ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Regulatory reviews and approvals in connection with the Union County Project  Pursuant to N.J.S.A. 48:2-23, [...] is obligated to “furnish safe, adequate and proper service. ”  [...]’s Statewide Initiative is part of [...]’s Regional Transmission Expansion Plan (“RTEP”).  (Da526a, ¶15).  [...] is a Regional Transmission Organization (“RTO”) approved and fully regulated by FERC.  (Id.).  [...] coordinates the transmission of electricity to over 65 million customers through all or parts of Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, New Jersey, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and the District of Columbia.  (Da526a, ¶16).  C.
[brief] “Ja” refers to [...]’s Appendix.  “Ab” refers to [...]’s brief.  “Ra” refers to the Department’s Appendix.  The contract(s) “may be executed by an attorney in fact . . . duly authorized and acting for such subscribers, and such attorney may be a corporation. ”  N.J.S.A. 17:50-2.  “The office or offices of such attorney, herein defined as an ‘exchange,’ shall be maintained at such place or places as may be designated by the subscribers in the power of attorney. ”  Ibid.  In this case, the attorney-in-fact is [...], and the exchange of insurance contracts by subscribers (or “policyholders”) is conducted within [...] – the reporting entity.  The power of attorney (“POA”) is the contract between the subscriber(s) and [...], and it lays out the roles of the entities comprising the Exchange – subscribers, [...], and [...].  The Bulletin is a “regulatory guidance document,” defined in the Administrative Procedure Act as “any policy memorandum or other similar document used by a State agency to provide technical or regulatory assistance or direction to the regulated community to facilitate compliance with a State or federal law .
[brief] POINT I THE LOWER COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE EXCUSABLE NEGLECT.  As previously stated, “[t]he decision whether to grant such a motion is left to the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. ”  *Triffin*, 436 N.J. Super. at 629 (citing *Mancini*, 132 N.J. at 334).  Accordingly, for Defendant’s appeal to be successful, he must prove that the lower court abused its discretion when it found that he failed to demonstrate excusable neglect.  Defendant has failed to prove that the lower court abused its discretion.  Accordingly, the appeal should be denied.
[brief] ### TABLE OF AUTHORITIES | Cases | PAGE | |----------------------------------------------------------------------|------| | Aircraft Mechs. Fraternal Ass’n. v. Nw. Airlines Corp., 394 F. Supp. 2d 1082 (D. Minn. 2005) | 22 | | Angus v. Bd. of Educ. Of Borough of Metuchen, Middlesex Cty., 475 N.J. Super. 362, 371 (App. Div. 2023) | 14 | | Appeal of Exeter, 126 N.H. 685 (1985) | 24 | | Bd. of Selectmen v. Labor Relations Com., 7 Mass App. Ct. 360, 362 (Mapp. App. Ct. 1979) | 25 | | Bermudez v. Kessler Inst. for Rehab., 439 N.J. Super. 45, 51 (App. Div. 2015) | 16 | | Bridgewater-Raritan Educ. Ass’n. v. Bd. of Educ. Of Bridgewater-Raritan Sch. Dist., Somerset Cty., 221 N.J. 349 (2015) | 13, 14 | | Brooke Glen Behavioral Hosp., 365 NLRB No. 79 (2017) | 24 | | East Orange Public Library v. Taliaferro, 180 N.J. Super. 155, 160 (App. Div. 1981) | 31 | | Gallagher v. Irvington, 190 N.J. Super. 394, 397 (App. Div. 1983) | 15 | | Gerawan Farming, Inc. v. Agric. Labor Relations Bd., 40 Cal. App. 5th 241, 265 | 25 | | I/M/O Brielle Board of Education and Brielle Education Association, 3 NJPER ¶ 323 (1977) | 16, 18, 26 | | I/M/O Local 195, IFPTE and Local 518, SEIU | 15 | | I/M/O Morris County College Faculty Association, 48 NJPER ¶ 16 | 29 | | In re: City of Atl., 445 N.J. Super. 1, 11 (App. Div. 2016) | 8, 9 | | In re: Petition of Gardener, 67 N.J. Super. 435 (1961) (Pa255)) | 16 | JWC Fitness, LLC v. Murphy, 469 N.J. Super. 414, 426 (App. Div. 2021)
[brief] An agency’s factual determinations are presumptively correct; on review of the facts, a court will not substitute its own judgment where the agency’s findings are supported by sufficient credible evidence.  Rooth v. Bd. of Trs., Pub. Emps.’ Ret. Sys., 472 N.J. Super. 357, 365 (App. Div. 2022).  Additionally, this court gives “substantial deference to an agency’s interpretation of a statute that the agency is charged with enforcing,”  Richardson v. Bd. of Trs., Police & Firemen’s Ret. Sys., 192 N.J. 189, 196 (2007).  “Such deference has been specifically extended to state agencies that administer pension statutes,” because “a state agency brings experience and specialized knowledge to its task of administering and regulating a legislative enactment within its field of expertise.
[brief] [...] testified on direct that defendant “feels badly that somebody lost their life and that, you know, his actions may have contributed to that. ” (3T72-13 to 19) (emphasis added).  And on cross-examination, when discussing remorse-versus-regret, she acknowledged that defendant has never admitted that his actions were the reason why these tragic events occurred, even conceding that defendant “regrets putting the [victim’s] family through this whole situation” which to her “suggests that he is taking responsibility.
[brief] Defendant received a fair trial and a commensurate sentence.  He was deprived of neither right nor process and was subject to no prejudice.  The motor vehicle stop was justified by the observations of an officer whose credibility was endorsed by the trial court.  Relying on that testimony, the trial court denied defendant’s motion to suppress: a decision this court should now ratify.  At trial, defendant’s gambit failed: consciously and deliberately provoking the admission of evidence over the State’s objection and in defiance of the court’s warning.  The prejudice, if any, was nominal and more importantly, self-inflicted.  During sentencing, the trial court established a record sufficient to justify its sentence.  A sentence that, if not in fact favoring leniency, fell squarely within the prescribed statutory punishment and was supported by appropriate facts and considerations.
[brief] These provisions of R. 4:24-1(c), rather than restricting a trial judge’s options to either deny an application to extend discovery or to extend same to a date certain, allow a trial judge to review each matter’s unique factual situation, and in appropriate circumstances, enter a detailed case management order with appropriate terms and conditions so as to provide the individual litigants with a chance to have discovery completed and the matter heard on the merits.  Leitner v. Toms River Regional Schools, 392 N.J. Super. at 91-92.
[brief] Defendants briefly summarize the pertinent facts of record, which are thoroughly recounted in the Trial Court’s comprehensive written opinion.  (Da1-57).  Plaintiff worked at the [...] for three years from 2016 to 2019 as one of four Vice Principals at the [...] (the “High School”).  (Da101-127).  Plaintiff, a Black woman, was 56 years old at the time Defendants hired her.  Plaintiff was not tenured, so her employment was governed by employment contracts, each with a one-year term.  (Da124-127).  At the end of the 2018-2019 school year, the [...] and [...] decided not to renew Plaintiff’s employment, following [...]’s recommendation for her non-renewal.  Plaintiff was 59 years old at that time.  (Pa20 ¶101, Da89-90).  There is nothing in the record to reflect that any racist or ageist remarks were ever made by Plaintiff’s supervisors or the decisionmakers.  Plaintiff conceded this fact during her deposition.  (Pl. Tr. 237:8-24).
[brief] “It is well established that when a reviewing court is considering an appeal from an action taken by a planning board, the standard employed is whether the grant or denial was arbitrary, capricious or unreasonable.”  Fallone Properties, L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 560 (App. Div. 2004)(citing Burbridge v. Mine Hill Tp., 117 N.J. 376, 385 (1990); Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965); Med. Ctr. v. Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App.Div.2001)).  The burden of proof that the action of the Board was arbitrary, capricious, or unreasonable is upon the plaintiff.  Kramer v. Bd. Of Adjust., Sea Girt, 45 N.J. 268 (1965); Jock v. Zoning Bd. of Adjustment, 184 N.J. 562 (2005).
[directive] The notice of charges and hearing shall direct that the subject officer may: (1) enter a plea of guilty to the charges; (2) enter a plea of not guilty to the charges; or (3) waive their right to a hearing.  If the officer enters a plea of guilty or waives their right to a hearing, he or she is permitted to present mitigating factors prior to being assessed a penalty.  Conclusions of fact and the penalty imposed will be noted in the officer's personnel file after he or she has been given an opportunity to read and sign it.  Internal affairs will cause the penalty to be carried out and complete all required forms.
[brief] *See KPH Healthcare*, 2021 WL 4739601 at *9 (finding a refusal to apply equitable estoppel and compel plaintiff to arbitrate its claims against the signatory to a contract, but not the non-signatory, would constitute a clear detriment to the non-signatory who relied on the signatory to contract); *(see also* Order, Pa69-Pa70) (“It is clear to this Court that the claims in this action cannot be severed from those against [...] .  . . .”)  Next, [...]’ makes the baseless assertion that the Electronic Funds Transfer (EFT) Authorization form attached to the Contract is actually a “separate” agreement between [...] and [...].
[brief] **[...]’s Answer did not invoke any suit limitation provision. **  On July 7, 2023, [...] responded to [...]’s Complaint by filing an Answer.  (Pa22).  [...]’s Answer did not invoke any contractual limitations period.  (Pa24–Pa27).  To the contrary, [...]’s Answer alleged that [...]’s “claims are barred by the Statute of Limitations. ” (Pa26).  VI.
[brief] The Appellant filed his Verified Complaint In Lieu Of Prerogative Writ With Order To Show Cause on November 16, 2023.  The Appellant then filed an Amended Verified Complaint In Lieu Of Prerogative Writ With Order To Show Cause (“Complaint”) on November 30, 2023.  (Pa30).  A virtual hearing on the Appellant’s Order to Show Cause was held on March 6, 2024.  (1T).  During the hearing, the Trial Court scheduled an in-person argument for March 27, 2024, to address the Appellant’s claim that the height of the constructed Approved Building exceeded the height approved by the Board.  On March 27, 2024, the Trial Court heard the parties’ arguments and found that the Board had not relied on the Sketch nor made construction of the Approved Building as shown on the Sketch a condition of the approval.  (2T20:24 to 21:5, 2T23:1-10, 2T23:20-21, 2T30:19-24, 2T32:13-18, and 2T33:14-16).  Based on that finding, the Trial Court held that the Sketch and Home Depot Ad lacked relevance to the question of whether [...] had constructed the Approved Building in accordance with the Board’s approval and therefore excluded these documents from evidence.  (2T37:25 to 39:16).  The Trial Court did admit two authenticated photographs taken by the Appellant into evidence.  Based upon the extremely limited evidence offered by the Appellant, the Trial Court ruled that the Appellant had failed to carry his burden to demonstrate that [...]’s building was not built in accordance with the Board’s site plan approval.  (2T40: 20-25).  Accordingly, the Trial Court denied the Appellant’s Order to Show Cause and dismissed his Complaint with prejudice.
[brief] A review of the transcripts from the hearings before the ZBA discloses that the Objectors only introduced three (3) exhibits.  (Pa628).  The majority of the remaining forty (40) exhibits attached as Exhibit A to the Certification of [...] do not appear in the record of the proceedings before the ZBA.  (Pa621; Pa101-102).  Similarly, none of the exhibits to [...]’s Certification or the Certification of [...] were introduced as evidence during the ZBA hearings.  (Pa621; Pa101-102).  Moreover, many of those exhibits post-date the September 12, 2022 final hearing of the ZBA on the application in question.  (Pa128; Pa815-839).  LEGAL ARGUMENT I.
[brief] Defendants' opposition brief ignores the difference between prospectively modifying employment terms and retroactively stripping employees of already vested rights.  The Municipal Stabilization and Recovery Act ("MSRA"), N.J.S.A. 52:27BBBB-1, et seq., does not grant Defendants the authority to retroactively eliminate vested terminal leave benefits.  Further, in their opposition brief, Defendants heavily rely upon the unpublished decision Atl. City Superior Officers Ass'n v. City of Atl. City, (Superior Officers) No. A-3117-20, 2022 WL 2352376 (N.J. Super. Ct. App. Div. June 30, 2023).  However, there are crucial factual distinctions between this case and the Superior Officers decision.  In Superior Officers, the plaintiffs were still employed and they could use their sick time as part of their ongoing employment with [...].  Here, the [...] are retired and they seek compensation for already accrued benefits.  Further, in their opposition brief, Defendants ignore the events that show that the implementation of the MSRA was not straightforward and the actual details of how the MSRA would be implemented on [...] employees was in flux until the settlement of the First Police Matter.  The first instance where a distinction was made between pre- and post-November 9, 2016 retirees was in an October 18, 2018 correspondence from the State.  Further, Defendants did not consistently apply their own designated timeline, paying out uncapped terminal leave to at least one [...] Police Officer who retired after November 9, 2016.  In this October 18, 2018 correspondence, Defendants also permitted [...] to pay out uncapped terminal leave to several civilian employees who retired prior to November 9, 2016 notwithstanding the fact that they did not have a written contractual agreement with the City to receive retiree sick time payouts.  Finally, Plaintiffs address Defendants' waiver argument.  Specifically, Defendants assert that Plaintiff's constitutional claims were not raised in opposition to their motion for reconsideration.  The Court should reject this argument as Plaintiffs extensively briefed their constitutional claims before the Trial Court in opposition to Defendants' motion to dismiss for failure to state a claim upon which relief may be granted.  Further, Plaintiffs specifically raised their Takings Clause argument in response to Defendants' motion for reconsideration.  Thus, there was no waiver of the Plaintiffs' constitutional claims.  For the foregoing reasons and based upon the arguments set forth below, the Court should reverse the Trial Court's decision and remand the case for further proceedings.
[brief] (3T 22:15-23:12).  Plaintiffs sought leave to file an interlocutory appeal regarding the Sanctions Order, and the Reconsideration Order. \(^9\) (P646a-P648a).  Leave to file the appeal was denied on March 18, 2022.  (P649a-P650). \(^10\)  After the Trial Court’s Summary Judgment Order, the on-going discovery continued as to the other defendants.  (P270a, P651a-P654a).  On April 14, 2023, discovery closed.  (P654a).  On June 28, 2023, the Trial Court denied the [...]’ motion for summary judgment on each of Plaintiffs’ remaining claims except for four of Plaintiffs’ nineteen counts.
[directive] 5.5  Law enforcement agencies, supervisors, and officers are prohibited from retaliating in any form against an officer who intercedes in or reports illegal or inappropriate uses of force.  5.6  Every department shall establish a written policy which requires intervention and protects officers who intervene from retaliation or other negative consequences.  The departmental policy shall be consistent with this Policy and all applicable laws.  Reporting procedures must comply with Internal Affairs Policy & Procedures.  See AG Directive 2020-7.  18  USE OF FORCE POLICY | December 2021 Core Principle Six Duty to Render Medical Assistance.
[brief] As noted above, the DACCA regulates the business of debt adjustment, which is within the State’s police power and does not encroach upon judicial prerogatives to regulate the bar.  Nat'l City Bank of New York v. Del Sordo, 16 N.J. 530 (1954) (holding police power reaching nearly “every phase of civilized society,” including financial security).  More recently, the New Jersey Supreme Court found no encroachment on judicial prerogatives in Knight.  86 N.J. at 377.  In Knight, several attorneys who were former municipal court judges in Atlantic County brought a declaratory judgment action challenging the constitutionality of a statute that very broadly restricted members of the judiciary and municipal judges from “dealings” with casinos.
[brief] 8  Torres v. Pabon, 225 N.J. 167, 191 (2016)........................................  32  Toto v. Ensuar, 196 N.J. 134 (2008) ..............................................  22  Viscik v. Fowler Equip. Co. 173 N.J. 1 (2002) ...................................................  23  Wimberly v. Paterson, 75 N.J. Super. 584 (App. Div.) ...............................  43  Woods–Pirozzi v. Nabisco Foods, 290 N.J. Super. 252 (App. Div. 1996) .....................  38  FEDERAL STATUTES
[brief] 13  | CASES CITED | |-------------| | Brady v. Bd of Review, 152 N.J. 197, 210 (1997) ("Charatm v. Board of Review, 200 N.J. Super. 74, 79 (App. Div. 1985).") ..........  5 | | Brooks v. Bd. of Trs., Pub. Emps.' Ret. Sys., 425 N.J. Super. 277 (2012) ..................................... 1, 8 | | Caminiti v. Bd. of Trs., Police and Firemen's Ret. Sys., 431 N.J. Super. 1, 14 (App. Div. 2013) (Citing Hemsey v. Bd of Trs., Police and Firemen's Ret. Sys., 198 N.J. 215, 223-24 2009)  ...................... ...... 5, 8 | | Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)  ...............  5 | | City of Newark v. Natural Res. Council, 82 N.J. 530, 539 cert. denied, 49 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)  ................. .... 4 | | H.K. v. Department of Human Services, 184 N.J. 367, 386 (2005)  .........  5 | | In re Musick, 143 N.J. 206, 216 (1996) ....................... ............  5 | | Klumb v. Bd of Educ. Of Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 34 (2009)  ............... .... 6 | | Mayflower Cec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)  ........ ............  5 | | Moran v. Board of Trustees, Police and Firemen's Retirement System, 438 N.J. Super. 346 (App. Div. 2014)  ............... .... 1, 6 to 10 | | Richardson vs. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189 (2007)  ............... .... .......... 1, 6 to 10 | Russo v. Bd. Of Trs., 206 N.J. 14, 27 (2011) (citing In re Herrmann, 192 N.J. 19, 27 (2007)) ......................... 4, 7 Utley v. Bd. Of Review, 194 N.J. 534, 551 (2008).
[brief] Prior to trial, the plaintiffs moved to bar evidence of the police officers’ opinions and conclusions from the trial on the grounds that the officers had not witnessed the encounter and admitting their opinions and conclusions would invade the fact-finding province of the jury.  On February 6, 2020 Judge [...], J.S.C. entered an order precluding the police officers from offering their opinions and conclusions about what had occurred between plaintiff and defendant, but permitted them to testify as to what they observed.  (Pa76; Pa80-81).  [...] then filed a motion to reconsider, which was denied by Judge Buck, in an order dated March 20, 2020, on the grounds that “Rule 701 of 704 [sic] does not allow the officers to testify as to their opinion about who with what.  This is a jury question. ” (Pa82; Pa86-88).  [...] then appealed that ruling to this Court, which affirmed the ruling below.  (Pa37-38)  This Court stated “[t]he police officers did not witness the altercation between plaintiff and [...].  To allow them to opine as to how the altercation occurred would be a clear invasion of the jury’s factfinding province. ”  (Pa38).  The “law of the case” doctrine means that a decision of law made in a particular case is to be respected by all other lower or equal courts during the pendency of that case, as long as the issue at stake has been litigated and decided.  State v. Reldan, 100 N.J. 187, 203 (1985).  “A hallmark of the law of the case doctrine is its discretionary nature, calling upon the deciding judge to balance the value of judicial deference for the rulings . . . against those 'factors that bear on the pursuit of justice and, particularly, the search for truth.'”  Hart v. City of Jersey City, 308 N.J.Super. 487, 498 (A.D. 1998).  Nevertheless, the defendants sought and obtained leave from the trial judge to admit the police officers' opinions and conclusions through the "back door" by way of the cross examination of plaintiff's retail expert, [...] ("[...]"), over plaintiffs' objection.  (1T53:4-62:21).  However, under the law of the case doctrine, such evidence should have been precluded because that issue had already been decided, three times, on solid grounds: that the police officers did not witness the encounter and therefore allowing their opinions and conclusions into evidence would invade the jury's factfinding province.
[brief] In 1939, a final decree came about and was entered in favor of [...] as to the lands described in the Final Judgment.  As a result of that, [...] owned the former lands of [...]  The foreclosure would also have included any alluvium or deposits, generally silt or sand that would have accredited to the lands upon which the town had a lien.  He describes this as being discussed in the Friedman v. Monaco and Brown Corp. 258 N.J. Super. 539 (App.Div. 1992) case [...] states his analysis would be that at the time the final decree was entered in 1939, [...] would have had those lands, together with any naturally accredited deposits along the beach.
[brief] 25 Kernan v. One Washington Park, 154 N.J. 437 (1998) ......................................................................................  24, 26 Kimball Int’l, Inc. v. Northfield Metal Prods., 334 N.J. Super. 596 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001)  ........................................................................................................  15  Kozlowski v. Smith, 193 N.J. Super. 672 (App. Div. 1984) ............................................................  22 Masone v. Levine, 382 N.J. Super. 181 (App. Div. 2005) ............................................................  17
[brief] STANDARD OF REVIEW  A lower Court’s determination of the applicability of OPRA should be reviewed de novo by the Appellate Division.  Paff v. New Jersey State Firemen's Ass'n, 431 N.J. Super. 278, 286 (App. Div. 2013).  Therefore, the lower Court’s “interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. ”  Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995).  II.  THE INFORMATION SOUGHT BY THE REQUESTOR IS EXEMPT FROM DISCLOSURE UNDER THE OPEN PUBLIC RECORDS ACT’S PRIVACY PROVISION (Da115)