Last week saw two published Appellate Division decisions. One was authored by Judge Mawla and the other by Judge D’Almeida.
Town of Dover v, Gonzalez, ___ N.J. Super. ___ (App. Div. 2026). This opinion by Judge D’Almeida, in a case that came before the Appellate Division on leave to appeal, centered on the Uniform Public Expression Protection Act, N.J.S.A. 2A:53A-49 et seq. (“UPEPA”). Gonzalez, then a sergeant in the Town’s police force, had sued the Township asserting violations of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq., and the Law Against Discrimination, N.J.S.A. 10:5-1 et seq. The parties settled that case with an agreement under which, among other things, the Town would pay Gonzalez $175,000 and the parties would not “make any negative comments or disparaging remarks” about the other, including (as to Gonzalez) about the Township’s “officers, directors, and employees.”
Thereafter, as Judge D’Almeida summarized, over a period of a number of years, Gonzalez “disseminated comments, news articles, videos, and other information on what he characterized as matters of public interest in Dover, including allegations of excessive use of force by DPD officers, misuse of public funds, and misconduct by public officials.” Those statements attacked the Mayor and the Municipal Clerk, among others. More than nine years after the signing of the settlement agreement, the Town filed this suit for breach of the non-disparagement provision, invalidation of the settlement agreement, and an order barring continued negative or disparaging comments by Gonzalez and compelling him to return the $175,000.
Gonzalez filed a counterclaim under the UPEPA. He claimed that “the social media posts cited in the complaint were political speech protected by the First Amendment, and the complaint was intended, not to enforce the nearly decade-old settlement agreement, but to suppress defendant's speech and intimidate him from participating in public debate on matters of public concern in Dover.”
The Law Division granted the Town preliminary injunctive relief and ultimately dismissed Gonzalez’s UPEPA counterclaim. As Judge D’Almeida described, the Law Division held that Gonzalez “could not state a claim under UPEPA because he agreed to the non-disparagement provision in exchange for material consideration, thereby waiving his right to make the social media posts at issue.” Gonzalez obtained leave to appeal, and the Appellate Division, applying de novo review, vacated the dismissal of the counterclaim and remanded for further proceedings.
The UPEPA was intended to “protect residents against frivolous, ill-intentioned lawsuits intended to curb speech on matters of public concern, commonly known as strategic lawsuits against public participation (SLAPP), and insulate them from the financial hardships these cases can produce.” Judge D’Almeida “disagree[d] with the motion court’s interpretation of UPEPA to contain a categorical exclusion where the party alleging an infringement on free speech has executed a non-disparagement provision encompassing that speech.” The plain language of the UPEPA protected the “exercise of the right of freedom of speech . . . guaranteed by the United States Constitution or the New Jersey Constitution, on a matter of public concern.” There was no “express exclusion from its protection for those who are bound by a non-disparagement provision in a settlement agreement.” The panel sent the case back to the Law Division with detailed instructions about various issues that needed to be addressed on remand before dismissal of the counterclaim could be considered.
State v. Springfield Urban Renewal Center Corp., ___ N.J. Super. ___ (App. Div. 2026). Judge Mawla wrote this opinion, which began as follows: “Plaintiff the Township of Springfield appeals from a February 12, 2025 order entered by the Law Division, reducing a fine issued by a municipal court to defendant Springfield Urban Renewal Center Corporation following its conviction for violating a township ordinance pursuant to N.J.S.A. 40:49-5. Defendant does not contest its guilt. Rather, the issue in this appeal is whether the Township could impose a fine of $250 per day for the ongoing violation of the ordinance, which totaled well over the $2,000 limit set forth in N.J.S.A. 40:49-5. We hold N.J.S.A. 40:49-5 limits the amount of a singular fine but does not prevent a defendant from incurring per day fines that cumulatively exceed $2,000. For these reasons, we reverse and remand for resentencing consistent with this opinion.”
Judge Mawla found Township of Pennsauken v. Schad, 160 N.J. 156 (1999), which upheld per day municipal fines for repeated violations of a sign ordinance that totaled more than $65,800, controlling. He distinguished defendant’s primary authority, Perrine Terrace Land Co. v. Brennan, 101 N.J.L. 487 (Sup. Ct. 1925), as having “idiosyncratic procedural deficiencies,” which he discussed at length. Judge Mawla concluded that “[n]ot only does Schad permit the imposition of a daily fine for an uncured ordinance violation, prohibiting a daily fine would gut a municipality's ability to coerce compliance from a violator. Indeed, following the Law Division’s logic here would permit defendant to ignore the violation, knowing its exposure upon conviction would never exceed $2,000.” The panel said that the Legislature did not intend that result under N.J.S.A. 40:49-5.
