The Supreme Court of New Jersey decided several high-profile cases in 2023, tackling issues ranging from cannabis to public records to discrimination. The past year also saw the state’s highest court return to full strength, with the additions of Justices Douglas M. Fasciale, Rachel Wainer Apter, and Michael Noriega.
The New Jersey Supreme Court’s biggest decision of 2023 was arguably Facebook, Inc. v. State. In a landmark decision, the Court held that Facebook could not be compelled to provide the prospective communications of two users based only on probable cause.
“To conduct a search, the State ordinarily must demonstrate there is probable cause to believe evidence of a crime will be found at a particular place and must obtain a warrant,” Chief Justice Stuart Rabner wrote on behalf of the unanimous court.
“Gaining access to private communications in real time, however, is considerably more intrusive than a typical search. In those instances, the State must satisfy certain heightened requirements and apply for a wiretap order, which requires an enhanced showing — one beyond probable cause,” Rabner wrote.
In reaching its decision, the New Jersey Supreme Court acknowledged that the Internet and other technological advancements require a thorough review of older laws to ensure their spirit is maintained:
“A strict contemporaneity rule adopted before the advent of the Internet would not be a good fit to address the situations technology presents today. Nor would it be consistent with the underlying purpose of the wiretap statutes — to protect individual privacy,” Rabner wrote.
Below are some of the New Jersey Supreme Court’s other notable decisions of 2023:
Religious Tenets Exception: In Crisitello v. St. Theresa School, the Court held that a Catholic school could terminate a teacher for having premarital sex. According to the state’s highest court, the termination was legal under the New Jersey Law Against Discrimination’s (LAD) “religious tenets” exception, which states “it shall not be an unlawful employment practice” for a religious entity to follow the tenets of its faith “in establishing and utilizing criteria for employment.”
Candidates Liability for Bribery: In State v. Jason M. O’Donnell, the Court held that the state’s bribery statute applies to any “person” who accepts an improper benefit, including incumbents, candidates who win, and candidates who lose. “Had the Legislature intended to exclude candidates from the statute’s reach, it would have said so,” the Court wrote.
First-time In-court Identifications: In State v. Quintin D. Watson, the Court held that first-time in-court identifications may only be conducted when there is good reason for them. In addition, before attempting to conduct a first-time in-court identification, the State must give fair notice to the defense. The New Jersey Supreme Court also placed limitations on narration evidence, holding that that the rules of evidence do not allow for continuous, running commentary on video evidence by someone who has merely studied a recording.
Sexual Abuse Under NJLAD: In C.V. v. Waterford Township Board of Education, the Court reinstated a sex discrimination claim brought under the New Jersey Law Against Discrimination (NJLAD) by the parents of a sexual assault victim. In reaching its decision, the court confirmed that sexual abuse automatically satisfies the requirement that harassment occur “because of” sex under the state’s anti-discrimination law.
Police Searches Based on Smell of Marijuana: In State v. Cornelius C. Cohen, the Court clarified the bounds of a legal search under the automobile exception based on the suspected presence of marijuana, finding that officers exceeded the scope of the exception in searching the trunk and engine compartment of a vehicle. “Expanding the search to the engine compartment and trunk went beyond the scope of the automobile exception,” the New Jersey Supreme Court ruled. “Although the trooper smelled marijuana in the passenger compartment of the car, his initial search yielded no results and provided no justification ‘to extend the zone of the…search further than the persons of the occupants or the interior of the car.’”
Drug Recognition Experts: In State v. Olenowski (Olenowski I), 253 N.J. 133 (2023), the New Jersey Supreme Court adopted for criminal cases a new multi-factor test for the reliability of expert testimony, which is based on the standard established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court took up the case a second time, holding that Drug Recognition Expert (DRE) testimony is reliable and admissible under that standard.
Access to Police Discipline Records: In State v. Andre Higgs, the Court held that to ensure that defendants in criminal trials are provided with the discovery necessary to adequately prepare for trial, they must be allowed, under certain circumstances, to access documents in law enforcement’s internal affairs files. The court also adopted a procedure to be used going forward.
Attorney’s Fees in Public Records Disputes: In Gannett Satellite Information Network, LLC v. Township of Neptune, the Court held that Gannett Satellite Information Network, LLC (Gannett) was not owed attorney’s fees in its records dispute with the Township of Neptune. The court unanimously declined to adopt an exception to the American Rule, under which each party pays its own legal fees, for common law right of access claims to public records.
The New Jersey Supreme Court recently heard oral arguments in a number of closely watched cases involving issues, including when COVID-19 losses must be covered by insurance, whether email lists are subject to disclosure under OPRA, and the legality of non-disparagement provisions. We encourage you to check back for updates.