:43-8.1; see also N.J.S.A. 2A:4A-43(c)(1) (disposition of delinquency cases). "A person convicted of an offense under . . . [N.J.S.A. 2C:40-26(a) or -26(b)] shall be sentenced by the court to a term of imprisonment." N.J.S.A. 2C:40-26(a), -26(b). According to the State, "term of imprisonment" implies uninterrupted service. The State's argument proves too much. If "term" were read to mean an uninterrupted period of time, then even the general provision that fourth-degree offenders shall receive a "specific term" not more than "18 months," N.J.S.A. 2C:43-6(a)(4), would preclude intermittent sentences. Thus, not even the least serious criminal offender would be eligible for an intermittent sentence under the Code. We reject such an interpretation. We are persuaded that "term of imprisonment" means simply a period of imprisonment, which does not preclude an intermittent period. See Silva, 236 N.J. Super. at 92-93 (holding, based on the dictionary definition of "term," that "term of imprisonment" refers to "the length or duration of confinement rather than the manner in which it is to be served"). 16 A-5077-15T3 Nor does the use of the word "fixed" imply an uninterrupted sentence. See N.J.S.A. 2C:40-26(c) (requiring custodial term for fourth-degree driving while suspended to "include a fixed minimum sentence of not less than 180 days"). As the past participle of the verb "to fix," "fixed" evidently means that the 180-day minimum is set, and cannot be reduced, either by the court, or by application of commutation time or work credits. See Karatz v. Scheidemantel, 226 N.J. Super. 468, 470-72 (App. Div. 1988) (holding that "fixed minimum sentence" under N.J.S.A. 2C:14-6 could not be reduced by commutation credits).7 In that respect, a "fixed minimum sentence" is not substantively different from a "mandatory minimum sentence." See N.J.S.A. 2C:43-7.2(b); cf. N.J.S.A. 2C:43-6.2(a) (referring to "mandatory minimum term"); N.J.S.A. 2C:43-6.3 (using "mandatory minimum sentence" and "mandatory minimum term" interchangeably).8 7 We recognize the Parole Act expressly states that such credits shall not reduce a mandatory minimum sentence. See N.J.S.A. 30:4-123.51; see also N.J.A.C. 10A:9-5.2; N.J.A.C. 10A:31-23.1. 8 Elsewhere in the Code, "to fix" may be used to create an immutable term. See, e.g., N.J.S.A. 2C:43-7.2 (stating that a court "shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole"). Or, it may not. See, e.g., N.J.S.A. 2C:43-6(a) (noting that regular flat sentences "shall be fixed by the court" for the periods specified). We are aware of only one other section of the Code, N.J.S.A. 2C:14-6, which uses the phrase "fixed minimum sentence." 17 A-5077-15T3 The Legislature tellingly chose to define the sentence in terms of 180 days, not six months, or half-a-year. A day is "[a]ny 24-hour period; the time it takes the earth to revolve once on its axis." Black's Law Dictionary 479 (10th ed. 2014). Thus, any continuous twenty-four-hour period of custody satisfies a day's imprisonment. By contrast, a month is "[a]ny time period approximating 30 days," id. at 1161, or the "period extending from a date in one calendar month to the corresponding date in the following month," The American Heritage Dictionary 812 (2d College ed. 1985). Had the Legislature defined the sentence in terms of months, one could make a stronger argument that the Legislature intended the days be served consecutively in groups of at least thirty. The Legislature did not.9 However, the plain meaning of a "day" precludes counting a nightly stint of say, twelve hours, as one of the 180 days 9 We recognize, by an alternative definition, a day is the twenty-four-hour period beginning at midnight. See A Dictionary of Modern Legal Usage 247 (2d ed. 1995) (stating that a day is "the period of 24 hours, beginning at the stroke of midnight"). Similarly, a month may be the period beginning on the first of any of the twelve months, and a year as the period beginning on January 1st. However, it would be absurd to conclude, in interpreting the statutes before us, that a sentence in days, months, or years, must begin at 12:01 a.m.; on the first day of the month; or on the first day of January, respectively. 18 A-5077-15T3 required.10 Furthermore, aggregating two twelve-hour nightly stints would constitute only the equivalent of a day (and a rough equivalent at that, as it would join one night-time period with another of the same, rather than with one day-time period). Where the Legislature has approved such aggregation, it has said so. In municipal court, "[a] court may order that a sentence of imprisonment be served periodically on particular days, rather than consecutively." N.J.S.A. 2B:12-22. In such circumstances, the Legislature expressly provided, "The person imprisoned shall be given credit for each day or fraction of a day to the nearest hour actually served." Ibid.11 10 To demonstrate the asserted unfairness of an intermittent sentence, the State contended in oral argument that partial days must count as a full day, using the counting mechanism for jail credits. R. 3:21-8(a) (stating that a "defendant shall receive credit on the term of a custodial sentence for any time served in custody . . . between arrest and the imposition of sentence"); see also State v. C.H., 228 N.J. 111, 117 (2017) ("Jail credits are 'day for day credits.'") (quoting State v. Rawls, 219 N.J. 185, 192 (2014)). Thus, the State contended, a twenty-four-hour period of incarceration beginning one calendar day and ending the next would count as two days, thereby enabling a defendant with an intermittent sentence to serve significantly less actual time in custody than a defendant with a continuous sentence. However, the counting rule for jail credit pertains to time in custody "before sentence is ever pronounced . . . ." State v. Rosado, 131 N.J. 423, 429 (1993). The rule was devised for a different purpose and does not bind our effort to reconcile N.J.S.A. 2C:40-26 and N.J.S.A. 2C:43- 2(b)(7). 11 The allowance of partial day credit pre-dates enactment of the Code in 1978, L. 1978, c. 95. See L. 1969, c. 146, § 1, (continued) 19 A-5077-15T3 The Public Defender conceded at oral argument that a defendant sentenced to nights pursuant to N.J.S.A. 2C:43-2(b)(7) should be credited only with the fraction of the day served, toward the 180-day minimum. Thus, an offender receiving an intermittent term of nights would serve, hour-for-hour, the same period in custody as one who served 180 days continuously. However, we conclude that aggregation of partial days is not permitted by the plain language of N.J.S.A. 2C:40-26(c), particularly absent express authority to do so as found in N.J.S.A. 2B:12-22. "The law will not ordinarily concern itself with fractions of a day; the day is deemed to be the single unit of time, unless the statute . . . expressly provides for a different approach." U.S. Steel Corp. v. Dir., Div. of Taxation, 38 N.J. 533, 539 (1962). We recognize that a mandatory minimum sentence substantially restricts a court's sentencing discretion. A judge may not reduce a mandatory minimum sentence nor "impose a sentence that, in length or form, is different from that plainly provided in the statute." State v. Lopez, 395 N.J. Super. 98, 107-08 (App. Div. 2007). For example, under the Graves Act, a (continued) codified at N.J.S.A. 2A:8-30.1 (allowing fractional credit of intermittent sentences for offenses punishable by imprisonment for thirty days or less), repealed by L. 1993, c. 293, § 6. 20 A-5077-15T3 judge may not suspend a mandatory minimum sentence, impose a non-custodial disposition, or impose an indeterminate term for a youthful offender. State v. Des Marets, 92 N.J. 62, 64, 74 (1983). Under N.J.S.A. 2C:40-26 in particular, we held that the statute did not allow for service of the sentence in an inpatient drug rehabilitation program, French, 437 N.J. Super. at 338; on home detention, Harris, 439 N.J. Super. at 160; or community service, ibid. "Because N.J.S.A. 2C:40-26(c) requires a 'fixed minimum sentence of not less than 180 days' without parole eligibility for violations of N.J.S.A. 2C:40-26(b), a sentence to a non-custodial 'alternative program,' instead of jail, is plainly illegal." Ibid. Cf. State v. Toussaint, 440 N.J. Super. 526, 535-37 (App. Div. 2015) (holding that absent clear limiting language as found in N.J.S.A. 2C:40-26(c), N.J.S.A. 39:3-40(e) did not preclude sentence to home confinement). However, an intermittent sentence under N.J.S.A. 2C:43- 2(b)(7) does not vary the length of the sentence provided by N.J.S.A. 2C:40-26. Nor does it vary the form of the sentence — which is custodial — into one that is not. An intermittent sentence is still a term of imprisonment. It is not a commitment to a rehabilitation program, even one that is 21 A-5077-15T3 inpatient. An intermittent sentence is also not a non-custodial sentence, as the offender does not satisfy the sentence during the intervening non-custodial periods. N.J.S.A. 2C:43-2(b)(7) "is not really an alternate sentencing provision in the same way as" N.J.S.A. 2C:43-2(b)(5), authorizing community release or community service, or N.J.S.A. 2C:43-2(b)(6), authorizing sentence to a half-way house or residential community facility. Cannel, N.J. Criminal Code Annotated, cmt. 7 on N.J.S.A. 2C:43-2 (2017).12 12 In State v. Kotsev, 396 N.J. Super. 389 (App. Div. 2007) and State v. Luthe, 383 N.J. Super. 512 (App. Div. 2006), the court interpreted N.J.S.A. 39:4-50(a)(3), which states that a person convicted of a third or subsequent DUI shall be sentenced to "imprisonment for a term of not less than 180 days," but up to ninety days may be served in an inpatient rehabilitation program. In Kotsev, the defendant argued the court should have sentenced him to ninety days in the Sheriff's Labor Assistance Program (SLAP), instead of jail. 396 N.J. Super. at 390. Holding that non-custodial sentences were not allowed, the panel stated, "SLAP is not an option." Id. at 392. It then added without further analysis in dictum, "Weekend service is not an option." Ibid. In Luthe, we rejected defendant's argument that the trial court's refusal to consider "alternative sentencing options" denied her equal protection. 383 N.J. Super. at 513-15. We held, "There is no statutory authority for work release programs, out-patient treatment, or the like as an alternative." Id. at 515. Presented with anecdotal information that some trial courts imposed such dispositions, including "weekend reporting," the panel stated, "[I]f disparity exists as to the use of these alternative programs, it must cease, consistent with our construction of the statute." Id. at 516. (continued) 22 A-5077-15T3 Although we find no ambiguity in N.J.S.A. 2C:40-26, relating to the permissibility of intermittent sentences, the State and the Attorney General nonetheless resort to the provision's legislative history. However, the extrinsic materials fall short of compelling the result they seek. No doubt, the Legislature intended to stiffen the punishment for certain repeat offenders who drive with a suspended or revoked license. State v. Carrigan, 428 N.J. Super. 609, 613 (App. Div. 2012) (noting that prior to enactment of N.J.S.A. 2C:40-26 the sanction under Title 39 was ten to ninety days in jail, without a mandatory minimum parole ineligible term). The statute tars offenders with criminal records, and imposes significant terms of incarceration, whether intermittent or not. The State contends that the Legislature's overriding intent was simply to get recidivists off the road. However, we have found no evidence in the legislative history — nor does the State or the Attorney General point to any — that the Legislature so intended, let alone that it contemplated taking a (continued) The references to weekend sentences in Kotsev and Luthe are dicta. They also pertain to a different violation of a different statute with a different legislative history, and did not discuss N.J.S.A. 2C:43-2(b)(7). The decisions do not persuade us that weekend sentences under N.J.S.A. 2C:43-2(b)(7) are non-custodial dispositions. Notably, neither the State nor the Attorney General rely on Kotsev or Luthe in their briefs before us. 23 A-5077-15T3 driver off the road for 180 continuous days, as opposed to 180 non-continuous days. Had the Legislature's focus been separating offenders from vehicles, non-jail custodial alternatives such as inpatient treatment may have been acceptable. Notably, N.J.S.A. 2C:40-26 does not impose a period of license suspension in addition to the custodial sentence.13 Furthermore, a person convicted of a crime under N.J.S.A. 2C:40- 26(a) or (b) who is in and out of jail over ninety weekends (assuming a weekend sentence from Friday night to the same time on Sunday night), would be repeatedly reminded of his or her crime and its punishment. After a year and a half, that person, still serving his or her sentence, may be more deterred than a person who finished a continuous sentence a year earlier. We acknowledge that the sponsor of the bill that added N.J.S.A. 2C:46-20 to the Code equated the mandated 180-day parole ineligible term to a six-month period. See Sponsor's Statement to A. 4303 (Nov. 30, 2009) ("A person convicted of violating the bill's provisions is to be sentenced to a term of imprisonment which would include a six month period of parole 13 As part of Courtney Swiderski's plea agreement, the State dismissed the N.J.S.A. 39:3-40 charge against her, which would have mandated a license suspension period, if convicted. Evidently, Elizabeth Colon was not charged with violating N.J.S.A. 39:3-40. The State did not seek her license suspension under N.J.S.A. 2C:43-2(c). 24 A-5077-15T3 ineligibility."); see also Assemb. Law & Pub. Safety Comm. Statement to Assemb. Comm. Substitute for A. 4303 (Dec. 3, 2009) (same). However, the legislative history may not create ambiguity that is absent on the face of the statute. See DiProspero, 183 N.J. at 506 (declining to rely on "legislative history . . . to create an ambiguity in an otherwise clear statute"). We decline to rewrite the "180 days" as found in the statute, to state "six months." "[A] court may not rewrite a statute or add language that the Legislature omitted." State v. Munafo, 222 N.J. 480, 488 (2015). We conclude the reference to six months in the sponsor's statement was simply an imprecise summary of the statutory language, without anticipating the issue of intermittent sentencing presented to us. Finally, even if the State's and the Attorney General's readings of N.J.S.A. 2C:40-26(c) were plausible, they at most leave us with an ambiguous penal enactment, because the contrary reading is no less plausible. As discussed above, extrinsic legislative materials do not address the interpretative issue before us. Therefore, the rule of lenity would compel us to reject the State's and Attorney General's construction of N.J.S.A. 2C:40-26(c). Compare Rosado, 131 N.J. at 430 (applying the rule), with Regis, 208 N.J. at 452 (declining to apply rule). 25 A-5077-15T3 Based on the foregoing analysis, we are constrained to reverse and remand the sentences of Rene Rodriguez and Elizabeth Colon, as N.J.S.A. 2C:46-20(c) precludes a partial-day, nights- only sentence under N.J.S.A. 2C:43-2(b)(7). As for Eric Lowers and Stephen Nolan, we modify their sentences to provide that the commencement of their service on Friday evening, shall not occur at a time earlier in the day than their release on Sunday evening, to assure credit for two days. We remand for reconsideration of the sentence of Courtney Swiderski, who was sentenced to imprisonment on Saturday and Sunday. Unless she reports at the very beginning of Saturday until the very end of Sunday, she would complete service of only one day each weekend. We close with brief observations about intermittent sentences and the Legislature's efforts to address "the scourge of intoxicated driving . . . ." State v. Denelsbeck, 225 N.J. 103, 120 (2016). The Supreme Court has expressed its "commitment to eliminating intoxicated drivers from our highways . . . ." State v. Hessen, 145 N.J. 441, 458 (1996). The Court has also recognized the Legislature's "increased emphasis on incarceration" to combat driving under the influence by recidivists. Denelsbeck, 225 N.J. at 120. Enactment of N.J.S.A. 2C:46-20 is consistent with that direction. 26 A-5077-15T3 It is not for us to question or endorse the Legislature's policy judgment. We respect it. We are mindful of the devastating toll that impaired driving exacts upon society. We also acknowledge the erosion of the enforcement scheme that results from persons driving while suspended. That is so, even if they are unimpaired when they do so, although too often they are impaired, resulting in tragic consequences. However, the Legislature added N.J.S.A. 2C:46-20 to a Code that, since the Code's enactment in 1978, has authorized intermittent sentences. L. 1978, c. 95. Although not included in the original proposed revision of the New Jersey criminal law, see I The New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission § 2C:43-2 (1971), the Legislature found it appropriate to include intermittent sentencing as a sentencing option. In so doing, it followed other states that, in one form or another, have authorized such dispositions. Nicolette Parisi, Part-Time Imprisonment: The Legal and Practical Issues of Periodic Confinement, 63 Judicature 385 (1980) (surveying various state laws on intermittent sentencing); see also Model Penal Code and Commentaries § 6.02 n.28 (Am. Law Inst. 1985) (noting that Illinois and Michigan, like New Jersey, revised their criminal 27 A-5077-15T3 laws, which were based on the Model Penal Code, to include authority for intermittent sentencing). Intermittent sentences may preserve the deterrent and rehabilitative effect of a custodial sentence, while enabling an offender to continue to be employed, and avoid the financial and emotional burden that would result if he or she could not. See Silva, 236 N.J. Super. at 93; Parisi, 63 Judicature at 391-93. We are unpersuaded that the Legislature, in adopting the stiffened penalties in N.J.S.A. 2C:46-20, intended to bar an intermittent sentence, absent which an offender like Stephen Nolan would lose his job and health insurance, and his wife and child would likely seek public assistance. We also need not decide here whether an intermittent sentence is "easier time" or "harder time" than a continuous one. We presume that depends on the offender's personality and situation. See John M. Castellano, Practice Insights, N.Y. Penal Law § 85.00 (Lexis Nexis 2018) (noting that "[f]or many reasons, not all defendants have the ability to handle the difficult prospect of regular re-incarceration or its attendant stresses"). An intermittent prisoner faces potentially severe consequences for failing to return timely to custody. See N.J.S.A. 2C:29-5 (defining crime of escape to include the unauthorized failure "to return to official detention following 28 A-5077-15T3 temporary leave granted for a specific purpose or limited period"). In sum, the Legislature has provided intermittent sentencing as an option to sentencing courts. We decline to find that it chose to preclude that sentencing option in N.J.S.A. 2C:40-26 absent a clear expression of the intent do so. Reversed and remanded as to Rodriguez and Colon; modified as to Lowers and Nolan; and remanded for reconsideration as to Swiderski. We do not retain jurisdiction. We stay our decision for thirty days, to enable a party to seek any relief from the Supreme Court. 29 A-5077-15T3
DWIGHT MORRIS v. T.D. BANK
Date: April 10, 2018
Docket Number: a2268-16
STATE OF NEW JERSEY IN THE INTEREST OF T.C.
Date: April 4, 2018
Docket Number: a1784-16
J.H. v. R&M TAGLIARENI, LLC
Date: March 29, 2018
Docket Number: a0031-16
NORTHFIELD INSURANCE COMPANY v. MT. HAWLEY INSURANCE COMPANY
Date: March 28, 2018
Docket Number: a1771-16
IN THE MATTER OF THE TRUST OF VIOLET NELSON, DECEASED
Date: March 28, 2018
Docket Number: a4004-15
IN THE MATTER OF THE EXPUNGEMENT OF THE CRIMINAL RECORDS OF E.C.
Date: March 19, 2018
Docket Number: a5175-15
STATE OF NEW JERSEY v. YOMAIRA SENCION
Date: March 15, 2018
Docket Number: a3138-15 KOBLITZ, J.A.D. Defendants appeal from an August 7, 2014 order denying their motion to suppress evidence as well as their subsequent February 19, 2016 convictions after pleading guilty to various crimes based on the drugs and guns found in plain view through the open door of an apartment.1 The police used a tool to force entry into the 1 We consolidate these four appeals for the purpose of writing one opinion. Juan Santana and William Jerez pled guilty to first- degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(1). Santana was sentenced to eight years in prison with a forty-eight month period of parole ineligibility. 2 A-3138-15T3 locked apartment building twice before approaching the fourth- floor apartment door. The State, conceding a lack of probable cause, successfully argued that the forced entry into the building did not violate constitutional protections. The motion judge allowed defendants to continue on bail pending this appeal. Because people have a reasonable expectation of privacy from a forced police entry into the locked common area of the apartment building, we now reverse. The suppression hearing revealed the following facts, as found by the judge. On May 8, 2013, close to 1:00 a.m., Fort Lee Patrolman Richard Hernandez, an experienced K-9 officer who had been on the force since 2003, noticed a Nissan Sentra with Pennsylvania license plates driving slowly with its hazard lights on. When the car pulled over and stopped, Patrolman Hernandez pulled alongside the car to make sure the driver was all right. Jose Rivas, the driver, began to explain in broken English that he had a flat tire. Rivas exited his car and moved toward the Jerez was sentenced to six years in prison with a twenty-four month period of parole ineligibility. Yomaira Sencion and Roberto Perez-Garcia pled guilty to second-degree conspiracy to possess heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(1), and were each sentenced to three years in prison. We have received no information regarding the resolution of the case against Jose Rivas, who was indicted with the other four defendants. 3 A-3138-15T3 trunk. Patrolman Hernandez, fluent in Spanish, exited his patrol car. Rivas said he had a spare tire but not the necessary tools to change the tire. He asked Patrolman Hernandez if he had a tire iron. Rivas opened the trunk to show Patrolman Hernandez the spare tire. In the trunk, Patrolman Hernandez saw a mirror and a headlight, with wires hanging out, which did not appear to belong to the Sentra. Patrolman Hernandez asked Rivas where he came from and what he was doing in the area. Rivas answered that he was from the Bronx, although he had a Pennsylvania driver's license. He said his cousin lived in Pennsylvania, and that he was visiting a friend named "Shorty" who lived at a nearby five-story building with thirty-six apartments. Patrolman Hernandez observed that Rivas avoided eye contact, paused before answering some questions and was sweating although it was sixty degrees outside. His hands shook and the artery in his neck pulsed. Believing that Rivas was acting evasively and nervously, Patrolman Hernandez called for back-up and activated the video camera in his patrol car; Officer Cabrera and Detective Porto arrived. Rivas said that his friend Shorty lived in Apartment 4G. Patrolman Hernandez went to the building, leaving Rivas with the 4 A-3138-15T3 two officers outside. The outside door to the building was open, but the second, interior door was locked. Patrolman Hernandez pushed the intercom button for Apartment 4G but no one answered. He tried to find a listing for a superintendent, but there was none. He returned to his patrol car to find a "slim jim," which he described as an "entry tool." Patrolman Hernandez then returned to the building, slid the slim jim between the door frame and bolt, and entered forcibly. Patrolman Hernandez then went to Apartment 4G, knocked on the door, and spoke to a female resident, who denied knowing Rivas. Patrolman Hernandez returned downstairs and accused Rivas of lying, saying, "[I]f we don't speak to [your friend] now there is going to be a problem." Rivas said he was mistaken about the apartment number; it was actually Apartment 4C. Upon the officer's request, Rivas agreed to accompany Patrolman Hernandez and another officer into the building. Patrolman Hernandez again forced his way in with the slim jim and went to Apartment 4C. Rivas knocked on Apartment 4C, but no one answered. Patrolman Hernandez asked Rivas to call Shorty; when he did, Patrolman Hernandez could hear a male voice coming from Apartment 4A. Rivas told the man he had a flat tire, and that he was downstairs. The man inside Apartment 4A said he would come down. The door to Apartment 4A opened and defendant Perez-Garcia stepped out. Inside 5 A-3138-15T3 the apartment, Patrolman Hernandez saw defendant Sencion seated on a couch next to a large gallon-size Ziploc bag filled with hundreds of blue folds. Patrolman Hernandez saw glassine envelopes containing a tan and off-white powdery substance which he believed was heroin. Defendants Jerez and Santana were seated at the kitchen table where a mirror was located. The apartment was secured until officers returned with a warrant to search the apartment. Heroin, marijuana, drug paraphernalia, and two handguns were seized and secured as evidence. "An appellate court reviewing a motion to suppress evidence in a criminal case must uphold the factual findings underlying the trial court's decision, provided that those findings are 'supported by sufficient credible evidence in the record.'" State v. Boone, N.J. , (2017) (slip op. at 16) (quoting State v. Scriven, 226 N.J. 20, 40 (2016)). We do so "because those findings 'are substantially influenced by [an] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Gamble, 218 N.J. 412, 424-25 (2014) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We owe no deference, however, to conclusions of law made by trial courts in suppression decisions, which we instead review de novo. State v. Watts, 223 N.J. 503, 516 (2015). 6 A-3138-15T3 Defendants argue that the forced entry by police into the locked apartment building on two occasions was unconstitutional and that any and all evidence seized from the apartment must be suppressed as fruit of the poisonous tree. State v. Shaw, 213 N.J. 398, 421 (2012). The State bears the burden of justifying a warrantless search or seizure. State v. Bolte, 115 N.J. 579, 585 (1989). The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution require that police officers obtain a warrant before conducting a search, unless that search falls into a recognized exception to the warrant requirement. State v. Deluca, 168 N.J. 626, 631-32 (2001); see State v. Pena-Flores, 198 N.J. 6, 11 (2009) ("Those exceptions include, among others, plain view, consent, search incident to arrest, and the automobile exception."). Federal courts have employed a two-prong test: first, a person must have exhibited an actual expectation of privacy, and second, the expectation must be one that society is prepared to recognize as reasonable or legitimate. Minnesota v. Olson, 495 U.S. 91, 93 (1990). Our Supreme Court, however, has defined an objective test asking only whether a person has a reasonable expectation of privacy. State v. Hempele, 120 N.J. 182, 199-200 (1990). 7 A-3138-15T3 Even when strangers have access to the location, an expectation of privacy may well exist under the New Jersey Constitution. See id. at 211 (holding that, despite federal law to the contrary, police officers must have a valid search warrant to open a garbage bag); see also State v. Stott, 171 N.J. 343, 369 (2002) (determining that an involuntarily-committed psychiatric patient had a reasonable expectation of privacy in his shared state hospital room). In 2010, we determined that the common hallway of a two- family house was not open to the public. State v. Jefferson, 413 N.J. Super. 344, 354 (App. Div. 2010). We found that a tip gave the police a rational basis to begin an investigation of the defendant, but did not amount to probable cause to forcibly enter the multi-unit home. Id. at 360. Police were not privileged to enter that hallway without a warrant or an exception to the warrant requirement. Ibid.; see also State v. Lewis, 116 N.J. 477, 479- 81 (1989) (suppressing evidence because the plain view of drugs occurred after the officer, acting on a tip but without a warrant, put his foot in the doorway to prevent the defendant from closing it). The State highlights that the locked common hallway in Jefferson was in a two-dwelling home, 413 N.J. Super. at 354, 8 A-3138-15T3 whereas here Patrolman Hernandez entered a five-story apartment building with thirty-six apartments. The State quotes one sentence in an Eleventh Circuit opinion, United States v. Miravalles, 280 F.3d 1328, 1332 (11th Cir. 2002): "The more units in the apartment building, the larger the number of tenants and visitors, workers, delivery people, and others who will have regular access to the common areas, and the less reasonable any expectation of privacy." The opinion, however, goes on to state: "Whether the door to the building is locked is another relevant consideration." Id. at 1332. With respect to the entry door of a building containing three apartment units, one on each floor, we considered "the fact of whether a door is locked or unlocked a far more reliable predictor of a reasonable expectation of privacy than the size of the building in which one resides." State v. Nunez, 333 N.J. Super. 42, 51 (App. Div. 2000). Contrary to the State's assertion, our Supreme Court's decision in Johnson does not militate against the expectation of privacy in a locked entryway. State v. Johnson, 171 N.J. 192, 209 (2002). In discussing whether the plain view doctrine applied to a police officer's seizure of drugs placed by that defendant "into a hole beside a post on the porch of a multi-family dwelling," the Court noted, "the porch involved in this case, although part of the curtilage, has a diminished expectation of privacy." Id. at 9 A-3138-15T3 199, 209. The Johnson Court did not dispose of the case on the basis that the defendant had no reasonable expectation of privacy, but rather held "that the conduct of the police in seizing the clear plastic bag from the hole was reasonable under the plain view doctrine and violated neither the Federal nor the New Jersey Constitution." Id. at 220. Based on this rationale our Supreme Court in Johnson found no expectation of privacy in an unlocked route of access to a residence. Id. at 209. In State v. Penalber, 386 N.J. Super. 1, 4 (App. Div. 2006), we invalidated a police entry into an open apartment door for the rationale delineated in State v. De La Paz, 337 N.J. Super. 181, 196 (App. Div. 2001): investigations do not justify home entries without a warrant. We stated, "[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Penalber, 386 N.J. Super. at 11. Police are permitted to enter locked common areas with permission, or enter an open and unlocked door leading to a vacant building. State v. Perry, 124 N.J. 128, 133 (1991); State v. Pante, 325 N.J. Super. 336, 342 (App. Div. 1999); State v. Brown, 282 N.J. Super. 538, 548 (App. Div. 1995). Thus, the entry into a locked common hallway without permission is a violation of the occupants' reasonable expectation of privacy. 10 A-3138-15T3 We must also review the unusual facts of this case in light of the purposes of the exclusionary rule. The exclusionary rule generally bars the State from introducing evidence of the "fruits" of an illegal search or seizure. The rule serves a number of important purposes: to deter misconduct by the police and thereby guarantee the protections provided by the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution to ensure that police do not "profit" from lawless behavior, and to preserve the integrity of the courts by not providing a forum for tainted evidence. [State v. Herrerra, 211 N.J. 308, 330 (2012) (citations omitted).] N.J.S.A. 2C:18-3 states, "A person commits a petty disorderly persons offense if . . . he enters . . . in any place as to which notice against trespass is given by . . . [f]encing or other enclosure manifestly designed to exclude intruders." Illegal activity by the police, such as what occurred here that arguably constituted criminal trespass, should be strongly discouraged. "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." State v. Novembrino, 105 N.J. 95, 101 (1987) (quoting Mapp v. Ohio, 367 U.S. 643, 659 (1961) (quoting Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting))). 11 A-3138-15T3 When seeking to enter the locked entryway to an apartment building, many individuals might legitimately give an officer permission to enter, including any resident of the building or the superintendent.2 Here, the police twice entered through a locked door of an apartment building using a tool specifically intended for forced entries. The experienced officer testified he had forcibly entered buildings in that manner at least twenty times before. Seemingly aware of the impropriety of this method of investigation, the officer did not include his mode of entry in his initial police report. Only after an assistant prosecutor spoke to him six months later did Patrolman Hernandez prepare a supplemental report, acknowledging one forced entry but omitting that he had done so twice. The State concedes a lack of probable cause and thus the futility of seeking a warrant, but justifies the break-ins as being no more intrusive than walking onto a porch after observing a defendant hide drugs. See Johnson, 171 N.J. at 220. 2 The officer testified he looked for the superintendent, who was not listed as a tenant. But cf N.J.A.C. 5:10-11.1(d) ("Unless either the owner or the janitor resides on the premises, the owner of a multiple dwelling or his managing agent in control shall post and maintain in such dwelling a legible sign, conspicuously displayed, containing the janitor's name, address (including apartment number) and telephone number."). 12 A-3138-15T3 We accept that the police may carry a slim jim, or as the assistant prosecutor once referred to it, a "burglary tool," see N.J.S.A. 2C:5-5(a), to assist someone who is inadvertently locked out. We cannot condone the police forcing entry into a locked residential apartment building while on an investigative hunt for suspected criminal activity. Any evidence found after such an invasion of privacy must be suppressed. Reversed. We remand for further proceedings consistent with this opinion and do not retain jurisdiction. 13 A-3138-15T3
STATE FARM GUARANTY INSURANCE COMPANY v. HEREFORD INSURANCE COMPANY
Date: March 14, 2018
Docket Number: a3749-16
STATE OF NEW JERSEY v. PHILIP HOLDEN
Date: March 12, 2018
Docket Number: a0143-16
JUAN D. CAPELLAN-URENA v. DREW DUBIS
Date: March 12, 2018
Docket Number: a1093-16
STATE OF NEW JERSEY v. ERIC KELLEY
Date: March 12, 2018
Docket Number: a1266-17
PAUL J. KENNEDY v. LOCAL FINANCE BOARD
Date: March 12, 2018
Docket Number: a1699-16
STATE OF NEW JERSEY v. JEFFREY W. MCCRAY
Date: March 12, 2018
Docket Number: a2115-16
STATE OF NEW JERSEY v. CARLOS ALVES
Date: March 12, 2018
Docket Number: a2944-15
GEORGE PATTERSON v. CHRISTINE REIDINGER
Date: March 12, 2018
Docket Number: a3089-16
STATE OF NEW JERSEY v. JEFFREY SMITH
Date: March 12, 2018
Docket Number: a3365-16
HELEN TOBIA v. BOARD OF EDUCATION OF LAKEWOOD TOWNSHIP
Date: March 12, 2018
Docket Number: a5336-15
STATE OF NEW JERSEY IN THE INTEREST OF N.P.
Date: March 8, 2018
Docket Number: a0135-17 MESSANO, P.J.A.D. The Code of Juvenile Justice (the Code), N.J.S.A. 2A:4A-20 to -48, grants the Family Part "exclusive jurisdiction in all cases where it is charged that a juvenile has committed an act of delinquency." N.J.S.A. 2A:4A-24(a); see also N.J.S.A. 2A:4A- 23 (defining delinquency as "the commission of an act by a juvenile which if committed by an adult would constitute . . . [a] crime . . . disorderly persons offense or petty disorderly persons offense . . . or . . . violation of any other penal statute, ordinance or regulation"). "One of the 'major hallmarks of the Code' was to provide the newly created, specialized family court with flexibility in juvenile dispositions." State ex rel. C.V., 201 N.J. 281, 295 (2010) (quoting State ex rel. M.C., 384 N.J. Super. 116, 127 (App. Div. 2006)). We have said, "[e]ven with respect to a juvenile charged with conduct that would be a crime if committed by an adult, the overriding goal of the juvenile justice system is rehabilitation, not punishment." State ex rel. S.S., 367 N.J. Super. 400, 407 (App. Div. 2004), aff'd, 183 N.J. 20 (2005). 2 A-0135-17T1 The Court, nevertheless, has emphasized that while "rehabilitation traditionally has been regarded as the overarching objective of statutory schemes addressing juvenile delinquency . . . and . . . rehabilitation remains a primary goal of the . . . Code[,]" the "Code also reflects a correlative emphasis on public safety and deterrence." State ex rel. J.L.A., 136 N.J. 370, 377-78 (1994); compare e.g., N.J.S.A. 2A:4A-21(a) (stating one purpose of the Code is "the care, protection, and wholesome mental and physical development of juveniles"), with N.J.S.A. 2A:4A-21(f) (stating another purpose is to "insure that any services and sanctions for juveniles provide balanced attention to the protection of the community, . . . [and] accountability for offenses committed"). In short, the Code "provides a comprehensive scheme that empowers Family Part judges to tailor dispositions toward aiding and rehabilitating juveniles charged with delinquent acts, while simultaneously ensuring protection of the public from dangerous and/or repetitive juvenile offenders." C.V., 201 N.J. at 285. We granted the State's motions for leave to appeal in these four appeals involving seven different juveniles and now consolidate the appeals in a single opinion. We must construe specific provisions of the Code and our Court Rules that reflect the rehabilitative and deterrent purposes of the Code, and which 3 A-0135-17T1 govern the balance of authority and responsibility between the prosecutor and the court in attempting to achieve those goals. I. Before addressing the legal issues presented, we provide some factual background as to each appeal, all of which are taken from orders entered by the same Family Part judge. 1 State in the Interest of N.P. (A-0135-17) On April 7, 2017, N.P., then sixteen-years old, was a backseat passenger in a car stopped by East Brunswick Police. Upon approaching the car, the officer claimed to have detected the odor of burnt marijuana. Subsequent investigation revealed ten white pills in N.P.'s jacket pocket. He was arrested and charged with unlawful possession of a prescription drug, N.J.S.A. 2C:35-10.5(e)(2), a fourth-degree crime. The prosecutor recommended the complaint proceed to court on the "mandatory counsel calendar." The probation officer assigned to court intake services noted the prosecutor's recommendation and placed the matter on the July 3, 2017 court calendar. 1 The record is essentially limited to the allegations contained in the filed complaints and police reports, and the judge's letters to complaining witnesses. Additionally, in response to two of the State's motions for leave to appeal, the judge provided a comprehensive, supplementary written statement of reasons, see Rule 2:5-6(c), which we greatly appreciate. 4 A-0135-17T1 On June 30, without notice or hearing, the judge entered an order that is the subject of our review. She noted the complaint was referred to court pursuant to N.J.S.A. 2A:4A-71(b) because it charged N.P. with a fourth-degree crime and the prosecutor had not consented to its diversion. However, citing N.J.S.A. 2A:4A-73(a), the judge diverted the complaint to the Juvenile Conference Committee (JCC), noting she was providing a statement of reasons to the complainant "pursuant to N.J.S.A. 2A:4A-73(b)." The letter sent by the judge to the complaining police officer stated this was N.P.'s first involvement with the juvenile justice system, and the offense with which he was charged "resulted in no personal injury or property damage." The judge also identified the "most important factor" in her decision — "the availability of appropriate services outside referral to the court." The judge stated that given the nature of the offenses, even "if th[e] matter were heard in court and [N.P.] plead[ed] guilty . . . , it [was] probable . . . he would be given a deferred disposition." See N.J.S.A. 2A:4A-43(b)(1). She explained that under a deferred disposition, there would be no monitoring or counseling for N.P. However, the JCC could impose "a multitude of creative conditions" and provide "the 5 A-0135-17T1 individualized attention [N.P.] may need." The judge explained that the JCC met in the evening, a more convenient time for all involved, and the officer would be able to attend its meetings. State in the Interest of N.P. (A-0841-17) Now seventeen-years-old, N.P. was arrested again on July 13, 2017, when a Spotswood police officer approached a car in a school parking lot at 11:30 p.m. An adult was in the driver's seat and N.P. was in the front passenger seat. Police allegedly found a small amount of marijuana in the center console and subsequently seized several bags with small traces of marijuana as well as smoking devices. N.P. was charged with possession of marijuana, N.J.S.A. 2C:35-10(a)(4), and possession of drug paraphernalia, N.J.S.A. 2C:36-2, both disorderly persons offenses. On August 15, 2017, the prosecutor screened the case, referred it to the mandatory counsel calendar, and intake services forwarded the complaint to court, noting the prosecutor did not consent to its diversion. On September 12, without notice or hearing, the judge entered the order under review, diverting the complaint to an Intake Services Conference (ISC) pursuant to N.J.S.A. 2A:4A-73(a). The order also noted the complaint alleged disorderly persons violations of chapter 35 of 6 A-0135-17T1 the Criminal Code, and pursuant to N.J.S.A. 2A:4A-71, the prosecutor had not consented to diversion. Upon receiving notice that an ISC conference was set for October 2, the State objected in a letter to probation, noting we had already granted leave to appeal in A-0135-17, and questioning whether intake services had considered the factors listed in N.J.S.A. 2A:4A-71(b) (listing eleven factors "intake services shall consider . . . in determining whether to recommend diversion"). The judge responded in writing, noting that although we had granted leave to appeal the June 30, 2017 order regarding N.P.'s April arrest, we had not stayed proceedings in the Family Part. 2 She further explained that it had been the practice for many years in the vicinage to "escalate cases to the [ISC] when a juvenile incurs a subsequent charge while pending before the [JCC]." "[M]ore importantly," 2 The judge mistakenly concluded she had continuing jurisdiction over the April 2017 complaint against N.P., the subject of A-0135-17. She cited Rule 2:5-6(a), which states "[t]he filing of a motion for leave to appeal shall not stay the proceedings in the trial court . . . except on motion made to the court . . . which entered the order or if denied by it, to the appellate court[,]" and noted we had not entered any stay. However, we granted the State's motion for leave to appeal in A-0135-17 on September 8, 2017, thereby divesting the judge of jurisdiction regarding that complaint. See R. 2:9-1(a) (granting Appellate Division exclusive jurisdiction over all proceedings on appeal). We agree with the judge, however, that we had not exercised any jurisdiction over the July 2017 complaint, which was properly before her. 7 A-0135-17T1 the judge concluded N.P. would benefit from services ISC could put in place while N.P.'s "enrollment to the [JCC] was pending." The judge summarized: "The [c]ourt is confident that its decision to divert the complaint to the [ISC] is in the [j]uvenile's best interests and furthers the purpose of the . . . Code, which is to rehabilitate the [j]uvenile." State in the Interest of D.S. (A-0138-17) On February 23, 2017, sixteen-year-old D.S. entered Colonia High School, where he was not a student, and allegedly participated in two classes before being asked to leave. The State also alleged D.S. posted a recording of his exploits on Twitter and criticized the lax security at the school. Several days later, police arrested D.S. and charged him with fourth- degree criminal trespass, N.J.S.A. 2C:18-3(a). For reasons unexplained by the record, the prosecutor did not screen the complaint until June, and, on June 29, 2017, intake services referred the complaint to court, noting the prosecutor did not consent to diversion. On June 30, once again without a hearing, the judge entered the order under review diverting the case to the JCC pursuant to N.J.S.A. 2A:4A-73(a). The judge sent a letter to the complaining witness, the principal of Colonia High School, noting D.S. was a first time 8 A-0135-17T1 offender whose alleged offense involved no personal injury or property damage. The principal, school security officer and superintendent of schools signed a letter dated July 6, 2017, objecting to the court's diversion order. On July 20, the judge returned the letter because it was an ex parte communication. In her written statement of reasons filed in response to the State's motion for leave to appeal, the judge explained that the State's policy of objecting to diversion was contrary to past practices, since the State had consented to diversion in at least five other cases involving trespass on school property. 3 State in the Interest of A.W., J.D., J.DO., A.S, and J.Z. (A-0308-17) On March 11, 2017, a South River officer stopped a car containing five juveniles because it had a broken taillight. The officer allegedly smelled burnt marijuana coming from the car, and an ensuing investigation revealed a bag with less than fifty grams of marijuana and a pipe. The juveniles, sixteen- year-old A.W., seventeen-year-old J.D., sixteen-year-old J.Do., sixteen-year-old, A.S., and seventeen-year-old J.Z., were arrested and charged with possession of marijuana, N.J.S.A. 3 We do not dispute the judge's statements, except to say the record does not provide information regarding the prosecutor's past practices. 9 A-0135-17T1 2C:35-10(a)(4), and possession of drug paraphernalia, N.J.S.A. 2C:36-2, both disorderly persons offenses. The prosecutor screened the complaints and referred them to court. Noting the prosecutor's recommendation, intake services forwarded the complaints for court action and set a court date of June 26. On that day, the judge held hearings as to each complaint on the record with the prosecutor, defense counsel and the juvenile present. The judge heard from the prosecutor as to why the State refused to consent to diversion and, over the prosecutor's objection, entered an order referring each complaint to the JCC. The State moved for reconsideration, and the judge heard oral argument on August 11. In a comprehensive oral opinion, the judge denied the motion for reconsideration without prejudice. She supplemented her decision in a written statement of reasons filed in response to the State's motion for leave to appeal.4 4 The judge noted that despite supporting the State's motions for leave to appeal in N.P. (A-0135-17) and D.S. (A-0138-17), she opposed the State's motion for leave to appeal in these cases. She explained that because the juveniles in those cases were charged with conduct that would be a crime if committed by an adult, the conflict between Rule 5:20-1(c), requiring the prosecutor's consent to diversion, and N.J.S.A. 2A:4A-73(a), which contained no such requirement, needed to be resolved. (continued) 10 A-0135-17T1 II. Resolution of these appeals turns on the interplay between intake services, the Family Part judge and the prosecutor that the Code and our Court Rules intend. The provisions of N.J.S.A. 2A:4A-70 to -74 were a single bill, A-645, which revise[d] and standardize[d] . . . the processing and handling of juvenile matters prior to involvement by the court, thus permitting some matters to be disposed of outside the courtroom. [Governor's Signing Statement on signing Assembly Bill No. 645 (July 23, 1982).] See also Senate Revenue, Finance and Appropriations Committee, Statement to Assembly Bill No. 645 (Mar. 15, 1982) ("The (continued) However, because all five juveniles in this case were charged with disorderly persons offenses, there was no conflict. While we address the judge's rationale below, we point out that Rule 2:5-6(c) permits the judge to comment on whether the motion for leave to appeal should be granted on the ground, among others, that a controlling question of law not theretofore addressed by an appellate court of this state is involved and that the grant of leave to appeal may materially advance the ultimate resolution of the matter. [(Emphasis added).] The rule is designed to permit the trial judge to alert us to an issue that would benefit from our early intervention, not argue against our involvement. Any reasons for staying our hand would presumably be apparent from the statement of reasons supporting the order. 11 A-0135-17T1 essential purpose of the intake service as provided for in [N.J.S.A. 2A:4A-70 to -74] is to provide for a means whereby less serious matters can be resolved . . . outside the courtroom itself, thereby freeing the court to devote more of its time to serious and violent juvenile offenders."). N.J.S.A. 2A:4A-70(a) mandates, "[e]ach county . . . establish a court intake service" which, pursuant to N.J.S.A. 2A:4A-70(b), "shall make arrangements for the receipt of complaints, on a continuous basis, in situations where the subject of the complaint is a juvenile." The Legislature expressly provided The Supreme Court shall have the authority to issue rules governing the duties, responsibilities, and practices of court intake services as it deems necessary to effectuate the purposes of this act; establish guidelines and procedures for the training of intake services staff . . . . [N.J.S.A. 2A:4A-70(d).] When enacted in 1982, N.J.S.A. 2A:4A-71(b) provided: Every complaint shall be reviewed by court intake services for recommendation as to whether the complaint should be dismissed, diverted, or referred for court action. Where the complaint alleges a crime which, if committed by an adult, would be a crime of the first, second, third or fourth degree, or a repetitive disorderly persons 12 A-0135-17T1 offense,[5] the complaint shall be referred for court action, unless the prosecutor otherwise consents to diversion. [N.J.S.A. 2A:4A-71(b) (1982) (emphasis added).] Section 71(b) also lists eleven factors that intake services "shall consider . . . in determining whether to recommend diversion." Promulgated concurrently with N.J.S.A. 2A:4A-71(b), Rule 5:20-1(c) (the Rule) states Every complaint alleging juvenile delinquency shall be reviewed by court intake services in the manner provided by law for recommendation as to whether the complaint should be dismissed, diverted or referred for further court action. Where the complaint alleges conduct which, if committed by an adult, would constitute a crime as defined by N.J.S.[A.] 2C:1-4a or a repetitive disorderly persons offense as defined by N.J.S.[A] 2A:4A-22(h), the matter shall not be diverted by the court unless the prosecutor consents thereto. [(Emphasis added).] The Rule "was a new provision adopted as part of the Part V revision to comport with N.J.S.[A.] 2A:4A-70 to [-]74, inclusive." Pressler, Current N.J. Court Rules, cmt. 3 on R. 5 "'Repetitive disorderly persons offense' means the second or more disorderly persons offense committed by a juvenile on at least two separate occasions and at different times." N.J.S.A. 2A:4A-22h. 13 A-0135-17T1 5:20-1 (1985); see also State in the Interest of K.A.W., 104 N.J. 112, 119 (1986) (recognizing promulgation of "parallel Rules of Court" with enactment of other sections of the Code). In 1988, the Legislature amended N.J.S.A. 2A:4A-71(b), adding that a complaint alleging "any disorderly persons offense defined in Chapter 35 or Chapter 36 of Title 2C" shall also "be referred for court action, unless the prosecutor otherwise consents to diversion."6 L. 1988, c. 44. The Rule, however, was never amended. N.J.S.A. 2A:4A-73(a) provides without regard to the offense charged that "[t]he court may divert a complaint filed pursuant to [N.J.S.A. 2A:4A-307] to intake conferences or juvenile conference committees[,]" and, "[w]here the complaint alleges a disorderly persons or petty disorderly persons offense the court may dispose of the case as a juvenile-family crisis . . . . The county prosecutor shall be promptly notified of the diversion of a complaint." If the court diverts a complaint charging a juvenile with a crime, "[t]he complainant or victim . . . shall receive a statement as to the reasons for the proposed 6 For the balance of the opinion, we generally refer to the offenses listed in N.J.S.A. 2A:4A-71(b) as "non-divertible offenses." 7 N.J.S.A. 2A:4A-30(a) sets forth the requirements for filing a juvenile delinquency complaint, and subsection (b) does the same for filing a juvenile-family crisis petition by intake services. 14 A-0135-17T1 diversion." N.J.S.A. 2A:4A-73(b). Proceedings before the ISC and JCC are detailed in N.J.S.A. 2A:4A-74 and -75 respectively. We have only addressed the Rule and these statutory provisions once in a published opinion. In State ex rel. N.L., 345 N.J. Super. 25, 33 (App. Div. 2001), we held the mandatory license suspension or postponement required upon adjudication for a violation of N.J.S.A. 2C:33-3.1a (false alarms) did not apply to a juvenile who successfully completed a period of adjustment pursuant to a deferred disposition, N.J.S.A. 2A:4A- 43b(1). We noted in a footnote that the juvenile applied for diversion, but the prosecutor objected "apparently pursuant to [the Rule]." Id. at 33-34 n.4. We specifically did "not reach or address . . . whether application of N.J.S.A. 2A:4A-73 or other principles of law would have permitted diversion of this complaint by the Family Part notwithstanding the prosecutor's objection." Ibid. With this framework in mind, we return to the issues presented in these appeals. III. The State argues that the statutory scheme is clear. Whenever a juvenile is charged with a non-divertible offense, the complaint may not be diverted unless the prosecutor consents. Since the juveniles in these appeals were all charged 15 A-0135-17T1 with non-divertible offenses, and the prosecutor refused to consent to diversion, the judge erred by diverting any of the complaints. The judge expressed a different view of the Code and the Rule in her decisions. Where the juvenile was charged with conduct that if committed by an adult would be a crime, (as in A-0135-17 and A-0138-17), the judge reasoned that although N.J.S.A. 2A:4A-71(b) (Section 71) required intake services to refer the complaint to court because the prosecutor had not consented to diversion, N.J.S.A. 2A:4A-73(a) (Section 73) "vest[ed] the trial court with the ability to divert the complaint to the JCC." She stated, "it would be in the interests of justice to vest the juvenile judge, and not the prosecutor's office, with the discretion to divert complaints," and would further the court's parens patriae obligations. The judge further explained that if the Rule gave the prosecutor "unfettered discretion" to decide which complaints to divert, it would conflict with Section 73, which vested the responsibility for that decision with the court. She further concluded that interpreting the Rule as the State urged was inconsistent with Section 73's plain language and "would mean there [were] no checks and balance[s] on the State's powers. For example, there would be no way to stop the 16 A-0135-17T1 State from arbitrarily deciding to divert only non-minority complaints, or those complaints from one municipality." The judge also reasoned that if the State could unilaterally refuse to consent to diversion, juveniles would be forced to retain counsel, thereby frustrating, in part, the purpose of diversion. Regarding the five juvenile complaints that are the subject of A-0308-17, the judge concluded she acted in accordance with Section 73. She noted that intake services scheduled the cases for court, the juveniles were present with counsel and the prosecutor was given an opportunity to be heard. The judge concluded the Rule did not apply because, by its terms, it was inapplicable to complaints charging disorderly persons offenses, except repetitive disorderly persons offenses. 8 A.S. is the only juvenile to file opposition to the State's appeals.9 A.S. agrees with the judge's reasoning and argues that Section 73 and the Rule permit the judge to divert a complaint 8 In the second appeal regarding N.P. (A-0841-17), the judge did not provide a statement of reasons in her letter to the prosecutor. Since that complaint also charged the juvenile with disorderly persons offenses under Title 35 and Title 36, we assume the judge applied the same rationale in reaching her diversion decision. 9 Counsel for A.S. relied on his brief opposing the State's motion for leave to appeal and did not file a separate merits brief. 17 A-0135-17T1 charging a juvenile with Title 35 and Title 36 disorderly persons offenses without the consent of the prosecutor. A. In construing any statute, "[o]ur task . . . 'is to discern and give effect' to the Legislature's intent." State v. Munafo, 222 N.J. 480, 488 (2015) (quoting State v. O'Driscoll, 215 N.J. 461, 474 (2013)). "To begin, we look at the plain language of the statute." Ibid. (citing State v. Frye, 217 N.J. 566, 575 (2014); DiProspero v. Penn, 183 N.J. 477, 492 (2005)). "[T]he words chosen by the Legislature should be accorded their ordinary and accustomed meaning." State v. Hudson, 209 N.J. 513, 529 (2012). "[I]f a statute's plain language is ambiguous or subject to multiple interpretations, the Court 'may consider extrinsic evidence including legislative history and committee reports.'" Frye, 217 N.J. at 575 (quoting State v. Marquez, 202 N.J. 485, 500 (2010)). "When, as here, two related statutes are relevant to the disposition of a matter, they 'should be read in pari materia and construed together as a unitary and harmonious whole.'" State v. Nance, 228 N.J. 378, 395 (2017) (quoting Nw. Bergen Cty. Utils. Auth. v. Donovan, 226 N.J. 432, 444 (2016)). 18 A-0135-17T1 B. Section 71 mandates that all complaints charging a juvenile with a non-divertible offense "shall be referred for court action." (Emphasis added). "[T]he Legislature's choice of the word 'shall,' [ ] is ordinarily intended to be mandatory, not permissive." State v. Bolvito, 217 N.J. 221, 230 (2014) (quoting Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 587-88 (2013)). Therefore, since every complaint in these four appeals charged non-divertible offenses, and the prosecutor did not "otherwise consent[] to diversion," each complaint should have been heard by the judge in open court. The judge did not follow this procedure in the appeals involving N.P., and in the appeal involving D.S. Simply put, the statute does not permit the judge, without notice or hearing, to enter an order diverting a non-divertible complaint, unless the prosecutor has already consented to diversion. Interpreting Section 73 to allow a judge to unilaterally divert complaints charging non-divertible offenses, as the judge did here with respect to N.P. and D.S., would simply negate both the Legislature's express directive that the complaint "shall be referred for court action," and the procedure adopted by the 19 A-0135-17T1 Court in the Rule.10 The Legislature has decided which offenses are less serious matters to be resolved "outside the courtroom itself," and which offenses are serious enough to require court action, unless the prosecutor otherwise consents. Senate Revenue, Finance and Appropriations Committee, Statement to Assembly Bill No. 645 (Mar. 15, 1982). While a judge is free to disagree with the Legislature's decision that the nature of non-divertible offenses requires disposition in a courtroom unless the prosecutor otherwise consented, a "court must construe and apply a statute as enacted." State v. Lenihan, 219 N.J. 251, 262 (2014) (citing In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)). C. Because the judge held hearings in open court as to all five juvenile orders that are the subjects of A-0308-17, this procedural miscue as to N.P. and D.S. does not resolve the most 10 In this county, as in many, the prosecutor has already screened the complaint. Complaints charging non-divertible offenses must be forwarded for court action as required by Section 71, unless the prosecutor "otherwise consents" to diversion. The Court has recognized that in the juvenile realm, the prosecutor's charging decision has "added significance[,]" transforming the State's role "from investigative to accusatory." State ex rel. P.M.P., 200 N.J. 166, 177 (2009). We therefore reject any contention that the judge's unilateral entry of a diversion order, without notice to the State and an opportunity to be heard, is the "court action" envisioned by Section 71 or the Rule. 20 A-0135-17T1 important issue before us. Essentially, in every appeal, the judge concluded Section 73 vested the court, not the prosecutor, with the ultimate authority to divert a juvenile complaint, regardless of the offense charged. In part, the judge reasoned Section 73 was inconsistent with the Rule, and, by entering the orders under review in the two appeals where the juveniles are charged with crimes (A-0135- 17 and A-0138-17), she expressly concluded the statute trumped the Rule. In the two appeals where the juveniles are charged with disorderly persons offenses under Titles 35 and 36 of the Criminal Code (A-0308-17 and A-0841-17), the judge concluded the Rule simply did not apply and her authority under Section 73 was unfettered. As noted, the Rule expressly prohibits diversion without the consent of the prosecutor if a juvenile is charged with a crime or repetitive disorderly persons offense. The Rule is entirely consistent with the State's position that when the complaint charges these particular non-divertible offenses, the prosecutor must consent to diversion. If the complaint charges the juvenile with a crime, the Court has clearly stated "the prosecutor's consent is needed before the court may divert the complaint." P.M.P., 200 N.J. at 177 (emphasis added) (citing R. 5:20-1(c)). At least with respect to crimes and repetitive 21 A-0135-17T1 disorderly persons offenses, any inconsistency between the Rule and Section 73 results solely from the judge's conclusion that the court may divert any complaint, regardless of the offense charged, without the prosecutor's consent. Furthermore, even if one accepted the proposition that the Rule conflicts with Section 73, the Rule controls. It is long settled that the Court's rulemaking power, when applied to matters of practice and procedure, is "not subject to overriding legislation." Winberry v. Salisbury, 5 N.J. 240, 255 (1950); see also In re Pfizer's Estate, 6 N.J. 233, 236 (1951) (holding "the Constitution of 1947 . . . vests in the Supreme Court exclusively the rulemaking power . . . with respect to practice and procedure in all the courts."). We have explained that "[u]nder . . . Winberry . . . and In re Pfizer's Estate . . . , an inconsistency that may appear in matters of procedure between the provisions of [a] statute[] and [a] rule promulgated by the Supreme Court is resolved in favor of the supremacy of the court rules." State v. Ahrens, 25 N.J. Super. 201, 206 (App. Div. 1953); see also Borough of New Shrewsbury v. Block 115, Lot 4, 74 N.J. Super. 1, 8-9 (App. Div. 1962) (same). Commenting on Winberry, Justice Zazzali explained "[i]f the statute in question involves procedural as opposed to substantive rights, the court rule . . . prevails." Ferreira v. 22 A-0135-17T1 Rancocas Orthopedic Assocs., 178 N.J. 144, 161 (2003) (Zazzali, J., concurring in part and dissenting in part). "In general terms, '[s]ubstantive law defines the parties' rights and duties, whereas procedural law regulates the means through which those rights and duties are enforced." New Jersey State Bar Ass'n v. State, 387 N.J. Super. 24, 48 (App. Div. 2006) (quoting Ferreira, 178 N.J. at 162 (Zazzali, J., concurring in part and dissenting in part)). "[A] 'procedural rule' [i]s 'one step in the ladder to final determination and [which] can effectively aid a court function.'" Williams v. State, 375 N.J. Super. 485, 510 (App. Div. 2005) (quoting Suchit v. Baxt, 176 N.J. Super. 407, 427 (Law Div. 1980)). Here, we deal with a procedural matter, i.e., whether a juvenile complaint charging a crime or repetitive disorderly persons offense may be diverted without the prosecutor's consent. The Legislature enacted those provisions of the Code that deal with intake services, N.J.S.A. 2A:4A-70 to -74, "to revise and standardize court intake service procedures in the juvenile system." Sponsor's Statement to Assembly Bill No. 645 (January 19, 1982). The Legislature specifically left it to the Court to enact appropriate Rules to effect that goal. N.J.S.A. 2A:4A-70(d). "Part V of the Rules of Court was adopted . . . to govern the practice and procedure in the . . . Family Part, 23 A-0135-17T1 created with constitutional status in December 1983 when the former juvenile and domestic relations courts were abolished and to which the jurisdiction of those courts was transferred." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 5:1-1 (2018) (emphasis added). The judge erred in concluding Section 73 permitted her to divert juvenile complaints alleging crimes without the prosecutor's consent. As a result, we reverse and vacate the orders in A-0135-17 and A-0138-17. We remand those matters to the Family Part for further proceedings. D. There remains one more issue to address, and that is the failure to include Title 35 and 36 disorderly persons offenses in the Rule, even though they were added to Section 71 by the Legislature in 1986. The State contends this is mere oversight. The judge, however, specifically concluded that because those offenses were not included in the Rule, the express language of Section 73 permitted her to divert the complaints without the prosecutor's consent. We agree with the judge. Section 71 requires that intake services "refer[] for court action" any complaint charging a Title 35 or 36 disorderly persons offense unless the prosecutor consents to diversion. N.J.S.A. 2A:4A-71(b). The statute only limits the authority of 24 A-0135-17T1 intake services. No section of the Code limits the authority of the judge to divert the complaint after it is referred for court action. Indeed, without mention of the prosecutor's role, Section 73 vests the judge with the discretionary authority to divert any juvenile complaint. N.J.S.A. 2A:4A-73(a). Nor does the Rule, which governs the procedure to be followed once the complaint is referred to court, limit the judge's authority to divert a complaint charging a Title 35 or 36 disorderly persons offense. Inadvertence may be, as the State contends, the only reason why Title 35 and 36 disorderly persons offenses are not contained in the Rule. However, "[t]he approach taken in respect of the construction of court rules is the same as that for the construction of statutes." State v. Clark, 191 N.J. 503, 508 (2007) (citations omitted). The plain language of the Rule only prohibits the judge from diverting a juvenile complaint charging a crime or repetitive disorderly persons offense without the prosecutor's consent.11 As a result, we affirm the orders entered in A-0308-17. Even though our reasoning in this part of the opinion would apply to the second appeal involving N.P., A-0841-17, because 11 We respectfully refer further consideration of this issue to the Supreme Court's Committee on Practice in the Family Court. 25 A-0135-17T1 the juvenile was charged in the underlying complaint with only Title 35 and 36 disorderly persons offenses, we nevertheless reverse and remand in that appeal. First, the judge never accorded the State a hearing in that matter before diverting the complaint. Second, because we are reversing in A-0135-17, involving the same juvenile, and holding that the judge may not divert that complaint without the prosecutor's consent, we believe it prudent to have the judge accord the State and defense counsel an opportunity to be heard before any further action is taken. Reversed and remanded in A-0135-17, A-0138-17 and A-0841- 17; affirmed in A-0308-17. We do not retain jurisdiction. 26 A-0135-17T1
EMPOWER OUR NEIGHBORHOODS v. KIMBERLY GUADAGNO
Date: March 8, 2018
Docket Number: a0330-15 ALVAREZ, P.J.A.D. For the reasons that follow, we affirm Judge Mary Jacobson's thorough and well-reasoned August 7, 2015 decision awarding counsel fees to plaintiff Empower Our Neighborhoods (EON), an advocacy group, in this election matter. She apportioned the $105,063.80 award as follows: fifty percent or $52,531.90 payable by defendant State of New Jersey; twenty 4 A-0330-15T3 percent or $21,012.76 payable by the City of New Brunswick on behalf of defendant City Clerk Daniel Torrisi; twenty percent or $21,012.76 payable by Middlesex County on behalf of defendant County Clerk Elaine Flynn; and ten percent or $10,506.38 payable by the New Brunswick Board of Education on behalf of its secretary, defendant Richard Jannarone.1 All defendants appeal. As Judge Jacobson explained, this litigation "buil[t] on" the October 17, 2007 agreement reached with the State in another consequential election case, Green Party of New Jersey; New Jersey Conservative Party; and New Jersey Libertarian Party, Inc. v. State of New Jersey, Division of Elections and Anne Milgram, Attorney General of New Jersey, Docket No. C-125-06. The consent order in that case states: "the provisions in N.J.S.A. 19:13-5 and 19:13-7 which, when read together, require a person certifying the signatures on a direct nominating petition to be a legally qualified voter residing within the district in which the nominee is seeking office [are] hereby declared to be void and unenforceable." The consent order committed the State to make available, through the Division of Elections, revised direct nomination 1 We refer to Torrisi, Flynn, and Jannarone collectively as the non-State defendants. 5 A-0330-15T3 petition forms by December 31, 2007.2 The order cited to Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) as the binding precedent requiring modification of the statutory residency requirement. EON, by way of complaint and amended complaint, sought to eliminate the district residency, age, and voter registration requirements in an expanded universe of election activities: for recall petitions, petitions nominating independent candidates in general elections, the selection of candidates from local parties, and Board of Education members. On March 31, 2014, Judge Jacobson decided the matter on motions and cross-motions for summary judgment by all the parties, including the Democratic and Republican State Committees who "participated in the case as defendants pursuant to court order." She partially granted EON's motion by eliminating the in-district residency requirement, finding it unconstitutional. The judge denied EON's request that petition circulators need not be voter-eligible——circulators continued to be required to be over eighteen, citizens, and New Jersey residents. The judge also denied EON's request that circulators in partisan 2 The non-State defendants denied knowledge of the consent order or of being notified of the consent order. 6 A-0330-15T3 primary elections not be required to be registered voters of the relevant party.3 EON's success in this litigation, the judge observed, "changed the landscape of election law in New Jersey," as "all 5.88 million registered voters in New Jersey now ha[d] expanded petition rights." [T]he available petition circulator base is [now] about [eleven] times higher in Bergen County, the largest jurisdiction in New Jersey, . . . . In New Brunswick, . . . the available circulator base has been expanded by 248 times with regard to Independent candidates, by 208 times with regard to Democratic candidates, and by 1115 times with regard to Republican candidates. At the close of the case, EON was awarded counsel fees pursuant to 42 U.S.C. § 1983 and § 1988, and the New Jersey Civil Rights Act (the Act), N.J.S.A. 10:6-2(f). After the defendants filed the appeal, the State sought a brief remand to the trial court, alleging it had discovered a form letter circulated to local governments disclosing the Green Party settlement. The State had not previously been able to produce any proof of efforts to communicate the terms of the Green Party order to the affected entities. 3 On December 26, 2014, the Legislature amended N.J.S.A. 19:13-7 to require petition circulators to only be voter-eligible. 7 A-0330-15T3 On remand, Judge Jacobson was unconvinced the letter satisfied the State's Green Party obligations and constitutional requirements. She found that since as late as 2011, four years after the Green Party consent order was signed, the State continued to promulgate model forms inconsistent with Buckley, the State was not entitled to modification of the award. Even in 2012, the State's website had posted a recall petition form that was "inconsistent with Buckley." The judge also found that the State's letter did not adequately explain the unconstitutionality of local district residency requirements. Despite the communication, "the State did not ensure that all the model forms it promulgated and continued to promulgate after the Green Party consent order were completely consistent with the Buckley decision." The State now asserts on appeal: POINT I STATE DEFENDANTS ARE NOT LIABLE FOR ATTORNEY'S FEES OR COSTS AWARDED TO EON BECAUSE EON DID NOT PREVAIL ON ITS CLAIMS AGAINST STATE DEFENDANTS AND STATE DEFENDANTS WERE NOT RESPONSIBLE FOR THE FEES INCURRED BY EON AS A RESULT OF THE MUNICIPAL DEFENDANTS' RESIST[A]NCE TO THEIR CLAIMS A. Prevailing Party Is Entitled Only to Reasonable Attorney's Fees. B. The Lodestar Amount Should Be Reduced to Reflect EON's Lack of Success. 8 A-0330-15T3 C. State Defendants Should Not Be Responsible for Any Fees and Costs Incurred After the Complaint Was Filed as That Complaint Put the Municipal Defendants on Notice of the 2007 Green Party Consent Order. D. The State Defendants[] Should Not Be Held Accountable for the Litigation Conduct of the Municipal Defendants. E. The Municipal Defendants' Conduct Prolonging the Litigation Requires an Increase in The Amount of Fees and Costs Allocated to Them. POINT II THE COURT SHOULD SUBSTANTIALLY REDUCE EON'S APPLICATION FOR ATTORNEY'S FEES AND COSTS BECAUSE IT DID NOT PREVAIL ON ANY MAJOR ISSUE AFTER THE ISSUANCE OF THE COURT'S OCTOBER 3, 2012 PRELIMINARY INJUNCTION Flynn contends: POINT I THE TRIAL COURT ERRED IN IMPOSING MONELL[4] LIABILITY ON DEFENDANT FLYNN, IN HER OFFICIAL CAPACITY, AND ON THE COUNTY, BECAUSE THE DISTRICT RESIDENCY REQUIREMENT LANGUAGE IN THE SUBJECT STATE STATUTES AND RELATED STATE PETITION CIRCULATOR FORMS WERE NOT A MUNICIPAL POLICY OF FLYNN OR OF THE COUNTY WITHIN THE MEANING OF MONELL. POINT II ASSUMING ARGUENDO THE JUDGMENT AGAINST FLYNN IS NOT REVERSED, IN THE CIRCUMSTANCES OF THIS CASE, THE ALLOCATION OF REASONABLE ATTORNEYS' FEES AND COSTS IS UNREASONABLE, ARBITRARY, AND AN ABUSE OF DISCRETION. Torrisi argues: 4 Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). 9 A-0330-15T3 POINT I BECAUSE EON'S HARM WAS CAUSED BY AN UNCONSTITUTIONAL STATE STATUTE AND NOT A MUNICIPAL POLICY OF CUSTOM, THE TRIAL COURT ERRED IN HOLDING THE CITY CONSTITUTIONALLY LIABLE FOR COUNSEL FEES. A. A Local Government Can Only Be Found Constitutionally Liable If It Affirmatively Adopts a Policy Or Custom Which Is the Moving Force Behind the Plaintiff's Constitutional Deprivation. 1. Monell Applies to EON's claims brought under the New Jersey Constitution and the NJCRA. 2. A Municipal Government's Enforcement Of A Nondiscretionary State Statute Later Deemed Unconstitutional Does [Not] Give Rise To Municipal Government Liability Under Monell. B. Because EON's Constitutional Harm Arises From State Statutes And Not A Municipal Policy, The Trial Court Erred In Finding The City Constitutionally Liable Under Monell. C. Since The City Is Not Constitutionally Liable Under Monell, EON Is Not Entitled To Counsel Fees Against The City. POINT II ALTERNATIVELY, EVEN IF THE CITY IS CONSTITUTIONALLY LIABLE FOR COUNSEL FEES UNDER MONELL, THE TRIAL COURT'S ALLOCATION OF COUNSEL FEES WAS ARBITRARY AND UNREASONABLE. Jannarone asserts: I. THE TRIAL COURT ERRED IN AWARDING PERCENTAGE PAYMENT OF PLAINTIFF'S COUNSEL 10 A-0330-15T3 FEES BY DEFENDANT, RICHARD JANNARONE, INDIVIDUALLY AND AS BOARD SECRETARY OF THE NEW BRUNSWICK BOARD OF EDUCATION, HAVING FOUND THAT STATUTORY PROVISIONS REQUIRING PETITION CIRCULATORS TO RESIDE IN DISTRICT OF THE OFFICE FOR WHICH THEY SEEK TO CIRCULATE PETITIONS TO BE UNCONSTITUTIONAL. II. THE DECISION OF THE TRIAL COURT TO AWARD TEN (10%) PERCENT PAYMENT OF PLAINTIFF'S COUNSEL FEE BY DEFENDANT, RICHARD JANNARONE, INDIVIDUALLY AND AS BOARD SECRETARY OF THE NEW BRUNSWICK BOARD OF EDUCATION, WAS ARBITRARY, CAPRICIOUS AND SHOULD BE REVERSED. I. A prevailing party can recover counsel fees if expressly allowed by statute, court rule, or contract. The extent of such awards rests within the sound discretion of the trial judge, reviewable under an abuse of discretion standard. Packard- Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001). "[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Id. at 444 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). A prevailing party in § 1983 litigation may be allowed "a reasonable attorney's fee." 42 U.S.C. § 1988(b). Indeed, § 1988, titled "The Civil Rights Attorney's Fees Award Act of 1976," is designed to ensure "effective access to the judicial process" for persons with civil rights grievances. H.R. REP. NO. 11 A-0330-15T3 94-1558, at 1 (1976). Although the decision to award fees is described as discretionary, "it was clearly the intent of Congress in passing section 1988 that fees be awarded as a matter of course." Gregg v. Twp. Comm. of Twp. of Hazlet, 232 N.J. Super. 34, 37 (App. Div. 1989). Section 1988 ensures that those who may not be able to purchase legal services on the open market are nonetheless represented in order to vindicate their civil rights. Tumpson v. Farina, 218 N.J. 450, 479 (2014); New Jerseyans for a Death Penalty Moratorium v. Dep't of Corr., 185 N.J. 137, 153 (2005). Thus, a "prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citation omitted). "[A] party can be considered 'prevailing' for [these] purposes . . . even though the disposition of the case does not include a final judgment entered in plaintiff's favor, provided plaintiff has won substantially the relief originally sought in her [or his] complaint." Singer v. State, 95 N.J. 487, 495 (1984) (second alteration in original) (citation omitted). The Act, the State's counterpart to the federal statute, also contains a fee-shifting provision, N.J.S.A. 10:6-2(f). It states: "In addition to any damages, civil penalty, injunction 12 A-0330-15T3 or other appropriate relief in an action . . . the court may award the prevailing party reasonable attorney's fees and costs." Plaintiffs can recover counsel fees under our fee- shifting statute even "if the lawsuit 'achieves the desired result because [it] brought about a voluntary change in the defendant's conduct.'" D. Russo, Inc. v. Twp. of Union, 417 N.J. Super. 384, 389 (App. Div. 2010) (alteration in original) (quoting Mason v. City of Hoboken, 196 N.J. 51, 72 (2008)). II. We first address the issue of whether the imposition of liability for fees on the municipal defendants was proper. In Monell, the United States Supreme Court expanded the scope of 42 U.S.C. § 1983 to include municipalities and local governments. 436 U.S. at 690. Liability is limited to instances in which a municipal official is executing a "government's policy or custom." Id. at 694. Liability is not imposed on the municipality merely because it employed a tortfeasor, rather, liability requires official policies and actions that amount to a constitutional tort. Id. at 691. In order to assess liability under 42 U.S.C. § 1983, two factors are considered: "(1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation." Collins v. City of Harker 13 A-0330-15T3 Heights, 503 U.S. 115, 120 (1992). In this case, it is undisputed that the residency restrictions enforced by the municipalities post-Buckley caused a constitutional tort. The non-State defendants contend that the trial court erred in imposing Monell liability because Middlesex County, New Brunswick, and the Board of Education were merely enforcing state, not municipal, policy by the use of outdated circulator forms. Flynn also asserts that in order for the action of a municipal official to come within the scope of Monell liability, there must be evidence that the municipal officer, or municipality, consciously elected to enforce an unconstitutional statute, rather than merely following a statute that it was obligated to enforce. Torrisi and Jannarone echo the argument. Judge Jacobson found the non-State defendants liable because "the state election statutes provide that clerks are the election officials responsible for certifying the results of petitions—not the State" and, therefore, defendants were "not without some fault." She relied on the analysis found in decisions from the First, Eighth, and Ninth Federal Circuits, holding that "enforcement authority over unconstitutional statutes is a sufficient basis to assess liability to officials responsible for enforcing laws they did not themselves create." The non-State defendants cite contrary opinions from the Second, 14 A-0330-15T3 Fourth, Fifth, Seventh, and Tenth Circuits. Those cases, however, are factually distinguishable. In contrast with the cases the non-State defendants cite, they knowingly exercised enforcement authority over laws that, after Buckley, were unconstitutional. Judge Jacobson commented: the municipal defendants [] participated in this litigation, choosing to defend the constitutionality of many aspects of the election statutes at issue. Consequently, . . . Torrisi, Flynn, and Jannarone were [not] mere pawns of the State, enforcing a statutory scheme without discretion. Furthermore, even if . . . the State's actions contributed to a greater degree to the constitutional problem leading to this litigation, that [] does not excuse the municipal defendants from liability—it is simply an argument in favor of diminishing the amount of their liability for counsel fees compared to the State . . . . The knowing enforcement of unconstitutional provisions in the law is a proper basis for liability. Morillo v. Torres, 222 N.J. 104, 118 (2015) (citing Connor v. Powell, 162 N.J. 397, 409 (2000)). It is in keeping with the notion that access to reasonable awards of counsel fees makes it more likely that persons with civil rights grievances will rightly turn to the courts for redress. Hensley, 461 U.S. at 429; Laudert v. Richland Cty. Sheriff's Dep't, 7 P.3d 386, 399 (Mont. 2000) ("[G]enerally, there is agreement that without an attorney's fee 15 A-0330-15T3 award for successful litigants, meritorious civil rights litigation often would not be brought." (citation omitted)). To be precise, municipal clerks determine if a recall petition complies with the statutory requirements. See N.J.S.A. 19:27A-11. Petitions in a general election are valid only if found by the clerk to conform to the statutory scheme. See N.J.S.A. 19:13-10. Municipal clerks are also responsible in primary elections to certify names and addresses, political party, and slogans to the county clerks, who in turn convey the information to the Election Law Enforcement Commission (ELEC). See N.J.S.A. 19:23-14. In other words, municipal clerks are responsible for more than mere passive collection and transmission of petitions——they actually exercise independent judgment in scrutinizing petitions submitted to them in order to assess compliance with the law as understood by the municipalities. This is also the case for Board of Education clerks.5 Jannarone facilitated the use of the nominating petition that was found to be unconstitutional pursuant to Green Party. 5 The Board of Education became an elected board in 2011. The Board Secretary is specifically responsible for conducting annual board elections, including the issuance of voter petitions. 16 A-0330-15T3 Thus, the harm caused by the enforcement of invalid State requirements imposed upon petition circulators is one for which the non-State defendants were responsible. The local governments certified the results, and their employees were charged with carrying out those policies, regardless of who the individuals may have been. Hence the non-State defendants cannot escape Monell liability. Although the non-State defendants are less culpable than the State, that does not permit them to escape responsibility for their fair share of counsel fees. We are not bound by a trial court's evaluation of the legal implications of facts where credibility is not an issue. Allstate Ins. Co. v. Northfield Med. Ctr., P.C., 228 N.J. 596, 619 (2017). But in this case, our de novo review leads us to conclude Judge Jacobson's imposition of Monell liability was proper. III. The non-State defendants also contend the judge was arbitrary and unreasonable in her apportionment of counsel fees, and that the State should have been responsible for more than half. In addition, Jannarone argues that ten percent was too great a percentage to be imposed upon the Board of Education given that it was added to the litigation late in the 17 A-0330-15T3 proceedings. There is no doubt that trial courts have "wide discretion on how to divide liability." Swan v. Daniels, 917 F. Supp. 292, 301 (D. Del. 1995). Given the absence of New Jersey authority on the subject, the judge followed federal precedent. There are two approaches to this issue in the federal courts. Fees can be divided according to the relative culpability of the defendants, or based on the amount of time necessary to litigate as to each. See, e.g., Council for Periodical Distribs. Ass'ns v. Evans, 827 F.2d 1483, 1487-88 (11th Cir. 1987); S.E. Legal Defense Grp. v. Adams, 657 F.2d 1118, 1125-26 (9th Cir. 1981). Depending on the circumstances of the individual case, a combination of these methods can be appropriate. See Council, 827 F.2d at 1488. That is the hybrid method employed by the judge here, ultimately guided by the need to apportion the fees in an equitable manner. The judge focused on the nature of the injury and the role each defendant played in its infliction. If claims are centered on common issues but are divisible, the fees should be apportioned to ensure no defendant is liable for more than actually incurred in proceeding against him. Jones v. Espy, 10 F.3d 690, 691 (9th Cir. 1993). It is reasonable, as the trial court observed, to assess fees as between the "active instigator of a wrong and a more passive codefendant who had a more 18 A-0330-15T3 peripheral or ministerial role." Herbst v. Ryan, 90 F.3d 1300, 1305 (7th Cir. 1996). Because the State entered into the Green Party consent order, and then failed to correct the petition forms circulated to the municipalities, it bore the principal burden in light of equitable principles for payment of EON's counsel fees. However, Middlesex County and New Brunswick were also at fault, since "each distributed petitions containing unconstitutional language." The Board of Education was added to the litigation in the second amended complaint, which meant that the time EON spent litigating against it was far less than the time invested in pursuing claims against Middlesex County or New Brunswick. We see nothing arbitrary or capricious about the allocation here. It combined the level of responsibility of each entity, as well as the time invested in the case, reaching an equitable outcome. The apportionment of counsel fees is never a precise calculation, never the result of a "universal" method. Herbst, 90 F.3d at 1304. But it was not an abuse of discretion. See Packard-Bamberger, 167 N.J. at 443-44. Finding no abuse of discretion, that aspect of the order is also affirmed. IV. The State contends that it should not be responsible for counsel fees since EON did not prevail on all its claims. The 19 A-0330-15T3 State also contends that since the non-State defendants were on notice of the Green Party consent order, they alone are at fault. Additionally, the State asserts it should not be held responsible for any portion of the litigation costs attributable to the other governmental agencies' "litigation conduct." "[P]laintiffs may be considered prevailing parties for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley, 461 U.S. at 433 (citation omitted) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). A plaintiff must "receive[] a judgment on the merits or obtain[] a court-ordered consent decree[]" in order to be deemed a "prevailing party" for purposes of the fee- shifting provision contained in 42 U.S.C. § 1988. Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 605 (2001). Clearly, EON did not succeed on all its causes of action. Judge Jacobson denied EON's request to eliminate the in-state residency requirement, and the voter eligibility requirement, including age, citizenship status, and freedom from any other prohibition. However, EON obtained a preliminary injunction declaring the district residency requirements of N.J.S.A. 19:13-7, N.J.S.A. 19:60-7, N.J.S.A. 19:27A-8(h), and N.J.S.A. 20 A-0330-15T3 19-27A-9(a) were unconstitutional under both the State and United States Constitutions. Just because EON failed at prevailing on all of its claims does not diminish the significance of its success on most. See Hensley, 461 U.S. at 435-39. Accordingly, the trial court did not abuse its discretion when it found that EON was a "prevailing party" against the State defendants for the purpose of awarding counsel fees. As Judge Jacobson put it, the decision expanded the petition rights of 5.88 million registered voters in New Jersey. Nonetheless, she reduced fees in light of EON's failure to prevail on each and every issue. The court also took into account the time spent in pursuing the issues against the individual parties. EON is a prevailing party in light of the success it enjoyed in this suit. Kaye v. Rosefielde, 432 N.J. Super. 421, 486 (App. Div. 2013) (quoting R.M. v. Supreme Court of N.J., 190 N.J. 1, 9-10 (2007)), rev'd in part, 223 N.J. 218 (2015). The award against the State was not an abuse of discretion. V. Because the non-State defendants proceeded in the litigation despite being on notice of the unconstitutionality of the petition forms at issue, the State argues that it should not 21 A-0330-15T3 be held liable for attorney's fees. The municipalities alone should be responsible for legal fees. To the contrary, the State's failure to disseminate properly amended forms after the Green Party consent order was a very substantial constitutional harm that justifies the imposition of liability for half the legal fees. But for the State's failure to comply with its Green Party obligations, the litigation would theoretically have been unnecessary. The State now argues it should not be held responsible for the non-State defendants' continued litigation of the issues. We repeat: but for the State's failure to follow through on its commitment, no litigation would have been necessary. VI. Finally, the State objects to the amount awarded and the trial court's method of calculation. This argument too lacks merit. The court exhaustively examined the fee application, citing to the law requiring this close examination in order to assess reasonable attorney's fees. First the judge set the lodestar, the "number of hours reasonably expended multiplied by a reasonable hourly rate." Rendine, 141 N.J. at 335; R. 4:42-9(b); R.P.C. 1.5(a). She adjusted the hourly rate downward, based on the norm in Mercer County. She observed that the litigation required familiarity 22 A-0330-15T3 with "somewhat archaic aspects of New Jersey election law, complex areas of constitutional law, and review of the large body of federal and state law." The judge also took into account the fact that EON did not entirely succeed. But, the significant overall success achieved justified EON being awarded a substantial portion of the amount requested. The judge deducted from the lodestar hours the time spent by counsel in unsuccessfully litigating the second preliminary injunction request. When determining the appropriate amount of a counsel fee award, the court should award fees "to the extent that the litigant was successful." Washington v. Phila. Cty. Court of Common Pleas, 89 F.3d 1031, 1042 (3d Cir. 1996). In pinpointing the degree of success, the court should focus on the "overall relief obtained," and if "the plaintiff achieve[d] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award." Hensley, 461 U.S. at 434. Once that value judgment is made, the court may decide not to reduce the award to account for limited success. Put another way, it is not "necessarily significant that a prevailing plaintiff did not receive all the relief requested," as "a plaintiff who failed to recover damages but obtained injunctive relief, or vice versa, may recover a fee award based on all hours reasonably expended if 23 A-0330-15T3 the relief obtained justified that expenditure of attorney time." Id. at 435 n.11. However, a reduction is appropriate "if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." Id. at 440. If the court determines that an adjustment of the award is required to account for partial success, the court has discretion to exclude the number of hours spent litigating unsuccessful claims, to reduce the entire award, to account for limited success, or to combine both methods. See Rode, 892 F.2d at 1183 (excluding the number of hours spent litigating claims on which the party did not succeed); Washington, 89 F.3d at 1042 (reducing the overall award to account for limited success); Blakey v. Continental Airlines, Inc., 2 F. Supp. 2d 598, 605-07 (D.N.J. 1998) (reducing the lodestar hours and generally reducing the lodestar to reflect lack of success). These steps were precisely those taken by the court. The judge also granted EON $9579.37 in costs. She deducted the costs attributable to the application for the unsuccessful second preliminary injunction, a total of $2649.32, awarding only $6930.05. Included in that figure were amounts for online research, which alone stood at $4246.43. The judge noted that such costs have been reimbursed in the federal system. See 24 A-0330-15T3 Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 369 F.3d 91, 98 (2d Cir. 2004) (quoting Role Models Am., Inc. v. Brown Lee, 353 F.3d 962, 975 (D.C. Cir. 2004)) (distinguishing costs awarded under fee-shifting statutes from costs awarded as sanctions). Pursuit of this matter required extensive research. Use of online research systems no doubt reduced the amount of time for the work to be accomplished, benefitting both EON in the struggle to vindicate constitutional rights as well as costs potentially payable by defendants. In our view, those expenses were properly included as well. Litton Industries, Inc. v. IMO Industries, Inc., 200 N.J. 372, 405-07 (2009). Affirmed. 25 A-0330-15T3
DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.D.
Date: March 8, 2018
Docket Number: a1905-15
STATE OF NEW JERSEY v. JOEY J. FOWLER
Date: March 8, 2018
Docket Number: a3393-14 ALVAREZ, P.J.A.D. Tried to a jury, co-defendants Joey Fowler and Jamil Hearns were convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) (count one); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). Only Hearns was named in count four of the indictment, which charged hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4), and the jury convicted him of that offense as well. We now consolidate defendants' appeals for decision, vacate the convictions because of errors in the jury charge, and remand for a new trial. We glean the facts from the trial record. During the early morning hours of March 5, 2011, defendants were standing outside a crowded bar. Some weeks prior, Fowler had reported being 2 A-3393-14T3 carjacked by several men, including the victim, Donnell Johnson. Johnson and his cousins, Algere Jones and Rashon Jenkins, were socializing at that same establishment. At approximately 2:40 a.m., Johnson left the bar, and Jones, who had done so earlier, pulled alongside him in his vehicle. Jones testified that as Johnson leaned into the car while the men talked, Jones saw Hearns approach through his rearview mirror. Jones knew Hearns from having grown up in the same neighborhood. Jones heard gunshots and saw a gun in Hearns's hands. Johnson initially ran, then got into Jones's car. Jones drove Johnson to a hospital emergency room; Johnson died later from gunshot wounds. He had been struck twice, once by a bullet to the leg, and by a second bullet to the back. The gunshots traveled in an upward trajectory. Elizabeth Police Department Officer James Malone, Jr., was working security that night outside the bar. At approximately 2:45 a.m., he heard five or six gunshots in rapid succession and immediately drove towards the sound. Malone saw a man dressed in a black hooded sweatshirt, later identified as Hearns, running from the scene while holding something in his right hand. Hearns jumped into a silver Infiniti. Fowler, who was standing by the driver's side door, got into the vehicle and 3 A-3393-14T3 quickly pulled away from the curb. Malone immediately stopped the car and saw Hearns reaching with his right hand towards the back seat, placing a gun in the rear center console. When told to raise their hands, all the occupants, including Fowler's nephews who were in the back seat, complied. Hearns, however, repeatedly tried to get out of the vehicle while Malone held the door shut. Hearns was arrested when additional officers arrived. Hearns testified that while he was passing the time in front of the bar, he was approached by Jones, who demanded repayment on the spot of a $5000 loan. Hearns offered to give Jones all the cash in his pocket, $1300. Jones refused. Johnson, who was standing next to Jones, tried to convince Jones to accept the partial payment. Hearns said after rejecting his offer, Jones pulled out a gun and the two men began to wrestle. Hearns grabbed Jones's arm and wrist, and began to bang the gun on his knee in an effort to knock it out of Jones's hand. As the gun hit his knee, it fired. The bullets ricocheted off the ground and into a parked car. When the gun actually fell to the ground, Hearns grabbed it and ran. After Hearns testified in his defense, the 4 A-3393-14T3 State presented two rebuttal witnesses, another officer and Tywan Cobb.2 Cobb said he had spoken to Hearns two or three times daily over a couple of months. Hearns told him he shot someone twice, and that he was carrying the weapon that evening for that purpose. Hearns told Cobb he intended to claim there had been a "tussle" for money, although none had taken place. Hearns also told him he changed his clothes that night from a bright hoodie into a dark one before the shooting, a fact corroborated by the video film from a camera outside the bar. The officer who testified as a rebuttal witness said that an empty liquor bottle of the brand Hearns claimed he bought that night at the bar immediately before the shooting was found on the floor of Fowler's car. Contrary to Hearns's testimony, no full bottle of that liquor was in the vehicle. The officer also said she did not see any ricochet or other impact marks in any photos of the shooting scene. Hearns's attorney asked the judge to instruct the jury on self-defense. The judge refused, reasoning that Hearns's defense to the shooting was not self-defense, but rather accident. 2 Cobb had shared a cell with Hearns for two to three months before the trial; this fact was kept from the jury. 5 A-3393-14T3 The judge invited counsel to submit an "accident" instruction; the record does not indicate if any such instruction was submitted. The judge also said that in any event, no instruction was necessary because a finding of purpose to kill, necessary for a murder conviction, would run counter to any theory that the death occurred as a result of accident. Thus, he reasoned, if the jury believed Hearns's testimony, they would acquit him and Fowler, who was charged with murder as an accomplice. Counsel and the court further agreed no lesser-included offenses should be charged because, as the judge explained, "if you believe [] Hearns' version of what happened, there's no criminal state of mind for any murder, not for any of the lesser includeds. So where is the, you know -- I don't see any version of facts that would support an aggravated manslaughter -- the state of mind, aggravated or reckless." The prosecutor agreed, and the judge went on to state: "Everyone is agreeing, no lesser includeds?" Not hearing any response, the judge charged only murder. Fowler raises the following issues for our consideration: POINT I THE COURT ERRED IN REFUSING TO INSTRUCT ON SELF-DEFENSE AND ACCIDENT DESPITE ITS ACKNOWLEDGMENT THAT THE CODEFENDANT TESTIFIED THAT THE VICTIM WAS SHOT BY 6 A-3393-14T3 ACCIDENT IN THE COURSE OF THE CODEFENDANT'S ATTEMPT TO DEFEND HIMSELF. POINT II THE COURT ERRED IN REFUSING TO ALLOW DEFENDANT TO CROSS-EXAMINE ALGERE JONES IN ORDER TO REBUT THE STATE'S MOTIVE EVIDENCE. POINT III THE COURT ERRED IN FAILING TO GIVE A COOPERATING-WITNESS INSTRUCTION WITH RESPECT TO ALGERE JONES. POINT IV THE COURT ERRED IN DENYING THE MOTION FOR A NEW TRIAL AFTER THE JURY HEARD TESTIMONY THAT DEFENDANT HAD PREVIOUSLY BEEN INCARCERATED. POINT V THE CONVICTION FOR POSSESSION OF A GUN FOR AN UNLAWFUL PURPOSE SHOULD HAVE MERGED WITH THE MURDER. POINT VI THE 50-YEAR TERM IMPOSED ON DEFENDANT, WHO WAS CHARGED AS AN ACCOMPLICE, IS FIVE YEARS GREATER THAN THE SENTENCE IMPOSED ON THE CODEFENDANT, WHO WAS THE PRINCIPAL, AND IS EXCESSIVE. In a pro se brief, Fowler asserts the following points: POINT I: THE TRIAL COURT PREJUDICED THE DEFENDANT BY REFUSING TO INSTRUCT ON SELF DEFENSE TO THE JURY. BY SUCH ERROR, THE DEFENDANT WAS DEPRIVED OF HIS RIGHT OF A FAIR TRIAL, BECAUSE THE RECORD REVEALS SEVERAL TESTIMONIES AT TRIAL ONLY ATTRIBUTED TO CO- DEFENDANT'S LIABILITY OF ACTS IN SELF DEFENSE REQUIRING REVERSAL OF THE CONVICTION (Partially raised below). 7 A-3393-14T3 POINT II: APPELLANT MOVES FOR A REMAND TO THE TRIAL COURT, TESTIMONY ABOUT DEFENDANT'S PRIOR INCARCERATION PREJUDICED HIS RIGHT TO A FAIR TRIAL (Partially raised below). POINT III APPELLANT MOVES FOR A REMAND TO THE TRIAL COURT, THE TESTIMONY OF TYWAN COBB UNFAIRLY PREJUDICED THE DEFENDANT (Partially raised below). POINT IV APPELLANT MOVES FOR A REMAND THE TESTIMONY OF ALGERE JONES WAS RES GESTAE EVIDENCE IN NATURE, AND SHOULD HAVE BEEN ALLOWED UNDER N.J.R.E. 803(c)(3), TO DEFEAT THE STATE'S THEORY ON MOTIVE, WITH THE FACTS, THEREFORE DEFENDANT AT LOWER COURT WAS DEPRIVED A FAIR TRIAL (Partially raised below). POINT V APPELLANT MOVES FOR A REMAND TO THE TRIAL COURT TO CONDUCT A GROSS HEARING SINCE THE CREDIBILITY OF A WITNESS CLEARLY AND CONVINCINGLY CONSTITUTES A DENIAL OF JUSTICE, MOTIVATED REQUIRES CONVICTION BE OVERTURNED AND VACATED DUE TO AN UNFAIR TRIAL WHICH VIOLATES DEFENDANT'S RIGHTS GUARANTEED BY THE U.S. CONST. AMENDS. V & XIV, § 1; N.J. CONST. ART. I, PAR. 1 (Partially raised below). Hearns raises the following issues: Point 1 The trial court erred in denying defendant's request to charge self-defense, and in failing to sua sponte charge aggravated and reckless manslaughter as lesser included offenses to murder; the trial court erred in denying defendant's motion for a new trial on this ground (partially raised below). 8 A-3393-14T3 Point 2 The trial court erred in denying defendant's motion to dismiss the indictment because of violation of his speedy trial right. Point 3 The trial court erred in not granting severance during trial, sua sponte, or in not granting defendant Hearns a new trial on this ground. Point 4 Reference to the co-defendant Fowler's prior incarceration caused an unfair trial for both defendants during the joint trial below. Point 5 Defendant's right to remain silent was violated. Point 6 The prosecutor placed improper hearsay before the jury that violated defendant's state and federal right to confront the witnesses against him. Point 7 An unfair trial was caused by the trial judge telling the jury that a State witness was incarcerated and being brought over from prison to testify (plain error). Point 8 Defendant's sentence is improper and excessive. We address only the jury charges. The omission of the self-defense instruction, and corresponding instructions as to lesser-included offenses, was prejudicial error. 9 A-3393-14T3 I. Plain error in the jury charge occurs if it prejudicially affects the substantial rights of a defendant, is sufficiently grievous to justify notice by the reviewing court, and convinces the court that the error possessed a clear capacity to bring about an unjust result. See State v. Singleton, 211 N.J. 157, 182-83 (2012). Erroneous jury instructions are "poor candidates for rehabilitation under the harmless error philosophy." State v. Gonzalez, 444 N.J. Super. 62, 70 (App. Div. 2016) (quoting State v. Simon, 79 N.J. 191, 206 (1979)). Whether or not requested to do so, a court must clearly and correctly charge the jury in order for a defendant to receive a fair trial. State v. Maloney, 216 N.J. 91, 104-05 (2013) (citing State v. Green, 86 N.J. 281, 291 (1981)). II. N.J.S.A. 2C:3-4 defines self-defense: the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. [N.J.S.A. 2C:3-4(a).] A "trial judge must charge the jury on self-defense 'if there exists evidence in either the State's or the defendant's 10 A-3393-14T3 case sufficient to provide a "rational basis" for [its] applicability.'" State v. Blanks, 313 N.J. Super. 55, 69-70 (App. Div. 1998) (alteration in original) (quoting State v. Bryant, 288 N.J. Super. 27, 35 (App. Div. 1989)). When a court is deciding whether to charge the jury on self-defense, it "should consider the circumstances that might give rise to that defense, including the defendant's and alleged aggressor's conduct, rather than the charges chosen by the prosecutor." State v. Rodriguez, 195 N.J. 165, 174 (2008). As the Court said in Rodriguez, viewing the evidence in the light most favorable to a defendant, as long as the instruction "is requested and supported by some evidence in the record, it must be given." Ibid. Hearns's testimony was "some evidence in the record" that required the judge to give the instruction. Whether credible or not, accepted by the jury or not, Hearns said he feared Jones was going to kill or injure him as they wrestled over the gun. As the judge observed, however, defendants were charged with Johnson's murder, not with harming Jones. III. Hearns went on to testify that while wrestling with Jones, the gun fell to the ground and went off by "accident," resulting in Johnson's lethal injuries. To have failed to fashion 11 A-3393-14T3 individualized instructions despite this narrative, on the theory that if the jury were to correctly follow the murder charge they would acquit without any additional explanation of the law, was prejudicial error. A necessary first step was to give the jury a molded self- defense charge — but other instructions were also necessary because the injury was allegedly accidentally inflicted on another — not the attacker. Self-defense does, however, set the stage for the jury's consideration of whether Hearns acted recklessly by wrestling with Jones and banging the gun against his knee during the struggle in the midst of a crowd. The Court in Rodriguez observed that if a person uses force in self-defense, and in doing so recklessly or negligently injures a bystander, although not guilty of assault upon the attacker, he "may" be found guilty of assault upon the bystander. Rodriguez, 195 N.J. at 172-73. The discussion in Rodriguez was premised on N.J.S.A. 2C:3-9(c), which states: When the actor is justified . . . in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons. The statute explains that the defense of self-defense cannot serve as legal justification for an assault on a third party. 12 A-3393-14T3 By analogy, however, it informs the lesser-included offenses that should have been charged to the jury. The statute shifts the focus away from the initial triggering act of self-defense to the nature of the conduct that resulted in the harm to a bystander. The question becomes — was the conduct reckless? Merely negligent? Did it create a risk of injury? The jury should have considered whether, if they believed Hearns's initial premise that he was acting in self-defense, his conduct was reckless and, if so, to what extent. This question can only be addressed by lesser-included homicide instructions, aggravated manslaughter and reckless manslaughter. N.J.S.A. 2C:11-4(a)(1) and 2C:11-4(b)(1). Ordinarily, self-defense is a defense to aggravated manslaughter or reckless manslaughter. Rodriguez, 195 N.J. at 172-73. It is not a defense available to Hearns because he said Johnson lost his life by accident——injured by random shots fired from the gun. If the statute bars the defense of self-defense when the actor merely injures an innocent bystander, the defense should not be available when the result is a killing. Johnson did not inflict "unlawful force" upon Hearns. The underlying rationale for the defense is missing, therefore it should not be available to the actor in this situation as against the victim. 13 A-3393-14T3 In other words, if the jury decides defendant was acting in self-defense,3 they must then consider whether the State proved beyond a reasonable doubt that Johnson's death resulted from Hearns's recklessness. The question is: if Hearns was acting in self-defense against Jones, did Hearns kill Johnson by reckless conduct? Giving the jury the alternative lesser-included forms of manslaughter allows them, within the framework of the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9, to assess whether the killing was truly accidental. If it was not murder, aggravated manslaughter, or manslaughter, then Hearns could be fairly said to have accidentally killed and will be acquitted. But the jury must be afforded the opportunity to make the decision with explicit guidance. The issue is not whether the killing was accidental——but whether the State has proven, beyond a reasonable doubt, any of the offenses included in the Code. IV. Additionally, the jury would have to be carefully instructed that although Hearns could be found guilty of one of the lesser-included offenses, Fowler, who was charged as an accomplice, could not. N.J.S.A. 2C:2-6(a) makes a person guilty 3 The State must bear the burden of disproving the defense, as is true in run-of-the-mill self-defense cases. See State v. Munroe, 210 N.J. 429, 446 (2012). 14 A-3393-14T3 of an offense actually committed by another when he is legally accountable, a conspirator, or an accomplice of the other. N.J.S.A. 2C:2-6(a). Subsection (c) defines accomplice liability. For the State to prove accomplice liability beyond a reasonable doubt, the actors must have a shared purpose. See State v. Daniels, 224 N.J. 168, 179 (2016); State v. Whittaker, 200 N.J. 444, 457-58 (2009); State v. Hill, 199 N.J. 545, 567-68 (2009). Thus, should the jury accept Hearns's version of events, Fowler could not be convicted as an accomplice or otherwise be legally held accountable for the death because, according to Hearns, the killing occurred unexpectedly when Jones attacked him. The allegedly spontaneous nature of the event, a confrontation solely involving Hearns, Jones, and Johnson, means there cannot be a shared purpose. 15 A-3393-14T3 V. We do not reach the other issues raised by defendants, as further discussion becomes unnecessary in light of our reversal. To summarize, the judge must charge, should Hearns testify in the same manner at the new trial as he did in his earlier trial, that if the jury finds he struggled with Jones in self-defense, and the gun fired in the struggle, they must then consider whether Hearns is guilty of aggravated manslaughter by "recklessly caus[ing] death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). The judge must also charge manslaughter as to Hearns, that being a criminal homicide committed recklessly. See N.J.S.A. 2C:11-4(b)(1). The jury must be clearly instructed that only if they find Hearns guilty of murder can they also convict Fowler. The instructions given to the jury that resulted in defendants' convictions did not adequately address Hearns's testimony. That omission affected the substantial rights of both defendants and had the clear capacity to bring about an unjust result. See Singleton, 211 N.J. at 182-83. Remanded for a new trial in accord with this opinion. 16 A-3393-14T3
STATE OF NEW JERSEY v. JOEY J. FOWLER
Date: March 8, 2018
Docket Number: a5544-14
STATE OF NEW JERSEY IN THE INTEREST OF N.C.
Date: March 5, 2018
Docket Number: a1713-17
IN THE MATTER OF NEW BRUNSWICK MUNICIPAL EMPLOYEES ASSOCIATION
Date: March 2, 2018
Docket Number: a1041-16
MARIANA A. BAEZ v. JIMMY M. PAULO, M.D.
Date: March 2, 2018
Docket Number: a3742-16
NEWGOLD EQUITIES CORP. v. JAFFE SPINDLER COMPANY
Date: February 28, 2018
Docket Number: a0200-15
MEHRVASH WEAVER v. RONALD WEAVER
Date: February 27, 2018
Docket Number: a0228-16
J.A.B. v. J.L.M.
Date: February 27, 2018
Docket Number: a1452-16
C.B. v. K.B.K.
Date: February 27, 2018
Docket Number: a1643-16
JERSEY CENTRAL POWER & LIGHT COMPANY v. TOWNSHIP OF PHILLIPSBURG
Date: February 27, 2018
Docket Number: a1652-16
CHARLES E. LYONS, JR v. THE CITY OF CAMDEN
Date: February 27, 2018
Docket Number: a1986-16
INTERSTATE RESTORATION, LLC v. METRO BUILDERS, LLC
Date: February 27, 2018
Docket Number: a2187-16
STATE OF NEW JERSEY v. LUIS TORRES
Date: February 27, 2018
Docket Number: a2225-15 PER CURIAM Defendant was charged as a juvenile offender for committing an armed robbery and murder at a jewelry store in Union City in 1991 when he was sixteen years old. On the State's motion, juvenile jurisdiction was waived, and defendant and a cohort were indicted in 1992 and charged with knowing or purposeful murder, felony murder, armed robbery, possession of a handgun for an unlawful purpose, and possession of a handgun without a permit. Defendant was convicted on all counts at the conclusion of a jury trial. In 1993, the trial judge imposed a term of life imprisonment with a thirty-year period of parole ineligibility, as well as other concurrent terms. Defendant unsuccessfully appealed, State v. Torres, 313 N.J. Super. 129 (App. Div. 1998), and has twice unsuccessfully sought post-conviction relief. In 2015, defendant moved in the trial court to correct what he claims was an unlawful sentence. He argued that the imposition of a term of life imprisonment subject to a thirty-year period of parole ineligibility was made constitutionally impermissible by Miller v. Alabama, 567 U.S. 460 (2012). In Docket No. A-2225-15, defendant appeals the judge's denial of that motion, reprising for us his contention that the sentence violates Miller. Defendant separately moved in the trial court for a change of his sentence to apply commutation and work credits earned during the twenty-five years he has served of his life sentence; he claims the judgment should be modified so that he may earn those credits that, because he "does not ha[ve] a specific numerical term between [thirty] years and what constitutes 'life,' numerically," are not 2 A-2225-15T4 currently being applied to his sentence. In Docket No. A-5597-15, defendant argues that the judge erred in denying this motion. We consolidate both defendants' appeals for purposes of disposing of them in a single opinion. As to the first, we agree with the motion judge that Miller, 567 U.S. at 479, which held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders," was not implicated here. In considering the reach of Miller and other related decisions, our Supreme recognized in the two underlying cases it considered in State v. Zuber, 227 N.J. 422, 448 (2017), that the imposition on juvenile offenders of minimum terms of fifty-five years, in one case, and more than sixty-eight years in the other – while not "officially 'life without parole'" – "trigger[s] the protections of Miller" under both the federal and state constitutions. The sentence imposed here – with a parole ineligibility period that will be completed when defendant is less than fifty years old – pales by comparison and does not suggest a violation of these constitutional principles. We, thus, affirm the order denying the motion to correct the sentence challenged in A-2225-15. We also reject defendant's appeal in A-5597-15. The Legislature clearly and unambiguously declared that "commutation and work credits shall not in any way reduce any judicial or 3 A-2225-15T4 statutory mandatory minimum term and such credits accrued shall only be awarded subsequent to the expiration of the term." N.J.S.A. 30:4-123.51(a). Accordingly, defendant's argument, which in essence seeks application of those credits to the parole ineligibility period, is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). The orders in both appeals are affirmed. 4 A-2225-15T4
ESTATE OF DAVID ERIC YEARBY v. MIDDLESEX COUNTY
Date: February 27, 2018
Docket Number: a2477-16
DEPARTMENT OF CHILDREN AND FAMILIES v. K.S.
Date: February 27, 2018
Docket Number: a2783-15
RAMONA PERALTA v. 466 MONMOUTH STREET CONDOMINIUM ASSOCIATES
Date: February 27, 2018
Docket Number: a2801-16
STATE OF NEW JERSEY v. ELIJAH MORALES
Date: February 27, 2018
Docket Number: a3249-16
STATE OF NEW JERSEY v. RODNEY PRITCHARD
Date: February 27, 2018
Docket Number: a4268-15
DEANNA TOMASSO-ADDEO v. ERIC ADDEO
Date: February 27, 2018
Docket Number: a5039-15
SOOKHEE LEE v. JONATHAN KIM
Date: February 27, 2018
Docket Number: a5126-15
BERNARD REID v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Date: February 27, 2018
Docket Number: a5442-15
CUSTOMER SBANK v. REITNOUR INVESTMENT PROPERTIES
Date: February 26, 2018
Docket Number: a0920-16
STATE OF NEW JERSEY v. W.S.B.
Date: February 26, 2018
Docket Number: a5569-16
BRUNSWICK BANK & TRUST v. HELN MANAGEMENT LLC
Date: February 21, 2018
Docket Number: a1345-15
STATE OF NEW JERSEY v. BRANDON M. WASHINGTON
Date: February 16, 2018
Docket Number: a1780-17
TASHICKA HAYES v. TURNERSVILLE CHRYSLER JEEP
Date: February 16, 2018
Docket Number: a2063-16
K.K. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: February 14, 2018
Docket Number: a5447-15
BERYL ZIMMERMAN v. SUSSEX COUNTY EDUCATIONAL SERVICES COMMISSION
Date: February 13, 2018
Docket Number: a1003-16
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION v. EXXON MOBIL CORPORATION
Date: February 12, 2018
Docket Number: a0668-15 MESSANO, P.J.A.D. In 1991, the New Jersey Department of Environmental Protection (DEP) and Exxon Mobil Corporation (Exxon) entered into two administrative consent orders (ACOs), requiring Exxon to remediate polluted sites it owned and operated at the Bayway Refinery in Linden (Bayway) and the Bayonne Facility (Bayonne). In addition to requiring Exxon to pay a civil penalty, the ACOs required the company to: undertake remedial investigations; 2 A-0668-15T1 prepare work plans and feasibility studies; undertake all additional investigations and actions necessary to remediate the sites under DEP's supervision; submit quarterly progress reports; and reimburse DEP for all oversight costs and costs incurred in investigating and responding to Exxon's discharges. See N.J. Dep't of Envtl. Prot. v. Exxon Mobil Corp., 393 N.J. Super. 388, 391-93 (App. Div. 2007) (Exxon I) (providing historical background regarding operation of these two sites and the ACOs). Under the ACOs, the State of New Jersey reserved its right to recover additional "natural resource damages" (NRD), i.e., compensation for the injury and destruction of natural resources and the public's loss of the use and enjoyment of those resources. In August 2004, DEP filed two complaints against Exxon seeking NRD at Bayway and Bayonne, and asserting claims under the Spill Compensation and Control Act, N.J.S.A. 58:10- 23.11 to -23.24 (Spill Act), and common law theories of public nuisance and trespass. We need not discuss in detail pretrial rulings and controversies, except to note that in 2006, the trial court granted DEP summary judgment holding Exxon was strictly liable for NRD and restoration costs under the Spill Act. It also dismissed DEP's NRD claim for "loss of use damages." We granted 3 A-0668-15T1 DEP leave to appeal — Exxon did not seek interlocutory review — and, in Exxon I, 393 N.J. Super. at 410, we reversed and restored DEP's claim for "loss of use" NRD damages. In New Jersey Department of Environmental Protection v. Exxon Mobil Corp., 420 N.J. Super. 395, 397-98 (App. Div. 2011) (Exxon II), we reversed the trial court's dismissal of DEP's strict liability claim, which was added in an amended complaint, on statute of limitations grounds. In 2014, Judge Michael J. Hogan presided over a sixty-six day bench trial. Both DEP and Exxon moved pre-trial to bar the testimony of all or most of their adversaries' experts. Rather than conduct pre-trial hearings to determine admissibility, see N.J.R.E. 104(a), with the judge's approval, all experts testified while the parties preserved their objections. Utilizing a complex, mathematical methodology known as "Habitat Equivalency Analysis" (HEA), DEP's experts estimated that NRD damages at both sites totaled $8.9 billion. Exxon's experts challenged the admissibility of any opinions based on HEA in the first instance, although, as Judge Hogan noted in his written decision, Exxon's experts, utilizing HEA, estimated NRD damages to be between $1.4 and $3 million.1 1 The parties have not supplied full trial transcripts, see Rule 2:5-3(b), nor have they sought abbreviation of the transcripts (continued) 4 A-0668-15T1 After two days of summations and the submission of written closing arguments, Judge Hogan set about to render a written decision on the reserved N.J.R.E. 104(a) motions and the case in chief. Before he did, however, the parties advised they had reached a settlement. Under the terms of the proposed consent judgment, Exxon agreed to pay $225 million to the state treasurer, and the State agreed to place that money in a segregated account within the Hazardous Discharge Site Cleanup Fund, where the monies "shall earn interest and may not be used for any purpose" until the consent judgment "becomes final and non-appealable." The State also agreed to: release Exxon from all NRD claims based on the discharge of contaminants onto the soil and sediments of Bayway and Bayonne; dismiss surface water NRD claims without prejudice to raising them, under certain conditions, in a future action; release Exxon with prejudice and covenants not to sue for all NRD claims relating to more than one thousand Exxon retail gas (continued) pursuant to Rule 2:5-3(c). This deficiency has no impact on our review of the legal arguments raised, because they do not involve Judge Hogan's trial rulings or the actual evidence presented. But see Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (affirming our refusal to address an issue because appellant did not provide the complete transcript, thereby "prohibit[ing] review" of claims advanced on appeal). We rely on the judge's description of the trial proceedings and post- trial events as contained in his written decisions. 5 A-0668-15T1 stations in New Jersey, excluding those where methyl tertiary butyl ether (MTBE)2 had been discharged; release Exxon with prejudice from all NRD claims relating to sixteen other statewide facilities (designated as Attachment C facilities), including the former Paulsboro Terminal, which had been the subject of ongoing litigation since 2007, but excluding those facilities where MTBE had been discharged; and defer the final remedy determination and remediation of Morses Creek near Bayway until Exxon ceased refining operations at the site. The parties further agreed that: the consent judgment would not alter, suspend, or otherwise impact Exxon's obligations under any ACO, except for the Morses Creek deferral; the State would retain full authority and sole discretion to require Exxon to take any action to "address an immediate environmental concern, an imminent and substantial endangerment to public health, welfare or the environment, or an emergency response arising from or related to" Bayway, Bayonne, the gas stations and Attachment C facilities; and, the court would retain continued jurisdiction and enforcement of the consent judgment's terms. Lastly, the consent judgment declared that 2 According to DEP, MTBE, used in gasoline, is highly soluble, migrates long distances very quickly, does not degrade readily and, at sites where MTBE has been discharged, represents, in relation to other hazardous substances, the greatest extent of groundwater plumes. 6 A-0668-15T1 nothing contained therein "shall be considered an admission by [Exxon]," and it granted Exxon contribution protection "to the fullest extent possible" pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-675, the Spill Act, and any other statute, regulation, or common law principle that allowed contribution rights against Exxon.3 DEP provided notice of the proposed consent judgment in accordance with N.J.S.A. 58:10-23.11e2. See Cumberland Farms, Inc. v. N.J. Dep't of Envtl. Prot., 447 N.J. Super. 423, 441 (App. Div. 2016) ("[U]nder N.J.S.A. 58:10-23.11e2, the DEP and a potentially responsible party may not agree to a settlement of NRD liability until after the DEP has published notice of the terms of the settlement."), certif. denied, 229 N.J. 149 (2017). DEP received 16,013 public comments, mostly objections, including comments from Raymond J. Lesniak, a resident of the Bayway section of Elizabeth and State Senator for the 20th Legislative District, (appellant in A-0668-15), and the New Jersey Sierra Club, Clean Water Action, Environment New Jersey, and Delaware Riverkeeper Network (collectively, the Environmental Groups) (appellants in A-0810-15). 3 Although not contained in the consent judgment, Judge Hogan noted in his written opinion that "Exxon entered into ACOs for the Attachment C Facilities and Retail Gas Stations." 7 A-0668-15T1 Before DEP responded to the comments and indicated whether it intended to seek approval of the consent judgment or not, Lesniak and the Environmental Groups moved to intervene in the lawsuit. In a written opinion, Judge Hogan denied those motions without prejudice. The same day, DEP issued its response to the public comments, portions of which we summarize. DEP stated the proposed judgment was the second largest NRD settlement with a single corporate defendant in United States' history, and the largest NRD settlement in New Jersey's history. DEP asserted that Exxon had already spent more than $130 million remediating Bayway and more than $120 million remediating Bayonne, and that the proposed consent judgment would not change or cap Exxon's continued obligation to "spend whatever amount of money is necessary to fully remediate all of its contaminated sites in accordance with DEP's regulatory standards." DEP also noted "numerous and significant" legal and evidentiary issues in the lawsuit were still unresolved, with no assurance DEP would ultimately succeed. For example, early pre- trial decisions in the State's favor as to liability could be subject to appeal and ultimately reversed. Additionally, Judge Hogan had not yet ruled on the admissibility of DEP's experts' opinions, or determined the amount of NRD, if any, actually 8 A-0668-15T1 proven by the State. Under the proposed settlement, Exxon gave up its right to appeal all issues. DEP further noted that the proposed consent judgment did not settle claims against Exxon at gas stations and other facilities where MTBE was discovered. With Exxon's support, DEP subsequently moved before Judge Hogan for approval of the settlement. Judge Hogan permitted the Environmental Groups and Lesniak to appear as amicus curiae. They filed extensive briefs and orally argued against approval. In a written decision and conforming order filed August 25, 2015, Judge Hogan approved the consent judgment, holding it was fair, reasonable, faithful to the Spill Act's goals, and in the public interest. He concluded that DEP had applied "rational methods" to estimate total damages and to determine what Exxon's fair payment would be for those damages, and that $225 million represented "a reasonable compromise given the substantial litigation risks the DEP faced at trial and would face on appeal." The court filed a fully executed consent judgment on August 31, 2015; Exxon tendered payment a few weeks later. The Environmental Groups and Lesniak renewed their requests to intervene, arguing in part that intervention was appropriate so they could appeal Judge Hogan's approval of the consent judgment. By orders dated October 9, 2015, accompanied by a 9 A-0668-15T1 comprehensive written decision, Judge Hogan denied both applications with prejudice. These appeals followed. We have consolidated them now for purposes of issuing a single opinion. I. Appellants argue Judge Hogan erred in concluding standing was a prerequisite to their intervention in the lawsuit, and, even if he was correct, they established standing both to intervene at trial and to challenge the court's approval of the consent judgment on appeal. We first consider whether standing is a prerequisite to intervention at trial, and, if so, whether appellants had standing to intervene. A. Our Rules of Court govern intervention at trial, and the trial court's interpretation of those rules is subject to our de novo review. Washington Commons, L.L.C. v. City of Jersey City, 416 N.J. Super. 555, 560 (App. Div. 2010). "We apply familiar canons of statutory construction to interpret the court rules[,] . . . look[ing] first to the plain language . . . and giv[ing] the words their ordinary meaning." Robertelli v. N.J. Office of Att'y Ethics, 224 N.J. 470, 484 (2016) (citations omitted). "We also read the language of a rule 'in context with related provisions so as to give sense to the [court rules] as a 10 A-0668-15T1 whole.'" Ibid. (quoting Wiese v. Dedhia, 188 N.J. 587, 592 (2006)). Rule 4:33-1 governs intervention as of right. To satisfy the rule, a moving party must (1) claim "an interest relating to the property or transaction which is the subject of the transaction," (2) show [that the movant] is "so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest," (3) demonstrate that the "[movant's] interest" is not "adequately represented by existing parties," and (4) make a "timely" application to intervene. [Am. Civil Liberties Union of N.J., Inc. v. Cty. of Hudson, 352 N.J. Super. 44, 67 (App. Div. 2002) (ACLU) (quoting Meehan v. K.D. Partners, L.P., 317 N.J. Super. 563, 568 (App. Div. 1998)).] "As the rule is not discretionary, a court must approve an application for intervention as of right if the four criteria are satisfied." Meehan, 317 N.J. Super. at 568. On the other hand, Rule 4:33-2 (emphasis added) permits intervention "[u]pon timely application . . . if the claim or defense and the main action have a question of law or fact in common." The rule must be "liberally construed . . . with a view to whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties[,]" ACLU, 352 N.J. Super. at 70, "and whether intervention will eliminate the need for subsequent litigation." Zirger v. Gen. Accident Ins. 11 A-0668-15T1 Co., 144 N.J. 327, 341 (1996) (citation omitted). The decision to grant or deny permissive intervention "vests considerable discretion in the trial court[,]" Evesham Township Zoning Board of Adjustment v. Evesham Township Council, 86 N.J. 295, 299 (1981), thus we review the court's determination of a permissive intervention motion under an abuse of discretion standard. City of Asbury Park v. Asbury Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006). Whether permissible intervention or intervention as of right, a party must comply with the procedure set out in Rule 4:33-3 (emphasis added): A person desiring to intervene shall file and serve on all parties a motion to intervene stating the grounds therefor and accompanied by a pleading setting forth the claim or defense for which intervention is sought along with a Case Information Statement pursuant to R. 4:5-1(b)(1). This procedure is "mandatory," Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 4:33-3 (2018), although courts should liberally permit movants "reasonable opportunities to cure procedural defects in their motions to intervene." ACLU, 352 N.J. Super. at 66-67 (emphasis added). Rule 4:33-3 requires the movant to set forth a "claim or defense" in its pleading to intervene. Rule 4:33-2, the more liberal permissive intervention rule, provides the standard to 12 A-0668-15T1 guide the motion court's exercise of discretion, i.e., intervention is appropriate "if [the movant's] claim or defense" presents "a question of law or fact in common" with the pending action. Ibid. Under the plain language of these two Rules, intervention is not appropriate unless the putative intervenor can assert its own "claim or defense." See Pressler & Verniero, cmt. 1 on R. 4:33-2 ("Clearly those without standing in the first instance are also without sufficient interest to warrant intervention."). If the moving party must have standing to assert its own claim or defense before the court exercises its discretion and permits intervention, it seems illogical that in some situations a court must grant intervention under Rule 4:33- 1, even if the movant cannot assert its own claim or defense. Appellants argue that none of our reported cases has squarely held that a putative intervenor must establish standing in order to intervene successfully under either Rule 4:33-1 or 4:33-2. We do not necessarily disagree. However, when considering whether a third party may become directly involved in pending litigation or administrative action, our courts have repeatedly used the phrase "standing to intervene" as conceptually equivalent to "standing." See, e.g., State v. N.J. Zinc Co., 40 N.J. 560, 576-78 (1963) (holding that the holder of an unexercised option to buy land lacked standing 13 A-0668-15T1 to intervene or participate in a condemnation proceeding); N.J. Div. of Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 602- 03 (App. Div. 2011) (concluding resource parents, statutorily- barred from becoming parties to a Title Nine proceeding, lacked "standing to intervene"); In re A.S., 388 N.J. Super. 521, 524- 26 (App. Div. 2006) (holding adoption agency lacked standing to intervene in Title Nine action); Loigman v. Twp. Comm. of Middletown, 297 N.J. Super. 287, 297 (App. Div. 1997) (citing with approval Woodbridge State School Parents Ass'n v. American Federation of State, County & Municipal Employees, 180 N.J. Super. 501, 503 (Ch. Div. 1981), holding parents' association lacked "standing to intervene in a labor dispute between employees . . . and the governmental entity responsible for the school's operation"); State v. Jan-Mar, Inc., 210 N.J. Super. 236, 240-41 (Law Div. 1985) (holding that option holder lacked "standing to intervene" in condemnation action, and relying on N.J. Zinc), aff'd in part on other grounds, 236 N.J. Super. 28 (App. Div. 1989). Rule 4:33-1 tracks the language of Fed. R. Civ. P. 24(a)(2) verbatim. Allstate N.J. Ins. Co. v. Neurology Pain Assocs., 418 N.J. Super. 246, 254 (App. Div. 2011); Pressler & Verniero, cmt. 1 on R. 4:33-1. The federal rule and our Rule mandate intervention if the intervenor's status is comparable to that of 14 A-0668-15T1 a party that must be mandatorily joined in the action by the court, with the additional requirement that the party's interest is not otherwise adequately represented by existing parties. Ibid. Compare Fed. R. Civ. P. 19(a)(1)(B)(i) (requiring joinder "if . . . th[e] person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may . . . as a practical matter impair or imped the person's ability to protect the interest"), and the nearly identical language of R. 4:28-1(a)(2)(i) (requiring joinder "if . . . the person claims an interest in the subject of the action and is so situated that the disposition of the action in the person's absence may . . . as a practical matter impair or impede the person's ability to protect that interest"), with Fed. R. Civ. P. 24(a)(2) (stating for "Intervention of Right . . . the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest"), and the nearly identical language of R. 4:33-1 (mandating intervention "if the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a 15 A-0668-15T1 practical matter impair or impede the ability to protect that interest"). In other words, a court must grant intervention if the putative intervenor is on the same footing as someone the court must otherwise "join[] as a party to the action." R. 4:28-1(a). As one federal court explained, "[t]he only difference between intervention of right under [the analogous federal rule] and joinder under [the analogous federal rule] is which party initiates the addition of a new party to the case." New York State Ass'n for Retarded Children, Inc. v. Carey, 438 F. Supp. 440, 445 (E.D.N.Y. 1977). It is, therefore, entirely understandable our courts routinely recognize that a successful intervenor is a party to the litigation. Williams v. State, 375 N.J. Super. 485, 530 (App. Div. 2005), aff'd sub nom. In re P.L. 2001, Chapter 362, 186 N.J. 368 (2006). In 1986, the United States Supreme Court noted in Diamond v. Charles, 476 U.S. 54, 68 n.21 (1986), that "[t]he Courts of Appeals have reached varying conclusions as to whether a party seeking to intervene as of right must himself possess standing." Compare Brennan v. N.Y. City Bd. of Educ., 260 F.3d 123, 131 (2d Cir. 2001) ("[W]here a proposed intervenor's interests are otherwise unrepresented in an action, the standard for intervention is no more burdensome than the standing 16 A-0668-15T1 requirement."), Wade v. Goldschmidt, 673 F.2d 182, 185 n.5 (7th Cir. 1982) (A proposed intervenor must demonstrate a direct, significant and legally protectable interest in the property at issue in the law suit. The interest "must be based on a right which belongs to the proposed intervenor rather than to an existing party in the suit.") (emphasis added), and Solien v. Miscellaneous Drivers & Helpers Union, 440 F.2d 124, 132 (8th Cir. 1971) ("Intervention as of right presupposes that the applicant has a right to maintain a claim for the relief sought"), with United States v. Imperial Irrigation Dist., 559 F.2d 509, 521 (9th Cir. 1977) ("A party seeking to intervene pursuant to [Fed. R. Civ. P.] 24 . . . need not possess the standing necessary to initiate the lawsuit."), rev'd and vacated on other grounds, 447 U.S. 352 (1980). However, in June 2017, the Supreme Court definitively stated in Town of Chester v. Laroe Estates, Inc., 581 U.S. ___, 137 S. Ct. 1645, 1651 (2017), "an intervenor of right must have Article III standing in order to pursue relief that is different from that which is sought by a party with standing." We are not, of course, bound by this federal precedent, but we find it persuasive, given the nearly verbatim equivalency between our Rules and their source, the Federal Rules of Civil Procedure. Moreover, the core concepts contained in Rule 4:33-1 17 A-0668-15T1 governing intervention as of right — the movant must have an "interest" in the "subject of the action," which may be "impair[ed] or impede[d]" without intervention — find equal voice in our standing jurisprudence. See, e.g., In re Camden Cty., 170 N.J. 439, 449 (2002) (holding, to have standing, "a party must present a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and a substantial likelihood that the party will suffer harm in the event of an unfavorable decision."). Further, for the reasons already stated, based upon the express language of Rules 4:33-2 and 4:33-3, we conclude that in deciding whether to permit intervention, the court should consider if the intervenor has standing in its own right to assert a claim or defense that presents a "common" "question of law or fact" with the pending action. As we discuss more fully below, our standing jurisprudence has always evidenced "an approach that is less rigorous than the federal standing requirements." Camden Cty., 170 N.J. at 448 (citing Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107-08 (1971) ("Unlike the Federal Constitution, there is no express language in New Jersey's Constitution [confining] our judicial power to actual cases and controversies.")). Nevertheless, we conclude that intervention 18 A-0668-15T1 at trial as of right or by permission of the court is premised upon the putative intervenor's demonstrating that he or she has standing either in the action in chief — which essentially compels a court to grant a timely motion for intervention as of right pursuant to Rule 4:33-1, unless the intervenor's interests are otherwise adequately protected — or to bring an independent action — in which the putative intervenor's "claim or defense" involves a question of "law or fact" common to the pending action, R. 4:33-2. B. The concept of standing in a legal proceeding refers to a litigant's "ability or entitlement to maintain an action before the court." People for Open Gov't v. Roberts, 397 N.J. Super. 502, 508-09 (App. Div. 2008) (quoting Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 80 (App. Div. 2001)). Whether a party has standing is "a threshold justiciability determination," In re Six Month Extension of N.J.A.C. 5:91-1 et seq., 372 N.J. Super. 61, 85 (App. Div. 2004), neither subject to waiver nor conferrable by consent. In re Adoption of Baby T., 160 N.J. 332, 341 (1999). "[A] lack of standing . . . precludes a court from entertaining any of the substantive issues for determination." EnviroFinance Grp. v. Envtl. Barrier Co., 440 N.J. Super. 325, 339 (App. Div. 2015) (quoting Baby T., 160 N.J. 19 A-0668-15T1 at 340). We apply de novo review to the trial court's determinations regarding standing. NAACP of Camden Cty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 444 (App. Div. 2011). Our courts generally take a liberal view of standing, since, as noted, we are not confined by the "case or controversy" requirement of Article III, Section 2 of the United States Constitution. Camden Cty., 170 N.J. at 448-49; EnviroFinance, 440 N.J. Super. at 340; Loigman, 297 N.J. Super. at 294-95. But, standing is not automatic. Bondi v. Citigroup, Inc., 423 N.J. Super. 377, 436 (App. Div. 2011). Judge Hogan concluded appellants lacked standing for purposes of intervention. He reasoned: (1) appellants were not entitled to bring a claim for NRD because the Spill Act only authorized DEP to bring such suits; (2) appellants could not utilize the private right of action provided by the Environmental Rights Act (ERA), N.J.S.A. 2A:35A-1 to -14, because the ERA provides only declaratory and injunctive relief, and appellants could not establish inaction or inadequate action by DEP; and (3) appellants' intervention motions were procedurally deficient under Rule 4:33-3 because they failed to state a claim. i. 20 A-0668-15T1 In 1991, the Legislature amended the Spill Act to provide a private right of action for contribution so that pollution dischargers could share the costs of remediation with additional dischargers not so designated by DEP, i.e., non-settling entities. Magic Petroleum Corp. v. Exxon Mobil Corp., 218 N.J. 390, 405 (2014); Hous. Auth. of New Brunswick v. Suydam Inv'rs, L.L.C., 177 N.J. 2, 18 (2003). The Spill Act "provides for two causes of action: one to recover clean-up costs from [other] dischargers (contribution claim), [N.J.S.A.] 58:10-23.11f(a)(2), and one to recover damages from the NJDEP, or Spill Compensation Fund, [N.J.S.A.] 58:10-23.11k." Bonnieview Homeowners Ass'n v. Woodmont Builders, L.L.C., 655 F. Supp. 2d 473, 503 (D.N.J. 2009). Appellants have not asserted a claim under either section. Except for the right to contribution, only DEP may recover cleanup costs and other damages from responsible parties under the Spill Act: [A]ny person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred. Such person shall also be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs incurred by the [DEP] . . . . [N.J.S.A. 58:10-23.11g(c).] 21 A-0668-15T1 More importantly for purposes of this appeal, the Spill Act clearly provides that only DEP may sue to recover NRD. [DEP] may commence a civil action in Superior Court for, singly or in combination: (1) a temporary or permanent injunction; (2) the costs of any investigation, cleanup or removal (3) the cost of restoring, repairing, or replacing real or personal property damaged or destroyed by a discharge . . . and any reduction in value of the property caused by the discharge by comparison with its value prior thereto; (4) the cost of restoration and replacement, where practicable, of any natural resource damaged or destroyed by a discharge; and (5) any other costs incurred by the department. [N.J.S.A. 58:10-23.11u(b) (emphasis added).] ii. Both appellants seemingly accept that the Spill Act provides no private right of action for citizens to seek NRD 22 A-0668-15T1 from a polluter. The Environmental Groups argue, however, that they have standing under the ERA because of DEP's inadequate enforcement; that is, DEP's decision to settle the lawsuit under the terms of the consent order. They also contend they have standing pursuant to the common law. We disagree. "The ERA creates a private cause of action for declaratory and injunctive relief to protect the environment against 'pollution, impairment and destruction.'" Patterson v. Vernon Twp. Council, 386 N.J. Super. 329, 330-31 (App. Div. 2006) (quoting N.J.S.A. 2A:35A-2 and -4). "The ERA . . . grants a private person standing to enforce an environmental protection statute as an alternative to inaction by the government which retains primary prosecutorial responsibility. ERA does not itself provide any substantive cause of action." Superior Air Prods. Co. v. NL Indus., Inc., 216 N.J. Super. 46, 58 (App. Div. 1987). Beginning with our decision in Township of Howell v. Waste Disposal, Inc., 207 N.J. Super. 80, 98-9 (App. Div. 1986), we have recognized that the ERA grants a private citizen standing to enforce environmental laws, including the Spill Act, as an alternative to inaction or inadequate action on the part of DEP. See, e.g., Morris Cty. Transfer Station, Inc. v. Frank's Sanitation Serv., Inc., 260 N.J. Super. 570, 577 (App. Div. 23 A-0668-15T1 1992) (private plaintiff can use ERA to supplement government action); Port of Monmouth Dev. Corp. v. Middletown Twp., 229 N.J. Super. 445, 451 (App. Div. 1988) (ERA action permitted when DEP failed to act effectively); Superior Air Prods., 216 N.J. Super. at 58-59 (private cause of action may lie when agency inadequately enforces a statute). There are, however, limits. DEP "must normally be free to determine what solution will best resolve a problem on a state or regional basis given its expertise and ability to view those problems and solutions broadly." Howell, 207 N.J. Super. at 95- 96. Whether DEP's actions are adequate requires consideration of "the individual set of facts in each case." Id. at 95; see also Mayor & Council of Rockaway v. Klockner & Klockner, 811 F. Supp. 1039, 1055 (D.N.J. 1993) (whether government's efforts have been sufficient and whether ERA action can proceed are "fact-specific" questions). Although Judge Hogan found appellants failed to demonstrate DEP's actions in this case were inadequate, a conclusion with which we agree, any private right of action under the ERA is limited to "injunctive or other equitable relief to compel compliance with a statute, regulation or ordinance, or to assess civil penalties for the violation as provided by law." N.J.S.A. 2A:35A-4(a); see also Bowen Eng'g v. Estate of Reeve, 799 F. 24 A-0668-15T1 Supp. 467, 479 (D.N.J. 1992) (noting private right of action "through ERA for injunctive relief under the Spill Act"). An action under the ERA may only be "commenced upon an allegation that a person is in violation, either continuously or intermittently, of a statute, regulation or ordinance, and that there is a likelihood that the violation will recur in the future." N.J.S.A. 2A:35A-4(a). The ERA does not provide, and none of the cases cited permit, a private party to sue a polluter to recover NRD under the Spill Act. In short, given the nature of this particular litigation, the ERA did not provide a path for the Environmental Groups or Lesniak to intervene at trial before Judge Hogan.4 We therefore affirm the denial of appellants' motions to intervene at trial. Moreover, even if we are wrong about the need to demonstrate standing in order to intervene at trial, any error in denying intervention in this case was not prejudicial and did not bring about an unjust result. R. 2:10-2. Appellants sought intervention solely to argue against the settlement. In 4 In their brief, the Environmental Groups argue that they had standing through the ERA under the "common law." The judge rejected this claim, concluding that both appellants could not bring a common law claim because they lacked an "ownership interest" in the polluted sites and their proposed complaints in intervention, filed pursuant to Rule 4:33-3, never included such a cause of action. Only Lesniak's complaint is in the appellate record, and it asserts no common law claim or claim under the ERA. 25 A-0668-15T1 granting both appellants' motions to file briefs and make argument as amici, Judge Hogan essentially permitted them to assert their claims as if they had intervened, and he considered fully the arguments they raised before approving the consent judgment. See Atl. Emp'rs Ins. Co. v. Tots & Toddlers Pre- School Day Care Ctr., Inc., 239 N.J. Super. 276, 281 (App. Div. 1990) (finding judge's denial of intervention to be harmless error because "[h]e did allow appellants to argue fully at the summary judgment hearing just as if they formally had been granted permission to intervene, and gave full consideration to their arguments"). II. We come to what is the more difficult issue presented by these appeals. Judge Hogan's conclusion that appellants could not intervene to preserve a right to appeal is not entitled to any deference, because the trial court lacks authority to decide whether an appeal is cognizable in the Appellate Division and whether any particular appellant is entitled to bring the appeal. See Prado v. State, 186 N.J. 413, 422-23 (2006) (discussing Appellate Division's exclusive authority to review agency action under R. 2:2-3(a)(2) even when there is a pending action in the Law Division); State v. A.L., 440 N.J. Super. 400, 418 (App. Div. 2015) (a party aggrieved by a judgment may 26 A-0668-15T1 appeal, and to be aggrieved, the party "must have a personal or pecuniary interest or property right adversely affected by the judgement") (quoting Howard Sav. Inst. v. Peep, 34 N.J. 494, 499 (1961)). Lesniak contends DEP's decision to settle the litigation is akin to any other agency action, and, therefore, reviewable as of right on appeal pursuant to Rule 2:2-3(a)(2). We disagree, only to the extent that we are not reviewing agency action in this case, but rather the consent judgment approved by Judge Hogan. However, although appellants could not intervene at trial because they had no standing to pursue the claims made in the lawsuit, we must now consider whether appellants may challenge the merits of Judge Hogan's approval of the settlement before this court. We have considered the ability of a non-party to file an appeal challenging the judgment entered by the trial court in a variety of settings. "In the post-judgment setting, motions for intervention have received mixed treatment by our courts." Warner Co. v. Sutton, 270 N.J. Super. 658, 662 (App. Div. 1994). "Generally, intervention after judgment is allowed if necessary 'to preserve some right which cannot otherwise be protected.'" Ibid. (quoting Chesterbrooke Ltd. P'ship. v. Planning Bd. of Chester, 237 N.J. Super. 118, 123 (App. Div. 1989)). Our 27 A-0668-15T1 decisions have tailored the standards of Rule 4:33-1 to the unique circumstances presented on appeal. Ibid. See Chesterbrooke, 237 N.J. Super. at 123. Similarly, federal courts have been circumspect in granting intervention post-settlement. See, e.g., R&G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 1 (1st Cir. 2009) (denying post-settlement intervention primarily on timeliness grounds); Farmland Dairies v. Comm'r of N.Y. Dep't of Agric. & Mkts., 847 F.2d 1038, 1044 (2nd Cir. 1988) (denying intervention to challenge settlement after New York Attorney General decided not to appeal, and concluding settlement would be "jeopardized" by intervention); City of Bloomington v. Westinghouse Elec. Corp., 824 F.2d 531 (7th Cir. 1987) (affirming denial of intervention as untimely). However, when the settling party no long adequately represents the putative intervenor's interests, or where the party chooses not to appeal, the federal courts have been more accommodating. See, e.g., United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977) (concluding post-settlement motion to intervene to appeal denial of class certification should have been granted because intervenor's interests were no longer protected by named class representatives). Certainly, "[o]ur prior decisions have recognized the appropriateness of granting a party affected by a judgment leave 28 A-0668-15T1 to intervene to pursue an appeal if a party with a similar interest who actively litigated the case in the trial court has elected not to appeal." CFG Health Sys., L.L.C. v. Cty. of Essex, 411 N.J. Super. 378, 385 (App. Div. 2010). In CFG Health Systems, an unsuccessful bidder (CFG) sued the county and the successful bidder (CHS) seeking to set aside the award of a public contract. Id. at 381. The trial court concluded CHS's bid was defective and ordered the award of the contract to CFG. Ibid. The county and CHS appealed, and we reversed, finding CFG's suit was premature. Id. at 381-82. The county then rejected all bids. Id. at 382. CFG filed a new action, claiming the county's decision was arbitrary and capricious, and CHS's bid was fatally defective. Id. at 382-83. After granting CHS's motion to dismiss, the trial court ordered the county to award the contract to CFG. Id. at 383. The county originally filed an appeal, but later withdrew it; contemporaneously, CHS, no longer a party in the Law Division, moved before us to intervene to file an appeal. CFG opposed the motion. Ibid. Before reaching the merits of the appeal and reversing, Judge Skillman wrote: Our grant of CHS's motion for intervention was directly supported by the principles set forth in Chesterbrooke. CHS's position in this litigation was the 29 A-0668-15T1 same as the County's position; that is, the County's decision to rebid the contract was reasonable and should be upheld. Thus, CHS's position was adequately represented before the Law Division by the County. However, once the County elected not to pursue an appeal from the judgment of the Law Division invalidating its resolutions, CHS's position was no longer adequately represented by the County. Therefore, we reaffirm our decision to grant CHS leave to intervene in order to pursue this appeal. [Id. at 385-86.] Likewise, in Chesterbrooke, 237 N.J. Super. at 124-26, we concluded that objectors who owned property adjacent to a proposed development should be allowed to intervene for purposes of appealing the trial court's decision overturning the planning board's denial of development approvals, even though the board elected not to pursue an appeal. In SMB Associates v. New Jersey Department of Environmental Protection, 264 N.J. Super. 38, 43 (App. Div. 1993), aff'd, 137 N.J. 58 (1994), DEP choose not to appeal the grant of a development waiver by the Coastal Area Review Board (CARB), even though the Commissioner opposed the waiver. We specifically rejected a claim by the developer that public interest environmental groups lacked standing to appeal and reversed the waiver. Id. at 44, 61. We have also recognized a party's right to file an appeal following settlement in the trial court. Warner presented facts that are somewhat similar to this case. There, the appellant 30 A-0668-15T1 environmental groups sought intervention to appeal a settlement reached between a mining company and the local planning board. Warner, 270 N.J. Super. at 660-61. Following our remand, the trial judge denied intervention, concluding appellants' application was untimely. Id. at 662. We reversed and remanded, concluding intervention was timely, particularly since the consent order settling the case "raise[d] a host of new issues which did not exist prior to its entry." Id. at 666 (emphasis added). In Meehan, 317 N.J. Super. at 570-71, we reversed the trial court and recognized an adjacent property owner's right to intervene after settlement between a developer and another objector because no party represented the intervenor's interests any longer. We limited intervention "to challenging the appropriateness of the settlement." Id. at 565. We have also considered appeals brought by individuals and public interest groups that challenged settlements between DEP and others. See, e.g., Pinelands Pres. All. v. State, Dep't of Envtl. Prot., 436 N.J. Super. 510 (App. Div. 2014); Dragon v. N.J. Dep't of Envtl. Prot., 405 N.J. Super. 478 (App. Div. 2009); In re N.J. Pinelands Comm'n Resolution, 356 N.J. Super. 363 (App. Div. 2003). 31 A-0668-15T1 Exxon argues appellants have no standing to appeal because they were not parties in the trial before Judge Hogan. Certainly, some of our opinions have implicitly or explicitly recognized that the intervenor-appellant had standing to pursue the claim in the trial court before bringing the appeal. See CFG, 411 N.J. Super. at 381-85 (intervenor-appellant was once a party to the suit); Warner, 270 N.J. Super. at 664 n.1. (recognizing intervenor-appellant could have filed a direct action challenging the settlement); Chesterbrooke, 237 N.J. Super. at 124 (recognizing objectors' rights to have intervened at trial). However, we have not necessarily preconditioned the right to appeal upon participation in the prior proceeding. SMB Assocs., 264 N.J. Super. at 44 (rejecting challenge to standing "because appellants did not participate below and were not parties in any of the proceedings below"). See also Ocean Cty. Chapter Inc. of Izaak Walton League of Am. v. Dep't of Envtl. Prot., 303 N.J. Super. 1, 11 (App. Div. 1997) (assuming without deciding appellant had standing to appeal even though it chose not to participate in administrative proceedings prior to DEP settlement). As the Court said in Elizabeth Federal Savings & Loan Ass'n v. Howell, 24 N.J. 488, 499-500 (1957) [T]his right to seek judicial review of administrative decisions inheres not only in 32 A-0668-15T1 those who are direct parties to the initial proceedings before an administrative agency . . . but also belongs to all persons who are directly affected by and aggrieved as a result of the particular action sought to be brought before the courts for review. Indeed, in its per curiam opinion affirming our judgment in SMB Associates, the Court concluded that the American Littoral Society (ALS) had standing to appeal CARB's final decision even though it had not participated in the agency proceedings. The policy choice between the desire to have a manageable administrative hearing process (without a proliferation of parties) and the public interest in not having non-party objectors raise issues in judicial appeals that might better be resolved in the agency process is difficult. This case is atypical in that the position of the primary regulator (DEPE) in the administrative hearing was at variance with that of the final review body (CARB). ALS argues that it could not have foreseen that existing DEPE policy would not be applied to the case under review. ALS did not lay back to sandbag its opponents later. Thus, although our dissenting colleague makes an excellent argument that notions of fundamental fairness and exhaustion of administrative remedies should preclude sophisticated third-party objectors from intervening in litigation after observing its progress for several years, this is not the case for application of those principles. These facts are much too unusual to deny ALS standing to appeal, even though ALS should have made its position known earlier in the administrative process. Under the circumstances, the Appellate Division did not err in concluding that ALS, as an association concerned with the preservation of our coastal resources, had sufficient 33 A-0668-15T1 interests in the water-dependent development issues of this case to appeal the CARB action under Rule 2:2-3(a)(2). [SMB Assocs., 137 N.J. at 61-62.] We therefore reject Exxon's argument. DEP acknowledges that a party may challenge settlements under the Spill Act, but only if the challenger can independently assert standing. It contends that Lesniak's interests, as a resident of Elizabeth and legislator for that district, fail to provide him with standing. DEP argues that the Environmental Groups lack standing to appeal for some of the same reasons that prevented their intervention before Judge Hogan, noting no court has permitted a private third party to challenge an NRD settlement on appeal because private parties cannot sue for NRD under the Spill Act. It also argues that the Environmental Groups cannot appeal because DEP has adequately represented their interests throughout the litigation, including settlement of the lawsuit. However, in Salorio v. Glaser, 82 N.J. 482, 491 (1980), the Court declared: "We have consistently held that in cases of great public interest, any 'slight additional private interest' will be sufficient to afford standing." See SMB Assocs., 264 N.J. Super. at 46 ("Our courts have held that a 'slight private interest, added to and harmonizing with the public interest,' is 34 A-0668-15T1 sufficient to give standing to seek judicial review of official action.") (quoting Elizabeth Fed., 24 N.J. at 499). See also In re Tax Credit Application of Pennrose Props., Inc., 346 N.J. Super. 479, 482 (App. Div. 2002) ("While we find that the standing issue is certainly debatable, we prefer, given the public interest in a matter such as this, to resolve the issue on its substantive merits."). In particular, we have expanded standing to appeal agency action when it is likely that no one can or will assert the public's opposing interests. See In re Waterfront Dev. Permit, 244 N.J. Super. 426, 438 (App. Div. 1990) (permitting public interest environmental group to challenge DEP's actions in granting development permit when it was unlikely that local residents and others would). We conclude Lesniak lacks standing to pursue this appeal. We agree with DEP that he lacks a sufficient "personal or pecuniary interest or property right adversely affected by the judgement." A.L., 440 N.J. Super. at 418. We therefore affirm in A-0668-15. We conclude, however, the Environmental Groups do have standing to appeal, based upon their broad representation of citizen interests throughout this state. We disagree with DEP that the Environmental Groups have no standing to appeal because 35 A-0668-15T1 DEP shares the same objectives they do, and the agency continues to adequately represent the groups' interests. We recognize DEP's preeminent position as the agency designated by the Legislature to "formulate comprehensive policies for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State." N.J.S.A. 13:1D-9. We further acknowledge that the choice to settle litigation rests largely within an agency's discretion, and we generally defer to that choice "so long as it 'is responsive to the purpose and function of the agency.'" Dragon, 405 N.J. Super. at 492-93 (quoting Texter v. Dep't of Human Servs., 88 N.J. 376, 385-86 (1982)). However, as we already noted, those general principles do not automatically eliminate all challenges to DEP's decision to settle a dispute. Although we agree private actors cannot sue for NRD, the Legislature amended the Spill Act by enacting N.J.S.A. 58:10- 23.11e2 in 2005. That section provides DEP, prior to its agreement to any administrative or judicially approved settlement entered into pursuant to [the Spill Act], . . . shall publish in the New Jersey Register and on the New Jersey Department of Environmental Protection's website the name of the case, the names of the parties to the settlement, the location of the property on which the discharge occurred, and a summary of the terms of the settlement, including 36 A-0668-15T1 the amount of any monetary payments made or to be made. The Department of Environmental Protection shall provide written notice of the settlement, which shall include the information listed above, to all other parties in the case and to any other potentially responsible parties of whom the department has notice at the time of the publication. [Ibid. (emphasis added).] We note that this section was enacted at the same time N.J.S.A. 58:10-23.11f(a)(2)(b) was added to the Spill Act, Cumberland Farms, 447 N.J. Super. at 429-430, which shields settling polluters from contribution claims made by other polluters and at the same time provides non-settling polluters with pro tanto credit for the amount of the settlement DEP reaches with the settling polluter. DEP's obligation to provide written notice of the settlement to "all other parties in the case and to any other potentially responsible parties of whom the department has notice," N.J.S.A. 58:10-23.11e2 (emphasis added), furthers the Legislature's obvious purpose and is consistent with DEP's position that only parties, or other polluters who might intervene, may challenge a court approved Spill Act settlement. However, the statute's legislative history does not elucidate the Legislature's purpose in also requiring DEP to furnish a separate public notice of the court settlement. As we have noted, "[e]ven prior to the enactment of N.J.S.A. 58:10- 37 A-0668-15T1 23.11e2, . . . the settlement agreements negotiated between the DEP and responsible parties included provisions requiring the publication of public notice in the New Jersey Register of a settlement agreement, even if it was already signed." Cumberland Farms, 447 N.J. Super. at 430 (emphasis added). Because the Legislature required public notice, in addition to the written notice DEP must provide to all parties and possible parties of which the agency is aware, we doubt the Legislature intended notice and comment would immunize DEP from all challenges to its ultimate decision to settle litigation brought in the trial courts of this State under the Spill Act. We therefore conclude the Environmental Groups have standing to appeal Judge Hogan's decision approving the consent judgment. We now turn to that issue. III. Our cases have long recognized the necessity of holding a judicial hearing to approve a settlement in a variety of situations when significant public interests are involved. Courts have taken this approach when reviewing settlements of: land use litigation, see Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Board, 407 N.J. Super. 404 (App. Div. 2009); Gandolfi v. Town of Hammonton, 367 N.J. Super. 527 (App. Div. 2004); Warner Co. v. Sutton, 274 N.J. Super. 464 38 A-0668-15T1 (App. Div. 1994) (Warner II); exclusionary zoning suits, see Livingston Builders, Inc. v. Township of Livingston, 309 N.J. Super. 370 (App. Div. 1998); and litigation over utility connection fees, see Builders League of South Jersey, Inc. v. Gloucester County Utilities Authority, 386 N.J. Super. 462 (App. Div. 2006). In Warner II, 274 N.J. Super. at 480, we recognized "no court rule or other Supreme Court guidance as to the parameters of such a fairness hearing." However, as Judge Skillman wrote when sitting as a trial judge: The hearing on the proposed settlement is not a plenary trial and the court's approval of the settlement is not an adjudication of the merits of the case. Rather, it is the court's responsibility to determine, based upon the relative strengths and weaknesses of the parties' positions, whether the settlement is "fair and reasonable," that is, whether it adequately protects the interests of the persons on whose behalf the action was brought. [Morris Cty. Fair Hous. Council v. Boonton Twp., 197 N.J. Super. 359, 370 (Law Div. 1984) (citations omitted), aff'd o.b., 209 N.J. Super. 108 (App. Div 1986).] We might add one further standard, although it seems implicit from Judge Skillman's description. The judge conducting the fairness hearing must conclude that the settlement does not exceed the legal authority of the public entity. See, e.g
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