During this blog’s early August break, the Appellate Division issued three published opinions. Here are summaries:

T.B. v. I.W., ___ N.J. Super. ___ (App. Div. 2024). This was an appeal from the issuance of a final restraining order (“FRO”) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (“PDVA”). In an opinion by Judge Berdote Byrne, the Appellate Division agreed with appellant that the Family Part had failed to make adequate findings of fact and conclusions of law to support the issuance of the FRO. The panel also agreed that it was error for the Family Part to draw an adverse inference “solely from defendant’s invocation of his Fifth Amendment right to not testify in an FRO hearing. Despite the remedial nature of the PDVA, and the statute’s language insulating a defendant’s testimony from use in a criminal proceeding relating to the same act, a defendant’s election to not testify cannot give rise to an adverse inference in an FRO hearing.” Judge Berdote Byrne noted the issue had not been presented in a published opinion in New Jersey, and she provided a detailed discussion of the Fifth Amendment right in general and its interplay with FRO proceedings in particular. That issue was likely the basis for the publication of this opinion.

Lakhani v. Patel, ___ N.J. Super. ___ (App. Div. 2024). This opinion by Chief Judge Sumners addressed the issue of “whether a court-appointed Special Adjudicator’s fees to resolve discovery disputes can be charged to an individual or entity who were not parties to the underlying litigation but petitioned the court to quash a subpoena.” That question, he observed, was one of first impression. The Law Division imposed those fees on non-party appellants who moved to quash the subpoena. Those parties appealed, and the Appellate Division reversed. After first noting that the trial court had not placed findings of fact and conclusions of law on the record as required by Rule 1:7-4, but concluding that the Appellate Division could appropriately decide the appeal despite that, the panel looked to the plain language of Rule 4:41-2, which states only that an adjudicator’s compensation shall be “charged upon such of the parties or paid out of any fund or property as the court directs.” There was no fund to be charged, and appellants were not parties. And Chief Judge Sumners rejected the argument that Rule 1:1-2(a), which permits relaxation of certain Court Rules, should be applied here. “To do so would grossly misapply the procedural fairness goal of Rule 1:1-2(a) and substantively alter Rule 4:41-2 for which there is no authority.” Accordingly, the panel held, the Law Division had abused its discretion in assessing the Special Adjudicator’s fees against appellants.

In re Adoption of N.J.A.C. 5:105-1.6(a)(1), ___ N.J. Super. ___ (App. Div. 2024). Challenges to administrative regulations are frequent, but successful challenges are rare. This case was an exception. Judge Vernoia authored a lengthy and detailed opinion that is well worth reading in full. A short version of it is found in the first paragraph of his ruling. “In this appeal Libertarians for Transparent Government (LFTG) challenge the validity of N.J.A.C. 5:105-1.6(a)(1), a regulation providing that all ‘submissions’ made to the Government Records Council (GRC) during its adjudication of a denial-of-access complaint under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, ‘shall not be considered government records subject to public access pursuant to’ OPRA ‘during the pendency of [the] adjudication.’ [Footnote omitted]. LFTG contends N.J.A.C. 5:105-1.6(a)(1) is arbitrary, capricious, and unreasonable because it is inconsistent with OPRA and contravenes the statute’s legislative purposes. We agree and find N.J.A.C. 5:105-1.6(a)(1) invalid.”