ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[directive] 1.0.5  It is important for county and municipal law enforcement agencies to recognize that, as they conduct internal affairs investigations, they do so under the general supervision of the INTERNAL AFFAIRS POLICY & PROCEDURES | November 2022  1  Attorney General.  The Criminal Justice Act of 1970 designates the Attorney General as the State’s chief law enforcement officer.  As the chief law enforcement officer of the State, the Attorney General possesses broad authority over criminal justice matters in order to secure the benefits of a uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State.  N.J.S.A. 52:17B-98.  This authority includes the issuance of the IAPP, which carries the force of law.  N.J.S.A. 40A:14-181.
[brief] Extraordinary Expansion of the Case after Remand  Departing from [...]’s view of the trial court’s limited role on remand, [...] did not confine the case to the straightforward accounting mandated by the Appellate Division.  Instead, [...] permitted [...] and [...], on October 1, 2009, seventeen years after the filing of the original complaint, to exponentially expand this case by adding new tort and RICO claims to a breach of contract action after a Final Judgment, an appeal, and a limited remand.  (16a).  Despite [...]’s knowledge of and involvement in the case, and his decision not to join as a party, [...] allowed [...] to join this post-appeal case as a Plaintiff, rather than requiring him to start his own separate action in the Law Division.  The new complaints, for the first time, asserted claims pursuant to state law civil RICO, *N.J.S.A.* 2C:41-2, and also added new defendants, the accountants [...] and [...] (collectively, “the Accountant Defendants”).
[brief] As to the merits of the application, [...] is a professional engineer and professional planner.  (1T 23:11-20).  [...] testified that the property is comprised of Lots 7, 10 and 19.02 within Block 1.  The street addresses are [...], [...] and [...].  The property is a corner lot located at the intersection of Ocean Terrace and Porter Avenue.  The property is generally rectangular 110 feet by 167 feet.  The property currently has a parking lot on it.  (1T 31:3-10).  The Property is located in the R-Residential Zone District and in the RB (Retail Business) Zone District which permits multi-family buildings.  [...] described the Property as located at the very southern end of Seaside Heights.  He noted that Porter Avenue is the division line between Seaside Heights and Seaside Park.  Therefore, he testified this is the very first property one would see in Seaside Heights for anyone traveling north on Ocean Avenue.  Additionally, due to the property’s proximity to the boardwalk, pedestrians would see this property every single day.  [...] opined that this is a highly seen, highly visible property.  (1T 31:22-32:10).  [...] testified that the present use of the property is as a commercial parking lot.  Historically, dating back to the 1920s, [...] and [...] with apartments above it, was located on the subject site.  (1T 31:10-21).  The Application consists of three buildings, five stories in height, with ground level parking area and 17 townhomes.
[brief] ”  (15T 99-12 to 100-21; 15T 106-20 to 22)  He explained how [...]’s decision to report the matter directly to the [...] was an example of a “definitely more than frowned upon” instance of not following the proper chain of command in the [...], and that the proper method would have been to report the matter to a sergeant in-house, who then would have reported to [...] himself.
[brief] **CONCISE STATEMENT OF PROCEDURAL HISTORY**  On March 21, 2023, Plaintiff filed a Verified Complaint and proposed Order to Show Cause in this action.  (Pa1–6).  As stated by the trial court at the return date of the Order to Show Cause, the Verified Complaint sought only to require Defendant, the Administrator CTA of the Estate of [...] and Court-appointed Trustee of the [...] Trust, to file a complete accounting for his actions as Administrator and Trustee, and for an award of counsel fees.  (See Pa1 ¶ 1–Pa4 ¶ 15).  On April 24, 2023, Defendant filed an Answer and Certifications opposing the relief being sought.  (Pa37–39); (Pa40–41); (Pa62–87).  On May 18, 2023, the trial court held oral argument on the order to show cause application.  1T.\(^1\)  During that argument, counsel for Defendant stated, “In this case, I thought our papers were fairly clear, and certainly they were comprehensive, in that there is nothing in the estate. ”  1T8:3–5 (emphasis added).  Following oral argument, the trial court denied the relief requested by Plaintiff, and dismissed the Verified Complaint with prejudice.  1T3:15–1T5:3.  The trial court stated that N.J.S.A. § 3B:17-2 does not require that a fiduciary be \(^{1}\) “1T” shall refer to the transcript of the argument before the trial court dated May 18, 2023, and “2T” shall refer to the transcript of the argument before the trial court dated July 14, 2023.  compelled to account, but merely provides the court with the discretion to order one.
[brief] However, the [...]’s Substantive Analysis contained within the Statement of Reasons only directly addressed plaintiff’s claims under the Open Public Meetings Act, N.J.S.A. 10:4-1, et seq. (“OPMA”).  (Pa86.)  Plaintiff’s other claims were ignored, except for one oblique reference to the 45-day limitation period established by Rule 4:69-6(a).  Id.  Whatever this Appellate Court may think of the sufficiency of [...]’s discussion of plaintiff’s OPMA claims, His Honor’s conclusions were wrong as a matter of law, rendering the writing’s conformance with Rule 1:4-7 irrelevant as those claims.  (See Point IV, infra; but see, also, Plaintiff’s Brief, Point II(A), which explains why the Statement of Reasons was also insufficient as to the OPMA claims.)  Where the Statement of Reasons is indisputably deficient was in its failure to address the other claims raised in plaintiff’s Verified Complaint.
[brief] THE TRIAL COURT IMPROPERLY DENIED PLAINTIFFS’ SUMMARY  JUDGMENT MOTION, GRANTED DEFENDANTS’ SUMMARY JUDGMENT MOTION AND DISMISSED THE COMPLAINT WITH PREJUDICE (Pa0001-Pa0004; T. at 3:1-32:23)  ...........................................................................................................20  A.  The Trial Court Improperly Applied A Presumption of Constitutionality To The Limited Attorney Exemption Despite The Fact That It Impinges On A Constitutionally Protected Right.  (T. at 9:12-10:1)  .........................................................................................20  B.  The Trial Court Improperly Dismissed Count One Of Plaintiffs’ Complaint In Holding That the Limited Attorney Exemption Does Not Violate the Separation of Powers Doctrine.  (T. at 9:5-17:19)  ..............................................................................................22  1.  The Trial Court Correctly Acknowledged that the New Jersey Supreme Court Has Exclusive Jurisdiction Over the Practice of Law (T. at 16:24-17:2)  .....................................................................................22  2.  The Trial Court Erred by Applying the Two-Factor Knight Test to Determine Whether the Limited Attorney Exemption Violates the Separation of Powers Doctrine  Because The Supreme Court Has Comprehensively Exercised This Authority (T. at 10:18-17:19)  ....................................................25  3.  Even If the Trial Court’s Decision to Apply the Two-Factor Knight Test to the Limited Attorney Exemption Were Correct, the Trial Court Erred in Determining That the Limited Attorney Exemption to the Act Satisfies Both Factors (T. at 10:18-17:19)  .......................................................................................28  a.  The Legislature Had No Legitimate Governmental Purpose In Enacting the Limited Attorney Exemption (T. at 12:12-15:16)  ........................................................................................................29  b.  The Limited Attorney Exemption Encroaches Upon Judicial Prerogatives and Interests (T. at 15:17-17:19)  ..31  TABLE OF CONTENTS (cont’d)
[brief] The Borough presented unrebutted testimony at trial regarding the historic use of the Property which further supports the Borough’s position in this litigation.  Significantly, the Borough has continuously held itself out to be the owner of the entire Property since 1939 (the date when it obtained the final decree in the tax sale foreclosure action).  This ownership has been demonstrated in multiple ways.  A portion of Lot 3 has been used as a municipal public parking lot since at least the early 1950s.  In May of 2019, the [...] approved a license for the portions of the parking lot property that qualify as State tidelands granting the Borough a prospective license for the use of these tidelands from May 1, 2019 to May 1, 2034 along with the retroactive approval to use these tidelands from 1967 to May 1, 2019.  The tidelands license requires the Borough to pay rent to the State in specified amounts during the term of the license.  Pa1011-Pa1014.  During the trial, the Borough presented evidence from [...], an engineer from [...] who serves as the Borough’s engineering consultant, indicating that the Borough had applied for a tidelands grant for the portions of the municipal parking lot property which are encumbered by tidelands and that the [...] had approved the Borough’s grant application on December 7, 2022.  5T, p. 87, lines 23-25.  The remainder of Lot 3 consists of a beach and boardwalk area operated by the Borough and vacant land which, as described below, has been leased by the Borough for years to various third parties over a period of years, and which is currently a portion of the Leased Premises being leased by the Borough to [...] as a site for go-kart tracks and concessions for [...]’s amusement park.  1.  **The Alteration Of The Property And The Construction Of Bulkheads**
[brief] We’re—if it comes from the taxpayers or it comes from the State, that’s really a question for the legislature and the courts, not me.  I mean, I would assume that it would come from the State because the district is tapped [out] for its property tax. ” (5T 129-23 to 130-3).  As for the Department’s plan that [...] thought his “deputy could speak in more detail about,” it simply does not seem to exist.
[directive] The policy applies to all sworn law enforcement employees, as well as County Prosecutors and assistant prosecutors and Assistant Attorneys General and Deputy Attorneys General in the Division of Criminal Justice.  This policy can also be more broadly applied to non-law enforcement employees.  1.0.2  State and federal courts have emphasized the importance of the internal affairs function for protecting the constitutional rights and civil liberties of the State’s residents.  Case law generally requires that law enforcement agencies do three things under the internal affairs function.  First, agencies must implement an internal affairs policy that provides for a meaningful and objective investigation of complaints and other evidence of police misconduct.  Second, agencies must monitor and track the behavior of police officers for incidents of misconduct.  Third, when officers are found to have engaged in misconduct, agencies must correct the behavior.  The courts have with increasing frequency issued decisions that set minimum standards of performance for the internal affairs function.
[brief] As such, it was properly the subject of cross-examination, where defense counsel explored the issue with [...], who testified that it could have been due to “a power outage” or to an incorrect manual entry by “[w]hoever installed it[.]” (1T93-15 to 17).  [...] definitively testified that it was not caused by his downloading of the video, which had “[n]othing to do with it. ” (1T93-21 to 23); see also Brown, 463 N.J. Super. at 45 n.4 (finding the fact that “the time stamp was fast by twelve hours and eight minutes” for the still photographs derived from the apartment-building videos did not affect the admissibility of the photographs or the videos).  The record establishes that the events captured on the video occurred on July 16, 2019.  On re-direct examination, [...] confirmed that he responded to the scene on July 16.  (1T95-2 to 3).
[directive] of (3)  Applications  Three Years after Completion the Sentence (N.J.S.A. 2A:168A-8(d))  A Certificate may be issued to a qualified offender three years after of of or completion the incarcerative supervisory portion their sentence, whichever if is later, it is determined that: (a) does not pose a substantial risk to public safety; (b) issuing the certificate does not pose a substantial risk to public safety; and; ( c) issuing the certificate will assist the successful in of reintegration the offender and is consistent with the public interest.  of not (d) the conviction is subject to any the disqualifying .S.A. convictions enumerated in N .J 2A: 168A-8( e ).
[brief] A critical component of the trial judge’s mandatory duty to instruct the jury as to the law of the case is the duty to define the offense charged.  Butler, 27 N.J. at 594-95.  “To fail to define the offense attributed to the accused and the essential elements which constitute it, is to assume that jurors are educated in the law—an assumption which no one would undertake to justify. ”  Id. at 595.  Without a definition of the offense and its elements, the jury has no basis for determining if the law has been violated.
[brief] They also dismiss the relevance of the impact of the exemption on plaintiffs, arguing that the shift of $25 million of school tax burden to plaintiff Boroughs, albeit intentional on defendants’ part, is a problem for the State Legislature.  The flaws in defendants’ position are manifest.  First, they claim that because a LTTEL exemption is granted “legislatively” by ordinance, the exemption is essentially immune from judicial review as long as LTTEL’s procedures are followed.  However, the meaning of LTTEL is not to be found in a standard of review but in the text of the statute.  Nothing in the text of LTTEL vests unreviewable discretion in the governing body.  Moreover, decisions by municipalities to grant long-term tax exemptions even when not needed for the success of a project would also violate the New Jersey Constitution, which defendants ignore.  Second, defendant [...] centers its argument on the contention that whether an exemption is necessary cannot be proved.
[brief] ” (emphasis added)).  [...] claims that [...] could have overridden the steering torque applied by the LKAS so the system would not have redirected the vehicle back to its intended lane of travel.  First, [...]’s argument is illusory.  The steering torque measured by the CDR pre-collision was zero (0).  If the [...] system could be overridden by steering input that registers internally as zero (0), then there is no instance where the LKAS would not be overridden, making the LKAS system entirely ineffective.  Pa 401 at ¶16 (“An LKAS system that cannot direct a slowly drifting vehicle back into its intended lane of travel or prevent an unintended lane departure on a section of straight roadway when the measured steering torque input is near or at zero is meaningless and defective. ”).  Given that [...] touts its safety system as part of a premium package, to suggest that it would not perform its intended function is contradictory and suspect.  Steering torque allegedly exerted by [...] is not only contrary to the evidence but also irrelevant to the intended and actual performance of the system as tested.
[brief] ”  Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).  Here, although [...]’s brief contains a point heading regarding the assertions that the Trial Court erred in granting counsel fees and costs, [...] does not actually brief the issue, even though its misconduct led to this dispute, and simply relies on [...]’s brief in a separate appeal.
[brief] To avoid the pitfall of vagueness, the terms of an ordinance must enable a person of "common intelligence, in light of ordinary experience" to understand whether contemplated conduct is lawful.  *Lashinsky*, supra, 81 N.J. at 18, 404 A.2d 1121.  *State v. Cameron*, 100 N.J. 586, 591, 498 A.2d 1217, 1219 (1985)  Penal laws must be clear enough so that ***all men subject to their penalties may know what acts it is their duty to avoid.*  *State v. Saunders*, 302 N.J. Super. 509, 520-21, 695 A.2d 722, 728 (App. Div. 1997)  The East Hanover ordinance in question does not define abandonment.  As set forth Point I the state did not establish that [...] placed the trap on the public roadway.  Assuming arguendo that it had, however, a person of ordinary intelligence would not fathom that attempting to trap, feed, or shelter stray cats constitutes animal abandonment or that the mere placement of a trap violates a running at large law ordinance as applied to "pre existing" stray cats.  **CONCLUSION**
[brief] *Mannion v. Hudson & M. R. Co.*, 125 N.J.L. 606, 607 (Sup. Ct.), aff'd, 127 N.J.L. 230 (1941) ("From the written execution of a release flows the presumption that the party signing the same read, understood and assented thereto"); *Vincent v. Campbell*, 140 N.J. Eq. 140, 142 (Ch. 1947) ("The complain[an]t was not illiterate.  He signed the statement which included the transfer of the bank stock to the defendant.  From the written execution of the statement flows the presumption that the party signing it, read, understood and assented thereto.").
[brief] 115:13-116:12:  •  The arbitration form is reviewed by the doctor with the patient.  The doctor retains the original, which is then scanned into the doctor’s office notes.  The original is destroyed by the doctor.  150:2-18.  •  The doctor does not have a list of arbitrators and does not know who would be on that list.  137:14-22.  •  The doctor testified that, as part of his pre-operative evaluation of the Plaintiff on December 20, he would have asked her if she had read the arbitration agreement and if she had any questions.  158:8-159:7.3  The Trial Court noted in detail the shocking circumstances regarding how the agreement was entered into, not least the fact that Defendant [...] could not explain what arbitration meant at his deposition, other than to read the agreement. (Da089-90).
[brief] That is a significant delay.  (2)  The filing of any motions, particularly dispositive motions, and their outcomes; [...] filed two discovery motions in this matter.  The first discovery motion was filed on September 13, 2023.  That Motion was resolved via agreement as negotiated between [...], Esquire, on behalf of [...], and [...], Esquire, on behalf of [...].  [...] had not filed an appearance in this matter, and never did so.  [...] represented to [...] that [...] would provide a second amended response to [...]’s Initial Interrogatories if [...] withdrew the pending motion.  [...] withdrew the pending motion; however, the promised responses were never provided.  Pa049-051.  [...] filed a second Motion to Compel Discovery on March 18, 2024.  That motion was granted by the trial Court in the same oral argument that spawned this appeal.  [...] filed a Motion to Stay the Proceedings to send the matter to arbitration on March 25, 2024, and a cross-motion to Dismiss [...]’s Complaint on April 4, 2024.  The Trial Court denied [...]’s Motion to Stay and Motion to Dismiss on April 10, 2024.  Da034.  Although not a Motion, [...] would again note that [...] served [...] with an Offer of Judgment on March 13, 2024.  This is a device specifically intended to apply pressure to parties in the time leading up to trial.  It is a testament to how close the Parties were to trial that [...] served his demand for binding arbitration in the very same document containing the Offer of Judgment.  Pa052.  Substantial effort was made on behalf of [...] to prepare this matter for trial.
[brief] ”  (1T 114-18 to 115-14)  [...] asked [...] where he was coming from, and [...] said that he had been in New York.  (1T 116-7 to 116-9)  [...] then asked [...] “what he was doing there, what his itinerary was for the day. ”  (1T 116-9 to 116-11)  [...] responded that he went to the Bronx to buy meat patties for his restaurant.  (1T 116-11 to 116-12)  [...] asked [...] why he would travel all the way to the Bronx to buy meat patties, and [...] explained that they were cheaper there.  [...] continued to challenge [...]’ explanation, telling [...] that it cannot be cheaper to buy meat patties in New York when gas and tolls are factored into the equation.  According to [...], [...] became agitated by the questions about the meat.  (1T 116-12 to 116-19)  At some point, [...] testified, when his “questions started becoming more investigative,” he decided to read [...] his Miranda rights.
[brief] **MARMO SUPPORTS THE LOWER COURT’S CONCLUSION THAT RESPONDENTS DID NOT WAIVE THEIR CONTRACTUAL RIGHT TO ARBITRATION**  “No one factor is dispositive” in a court’s determination as to whether a party has waived its contractual right to arbitration.  *Marmo*, 478 N.J. Super at 602-03 (quoting *Cole v. Jersey City Medical Center*, 215 N.J. 265, 281 (2013)).  Indeed, as recognized by the *Marmo* court, the totality of seven factors should be considered: (1) the delay in making the arbitration request; (2) the filing of any motions, particularly dispositive motions, and their outcomes; (3) whether the delay in seeking arbitration was part of the party's litigation strategy; (4) the extent of discovery conducted; (5) whether the party raised the arbitration issue in its pleadings, particularly as an affirmative defense, or provided other notification of its intent to seek arbitration; (6) the proximity of the date on which the party sought arbitration to the date of trial; and (7) the resulting prejudice suffered by the other party, if any.
[brief] The reasonable suspicion standard that must be met before seeking consent to search requires an evaluation of both “specific and articulable facts,” and the “rational inferences” that can be drawn “from those facts. ”  State v. Pineiro, 181 N.J. 13, 20 (2004); State v. Mann, 203 N.J. 328, 338 (2010).  It is well-established that reasonable suspicion is a “low burden,” State v. Atwood, 232 N.J. 433, 448 (2018), requiring “something less than the probable cause standard needed to support an arrest. ”  State v. Thomas, 110 N.J. 673, 678 (1988); State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Adams v. Williams, 407 U.S. 143, 145-46 (1972)) (“‘The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow ... a criminal to escape’”).  It is likewise well-settled that reasonable suspicion requires an analysis of the “‘the totality of the circumstances – the whole picture. ’”  State v. Stovall, 170 N.J. 346, 361 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)).  Our courts have been instructed to evaluate all of “the facts available to the officer,” and from there to assess whether those facts, when viewed in context with the “officer’s experience and knowledge” and “with rational inference drawn from” those facts, would “warrant a man of reasonable caution in the belief that the action taken was appropriate. ”  State v. Mann, 203 N.J. 328, 338 (2010); Stovall, 170 N.J. at 361.  By unjustifiably limiting its factual analysis to only those facts that post-dated the observed motor vehicle infractions, the lower court failed to conduct the totality of the circumstances analysis required of it.
[brief] ” (Id. at 32).  They state that the “burden of adding this information would be minimal, as would any burden from redacting privilege information where necessary – there are 4,797 fully-withheld entries and presumably [...] would be able to determine from the face of the privilege log which of those have subject lines and document titles that require redactions. ” (Id. at 32-33).  Defendants respond that their privilege log descriptions are more than sufficient and, in fact, courts (including, they note, this Court) have “endorsed privilege log entries that were equally or even less detailed than the entries here.