NEW JERSEY LAWYER

DAILY BRIEFING      10/24/2005


News Briefs

GOVERNOR CANDIDATES CLASH ON KEY LEGAL ISSUES
The gubernatorial candidates sharply disagree on issues significant to the practice of law. Republican Douglas R. Forrester wants caps on medical malpractice damage awards, likes the death penalty and prefers judges who’ll show restraint in interpreting laws; Democrat Jon S. Corzine wants no part of lawsuit limits, opposes capital punishment and hails what some might call an activist Supreme Court. For a full report including unedited texts of the candidates’ responses to a series of questions, see the Oct. 24 New Jersey Lawyer. 10-21-05

STATE BAR SEEKS ROLE IN INSURANCE FRAUD PREVENTION ACT CASE
The New Jersey State Bar Association has filed to participate as an amicus in Liberty Mutual Insurance Company v. Land, a case pending before the New Jersey Supreme Court that concerns the proper burden of proof to be applied to civil proceedings under the Insurance Fraud Prevention Act. In the case, Liberty Mutual sought to void a homeowner insurance policy issued to the defendants after they purposely caused additional damage to a cabin for which a claim already had been filed for damage from a tree. The State Bar agrees with the Appellate Division ruling holding insurers suing under the statute must prove their case under a standard of clear-and-convincing evidence. 10-21-05

EX-MUNICIPAL JUDGE CENSURED FOR CONFLICT, SARCASTIC REMARKS
The New Jersey Supreme Court has censured former Judge David A. Saltman of the municipal courts of Pennington and West Windsor. Saltman agreed to represent a couple involved in a car accident in one of the towns where he presided. According to the Advisory Committee on Judicial Conduct (ACJC), he then took a plea from and sentenced the driver who would have been the defendant in a civil action stemming from the accident. He also was cited for a pattern of improper remarks by making sarcastic and discourteous comments to defendants in two cases before him after the ACJC previously admonished him for such conduct. 10-21-05

N.J. SUPREME COURT TO HEAR CRIMINAL-STOP AND DYFS CASES
The New Jersey Supreme Court has decided to review cases dealing with criminal stops and with the Division of Youth and Family Services (DYFS). In State v. Crawley, the issue is whether someone police officers stop, in response to an anonymous tip about criminal activity, and request to answer questions because he matches the description the tipster provided, can be found guilty of obstruction for running away. And in New Jersey Division of Youth and Family Services v. S.S., the question is whether DYFS or the courts have the duty to ensure siblings maintain contact after adoption. 10-21-05

BAR FOUNDATION CONSIDERS MOCK TRIAL SCHEDULING OPTIONS
New Jersey State Bar Foundation trustees on Thursday will decide what to do about the National High School Mock Trial Championship’s governing board’s refusal to shift the event’s competition schedule. New Jersey pleaded for years with the organization to change to a weekday schedule to accommodate students whose religious beliefs prohibit them from participating on Saturdays. The issue came to a head in May when New Jersey’s winner, Torah Academy of Bergen County, competed on a compromise Thursday-Friday schedule. The national directors have since said there would be no more such schedule changes. John J. Henschel, president of the State Bar Foundation, said a committee of the foundation will formulate various alternatives, including pulling out of the national competition. 10-21-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, OCTOBER 21, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, OCTOBER 21, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, OCTOBER 24, 2005.


APPROVED FOR PUBLICATION
PUBLIC RECORDS
BENT v. TOWNSHIP OF STAFFORD POLICE DEPARTMENT
Appellate Division, A-1456-04T1, approved for publication October 21, 2005. (12 pages). Facts-on-Call Order No. 92704

The Government Records Council properly dismissed the complainant’s “denial of access complaint” after finding that the request for information about a 1992 criminal investigation of him was not a proper request for “public records” under the Open Public Records Act. The complainant actually sought the custodian’s response to his allegations of police misconduct, but that was an open-ended demand that required analysis and evaluation that the public agency was under no obligation to provide and was not a request for specific document disclosure under OPRA.

DISCOVERY
STATE v. CLARK
Appellate Division, A-789-05T1, approved for publication October 21, 2005. (17 pages). Facts-on-Call Order No. 92705

In a prosecution for tampering with public records and falsifying or tampering with records, the State was entitled to subpoena the statements that the three defendants — one of whom was a retired Municipal Court judge — made to the Advisory Commission on Judicial Conduct, despite the confidentiality provisions of Rule 2:15-20.

NOT APPROVED FOR PUBLICATION
SANCTIONS
METROPOLITAN MEDICAL ASSOCIATES v. LEGAL CENTER FOR DEFENSE OF LIFE, INC.
Appellate Division, A-1246-04T3, October 21, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18697

Denial of the defendant public-interest law firm’s application for sanctions against the plaintiff medical clinic under N.J.S.A. 2A:15-49.1 and Rule 1:4-8 for frivolous litigation reversed and remanded; the clinic performed abortions, and its complaint sought an order to create a buffer zone around the entrance to the clinic where protestors could not encroach; the law firm contended that it was not responsible for organizing protests at the clinic and that sanctions were appropriate because the clinic failed to inform the trial court about earlier litigation in federal court that had denied the request for a buffer zone; the trial court dismissed the complaint, finding that it should have been brought in federal court; remand on the denial of sanctions was required because the trial court did not sufficiently analyze or apply the relevant legal principles to permit meaningful review.

INSURANCE
CHIROMED21, INC. v. OHIO CASUALTY GROUP
Appellate Division, A-1865-04T2, October 21, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18698

Trial court’s determination on remand in an action by the plaintiff chiropractor for personal injury protection benefits that continuing treatment of the defendant insurer’s insured beyond November 21, 2000 was not necessary and that he had reached his point of maximum benefit on that date reversed and remanded for more complete findings of fact and conclusions of law; the Appellate Division had found that the trial court’s initial decision was based solely on a finding that the treatments did not contribute to a cure of the insured’s medical condition, which was not the correct test, and it had remanded the matter for a more complete statement of reasons; the trial court’s opinion on remand still did not mention the relevant statutes — N.J.S.A. 39:6A-4 and N.J.S.A. 39:6A-2(e) — or the relevant case law that addresses when palliative care is “medically reasonable, necessary, and compensable”; the trial court’s opinion on remand did not meet the requirements of Rule 1:7-4, which provides that a trial court in a non-jury trial must make findings of fact and conclusions of law.

LANDLORD AND TENANT
ELIAS v. BERRY
Appellate Division, A-5760-02T1, October 21, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18695

Appeal from a judgment of possession for the plaintiff landlord dismissed as moot; the parties had entered into a one-year lease that expired on March 31, 2003, the landlord sent the defendant tenants a “Cease and Desist Demand” on January 27, 2003, the landlord filed his complaint for possession on April 4, 2003, the judgment was entered on May 15, 2003, and the tenants left the premises on July 16, 2003; although the tenants correctly argued that the trial court lacked jurisdiction to hear the complaint because the landlord had not issued the notice to quit required by the Anti-Eviction Act, the Appellate Division was unable to grant them relief because possession of the premises is the only remedy available to an aggrieved tenant in a summary dispossess action, because the tenants had left the premises more than two years ago, and because the premises presumably were now occupied by an innocent third party.

DOMESTIC VIOLENCE
ENTRESS v. ENTRESS
Appellate Division, A-6425-03T5, October 21, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18696

Family Part orders (1) that dismissed the plaintiff ex-wife’s domestic violence complaint against the defendant ex-husband after a final hearing and (2) that denied the ex-wife’s post-hearing motion for recusal of the trial judge affirmed; the ex-wife alleged that the ex-husband had threatened to kill her and had pushed her in the breast three times; the final hearing on the complaint was conducted by the same Family Part judge who had heard the parties’ post-divorce-judgment disputes about custody and other issues; the judge’s findings and conclusions were supported by the record, and he did not abuse his discretion by denying the ex-wife’s belated request for recusal because he had noted that it was not unusual for Family Part judges to hear multiple cases involving the same family members, that he had no predisposition toward a ruling in this case, and that he had not prejudged the case; however, future matters involving the parties should be heard by a different judge.

DOMESTIC VIOLENCE
STINSON v. STINSON
Appellate Division, A-1946-04T1, October 20, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18694

Final domestic violence restraining order against the defendant husband affirmed; the evidence supported the trial court’s finding that the husband committed a simple assault against the plaintiff wife in October 2004 that constituted an act of domestic violence; contrary to the husband’s arguments on appeal, (1) the trial court’s findings were based solely on the October 2004 incident, and evidence of three prior incidents of domestic violence merely served to “create a more complete picture” of the parties’ relationship, and (2) the husband’s act in October 2004 of grabbing the wife’s arms and shaking her with sufficient force to leave red marks and bruises satisfied the mental state and level of bodily injury required for a simple assault.

PARENT AND CHILD
MILLS v. MILLS
Appellate Division, A-1764-04T3, October 20, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18693

Denial of the daughter’s motion to intervene in the post-divorce-judgment litigation between her parents to compel the defendant father to contribute toward the daughter’s college expenses reversed; a 2001 consent order increased the father’s child support obligation but provided that he had “no further obligation” to contribute toward the daughter’s college education; the plaintiff mother did not appeal a 2004 order that, based on the consent order, denied her motion to require the father to contribute toward the daughter’s college expenses; the daughter satisfied the four requirements for intervention as a matter of right under Rule 4:33-1 because, as to the first three requirements, there was “little doubt” that they were satisfied and because, as to the fourth requirement, the parties could not and did not adequately represent the daughter’s interests.

PUBLIC CONTRACTS
NICOSIA & SONS CONSTRUCTION CO., INC. v. BOROUGH OF PARK RIDGE
Chancery Division, Bergen County, BER-C-290-05, October 7, 2005, not approved for publication. By Doyne, J. (6 pages). Facts-on-Call Order No. 18680

Action arising from a public contract to build a police station dismissed without prejudice; the defendant Borough made no payments on the plaintiff construction company’s applications; pursuant to the Local Public Contracts Law, unresolved disputes about the contract were to be submitted to mediation and binding arbitration; the Chancery Division determined (1) that there was no dispute that the contract provided for alternative dispute resolution, (2) that it was “clear” that the Borough did not fail to comply with a demand for ADR, (3) that the company’s action to compel ADR was properly before the court, (4) that the amount owed on the contract was not “undisputed,” (5) that the only issue that could be disposed of summarily was that ADR must proceed in the manner specified in the contract, (6) that only an order to show cause related to the company’s original complaint to compel ADR was before the court, and (7) that the additional relief that the company sought in its amended complaint was not cognizable and that, even if it was cognizable, it was appropriate only to direct the parties to proceed to ADR.


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