NEW JERSEY LAWYER

DAILY BRIEFING      10/20/2005


News Briefs

ETHICS GRIEVANTS MAY GO PUBLIC, SUPREME COURT SAYS
In a blow to lawyers, the New Jersey Supreme Court has declared unconstitutional a court rule that requires people who file ethics grievances to keep mum on the lawyer involved, the underlying matter and the performance of the attorney discipline system. In R.M. v. Supreme Court of New Jersey, Justice James R. Zazzali, writing for a unanimous court, said cases currently in the disciplinary system may be discussed publicly, but that closed cases are to remain confidential. The New Jersey State Bar Association had argued in favor of keeping grievances secret until they were found to have sufficient validity. (A full text of R.M., Facts-on-Call Order No. 92700, can be obtained from NJL Online or by calling 800-670-3370.) 10-19-05

JUDICIARY LIKELY TO HOLD LINE ON LAWYER REGISTRATION FEES
Attorney registration fees likely won’t be changed next year under the budget proposed by the state’s lawyer disciplinary system. The Disciplinary Oversight Committee’s proposed $9.4 million budget calls for a less than 1 percent increase from its 2005 budget. Committee members have told the New Jersey Supreme Court there’s no need to raise fees in 2006, but didn’t rule out increases in future years. Veteran lawyers now pay $182 in registration fees. 10-19-05

PASSAIC VICINAGE BECOMES MORE WELCOMING TO THE PUBLIC
Visitors to the Passaic County courthouse are now getting a helping hand courtesy of the judiciary. The vicinage has created and filled an ombudsman position responsible for providing information to the public, assisting visitors to the courthouse and conducting community outreach programs. Camden was the first to establish such a post nearly a decade ago. An Administrative Office of the Courts’ policy adopted in June calls for each vicinage to have the same slot. Passaic’s ombudsman is Renita McKinney, who most recently was a training coordinator and has worked as a financial specialist and administrative specialist in the courthouse there. 10-19-05

HEAVY CASELOADS HURT COMPANIES’ LEGAL BUDGET PLANNING
A flood of litigation is making it difficult for many corporations to get a handle on their legal costs, according to a recently released survey by Houston-based international law firm Fulbright & Jaworski. Nearly 90 percent of U.S. corporations are engaged in some sort of litigation, averaging 37 lawsuits, according to the survey of 354 corporate counsel departments. Some 40 percent of respondents said they’re unable to pre-determine those costs in relation to their overall budget, a computation that’s a given for most other key departments. Businesses’ concern and uncertainty about legal costs make it more important for outside counsel “to work harder with their clients to anticipate, budget and control costs,” says Fulbright & Jaworski’s litigation practice leader Stephen C. Dillard. 10-19-05

FED MISCUE LETS BAD DOCTORS GO UNNOTICED
Incompetent doctors are going undetected by regulators because of failures by the Department of Health and Human Services. The department has acknowledged it’s fallen short in enforcing a law requiring insurers and others paying medical malpractice awards against the government to report all such cases to a federal databank that transmits the information to state medical licensing boards. Daniel R. Levinson, the department’s new inspector general, said the databank from 1997 to 2004 failed to report 474 medical malpractice claim payments, depriving state boards of information in determining whether to grant, restrict or revoke doctors’ licenses. 10-19-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, OCTOBER 19, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, OCTOBER 19, 2005:

ATTORNEYS
R.M. v. SUPREME COURT OF NEW JERSEY
New Jersey Supreme Court, A-89, October 19, 2005. (41 pages). Facts-on-Call Order No. 92700

Rule 1:20-9, which mandates that an ethics grievance filed against an attorney remains confidential until a formal complaint is filed, violates the First Amendment because it is not narrowly tailored to serve a compelling interest. A grievant is now permitted to discuss publicly the fact that a grievance was filed, the contents of the grievance, and the result of the process. This holding applies retroactively to all grievances currently being processed in the attorney disciplinary system, but the confidentiality of matters that have concluded remains in effect. Chief Justice Poritz and Justice Zazzali wrote separate concurrences on the issue of immunity.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, OCTOBER 20, 2005.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, OCTOBER 19, 2005.

NOT APPROVED FOR PUBLICATION
PRODUCTS LIABILITY
SNELL v. BOSTROM PRODUCTS CO.
Appellate Division, A-4414-03T1, October 19, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18682

Involuntary dismissal of the plaintiff tractor-trailer driver’s products liability complaint at the close of his case affirmed; the plaintiff claimed that he was injured when his air seat “went flying” after he drove over uneven pavement; the plaintiff could not establish the two parts of the indeterminate product defect test (1) because, without knowing anything about the mechanics of the seat’s fore and aft isolator mechanism in relation to the way that the tractor had been used, a reasonable fact-finder could not conclude that the failure of the seat was an occurrence that ordinarily would happen due to a product defect and (2) because, even if the fact-finder could reach that conclusion, the plaintiff failed to demonstrate that the incident did not result solely from other likely causes; without the benefit of the indeterminate product defect test, the plaintiff needed expert testimony to explain to the jury what was defective about the seat; the trial court did not err by barring the testimony of the plaintiff’s expert after determining that the expert was unqualified and had provided a net opinion.

LAND USE
CANGIANO v. TOWNSHIP OF BERNARDS PLANNING BOARD
Appellate Division, A-6510-03T2, October 19, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18686

Dismissal of the plaintiff landowner’s complaint in lieu of prerogative writs that challenged the defendant Planning Board’s denial of his preliminary subdivision application affirmed for the reasons expressed by the trial court; the plaintiff’s 185.175 acres included “substantial wetlands”; the Board had denied the plaintiff’s application for failure to satisfy the provisions of the defendant Township’s zoning ordinance (1) concerning tree removal because he had not provided information regarding all necessary tree removal and (2) concerning an Environmental Impact Assessment because the plaintiff “seemed to minimize the environmental impact upon the wildlife” through his consultant’s “cursory” and unreliable investigation; the trial court properly concluded that the Board’s decision was not arbitrary, capricious, or unsupported by the record.

REAL PROPERTY
RAFTOGIANIS v. SCHMUCKLER
Appellate Division, A-1870-04T5, October 19, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18684

Dismissal of the plaintiff buyer ’s complaint for specific performance of a contract for the sale of residential property affirmed; when the buyer was unable to obtain a written mortgage commitment, the defendant sellers rejected his efforts to waive the mortgage contingency provision of the contract and canceled the contract; the mortgage contingency provision was clear, and the buyer was not able to satisfy the contingency; the buyer’s attempt to unilaterally waive the contingency ignored the provision’s plain language, which gave either party the right to terminate the contract if the mortgage commitment was not timely obtained; contrary to the buyer’s assertion, the sellers had the right to terminate the contract at the expiration of the mortgage contingency period, even though there was no time-of-the-essence provision.

HUSBAND AND WIFE
PENZA v. PENZA
Appellate Division, A-5460-03T3 and A-1239-04T3, October 19, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18683

Post-divorce-judgment orders that, among other things, disallowed the plaintiff ex-wife’s payment of expenses with the defendant ex-husband’s 401(k) proceeds and that governed the release of funds held in escrow by the ex-wife’s attorney after the sale of the marital home affirmed; the amount held in escrow represented the ex-husband’s share of the disallowed payments from the 401(k); one order originally provided for the escrowed funds to be released to the ex-husband if the ex-wife did not timely appeal; the trial court amended that order the next day to reduce the amount to be held in escrow; the provision in the amended order that the escrowed amount should be released to the ex-wife if she did not appeal was error because the escrowed funds represented money that belonged to the ex-husband; the escrowed funds therefore had to be distributed to the ex-husband within 30 days.

PARENT AND CHILD
TAYLOR v. TAYLOR
Appellate Division, A-2333-04T2, October 19, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18685

Portion of the parties’ final judgment of divorce that granted the plaintiff ex-husband unsupervised overnight parenting time with the parties’ 8-year-old daughter affirmed; the Family Part properly exercised its discretion by not requiring expert testimony on the parenting time issue, and the parties had sufficient time to retain their own experts before the trial began if they chose to do so; as to the merits, the Family Part properly concluded (1) that the defendant ex-wife’s fear of her ex-husband having unsupervised parenting time was “unsubstantiated,” (2) that there was “insufficient proof of any improper sexual touching or improper sexual contact,” (3) that there was no credible evidence that the ex-husband had caused any physical or emotional harm to the daughter or that he was unfit, and (4) that the ex-wife was “unhappy” with the ex-husband’s parenting style but that there was no showing that his style caused any physical or emotional harm to the daughter.

DRUNK DRIVING
STATE v. CORBOSIERO
Appellate Division, A-2110-04T1, October 18, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18678

Conviction of driving while intoxicated after a trial de novo in the Law Division affirmed; a police officer on routine patrol at 2:30 a.m. observed the defendant’s motor vehicle parked with its engine and its lights on in the parking lot of a store that had closed at 9 p.m.; the officer approached the vehicle because he was concerned about the intentions and the well-being of its occupants; the defendant was unable to produce a driver’s license, and the officer’s observations led him to conduct field sobriety tests, which resulted in the defendant’s arrest; contrary to the defendant’s argument on appeal, the Law Division did not err by denying his motion to suppress evidence of his intoxication because the officer was acting within the scope of his community care-taking function when he approached the defendant’s vehicle.

CRIMINAL TRIALS
STATE v. ACKERMAN
Appellate Division, A-759-04T2, October 18, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18679

Conviction entered in the Law Division following the defendant’s unconditional guilty plea in the Municipal Court to driving while intoxicated and following a trial de novo affirmed; after a motor vehicle chase on July 21, 2001, the defendant was charged in the municipality with the indictable offense of eluding and with seven motor vehicle offenses, including DWI and reckless driving; the eluding and reckless driving charges were dismissed on March 9, 2004 after the defendant completed the Pretrial Intervention Program; the prosecution of the remaining charges in the Municipal Court was adjourned at the defendant’s request on October 15, 2003 and, after several adjournments at the State’s request, led to the defendant’s unconditional plea to DWI on May 19, 2004 and the merger and dismissal of the other charges; contrary to the defendant’s arguments on appeal, (1) she waived her right to assert a speedy trial claim when she entered an unconditional plea, and, even if the claim was addressed on the merits, her speedy trial rights were not violated and (2) jeopardy did not attach to the eluding charge, and, even if it did, her prosecution in the Municipal Court was not barred by constitutional double jeopardy principles.

TORT CLAIMS ACT
BROWN v. NEW JERSEY TRANSIT CORP.
Law Division, Atlantic and Cape May Counties, ATL-L-1196-05, October 7, 2005, released October 12, 2005, not approved for publication. By Higbee, P.J. (4 pages). Facts-on-Call Order No. 18681

Unopposed motion for summary judgment by the defendant New Jersey Transit Corporation based on the Tort Claims Act verbal threshold granted in an action for injuries suffered by the plaintiff bus passenger; the passenger allegedly sustained injuries to his head, neck, back, and right knee when the bus on which he was riding collided with an automobile; the passenger did not produce objective evidence of a permanent injury as required by the Tort Claims Act; although the passenger saw two doctors on three separate occasions after the accident, the medical reports he supplied were based solely on physical examinations, and he did not supply objective medical evidence such as X-rays or MRI results.


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Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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