ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] In *Bayshore Sewereage Co. v. Dept. of Environmental Protection*, 122 N.J. Super 184, 199-200, (Ch. Div. 1973), the court explicated the concept of "arbitrary and capricious" action:  In the law, "arbitrary" and "capricious" means having no rational basis.  *Bicknell v. United States*, 422 F. 2d 1055, 1057 (5th Cir. 1970).  The terms "arbitrary" and "capricious" embrace a concept which emerges from the due process clauses of the 5th and 14th Amendments of the United States Constitution and operate to guarantee that acts of government will be grounded on established legal principles.  *See Canty v. Bd. of Education, City of New York*, 312 F. Supp. 254, 256 (D.C.S.D.N.Y. 1970).  Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances.  Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.  *State v. Johns*, 66 Wash. 2d 199, 401 P. 2d 841, 842 (Wash. Sup. Ct. 1965); *Tacoma v. Welcker*, 65 Wash. 2d 677, 399 P. 2d 330, 335 (Wash. Sup. Ct. 1965); *In re West Laramie*, 457 P. 2d 498, 502 (Wyo. Sup. Ct. 1969); *State v. Bruno*, 61 Wash. 2d 461, 378 P. 2d 691, 696 (Wash. Sup. Ct. 1963); *Miller v. Tacoma*, 61 Wash. 2d 374, 378 P. 2d 464, 474 (Wash. Sup. Ct. 1963); *Petition of City of Bellevue*, 62 Wash. 2d 458, 383 P. 2d 286, 288 (Wash. Sup. Ct. 1963); *Urmston v. North College Hill*, 114 Ohio App. 213, 175 N.E. 2d 203, 206 (Ct. of Appeals, Hamilton Co. 1961); *Wagoner v. Arlington*, 345 S.W. 2d, 759, 763-764 (Tex. Civ. App. 1961); *DuPont-Fort Lewis School Dist. #7 v. Bruno*, 79 Wash. 2d 736, 489 P. 2d, 171, 174 (Wash. Sup. Ct. 1971).  Moreover, the court should not substitute its judgment for that of an administrative or legislative body if there is substantial evidence to support the ruling.
[brief] ”  Reply Brief to Motion to Compel at 1, Doc. No. 159.  Plaintiff argues: (1) the [...] reports were “hidden” within 4,000 pages of documents produced the day before the discovery deadline (id.); (2) defendant discovered relevant e-mails in August 2012 that it did not produce until October 2012(id.); (3) defendant's claim that it inadvertently failed to produce relevant documents is incredulous (id. at 3–5) and spurious Montana v. County of Cape May Board of Freeholders, Not Reported in Fed. Supp. (2013) 2013 WL 11233748 (id. at 16–18); (4) defendant withheld the [...] reports to poison his future wage loss claim (id. at 6); (5) the exclusion of the [...] reports from plaintiff's personnel file was “a bald attempt to hide the reports from the plaintiff until the last possible moment” (id. at 7); (6) defendant not only acted in bad faith but it fraudulently concealed relevant evidence (id.); (7) counsel made a knowing false statement to the Court (id. at 810); (8) defendant misused the attorney-client privilege to withhold relevant documents and to avoid Court oversight of its discovery obligations (id. at 10–15); and (9) “defendants have presented a pattern of intentionally evasive discovery practices” (id. at 17)(emphasis omitted).
[brief] In addressing the question of “how to calculate just compensation when the taking of a portion of the property for a public project” the Supreme Court of New Jersey relied upon the United States Supreme Court’s ruling in *Bauman v. Ross*, 167 U.S. 548 (1897), stating, “Thus, just compensation is measured by the loss caused by the taking: He is entitled to receive the value of what he has been deprived of, and no more. ”  *Karan, supra* at 408, quoting *Bauman, supra* at 574 (1897) [internal quotations omitted]  [emphasis added].  The reasoning set forth by the Supreme Court of New Jersey in *[...] v. [...]*, 177 N.J. 2 (2003) further supports the Borough’s arguments that alleged physical damage to the Property resulting from construction activities is not compensable in a condemnation action.
[directive] Testimony of Jailhouse Informants  A. Director.  Prior to calling a jailhouse informant as a Approval by County Prosecutor1 or witness, the prosecution team must obtain the approval of the County Prosecutor or Director.  In seeking approval, the prosecution team must supply to the Prosecutor or Director the following information:  Criminal history.  1.  The known criminal history of the jailhouse informant, including any pending charges; Benefits for testimony.  2.  Any benefit offered or provided to a jailhouse informant, or that may be offered or provided to the jailhouse informant in the future, in connection with the jailhouse informant’s testimony against the defendant; The County Prosecutor may delegate this authority to the First Assistant County Prosecutor.  1  Page 3  Defendant’s alleged statements.  3.  Any statements allegedly made by the defendant and heard by the jailhouse informant and, to the extent known, the time, location, and manner of their alleged disclosure to the jailhouse informant; Any known prior recantations.  4.  The time, location, and manner of any recantation known to the prosecution team in which the jailhouse informant recanted the defendant’s statement; Any known prior testimony by informant.  5.  The case name and jurisdiction of any criminal case known to the prosecution team in which the jailhouse informant testified (or a prosecutor intended to have the informant testify) about statements made by another suspect or criminal defendant while detained or incarcerated, and whether the jailhouse informant was offered or received any benefit in exchange for or subsequent to such testimony; Any other information relevant to the jailhouse informant’s credibility; 6.  Evidence corroborating informant’s testimony.  7.  A summary of any evidence corroborating the jailhouse informant’s testimony, including any independent evidence that the defendant in fact made the inculpatory statements alleged by the informant; and Publicly known facts.  8.  A summary of the facts publicly known about the defendant’s case at the time that the defendant allegedly made the inculpatory statements to the jailhouse informant, and a comparison of those facts to the information subsequently proffered by the jailhouse informant to law enforcement.  In deciding whether to approve the use of the jailhouse informant as a witness, the County Prosecutor or Director shall ensure that the prosecution team has satisfied its discovery obligations and that there is independent, credible evidence corroborating the informant’s testimony.
[brief] In response to the judge asking whether [...] planned to testify, defense counsel asked the court to hold a Sands/Brunson hearing before he discussed the matter with his client.  (6T:126-20 to 127-5)  [...] chose not to testify immediately after the court ruled that his two prior convictions could be used to impeach him.  (6T:133-5 to 134-13, 136-13 to 137-17)  Thus, the trial court’s erroneous evidentiary ruling requires reversal.  Moreover, as in *Hedgespeth* and *R.J.M.*, the State’s evidence was hardly overwhelming or indisputable, and had the jury heard [...]’s testimony, it may well have reached a different result.
[brief] The Department’s Disciplinary Action  Because of the above conduct, the Department issued [...] two Preliminary Notices of Disciplinary Action (“PNDA”).  First, on October 1, 2019, the Department served [...] with the PNDA for his failure to conduct inmate counts during his shift on August 16, 2019.  (Pa109a, Pa111a).  [...] was charged with incompetency, inefficiency, or failure to perform duties, pursuant to N.J.A.C. 4A:2-2.3(a)(1), neglect of duty, pursuant to N.J.A.C. 4A:2-2.3(a)(7), other sufficient cause, pursuant to N.J.A.C. 4A:2-2.3(a)(12), and numerous other violations of Department policy.  Ibid.  All charges were sustained and a Final Notice of Disciplinary Action (“FNDA”) issued on October 25, 2019; [...] was removed from his position effective October 17, 2019.  (Pa111a).  On October 16, 2019, the Department served [...] with a second PNDA related to the lineup incident on August 17, 2019.  (Pa117a).  [...] was charged with conduct unbecoming a public employee, pursuant to N.J.A.C. 4A:2-2.3(a)(6), other sufficient cause, pursuant N.J.A.C. 4A:2-2.3(a)(12), and various other violations of Departmental policy.  A FNDA was issued on January 14, 2020, sustaining all charges against [...].  (Pa119a).  [...] appealed his removal to the Civil Service Commission (“Commission”) and the matter was transmitted to the Office of Administrative Law (“OAL”) as a contested case.  B.
[directive] CONSEQUENCES OF A REFUSAL TO SUBMIT TO A DRUG TEST  A.  Applicants who refuse to submit to a drug test during the pre-employment process shall be immediately removed from consideration for law enforcement employment and barred from consideration for future law enforcement employment for period of two years from the date of the refusal.  In addition, the appointing authority shall forward the applicant's name to the Central Drug Registry and note that the individual refused to submit to a drug test.  B.
[brief] And why have two applications for development, but only one approval for it?  Despite this, [...] postulates that the [...] is an “arm” of the Board.  Relying on circular logic, it claims – on pages 25 and 26 of its brief – that the [...] is a “municipal agency”, defined at N.J.S.A. 40:55D-5, for purposes of determining whether an application for development is “complete” pursuant to N.J.S.A. 40:55D-10.3, and therefore, because it made a submission to the [...] before the Ordinance went into effect, the Ordinance does not impact its application.
[brief] See N.J.S.A. 2C:39-5(b).  (Da2)  The Court separately suggested that both Mr. and [...] were victims of the offense of aggravated assault by pointing a firearm.  (95-1 to 12)  This offense merged into the manslaughter conviction and [...] did not receive a separate sentence for the pointing conviction.  (Da49)  Even if the Court’s conclusion that [...] could both be considered victims of the single pointing offense were not erroneous, this rationale would only support running the fourth-degree pointing conviction consecutive to the manslaughter conviction—not the conviction for unlawful possession of a firearm.
[brief] **COUNTER STATEMENT OF FACTS**  A.  The Underlying Action  i.  The Underlying Pleadings  [...] began the first of his two lawsuits against [...] in April 2010, when he filed the Underlying Action.  He alleged that he purchased a condo maintained by [...], a condo board, and by [...] (“[...]”), [...]’s property manager.  Da1118a-Da1119a.  [...] alleged that water infiltration led to the formation of toxic mold in his condo unit, causing him to suffer property damage and bodily injury.  Da1119a.  He repeatedly alleged that he “inhaled toxic mold and sustained severe and permanent personal injuries. ”  Da1121a-Da1124a.  After two years of litigation, [...] settled for $110,000, to be paid by [...] and [...] (the “2012 Settlement”).  The 2012 Settlement provided [...] and [...] with a total release.  But that Settlement permitted [...] to re-file his complaint and seek damages in excess of $110,000 from [...] and [...]’s insurers, provided they were identified.  Da2081a-Da2094a.
[brief] This is because (1) the [...] follows form to the primary [...]; and (2) the same definition bars UIM coverage in the [...] and the [...].  Additionally, the scope and application of UIM coverage is clearly set forth in the [...] and similar provisions have been repeatedly upheld to bar UIM coverage for vehicles owned by or available to resident “family members. ”  Accordingly, the plain language of the [...] should be applied as written.  In support of its position that the insureds’ reasonable expectations require that UIM coverage be provided, Appellants cite only to general principles of law in relatively older decisions by the New Jersey Supreme Court.
[brief] When the municipal alliance job was taken from you did think that was another thing being done to trigger your anxiety and your depression and to retaliate against you for getting counsel?  A.  Yes, I felt that after the events that took place in September on the 29th, after that I felt that, you know, they were just doing all sorts of things.  I felt like they were trying to come up with any reason to fire me and I—you know, anything at all and to make me miserable… (4T:148:25-149:1-10).  Although Appellants’ trial counsel effectively cross-examined Respondent, getting her to admit that she did not notify the Township of her disability until February 2018 (4T at 180:19-25—182:1-16), which was well after both the date of the stoppage of the Grant salary and the date the letter of legal representation was sent to the Township, and Respondent admitted during re-direct examination that she first began to experience harassment regarding disability only after she submitted her initial FMLA paperwork to the Township in February 2018 (4T at 193:4-6 the prejudicial effect on the jury is undeniable and evident from the jury’s award of compensatory damages for the loss of the Grant salary.  For the sake of judicial economy, Appellants will rely on its their brief-in-chief in response to Respondent’s contention that no McKenney violation took place.
[brief] See, e.g., Hipsher v. Los Angelis County Employee Retirement Ass’n., 58 Cal. App. 5th 671, 272 Cal. Rptr. 3d 664, 2020 Cal. App. LEXIS 1184, 2020 WL 7350585 (Cal App. 2020) (a public employee was deprived of due process when his retirement benefits were forfeited in an administrative process where deficiencies in the administrative process prejudiced the employee).  I was afforded no due process, meaningful or otherwise, in this case since I was notified of the reduction in my monthly pension benefit and complete loss of my life insurance benefit ($9,952.12) in July of 2022, seven months after my retirement on February 1, 2022, and told that I had no remedy to cure my retirement disaster caused by the error of my former employer.  Pa11 to Pa13, Pa42 to Pa43 and Pa72 to Pa73.  Where is the due process in [...] notifying me “oops-you-no-longer-have-any-life-insurance-benefit-and-it-is-too-late-for-you-to-fix-this-disaster”?  Had I been given notice before my retirement, I could have purchased two months service credit for $614.72 to avoid my retirement disaster.
[brief] I.  STANDARD ON APPEAL  It is well-settled that “fee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion. ”  Rendine v. Pantzer, 141 N.J. 292, 317 (1995) (emphasis added).  This Court, therefore, should apply this “deferential standard of review” in this case.  See Packard-Bamberger & Co., 167 N.J. 427 (2001).  An abuse of discretion “arises when a decision is ‘made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis. ’”  Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002).  As set forth more fully below, this trial court did not abuse its discretion in reaching its decision on Plaintiff’s motion for attorney’s fees.  Therefore, the order of the trial should not be disturbed.
[brief] a)  **Equitable estoppel.**  The New Jersey Supreme Court defined equitable estoppel as follows:  The essential principle of the policy of estoppel here invoked is that one may, by voluntary conduct, be precluded from taking a course of action that would work injustice and wrong to one who with good reason and in good faith has relied upon such conduct.  . .  An estoppel . . . may arise by silence or omission where one is under a duty to speak or act.  . .  It has to do with the inducement of conduct to action or nonaction.  . .  The doing or forbearing to do an act induced by the conduct of another may work an estoppel to avoid wrong or injury ensuing from reasonable reliance upon such conduct.  The repudiation of one's act done or position assumed is not permissible where that course would work injustice to another who, having the right to do so, has relied thereon.
[brief] State-law tort litigation, such as this, that “require[s] a manufacturer to choose between leaving the market and accepting the consequences of its actions,” is preempted.  Bartlett, 570 U.S. at 491.\textsuperscript{17}  Since Bartlett, state-law tort claims that would “require[]” the manufacturer of an FDA-approved drug “to exit the market” have been uniformly preempted, however pleaded.
[brief] The Local Government Ethics Law (LGEL), N.J.S.A. 40A:9-22.1 to -22.25, establishes a code of ethics which “governs virtually every person who serves in local government, except individuals appointed to purely advisory bodies, and officials, such as school board members and municipal court personnel, who are guided by other equally rigorous requirements. ”  Department of Community Affairs, Local Finance Bd. v. Cook, 282 N.J.Super. 207, 209 (App. Div.1995).  The statute states, in pertinent part, that:  No local government officer or employee shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment[.]  N.J.S.A. 40A:9–22.5(d).  As noted by a leading authority, the LGEL can be divided into three parts: — a structural component which allows municipalities and counties the option of creating a local ethics Board or allowing the New Jersey Local Finance Board the act as the local Board; — a minimum mandatory code of conduct regulating all offices and employees in all local units; — financial reporting/disclosure requirements applicable only to certain specialized officials in all local units.
[brief] A trial court will grant summary judgment to the moving party if "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."  R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 666 A.2d 146 (1995).  An issue of fact is genuine only if "the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact."  R. 4:46-2(c).  In determining whether there is a genuine issue of material fact for summary judgment purposes, the trial court must ascertain "what reasonable conclusions a rational jury can draw from the evidence."  Brill, supra.  142 N.J. at 535.  To make the determination, the judge must accept as true all evidence that supports the position of the party defending against the motion and accord [*7] him or her the benefit of all legitimate inferences which can be deduced therefrom.  Ibid.  If reasonable minds could differ, the motion must be denied.  Ibid.  The "essence of the inquiry" is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'"
[brief] In addition, the trial court instructed the jury to "weigh the testimony of each witness and then determine the weight to give to it," specifically asking the jury to consider, among other things, a witness's "means of obtaining the knowledge of the facts" and the extent to which the witness is "corroborated or contradicted, supported or discredited by other evidence." (27T113-24 to 114-23).  The court also instructed the jury on circumstantial evidence, stating that all the facts need not "be proven by direct evidence" and that "[t]hey may be proven by direct evidence, circumstantial evidence, or by a combination of direct and circumstantial evidence."  (27T112-15 to 113-23).  Of course, the record is clear that [...] and [...] both knew defendant personally.  And both used defendant's name in identifying the person in the photo, which was not direct evidence of identification because it was taken well after the murder had been committed.  (21T176-7 to 177-25; 24T19-16 to 20-21).  So, neither [...] nor [...] observed the murder firsthand.  In these circumstances, the model identification charge explaining the risk of eyewitness misidentification would not have been helpful and was not necessary.
[brief] **First**, Plaintiffs say that “cost is a major factor” in their resistance to private arbitration.  *See* Appellant’s Br. at 17.  But the Contract is clear that [...] is responsible for paying arbitration filing fees.  When Plaintiffs raised their concerns about costs, [...] and co-defendant [...] offered to pay Plaintiffs’ portion of the arbitrator’s fees.  So it is false that Plaintiffs are “being required to pay an arbitrator $320.00 per hour and $2,200.00 per day. ”  *See id.*
[brief] The Trial Court Did Not Err in Finding That Addendum II Triggered a New 30-day ROFR Period (raised below, Da375).  [...] places inordinate emphasis on the concept of “materiality” of any revised terms and conditions of the offer when a plain reading of the ROFR terms shows an absence of any such requirement.  Rather, the MFSA states that a new 30-day period for [...] to exercise its waiver is created whenever the terms and conditions of the original offer are modified.  “Purchaser shall have the right to sell to the third party from whom it received the Offer … on the same terms and conditions as set forth in the Offer (but not on different terms or conditions, without first giving Seller its preemptive right…)”.  [...] willfully seeks to read into the contract a materiality clause that does not exist.  While the correction of a mere typographical error or a formatting change would not grant a new 30-day period for [...] to exercise its ROFR, common sense would dictate that those are not “different” terms and conditions from the original offer.  Yet here, the terms and conditions were so clearly changed by [...]’s execution of Addendum I and Addendum II to the PSA that there is no question that it created a new 30-day period for [...] to exercise its ROFR.
[brief] **B.  The Defendants Are Liable for Breach of Contract. **  In Counts 7 and 8 of the Amended Complaint, the Plaintiffs asserted breach of contract claims against [...], [...], [...], and the [...] relating to the [...] Operating Agreement and the [...] Stockholder’s Agreement.  To establish a breach of contract claim, a plaintiff must show that the parties entered into a valid contract, the defendant failed to perform his obligations under the contract, and the plaintiff sustained damages as a result.  *Coyle v. Englander’s*, 199 N.J. Super. 212, 223 (App. Div. 1985).  Damages are intended to compensate the injured party for losses due to the breach and to put that party in as good a position as if performance had been rendered as promised.  *Totaro, Duffy, Cannova & Co., L.L.C. v. Lane, Middleton & Co., L.L.C.*, 191 N.J. 1, 12-13 (2007).  The [...] Operating Agreement is a contract between [...] and [...] and is enforceable against any member who violates its terms.  (Da936).  The document contains certain covenants, including that “All profits of the Company enterprise shall be shared by each of said members according to the percentage of interest each member owns.  . . .  No member shall make any withdrawals from capital without prior approval of the Company. ” (Da938-39).  The agreement further provides that [...] is to be member managed with decisions and actions decided by a “majority in the interest of its members,” with a majority defined as 51% or more.
[brief] ”  Id. at 17 (emphasis added).  As here, without rulemaking, the agency’s action lacked the “substantive standards and procedural safeguards that are essential to the Commissioner’s exercise of his statutory . . . power. ”  Id.  Similarly, in *Metromedia, Inc. v. Director, Division of Taxation*, the Supreme Court invalidated the application of a tax allocation method that was reasonable under the statute but had not been previously adopted by regulation.