Religious Entities Flex Their Muscles Through the Roberts Court, Playing Both Sides of the Discrimination Coin

MARCI A. HAMILTON

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, describe how legal entities wielded their religious identity as both a shield and a sword last term before the U.S. Supreme Court. Hamilton points out that religious entities won key cases that allow them to receive from government funding while enjoying exemptions from neutral generally applicable non-discrimination laws.

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Lembo v. Marchese

Docket: a-92-18

Opinion Date: June 17, 2020

Judge: Barry T. Albin

Areas of Law: Banking, Business Law, Civil Procedure

Dr. Dominick Lembo employed Arlene Marchese in his dental practice as his office manager, and Karen Wright, a dental hygienist. Sometime before December 2011, Marchese and Wright unlawfully took possession of numerous checks totaling several hundred thousand dollars, forged Lembo’s indorsement on the checks, and deposited the proceeds from the forged checks into their personal accounts at TD Bank. In February 2015, Lembo filed a complaint against TD Bank, alleging that “TD Bank knew or should have known that Marchese and/or Wright were not permitted to negotiate checks made payable to [Lembo].” The complaint also alleged that by permitting them to negotiate checks with forged indorsements, TD Bank “aided and abetted Marchese and Wright in their fraudulent scheme and conduct.” The complaint did not assert that Lembo had a banking relationship with TD Bank. And Lembo did not file an action for conversion under the Uniform Commercial Code (UCC) within the three-year limitations period. Had Lembo done so, TD Bank would have been strictly liable for depositing or cashing those checks, subject to the defenses in N.J.S.A. 12A:3-405 or N.J.S.A. 12A:3-406. The trial court granted the Bank's motion to dismiss, finding that the UCC governed Lembo's remedies against the Bank, and “common law negligence is not such a remedy” in the absence of a “special relationship” between Lembo and the bank. The court also rejected Lembo’s argument that the Uniform Fiduciaries Law (UFL) provided an affirmative cause of action against the bank. The Appellate Division reversed, reading into the complaint the basis for an affirmative UFL claim, and remanded to allow Lembo to amend the complaint to assert such a claim. The New Jersey Supreme Court concluded the Appellate Division misconstrued the purpose of the UFL, finding the Legislature enacted the UFL not to create an affirmative cause of action against a bank but to provide a defense when the bank is sued for failing to take notice of and action on the breach of a fiduciary’s obligation. "The UFL confers a limited immunity on a bank, unless the bank acts in bad faith or has actual knowledge of a fiduciary breach." The Supreme Court found no affirmative cause of action arose under the statute; whether a UFL claim was adequately pled was therefore moot. Recognizing the predominant role the UCC plays in assigning liability for the handling of checks, the Supreme Court also found Lembo had no “special relationship” with the bank to sustain the common law causes of action.

New Jersey v. Greene

Docket: a-96-18

Opinion Date: June 23, 2020

Judge: Barry T. Albin

Areas of Law: Constitutional Law, Criminal Law

In the murder trial of defendants Cary Greene and Tyleek Lewis, the prosecutor opened to the jury that the State would present as a witness Greene’s grandmother, to whom he allegedly confessed his guilt in the shooting death of the victim. The prosecutor gave a detailed description of the grandmother’s expected testimony and a prediction of the emotional struggle she would encounter as a witness against her grandson. But before trial, Greene's grandmother recanted the statement she gave to police. At a hearing before the trial court, the grandmother asserted her Fifth Amendment right against self incrimination. Despite the court’s order compelling her to testify with an assurance of immunity, the grandmother refused to do so, resulting in the court holding her in contempt and jailing her. To remediate any prejudice from the prosecutor’s failure to produce the grandmother, with counsels’ consent, the court instructed the jury that the prosecutor’s opening statement concerning the expected testimony of Greene’s grandmother was not evidence or to be considered in its deliberations. Defendants Greene and Lewis were convicted of murder and related charges. The Appellate Division overturned the convictions of both defendants, finding the prosecutor’s opening statement, informing the jury about Greene’s confession to his grandmother, was highly prejudicial and that the court’s curative instruction was inadequate. To this, the New Jersey Supreme Court concurred and affirmed reversing Greene's conviction, but reversed the overturning of Lewis' conviction. "It is well understood that a 'defendant’s own confession is probably the most probative and damaging evidence that can admitted against him.' A confession made to one’s grandmother may have even greater persuasive power than one made to the police. The prosecutor’s detailed account of Greene’s incriminating statement to his grandmother was not likely forgotten by the jury, despite the trial court’s best efforts in providing a curative instruction."

New Jersey v. Horton

Docket: a-26-19

Opinion Date: June 10, 2020

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

The trial court excused and replaced a juror who had a preplanned vacation and who had been part of deliberations after the jury announced that they had reached a partial verdict. The judge did not have the jury return a partial verdict. Instead, the court excused the juror and reconstituted the jury with a replacement juror. The court denied defendant’s motion for a mistrial and defendant’s request to voir dire the jury to determine its ability to begin anew with the replacement juror. The jury reached a unanimous verdict three days later. The Appellate Division affirmed, finding that the trial court did not abuse its discretion. The New Jersey Supreme Court disagreed and reversed. The Supreme Court found that in light of the defendant facing charges of murder, attempted murder, and weapons possession offenses, "we cannot know whether the jury will 'start anew' with the entry of a substitute juror and discard their views simply because there is a new juror amongst them. Nor can we know if the new juror will exercise independence or simply go along with the opinions of the existing jurors. We cannot know or speculate whether the replacement juror was a 'full participant in the mutual exchange of ideas.' The safest and fairest course is to take a partial verdict, declare a mistrial, and constitute a new jury to hear the remaining counts."

New Jersey v. Medina

Docket: a-67-18

Opinion Date: June 9, 2020

Judge: Timpone

Areas of Law: Constitutional Law, Criminal Law

Defendant Jose Medina was tried and convicted for offenses related to a non-fatal slashing that occurred outside of a bar in the Township of Belleville, New Jersey. Although no physical evidence linked defendant to the crime, surveillance footage captured the incident, and the victim selected defendant’s picture from a photo array. A woman who witnessed the attack identified defendant as the attacker to police but was unwilling to give a formal statement or testify. At defendant’s trial, the prosecutor referenced the anonymous woman, after which an officer testified that, based on the “evidence . . . collected,” he included defendant’s picture in the photo array. Relying on New Jersey v. Bankston, 63 N.J. 263 (1973), New Jersey v. Irving, 114 N.J. 427 (1989), and New Jersey v. Branch, 182 N.J. 338 (2005), the Appellate Division found that this testimony violated the hearsay rule and the Confrontation Clause by suggesting that the anonymous woman -- a non-testifying witness -- implicated defendant in the crime. Viewing the trial record in its entirety, however, the New Jersey Supreme Court found that the officer’s testimony did not generate such an inference. Accordingly, the Court reversed the Appellate Division.