Neither Rain, Nor Sleet, Nor Snow . . . Will Allow You To Set Aside A Sheriff’s Sale!

by: Peter J. Gallagher (@pjsgallagher)

Although the snow is (hopefully) gone for a few months, the Appellate Division recently handed down a decision that brings us back to one of the many snowstorms we had to endure this winter. In Weiss v. Porchetta, homeowners moved to vacate the sheriff's sale of their home because they claimed that a major snowfall on the day of the sale deterred a bidder from attending. The homeowners claimed that they had been working with the snow-bound bidder on a deal that would have allowed them to stay in their home. Apparently they did not have the same deal with the winning bidder at the sale. The trial court denied the motion and the Appellate Division affirmed.

Continue reading “Neither Rain, Nor Sleet, Nor Snow . . . Will Allow You To Set Aside A Sheriff’s Sale!” →

“Does Your Dog Bite?” What, If Any, Duty Does A Dog Owner Owe To A Trespasser?

by: Peter J. Gallagher (@pjsgallagher)

I loved the Pink Panther movies, and one of the more memorable scenes in the series involved Inspector Clouseau trying to pet an innkeeper's dog (or, more accurately, a dog that he thought belonged to the innkeeper:

Other than the fact that both involve a dog bite, this clip does not have much to do with the recent Appellate Division opinion in Ahrens v. Rogowski, but it is a funny clip and worth sharing.

In Ahrens, the Appellate Division was presented with the less humorous case of a woman who was bitten by a dog when "trespassing" on the dog owner's property. I put "trespassing" in quotes because, when I think of trespassing, I think of someone sneaking onto property late at night with nefarious motives, and that is not what happened in Ahrens. Nonetheless, plaintiff was trespassing in the legal sense when she was bitten by the property owner's dog and the Appellate Division was faced with what duty, if any, the owner owed her as a result.

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New Jersey Supreme Court Refuses To Hear Challenge To Waiver Rule

by: Peter J. Gallagher

The New Jersey Supreme Court has denied a request by a group of challengers to the so-called Waiver Rule (N.J.A.C. 7:1B-1.1, et seq.) — which allows the New Jersey Department of Environmental Protection (”DEP”) to waive certain environmental regulations on a case-by-case basis — to review an Appellate Division decision upholding the rule. On behalf of amicus New Jersey Business and Industry Association, Porzio helped to defend the Waiver Rule before the Appellate Division.

As we previously reported here, the Waiver Rule is not a blanket waiver of all regulations. Instead, a waiver will only be available when one of four criteria are met: (1) a public emergency has been formally declared; (2) conflicting rules between Federal and State agencies or between State agencies are adversely impacting a project or preventing an activity from proceeding; (3) a net environmental benefit would be achieved; and/or (4) undue hardship is being imposed by the rule requirements. N.J.A.C. 7:1B-2.1. Moreover, the Waiver Rule identifies 13 rules and requirements that cannot be waived under any circumstances.

A group of Appellants challenged the Waiver Rule on several grounds, but the Appellate Division rejected the challenge and held that the Waiver Rule was a proper exercise of the DEP's rule-making authority. The New Jersey Supreme Court has now refused to hear the case, which leaves intact the Appellate Division's decision.

New Jersey Supreme Court: Cell Phone Users Have Privacy Interest In Cell Phone Location Information

by: Peter J. Gallagher

The New Jersey Supreme Court ruled today that police cannot access the location information revealed by your cell phone without first acquiring a warrant based on probable cause. In State v. Earls, police were investigating a string of burglaries. A court-ordered trace of a cell phone stolen in one of the burglaries led them to an individual at a bar in Asbury Park who told them that his cousin had sold him the phone. The individual also told police that his cousin was involved in the burglaries and kept the stolen items in a storage locker that was rented by his cousin or his cousin’s girlfriend. The next day, police located the girlfriend, went with her to the locker, and found various stolen items. The next day, police learned that the girlfriend had disappeared, and that defendant had threatened her when he learned that she was cooperating with police. After obtaining an arrest warrant for defendant, police began to search for him. As part of this search, the police contacted T-Mobile to obtain information about the location of a cell phone that they believed defendant had been using. This information eventually led them to a motel where defendant and his girlfriend were staying.

Defendant was arrested and eventually indicted on several charges stemming from the burglaries. He moved to suppress evidence seized at the motel where he was apprehended. The trial court denied the motion, holding that police should have obtained a warrant before tracking defendant’s phone, but that the information was nonetheless admissible under the emergency aid exception to the warrant requirement (the emergency being the threat to defendant’s girlfriend’s safety). Defendant pled guilty but appealed the suppression ruling. The Appellate Division affirmed, but on different grounds, holding that defendant had no reasonable expectation of privacy in his cell phone location information.

The Supreme Court reversed. It began by discussing the advances in cell phone technology that now make it possible for providers to pinpoint the location of a cell phone within a matter of feet, and the fact that details about the location of a cell phone can provide an intimate picture of an individual’s personal life by revealing where people go and with whom they affiliate. Under New Jersey law, individuals do not lose their right to privacy simply because they have to provide personal information like this to third parties to obtain services. Thus, cell phone users reasonably expect that the private information that they (or, perhaps more accurately, their phones) transmit to cell phone providers about their location will remain private:

[C]ell phones are not meant to serve as tracking devices to locate their owners wherever they may be. People buy cell phones to communicate with others, to use the Internet, and for a growing number of other reasons. But no one buys a cell phone to share detailed information about their whereabouts with the police . . . Citizens have a legitimate privacy interest in such information. Although individuals may be generally aware that their phones can be tracked, most people do not realize the extent of modern tracking capabilities and reasonably do not expect law enforcement to convert their phones into precise, possibly continuous tracking tools.

Accordingly, before police can obtain this information from a cell phone provider, they must obtain a warrant based on a showing of probable cause or qualify for an exception to the warrant requirement.

In its decision, the Supreme Court noted that federal courts are split on whether a warrant is required before police can obtain information about an individual’s cell phone location. However, it also noted that the New Jersey Constitution generally provides greater protection against unreasonable searches and seizures that the Fourth Amendment. This decision further emphasizes the differences between New Jersey law and federal law, particularly as it relates to information that is revealed to third parties.

Appellate Division Endorses “Waiver Rule:” DEP Allowed To Waive Regulations In Limited Circumstances

by: Peter J. Gallagher

On March 21, 2013, the Appellate Division rejected a challenge to the so-called Waiver Rule (N.J.A.C. 7:1B-1.1, et seq.), which allows the New Jersey Department of Environmental Protection (”DEP”) to waive certain environmental regulations on a case-by-case basis. On behalf of amicus New Jersey Business and Industry Association, Porzio had argued that the Waiver Rule represents a common sense and measured approach to regulation. In its decision, the Appellate Division appears to have agreed.

The history of the Waiver Rule is not long. On January 20, 2010, Governor Christie issued Executive Order No. 2, which sought to better leverage New Jersey’s “enormously valuable assets” by, among other things, “establishing ‘Common Sense Principles’ for State rules and regulations that will give this State the opportunity to energize and encourage a competitive economy to benefit businesses and ordinary citizens.” One of these “Common Sense Principles” required State agencies to “[a]dopt rules for ‘waivers’ which recognize that rules can be conflicting or unduly burdensome,” and further required these agencies to “adopt regulations that allow for waivers from the strict compliance with agency regulations,” provided that “such waivers shall not be inconsistent with the core missions of the agency.”

Although it did not identify Executive Order No. 2 as the source of its authority to do so, shortly after Governor Christie issued the Order, the DEP began developing rules and regulations designed to address the concerns regarding the impact of excessive regulation on New Jersey’s economy. The result was the Waiver Rule, which was only adopted after the DEP solicited public comments to the proposed Waiver Rule through an open public comment period, during which DEP received comments from more than 500 interested parties, and during a public hearing.

Notwithstanding its name, the Waiver Rule is not a blanket waiver of all regulations. Instead, a waiver will only be available when one of four criteria are met: (1) a public emergency has been formally declared; (2) conflicting rules between Federal and State agencies or between State agencies are adversely impacting a project or preventing an activity from proceeding; (3) a net environmental benefit would be achieved; and/or (4) undue hardship is being imposed by the rule requirements. N.J.A.C. 7:1B-2.1. Moreover, the Waiver Rule identifies 13 rules and requirements that cannot be waived under any circumstances.

A group of Appellants, led by the American Littoral Society Association of New Jersey challenged the Waiver Rule on several grounds. Today, the Appellate Division rejected that challenge. First, the court held that the Waiver Rule was a proper exercise of the DEP's rule-making authority. Specifically, the court held:

"[T]he power to promulgate a regulation implies the incidental authority to suspend or waive its application on certain limited, well-defined circumstances provided such exemption does not circumvent any legislative enactment or purpose, or federal law, is consistent with the agency's statutory core mission and objectives, is accomplished through a properly adopted regulation pursuant to the [Administrative Procedures Act], and establishes appropriate and clear standards for the exercise of agency discretion . . ."

Second, the court held that the Waiver Rule satisfied all of the caveats set forth above — it was limited in its application, was based on well-defined standards, and was not inconsistent with the DEP's core mission.

The court did agree with Appellants that certain "guidance documents" posted by the DEP on its website in connection with the Waiver Rule were improper. The court held that these documents went beyond “merely facilitating administrative implementation of the rules . . . and actually, to some extent, announce[d] new substantive requirements.” As a result, they amounted to the DEP effectively announcing new rules without following the procedures set forth in the Administrative Procedures Act. Accordingly, the “guidance” documents were struck down. But, the court was careful to explain that this did not in any way change its conclusion that the Waiver Rule was proper.