NEW JERSEY LAWYER

DAILY BRIEFING      01/03/2006


News Briefs

GUARDIANSHIP LAWS GETTING REVAMP
The most vulnerable of New Jersey citizens — mentally incapacitated people, especially the elderly — soon may see their lifestyle improved with the possibility of a greater degree of independence. That’s just one of the expected developments from the first major reform of New Jersey’s guardianship laws in more than 30 years. Legislation, which also provides greater protection for the legal rights and finances of wards, is on acting Gov. Richard J. Codey’s desk and expected to be signed soon. The full story in the Jan. 2 New Jersey Lawyer. 12-30-05

MVC MEDICAL REVIEW COULD ANSWER TIPSTERS
A bill that authorizes the Motor Vehicle Commission to respond to suggestions from people who ask that a family member be retested for driving is among dozens of measures emerging from the lame-duck session of the legislature and is expected to be signed by acting Gov. Richard J. Codey. Under A-1188, people writing to the MVC will receive an acknowledgement that such testing or medical review has indeed been ordered. Medical review files, including letters from family members, have been treated as confidential, so the bill would allow the MVC to respond to those making the requests. The medical review file will remain confidential, but if the review or retesting results in the revocation of a license, that will continue to be a matter of public record. It is not unusual for family members, concerned about the age and mental ability of elderly relatives, to send the MVC letters asking for a medical review. 12-30-05

MUNICIPALITY’S REZONING TO PROTECT RURAL CHARACTER STANDS
A long and hard-fought battle between the New Jersey Farm Bureau and East Amwell Township officials over rezoning the rural municipality to restrict development is finally over. The New Jersey Supreme Court has declined to hear the case, which lets stand an Appellate Division decision in September upholding the lower-density zoning. The Farm Bureau and a group of farmers calling themselves the United Farmers and Landowners of East Amwell sued the township in 1999 after it changed residential zoning in the agricultural district from one unit per three acres to one unit per 10 acres. After a lengthy trial, Superior Court Judge Helen E. Hoens upheld the validity of the ordinances. 12-30-05

NEW HAMPSHIRE SUPREME COURT DELIVERS PARTIAL WIN TO PRESS
Divorce litigants in New Hampshire will have the burden of proof to keep financial records sealed, ruled the state’s Supreme Court in finding a key part of a confidentiality law unconstitutional. The justices also concluded that anyone seeking access to such financial filings is not required to demonstrate that disclosing them would benefit the public. “It abrogates entirely the public right of access to a class of court records,” the justices said about the law enacted in 2004. However, the court left other parts of the law intact. As a result, all financial affidavits in divorce cases are confidential when filed and those seeking access must ask for them. News organizations including the Associated Press appealed a lower court ruling that upheld the law. 12-30-05

TEXAS JURORS GET FIRST RAISE IN 51 YEARS
Starting this week, jurors in Texas will be paid more as the $6 daily rate established in 1954 is changed to $40. Jurors will get $6 their first day of service, after which the new rate kicks in. Juror pay ranges from state to state. In Massachusetts and Colorado, jurors get nothing the first three days, then $50 a day after that. In New Jersey, jurors receive $5 the first three days, then $40 per day. Pennsylvania pays $9 a day the first three days, then $25 per day. Lawmakers, judges and lawyers in Texas say they hope the new rate will increase jury participation and help put more minorities on panels. The raise was triggered after Houston law firm Vinson & Elkins found in a study that only 19 percent of those called for jury duty appeared. And while Hispanics comprise more than one-third the population in Dallas and Houston, young Hispanics there were significantly under-represented on juries. 12-30-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, DECEMBER 30, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, DECEMBER 30, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, JANUARY 3, 2006.


APPROVED FOR PUBLICATION
REAL PROPERTY
CHEROKEE EQUITIES, L.L.C. v. GARAVENTA
Chancery Division, Monmouth County, F-18023-03 and F-395-05, approved for publication December 28, 2005. (16 pages). Facts-on-Call Order No. 92789

One who acquires a property interest after the filing of a tax foreclosure complaint may intervene and redeem if the interest has not been acquired for nominal, little, or no consideration, as measured against the reasonable value of the interest.

MUNICIPAL CORPORATIONS
HARRIS v. TOWNSHIP OF HADDON
Law Division, Camden County, L-5769-05, approved for publication December 28, 2005. (8 pages). Facts-on-Call Order No. 92790

A municipality that has established a district management corporation under New Jersey’s nonprofit organization statute to manage special improvement districts may not enact an ordinance to require the corporation to alter its method of choosing its board of directors.

PUBLIC EMPLOYMENT
AMALGAMATED TRANSIT UNION, LOCAL 1317 v. DeCAMP BUS LINES, INC.
Law Division, Essex County, ESX-L-8384-04, approved for publication December 28, 2005. (15 pages). Facts-on-Call Order No. 92791

An award of back pay to an employee in a labor arbitration constitutes wages for purposes of employment taxes and withholding, even though the award included compensation for periods when the employee did not work because his employer wrongfully barred him from working. Interest on the award should be paid at the post-judgment rate from the date of the award.

NOT APPROVED FOR PUBLICATION
MENTAL HEALTH
IN RE CIVIL COMMITMENT OF R.X.K.
Appellate Division, A-3362-04T2, December 30, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 19034

Judgment that continued the appellant’s involuntary civil commitment to the Special Treatment Unit pursuant to the Sexually Violent Predator Act affirmed; the appellant was committed to the STU after serving a prison term for sexually assaulting a boy multiple times in a five-year period; contrary to the appellant’s arguments on appeal, (1) clear and convincing evidence supported the trial court’s decision to continue his commitment based on findings that he had made insufficient progress in the STU treatment program, that he still had a mental abnormality and personality disorder that caused him serious difficulty in controlling sexually violent behavior, and that he was highly likely to commit another sexually violent offense and (2) the trial court did not violate his rights as a committed patient under N.J.S.A. 30:4-24.2d(3) by allowing the Department of Corrections to keep him shackled during the review hearing because the Legislature has recognized that patients’ rights under the statute, including the right to be free of physical restraint except in emergencies, “cannot be applied in blanket fashion” to sexually violent predators.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF A.C.S.
Appellate Division, A-116-03T2, December 30, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 19035

Order that committed the appellant to the Special Treatment Unit pursuant to the Sexually Violent Predator Act affirmed; the appellant had been temporarily committed to the STU just before he completed his sentence for convictions arising from seven sexual assaults during a six-month period that ended only when he was arrested; the record “amply supported” the trial court’s findings, and the trial court properly allowed the State’s testifying experts to use presentence investigation reports, police reports, and reports that were generated from earlier psychological and psychiatric evaluations; there was no merit to the appellant’s belated contention that the State failed to produce all of the documents on which its experts had relied at trial, and the appellant was given “a full and fair hearing and suffered no prejudice.”

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF G.S.S.
Appellate Division, A-2371-03T2, December 30, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 19032

Order that committed the appellant to the Special Treatment Unit pursuant to the Sexually Violent Predator Act affirmed; when the commitment proceedings were initiated, the appellant was serving a sentence for second-degree sexual assault and other charges that arose from his encounters with three teenage special education students; the order was entered after a bench trial in which the trial court heard testimony from two experts for the State and one expert for the appellant; contrary to the appellant’s arguments on appeal, (1) the trial court did not err by ordering his commitment, (2) the trial court’s evidentiary rulings were consistent with the case law, and (3) he had no right to a jury trial.

UNEMPLOYMENT COMPENSATION
CARRELLO v. BOARD OF REVIEW
Appellate Division, A-5730-03T1, December 30, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 19033

Final decision of the Board of Review that affirmed the disqualification of the claimant for unemployment compensation benefits for leaving her job voluntarily without good cause attributable to the work reversed and remanded; the claimant, who had been a manager at the respondent restaurant, initially was disqualified for benefits for six weeks because she had been discharged for misconduct connected with the work; the claimant appealed, and a notice of an administrative hearing indicated that the issue to be addressed was her alleged misconduct; at the hearing, where the claimant appeared pro se, the restaurant alleged that she had quit without cause; the examiner asked the parties if they wanted to proceed on that issue or adjourn the hearing, and the parties elected to proceed; after a decision was rendered against the claimant, she was pressed to refund the benefits that she already had received; the claimant was deprived of procedural due process because she never received advance, prehearing notice of “the actual ground of ineligibility being asserted” and of the consequences of a negative finding; the claimant did not make an informed, intelligent decision to proceed with the hearing.

PUBLIC EMPLOYEES
COUNTY OF CAMDEN v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
Appellate Division, A-6900-03T5, December 29, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 19029

Award of ordinary disability retirement benefits by the Public Employees’ Retirement System to the respondent, who was the former Camden County Sheriff, affirmed; the respondent was defeated in his November 1994 re-election attempt, and he applied for ordinary disability retirement benefits in December 1994 based on the effects of his 1984 transmetatarsal amputation; contrary to the petitioner County’s arguments on appeal, PERS (1) properly allocated the burden of proof to the County, which did not oppose the award until after PERS first granted it, (2) properly determined that the County had not met its burden of proving that the respondent did not qualify for ordinary disability retirement benefits, (3) did not improperly reject the credibility findings of the administrative law judge because its decision did not depend on the credibility of witnesses, and (4) properly rejected the ALJ’s conclusion that the respondent’s eligibility for retirement benefits ended when he lost the 1994 election.

CRIMINAL TRIALS
STATE v. TUCKER
Appellate Division, A-4772-03T4, December 29, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 19031

Convictions of felony murder, armed robbery, and a weapons offense reversed and remanded for a new trial; on the morning of the alleged date of the crimes, the defendant had accompanied the victim, who was his mother, to the bank while she obtained $3,000 in $100 bills, and the defendant had five $100 bills after the crimes; contrary to the defendant’s arguments on appeal, the verdict was not against the weight of the evidence, and evidence that he was unemployed and lacked access to $100 bills was “highly probative” and admissible; however, the trial court improperly admitted (1) evidence of the defendant’s $1,594 hospital debt, (2) evidence of the defendant’s post-arrest silence, which consisted of his failure to mention the bank visit during questioning at police headquarters, and (3) evidence of the defendant’s pre-arrest silence, which consisted of his failure to mention the bank visit to the officer who responded when the defendant reported his mother’s death; even if the evidence of the defendant’s pre-arrest silence was admissible, it was harmful error to admit the evidence of his post-arrest silence.

CRIMINAL TRIALS
STATE v. THOMPSON
Appellate Division, A-64-04T4, December 29, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 19030

Convictions of four CDS offenses and post-merger sentence of seven years in prison with three years of parole ineligibility affirmed; undercover police officers observed four CDS transactions involving the defendant and two co-defendants, who then entered an apartment in which they were the only men present and in which they were apprehended; contrary to the defendant’s arguments on appeal, (1) the trial court did not commit reversible error by refusing to issue jury instructions on identification and cross-racial identification during its original jury instructions, (2) the trial court made an “entirely neutral” and appropriate response to the jury’s note, which stated that the jury was deadlocked, by advising the jury that it was “normal” for there to be no agreement after 90 minutes and by ordering the jury to “continue deliberations,” (3) there was sufficient evidence for the jury to convict, and (4) the sentence was not excessive.

FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
DeMATTEO v. POLICE AND FIREMEN’S RETIREMENT SYSTEM
OAL Docket No. TYP 12121-04S, Agency Docket No. PFRS #3-10-31115, Initial Decision: October 20, 2005, Final Agency Decision: December 13, 2005. By Masin, ALJ. (20 pages).

The Board of Trustees of the Police and Firemen’s Retirement System rejected the administrative law judge’s initial decision that granted the petitioner senior corrections officer’s application for accidental disability retirement benefits. The officer was injured when a handcuffed inmate whom he was escorting “dipped his shoulder” and thrust the officer. Reasoning that there “clearly” was no violent physical attack, the Board disagreed with the ALJ’s conclusion that the officer had satisfied the requirement under Kane v. Board of Trustees, Police and Firemen’s Ret. Sys. that the injury was not induced by the stress or strain of the normal work effort. For the same reason, the Board disagreed with the ALJ’s conclusion that the officer had experienced “a great rush of force or uncontrollable power” under Kane, and the Board found further support for its position in the fact that the officer had been able to hold onto the inmate rather than let go when the inmate dipped forward.

PENSIONS AND BENEFITS
O’NEILL v. POLICE AND FIREMEN’S RETIREMENT SYSTEM
OAL Docket No. TYP 8595-04, Agency Docket No. PFRS #3-10-30762, Initial Decision: October 31, 2005, Final Agency Decision: December 13, 2005. By Martone, ALJ. (14 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the administrative law judge’s initial decision that denied the petitioner police officer’s application for accidental disability retirement benefits. The officer responded to a call about a burglary and assault in a residence, and he was injured when he fell off a log that he was using to cross a creek during an attempt to locate the suspect. Applying the three-part test of Kane v. Bd. of Trustees, PFRS, the ALJ concluded (1) that the officer’s injuries were not induced by the stress or strain of his normal work effort, (2) that the officer met involuntarily with the source of harm, but (3) that the shifting of the log that caused the officer to strike the log and land in the creek bed “with a hard impact” was not “a great rush of force or uncontrollable power.”


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