ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] See Shaw, 460 N.J. Super. 592, 617 (App. Div. 2019) (quoting Univ. Cottage Club v. Dep’t of Envtl. Prot., 191 N.J. 38, 48 (2007) (“[g]enerally, courts afford substantial deference to an agency’s interpretation of a statute that it is charged with enforcing. ”)).  The reason for granting broad enforcement powers to the Bureau is, in part, because the Securities Law is a remedial statute.  In New Jersey, as in the federal courts, remedial statutes are “liberally construed” to “accomplish [their] broad purpose of safeguarding the public. ”  Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255, 264 (1997) (“[T]he language of the [New Jersey Consumer Fraud Act] evinces a clear legislative intent that its provisions be applied broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud. ”); Smith v. Millville Rescue Squad, 225 N.J. 373, 391 (2016) (explaining that the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42, is a remedial statute subject to broad interpretation); Lippman v. Ethicon, Inc., 222 N.J. 362, 381 (2015) (“Another principle requires that, as remedial legislation, [the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14] should be liberally construed. ”); Lourdes Med. Ctr. v. Bd. of Rev., 197 N.J. 339 (2009) (to further remedial and beneficial purposes of New Jersey Unemployment Compensation Law, the statute should be liberally construed to allow benefits); N.J. Mfrs. Ins. Co. v. Hardy, 178 N.J. 327 (2004)(New Jersey No Fault Act liberally construed favoring intended remedial purpose of broadly protecting accident victims).  ____________________  7  Other courts are in accord.  See Jost v. Locke, 673 P.2d 545, 552 (Or. Ct. App. 1983) (“In order to further the remedial purposes of Oregon’s Blue Sky laws, we liberally construe them to afford the greatest possible protection to the public”); Gordon v. Drews, 595 S.E.2d 864, 868 (S.C. Ct. App. 2004) (The South Carolina Uniform Securities Act is “remedial in nature and, therefore, should be liberally construed to protect investors”); Jaciewicki v. Gordarl Assocs., Inc., 298 S.E.2d 693, 696 (Ga. Ct. App. 1974) (“The Georgia securities laws are an expression by the General Assembly of a statutory policy affording broad protection to investors . . . . [t]hey are remedial in nature and thus should be liberally construed”); Payable Accounting Corp. v. McKinley, 667 P.2d 15, 17 (Utah 1983) (“[S]ecurities laws are remedial in nature and should be broadly and liberally construed to give effect to the legislative purpose”); Cromean v. Morgan Keegan & Co., 303 F.R.D. 543, 557 (W.D. Mo. Sept. 23, 2014) (“The Court liberally and broadly construes Missouri’s Blue Sky law, to effect its intended remedial purposes of protecting investors in securities transactions and It is a “familiar canon of statutory construction” that “remedial legislation should be construed broadly to effectuate its purposes.
[brief] Table of Contents  Introductory Statement ..................................................3  Legal Argument  Point One: Neither of the lower courts found a “serious threat” ..............4  A.  Mischaracterizations of the courts’ decisions below ............4  Point Two: The State misrepresented facts in the record .........................6  Point Three:  The prior incidents with [...] and [...] are not probative of a “serious risk. ”  .................................................9  Point Four:
[brief] ”  *Ibid.*  The Court allowed that a sentencing judge may consult *Shepard* documents to determine “the jurisdiction in which the defendant’s crime occurred and its date” but only “for the ‘limited function’ of determining the fact of a prior conviction and the then-existing elements of that offense. ”  *Ibid.* (quoting *Descamps v. United States*, 570 U.S. 254, 260 (2013)).  “[A] judge may not use information in *Shepard* documents to decide ‘what the defendant . . . actually d[id],’ or the ‘means’ or ‘manner’ in which he committed his offense”; nor may a judge use *Shepard* documents to determine whether a defendant’s prior offenses were committed “on different occasions. ”  *Id.* at 1855 (quoting *Mathis*, 579 U.S. at 504, 510-11).  In a key passage, the *Erlinger* Court concluded:  Often, a defendant’s past offenses will be different enough and separated by enough time and space that there is little question he committed them on separate occasions.  But none of that means a judge rather than a jury should make the call.  There is no efficiency exception to the Fifth and Sixth Amendments.  In a free society respectful of the individual, a criminal defendant enjoys the right to hold the government to the burden of proving its case beyond a reasonable doubt to a unanimous jury of his peers “regardless of how overwhelmin[g]” the evidence may seem to a judge.
[brief] THE COMMISSION DID NOT ERR IN STATING THAT ITS FINAL DECISION WAS APPEALABLE TO THE APPELLATE DIVISION RATHER THAN THE COMMISSIONER OF EDUCATION.  The Commission stated that its Final Decision "is a final agency and is appealable to the Superior Court-Appellate Division.  See N.J.A.C. 6A:28-10.11 and New Jersey Court Rule 2:2-3(a).  Despite Appellants' argument that appeal of the Final Decision should be to the Commissioner of Education ("Commissioner"), the Commission's statement is correct.  N.J.A.C. 6A:28-10.11 has been recodified as N.J.A.C. 6A:28:9.10.  N.J.A.C. 6A:28:9.I0(b) reads as follows:  A determination to dismiss a complaint shall constitute final agency action, and shall be appealable directly to the Appellate Division or the Superior Court.  Complainants cite N.J.A.C. 6A:28-10.12 and N.J.A.C.6A:28-11.1.  These regulations have been recodified as N.J.A.C. 6A:28-9.1 l.  N.J.A.C. 6A:28-9.1 l(c) provides for review by the Commissioner only if the Commission recommends a sanction.  The same is true as to N.J.S.A. 18A: 12-29-29c.  Thus, the Commission correctly stated that its Final Decision was appealable this Court rather than to the Commissioner.  POINT VII
[brief] The only express notice requirement contained in the Ricci Act provides that the Board must “notify members and retirants in the retirement system of the enactment of this act, P.L.2019, c.157, within 30 days of enactment.  N.J.S.A. 53:5A-10(e)(4).  On August 7, 2019, the [...] satisfied this notice requirement when it added information about the Ricci Act to its website.  (Pa10).  That notice satisfied the Ricci Act, which requires only that the Board notify members of the enactment of the statute.
[brief] It should reject the idea that a Court must accept every ‘liability’ placed on a company’s books prior to a valuation as a valid discount to equity unless a derivative action is first successfully brought to challenge it.  Finally, Plaintiffs ignore the entirely separate reason to disallow that particular discount to equity, which is that Plaintiffs in this case sought and received a $504,000 award from the arbitrator reimbursing [...]’s “personal legal fees” paid by the Company.  (Da2220)  How can the Plaintiffs succeed in disallowing the Company’s payment of [...]’s personal legal fees, and then argue later the opposite; that their own personal legal fees are a valid Company debt that should reduce [...]’s equity dollar for dollar?
[brief] (Citation omitted).  When a statutory provision and a rule of court are in conflict in a matter of practice and procedure the rule prevails.  Winberry v. Salisbury 5 N.J. 240 (1950), cert den. 340 U.S. 877 (1950).  The mainstay and often cited decision that addresses the application of a Rule 4;50-1 motion, subject to N.J.S.A. 54;5-104.67, is New Shrewsbury Borough v. Block 115, Lot 4 at p. 8,9., as stated:
[brief] Prior to during and after the foreclosure proceeding which they knew about, [...], at the direction of [...], contacted Defendant [...] via text message and offered to purchase the property for as high as $650,000.\textsuperscript{5}  [...] later found out, in the context of the litigation, that she was an “agent” of [...]/[...].  T3, p. 109:8—110:1.  In text messages and over the phone with [...], she never once mentioned the word “tax foreclosure” to [...].  T3:118:15-21.  [...] testified at the plenary hearing for the Plaintiff and stated that she was not an “employee per se” of Mr. [...], but that she “reaches out to owners to see if they know what’s going on.
[brief] 41.  N.J.S.A. 40:55D-19 provides in pertinent part as follows:  If a public utility, as defined in [N.J.S.A.] 48:2-13 . . . is aggrieved by the action of a municipal agency through said agency’s exercise of its powers under this act, with respect to any action in which the public utility or electric power generator has an interest, an appeal to the Board of Public Utilities of the State of New Jersey may be taken within 35 days after such action without appeal to the municipal governing body pursuant to section 8 of this act unless such public utility or electric power generator so chooses.  . . .  A hearing on the appeal of a public utility to the Board of Public Utilities shall be had on notice to the agency from which the appeal is taken and to all parties primarily concerned, all of whom shall be afforded an opportunity to be heard.  If, after such hearing, the Board of Public Utilities shall find that the present or proposed use by the public utility or electric power generator of the land described in the petition is necessary for the service, convenience or welfare of the public, including, but not limited to, in the case of an electric power generator, a finding by the board that the present or proposed use of the land is necessary to maintain reliable electric or natural gas supply service for the general public and that no alternative site or sites are reasonably available to achieve an equivalent public benefit, the public utility or electric power generator may proceed in accordance with such decision of the Board of Public Utilities, any ordinance or regulation made under the authority of this act notwithstanding.
[brief] A1  Order for final judgment in favor of defendant [...] following trial  A14 11/12/21  Order denying plaintiffs’ motion for reconsideration  A16 8/27/21  Order denying plaintiffs’ motion to name [...] as expert A18  Defendant’s motion to bar plaintiffs’ expert, [...] (7/6/21)  A20  Proposed Order A22  Certification of Defendant’s Counsel in support of motion A24  Ex. A (Complaint, cover page only showing filing date)  A33 Ex. B (Answer, cover page only showing filing date)  A35 Ex. C (Aff. of Merit by [...])  A37 Ex. D (Expert Report of [...])  CONTAINED IN CONF.  APPX  A40 Ex. E (Curriculum Vitae of [...])  A48 Ex. F (Transcript of Dep. of [...])  CONTAINED IN CONF.  APPX  A56  Plaintiffs’ Opposition to Defendant’s Motion and Cross-Motion to Permit New Expert Witness (7/15/21)
[brief] Even if [...] and [...] Did Personally Guarantee the Obligations of [...]  Under the February 20, 2015 Lease, And Even if Such Guaranty Was Not Terminated With the Termination of the Lease in 2016, Such Guaranty Was Revoked Before Plaintiff and [...] Entered into A Consent Judgment For Payment of Amounts Due.4  Under New Jersey law a continuing guaranty is one that is not limited to a particular transaction but which is intended to cover future transactions.  Swift --- 4  This argument was briefed in the cross motions for summary judgement but was not addressed by the Trial Court in its summary judgment rulings.
[brief] (PA000001-000058).  For instance, after the complaints, Defendant [...] ignored Plaintiff’s valid concerns and essentially told her there was “no set ratio,” but then blamed the issue on Defendant [...] for being “consistently understaffed. ” (PA000006-PA000007).  Thereafter Plaintiff worked several holiday shifts which required her additional PTO days under Defendants’ policy.  (PA000009).  When Plaintiff brought such request to Defendants, both Defendant [...] and Defendant [...] denied Plaintiff’s PTO request as they claimed she did not have the available days off.  Id.  When Plaintiff followed up with additional personnel and filed a New Jersey Department of Labor (“DOL”) grievance, it was then determined Plaintiff did have enough PTO.  (PA000010).  Afterward, in another act of retaliation, Defendants disciplined Plaintiff and placed her on a developmental plan based on two (2) false write-ups.  Id.  After Plaintiff complained the plan was based on accusations which were proven false, Defendants retaliated again by then claiming Plaintiff’s plan resulted because of her “aggressive demeanor” and “smoking outside. ” (PA000010- PA000011).  Defendants ultimately terminated Plaintiff in this meeting.  Id.  Undeniably, the facts set forth above and as articulated in Plaintiff’s Complaint demonstrate the various retaliation Plaintiff endured during employment with Defendants.  (PA000001-PA000058).  Simply put, by Defendants: (1) overlooking Plaintiff’s concerns; (2) insisting on Plaintiff’s PTO denial; (4) issuing Plaintiff a fabricated developmental plan; (4) harassing Plaintiff about her “conduct” in at the developmental plan meeting; and (5) terminating Plaintiff at that same meeting, effectively demonstrates the “many separate but relatively minor instances of behavior directed against [Plaintiff]…[which] combine to make up a pattern of retaliatory conduct” by Defendants.
[brief] •  He found no record of any maintenance of the tree, and this is not unusual because “[t]here’s thousands of trees in here.  You know, we only have one tree truck.  So, I mean, unless the homeowner calls, calls for a work order, you know, then, you know, we try to do what we can. ”  “I mean there’s thousands of trees here and, you know, there’s only one tree truck for the whole city. ”  (Pa187, p.57-Pa188, p.58.)  •
[brief] 18  A.  [...] DOES NOT QUALIFY AS ANY OF THE ENTITIES DESCRIBED IN N.J.S.A. 18A:13-47.11.  (Aa19 – Aa21)……………………………………………………………..  20  B.  THE LEGISLATURE AFFIRMATIVELY CHOSE TO NOT INCLUDE ENTITIES SUCH AS [...] IN THE LIST OF ENTITIES ELIGIBLE TO SEEK REGIONALIZATION THROUGH RESOLUTION PURSUANT TO N.J.S.A. 18A:13-47.11.  (Aa19 – Aa21)………………………………………………………………………………….  24 CONCLUSION  …………………………………………………………………………………………………………..
[brief] (RAISED BELOW, PA307-08; PA310; PA313-14; PA316).  Whereas conflicts typically can be waived by clients after receiving informed consent, see RPC 1.7(b), in this situation – where concurrently represented defendants face joint liability, and their fees are being funded by codefendants represented by the same attorney, a prohibited third-party payor arrangement under Supreme Court jurisprudence - a waiver cannot be valid.
[brief] The Appellate Division’s holding in Cardinale, cited by the Board in its Final Administrative Determination, fully supports the Board’s denial of [...]’s request to apply for AD here.  Similar to [...], the petitioner in Cardinale applied for a disability retirement benefit and entered into an agreement to “irrevocably resign from” employment with the understanding that such a “separation from employment is not revocable. ”  Id. at 265.  The pension board “declined to process Cardinale’s [disability] application” pursuant to the return to work statute, N.J.S.A. 43:16A-8(2), because “the only obstacle to his [returning to work] was not the purported disability, but rather, his irrevocable resignation. ”  Ibid.  Cardinale appealed, arguing that the Board misapplied the return to work statute when it found that the terms of his settlement agreement rendered him ineligible for disability retirement benefits.  Id. at 263.  The Appellate Division “flatly reject[ed]” this argument, holding that “when a PFRS member separates from employment by deliberately and irrevocably resigning from active duty…that person is ineligible for…[a] disability retirement benefit[] because he or she can never return to work. ”  Id. at 273-74.  Similar to [...] here, Cardinale also argued on appeal that the Board’s decision “deprived him of the opportunity to show he suffered from a disability. ”  Id. at 267.  The Court rejected this argument, finding that even if the Court assumed Cardinale’s disability existed, the existence of a disability “is irrelevant to our holding that his irrevocable resignation made him ineligible for benefits in the first place” and that “even if he was disabled – as a matter of law – the consequence of his irrevocable resignation is determinative”; his “permanent inability to return to duty is fatal. ”  Id. at 268-69.  Similarly, the petitioner in [...] applied for a disability benefit and entered into a settlement agreement with his employer (the New Jersey judiciary) in which he resigned and agreed to “not seek reemployment with the Judiciary in the future” in exchange for the Judiciary to drop pending disciplinary charges.
[brief] The Commission rejected the notion that, the fact that Respondent used her Facebook page in her campaign, does not render her posts as being made in official capacity.  Ca17.  Finally, while the Commission acknowledged that Respondents posts were divisive, inflammatory and hostile” it state that: . . . [H]ow school officials conduct themselves outside of the scope of their duties as school officials is best address at the time of election.  It is the public, not the Commission, who ultimately decides which individuals in their community are best suited to serve their students.  Ca18.
[directive] The relevant provisions of N.J.S.A. 39:4-50.23 mandate that the law enforcement agency which has arrested an operator of a motor vehicle for a DWI or a Refusal violation must take two actions with regard to the vehicle operated by the arrested person.  N.J.S.A. 39:4-50.23a  Whenever a person has been arrested for a violation of [N.J.S.A. 39:4-50.2],2 39:4-50] or . . . [N.J.S.A. the arresting law enforcement agency shall impound the vehicle that the person was operating at the time of the arrest.
[directive] ApplEcebiGty. D a t e h u e d 121  Statement Policy of  This standdrd operating procedure governs the division and distribution property N.J.S.A.  The is 2C:64-1 forfeited pursuant to et seq. standard promulgated to provide guidance and prior notice regarding the procedures governing the equitable distribution, with in for of use and accountability law enforcement agencies such property accordance the statutory intent.
[brief] [...]'s report and testimony are substantiated, and would have assisted the trier of fact.  The subject matter of his opinion is beyond the ken of the average juror; he has sufficient expertise and specialized knowledge to offer his opinion; and it was sufficiently reliable.  See, e.g. State v. Kelly, 97 N.J. 178, 208 (1984).  These three requirements for expert opinion should "be construed liberally in light of N.J.R.E. 702's tilt in favor of admissibility of expert testimony."  State v. Jenewicz, 193 N.J. 440, 454 (2008).  [...]'s opinion was not net opinion.
[brief] (3T 20-9 to 21-2).  [...] testified that when he and [...] arrived at [...], in a silver Malibu (2T 212-18 to 21), a white Impala pulled up on the driver’s side of his car, and what he described as a black Dodge Avenger pulled up behind.  [...], whom he did not know, was in the Impala.  (2T 202-13 to 204-23; 25 205-8 to 16).  [...] maintained that he did not know the people who were chasing him, and addressed statements seemingly to the contrary in his statement to police by --- \(^5\) [...] acknowledged approximately ten prior convictions, and that at the time of trial he was serving a sentence for possession of heroin and pointing a firearm, after pleading guilty to charges arising from this incident.
[brief] Defendant [...] delves into differing facts of cases which [...] cited in arguing that a lay opinion which an average juror can easily comprehend is ordinarily admissible under N.J. R. Evid. 701.  (8th Street Brief at pp. 8-13).  Again, R. 701 is an evidence rule setting forth a general principle, and its applicability does not depend upon exactly congruent, individual facts.  N.J. R. Evid. 102 states regarding the purpose and construction of the evidence rules that they “shall be construed to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.
[brief] For six months while Koda was within the control of the [...], the State missed its chance to have Koda tested or even observed by a behaviorist, trainer, or veterinarian.  They did not call an employee of the kennel or even [...] as a witness – it was the defendant who called her to the stand.  And, contrary to the State’s characterization of the [...] report, she did observe Koda with other dogs.  She walked him through the kennel on a leash past cages of various dogs, big and small.  He noticed them but did not react.  It would have been reckless to allow a dog accused of being potentially dangerous to interact off leash with other dogs, as the State suggested she should have done!  [...]’s report is illuminating in other respects.  She was a total stranger, unknown to Koda.  Yet he greeted her in a friendly manner.  She is an experienced dog trainer with [...], a respected animal welfare organization that rescues and provides training for dogs.  She was not afraid of Koda.  **Conclusion**
[brief] Johnson, supra.  Based on the above, the defendant's ineffective assistance of trial counsel and appellate counsel claims were appropriately before the PCR court, although, incorrectly adjudicated.  The defendant argued in his motion for reconsideration that the PCR court failed to address the claims of ineffective assistance supported by certifications with respect to trial counsel's failures to file a proper suppression motion (as opposed to a motion to dismiss), failure to make reasonable investigations, failing to have an organized plan of defense, failure to present an adequate defense, failure to communicate with the client, etc. under the first prong of Strickland.
[brief] PRELIMINARY STATEMENT ..................................................  1  PROCEDURAL HISTORY .....................................................  3 STATEMENT OF FACTS ......................................................  4 LEGAL ARGUMENT ............................................................  7 STANDARD OF REVIEW .....................................................  7 POINT I: THE SUPERIOR COURT ERRED IN ITS INTERPRETATION OF THE AIM OF OPRA.  (Pa139-154)  ...........  9  POINT II: THE SUPERIOR COURT ERRED IN NOTING THAT [...] DOES NOT HAVE AN INDIVIDUALIZED INTEREST (Pa139-154) .................................................................  12 POINT III: THE SUPERIOR COURT ERRED IN NOTING THAT TESTING AS DESCRIBED WOULD DEPRIVE THE PUBLIC ACCESS TO THESE REQUESTED ITEMS IN THEIR ORIGINAL STATE (Pa139-154)  ........................................................................  13  POINT IV: THE SUPERIOR COURT ERRED IN ITS ANALYSIS OF THE STATUTE OF LIMITATIONS AND ITS APPLICABILITY (Pa139-154)  .................................................................  17  POINT V: THE SUPERIOR COURT ERRED IN ITS ORDER THAT APPELLANT FAILED TO STATE A CLAIM (Pa139-154)  ..........  19 CONCLUSION ........................................................................ 24  ## TABLE OF AUTHORITIES
[brief] On April 1, 2019, the Court denied Appellant’s motion, holding:  In this case, equity does not support maintenance of the status quo in the form of plaintiffs being forced to continually employ and pay [Appellant].  Plaintiffs have provided evidence of [Appellant]’s misconduct in relation to [...].  Additionally, [Appellant] has admitted to various acts of misconduct in a certification and in sworn testimony.  Defendants have not denied plaintiffs’ allegations regarding [Appellant]’s actions, but instead claim the March 28, Order requires plaintiffs to continue to pay and employ [Appellant] regardless.  To force plaintiffs to employ and pay [Appellant] given the evidence presented against him would not be an equitable order consistent with a status quo injunction.  “[E]quity will not consciously become the instrument of injustice. ” (Da285).  (internal citations omitted).