The Appellate Division issued four published opinions this week.  Here are summaries:

Bank v. Lee, ___ N.J. Super. ___ (App. Div. 2025).  This appeal arose out of the grant by the Law Division of plaintiff’s motion to dismiss defendant’s counterclaim for failure to state a claim.  Unusually, plaintiff filed that motion after having already answered the counterclaim.  On defendant’s appeal, Judge Marczyk, finding the question of whether the Law Division could validly have entertained the motion to dismiss at that time to be one of first impression, affirmed the ruling below.  Read together, the panel said, Rules 4:6-2(e) and 4:6-3 permit the filing of a motion to dismiss for failure to state a claim up until trial.  On the substantive issues of defamation and trade libel that were the subject of the counterclaim, Judge Marczyk agreed with the Law Division that the statements complained of were “substantially true,” which defeated both claims.

State v. Russell, ___ N.J. Super. ___ (App. Div. 2025).  This was an opinion by Judge Mawla.  Defendant was charged with terroristic threats, stalking, harassment, and retaliation for past official actions of a municipal court judge who had heard a matter in which he assigned defendant a public defender and adjourned the case.  Defendant was convicted on most of those charges.  The Appellate Division affirmed the convictions in part and reversed in part.  The terroristic threat conviction was reversed because the jury was not given a charge consonant with State v. Fair, 256 N.J. 213 (2024), a case that Judge Mawla held was to be given pipeline retroactivity so as to apply to defendant’s post-Fair trial.  A separate terroristic threat conviction for making such a threat during a declared period of national, State, or county emergency also had to be reversed because the required relationship between the threats and the emergency (here, the COVID-19 pandemic) was lacking.  The threats related solely to the victim’s role as municipal court judge and had nothing to do with COVID-19.  The panel upheld the harassment, stalking, and retaliation convictions, rejecting defendant’s argument that they all should have been merged.

Donnerstag v. Koenig, ___ N.J. Super. ___ (App. Div. 2025), and Donnerstag v. Borawski, ___ N.J. Super. ___ (App. Div. 2025).  Chief Judge Sumners wrote the opinions in these two cases.  Each involved administrative complaints by Central Regional Board of Education members against one of their number for that respondent’s posts and re-posts on social media regarding labor union membership, COVID-19 mandates, and New Jersey’s gender identity curriculum.  The School Ethics Commission dismissed all claims against both respondents.  On appeal, however, the Appellate Division upheld the dismissal of many of the claims.  But Chief Judge Sumners remanded two of the claims to the Commission, for new rulings on the merits of one charge and for determinations of the proper penalty as to the other charge.