NEW JERSEY LAWYER

DAILY BRIEFING      10/19/2005


News Briefs

MANDATORY COUNSEL FOR INDIGENT PARENTS CASE BEFORE HIGH COURT
In a matter with potential mandatory pro bono implications, the New Jersey Supreme Court next Monday hears arguments in Pasqua v. Council, which deals with whether indigent parents have a constitutional right to counsel in child support proceedings against them. The New Jersey State Bar Association and Legal Services of New Jersey in separate amicus filings argue such representation should not be made mandatory pro bono. While Legal Services said parents have a constitutional right to the representation, the Bar Association did not address constitutionality. The Appellate Division reversed a trial court ruling that such parents have a right to representation. 10-18-05

LEGAL SERVICES NEW JERSEY LAUNCHING CALL FOR ACTION
The recent findings that legal help is not available to many of the poor nationwide and in New Jersey prompted a quick response from Legal Services of New Jersey. The group’s president, Melville D. Miller, says the organization soon will issue an updated report on services here and a “call for action.” Just 16 percent of low-income people in New Jersey and 20 percent nationwide are getting legal help when they need it, according to a report from the national Legal Services Corp. in Washington. “This is a shameful denial of our national promise of equal justice for all,” Miller said. 10-18-05

NJ PUSHED FOR SUPREME COURT RULING ON DETERMINING RETARDATION
The U.S. Supreme Court’s ruling this week that death row inmates do not automatically have a right to trial to determine if they’re mentally retarded and therefore ineligible for execution was urged by 15 states, including New Jersey. In Schriro v. Smith, the Supreme Court ruled for the state of Arizona in finding no constitutional basis for requiring a jury, rather than a judge, to determine whether a defendant is retarded. The U.S. Supreme Court in 2002 ruled it’s unconstitutional to execute a murderer who is mentally retarded, but left it up to states to develop procedures for determining retardation. The New Jersey Supreme Court will hear arguments soon in State v. Jimenez, which involves the prosecutor’s burden of proof for disproving a claim of mental retardation in a capital murder case from Morris County. 10-18-05

ABA PENNING BOOK ON LAWYER ‘BOOBY TRAPS’ IN BANKRUPTCY LAW
The new bankruptcy statute that took full effect this week has so many possible pitfalls for debtors’ attorneys that the American Bar Association is writing a book on the topic. Corinne Cooper, professor emerita at the University of Missouri-Kansas City School of Law, who is working with the ABA on the project, said she found all sorts of “booby traps” for lawyers while researching the 500-page law and speculated lawyers will encounter even more as they work with it. While the law’s most obvious new implication on debtors’ lawyers is making them liable for the accuracy of clients’ petitions, Cooper notes it also has many vague areas, such as requiring attorneys to tell clients to value their assets at replacement value, which may not be actual value. 10-18-05

IN-HOUSE COUNSEL CRACKING THE WHIP ON OUTSIDE FIRMS
In-house counsel are more controlling in their management of outside counsel and are more likely to fire them for not meeting expectations, reports the Association of Corporate Counsel. The average percentage of matters for which in-house counsel require outside attorneys to submit budgets increased to 56.4 percent in 2004 from 37.5 percent in 2001. In addition, slightly more than 50 percent terminated outside firms last year for issues that included lack of responsiveness and over-billing, according to the association’s survey of 2,000 in-house counsel. The report further found in-house law departments are making greater use of technology to oversee outside counsel’s work as 16.7 percent now use internet-based management systems and another 31.2 percent plan to implement such systems. 10-18-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, OCTOBER 18, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, OCTOBER 18, 2005.

THE SUPREME COURT has announced that it will release an opinion in R.M. v. SUPREME COURT OF NEW JERSEY, A-89, on October 19, 2005. The issue on appeal in R.M. addresses whether Rule 1:20-9 — which requires that attorney discipline records and related materials be kept confidential until a formal complaint is filed and served — is an unconstitutional violation of the appellant’s rights to free speech.



APPROVED FOR PUBLICATION
INSURANCE
NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PA v. JEFFERS
Appellate Division, A-2053-04T1, approved for publication October 18, 2005. (12 pages). Facts-on-Call Order No. 92698

The Appellate Division reversed summary judgment for the plaintiff insurer that declared that the defendant Pennsylvania resident was not entitled to the $1 million UM and UIM limits under the commercial auto policy that the plaintiff issued to the defendant’s employer in New Jersey. The plaintiff’s step-down clause provided that the limits of the plaintiff’s policy would be reduced if the defendant was not a named insured under the plaintiff’s policy and was insured by a policy providing similar coverage that had lower limits than those of the plaintiff’s policy. The defendant’s personal policy had UIM limits of $15,000/$30,000, but the coverages were not similar because the defendant’s personal policy provided excess coverage, and the plaintiff’s policy provided gap coverage.

ENVIRONMENTAL LAW
B&J REALTY, L.L.C. v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
Appellate Division, A-1931-03T5, approved for publication October 18, 2005. (16 pages). Facts-on-Call Order No. 92699
The Department of Environmental Protection’s refusal to refer its determination of jurisdiction under the Coastal Area Facility Review Act to the Office of Administrative Law as a contested case had to be reversed because the appellant raised a bona fide dispute about a material fact — the location of the mean high water line — that would be dispositive of jurisdiction.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
BRICE v. RENGA
Appellate Division, A-6064-03T1, October 18, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18673

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the motion court had concluded that the plaintiff failed to provide objective evidence of a permanent injury; the certification of the plaintiff’s neurologist regarding the plaintiff’s post-traumatic vestibular dysfunction did not satisfy the verbal threshold because, in the absence of any positive findings from the plaintiff’s neurological examinations, the certification “essentially” was based on the plaintiff’s subjective complaints; the plaintiff’s claim also failed based on the statutory definition of “permanent”; the plaintiff’s argument that the motion court erred by concluding that her evidence of muscle spasm was insufficient to satisfy the verbal threshold lacked merit.

WORKERS’ COMPENSATION
TIGHE v. JACK TREBOUR MOTORCYCLES, LLC
Appellate Division, A-205-04T5, October 18, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18676

Division of Workers’ Compensation judgment that granted benefits to the petitioner motorcycle technician reversed; the respondent employer loaned the petitioner a motorcycle to use in a promotional motorcycle ride that the employer conducted on a Sunday; on the morning of the ride, the petitioner traveled at least two miles past his employer’s premises to meet a co-worker who also was participating in the ride; the petitioner was injured in an accident on the way back to the employer’s premises; based on Jumpp v. City of Ventnor, the petitioner’s trip to meet his co-worker was a personal activity, and the petitioner therefore was not “engaged in the direct performance of duties assigned or directed by the employer” under N.J.S.A. 34:15-36 at the time of his accident.

CIVIL PROCEDURE
PINERA v. COUNTY OF BERGEN
Appellate Division, A-2781-04T3, October 18, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18675

Dismissal of the plaintiff’s action in lieu of prerogative writs — which asserted that the defendant Bergen County had improperly exercised its first option under a contract for the operation and management of the County-owned riding center and that it therefore could not exercise the second option because the contract had terminated — affirmed; the plaintiff’s claim accrued on January 1, 2004, which was when the first option term began, and she had 45 days within which to file her prerogative writs action; however, the plaintiff did not file her action until December 10, 2004; although the 45-day time period may be relaxed under Rule 4:69-6(c), the public interest in rebidding the contract was not “sufficiently strong” to require relaxation in this case.

JURISDICTION
HALLOWELL v. BLUE HAVEN POOLS NATIONAL, INC.
Appellate Division, A-3266-04T2, October 18, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18674

Dismissal of the plaintiff’s complaint for lack of jurisdiction affirmed; the complaint alleged breach of contract and violation of the Consumer Fraud Act in connection with the construction of her swimming pool; the trial court had concluded that the New Jersey courts lacked jurisdiction because the parties’ contract required that disputes be resolved through arbitration or in the Pennsylvania courts and because the plaintiff had failed to demonstrate sufficient contacts with New Jersey to support personal jurisdiction; although it had “serious concerns” about the enforceability of the arbitration clause in light of the plaintiff’s consumer fraud claim, the forum selection clause was separately enforceable and supported the trial court’s dismissal; the enforcement of the forum selection clause rendered moot the question of whether New Jersey courts had personal jurisdiction over the defendants.

DRUNK DRIVING
STATE v. KRAMER
Appellate Division, A-1011-04T2, October 18, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18677

Law Division order that was entered on appeal from the Municipal Court following a guilty plea to driving while intoxicated and that held in part that the warrantless search of the defendant’s garage was justified under the emergency aid exception affirmed; the police learned that a vehicle was being driven erratically without headlights and against traffic and that it was registered to the 76-year-old defendant; the police then followed the vehicle into the defendant’s garage, believing that she was experiencing difficulty driving at night, that she had a medical problem, or that she was intoxicated; after the police detected an odor of alcohol on the defendant’s breath and she admitted to drinking alcohol earlier that evening, she was arrested and removed from her vehicle; the Appellate Division rejected the defendant’s arguments (1) that affirming the Law Division’s order would permit the police to follow any erratic driver into his garage and (2) that the police needed only to shout into her garage to determine her condition.

EMPLOYMENT DISCRIMINATION
IN RE LoSTOCCO
Appellate Division, A-702-03T5, October 17, 2005, not approved for publication. (20 pages). Facts-on-Call Order No. 18671

Final decision of the Merit System Board affirmed in an action alleging that the appellant employee of the Department of Law and Public Safety was exposed to employment discrimination and a course of retaliatory conduct based on a perceived disability after she underwent surgery for two cerebral aneurysms; the Board upheld the conclusion of the Department that the employee had not presented sufficient evidence to support a finding that she had been subject to a violation of the New Jersey State Policy Prohibiting Discrimination, Harassment or Hostile Environments in the Workplace; the Board exercised “sound judgment” in declining to grant the employee a hearing because the factual disputes she alleged either were not material or were not actually factual disputes; the Board’s decision was supported by substantial credible evidence, including the details of the Department’s investigation.

PARENT AND CHILD
CUMMINGS v. AMES
Appellate Division, A-3254-04T2, October 17, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 18672

Post-divorce-judgment orders concerning the conditions of the defendant mother’s visitation with the parties’ children affirmed, but the matter remanded for a plenary hearing; among the conditions that the original judge specified in the divorce judgment was that the mother’s visitation would occur in the presence of a professional; a second judge later entered orders that both temporarily and partially relaxed the supervisory conditions and then restored those conditions after the mother did not timely submit to court-ordered drug testing; the second judge submitted a letter pursuant to Rule 2:5-1(b) to explain the proceedings he presided over; under the circumstances, there was no basis to reverse or reconsider the orders appealed from; instead, a plenary hearing was “the appropriate course,” even though the Appellate Division found no error or abuse of discretion by the second judge.

CIVIL ACTIONS
GROW CO., INC. v. CHOKSHI
Chancery Division, Bergen County, BER-C-280-05, October 7, 2005, not approved for publication. By Doyne, J. (13 pages). Facts-on-Call Order No. 18670

Request for interim relief by the plaintiff nutritional supplement manufacturer denied in an action alleging misappropriation of trade secrets, unfair competition, conversion, and civil conspiracy; the defendant chemist had worked for the manufacturer between 1979 and 1991, had signed an agreement in 1982 to safeguard the manufacturer’s proprietary processes, and had begun working for the defendant competitor in 2000; the manufacturer was not entitled to interim relief because it did not sufficiently demonstrate a reasonable probability of success on the merits of its claims; the manufacturer’s request was “fatally defective” due to its failure to provide “crucial” details because it did not sufficiently define the manufacturer’s “trade secrets” and because it did not adequately show that the defendants had used the manufacturer’s trade secrets in their patents; thus, the trial court could not determine whether the manufacturer’s process constituted a “trade secret” or whether the chemist had disclosed “trade secrets” to the competition.


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