20-2-3996 Nancy G. Slutsky v. Kenneth J. Slutsky, N.J. Super. App. Div. (Lihotz, P.J.A.D.) (53 pp.) Among the issues discussed in these appeals from a final judgment of divorce, are two of note. First, the court reversed the trial judge’s conclusion fixing the value of defendant’s interest in his law firm as including goodwill, because the trial judge’s limited findings were unsupported and failed to properly analyze the methodology set forth in Dugan v. Dugan, 92 N.J. 423 (1983), and Stern v. Stern, 66 N.J. 340 (1975). The court highlighted the starting point of the analysis must be review of a shareholder’s agreement fixing the interest of an equity partner to discern whether it properly captured goodwill. Second, the court reversed a fee award to the payee because it failed to account for the ordered financial obligations imposed upon the payor by the final judgment, and because following fee arbitration, the stipulated fees now due to counsel were less than the sum the payee was ordered to contribute. (Approved for Publication)

20-2-4006 State in the Interest of D.M., N.J. Super. App. Div. (Koblitz, J.A.D.) (19 pp.) In this juvenile delinquency case where a 14-year old was charged with aggravated sexual assault of an 11-year-old child, neither penetration nor coercion was found by the trial judge, who nonetheless convicted the juvenile of endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The Legislature expressly stated its intent not to criminalize sexual contact between children less than four years apart in age absent either penetration or coercion. To the extent that the child endangerment statute might nonetheless be thought to include behavior of the nature found by the judge in this case, ambiguity in the construction of the statute must be resolved in favor of the juvenile both because the specific statute trumps the general statute and because ambiguous criminal statutes must be interpreted favorably to the accused. (Approved for Publication)

20-1-3995 Jaime Taormina Bisbing v. Glenn R. Bisbing III, N.J. Sup. Ct (Patterson, J.) (41 pp.) The Court recognizes a “special justification” to abandon the standard it established in Baures v. Lewis, 167 N.J. 91 (2001), for determining the outcome of contested relocation determinations pursuant to N.J.S.A. 9:2-2. In place of the Baures standard, courts should conduct a bes-interests analysis to determine “cause” under N.J.S.A. 9:2-2 in all contested relocation disputes in which the parents share legal custody.

21-3-3975 City of Orange Township Board of Education v. City of Orange Township; City Council of The City of Orange Township; Essex County Board Of Elections, N.J. Super. Ch. Div.. (Thomas, J.S.C.) (31 pp.) Plaintiff filed a complaint and order to show cause to restrain the county board of elections from certifying the results of the City of Orange’s special school board election and to restrain the city council from taking action in furtherance of a referendum that converted the school district from a type I district, in which school board members are appointed by the mayor, to a type II district, in which the members are elected by city residents. Plaintiff argued that the public question and interpretive statement in the referendum were misleading and contrary to law, contending that the public was not informed that the school district would change from a type I to a type II, that future bonding for school district capital projects would have to be approved by public referendum and would be based on the credit of the district rather than the city, and that the size of the board would increase and that the first election of board members would take place in March 2017. In response, the city argued that plaintiff’s complaint was time-barred, or alternatively, that plaintiff failed to meet the standard for injunctive relief because there was nothing improper about the public question and interpretive statement. The court granted plaintiff’s request for relief, first ruling that, given confusion about the referendum’s consequences, the interests of justice warranted relaxation of the time bar. The court further ruled that plaintiff met the standard for injunctive relief, showing a likelihood of substantial harm due to a loss of funding, and a reasonable likelihood of success on the merits given the interpretive statement’s failure to inform voters on the consequences of the referendum. Finally, the court ruled the balance of hardships weighed in favor of plaintiff, since injunctive relief would serve the voters who had to participate in a less-than-transparent referendum. (Approved for Publication)

52-1-3951 In the Matter of the New Jersey State Fireman’s Association Obligation to Provide Relief Applications Under the Open Public Records Act, N.J. Sup. Ct (Solomon, J.) (31 pp.) OPRA does not, in all instances, prohibit a public entity from instituting proceedings under the Declaratory Judgment Act to determine whether records are subject to disclosure. After carefully balancing the public’s interest in accessing information against the private interest in confidentiality, the Court finds that the relief checks to Doe are exempt from disclosure under OPRA and the common-law right of access.

52-2-3952 North Jersey Media Group Inc., D/B/A The Record v. State of New Jersey office of The Governor, et al., N.J. Super. App. Div. (Vernoia, J.A.D.) (36 pp.) In this OPRA action, plaintiff appealed the trial court’s denial of an order in aid of litigant’s rights and the denial of the imposition of a civil penalty, finding N.J.S.A. 47:1A-11 authorizes only the Government Records Council to impose a penalty. The court reversed, holding that N.J.S.A. 47:1A-11 authorizes the Superior Court, and not just the Government Records Council, to impose a civil penalty where it is determined there is a knowing and willful violation of OPRA and access to government records has been unreasonably denied under the circumstance. The court also reversed the denial of plaintiff’s request for relief under Rule 1:10-3 because the affidavit describing the search for records in response to the second set of requests violated the case management order, was not based on personal knowledge and could not properly support the court’s determination that defendant’s search was reasonable. (Approved for Publication)

52-1-3977 Robert A. Verry v. Franklin Fire District No. 1, N.J. Sup. Ct. (LaVecchia, J.) (35 pp.) The fire district, to which the OPRA request was made, is obliged to release such documents in its possession or to obtain them from a member volunteer fire company under its supervision and release them. OPRA demands such transparency and accountability of public agencies, and the fire district is undoubtedly a public agency subject to OPRA. The Court therefore affirms the judgment in that respect. However, to the extent the holding under review also concluded that the member volunteer fire company is a “public agency” subject directly and independently to OPRA requirements, the Court disagrees and modifies the judgment.

35-5-3979 975 Holdings, LLC v. Egg Harbor City, Tax Ct. (Cimino, J.T.C.) (11 pp.) The taxpayer purchased the property in a bankruptcy asset sale pursuant to 11 U.S.C. § 363(f). The prior owner acting as a debtor-in-possession failed to respond to a Chapter 91 request. N.J.S.A. 54:4-34. Taxpayer argues that both the fact that the prior owner was in a bankruptcy proceeding and that the property was purchased through a section 363(f) sale somehow excuses noncompliance with Chapter 91. Chapter 91 allows the tax assessor to request information from certain taxpayers. Failure to respond to a Chapter 91 request can result in the municipality raising such issue as a defense. The taxpayer’s predecessor was a debtor-in-possession and the obligation to file a response to the Chapter 91 request did not fall upon a bankruptcy case trustee. Thus, the taxpayer is saddled with the failure of the prior owner as a debtor-in-possession to file a Chapter 91 response. Additionally, a debtor-in-possession can exercise the power of a bankruptcy trustee to sell property “free and clear” of “any interest” that any entity has in such property. However, a Chapter 91 defense is not an interest, but rather an affirmative defense. For failure to comply with a Chapter 91 request, the assessment appeal is limited to a reasonableness hearing. (Approved for Publication)

14-2-4014 In the Interest of D.M., A Juvenile, N.J. Super. App. Div. (Koblitz, J.A.D.) (19 pp.) The trial judge found that the state did not prove the sexual behavior between a 14-year-old and his 11-year-old alleged victim involved sexual penetration. Coercion was not alleged or found. Based on those findings, using the appropriate principles of statutory construction, an adjudication of delinquency against a child for endangering the welfare of another child less than four years younger based on sexual contact is not sustainable and the lower court ruling was reversed. To the extent that the child endangerment statute might nonetheless be thought to include behavior of the nature found by the judge in this case, ambiguity in the construction of the statute must be resolved in favor of the juvenile both because the specific statute trumps the general statute and because ambiguous criminal statutes must be interpreted favorably to the accused. (Approved for Publication)

25-8-3958 Equal Emp’t Opportunity Comm’n v. City of Long Branch, 3rd Cir. (Chagares, J.) (16 pp.) Plaintiff appealed from the district court’s order affirming a magistrate judge’s order enforcing, in part, plaintiff’s subpoena issued to defendant to obtain documents pertaining to a charge of discrimination. Plaintiff’s subpoena arose from Lt. Lyndon Johnson of the Long Branch Police Department filing a charge of discrimination. Lt. Johnson, an African-American, alleged that defendant discriminated against him because of his race by subjecting him to different and harsher disciplinary measures than similarly situated white colleagues. Plaintiff requested all disciplinary records for Lt. Johnson and six Caucasian comparator officers. Defendant stated that it would not produce the materials unless plaintiff executed a confidentiality agreement not to reveal the materials to anyone, including Lt. Johnson. Plaintiff refused to execute such an agreement, and served a subpoena on defendant, which reiterated its position that it would not produce the documents without a confidentiality agreement. However, defendant never petitioned to modify or revoke the subpoena with plaintiff’s director or general counsel. Plaintiff then filed the present motion to enforce, and a magistrate judge enforced in part, ordering plaintiff to avoid disclosure of comparators’ records to Lt. Johnson. Plaintiff appealed to the district court, seeking to reverse the restriction on disclosure, but the district court affirmed, ruling that disclosure of other employees’ records to Lt. Johnson would be improper. On appeal, the court reversed based on the district court’s erroneous treatment of plaintiff’s motion to enforce its subpoena as a nondispositive matter rather than a dispositive matter, since the proceeding would be over no matter how the court ruled. The court found that the district court applied the clearly erroneous standard to the disclosure issue objected to by plaintiff, and did not review the unobjected-to exhaustion issue. Accordingly, the court vacated and remanded for the district court to properly review plaintiff’s motion and the magistrate judge’s ruling. (Precedential) [Filed August 2, 2017]