NEW JERSEY LAWYER

DAILY BRIEFING      01/14/2005


News Briefs

BETTER QUIT WHILE YOU’RE AHEAD
Lawyers perhaps should be careful about asking for a raise or they might end up without the raise and the job. That’s what happened to Richard J. Shackleton of Ship Bottom, who was ousted as Beach Haven’s borough attorney — he held the post for nearly a quarter-century — after asking for his second raise in two years. The borough commission voted 2-1 to show Shackleton the door when he asked for a more than 16 percent hourly raise for 2005, after receiving a 20 percent increase last year. He’s been replaced by two Toms River firms that will earn $125 per hour, the amount he earned pre-2004. Meanwhile, Shackleton has been reappointed Long Beach township attorney at an increased rate capped at $175. 1-13-05

APPELLATE DIVISION HEARS SEPARATION-OF-POWERS CASE
The Appellate Division last week in Morristown heard a double appeal in P.L. 2001, Chapter 362, Williams v. State, a separation-of-powers controversy over a statute that establishes within the judiciary a unit of armed probation officers. The trial court had ruled in favor of the judiciary, which claimed the law infringed on its constitutional authority over the administration of the courts. Both the state and the Probation Association of New Jersey appealed. For a full story, see the Jan. 17 New Jersey Lawyer. 1-13-05

HUDSON COUNTY SEEKS SPONSOR FOR HISTORIC COURTHOUSE
Hudson County freeholders are hoping to find a corporate sponsor to put up some of the $11 million they expect to spend the next 10 years to preserve the historic William J. Brennan Courthouse. The county could save millions by selling the building to a corporation, which could take advantage of tax credits because of the building’s historic status, suggested Freeholder Bill O’Dea. The county would continue to operate and maintain the building, and, under an agreement, the corporation after a certain number of years would resell it to the county for $1, O’Dea suggested, noting partnerships with private companies have been tried with several government buildings statewide. 1-13-05

NO ABSOLUTE RIGHT TO BATHROOM PRIVACY
A man found partially disrobed with a woman, along with cocaine and marijuana, in the one-person restroom of a Cedar Rapids convenience store, had no absolute right to privacy, ruled the 8th U.S. Circuit Court of Appeals. It rejected Lonnie Maurice Hill’s claim that police who entered the room breached his Fourth Amendment right to privacy, making the drugs illegally seized and unusable as evidence. “The Fourth Amendment protects people and not places,” wrote circuit Judge Donald Lay. In Hill’s case, “it was not a single person using the single-toilet restroom but two persons of opposite gender and, under the circumstances, we hold that they had a diminished expectation of privacy which had expired by the time the officers arrived.” When it comes to restroom privacy, “we have never held that this expectation lasts indefinitely,” wrote Lay. Other courts also have held the right of bathroom privacy varies by case, with some judges finding a stall in a public restroom is not private when used for something other than its intended purpose. 1-13-05

SUGARCOATING A FATTY ISSUE
Two food industry groups, the vending machine trade association and the sugar association, are taking action against claims their products are partly to blame for increasing obesity among American children. The $30-billion-a-year vending machine industry, which has more than 1 million machines in schools, is teaming up with football Hall of Famer Lynn Swann in a $1 million campaign against childhood obesity. One feature would be a system rating the nutritional value of the food in machines. For example, candy bars would carry a red sticker, meaning it should be eaten rarely, while a green-stickered granola bar would indicate it’s more nutritious. Meanwhile, the sugar association, with sales declining due to health concerns, low-carb diets and the popularity of alternative sweeteners, will spend at least $3 million annually the next three years on an ad campaign — only the second in its history. The first, 20 years ago, resulted in a 12 percent to 15 percent increase in sales, said association spokeswoman Melanie Miller, adding this campaign is intended to give consumers “permission” to use sugar. “In moderation, it’s not evil,” said Miller, noting a teaspoon of sugar is only 15 calories. Oh well, as a fat comedian of years past would have said, “How sweet it is!” 1-13-05

BRIEFING TAKES A HOLIDAY
The Daily Briefing will not be published Monday because of Martin Luther King Jr. Day.



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JANUARY 13, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JANUARY 13, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, JANUARY 14, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, JANUARY 13, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, JANUARY 13, 2005.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


PARENT AND CHILD
IN RE APPLICATION OF O’BRIEN TO ASSUME THE NAME O’BERG-O’BRIEN
Appellate Division, A-533-03T2, January 12, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 17508

Denial of the appellant mother’s application to change her 6-year-old son’s surname from O’Brien to Oberg-O’Brien reversed and remanded; the appellant and the respondent father were divorced in 2002; the final divorce judgment provided for the parties to share joint legal custody of their son and named the appellant as the “parent of primary residence” and the respondent as the “parent of alternate residence”; the trial court erred by applying a presumption in favor of the surname that the parties gave their son when he was born, which was not consistent with the recent New Jersey Supreme Court decision in Ronan v. Adely; remand was appropriate because circumstances may have changed in the 18 months since the trial court’s decision.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. G.J.
Appellate Division, A-6294-03T4, January 12, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17509

Family Part’s sua sponte reconsideration of its ruling and order terminating the defendant father’s parental rights affirmed; on June 11, 2004, the Family Part terminated the mother’s parental rights but initially declined to terminate the defendant’s parental rights; however, three days later the Family Part reconsidered its ruling sua sponte and concluded that it had based its earlier determination on sympathy for the father rather than on the clear and convincing evidence presented by the Division of Youth and Family Services; the Family Part properly concluded that the four factors for termination under N.J.S.A. 30:4C-15.1(a) were established by clear and convincing evidence; there was “no barrier” to the Family Part’s rejection of its earlier determination based on sympathy, and it was an appropriate use of its power under Rule 1:7-5; because no written order or judgment had been entered when the Family Part took its sua sponte action, Rule 4:50-1 “was not yet controlling.”

MEDICAL MALPRACTICE
CALAFIORE v. BERGMAN
Appellate Division, A-5725-03T3, January 12, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 17506

Order requiring the non-party hospital to turn over the report of its internal investigation into the death of the plaintiffs’ daughter reversed and remanded; the plaintiffs sued the defendant doctor for medical malpractice and wrongful death after their daughter died, and they sought discovery of the hospital’s documents; the trial court (1) correctly determined that the daughter’s death was a “Sentinel Event” within the meaning of the hospital’s policy manual but (2) erred by concluding that the report was discoverable in its entirety because only the factual contents of the report were subject to disclosure under Christy v. Salem and because the plaintiffs did not demonstrate a compelling need for the evaluative and deliberative contents of the report.

NEGLIGENCE
GOODING v. TAPIA
Appellate Division, A-1739-03T1, January 12, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17505

Judgment for the plaintiff in the amount of $1,450 in an action alleging negligent property damage reversed; the plaintiff and the defendant each owned half of a duplex residence; the plaintiff approached the defendant in May 2002 about replacing the roof, but the defendant refused to participate because her side of the roof was not leaking and because she lacked money; the plaintiff replaced her side of the roof in the spring or summer of 2003, and she sought to recover for the damage to the interior of her unit; the trial court’s conclusion that the defendant’s refusal to participate in the repair or replacement of the roof had caused the damage to the interior of the plaintiff’s unit was not supported by the record.

MEDICAID
STRATFORD NURSING AND CONVALESCENT CENTER, INC. v. DEPARTMENT OF HEALTH AND SENIOR SERVICES
Appellate Division, A-402-03T3, January 12, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17507

Final decision of the Acting Commissioner of the respondent Department of Health and Senior Services that denied an increase in the appellant nursing home’s Medicaid reimbursement rate for the years 1987 through 1989 and for the years 1998 through 2000 affirmed; the appellant’s property and facility was appraised in 1977, and that appraisal was used to calculate the capital facilities allowance component of the appellant’s reimbursement rate; contrary to the appellant’s argument on appeal, it was not entitled to a hearing on the issue of the validity of the 1977 appraisal because it did not raise a genuine factual dispute about the validity of the appraisal either in this proceeding or in an earlier proceeding that challenged its reimbursement rate for the years 1990 through 1997; the Acting Commissioner’s decision was supported by the record.

JUDGMENTS
DIRECTORY CONCEPTS, INC. v. SMITH
Appellate Division, A-4398-03T5, January 12, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17504

Denial of the defendants’ objection to the entry of judgment against them in New Jersey under the Uniform Enforcement of Foreign Judgments Act reversed and remanded; the plaintiff buyer sued the defendant sellers in Ohio to enforce the parties’ agreement governing the sale of the defendant corporation’s assets and accounts; the defendants asserted that Ohio did not have personal jurisdiction over them, but an Ohio court entered a $31,881.75 judgment for the plaintiff after a trial at which the defendants appeared; the record did not indicate whether the Ohio court had addressed the defendants’ claim that Ohio lacked jurisdiction; the Law Division erred by denying the defendants’ motion without determining whether Ohio had jurisdiction over the defendants.

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