NEW JERSEY LAWYER

DAILY BRIEFING      01/11/2006


News Briefs

LEGISLATURE DEFERS TO JUDICIARY — THIS TIME
In Trenton, consistency can be catch-as-catch-can, or put another way, whichever way the wind is blowing. So, as the New Jersey Supreme Court and the legislature are locked in a protracted constitutional battle over separation of powers — whether probation officers who work for the courts should be permitted to carry guns against the wishes of the courts — the legislature, on another matter, officially recognized the legitimate authority of the high court to govern court practices and procedures. That came as both houses of the legislature, proclaiming they aimed to be consistent with the 1950 Supreme Court Winberry v. Salisbury decision on separation of powers, passed a measure leaving it up to the high court to decide which division of the Superior Court is to handle an appeal from an alternative resolution dispute matter. A nearly 20-year-old law had dictated the Chancery Division was to be the appeals agency, and that stipulation now will be removed. 1-10-06

CODEY PICKS HIS NO. 2 LAWYER FOR BENCH
Mark J. Fleming, one of the lawyers for former Gov. James McGreevey and Gov. Richard J. Codey, will be sworn in soon for the Superior Court bench in Mercer County. In one of Codey’s last appointments before leaving office, he tapped Fleming, a 25-year state government attorney. His job as deputy chief counsel the past three years included reviewing legal issues about gubernatorial appointments, managing legal operations in the Governor’s Counsel’s Office and overseeing the analysis of all legislation. Fleming has been a deputy attorney general and assistant chief in the division’s Health, Education, Labor and Commerce Section, deputy attorney general in charge of administrative agency advice, and assistant attorney general and assistant director of the Division of Law. Meanwhile, William D. Sayers is the latest addition to the workers’ compensation court. He practiced with Yankowitz, Goldsmith & Sayers in Livingston. 1-10-06

ICLE SEMINAR WILL COVER ALCOTEST DEVICE ISSUES
The Institute for Continuing Legal Education is holding a half-day training session for lawyers on the state’s controversial new breath-test machines and other issues related to drunken driving. The session will begin at 9 a.m. Saturday, Feb. 4, at the Law Center in New Brunswick. Speakers include two deputy attorneys general, John J. Dell’Aquilo and Jessica S. Oppenheim, along with experts debating whether the Alcotest 7110 is scientifically accurate. They are Sgt. Kevin Flanagan of the New Jersey State Police, in charge of the rollout of the machines, and Dr. Richard Saferstein, a defense expert and former chief forensic chemist for the State Police. Jeffrey E. Gold of Gold & Laine in Cherry Hill will moderate the panel. Retired Appellate Judge Michael Patrick King has been named a special master to recommend whether the Alcotest produces scientifically reliable evidence for DWI convictions. For further information about the seminar, call (732) 214-8500. 1-10-06

MINORITY BAR GROUP SUPPORTS FORMER UMDNJ LAWYER
Vivian Sanks King, who quit her job as vice president of legal affairs for the embattled University of Medicine and Dentistry of New Jersey rather than be fired, has the strong backing of the Garden State Bar Association. The professional association comprised of black lawyers, judges and law students issued a two-page statement expressing the organization’s concerns about the “relentless character assassination” of King as “played out in the media based on unproven allegations.” The Garden State Bar said its statement also was to “support a longstanding friend, colleague and leader” in the black community “who has earned our trust and respect.” She quit after UMDNJ President John Petillo told her she faced dismissal unless she bowed out. It’s been reported U.S. Attorney Christopher J. Christie told the UMDNJ board King had directed attorneys to redraft reports that showed the school was in violation of certain laws. The nation’s largest public teaching hospital is being run by a federal monitor, former U.S. District Judge Herbert J. Stern, as an investigation into waste and corruption continues. 1-10-06

UMDNJ ON ANOTHER FRONT
The University of Medicine and Dentistry of New Jersey improperly waived state bidding law requirements in awarding more than $16 million in contracts last year, according to former Justice Gary S. Stein, who was retained by the board there to investigate spending. Assisted by forensic accountants, Stein found that “careless and undisciplined” employees awarded contracts without public bids. Stein examined nearly $155 million in contracts and concluded more than 10 percent were awarded inappropriately because they did not meet state bidding requirements. His 208-page report said that behavior was “inexcusable and cannot be permitted to continue.” However, Stein found no evidence of political favoritism, saying “the media’s sustained criticism of the university’s award of bid-waived contracts, and the suggestion that those contracts were awarded primarily on the basis of political considerations, is incorrect and unsubstantiated.” 1-10-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JANUARY 10, 2006
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JANUARY 10, 2006:

SEARCH AND SEIZURE
STATE v. ECKEL
New Jersey Supreme Court, A-95, January 10, 2006. (33 pages). Facts-on-Call Order No. 92796

The warrantless search of a vehicle as incident to an arrest after the occupants have been removed from the vehicle and secured in police custody is incompatible with Article I, Paragraph 7 of the New Jersey Constitution because neither purpose of the search-incident-to-arrest exception to the warrant requirement — to protect the police and to preserve evidence — is advanced by searching the vehicle of a person who is effectively incapacitated. To the extent that the U.S. Supreme Court held otherwise in New York v. Belton, the New Jersey Supreme Court respectfully disagreed. This is a companion case to State v. Dunlap.

SEARCH AND SEIZURE
STATE v. DUNLAP
New Jersey Supreme Court, A-80/81, January 10, 2006. (15 pages). Facts-on-Call Order No. 92797

In light of State v. Eckel, the search-incident-to-arrest exception to the warrant requirement did not apply to the warrantless search of the defendant’s vehicle because the defendant had been secured at a distance from his vehicle and was not a threat to the officers’ safety or to the preservation of evidence. Moreover, even though the police had probable cause to search the defendant’s vehicle, the automobile exception did not apply because exigent circumstances did not justify the warrantless intrusion. This is a companion case to State v. Eckel.

THE SUPREME COURT has announced that it will release opinions in IN RE FRESHWATER WETLANDS STATEWIDE GENERAL PERMITS, A-115, and IN RE NJPDES PERMIT NO. NJ0025241 ISSUED TO ASBURY PARK CITY, A-116, on January 11, 2006. The issue on appeal in Freshwater Wetlands addresses whether third parties have a right to an adjudicatory hearing to review applications under the Freshwater Wetlands Protection Act or whether the right to such a hearing is limited to applicants. The issue on appeal in NJPDES Permit No. NJ 0025241 addresses whether third parties have a right to an adjudicatory hearing to review applications under the Water Pollution Control Act or whether the right to such a hearing is limited to applicants.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, JANUARY 10, 2006.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
FERMIN v. ASCENCIO
Appellate Division, A-542-04T5, January 10, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19080

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court determined that the plaintiff failed to establish that she had suffered a “permanent serious injury” that was causally related to the accident and that her injury had a “substantial impact” on her life; under the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, the plaintiff had to prove only that she had suffered a permanent injury that fell within the categories set forth in §39:6A-8a; there was no objective medical evidence that the plaintiff’s injuries were “serious and permanent” where her chiropractor’s report was “notably devoid of clear language” that indicated that the plaintiff’s injuries were “irreversible, serious, and proximately caused” by the accident; on remand, the trial court must determine whether a rational jury could find that the injuries proximately caused by the accident fell within the category of a “permanent injury” under DiProspero and Serrano.

TORT CLAIMS ACT
CLARK v. COLLINGSWOOD BOARD OF EDUCATION
Appellate Division, A-5000-04T5, January 10, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19081

Summary judgment for the defendant Board of Education and the defendant high school reversed and remanded in an action for injuries sustained by the plaintiff student when a fire extinguisher fell on her hand; the plaintiff’s claim was based on a “dangerous condition on public property” theory; although this was a “close case,” the trial court erred by failing to submit to the jury the issue of whether the defendants’ action or inaction was “palpably unreasonable”; the “thrust” of the opinion of the plaintiff’s expert was that a “strap-type bracket,” and not a “J-hook bracket,” should have been used due to the location of the fire extinguisher; the defendants’ proof that the J-hook was provided by the manufacturer did not meet the expert’s opinion because, although the J-hook is appropriate for some areas, the alleged palpably unreasonable conduct was the use of the J-hook in a “high traffic area,” which presented “a danger of dislodgement”; furthermore, the defendants did not rebut the expert’s opinion that installing the fire extinguisher at a height of about 30 inches “increased the likelihood of dislodgement.”

WORKERS’ COMPENSATION
ROLON v. WAREHOUSE SERVICES, INC.
Appellate Division, A-4106-04T2, January 10, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19082

Division of Workers’ Compensation order that dismissed the petitioner worker’s claim for failure to sustain his burden of proof affirmed; the judge of compensation determined that the petitioner had not established that his alleged injuries arose out of or in the course of his employment with the respondent employer and that the petitioner’s testimony was “completely lacking in credibility for any number of reasons”; the petitioner’s four arguments on appeal amounted to a contention that the judge’s decision was against the weight of the evidence; however, there was no “persuasive reason” to conclude that the judge’s findings did not satisfy the substantial evidence rule.

CONTRACTS
LANG v. DENG
Appellate Division, A-2466-04T3, January 10, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19083

Dismissal with prejudice of the plaintiff ex-girlfriend’s complaint following a bench trial affirmed in an action seeking the return of $55,000 that she allegedly lent to the defendant ex-boyfriend in four installments during their relationship; the record supported the trial court’s conclusion that each installment was an unconditional gift; there was no consideration for the ex-boyfriend’s later written indications that he would repay the ex-girlfriend; at the time the ex-boyfriend received the money, he had no obligation to repay the ex-girlfriend, and she had no reasonable expectation of repayment; in light of the ex-girlfriend’s expectations at the time of the gifts and the parties’ relationship at the time she made the gifts, the trial court also properly concluded that there was no basis for a judgment under a theory of unjust enrichment.

PUBLIC EMPLOYEES
IN RE VAN DE BEEK
Appellate Division, A-3201-04T1 and A-3232-04T1, January 9, 2006, not approved for publication. (13 pages). Facts-on-Call Order No. 19079

Law Division order following a de novo hearing (1) affirmed as to the findings that the veteran police lieutenant had committed one substantive violation and one derivative violation during his verbal exchange with a “relatively new” officer but (2) reversed and remanded as to the imposition of a one-day suspension with pay; the hearing officer had found that the lieutenant had committed an additional substantive violation, and the hearing officer had imposed a two-day suspension without pay; contrary to the lieutenant’s appellate arguments, the Law Division’s decision was not inherently inconsistent, and the record supported the Law Division’s findings; contrary to the Township’s first appellate argument, it was not error for the Law Division to decline to re-impose the penalty imposed by the hearing officer; however, the parties did not dispute that a suspension with pay is not an authorized final disposition, and the appropriate remedy was to remand to re-impose a sanction following arguments as to whether the proper sanction was a written reprimand or a suspension without pay.

SETTLEMENTS
ROCBIN INVESTMENTS CORP. v. FARRENDALE PROPERTIES, L.L.C.
Appellate Division, A-2963-04T3, January 9, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19078

Denial of the plaintiff neighbor’s second motion to compel the defendant neighbor to move sheds on its property pursuant to a settlement agreement and denial of the defendant neighbor’s motion for sanctions and attorney’s fees affirmed; in a 2000 settlement, the defendant agreed to move the sheds; in 2002, the plaintiff’s first motion to compel the defendant to move the sheds was denied pending an evidentiary hearing; however, the hearing never was held due to the plaintiff’s failure to pursue it; in 2004, the parties filed the motions at issue; as to the plaintiff’s motion, the trial court did not err by determining that the plaintiff had waived its right to enforce the settlement because the two-year delay in seeking the hearing constituted a waiver and because allowing the plaintiff to revive the litigation would deny the defendant the repose that it had bargained for; as to the defendant’s motion, the trial court did not abuse its discretion by denying the request for attorney’s fees, which was based on the plaintiff’s failure to disclose its first motion in its second motion.


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