ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] 1.  The initial inquiry in any substantive due process challenge is whether the claimed right is fundamental.  If the constitutional “right is fundamental, its --- 7  Contrary to Appellants’ assertion, it is not, nor has it ever been, the State’s position “that transgender students are legally entitled to unilaterally alter their formal student records without parental notification and that the District conceal this information from the parents. ” (Db22).  Such conduct is not required by the court’s preliminary injunction, nor was it a part of Appellants’ now-reinstated Original Policy.  Instead, the “public social transition accommodation” covered by the Amended Policy, such as using different pronouns or going by a different name, do not themselves require any change to the student’s official records.  infringement must be narrowly tailored to serve a compelling state interest,” but where “fundamental rights or interests are not implicated,” courts will generally “require only a legitimate state interest that the legislature could rationally conclude was served by the statute. ”  *Holland v. Rosen*, 895 F.3d 272, 292 (3d Cir. 2018); see *Washington v. Glucksberg*, 521 U.S. 702, 721 (1997).  Contrary to Appellants’ bald assertions, the trial court’s injunction does not interfere with any fundamental substantive due process rights.
[brief] ”); Fees v. Trow, 105 N.J. 330, 335 (1987) (finding failure to plead or otherwise raise claim “at any stage of the[] proceedings” results in it “having been waived”); Stewart v. N.J. Tpk. Auth., 249 N.J. 642, 658 (2022) (affirming rejection of new legal theory asserted late in litigation and noting that “[c]onsideration of that new theory at the eleventh hour ‘would have redounded to the prejudice of defendants. ’” (citation omitted)).  As noted below, a party may not seek to appeal an invited-error or matter it had the opportunity to raise below with the Trial Court and did not.  See Santamaria, 236 N.J. at 408-09; A.R., 213 N.J. at 561; Robinson, 200 N.J. at 20 (citing Nieder, 62 N.J. at 234).  Having clearly had the opportunity and been directed to introduce the Planning Board transcript via their trial briefs, and having chosen to proceed forward without even referencing it to prove their case therein, Appellants may not now appeal that decision.
[brief] Any cross-examination of Applicant’s witnesses on these issues were similarly not going to be permitted as both the Board and Applicant’s attorney already prevented board members from doing so.  During oral argument, [...] stated he did not permit cross-examination or testimony regarding the environmental impact assessment or any other topic that had previously been mentioned during the use variance application.  (2T22-15 to 2T22-22).  [...] also held that the community impact statement, required by Robbinsville Ordinances for major subdivision applications, was not permitted to be reviewed.  (2T23-8 to 2T23-12).  As such, the Trial Court erred in finding that there was no contrary testimony provided, as no contrary testimony was permitted to be presented.  This is in direct violation of the MLUL, which expressly requires the public to have the opportunity to cross-examine witnesses on all aspects of the application.  Either the application did not incorporate the documents and was not ripe for approval by the board, or the application documents were all included and the public and board members were improperly limited in its ability to cross-examine Applicant’s witnesses and to present public comments and Plaintiffs’ own expert witnesses.  For these reasons, the Board’s approval of the application for preliminary and final major subdivision approval was arbitrary, capricious, and unreasonable, and must be reversed and remanded for further proceedings.
[brief] The matter must be remanded for resentencing for two reasons.  First, the sentencing court imposed consecutive terms on the two terroristic threats convictions based on a patently incorrect belief that the threat charges related to calls made in both 2021 and 2022.  In fact, [...] was never charged with making threats in 2022; the terroristic threats charges applied only to calls placed on the same day in 2021, hours apart.  Second, the trial court abused its discretion when it rejected all mitigating factors based in part on the same factual inaccuracy that infected its consecutive-sentence analysis, and when it refused to consider mitigation that was amply supported by the record.  For these reasons, if [...]’s convictions are allowed to stand, he is entitled to resentencing.  PROCEDURAL HISTORY
[brief] Respectfully submitted, [...]  BURLINGTON COUNTY PROSECUTOR /S/ [...] Date: January 26, 2024  By: [...] (Id#026692002)  Assistant Prosecutor  SUPERIOR COURT OF NEW JERSEY  APPELLATE  DIVISION DOCKET NO. [...]  STATE OF NEW JERSEY PLAINTIFF-RESPONDENTS  CRIMINAL ACTION ON APPEAL FROM TRIAL DE NOVO SUPERIOR COURT, LAW DIVISION  BURLINGTON COUNTY, NEW JERSEY V. [...]  DEFENDANT-APPELLANT
[brief] [Pa1-12].  The New Motion Judge rendered factual findings, adverse to Plaintiff, that accepted at face value numerous assertions made in the defendants’ submissions that had been demonstrated to be inaccurate or contested.  The New Motion Judge treated the reconsideration motion, limited to issues raised by the July 17, 2023 decision, as a basis to issue new reasons to hold against Plaintiff, many of which were in fact explicitly conceded by defendants.  As one mere example, in the September 29, 2023 decision, the New Motion Judge actually ruled that [...]’s injuries were attributable to the maternal hemorrhage.  [Pa10-11].  But the defendants’ moving papers had conceded that [...]’s opinion created a jury for the issue to determine over whether [...]’s injuries were the result of the hemorrhage or the thirty-nine minutes of oxygen deprivation.  [See, e.g., Pa213; 268-269].  Plaintiff has presented what are, frankly, compelling proofs of medical malpractice and, given the loss of life of an infant, it was not fair – and ultimately erroneous – for the motion to have been decided on grounds other than the proximate cause issue specified in Defendants’ briefing.
[brief] There was no reported problem of decayed Bradford Pear trees alongside [...]’s home, or for that matter, in his neighborhood.  [2015 W.L. at ** 5-6.]  The conclusion reached was because the Township had its Recreation Department look after its trees, and the tree in question did not give any indication of being unsound.  *Ibid.*  See also *N.J.S.A.* 59:4-2, -3; see also, *Russi v. City of Newark*, Docket No. A-1064-20, (App. Div. Feb. 17), certif. den. 252 N.J. 125 (2022) (summary judgment for municipality was proper where the plaintiff failed to meet “his burden of proving the City willfully failed to warn against a dangerous condition or acted in a grossly negligent manner.  There is no proof the City knew the tree on its property was dangerous.  No complaints were made to the City regarding the specific tree. ”)
[brief] FARM  An area of land made up of single or multiple parcels which is organized as a management unit actively devoted to agricultural or horticultural use, including but not limited to cropland, pasture, idle or fallow land, woodland, wetlands, farm ponds, farm roads and other farm buildings and other enclosures related to agricultural pursuits, which occupies a minimum of five acres, exclusive of the land upon which the farmhouse is located and such additional land as may be used in connection with the farmhouse as provided in the Farmland Assessment Act of 1964, N.J.S.A. 54:4-23.3, 54:4-23.4, 54:4-23.5 and 54:4-23.11.
[brief] Under the Parole Act of 1979, which applies to [...]’s convictions, he is entitled to a statutory presumption of release, which the Board was required to rebut by establishing a “substantial likelihood of reoffending” by a preponderance of the evidence.  It failed to do so.  [...] has successfully appealed several prior errant Board decisions, resulting in a series of reversals and remands to the Board with instructions to reconsider mitigation evidence that it initially chose to ignore.  During his last parole appeals in 2012 and 2015, this court clearly and unambiguously noted that the Board “failed to take [the court’s] remand instructions seriously,” and directed the Board to support its decision with “clear and specific articulation of reasons with a factual basis grounded in the record. ”  The Board’s February 28, 2024, Final Decision wholly failed to abide by the repeated admonitions of this Court.
[brief] J. 626 (1993) | 13, 19, 21, 36, 42 | | Dolson v. Anastasia, 55 N.J. 2 (1969) | 36, 43 | | Dunbar Bey v. Brown, SEC Docket No. C25-11 (2011) | 26, 27, 38 | | Henry v. Rahway State Prison, 81 N.J. 571 (1980) | 21 | | Hodrinsky v. Faussette, SEC Docket No. C11-21 (2021) | 30 | | I/M/O Leonard, SEC Docket Nos. C56-19 and C57-19 (Consolidated) (2021) | 26, 30, 37 | | I/M/O Treston, Randolph Board of Education, SEC Docket No. C71-18 (2022) | 29, 30, 31 | | In re Advisory Op. No. 01-2008, 201 N.J. 254 (2010)) | 12 | | In re Stallworth, 208 N.J. 182 (2011) | 12 | | In re Taylor, 158 N.J. 644 (1999)) | 12 | | Jackson v.  Concord Company, 54 N.J. 113 (1969) | 12 | | Janus v. AFSCME, 138 S.Ct. 2448 (2018) | 16 | | L.A. Bd. of Educ. of Trenton, 221 N.J. 192 (1969)) | 12 | | Mary Carter Paint Co. v. Federal Trade Comm’n, 333 F.2d 654, 660 (1964) | 31 | | Matter of Musick, 143 N.J. 206 (1996) | 36 | | Melnyk v. Fiel, SEC Docket No. C64-18 (2019) | 25, 27, 28, 29, 30 | | Nicoletta v. N. Jersey Dist. Water Supply Comm’n, 77 N.J. 145 (1978) | 39 | | Pub. Serv. Elec. & Gas Co. v. N.J. Dep’t of Envtl. Prot., 101 N.J. 95 (1985) | 12, 22 | | Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474 (1974) | 43 | Saccone v.
[brief] Most harmfully, the police took advantage of [...]’s prior experience as a witness by affirmatively deceiving him into believing that he was again merely a witness, prefacing the crucial waiver moment with, “Just like, you know, anybody else that come down here, we gotta read you your rights and things like that. ”  (1T 3-20 to 21 (emphasis added))  But, as [...] later admitted at the Miranda hearing, that was an affirmative lie.
[brief] Plaintiffs’ challenge to the fee award fails in any event.  Contrary to Plaintiffs’ argument, the trial court did issue sufficient findings in support of its fee award.  The court first acknowledged its authority to award a sanction equal “to a sum sufficient to deter repetition of” frivolous conduct.  (2T15:23-25).  “The sanction[,]” according to the court, “may consist of an order to pay a penalty into court or an order directing payment to the mo[vant] of some or all of the reasonable attorneys fees and other expenses incurred .  . . .” (2T15:25-16:5).  The court then stated that it had reviewed [...]’s counsel’s certification which described in great detail the services provided and fees incurred.  (2T18:15; Da8-15).  The court found that “the hours are reasonable for the type of attorneys that are working in the case in this area in this expertise” and that [...] was “entitled to at least 50 percent of the fees that they suffered in defending against at what I do find was a frivolous cause of action against them. ”  (2T18:19-24).  By awarding [...] half of the fees it incurred ($72,984.95), the trial court actually afforded Plaintiffs a substantial discount of the fees they caused [...] to incur given that they admittedly knew from the very outset that [...] had not entered into a transaction with [...].
[directive] __  Por la presente confirmo que me ha notificado que debo comparecer a un juicio el dia se _________ 20_ de _, del a las 9:00 de la mafiana (a menos que aqui se ___ _, especifique que la hora sera que no comparezco en esa fecha, o en cualquier otra si y y se fecha que sefiale para el juicio, el juicio procedera sin que este presente me vere obligado a con cumplir veredicto del jurado.
[brief] (Pa1-Pa11).  Defendant [...] filed its Answer, Affirmative Defenses, Demand for Statement of Damages and Designation of Trial Counsel on July 2, 2019.  (Pa12-Pa33).  On September 25, 2019, [...] filed a Motion to Dismiss the Complaint with Prejudice pursuant to New Jersey Court Rule 4:6-2(e) (the “Motion to Dismiss).  (Pa556-Pa557).  Appellant filed his Opposition to Defendant’s Motion to Dismiss on October 17, 2019, and Defendant filed a Reply Letter Brief on November 4, 2019.  Oral argument was held on January 3, 2020.¹ ¹T.  By Order dated January 3, 2020, Defendant’s Motion to Dismiss was denied in its entirety for the reasons stated on the record on January 3, 2020.  (Pa558-Pa559).  Defendant filed a Motion for Reconsideration, which was subsequently denied.
[brief] Crest Area Topography Map .............................................  H1336a  A-1, Estimated Air Pollutant Emission Rates of Natural Gas Combustion Units ............................................. H1337a A-2, estimated air pollutant emission rates of the heater combustion units .............................................  H1338a  Energy Use and Emissions Comparisons .............................................  H1339a  Ambient Air Concentration Estimates of Criteria Air Pollutants using the NJDEP Risk Screening ......................... H1340a  Ambient Air concentrations at Receptor Based on the NJDEp Risk Screening Worksheet ......................... H1341a  Estimated Worst-Case Ambient Air Concentrations of Air Pollutants Emitted from the Natural Gas Heater at varying distances ............................................. H1342a  References ............................................. H1345a
[brief] That discretion, while considerable, must still be “supported by substantial credible evidence from the record as a whole. ”  Charlie Brown of Chatham, Inc. v. Bd. of Adjustment for Chatham Twp., 202 N.J. Super. 312, 330  It stems from the Municipal Land Use Law ("MLUL"), which "reposes considerable power in municipal zoning boards to deny or grant variances, [but] that power must be exercised cautiously."  *Cell South*, 172 N.J. at 88.  Such decisions, however, must be rooted in findings of fact substantiated by the record.  "[I]t is essential that the board’s actions be grounded in evidence in the record."  *Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd.*, 369 N.J. Super. 552, 562 (App. Div. 2004).  "Prudence dictates that zoning boards root their findings in *substantiated proofs* rather than unsupported allegations."  *Cell South*, 172 N.J. at 88 (emphasis added).  It is the court’s “duty [] to review the record before the Board in order to determine whether the Board’s decision was adequately supported by the evidence. ”  *CBS Outdoor*, 414 N.J. Super. at 578–79 (citing *Lang v. Zoning Bd. of Adjustment*, 160 N.J. 41, 58 (1999)); see also *Pullen v. South Plainfield Planning Bd.*, 291 N.J. Super. 303, 312 (Law Div. 1995), aff’d, 291 N.J. Super. 1 (App. Div. 1996) (holding that there must be “substantial evidence” of both the positive and negative criteria before the board).  Without “persuasive evidence in the record to support the [local land use board’s] decision denying [the applicant] the variance, the decision must be set aside as arbitrary, capricious and unreasonable. ”  *Cell South*, 172 N.J. at 88.  Although a challenger must carry its high burden to overturn a variance denial, a reviewing Court should not act as a “rubber stamp” to the findings made by a zoning board.  Review is “not simply a pro forma exercise in which [the court] rubber stamp[s] findings that are not reasonably supported by the evidence. ”  CBS Outdoor, 414 N.J. Super. at 578–79 (quoting In re Taylor, 158 N.J. 644, 657 (1999)).  “Simply stated, a reviewing court must determine whether the Board followed statutory guidelines and properly exercised its discretion. ”  Id. (citing Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd., 343 N.J. Super. 177, 199 (App. Div. 2001)).  The deference to local boards contemplated by Kramer is not intended to be applied rigidly or categorically, and is predicated on the existence of adequate evidence in the record supporting the board’s determination either to grant or deny variance relief.  Nevertheless, courts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law.  [Lang, 160 N.J. at 58–59 (citing Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268 (1965))].  As will be shown, the Defendant Board’s decision was neither supported by substantial evidence, nor did the Board correctly apply relevant principles of land use law.  II.
[brief] ”  (8T 94-23 to 25)  Again, while there is evidence [...] sought to retrieve the gun after [...] initially confronted him, there was no evidence that established that his purpose in retrieving the gun was to proactively use it to assault [...] as opposed to having it on hand for protection if needed.  (2T 157-9 to 10)  Moreover, it seems the Court was suggesting that [...] was a victim of [...]’s possession offense; however, the offense of unlawful possession of a firearm does not have a victim as an element.
[brief] On March 3, 2022, Complainants-Appellants [...], [...], [...], [...], [...], [...], [...], [...], and [...] (collectively, Appellants) filed a Complaint before the Commission, asserting violations of N.J.S.A. 18A:12-24.1(a) and (e) of the School Ethics Act (Act) regarding Respondent’s actions which are listed in the Complaint.  (Ca196-232).  Respondent is currently a member of the [...] (Board).
[brief] 1.  [...] misstates that [...] filed a declaratory judgment action in federal court on November 16, 2021 (Pb23) and separately on November 16, 2022 (Pb4).  Both dates are incorrect.  [...] filed a declaratory judgment action in federal court on February 16, 2022 (021Da).  2.  [...] states that it assumes that [...] included [...] as an “interested party” because of “[...]’s expected MCS-90 surety claim. ”  [...] was named as an “interested party” in [...]’s declaratory judgment action as an “interested party” because of [...]’s claims against [...]’s insured, [...], which might or might not be covered under the [...] policy.  STATEMENT OF FACTS  [...] incorporates the Statement of Facts that appear in its August 29, 2024 brief.  As discussed in [...]’s appeal brief and below, several “facts” averred by [...] are incorrect or disputed.  LEGAL ARGUMENT
[brief] [Tr., 4:19-22 (“People would sell liquor, I don’t know, maybe do liquor or drugs, get drunk, et cetera, et cetera, et cetera, play basketball, hang out, and a fight breaks out”); see also id., 5:15-18 (“And in addition, selling liquor makes it a dangerous condition requiring some kind of police presence.  Did I summarize everybody’s arguments accurately enough?”)]
[brief] ”  See In re [...], Department of Corrections, [...], Civil Serv. Comm’n, List Removal Appeal, Final Decision, (May 4, 2018) (May 4, 2018), Ra86.  It has also emphasized that Sheriff’s Officers (let alone the higher rank of Sheriff’s Officer Lieutenants), are law enforcement employees who must enforce and promote adherence within to the law.  They hold highly visible and sensitive positions within the community and that the standard for an applicant includes good character and an image of the utmost confidence and trust.  It must be recognized that a law enforcement officer is a special kind of employee.
[brief] ” (Pb18).  Plaintiffs never alleged this in their Complaint, nor did they introduce any evidence (their appeal brief cites to none) which supports this theory. never occurred.  In the absence of a transaction, the frivolousness of Plaintiffs’ claims was self-evident.  Third and finally, the trial court’s ruling must be read in conjunction with its summary judgment and reconsideration rulings, in which the court further explained why Plaintiffs’ claims were frivolous, (1T21:5-27:14; 3T19:22-23:17).
[brief] B.  The Trial Court Misapplied the Factors Set Forth in Berrie v. Berrie (819a-821a)  R. 4:10-2(g)(2) addresses the scope of discovery that may be limited by the court.  More specifically, the court can limit discovery where "(1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought..."  R. 4:10-2(g)(2)  As stated in Berrie v. Berrie, 188 N.J. Super 274, 285 (Ch. Div. 1983):  The factors to be weighed in the consideration of an application by a non-party to limit discovery are the interest of the proposed deponent in the outcome of the litigation, the necessity or importance of the information sought in relation to the main case, the ease of supplying the information requested, the significance of the rights or interests which the non-party seeks to protect by limiting disclosure, and the availability of a less burdensome means of accomplishing the objective of the discovery sought.  Applying the Berrie factors, it is clear that there is no basis for [...]’s deposition.  With regard to the first factor, [...] is not a party to the Underlying Litigation, had what can only be classified as limited, general, conversations with a handful of investors, and has no interest in the outcome of the Underlying Litigation.  With regard to the second factor under Berrie, [...] is not part of any “scheme”, is not a party to the Underlying Litigation and is not mentioned anywhere in the Complaint of the action from which the subpoena was generated.  There is no allegation that [...] converted funds or was otherwise involved in the claims in the Underlying Litigation.  With regard to the third Berrie factor, [...]’s deposition must be balanced against the necessity of the information and the ease of obtaining the information through other means.
[brief] (Pa11)  [...]’s Nov 7, 2022 email states that an additional amount of $2,000 would cover “the work done but not considered yet by the Court”.  This email also states an additional cost of $1,200 for him to file a motion to obtain this extra $2,000.  This fact was further reflected within his proposed order.  (Pa149, Pa150)  However in his subsequent motion for additional sanctions, [...] sought an additional amount of $6,160 (Pa131), which was more than triple the amount that he had previously stated in his Nov 7, 2022 email.
[brief] ”  Wohlegmuth v. 560 Ocean Club, 302, 314 N.J. Super. 306 (App. Div. 1997) (quoting Gladden v. Public Employees’ Retirement Sys. Trustee Bd., 171 N.J. Super. 363, 370-71 (App. Div. 1979).  Indeed, “[H]e who is silent when conscience requires him to speak, shall not be permitted to speak when conscience requires him to be silent. ”  Ibid. (quoting Besson v. Eveland, 26 N.J. Eq. 468, 472 (Ch. 1875).  In Wohlegmuth, the Appellate Division considered the issues of laches and estoppel, and reasoned:  Although the judgment in Last [v. Audobon Park Associates, 227 N.J. Super. 602 (App. Div. 1988), certif. denied, 114 N.J. 491 (1989)] was voidable rather than void, [...] there also cited the Kansas case of Ford v. Willits, supra, 237 Kan. 13, for the proposition that "laches may be applicable to bar an action to set aside a void judgment."
[brief] In State v. Preciose, the New Jersey Supreme Court explained that the exceptions to Rule 3:22-4 should generally not be read narrowly and that “‘an error [that] denies fundamental fairness in a constitutional --- 7 Rule 3:22-4(b)(2)(B) provides that “[a] second or subsequent petition for post-conviction relief shall be dismissed unless it alleges on its face . . . that the factual predicate for relief could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven, and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted. ”  sense and hence denies the due process of law’ can be asserted in post-conviction proceedings as long as it was not litigated previously. ”  129 N.J. 451, 476 (quoting State v. Smith, 43 N.J. 67, 74 (1964)).