Author: Thomas J. Cafferty
United States Supreme Court Justice Neil Gorsuch, dissenting from the denial of certiorari in Berisha v. Lawson, et al., joined fellow Justice Clarence Thomas in questioning the appropriateness of the “actual malice” standard, which, under New York Times Co. v. Sullivan and its progeny, requires public official and public figure plaintiffs to demonstrate by clear and convincing evidence that, in publishing material about the plaintiff, the defendant acted with knowledge of falsity or a reckless disregard for the truth.
In an effort to address the severe disruption to corporate and local property taxpayers resulting from the State of Emergency declared in response to the COVID-19 pandemic, the Supreme Court of New Jersey entered an order on March 19, 2020 extending deadlines for various local tax appeals. Generally, local property tax appeals are required to be filed by April 1, or within 45 days of the bulk mailing of Assessment notices, or by May 1 where a municipal-wide revaluation or municipal-wide reassessment has been implemented. Property located in Monmouth County, by virtue of its participation in the Real Property Demonstration Program, is subject to a now-passed January 15 deadline. Under the March 19 order, the filing deadlines for local property tax appeals and counter-claims in the New Jersey Tax Court and New Jersey County Boards of Taxation are extended to the later of May 1, 2020 or 30 days after the Governor declares an end to the State of Emergency. The March 19 order also extends several deadlines related to state tax appeals to the later of May 1, 2020 or 30 days after the Governor declares an end to the State of Emergency. Generally, such appeals are to be filed with the Tax Court within 90 days of an action by the Director of...
The New Jersey Supreme Court’s recent opinion in Petro-Lubricant Testing Laboratories, Inc. v. Adelman left unanswered significant questions as to what constitutes a republication when corrections or modifications are made to an online publication, thereby retriggering the statute of limitations for defamation. In a 4-3 opinion, the majority established a test for whether a correction or modification is a republication that increases the likelihood that trial courts will deny summary judgment motions, leaving the question of republication for the jury. The practical effect of this will likely be far fewer corrections to online publications for fear of reviving or extending the applicable statute of limitations. Specifically, the majority held that an online article is republished if an author makes a material and substantive change to the original defamatory article. According to the majority: A material change is one that relates to the defamatory content of the article at issue. It is not a technical website modification or the posting on the website of another article with no connection to the original defamatory article. A substantive change is one that alters the meaning of the original defamatory article or is essentially a new defamatory statement incorporated into the original article. It is not the mere reconfiguring of sentences or substitution of words that are not susceptible of...
The Law Division in a to-be-published opinion in Drinker Biddle & Reath LLP v. New Jersey Department of Law & Public Safety, Division of Law, recently held that public policy does not favor access to unfiled discovery in public sector litigation under New Jersey’s common-law right of access. Plaintiff filed a complaint in lieu of prerogative writs for failure to comply with the Open Public Records Act, (“OPRA”), and the common-law right of access in refusing to provide plaintiff with copies of unfiled transcripts of expert depositions in environmental litigation brought by the State of New Jersey, Department of Environmental Protection (“NJDEP”). Because the transcripts in their entirety had not been filed with the Court, NJDEP denied plaintiff’s OPRA request on privilege and confidentiality grounds.
New Jersey courts decided a trio of cases last month that shine a spotlight on the State’s Open Public Records Act (“OPRA”), which governs the disclosure of government records when requested by members of the public. These opinions — the holdings of which are summarized below — serve as important guideposts for practitioners litigating OPRA-related matters.
On July 25, 2012, the New Jersey Supreme Court decided McGovern v. Rutgers. The Court’s ruling — which found violations of Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. (“OPMA”), but no statutory remedy — highlights the need for an amendment to OPMA providing effective remedies for violations of OPMA.
On May 21, 2012, the New Jersey Supreme Court issued a corrected Opinion in W.J.A. v. D.A.. In that Opinion, the Court held that presumed damages continue to play a role in New Jersey’s defamation jurisprudence in private plaintiff cases that do not involve matters of public concern. Where a plaintiff does not proffer any evidence of actual damage to reputation, the doctrine of presumed damages permits him/her to survive a motion for summary judgment and to obtain nominal damages if successful at trial. The Court emphasized, however, that in order to receive compensatory damages, a plaintiff must prove actual harm to his/her reputation.
In Durando v. The Nutley Sun, the New Jersey Supreme Court confirmed that — absent clear and convincing evidence of actual malice — an admittedly incorrect “teaser headline” that refers readers to an accurate headline and story cannot be the basis of a defamation claim where a public figure or matter of public concern is at issue. By strictly adhering to this actual malice standard, the Court has reaffirmed the commitment of this State to protect speech regarding public figures and public matters, even erroneous speech, from the expense and chill of protracted litigation, by disposition of lawsuits at the summary judgment stage.
The Bench Bar Media Committee of the New Jersey Supreme Court (“Committee”) has adopted, and forwarded to the Supreme Court, Guidelines for the Usage of Electronic Devices in New Jersey state courts. The proposed Guidelines comprehensively address the use of Electronic Devices in the courtroom, the common areas of a courthouse and the grounds of a courthouse. If adopted by the Supreme Court, the proposal will represent a major revision to the existing Guidelines.
Last month, in Drinker Biddle & Reath, L.L.P. v. New Jersey Department of Law and Public Safety, Division of Law, the Appellate Division held that un-filed discovery in an environmental lawsuit brought by the New Jersey Department of Environmental Protection was not subject to access pursuant to New Jersey’s Open Public Records Act (“OPRA”). But the Court also found that access to such information could be compelled under the common law, depending on whether the plaintiff’s need for disclosure outweighed the State’s need for confidentiality, and remanded the matter to the trial court to conduct the appropriate balancing test.