STATE OF NEW JERSEY IN THE INTEREST OF B.L a juvenile

RECORD IMPOUNDED

                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-5313-18T4

STATE OF NEW JERSEY
IN THE INTEREST OF B.L.,
a juvenile.


                Submitted November 5, 2020 – Decided December 18, 2020

                Before Judges Alvarez and Sumners.

                On appeal from the Superior Court of New Jersey, Law
                Division, Cumberland County, Chancery Division,
                Family Part, Docket No. FJ-06-00-00.

                Gurbir S. Grewal, Attorney General, attorney for
                appellant State of New Jersey (Donna Arons, Assistant
                Attorney General, of counsel; Candice McLaughlin,
                Deputy Attorney General, on the brief).

                Respondent B.L. has not filed a brief.

PER CURIAM

       On June 24, 2019, a Family Part judge refused to vacate his prior order

dismissing certain complaints, which he addressed as juvenile delinquency

matters, with prejudice.                 The New Jersey Department of Environmental

Protection, Division of Fish and Wildlife (Division), had filed charges under
Title 23 for hunting violations allegedly committed by B.L., a juvenile .1 The

judge dismissed the case because, while acknowledging the State's failure to

provide timely discovery was not contumacious, he believed that the juvenile's

best interests were served by dismissal under "the totality of the circumstances."

We disagree, vacate the dismissal, reinstate the charges, and direct that the

proceedings begin anew in the municipal court where they originated.

        The Division charged B.L. by way of summons, returnable in the

municipal court, that on December 4, 2017, he negligently used a firearm,

 N.J.S.A. 23:9A-1, and damaged or injured property while hunting,  N.J.S.A.

23:7-3. The summonses followed B.L.'s alleged accidental shooting of another

hunter in the leg, causing significant injury. The issue of which court has

jurisdiction is at the heart of this dispute.

        On July 11, 2018, B.L.'s second attorney moved either for a transfer of the

case to juvenile court, or outright dismissal because of the State's failure to

provide discovery. We do not know whether he made the request on the record,

by way of formal motion, by letter, or even whether the municipal prosecutor

responded. On July 19, 2018, the municipal court referred the charges to the

Family Part.


1
    B.L. elected not to participate in the appeal.
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      The Family Part judge considered the relevant statutes penal in nature in

light of the potential consequences to the juvenile, including a five-year

suspension of B.L.'s hunting license and the imposition of monetary penalties.

The enforcement of penal statutes against minors generally triggers the

prosecution of such charges in the juvenile court. R. 5:23-1. B.L. was sixteen

at the time of the incident.

      The Division contends on appeal, as it did in a very brief statement

immediately following the Family Part judge's denial of the Rule 4:50-1(f)

motion at issue, that the complaints are civil in nature, should have remained in

municipal court, and should not have been transferred to the Superior Court.

The analysis leading to our conclusion requires the following chronological

history.

      In accordance with the Division's standard procedure, the municipal court

prosecutor initially handled the matter. See R. 7:8-7(b). On January 16, 2018,

B.L. entered not guilty pleas. On April 17, 2018, the municipal court judge

postponed the hearing so the prosecutor could provide discovery. We do not

know if the continuance granted April 17, 2018, was informal or placed on the

record after a formal request. On May 13, 2018, having received additional




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discovery from the Division, the prosecutor electronically transmitted it to B.L.'s

first attorney.

      On June 7, 2018, a further postponement was granted because B.L.'s first

attorney had been in a serious motor vehicle accident, which eventually caused

him to withdraw. The next scheduled court date, July 11, 2018, resulted in B.L.'s

second attorney's successful application to transfer the matter to the Family Part.

      On August 10, 2018, the Family Part judge wrote to B.L's second attorney,

asserting in one sentence that the court had jurisdiction over the summonses.

No reason was given. The judge further stated that although B.L. at the time

resided in another county, the matter would be addressed in Cumberland County

as an exception to the home county rule, Rule 5:19-1(a)(1), because "this court

has gone to length to research the issues involved here and for the sake of

judicial economy." The letter fixed the next date for hearing, October 12, 2018,

and directed the municipal prosecutor to provide full discovery on or be fore the

end of business on Friday, September 14, 2018. We do not know the reason

discovery was mentioned—whether it was the judge's standard practice to set a

pre-trial date, or if some discussion took place not included in the record on

appeal.




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      At the October 12, 2018 hearing, due to a calendaring error, the municipal

prosecutor failed to appear. B.L.'s second attorney moved to dismiss the matter

because of that failure, also mentioning that he had not been provided with

discovery. The judge granted the application, dismissing the case for "failure to

prosecute."

      On October 14, 2018, having been informed of the dismissal, the

municipal prosecutor wrote to the court apologizing for his absence. He also

requested the matter be relisted because the victim wished to be heard. The

judge did not respond.

      The municipal prosecutor promptly filed a motion for reconsideration of

the court's dismissal. The judge denied reconsideration after oral argument on

December 13, 2018. During the hearing, B.L.'s second attorney stated that the

first attorney's file did not include discovery, which had just been supplied to

him approximately a month before—approximately a month after the dismissal.

Referencing Rule 7:7-7(g), the court noted that discovery should have been

provided within ten days of the filing of the complaints, making service

extremely untimely. The judge reiterated that the matter was in juvenile court

because of "the seriousness of the repercussions that could be suffered" by B.L. ,

presumably referring to the potential five-year hunting license suspension, and


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potential civil monetary penalties of up to $2000 for a violation of  N.J.S.A. 23:7-

3, and between $500 and $2000 for a violation of  N.J.S.A. 23:9A-1.

      Referring to discovery, the Family Part judge added that after "all of the

chances" given to the prosecutor, he had failed "to make things right and to do

things right[.]" The judge acknowledged the prosecutor readily admitted his

scheduling error, and that "a number of officers have sat here the whole

afternoon[.]" But since the discovery obligation had been "woefully violated by

the prosecutor" and the prosecutor failed to appear on the original scheduled

date, he denied the motion. At that juncture, the Attorney General (A.G.'s

office) assumed representation on behalf of the Division.

      A Division police captain requested transcripts of the October 12 and

December 13 proceedings on December 31, 2018; that request was denied on

the grounds of the confidentiality of juvenile proceedings. On January 14, 2019,

the A.G.'s office made the request; on January 18, 2019, the judge signed an

order authorizing release. The A.G.'s office received the order on January 28,

2019. The transcripts were received electronically on February 22, 2019.

      Neither the order nor the transcript indicated whether the dismissal was

with or without prejudice. When the A.G.'s office inquired, on February 25,

2019, the clerk advised that the dismissal was with prejudice. The A.G.'s office


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filed the Rule 4:50-1(f) motion on March 11; it is that application that generated

the order now appealed.

      In rendering findings and conclusions of law on the Rule 4:50-1(f) motion,

the judge again opined that the matter fell within the purview of the juvenile

statutes, adding that Fish and Wildlife violations were not included in the

exceptions to application of the juvenile code found in  N.J.S.A. 2A:4A-23. He

repeated that he considered his familiarity with the matter, and the time that

would be expended in transferring the case, to constitute good cause to keep it

in Cumberland County as opposed to transferring it to B.L.'s home county.

      The judge found the municipal prosecutor did not provide discovery until

at least May 13, 2018, and possibly later. He noted that the Division conceded

that by September 25 it was aware that B.L.'s attorney had not received

discovery and also noted the prosecutor's failure to appear on the trial date. The

judge pointed out that despite the application for reconsideration being

untimely, he had nonetheless addressed it.          Furthermore, although the

documentation supplied by the municipal prosecutor verified that discovery had

been sent electronically, the accompanying electronic transmission notification

warned the documents would not be available to the recipient beyond May 21.

The electronic transmission record did not indicate discovery was downloaded.


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Therefore, the judge further found the Division failed to prove that discovery

had ever been received by the first attorney and credited the second attorney's

claim that it was never supplied to him until after dismissal of the charges. The

judge relied on his reasons for denying reconsideration as the grounds for

denying the Division's Rule 4:50 motion. He highlighted the prosecutor's failure

to cure the discovery problem until after dismissal of the complaints and

declined to characterize his decision as one rendered on a Rule 4:50 motion.

      Concluding that the rules governing the case were found in Part V of the

New Jersey Rules of Court, as supplemented by Part III, the judge rejected the

State's argument that the applicable rules were found in Part IV.2 He considered

these Fish and Wildlife violations to be criminal or quasi-criminal, and thus

properly heard as juvenile proceedings. Explicitly finding that the failure to

provide discovery was not contumacious, the judge, applying a totality of the

circumstances test, held that the child's right to move on with his life after the


2
  Part IV of the New Jersey Rules of Court "govern[s] the practice and procedure
of civil actions . . . ." Part V governs family actions. R. 5:1-1. Where
applicable, the rules of Part I also govern family actions. Ibid. "Civil family
actions shall also be governed by the rules in Part IV insofar as appl icable and
except as otherwise provided by the rules in Part V. Criminal and quasi-criminal
family actions shall also be governed by the rules in Part III insofar as applicable
except as otherwise provided by the rules in Part V." Ibid. Finally, "[juvenile]
delinquency actions shall be governed by the rules in Part III insofar as
applicable and except as otherwise provided by the rules in Part V." Ibid.
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charges had been pending for a year warranted the earlier dismissal of the

charges with prejudice. He said, "[t]his matter needs to be ended. It needs to

be ended in the child's best interest."

      The State argues the following points of error:

             1.  THE STATE'S RULE 4:50-1                   MOTION
             SHOULD HAVE BEEN GRANTED                      IN THE
             INTEREST OF JUSTICE.

                   A.   The lower court's decision was flawed
                   because it was based on a mistaken
                   understanding and application of the law.

                   B.    The lower court erred in dismissing the
                   complaints with prejudice because the relevant
                   court rules do not allow for dismissal with
                   prejudice.

                          1.    Dismissal for failure to prosecute is
                          inapplicable here, and sanctions do not
                          include dismissal with prejudice.

                          2.    The rules governing sanctions for
                          counsel's failure to appear only permit
                          dismissal as a recourse of last resort when
                          no other remedy is available.

                          3.    Dismissal for discovery defects
                          requires a two-part notice and motion
                          practice prior to dismissal with prejudice.

                          4.    Court rules governing criminal
                          practice do not allow for dismissal with
                          prejudice.


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              II. BECAUSE THIS IS A CIVIL, NOT A
              JUVENILE DELINQUENCY MATTER, IT IS NOT
              COGNIZABLE IN THE FAMILY PART SO
              REMAND SHOULD BE TO THE LAW DIVISION
              OR MUNICIPAL COURT.

      Ordinarily, we would simply reiterate the standard of review for Rule

4:50-1(f) motions and begin our analysis there. We are not aware of cases in

which the rule has been applied in a juvenile proceeding. The Family Part judge

merely characterized the Division's application as "a request to reconsider the

denial of a Motion to Reconsider." The difficulty in characterizing even the

Division's motion arises from the procedural confusion as to which court has

jurisdiction, a question never fairly resolved.

      Decisions regarding Rule 4:50-1(f) motions are reviewed for clear abuse

of discretion. Housing Auth. of Morristown v. Little,  135 N.J. 274, 283 (1994);

Piscitelli v. Classic Residence by Hyatt,  408 N.J. Super. 83, 102 (App. Div.

2009). An abuse of discretion occurs when a decision is "made without a

rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis." U.S. Bank Nat'l Ass'n v. Guillaume,  209 N.J. 449,

467 (2012).

      Motions for reconsideration are also reviewed for abuse of discretion.

Kornbleuth v. Westover,  241 N.J. 289, 301 (2020). The reconsideration rule


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requires the moving party to "convince the court that either 1) it has expressed

its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious

that the court either did not consider, or failed to appreciate the significance of

probative, competent evidence." Ibid. (quoting Guido v. Duane Morris LLP,

 202 N.J. 79, 87-88 (2010)).       The burden is on the movant to state "with

specificity the basis on which [the motion] is made, including a statement of the

matters or controlling decisions which counsel believes the court has overlooked

or as to which it has erred." R. 4:49-2.

      Regarding the judge's discussion, he acknowledged that the municipal

prosecutor's failure to provide discovery was not contumacious. We cannot tell

from this record if the municipal prosecutor did in fact fail to provide timely

discovery in the first instance. We do not know, for example, if the initial

inactivity in the case was attributable to B.L.'s delay in retaining counsel. We

do not know the date of a counseled first appearance, or if the issue of discovery

was raised then. Although discovery was sent to B.L.'s first attorney, he did not

acknowledge receipt. We also know that on some unknown date, the attorney

was in a serious accident which made it impossible for him to continue to

represent B.L.    If, for example, the first attorney failed to download the




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discovery because of his personal circumstances, it would be unfair to visit the

sanction of a dismissal with prejudice on the Division.

      Certainly, the municipal prosecutor did not timely respond to the request

for discovery made by B.L.'s second attorney, and that conduct appears to be

unexcused. But he may not have been as responsive because he thought that he

had previously provided discovery and that it was in the second attorney's file.

No claim is being made here that the attorney's failure to provide discovery was

willful, or deceitful, or intended to prevent the matter from moving forward.

Pursuant to Rule 1:2-4, the court had the option of imposing other sanctions for

the municipal prosecutor's failure to appear and the untimely production of

discovery, as opposed to an outright dismissal with prejudice.

      Thus, in this case, the dismissal with prejudice of charges arising from an

accidental shooting does appear to be a decision made without a "rational

explanation" and in violation of the policy behind our rules—criminal and

civil—to dismiss matters with prejudice only in extreme circumstances. See R.

1:13-7; R. 3:25-3; R. 4:23-5. Those circumstances are not present here.

      Additionally, we do not agree that the stress inflicted on B.L. because of

the delays justified a dismissal with prejudice. Given the comparatively minor

possible sanctions, B.L. no doubt was able to move forward with his life


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regardless of the pendency of proceedings. As has been said long ago in a

different context, "[u]ntil courts have exhausted means of performing their

shepherding function which do not terminate or deeply affect the outcome of a

case, they ought not to bar a litigant's way to the courtroom."         Audubon

Volunteer Fire Co. No. 1 v. Church Constr. Co.,  206 N.J. Super. 405, 407 (App.

Div. 1986).   The Family Part judge's decision was a mistaken exercise of

discretion.

      Hunting statutes, by their very nature, implicate public safety. Therefore,

whether this is a criminal, quasi-criminal, or civil matter is important. By

returning the case to the starting point, we do not suggest the outcome. Counsel

for both parties shall be afforded the opportunity to brief and argue the question

of which court has jurisdiction before the municipal court judge for an initial

determination. Thereafter, either a transfer to the juvenile court or an appeal to

the Superior Court, Law Division, may follow. A record of facts and legal

analysis will be developed in due course that will enable, if need be, appellate

review as well.

      The dismissal with prejudice is vacated. The complaints are reinstated,

and the matter is remanded to the municipal court.




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