NEW JERSEY LAWYER

DAILY BRIEFING      11/21/2005


News Briefs

FORMER UNION COUNTY BAR PRESIDENT ADMITS LYING TO CLIENT
Michael B. Blacker, a past president of the Union County Bar Association and the municipal prosecutor in Scotch Plains, has admitted lying to a client for nearly a year when he told her he had filed her divorce case and that it would soon be resolved. The Disciplinary Review Board is determining whether he should be sanctioned. The woman eventually called the county clerk’s office to ask about her case and discovered it had never been filed. 11-18-05

EARLY SCUTTLEBUTT ON CORZINE’S AG INCLUDES THREE PROS
Three lawyers — Zulima V. Farber, Angelo J. Genova and W. Michael Murphy Jr. — are said to be on Gov.-elect Jon S. Corzine’s radar screen as New Jersey’s next attorney general. All have solid Democratic Party credentials and lengthy experience in the inner workings of government, law and politics. While it could be weeks before Corzine identifies his pick for the most-prestigious and powerful post in his new administration, discussions with various insiders strongly suggest Murphy, Genova and Farber are likely to be considered. A full story is in the Nov. 21 New Jersey Lawyer. 11-18-05

NJ JUSTICES TAKE CEPA CASE
The New Jersey Supreme Court has granted certification in Oliveri v. Y.M.F. Carpet, a case involving an evidentiary question in a Conscientious Employee Protection Act matter. The issue is whether a prior ruling of the state unemployment division that the employee was terminated is entitled to preclusive effect in the employee’s subsequent action alleging a whistleblower violation so that the employer could not claim she left her job voluntarily. The Appellate Division ruled the defendant should have been allowed to argue at trial that the worker left her employment for reasons other than being terminated. The plaintiff is alleging she was fired for refusing to falsify documents and testify falsely in another matter. 11-18-05

JUDICIARY TELLS CONGRESS IT NEEDS 68 NEW JUDGES (NJ INCLUDED)
As it has in the past, the federal judiciary again is pressing the Senate Subcommittee on Administrative Oversight and the Courts to approve the creation of 68 new judgeships — 12 for the courts of appeal and 56 for district courts, including one for New Jersey. The New Jersey judgeship would be characterized as “temporary,” meaning that if a vacancy develops in a set number of years, it would not be filled. District courts in California and Florida would get the highest number of positions under the proposal. The 3rd U.S. Circuit Court of Appeals would not be getting a new judgeship under the recommendation forwarded to Congress. U.S. District Judge Royal Furgeson of San Antonio, speaking for the judiciary, said more judges are needed because of case load increases and expanding federal court jurisdiction. 11-18-05

FLORIDA MUZZLES PIT BULL ATTORNEYS
It’s bad enough when people take shots at the image of attorneys, but lawyers themselves doing it? Here’s one that boggles the mind. The Florida Supreme Court has reprimanded two lawyers whose television commercial featured a logo containing the image of a pit bull wearing a spiked collar and the phone number 1-800-PIT-BULL. The court ordered John R. Pape and Marc A. Chandler of Fort Lauderdale to attend a workshop on attorney advertising regulations. Chief Justice Barbara Pariente wrote the ad violates rules on advertising, misleads the public and demeans the legal profession. She wrote pit bulls are known for savage behavior, adding the court couldn’t condone an ad implying lawyers would “get results through combative and vicious tactics that will maim, scar or harm the opposing party.” Pariente, in the unanimous opinion for the court, said that if the justices approved the ad, “images of sharks, wolves, crocodiles and piranhas could follow.” 11-18-05



Today's Decision Summaries

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

THE SUPREME COURT has announced that it will release an opinion in MOUNT LAUREL TOWNSHIP v. STANLEY, A-103/104, on November 21, 2005. The issue on appeal in Mount Laurel Township addresses whether the date of valuation in a condemnation action to construct affordable housing under the Mount Laurel doctrine is the 1997 date when the property was included in a judgment of repose or the 2002 date when the condemnation complaint was filed.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, NOVEMBER 18, 2005.

NOT APPROVED FOR PUBLICATION
PREMISES LIABILITY
DEY v. MARINO
Appellate Division, A-3845-03T5, November 18, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18844

Summary judgment for the defendant homeowner reversed and remanded in a negligence action filed after a tree on the defendant’s property fell on the plaintiff’s car; the defendant bought his home on July 5, 2001 and moved in on August 1, 2001, and the tree fell on November 9, 2001; the defendant argued that the tree was alive and had leaves on it before it fell, but the plaintiff argued that the tree was dead and was so deteriorated that it had no live wood; summary judgment was improper because the jury had to decide the issues of whether the tree was in a dangerous condition before it fell and, if it was, whether the defendant should have discovered that dangerous condition through the exercise of reasonable care.

EMPLOYMENT LAW
BOLELLA v. BASF
Appellate Division, A-6919-03T5, November 18, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18846

Summary judgment for the defendant employer, the defendant manufacturer, and the individual defendants in an action alleging wrongful termination in violation of the Conscientious Employee Protection Act affirmed; after the employer acquired the manufacturer, the plaintiff employee participated in an internal audit that revealed environmental law violations by the manufacturer; the plaintiff later was terminated for unprofessional conduct following an investigation that revealed “various acts of inappropriate behavior”; the plaintiff failed to establish a prima facie claim under CEPA (1) because his unsolicited statement to his supervisor that he would not “lie for the company” in connection with the audit was not a threatened whistleblowing activity under the circumstances and (2) because, even if the plaintiff’s acts qualified as a protected activity, he had not established a causal connection between that protected activity and his termination.

PUBLIC EMPLOYEES
STREHLE v. WHELAN
Appellate Division, A-5817-03T2, November 18, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18845

Summary judgment for the defendant City and its officials affirmed in the plaintiff widow’s action arising from the decedent police officer’s suicide following his positive test for marijuana in a random drug test at work; contrary to the widow’s arguments on appeal, she had no viable claims (1) for intentional infliction of emotional distress because a reasonable juror could not conclude that the City had engaged in extreme and outrageous conduct, even though it had administered random drug tests in violation of its ordinance, because it was implementing the Attorney General’s policy that permitted random tests, (2) for violation of the officer’s procedural due process rights under the New Jersey Constitution, (3) for substantive due process violations arising from a deprivation of the officer’s property right in continued employment and from improper administration of the drug test, (4) for disability discrimination in violation of the Law Against Discrimination because there was no evidence that the officer had been subjected to a random drug test due to the fact that he was on disability when he was called in for the test, and (5) for violation of the ordinance and for prima facie tort.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF R.L.D.
Appellate Division, A-1588-02T2, November 18, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18847

Order continuing the appellant’s involuntary commitment to the Special Treatment Unit as a sexually violent predator under the Sexually Violent Predator Act affirmed; the appellant “brushed past” a female guard and then went on a hunger strike after she accused him of touching her with sexual intent; the trial court was presented with “good faith disagreements” among the experts about the state of the appellant’s progress in his treatment, and the trial court was “uniquely vouchsafed” with the role of determining that the State’s evidence was more credible than the appellant’s evidence; there was no merit to the appellant’s assertion that the trial court’s decision was based on inadmissible hearsay or that the trial court sought to “punish” him for overreacting to the incident with the female officer; the record was sufficient to support the trial court’s decision to continue the appellant’s commitment, and there was no abuse of discretion.

ADMINISTRATIVE LAW
JOHN P. TWINING BLASTING v. NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
Appellate Division, A-1428-04T1, November 17, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18841

Final decision of the Commissioner of Labor and Workforce Development that imposed $50,000 in fines on the appellant blasting company and its owner for violating the Explosives Act and the regulations adopted to implement the Act vacated and remanded; the violations occurred when a rock broke the windshield of a motor vehicle that was driving near a blasting operation and when the owner drove a company pickup truck that was carrying blasting agent to go fishing; the Commissioner rejected the administrative law judge’s initial decision, which imposed a total of $2,500 in fines; the record was inadequate for informed appellate review because the hearing before the ALJ was not transcribed; also, the Commissioner had misconceived “the role of the ALJ in the administrative process”; the ALJ did not have to defer to the agency’s recommended penalties, but the Commissioner had to defer to the ALJ’s initial decision to the extent that it was based on credibility findings as to lay witnesses.

PUBLIC EMPLOYEES
LEVY v. CITY OF ATLANTIC CITY
Appellate Division, A-554-04T2, November 17, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18839

Summary judgment for the plaintiff Superintendent and Chief of the defendant City’s Beach Patrol affirmed in an action for a declaratory judgment and in lieu of prerogative writs challenging the City Solicitor’s exclusion of winter earnings from the calculation of a lifeguard’s salary for the purposes of a Lifeguard Pension, which is established pursuant to N.J.S.A. 43:13-23, et seq.; during the winter, several lifeguards work in the Beach Patrol’s boatyard unit repairing and maintaining rescue equipment; the trial court’s conclusion — that the winter service was service “as an officer or a guard” by a “member of the lifeguard force” within the meaning of N.J.S.A. 43:13-24 — was supported (1) by the job titles listed in the City Code, which recognize that lifeguards work in the boatyard, and (2) by the City’s traditional practice of using lifeguards to perform repair and maintenance work; nothing in the statutes limits creditable salary to salary that is earned during the summer bathing season.

HUSBAND AND WIFE
HURLEY v. HURLEY
Appellate Division, A-2779-03T1 and A-3242-03T1, November 17, 2005, not approved for publication. (27 pages). Facts-on-Call Order No. 18840

Post-divorce-judgment order that terminated the plaintiff ex-husband’s alimony obligation and vacated more than $130,000 in alimony arrears affirmed in part, reversed in part, and remanded; as to the obligation, the motion judge correctly determined that the ex-husband had established a prima facie case of changed circumstances due to a decrease in income and assets, but she erred by imputing $52,500 in annual income to the defendant ex-wife, by not giving sufficient weight to the marital lifestyle, and by not determining how much money the ex-wife needed to maintain that lifestyle; as to the arrears, the record did not support vacation of the arrears in total because the ex-husband maintained bank accounts of more than $1 million, because his gross income in 2002 exceeded $860,000, and because he had intentionally withheld alimony during an extended period of time when he had the means to make payments.

PARENT AND CHILD
WERNER v. WERNER
Appellate Division, A-2659-04T2, November 17, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18842

Post-divorce-judgment order that denied the defendant ex-husband’s motion to reduce his child support obligation, that enforced an escalation clause in the parties’ property settlement agreement, that required him to contribute toward his child’s braces, and that denied his request for discovery affirmed; the ex-husband was an attorney who had represented himself in negotiating the PSA, and he was estopped from obtaining a reduction to his obligation by asserting that it was too high when it was established by the PSA (1) because he was aware that his obligation deviated from the Child Support Guidelines when he agreed to it and (2) because he had not made a showing of changed circumstances under Lepis v. Lepis; the escalation clause was enforceable, even though its subject heading was “less than accurate,” and the trial court did not abuse its discretion by ordering the ex-husband to contribute toward braces based on the terms of the divorce judgment about unreimbursed medical expenses; because the ex-husband failed to demonstrate changed circumstances, an order for discovery was not warranted.

REAL PROPERTY
SARMANOUKIAN v. CHEMTEK AT ALPINE, LLC
Chancery Division, Bergen County, BER-C-367-05, November 4, 2005, released November 9, 2005, not approved for publication. By Doyne, J. (10 pages). Facts-on-Call Order No. 18820

Request by the plaintiff homeowners for temporary and preliminary restraints denied in an action arising from the defendant developer’s construction of a building with four stories above ground and three stories below ground on the lot adjoining the homeowners’ property; the homeowners sought to enjoin further construction because the construction already had damaged their property and had compromised the structural integrity of their home and because a foundation wall, if built, would encroach on their property; the homeowners were not entitled to preliminary restraints (1) because they failed to demonstrate irreparable harm, inasmuch as damage to their property could be repaired and inasmuch as any encroachment was speculative and could be remedied with money damages, and (2) because the parties disputed material facts about the cause of the damage to the homeowners’ property, the adequacy of the steel pilings used in the construction, and the possibility of encroachment.


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