ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Beyond the express terms of the parties’ CBA, the [...]’s right to control the performance of its employees has been enshrined by the Legislature as a managerial prerogative of public employers for over 50 years.  As the New Jersey Supreme Court noted, the Legislature has provided a comprehensive “list of non-negotiable management rights”:  It is the right of any public employer to determine the standards of services to be offered; determine school and college curricula; determine the standards of selection for employment; direct its employees; take disciplinary action; maintain the efficiency of operations; determine the methods, means and personnel by which operations are to be conducted; determine the content of job classifications; take all necessary actions to carry out its mission in emergencies; and exercise complete control and discretion over its organization and the technology of performing its work.  Decisions of any public employer on the aforesaid matters are not within the scope of collective negotiations; provided, however, that questions concerning the practical impact that decisions on said matters have on employees, such as questions of workload or manning, are within the scope of collective negotiations.
[brief] (Pa9-81; Pa82-97; Pa130-140).  The pleading itself was seventy-three pages long with 307 numbered paragraphs, many of which contained compound averments with some paragraphs taking up an entire page.  (Pa9-81).  Attached to the pleading were twenty-four (24) pages of purported exhibits.  (Pa82-97; Pa130-140).  On April 1, 2022, the Trial Court denied Plaintiff’s motion to amend thereby dismissing the action with prejudice.  (Pa4)  As explained in [...]’s lengthy and thorough oral decision, Plaintiff’s proposed amended pleading suffered from the same deficiencies and lack of coherence as the previously dismissed/remanded pleadings and concluded that Plaintiff had so many prior opportunities to correct the deficiencies in the pleading that allowing further amendment attempts would be futile.  (4/1/21 Transcript @ T29:22 to T59:13).  5.
[brief] Indeed, the same issues alleged here were presumably at issue in *Trupos*.  For instance, counsel presumably learned the municipality’s settlement positions and financial information.  Notwithstanding, that alone would not justify disqualification, and certainly does not here.  adverse to either in prior litigation is insufficient to warrant the extreme remedy of disqualification.  For the avoidance of doubt, [...], [...], and [...] are wholly unrelated to the instant litigation and are not substantially related to this matter as they have no connection to this case.  Indeed, those cases involve different entities, parties, claims, and witnesses -- and the trial court agreed.
[brief] Plaintiffs’ Counsel Prepared [...] for His Trial Testimony.  [...] admitted to meeting with Plaintiffs’ counsel and watching the bodycam video with him over the weekend prior to his trial testimony.  [4T 216:6-218:8].  He admitted Plaintiffs’ counsel paused the video at certain points so that counsel could point things out to him.  [4T 218:8-16].  F.
[brief] A.  Standard of Review ..........................................................................................................26  1.  Motions to Amend ............................................................................................................26  2.  Motions to Dismiss pursuant to Rule 4:6-2(e) .................................................................27  B.  The Fifth Amended Complaint (Da293-358) was the operative complaint.  (5/25/23 Transcript @ T4:20 to T23:18) ...........................................28  C.  Even if the “SAC” was the operative complaint, [...]’s April 1, 2021, oral decision properly set forth the reasons why it was insufficient.  (4/1/21 Transcript @ T29:22 to T59:13)  .............................................30  D.  The Trial Court’s “with prejudice” dismissal was proper.  (4/1/21 Transcript @ T29:22 to T37:25; 5/25/23 Transcript @ T48:4 to T54:10)  .........................................................................................................................................................................................32
[brief] Here, the Board claimed in its Final Decision that the clinical risk assessments were properly considered as an aggravating factor militating against parole.  This conclusion was reached by the Board by completely reading out the “low” end of [...]’s risk assessments.  In its decision, the Board stated that:  With regard to your contention that [...]'s risk assessment evaluation was not properly considered by the Board, be advised that pursuant to N.J.A.C. 1 0A: 71-3.11, the LSI-R Assessment is one of the factors that the Board considers in determining an inmate's suitability for release on parole supervision.  The LSI-R Assessment is prepared prior to an inmate's parole release hearing and utilizes various risk factors, such as an individual's prior criminal record, educational and employment histories and substance abuse history to produce the final score.  Additionally, the Board notes that the psychological report prepared by [...], Ph.D. on May 17, 2018 was part of the record established at [...]'s full Board hearing, was on file, available for review and was considered by the Board.  Notwithstanding the psychological report prepared by [...], the Board finds that [...]'s LSI-R score of seventeen (17), which indicates a moderate risk of recidivism, was appropriately utilized by the Board in his case.
[brief] A lay opinion testimony maybe admitted if it: (A) is rationally based on the witness' perception; (B) will assist in understanding the witness' testimony or determining a fact in issue.  Here, [...] should not have narrated the video to the grand jury because he did not personally observe the events.  He had no familiarity of defendant's appearance when the crime was committed; his perception of defendant and co-defendant [...] seen entering the store first clearly contradicts the surveillance video; and his testimony was not helpful to the grand jury other than misleading them to believe it was "the defendant" in the video.  The grand jury never saw the video and/or a picture of defendant.  Apparently, Det. Hamer was someone who never watched the video and just came up with his own conclusion.  His testimony included the ultimate determination as to defendant’s guilt and assisting the jurors in determining the identity of the alleged robbers.  This testimony was very prejudicial as to meet plain error standard.  His references to it was “defendant” and Mack whom was depicted on video entering the store first and then [...] comes in and locks the door, conveyed to the grand jury his opinion that the defendant was the person in the video.
[brief] According to the “Special Report” that defendant filed almost two weeks earlier, he had “contacted” two police departments, including [...], before submitting it, apparently without filing a report with either police department.  (Pa18; see 16T85-6 to 9).  Defendant testified that he only “reported” the missing wallet to [...] Police.  (16T179-17 to 22).  Like the Special Report, his report to the [...] stated that he only realized he had lost the wallet on January 4, not New Year’s Eve.  (Pa59).  Responding to the Special Report, [...] issued a replacement wallet identification to defendant in January 2016.
[brief] **[...] and the public would not be prejudiced by arbitration of IFPA claims. **  The Amici Curiae allege that the ability to investigate and root out insurance fraud will be hampered by arbitration of IFPA claims.  The Amici Curiae do not cite to any evidence to support that allegation.  Nor do the Amici Curiae explain how consumer fraud can be arbitrated but insurance fraud cannot.  See Atalese, 219 N.J. at 446-48 (noting arbitrability of CFA claims).  At bottom, insurance companies will still be able to investigate fraud and seek recoupment of payments through the arbitration process.  [...] will maintain its authority to investigate fraud and initiate its own action, irrespective of how or whether the insurer files for arbitration.
[brief] Accordingly, A.  **No Due Process Violation Occurred. **  The only discernible due process argument set forth in Appellant’s brief are its assertions that “[f]undamental fairness is an integral part of due process,” and that: there is nothing fair about allowing an economic competitor the rental advantages that come with a taller, wider, more spacious apartment building located closer to the water than what was allowed for its neighbor, when to do so violates the [CZM] Rules and established case law prohibiting the ad hoc waiver of those rules.  [Ab20.]  Foremost, as discussed in Points I and II, supra, the Project does not violate the CZM Rules and no waiver, much less an unlawful waiver, of the CZM Rules occurred.
[brief] ”  Id. at 39:18–25.  Such relief was particularly necessary, Defendants’ counsel argued, in light of Plaintiff’s demonstrated track record of using the justice system to settle his own personal vendettas.  The attorneys’ fees Defendants sought to pursue under UPEPA, moreover, are mandatory prevailing party fees—the court “shall” award attorneys’ fees and costs “if the moving party prevails on the order to show cause,” N.J. Stat. Ann. § 2A:53A-58—not fees for frivolous litigation.  Lest the trial court be left with any doubt that Defendants were asserting the important public policy implications of Plaintiff’s conduct and the future viability of UPEPA as an independent “exceptional circumstance” warranting relief, Defendants’ counsel reminded the court that “we have demonstrated that there are two exceptional circumstances warranting reopening of the judgment. ”  T20:10–12 (emphasis added).  Defendants’ counsel explained, “[A]s I said before, if this Court were to fail to reopen the judgment, this could potentially give a road map for future litigants about how to circumvent the protections of UPEPA  . . . a litigant like [Plaintiff] could file a lawsuit he knows or doesn’t even expect to obtain the ultimate relief on because he knows the claims are frivolous, preview the defendants’ arguments for dismissal—. ”  Id. at 20:21–21:4.  In denying Defendants’ motion, the trial court did not once mention—or, apparently, consider—Defendants’ argument that Plaintiff’s procedural maneuverings to defeat operation of UPEPA was an “exceptional circumstance” warranting relief from the order of dismissal.  That was an abuse of discretion.
[brief] “A defendant is entitled to prove his innocence by showing that someone else committed the crime with which he or she is charged. ”  State v. Jimenez, 175 N.J. 475, 486 (2003) (citing State v. Koedatich, 112 N.J. 295, 297 (1989), cert. denied, 488 U.S. 1017 (1989)).  “[T]he third party evidence need not show substantial proof of a probability that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. ”  Ibid. (quoting Koedatich, 112 at 199) (external citations omitted).  However, a defendant must prove an “evidential link” of third-party guilt, rather than “mere conjecture. ”  Jiminez, 175 N.J. at 487 (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956 (1960)).
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[brief] A Vermont State Trooper testified that he had seen [...] on two occasions in Vermont, that [...] “goes by the nickname Bully” and that he recognized [...] as the defendant in the courtroom.  (3T10-1 to 12-13)  At the request of [...], Vermont officers recovered a pair of “Air Max shoe[s]” that [...] was wearing, which were admitted into evidence.  (3T6-17 to 8-8)  The State argued that the sneakers matched a person on video, which defense counsel disputed.  (7T46-24 to 48-4, 82-10 to 12)  In closing argument, defense counsel highlighted that the eyewitness testimony describing the unidentified man near the scene was inconsistent and vague.  Defense counsel noted that the State did not offer any testimony that identified the man on the scene as [...]; did not offer any possible motive; and did not produce the gun.  (7T43-8 49-16)  Moreover, defense counsel underscored that the descriptions of the suspected shooter were actually more consistent with [...] – a 6’2” Black man who was a known driver of the Chevy– than they were with [...].  (7T57-23 to 15)  LEGAL ARGUMENT POINT I DEFENDANT’S CONVICTIONS MUST BE REVERSED BECAUSE THE DETECTIVE IMPROPERLY NARRATED VIDEO FOOTAGE BY (A) DESCRIBING EVENTS ON VIDEO OF WHICH SHE HAD NO FIRSTHAND KNOWLEDGE, (B) DESCRIBING THE PATH OF TRAVEL TAKEN BY THE SUSPECT, AND (C) IDENTIFYING THE DEFENDANT ON VIDEO.
[brief] Consistent with the crucial importance that supply of potable water has for the public health and welfare, and its status as a public trust resource, a municipality’s supply of water to residents has been recognized as an essential government function.  For example, New Jersey’s Supreme Court has recognized that municipal supply of water implicates the State’s *overriding concern and obligation to safeguard the public health.  This encompasses a comprehensive power, coupled with a correlative duty, to control and conserve the use of its water resources for the benefit of all its inhabitants.*  It is a paramount governmental policy that such water supplies must be pure in quality, and be economically and prudently managed for the benefit of the public.  *Designed to protect and promote the general health, safety and welfare,* statutes regulating public water resources must be liberally construed to advance and achieve this underlying beneficent policy.  *K.S.B. Tech. Sales*, 75 N.J. at 287 (internal citations omitted); see also *State ex rel. Dept. of Health v. North Jersey Dist. Water Supply Comm’n*, 127 N.J. Super. 251, 260 (App. Div. 1974).  Courts have also recognized that a municipal water supply commission “is a public body, politic and corporate, *exercising public and essential government functions in the interest of the public health and welfare.*”  *North Jersey Dist. Water Supply Comm. v. Newark*, 103 N.J. Super. 542, 549 (Ch. Div.), aff’d 52 N.J. 134 (1968) (emphasis added).  As summarized by the Supreme Court, a governmental entity’s “activities in harnessing, treating and channeling” water “*constitutes appropriate governmental functions and purposes*” because it involves “transmitting ‘common’ property, potable water . . . for the use of . . . inhabitants – a necessity upon which their very existence depends.
[brief] Plaintiff’s burden of proof in a FELA case is much less than is required for a Plaintiff to sustain a recovery in an ordinary negligence action brought under the state tort law.  Boeing Company v. Shipman, 411 F.2d 65 (11th Cir. 1969).  The Plaintiff does not have to prove the Defendant’s negligence was a substantial contributing factor in causing a Plaintiff’s injuries.  Rather, in a FELA case, the Plaintiff is only required to prove that the railroad’s negligence, in whole or in part, caused Plaintiff’s injuries.  The obvious purpose of the FELA is to enlarge the remedy of railroad employees injured as a result of the hazards in their workplace.  Metropolitan Coal Company v. Johnson, 265 F.2d 173 (1st Cir. 1959).  “A trial court is justified in withdrawing…issues from the jury’s consideration only in those extremely rare instances where there is a zero probability either of employer negligence or that any such negligence contributed to the injury of an employee. ”  Hines v. Conrail, 926 F.2d 262, 268 (3d Cir.1991)(emphasis added).  FELA actions are commonly submitted to juries on “evidence scarcely more substantial than pigeon bone broth.
[brief] In State v. Hoffman, 149 N.J. 564 (1997), the New Jersey Supreme Court held that the terms “annoy,” and “annoyance” should be accorded their normal and accepted meanings, and those provisions of the statute do not require physical contact or acts of violence.  See Hoffman, 149 N.J. at 580 (citing Fahey v. City of Jersey City, 52 N.J. 103, 107 (1968)).  A plain language, and ordinary, reading of the harassment statute supports Plaintiff’s reasonable belief that Defendant [...]’s actions, which included verbal abuse, profanity, and physical intimidation without contact, fell within the statutory definition.  That Plaintiff, and others who complained about Defendant [...], may not know the details of the State’s harassment statute is irrelevant.  The complaining employee need not specifically articulate the “exact violation” that is occurring.  See Hernandez v. Montville Tp. Bd. of Educ., 354 N.J. Super. 467, 474 (App. Div.2002), aff’d o.b., 179 N.J. 81 (2004).
[directive] $100 to $500 10% permissible offense.  Persons Placing Signs or Actor purposely, knowingly, or recklessly puts or attempts to put another in fear of bodily 2C:33-10  Displays that  Imply violence by placing on private property of another a symbol, an object, a characterization, an 3rd Degree $5,000 to $35,000 10%  Permissible Threats of Violence appellation or graffiti that exposes another to threats of violence.  Actor purposely defaces or damages, without authorization of the owner or tenant, any private premises or property primarily used for religious, educational, residential, memorial, Desecrating Religious charitable, or cemetery purposes, or for assembly by persons for purpose of exercising any 2C:33-11 or Sectarian 4th Degree $1,000 to $3,500 10%
[brief] Ibid.  The ALJ dismissed count two of the complaint, holding that [...]’s conduct was based on private action, and therefore no violation of N.J.S.A. 18A:12-24.1(c) could have occurred.  (Aa181).  The ALJ concluded that reprimand was the appropriate sanction in this matter, reasoning that “the --- 6 N.J.S.A. 18A:12-24.1(e) prohibits school board members from taking actions outside the officially mandated duties of board members that may comprise the board.  7 N.J.S.A. 18A:12-24.1(f) prohibits school board members from using the schools for personal gain or for the gain of friends.  8 N.J.S.A. 18A:12-24.1(c) requires board members to consult those who will be affected by the policies and plans they develop as part of their official duties.  totality of the circumstances . . . do not seem to support a formal action of censure. ” (Aa182).  On February 28, 2023, the ALJ issued an order severing the [...] and [...] matters, explaining that his February 27, 2023 decision granting summary decision on three counts, and dismissing the remaining count, thus “resolved the entire case as to . . . [...].
[brief] (14T 125-4 to 127-10)  [...] was aware that [...] served in the military, had been deployed to Afghanistan.  (10T 54-20 to 54-25) up,” [...] responded:  “I'm not 100 percent sure, but people weren't going to like that. ”  (10T 24-19 to 24-22)  When asked by the prosecutor why he started rewriting the third letter, [...] said, “Because [[...]] asked me to because he said his handwriting was sloppy.  . . .  He said his handwriting was sloppy so he asked me to do the writing. ”  (10T 30-13 to 30-22)  The prosecutor then asked [...] if [...] told him “to do anything with these letters after he gave them to you,” and [...] responded: “He told me to flush them.
[brief] That the “principal use” is a pre-existing non-conforming use which will be greatly expanded in terms of lot coverage, paved surfaces and intensity; h.  That the existing conditions with lot coverage exceeded the lot coverage allowances of the zone, not including sidewalks, driveway, pool and concrete which would require a lot coverage variance; and i.  That a residence and accessory residential structures are prohibited in the RD-C Zone.  Notice of the 2022 Zoning Application was also published on the [...] newspaper on August 4, 2022.
[brief] There was never a clear intent to dedicate the roadway at issue.  Case law suggests that an evidentiary hearing is necessary where the obligation of maintenance and ownership is in question.  The Appellate Division in *Parisi v. N. Bergen Mun. Port Auth.*, 105 N.J. 25, 41 (1987) found "the proofs as to the status of Marine Road not being a dedicated street . . . inadequate . . .* * * and therefore that an evidentiary hearing was necessary.  *Id.*  The proponent of an alleged public street must prove both an intent to dedicate and acceptance by the municipality.  *Barile v. Port Republic*, 186 N.J. Super. 587, 590 (Law Div.1982).  It is settled that mere dedication of streets by a filed map or a reference in a deed to such map, and the opening of the streets as laid out, does not constitute them public highways, unless or until such streets are in some way accepted by public authorities or they are used by the public generally for 20 years as highways.  *Highway Holding Co. v. Yara Eng'g Corp.*, 22 N.J. 119, 127 (1956)  The dedication of private lands to public use is essentially a matter of intent.  *Haven Homes v. Raritan Tp.*, 19 N.J. 239, 246 (1955).  Acceptance of a dedication is a necessary prerequisite to imposing maintenance responsibility upon a municipality.  *Velasco v. Goldman Builders, Inc.*, 93 N.J. Super. 123, 134 (App. Div. 1966).  See also *Barile v. Port Republic*, 186 N.J. Super. 587, 591 (Super. Ct. 1982)  “Dedication and acceptance are separate and distinct matters” and *N. J. Transit Corp. v. Franco*, 447 N.J. Super. 361, 375-76 (App. Div. 2016)  “It is settled that mere dedication of streets . . . does not constitute them public highways, unless or until such streets are in some way accepted by public authorities. ”  The issues of ownership, dedication, acceptance and responsibility are not clear on the record put forth by Plaintiff.  A proof hearing is therefore necessary to identify and clarify the ownership and maintenance obligations at issue.