ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Having given itself a pass on discussing the legal analysis of all authority with different facts, Defendant simply ignores the legal reasoning applied by Caplin Enterprises, Inc. v. Arrington, 145 So.3d 608 (Miss. 2014), Tillman v. Com. Credit Loans, Inc., 655 S.E.2d 362, 370 (2008), and Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal. 4th 83, 121, 6 P.3d 669, 694 (2000).  ¹  Plaintiff’s brief below is submitted as a supplemental appendix, consistent with the exception to R. 2:6-1(a)(2), as germane to this appeal.  It is submitted to rebut directly Defendant’s claim that Plaintiff did not argue procedural unconscionability below.  law is always distinguishable on facts but that is no legal justification to ignore legal lessons unless the party discusses why the factual distinction matters.  For example, in *Tillman*, the North Carolina Supreme Court instructed that substantive unconscionability “refers to harsh, one-sided, and oppressive contract terms. ”  Although Defendant makes much about the factual distinction between the provision struck down in *Tillman* and the provision before this Court, that distinction works in Plaintiff’s favor.  In fact, the North Carolina Supreme Court struck down the one-sided arbitration clause and did so even though “[t]his arbitration clause is not as egregious as some that specifically carve out an exception for the corporate drafter of the clause to pursue collection actions in court. ”  *Tillman*, 655 S.E.2d at 372 (emphasis added).  **C.  The Court’s Effort To Avoid “Issue Splitting” Created Issues (Pa1-Pa16)**
[brief] (SEE APPENDIX – OPINION Pa15-16).  Board decisions on “purely legal” matters are to be reviewed de novo by a reviewing court and are not entitled to any particular deference.  Reich v. Borough of Fort Lee Bd. of Adjustment, 414 N.J. Super. 483, 499 (App. Div. 2010); see also 388 Route 22 Readington Realty Holdings, LLC v. Township of Readington, 221 N.J. 318, 338 (2015).  Under established rules of appellate review under de novo, the Appellate division is not bound and gives no deference to the legal conclusions of the lower court.  Toll Bros. Inc. v. Township of W. Windsor, 173 NJ 502, 549 (2002).  Interpretation of an ordinance is essentially a legal issue.  Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); Pullen v. Tp. of South Plainfield, 291 N.J. Super. 1, 6 (App. Div. 1996); Jantausch v. Borough of Verona, 41 N.J. Super, 89, 96 (Law Div. 1956), aff’d, 24 N.J. 326 (1957).  Here, the trial court erred in applying the arbitrary, capricious and unreasonable standard of review as to whether the Board’s factual determination that [...]’s revised lot grade was not designed to allow increased building height based upon the record at the Board hearings.  The trial court should have strictly interpreted the Ordinance de novo as a matter of law.  Therefore, the trial court misapplied the appropriate standard of review in this matter.  POINT II
[directive] DATE: November 20, 2019  SUBJECT: Law Enforcement Interactions with Transgender Individuals  A recent study estimated that over 1.4 million adults and over 150,000 juveniles across the transgender.1 United States identify as  Unfortunately, transgender individuals regularly report that it.2 they are somewhat or very uncomfortable asking the police for help when they need New Jersey’s law enforcement community, which proudly includes LGBTQ+ officers among our ranks, is deeply committed to changing that.  After all, it is our shared responsibility as law enforcement officers to ensure the safety of all our residents.  That is a difficult task that requires, among other things, building trust with marginalized communities so that everyone in New Jersey will feel comfortable approaching law enforcement, whether as a victim, a witness, or a member of the public, including in moments of crisis.  In recent years, many law enforcement agencies across this country have issued new rules individuals3 to ensure that we are treating all transgender with respect, and with full recognition of their legal rights.  That has very much been the case in New Jersey: from city police departments to County Prosecutors’ Offices, a number of law enforcement agencies—including, prominently, 1 [...], et al., [...], [...], AGE INDIVIDUALS OF OF WHO IDENTIFY TRANSGENDER UNITED STATES 3 (2017), available at AS IN THE https://williamsinstitute.law.ucla.edu/wp-content/uploads/TransAgeReport.pdf.  2  [...], THE REPORT  2015 U.S. TRANSGENDER FOR OF THE SURVEY 189 (2016), available at https://transequality.org/sites/default/files/docs/usts/USTS-Full- Report-Dec17.pdf.  3  This Directive specifically addresses law enforcement interactions with transgender, non-binary, and gender non-conforming individuals.  However, where applicable, the directives below also govern interactions with other members of the LGBTQ+ community, and specifically prohibit discrimination on the basis of sexual orientation.  New Jersey Is An Equal Opportunity Employer • Printed on Recycled Paper and Recyclable Page 2
[brief] (1T 17-11 to 14, 18-23 to 19-1)  The officer who arrested him notified [...] that [...] resembled the individual in a flyer that [...] created for his armed robbery investigation.  (1T 17-15 to 16)  [...] thus went to interrogate [...] about the armed robbery.  Significantly, [...] testified that he did not intend to question [...] about the drug arrest from that day and the hearing court found that [...] only remained in custody so that [...] could question him about the robbery—the arresting officers had otherwise planned to release [...] on his own recognizance.
[brief] Defendant also admitted to improperly charging Plaintiff $6,273 for her car payments to [...] (3T166:22) and $4,387.20 for her insurance payments to [...] (3T162:11-19), as listed on page 103 of the [...] bank ledger.  (Pa170).  [...]’s March 16, 2023 Updated report calculates Plaintiff’s damages resulting from Defendant’s admitted, unauthorized, personal expenses paid from [...]’s business checking account as totaling $160,881.
[brief] (3T22:2-14; 38:15-17).  Thus, he determined that Petitioner’s 2015 “surgery was done for problems that pre-dated the accident and wasn’t caused by this accident. ” (3T22:2-14).  As a result of his review of all Petitioner’s medical records, [...] determined that “the total and permanent disability was not a direct result of the accident of 10/17/14 but was an aggravation of a preexisting condition.
[brief] (Da63)  In 1983, the [...] adopted an ordinance which adopts by reference the New Jersey Public Health Nuisance Code of 1953.  (Da64)  Section IV of the Public Health Nuisance Code of 1953, entitled “Prohibition of Certain Noises or Sounds”, makes the following unlawful: to make, cause or suffer or permit to be made or caused upon any premises owned, occupied or controlled by him or it . . . any unnecessary noises or sounds by means of the human voice, or by any other means or methods which are physically annoying to persons, or which are so harsh, or so prolonged or unnatural, or unusual in their use, time and place as to occasion physical discomfort, or which are injurious to the lives, health, peace and comfort of the inhabitants of this municipality or any number thereof.
[brief] M31.  The Trial Court then proceeded to set forth the reasons for its decision in greater detail, extensively citing to the record below, specifically highlighting testimony provided by Plaintiffs’ experts in support of the variance requests.  Notably, the Trial Court pointed out that Plaintiffs’ planner “methodically and thoroughly walked the Board through the (c)(1) and (c)(2) criteria and provided ample justification to support the request for the various bulk variances”:  In support of its request for relief pursuant to N.J.S.A. 40:55D-70(d), [Plaintiffs] [...] offered the testimony of its professional planner [...], P.P., who was qualified by the Board to offer expert planning testimony.  As he testified, although the Board was requiring a “d variance” for [...]’s proposed variance from the minimum tract size area ordinance provision, [...] did not meet the 75-acre minimum tract size ordinance provision even when the Zoning Board granted the identical relief in the 2016 Approval, and that “[i]n fact, none of the properties in the zone had the 75 acres.  And the lack of acreage is required for everyone to work together to come up with a cohesive connection” so that the affordable housing required by the Township can be provided.  TN 122:4-25.
[brief] Rule 2:10-1.  The plain error standard requires a determination of: “(1) whether there was error; and (2) whether that error was clearly capable of producing an unjust result; that is, whether there is a reasonable doubt . . . as to whether the error led the jury to a result it otherwise might not have reached. ”  State v. Dunbrack, 245 N.J. 531, 544 (2021) (quotations and citations omitted).  “Relief under the plain error rule . . . at least in civil cases, is discretionary and should be sparingly employed. ”  Baker v. Nat’l State Bank, 161 N.J. 220, 226 (1999).  B.
[brief] The Supreme Court has a long recognized “strong preference for adjudication on the merits rather than final disposition for procedural reasons. ”  Galik v. Clara Mass Med. Ctr., 167 N.J. 341, 356, 771 A.2d 1141 (2001) (quoting Mayfield, supra); Ragusa v. Lau, 119 N.J. 276, 284, 575 A.2d 8 (1990); (Tumarkin v. Friedman, 17 N.J. Super. 20, 27, 85 A.2d 304 (App. Div. 1951), certif. denied, 9 N.J. 287, 88 A.2d 39 (1952)); see also Ponden v. Ponden, 374 N.J. Super. 1, 9-10, 863 A.2d 366 (App. Div. 2004), certif. denied, 183 N.J. 212, 871 A.2d 90 (2005); Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 53, 834 A.2d 448 (App. Div. 2003).
[brief] *10  A person commits robbery if, during the course of committing a theft, he inflicts bodily injury or uses force upon another, or puts another in fear of immediate bodily injury.  N.J.S.A. 2C:15–1a(1) and (2).  Here, the indictment charged [...] and [...] with robbing [...], [...], and [...].  [...] and [...] were both robbed after [...] pointed a gun at them and [...] bound them with duct tape.  [...]'s money and personal items were stolen after [...] shot him.  No rational juror could have concluded that the acts charged in the indictment constituted theft, rather than robbery.  See *State v. Cassady*, 198 N.J. 165, 178–79 (2009).  D.
[brief] **Communications with third parties**  Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post judgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.  15 U.S.C. § 1692c(b).
[brief] Notably, in recognition of the lack of legal or factual basis for Defendants’ removal of Plaintiff, during her deposition in February 2021 Committee member [...] went so far as to feign amnesia as to who suspended Plaintiff or the reasons for it.  [...] also testified that she “[didn’t] really know” if she believed that action was proper, notwithstanding her vote in favor of it in August 2017.  Further, as Defendants also admit, the members of the Township Committee sought to inject themselves into the internal affairs and disciplinary process in publicly suspending Plaintiff and openly discussing the termination of his employment at a public meeting, in the context of allegations of racial profiling and racial bias, notwithstanding that there were no such credible allegations against Plaintiff.  Defendants’ own witnesses acknowledge that they had no authority to seek to discipline Plaintiff and had never before sought to become involved in police internal affairs and disciplinary matters in [...].  Further, Defendants admit that they were bound by the County Prosecutor’s findings that there was insufficient evidence to proceed against Plaintiff either criminally or administratively.  Defendants illegally removed Plaintiff from his position as Police Captain in violation of N.J.S.A. 40A:14-147, which provides as follows:  Except as otherwise provided by law, no permanent member or officer of the police department or force shall be removed from his office, employment or position for political reasons or for any cause other than incapacity, misconduct, or disobedience of rules and regulations established for the government of the police department and force, nor shall such member or officer be suspended, removed, fined or reduced in rank from or in office, employment, or position therein, except for just cause as hereinbefore provided and then only upon a written complaint setting forth the charge or charges against such member or officer.  The complaint shall be filed in the office of the body, officer or officers having charge of the department or force wherein the complaint is made and a copy shall be served upon the member or officer so charged, with notice of a designated hearing thereon by the proper authorities, which shall be not less than 10 nor more than 30 days from date of service of the complaint.  (emphasis added).  Here, it is undisputed that Defendants illegally suspended, and vowed to actively seek to terminate, Plaintiff from his position as Police Captain in violation of the statute which provides very specific due process protections to members of law enforcement.  These protections include removal only for “just cause”, a written complaint as contained in a notice of charges issued only after a finding pursuant to an appropriate internal affairs investigation that the allegations were sustained, and the requirement that a hearing take place within 10-30 days of the complaint.  Defendants illegally removed Plaintiff without charges, without just cause, and without a notice of a hearing from the Township’s Police Department through the Chief of Police, as is statutorily required.
[brief] **OR** - This document contains confidential information, but redaction is not required because the document is excluded from public access pursuant to court order, Rule, statute, or other authority.  If applicable, skip paragraphs 2 and 3.  2.  **Return and resubmission:**  I certify that if any confidential information is discovered in this submission and brought to the court’s attention, the court will return the document to me, and I will be responsible to redact or remove the confidential information before resubmission.  I understand the court could impose sanctions, including suppression of the brief, dismissal in extraordinary cases, and other measures for a failure to accurately make this certification or for the discovery of confidential information in a document that has been filed.  3.  **Briefs posted online:**  I understand that the presence of confidential information or confidential personal identifiers in a document that has been posted on the Judiciary’s public website will be grounds for the removal of such online posting, pending correction by the filing party, on an expedited timeline.  The court in its discretion could postpone further proceedings pending the resubmission of the document.  I certify that the foregoing statements made by me are true.
[brief] PRELIMINARY STATEMENT ..................................................................................  1  STATEMENT OF FACTS AND PROCEDURAL HISTORY ..................................  3  A.  Terms of the Contracts and Defendants’ Breach .....................................  3  B. Plaintiff’s Complaint and Damages .......................................................  5  C.  Motions for Summary Judgment............................................................  6  STANDARD OF REVIEW ..................................................................................  9  LEGAL ARGUMENT ..........................................................................................  12  I.  THE LOWER COURT MADE IMPERMISSIBLE CREDIBILITY DETERMINATIONS TO REACH THE CONCLUSION THAT THERE WAS NO ISSUE OF FACT WITH RESPECT TO PLAINTIFF’S DAMAGES (T57:16-59:11)..............................................  12  II.  THE LOWER COURT ERRED WHEN IT DISMISSED PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT (T59:14-22).  ...........  15  A.  There Was a Binding Contract between Plaintiff and Defendant ...  16  B.  Plaintiff’s Performance Under the First Contract ..............................  16  (i)  Plaintiff Abided by Defendant’s Payment Terms .........................  16  (ii)  Defendant Waived the Requirement of 20,000 Pound Releases  17  C.  Defendant’s Failure to Perform Under the First Contract ...............  19 CONCLUSION .................................................................................................. 22
[brief] In order for an inference to be available from the nonproduction of a witness, the trial court must find: (1) that the uncalled witness is peculiarly within the control or power of only the one party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue; and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.  State v. Hill, 199 N.J. 545, 561, 562 (2009)(quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985); State v. Clawans, 38 N.J. 162, 171 (1962).  "A witness is within the power of the party to produce when that party has superior knowledge of the existence or 'identity of a witness or what testimony might be expected or where a certain relationship . . . exists.'"  State v. Wilson, 128 N.J. 233, 244 (1992) (quoting State v. Carter, 91 N. J. 86, 127-28 (1982)).  Also, "it must appear that the absent witness's testimony, if given, would have been more than merely cumulative, that is, the witness's testimony on a point would have been superior to the testimony actually developed on that point."  Wilson, 128 N.J. at 244 (citing Clawans, 38 N.J.  at 171).  An appellate court reviewing the failure to issue an adverse-inference charge is for abuse of discretion.  State v. Dabas, 215 N.J. 114, 132 (2013).
[brief] [...]’s interim award decision also discussed [...]’s testimony concerning the second doctor’s note, procured on January 22, 2020 - after [...]’ employment was terminated on January 6 and before her scheduled follow-up appointment in February.  Regarding the second note, [...] testified that it was “not issued through clinical evaluation” but rather through an “outside communication” based on a “subjective patient request.”  (Pa33)  In other words, [...] neither had evaluated [...] during the period between the first doctor’s note and the second doctor’s note, nor approved the contents of the second doctor’s note.  Again, [...] recounted [...]’s testimony without discrediting it.
[brief] This ongoing concealment and litigation strategy have made it difficult for plaintiff to fully understand what transpired and to pursue legal action effectively.  Although the defendants' attorneys have expressed a willingness to discuss information with prospective attorneys, this is ineffective as it is ultimately up to the attorneys to decide whom to communicate with.  Furthermore, it is inappropriate for the defendants, who have concealed documents and repeatedly dismissed the case, to control the dissemination of information to prospective attorneys.  [...]’s “Client Notes Report” acknowledges the breach of contract (Pa92).  This report represents only a small portion of the violations, as further infractions need to be uncovered.  However, uncovering additional violations is challenging due to the care beneficiary’s death and the falsification of records, as evidenced by inconsistencies in the “Client Notes Report”.  Defendant [...] also admitted to fraudulent concealment, highlighting its negligence and failure to monitor the service, which contributed to the death of plaintiff’s father.  B.
[brief] This baseline assessment of legibility and clarity was recently reaffirmed by this Court in Ogunyemi v. Garden State Medical Center, No. A-1703-22, __ N.J.  Super. ___ (App. Div. Mar. 25, 2024) (slip op., at *11) (Pa1-24), which rejected an arbitration clause within an employment agreement “not written in plain, clear, and understandable language. ”  In particular, the provision flip-flopped between remedies without explanation, and was overly long and “confusing and poorly drafted[.]”  Ibid.  As to its length, this Court noted it was contained in a single paragraph of 887 words across thirty-six lines.  Id. (slip op., at *9) (Pa9).  Under these circumstances, even the agreement’s clear proclamation the “arbitration provision waives your right to a jury trial for any and all claims, including statutory employment claims” was insufficient to save it, and that is much more protective language than at issue here.  Id. (slip op., at *11, *12) (Pa11-12).  Ogunyemi drew “insight into ambiguity within arbitration clauses” from Morgan v. Sanford Brown Institute, where our Supreme Court also rejected an arbitration provision because the unclear and ambiguous language did not adequately secure waiver.
[brief] LEGAL ARGUMENT........................................................................................................14  POINT I: THE COURT CORRECTLY FOUND THAT THE APPLICANT WAS NOT DENIED DUE TO EITHER DESIGN WAIVER.........................................................................................14  POINT II: THE TRIAL COURT CORRECTLY DETERMINED THAT THE BOARD ARBITRARILY, CAPRICIOUSLY, AND UNJUSTIFIABLY DENIED PLAINTIFF’S APPLICATION........26  POINT III: THE PUBLIC NOTICE WAS SUFFICIENT AS THE PLAINTIFF DID NOT SEEK APPROVAL FOR BASEMENT APARTMENTS.........................................................29  CONCLUSION..................................................................................................................34
[brief] This Court should confirm that a CDW does not authorize entry onto private property, driveway, home or enclosed area, without a warrant specifically particularizing the basis for an entry upon a home or its curtilage as well as the parameters of a CDW.  Irrespective of Point II above, this Court must confirm that a CDW does not authorize, implicitly or explicitly, entry onto private property, driveway, home or any encompassed area without a warrant specifically particularizing the basis for entry and the CDW.  A CDW for installation of a GPS device does not grant carte blanche to enter private property to effectuate application of a GPS device.  As to entry onto private property, it would be expected that specific circumstances would need to be provided to the warrant authorizing court as to the necessity for entry onto private property as opposed to the State’s unfettered ability to attach a GPS in public areas.  More pertinently, the parameters for a CDW for data production via a GPS device must be, in light of the 4th Amendment’s particularity requirement, as well as our State’s similar requirement, detailed as to whether a 2 week intrusion of privacy on a GPS is excessive [as seems to be recited by at least 5 Justices in United States v. Jones, 565 U.S. 400 (2012)].  CONCLUSION
[brief] Through the Resolution, the [...] asserted, without benefit of any support in the record, and contrary to all the evidence produced, that the Applicant failed to provide proofs supporting its request for the variance relief, sought pursuant to N.J.S.A. 40:55D-70(d)(1), to allow development upon a 48.29 acre lot, whereas a 75 acre minimum tract size is required by Ordinance and the VC-2 Overlay Zone.  M68.