NEW JERSEY LAWYER

DAILY BRIEFING      01/10/2006


News Briefs

NJ HIGH COURT SETS ARGUMENTS IN ‘GAY MARRIAGE’ CASE
The New Jersey Supreme Court will hear oral arguments Feb. 15 on contentions that the state constitution guarantees a right for same-sex couples to marry. Gay-rights activist group Lambda Legal is pressing the case in Lewis v. Harris after losing in Superior Court and by a 2-1 Appellate Division decision. Attorney General Peter C. Harvey has filed a 60-page brief that there is no constitutional right for gays and lesbians to wed and that only the legislature can establish that. The state is represented by Assistant Attorney General Patrick DeAlmeida. David Buckel, an attorney with Lambda Legal, is litigating the case for six homosexual couples. 1-9-06

PAYING CORPORATE TAXES EVEN IF THE BUSINESS ISN’T HERE
Can New Jersey impose a corporate income tax on an out-of-state business that has no physical presence here? In Lanco, Inc. v. Director, Division of Taxation, the Appellate Division in August said “yes.” That’s a departure from long-standing law dealing with the imposition of sales taxes on businesses only if they have a “nexus” here. Now, numerous out-of-state companies want the New Jersey Supreme Court to reverse. It’s the focus of an article by Newark attorney Robert J. Alter in this week’s New Jersey Lawyer Special Section on taxation. Millions of dollars are at stake. 1-9-06

DRUNKEN DRIVERS ‘BRANDED’ WHILE DOING ROADSIDE CLEANUP
In Nathaniel Hawthorne’s The Scarlet Letter, adulteress Hester Prynne is forced to wear a red A emblazoned on her clothing to announce her sin to the world. Borrowing that theme, Tennessee is requiring convicted drunken drivers wear orange vests while doing roadside litter pickup, informing passing motorists in big letters, “I am a Drunk Driver.” The new law, aimed at first-time offenders, is being criticized by legal experts who worry that shaming people with alcohol problems without providing meaningful substance-abuse treatment programs could exacerbate the problem. The law took effect Jan. 1 with the signature of Gov. Phil Bredesen, who objects to the statute’s reduction of minimum jail time. Under previous law, offenders were sentenced to a minimum 48 hours in jail; now, they must spend a minimum of one day in jail followed by three eight-hour shifts of roadside cleanup. 1-9-06

UNIVERSITY CAN BLOCK DATING SERVICE E-MAIL
The University of Texas can block thousands of unsolicited e-mail messages from an online dating service, held the U.S. Supreme Court in letting stand a federal appeals court decision that the college was justified when it blocked 59,000 such missives three years ago. White Buffalo Ventures contended its First Amendment rights were violated. The college, dealing with a large spam problem that crashed its computer system, blocked the e-mail after the dating service refused to comply with a cease-and-desist order. The 5th U.S. Circuit Court of Appeals previously ruled for the university. 1-9-06

ITALIAN COURT TO DECIDE IF JESUS EXISTED
Even though he admits “it would take a miracle to win” his case in predominantly Roman Catholic Italy, plaintiff Luigi Cascioli is pressing his claim that the church is breaking Italian law by teaching that Jesus existed 2,000 years ago. Cascioli, an atheist, claims local priest Enrico Righi, who writes for the parish newspaper, and by extension, the entire church, broke two laws: impersonation and abuse of popular belief, which is meant to protect people from being swindled or conned. A court in Viterbo will hear arguments Jan. 27 on whether the case should proceed. 1-9-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, JANUARY 9, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JANUARY 9, 2006.

THE SUPREME COURT has announced that it will release opinions in STATE v. DUNLAP, A-80/81, and STATE v. ECKEL, A-95, on January 10, 2006. The issues on appeal in Dunlap and Eckel address whether the warrantless search of a motor vehicle was justified as incident to the defendant’s arrest.



APPROVED FOR PUBLICATION
EDUCATION
RAMSEY TEACHERS ASSOCIATION v. BOARD OF EDUCATION OF THE BOROUGH OF RAMSEY, BERGEN COUNTY
Appellate Division, A-733-04T1, approved for publication January 9, 2006. (17 pages). Facts-on-Call Order No. 92794

N.J.S.A. 18A:40-3.3 — which permits a school district to supplement the services provided by a certified school nurse with services provided by noncertified nurses as long as the noncertified nurses are assigned to the same school building or complex as the certified nurse — does not require the certified nurse to be physically present in the school building or complex when the noncertified nurse is providing services.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
McELWEE v. DELLISANTI
Appellate Division, A-3825-04T1, January 9, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19073

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; before the parties’ accident, the plaintiff had been injured in two earlier accidents; the trial court granted summary judgment because the plaintiff did not establish that his injuries had a serious impact on his life; the defendants conceded that the trial court’s reasoning could no longer support summary judgment under DiProspero v. Penn and Serrano v. Serrano, but they sought an affirmance because the plaintiff did not satisfy the comparative analysis requirement of Polk v. Daconceicao and did not present sufficient objective evidence of a permanent injury; in light of the recent developments in the interpretation of AICRA — including the decisions in DiProspero and Serrano and the “mixed results” of the decisions questioning whether Polk applies under AICRA — the interests of justice would be best served by allowing the defendants to move anew for summary judgment in the trial court, subject to the plaintiff’s filing of new opposition.

VERBAL THRESHOLD
ROTELLA v. BITICI
Appellate Division, A-3307-04T5, January 9, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19074

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court recognized the plaintiff’s herniated disc that was demonstrated on his MRI, concluded that there was sufficient medical evidence to create a factual dispute regarding whether there was objective evidence of an injury resulting from the accident, but dismissed the complaint because the plaintiff’s injuries did not have a serious impact on his life; reversal and remand were required in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, which held that a plaintiff may recover noneconomic damages under AICRA without demonstrating that his injuries had a serious impact on his life; whether the plaintiff established through objective credible evidence that he had suffered a permanent injury was a question for the jury.

PREMISES LIABILITY
SMITH v. UNIVERSITY OF MEDICINE & DENTISTRY OF NEW JERSEY
Appellate Division, A-3355-04T3, January 9, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19075

Summary judgment for the defendant University of Medicine and Dentistry of New Jersey based on the common law immunity for snow removal for public entities affirmed in an action arising from the plaintiff’s fall on UMDNJ’s premises; while exiting the parking lot of UMDNJ’s facility, the plaintiff slipped and fell on ice that had formed when a snow pile that was created during UMDNJ’s snow removal efforts melted and refroze; UMDNJ is a public entity, and it is well settled that public entities are shielded from liability for negligent snow removal under both the Tort Claims Act and the common law; the plaintiff’s reliance on Bligen v. Jersey City Hous. Auth. for the proposition that the immunity for snow removal applies only to accidents that occur on streets or highways was “misplaced” and was incorrect as a matter of law.

EDUCATION
IN RE TENURE HEARING OF SARDUY
Appellate Division, A-5913-03T3, January 9, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19076

Final decision of the State Board of Education to dismiss the respondent assistant principal from her tenured position in the school district where she had been employed since 1974 affirmed; on charges of “unbecoming conduct” and insubordination, the administrative law judge found that the respondent (1) had failed during 2001-2002 to perform certain duties assigned by the principal, (2) had failed to supervise a lunch period in 2002 despite the principal’s order, (3) had told the superintendent during the 1999-2000 school year that she would no longer observe certain staff members and had disobeyed his order to perform the observations, and (4) had acted inappropriately and unprofessionally as to special education matters; the record supported the State Board’s decision; despite the respondent’s arguments that her alleged misconduct was “relatively minor” and had occurred in “a very limited period” during her “lengthy” service, there was no reason to intervene to modify the penalty of dismissal.

PARENT AND CHILD
CUMBERLAND COUNTY BOARD OF SOCIAL SERVICES ON BEHALF OF WRIGHT v. DeJESUS
Appellate Division, A-4592-04T3, January 9, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19077

Family Part order that directed that a child support judgment — which was docketed against the defendant father under N.J.S.A. 2A:17-56.23a — be reduced by the settlement proceeds he received on his workers’ compensation claims in an amount calculated pursuant to the procedures used by the Division of Workers’ Compensation reversed and transferred to the Division; as of October 4, 2004, the father owed $15,899.93 in child support; the settlement proceeds totaled $14,159, but $6,594 of that amount was subject to “a substantial Medicaid lien”; under the Division’s procedures, 65 percent of the settlement proceeds would be used to reduce the child support lien; however, the plaintiff Cumberland County Board of Social Services claimed that the Division’s procedures were contrary to the express language of §2A:17-56.23b, which states that a child support lien has priority over all other levies and garnishments against the net proceeds of a workers’ compensation settlement if more than $2,000 is to be distributed; whether the Division’s procedure violated the express language of §2A:17-56.23b was a question in the first instance for the Division.

DOMESTIC VIOLENCE
NOWAK v. SILBERMAN
Appellate Division, A-3096-04T3, January 6, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19071

Final domestic violence restraining order against the defendant affirmed; the parties had lived together for 27 years; the plaintiff testified that one evening the defendant had screamed and yelled at her, had refused to leave, had pushed the end of a table that she was holding, had disconnected the telephone, had said repeatedly that he would kill her, and had pulled the table away from her; the plaintiff further testified as to two prior incidents of domestic violence, and the trial court found her credible; the Appellate Division rejected the defendant’s arguments that the trial court had failed to determine that he had acted for the purpose of harassing the plaintiff or assaulting her and had improperly determined that there was a history of abuse; pursuant to Cesare v. Cesare, an act of domestic violence may be found based on one “sufficiently egregious action,” even if there is no history of violence between the parties, or on “an ambiguous incident” where there is a finding of prior violence between the parties.

CONTRACTS
MARESCO INTERNATIONAL CORP. v. TIC ENTERPRISES
Appellate Division, A-4967-04T3, January 6, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19072

Jury verdict for the plaintiff business in a breach of contract action affirmed; the defendant telecommunications company installed a system that it had designed and had specified to link the plaintiff’s office in New Jersey to its office in Florida, but the system did not work properly and was not fixed; at trial, the defendant claimed that the parties’ transaction was “a mere sale and lease” of equipment and that the plaintiff had not met its burden of proving that the equipment was defective; however, it was “plain” that the evidence supported the findings (1) that the scope of the parties’ contract included the defendant’s services for designing, specifying, and installing the system, (2) that the system failed to work according to the defendant’s representations, and (3) that the failure was material and was the cause of the damage to the plaintiff; the trial court did not err by denying the defendant’s motions for involuntary dismissal and judgment notwithstanding the verdict.


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