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William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Legal Q & A


Complaint Litigation
and Defiant Trespass

Deborah M. Kole
League Staff Attorney

Q We are a civil service municipality. Recently, we had to terminate an employee who had used up her allowed disability leave and still could not handle the necessary duties of her position. She objected and requested a hearing on the basis that the municipality did not made reasonable accommodation for her disability. A hearing before one of the municipal court judges was held, with both the employee and the municipality represented by counsel. The hearing officer found that termination was proper because it was not possible for the employer to accommodate the employee's disability.

Rather than appeal the decision to the Merit System Board, the employee filed a Complaint in the Superior Court under the Law Against Discrimination based upon the municipality's failure to accommodate her disability. Can the defendant municipality have this complaint dismissed because the issue has already been litigated at the municipal hearing?

A The legal doctrine to which you are alluding, collateral estoppel, was recently found not to apply to a similar situation in the case of Donna Hennessey v. Winslow Town-ship, Docket No. A-5010-02T5, decided April 16, 2004. The Court noted that the doctrine applies if: 1) the issue is identical to the one already decided 2) the issue was fully litigated in the prior proceeding 3) a final judgment on the merits was entered in the prior proceeding, and that judgment was based, at least in part, upon determination of this particular issue and 4) the party asserting the doctrine was either a party or in privity with a party in the prior proceeding. Even if all these criteria are met, the equitable doctrine of collateral estoppel will only be applied if it is fair to do so. (Pace v. Kuchinsky, 347 N.J. Super. 202, 215 [App. Div. 2002])

In the Hennessey case, the Court noted that, had the plaintiff-employee appealed her case to the Merit System Board, she would have had a right to a new trial at that level, with a full fact finding proceeding that completely disregarded the findings and conclusions of the municipal hearing officer. To preclude the plaintiff from having a new trial merely because she chose to file her claim in Superior Court under the LAD rather than with the Merit System Board would be "illogical and unfair" according to the Court. Therefore, the doctrine of collateral estoppel does not apply to prevent litigation of an employee's LAD complaint in such a situation.


Q A young man in our town was arrested after he refused to leave the roadway in front of the local high school where he and his friends were holding signs protesting military recruitment at the high school. The police asked him and his friends to move onto the grass across the street from the school, but although the others complied, this young man did not. He was charged with the disorderly persons offense of "defiant trespass." I can understand that he was guilty of some offense, but how could he be trespassing on a public roadway?

A Although it is a subpart of the same "Criminal Trespass" A statute, N.J.S.A. 2C:18-3, "defiant trespass" can occur even in a place that the public normally has a right to be, like a public roadway. Part a. of the statute, "unlicensed entry of structures," concerns what we commonly think of as trespass-entering or surreptitiously remaining in a structure when the individual is not licensed or privileged to be there. However, under subpart b.,"defiant trespass" can occur on property normally open to the public if "...notice against trespass is given by: 1) Actual communication to the actor; or 2) Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or 3) Fencing or other enclosure manifestly designed to exclude intruders."

The Appellate Division affirmed the finding of "defiant trespass" in a similar situation in New Jersey v. Hamilton, Docket No. A-2521-02T3, decided on April 5, 2004. In that case, the Court found that police instructions to demonstrators to stay on the opposite side of the street from a driveway leading to municipal property constituted "actual communication to the actor" under the defiant trespass statute. Also, because the plaintiffs were free to continue demonstrating on the other side of the street, their First Amendment rights were not violated. Furthermore, said the Court, "As a matter of law, we see no unique qualities of a public roadway that would preclude prosecution for defiant trespass if the facts otherwise warrant such a charge."


This column is for informational purposes only, and is not intended as legal advice.


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