Oct. 25 to 31, 2013

Approved Opinions

New Jersey Law Journal



57-2-1817 Oettinger v. Township of Bedminster, App. Div. (Espinosa, J.A.D.) (32 pp.) Although it was enacted in 1979, there are no published opinions that interpret or apply the Subpoena First Act, N.J.S.A. 2A:84A-21.9 to -21.13 (the act), which has been described as “narrowly circumscrib[ing] the situations in which the State can properly search and seize materials acquired in the course of newsgathering.” In this case, we consider the application of the act to a suspect in a criminal investigation who asserted a claim to its protection based on his status as an “internet publisher” after a search warrant was executed and his suppression motion was denied. We hold that plaintiff waived any claim to protection; that the officers here were not required to conduct an investigation to determine whether plaintiff was protected by the act prior to seeking a warrant; and that, even if plaintiff had timely asserted his claim, he was not entitled to the act’s protection because the materials sought were not obtained in the course of newsgathering activities. The order granting summary judgment is affirmed. [Decided Oct. 31, 2013.]
14-1-1772 State v. Andrews, Sup. Ct. (Cuff, P.J.A.D., temporarily assigned) (36 pp.) Gilmore’s single, bright-line remedy has proved ineffective to fully and fairly respond to the use of constitutionally impermissible peremptory challenges. The court modifies Gilmore and hereby permits trial judges to choose from a broader set of remedies to address the impermissible use of peremptory challenges. [Decided Oct. 28, 2013.]
21-2-1778 Redd v. Bowman, App. Div. (Messano, P.J.A.D.) (30 pp.) After Camden’s city clerk certified an initiative petition pursuant to the Faulkner Act, N.J.S.A. 40:69A-1 to 210, the mayor and city council president sought relief declaring the proposed ordinance invalid and restraining its further submission to the city council or the voters. The proposed initiative sought to maintain the city’s police department and prohibit the city from joining an anticipated, newly formed countywide police department. The Law Division judge granted plaintiffs’ requested relief, concluding that the proposed ordinance created an undue restraint on the future exercise of municipal legislative power and was invalid on its face. We reversed, noting that prior decisions adopting this judicially imposed restriction on the Faulkner Act’s initiative provisions preceded the Legislature’s 1982 amendment. That amendment vested an ordinance passed by initiative with a special characteristic: “No such ordinance shall be amended or repealed within 3 years immediately following the date of its adoption by the voters, except by a vote of the people.” N.J.S.A. 40:69A-196(a). Additionally, in a series of recent opinions regarding the Faulkner Act’s referendum provisions, the court has signaled that, absent express legislative restrictions, the power of the voters to exercise their rights to initiative and referendum cannot be abridged. The judge specifically refrained from considering whether the ordinance was pre-empted by the Municipal Rehabilitation and Economic Recovery Act, N.J.S.A. 52:27BBB-1 to -75 (MRERA), and the Special Municipal Aid Act, N.J.S.A. 52:27D-118.24 to -118.31 (SMAA), statutory regimes that impose state oversight on Camden’s finances. Because the record was inadequate, we remanded that issue for further consideration. [Decided Oct. 29, 2013.]
26-2-1766 Petrozzi v. City of Ocean City, App. Div. (Parrillo, P.J.A.D.) (37 pp.) In this action by Ocean City beachfront property owners for breach of easement agreements obligating the township to maintain a dunes height restriction, we hold that the municipality’s failure to perform its part of the bargain is due to reasonably unforeseen circumstances beyond its control (passage of CAFRA amendments regulating dune maintenance) so as to relieve Ocean City of its contractual duty. Even though Ocean City may not be liable for breach of contract under the doctrine of impracticability of performance, we nevertheless hold that the homeowners are not left without a remedy in the interest of fairness, since plaintiffs surrendered their right to compensation (through eminent domain condemnation) in reliance on Ocean City’s promise to protect their ocean views. We go on to explain the proper measure of restitutionary damages, necessarily limited to the harm that flows naturally only from the increased height and to include the principles recently espoused in Borough of Harvey Cedars v. Karan, 124 N.J. 384 (2013). [Decided Oct. 28, 2013.]
35-5-1782 Village Super Market of Pa. Inc. v. Dir., Div. of Taxation, Tax Ct. (Brennan, J.T.C.) (25 pp.) Plaintiff, a Pennsylvania corporation, is subject to New Jersey Corporation Business Tax pursuant to N.J.S.A. 54:10A-1. Plaintiff has nexus with New Jersey due to its relationships with both its New Jersey limited partnership and its New Jersey parent corporation, respectively, as a result of being in the same line of business, being parties to the same New Jersey-governed cash management agreement, having common agents, managers, officers and directors, and sharing the same principal place of business. Plaintiff does not have a discreet and independent relationship with either its parent corporation or its limited partnership. [Decided Oct. 23, 2013.]

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