Hughes Justice Complex Hughes Justice Complex. Photo by Carmen Natale

For the first time since before newly elected Gov. Chris Christie made the unconventional decision not to renominate a justice up for tenure, the New Jersey Supreme Court in 2017 had a full roster of seven justices for the entire calendar year.

The May 2016 confirmation of Justice Walter Timpone ended a feud between Christie, a Republican, and Senate President Stephen Sweeney, D-Gloucester, who had refused to consent to any of Christie's Republican nominees for the seat previously occupied by John Wallace Jr., a Democrat. Timpone, unlike Christie's prior unsuccessful nominees, is a Democrat.

Since Timpone came on board, the court has been at full strength.

The year began with the implementation of bail reform, a cause that had been championed by Chief Justice Stuart Rabner and others, and approved by the state's voters in a 2014 referendum.

The new system anticipates that most defendants will be released before trial without having to post monetary bail. However, some defendants, especially those charged with violent crimes or who have a history of committing violent offenses, may be ordered held in pretrial detention pending trial.

The court last May issued guidelines stating that gun crimes should weigh toward automatic detention under the new system, and ruled in October that defendants do not have an automatic right to confront witnesses at bail hearings.

The court tackled various other difficult legal questions, taking opportunities to revisit old precedents on issues such as child relocation and appellate review standards, and issued significant rulings often:

  • On the affordable housing front, in January, the court said New Jersey towns are responsible for meeting the affordable housing needs that built up during the 16 years in which the state failed to issue regulations detailing how many units should be built. In a unanimous ruling, the court ruled that towns' fair-share housing obligations did not disappear simply because the now-defunct state Council on Affordable Housing failed to issue regulations. The ruling meant that municipalities could be expected to create up to 200,000 units of affordable housing throughout the state.
  • In February, the court ruled that Givaudan, the world's largest manufacturer of flavors and fragrances, could demand up to $500 million in insurance coverage for environmental damage it caused at its operations in Clifton, even though one of its units transferred its coverage to another unit. Justice Jaynee LaVecchia, writing for the court in Givaudan v. Aetna, said New Jersey would adhere to the doctrine that an anti-assignment clause in an insurance policy may not bar the assignment of post-loss claim.
  • In March, the court ruled that a party's failure to advance arbitration fees in a contract dispute automatically waives that party's right to enforce an arbitration clause. In a unanimous ruling, and its first on the question, the court said the failure to abide by such contractual language amounts to a “material breach” of the contract, and therefore invalidates the arbitration clause. “A failure to advance required fees that results in the dismissal of an arbitration claim deprives a party of the benefit of the agreement,” Justice Lee Solomon wrote for the court in Roach v. BM Motoring. “Therefore, the failure to advance fees 'goes to the essence' of the [dispute resolution agreement] and amounts to a material breach.”
  • In April, the court ruled that an attorney may void a real estate contract on behalf of client by fax or email, updating a 1983 ruling that said contracts had to be voided by certified mail, telegram or personal delivery. What matters most, wrote Solomon for the unanimous court in Conley v. Guerrero, is that the affected party receive actual notice, and not the method of delivery. “It appears that fax and email have become the predominant, customary methods by which professionals in the industry communicate,” Solomon said.
  • In May, the court ruled that a New York health care lawyer, Robert Borsody, and a California chiropractor, Daniel Dahan, violated the state's Insurance Fraud Prevention Act when they helped a local chiropractor set up a multidisciplinary practice. In a unanimous ruling, the court said the arrangement violated the sacrosanct rule that a medical practice must be run by a medical doctor and not someone with a lesser degree of expertise. “Health care services are highly regulated, and professionals … are on notice of the legal requirements applicable to the practice and operations,” wrote LaVecchia for the court in Allstate v. Northfield Medical Center. “Defendants extensively promoted a professional practice structure that a fact finder could reasonably conclude was little more than a sham intended to evade well-established prohibitions and restrictions giving ownership and control of a medical practice by a non-doctor,” LaVecchia said. The court said Borsody and Dahan could be held liable for nearly $4 million in damages for violating the act.
  • Also in May, the court upheld the right of the state Parole Board to require paroled sex offenders to undergo periodic polygraph tests to determine if they are violating the terms of their release from prison. In a unanimous ruling, the court said the use of lie-detector tests, while still too unreliable to be used as evidence in court, can be considered “therapeutic” in nature and can be useful in assessing parolees' internet searches and other personal habits. Justice Faustino Fernandez-Vina said the Parole Board must tell paroled sex offenders that the results of lie-detector tests cannot be used against them to prosecute criminal charges, although the court stopped short of requiring that those offenders be allowed to have attorneys with them while they are undergoing the polygraph exams.
  • Again in May, in a 6-1 ruling, the majority declined to mandate the automatic disbarment of lawyers who commit sex offenses involving children, and said matters must be resolved on a case-by-case basis—with particular emphasis on whether the attorney had actual physical contact with the child victim. “We have refrained from establishing a bright-line rule requiring disbarment in all cases involving sexual offenses against children,” Timpone wrote for the majority. “The imposition of discipline in cases involving sexual misconduct with a minor requires a fact-sensitive inquiry.”
  • The court in June, in a rare self-reversal, overturned its five-year-old ruling that permitted appeals court judges to use their own judgment in reviewing decisions made by trial judges regarding the admissibility of evidence in criminal trials. The court issued a unanimous decision, State v. S.S., overturning its 2012 decision in State v. Diaz-Bridges, which had been decided by a bare 3-2 margin. In Diaz-Bridges, the majority had ruled that an appeals court could overturn a trial judge's evidentiary ruling if it was made privy to the same evidence.
  • In December, the court ruled judiciary administrators must begin notifying parties litigating professional malpractice claims of their statutory obligations to file affidavits of merit and to schedule hearings to determine whether those affidavits are satisfactory. In a unanimous ruling in A.T. v. Cohen, the court said a medical malpractice case should not have been dismissed when an out-of-state attorney, who was admitted to practice in New Jersey but apparently unaware of New Jersey's filing deadlines, failed to file a timely affidavit of merit. Going forward, wrote LaVecchia for the court, the judiciary will be responsible for notifying parties in malpractice actions of their deadline obligations.

Also in 2017, the court took a number of significant cases that promise another busy year in 2018. Most recently, the court agreed to hear appeals in the mass tort alleging Hoffmann-La Roche's acne drug Accutane led to users' development of Crohn's disease. In orders granting petitions for certification, the court agreed to determine whether the plaintiffs can overcome the presumption of adequacy afforded by the Products Liability Act for a drug approved by the federal Food and Drug Administration, and whether a trial judge erred in barring plaintiffs' expert testimony.