NEW JERSEY LAWYER

DAILY BRIEFING      12/01/2005


News Briefs

1,000-FOOT DRUG LAW STANDARD TARGET OF NEW REPORT
The New Jersey legislature soon may face a test of wills between its own get-tough drug laws and an analysis of the consequences of such laws. The Commission to Review Criminal Sentencing will unveil a report Dec. 7 with recommendations to shrink the 1,000-foot drug-free school zone and eliminate mandatory minimum sentences attached to school-zone drug convictions, according to a report in The Star-Ledger. The law creating the zones and the minimums was passed in 1987 in an era when toughened sentences were considered the antidote to crime. But it didn’t take long for people to notice that schools are closer together in urban areas, and the law was a factor in the disproportionate number of minorities in state prisons. Attorney General Peter C. Harvey, a member of the commission, has long been a critic of the law. “You probably cannot stand in Newark, Jersey City or Camden and not be within 1,000 feet of a school,” he has stated. Key legislators have pushed for a new look at the law, but it remains to be seen whether they’ll have the political will to push back their previous enactments. 11-30-05

VICTIMS ADVOCATE SLAPPED FOR ADVOCACY
Sparta attorney Richard D. Pompelio has never made a secret of his passionate advocacy for the rights of crime victims, nor that he used his chairmanship of the Victims of Crime Compensation Board as a pulpit for that cause. But this week, the Executive Commission on Ethical Standards ruled that in one case, Pompelio was out of bounds. Pompelio last year filed papers on behalf of both the board and a private advocacy group to force a murderer to attend a sentencing hearing so he could hear the statements of his victims’ relatives. The ethics ruling carried no sanctions, because Pompelio has left the board to return full-time to the independent New Jersey Crime Victims Center. After the ruling, Pompelio told The Star-Ledger he believed the complaint probably was driven by at least one board member. In his three years as chairman, Pompelio also tried to have the board made into a volunteer, unsalaried body and publicly criticized other board members as merely filling patronage positions. Pompelio became a victims rights advocate after his son was stabbed to death in 1989. 11-30-05

CALIF. APPEALS COURT UPHOLDS $53M VERDICT AGAINST DRUNKEN DRIVER
A 35-year-old California woman who nearly died from injuries she sustained when a drunken driver broadsided her car five years ago said she’s won a victory even though she never expects to see any of a $53 million verdict. A jury in Alameda County Superior Court had awarded Theresa Johnson of Berkeley that amount. Legal experts say it’s one of the largest ever won by a drunken-driving victim. A state appeals court upheld the verdict earlier this month against Tyrone Hazel, 22 at the time of the accident. He has said he’d like to pay Johnson but has no job and no amount of money will change what happened to her. Johnson’s pelvis was crushed and her lungs punctured. She has undergone four major surgeries. “It’s not so much about the money, but he should be accountable in some other way,” she said. 11-30-05

WOMAN CHEATED OUT OF HOME BY BANK WINS $12M
Sealy Davis was so happy she literally skipped out of the Texas courtroom. A jury in the 212th State District Court found a Florida bank defrauded her of her home and awarded $12 million. Three years ago Davis took out a $31,000 home-equity loan on the house she had lived in 60 years. The following year, she missed a payment when she was hospitalized. She contacted the lender, Ocwen Federal Bank, and was assured she could make up the missed payment on a payment plan. Davis’ attorneys contended the bank never put her on such a plan, failed to credit the money she had sent for the missed payment and then foreclosed. Davis eventually declared bankruptcy. A former bank employee testified at trial that the bank offered its loan collectors cash bonuses for foreclosing on properties with equity. More than 100 other homeowners have similar claims pending against Ocwen Federal Bank. 11-30-05

WHO SAYS THE PRESS CAN’T HAVE IT BOTH WAYS?
In a journalistic demonstration that news is in the eye of the beholder, two topics this week were subject to 180-degree spins. The front page of The Star-Ledger of Newark on Tuesday proclaimed in its headline and subhead: “Bowl bid will bolster bottom line at Rutgers” and “Financial dividends just part of windfall.” Yet sister paper The Times of Trenton wrote on its sports page, “Bowl can prove costly” and “Prestige there, major windfall often lacking.” That different editors would see the story in opposite ways isn’t even the curious part — oddly enough, the stories were identical and written by the same reporter. Meanwhile, in Boston, a penalty imposed on Plymouth Juvenile Court Judge Robert Murray was viewed in completely opposite ways. The Boston Globe reported: “In one of the harshest punishments it has ever handed down, the state Commission on Judicial Conduct suspended a Plymouth County judge yesterday for a year without pay for sexually harassing two female court workers. The commission also fined him $50,000 and barred him from ever sitting in any court in the county.” The Boston Herald headline said: “Panel a soft touch in ‘love judge’ case.” The tabloid’s story began: “The one-year slap-on-wrist suspension that will allow ‘love judge’ Robert F. Murray to return to the bench after sexually harassing female underlings would never pass muster in the private sector, experts say.” Hmmmmm. 11-30-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, NOVEMBER 30, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, NOVEMBER 30, 2005.

THE SUPREME COURT has announced that it will release opinions in ALLIANCE FOR DISABLED IN ACTION, INC. v. RENAISSANCE ENTERPRISES, INC., A-79/88, and ALLIANCE FOR DISABLED IN ACTION, INC. v. CONTINENTAL PROPERTIES, A-87, on December 1, 2005. The issue on appeal in both cases addresses whether the plaintiff’s complaint under the Law Against Discrimination that alleged violations of the barrier-free subcode in the construction of condominium units was time barred, whether the units were otherwise exempted from the subcode requirements, and whether the local construction official could be held liable for failing to enforce the subcode.



APPROVED FOR PUBLICATION
TAXATION
INTERNATIONAL SCHOOLS SERVICES, INC. v. WEST WINDSOR TOWNSHIP
Appellate Division, A-2017-04T2, approved for publication November 30, 2005. (10 pages). Facts-on-Call Order No. 92745

Where the plaintiff corporation was organized to bolster the effort to enhance overseas schools attended by American children by fostering a mutual understanding between U.S. citizens and citizens of other countries by demonstrating the benefits of an American-style education, the plaintiff’s property was exempt from property taxes because the plaintiff’s certificate of incorporation suggested that it was organized for the purpose of the mental and moral improvement of men, women, and children within the meaning of N.J.S.A. 54:4-3.6.

MENTAL HEALTH
IN RE COMMITMENT OF P.D.
Appellate Division, A-7090-03T2 and A-452-04T2, approved for publication November 30, 2005. (8 pages). Facts-on-Call Order No. 92746

These appeals from involuntary civil commitments were moot due to the repeal of N.J.S.A. 30:4-80.1, which imposed a lien for psychiatric commitments, and due to the parties’ agreement that N.J.S.A. 30:4-27.5(b) would not apply to preclude any future commitments for the short term.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
SANDROW v. MASTRULLO
Appellate Division, A-3868-03T2, November 30, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 18891

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court determined that the plaintiff had not demonstrated that her injuries from her June 2000 accident with the defendant had caused a significant impact on her lifestyle beyond the impact from the injuries she had sustained in a 1996 accident; reversal and remand were required because the New Jersey Supreme Court’s recent decision in DiProspero v. Penn held that a plaintiff who is subject to the verbal threshold does not have to establish “a serious life impact.”

CHARITABLE IMMUNITY
BRONNER v. JERSEY CITY DELIVERANCE TEMPLE
Appellate Division, A-1482-04T2, November 30, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18892

Summary judgment for the defendant church based on the Charitable Immunity Act in a personal injury action affirmed; the plaintiff fell at the church site while attending the wedding of two nonmembers who had rented the site; applying the three-part test for charitable immunity, it was undisputed that the church was a nonprofit organization and that it was organized exclusively for religious purposes, and the appeal turned on whether the plaintiff was a beneficiary of the religious objectives and purposes of the church through its rental of its site to nonmembers for a wedding; the plaintiff was a beneficiary (1) because, under Anasiewicz v. Sacred Heart Church, a wedding guest is a beneficiary of the religious entity that hosts the wedding and (2) because the wedding appeared to have been consistent with the church’s objectives and purposes.

DOMESTIC VIOLENCE
KEHOE v. GERSON
Appellate Division, A-4054-04T3, November 30, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18893

Final domestic violence restraining order against the defendant ex-boyfriend affirmed substantially for the reasons expressed by the trial court; the trial court found that the defendant’s efforts to “win back” the plaintiff ex-girlfriend by sending flowers, notes, gifts, and poems later changed from the acts of a “jilted lover” to “something a little more serious than that”; the defendant “intercepted” a document concerning the plaintiff’s son, sent copies of the document to the plaintiff and her mother, and left items on the car of another member of the plaintiff’s family; contrary to the defendant’s arguments on appeal, there was no abuse of discretion in the trial court’s evidentiary rulings, the record supported the trial court’s findings and conclusions, and the defendant’s actions constituted harassment within the meaning of N.J.S.A. 2C:33-4a.

CIVIL PROCEDURE
NUCKEL v. BOROUGH OF LITTLE FERRY PLANNING BOARD
Appellate Division, A-1523-04T1, November 30, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18894

Dismissal of the plaintiff citizen’s action in lieu of prerogative writs for failure to join an indispensable party within the 45-day time limit set forth in Rule 4:69-6(b)(3) reversed; the plaintiff did not name the developer as a defendant in his November 5, 2003 complaint challenging the defendant Planning Board’s approval of the developer’s application, but he filed an amended complaint on April 5, 2004 to name the developer as a defendant after his attorney learned that joinder of a successful applicant was mandatory; pursuant to Rule 4:69-6(c), an enlargement of the 45-day time limit was warranted in “the interest of justice” (1) because the plaintiff had expended “considerable” time, effort, and resources to attend the hearings on the development and to present expert testimony, (2) because the original complaint was timely filed, (3) because neither defendant was prejudiced by the delay in joining the developer, and (4) because the failure to comply with Rule 4:69-6(b)(3) was attributable to the attorney rather than to the plaintiff.

INSURANCE
BAKKE v. SECURITY INDEMNITY INSURANCE CO.
Appellate Division, A-6551-02T2 and A-6063-03T2, November 29, 2005, not approved for publication. (27 pages). Facts-on-Call Order No. 18888

Orders that in June 2003 placed the defendant insurer into rehabilitation under the supervision of the plaintiff Commissioner of the Department of Banking and Insurance pursuant to the Uniform Insurers Liquidation Act and that in June 2004 authorized the Commissioner to liquidate the insurer affirmed; the Commissioner sought liquidation after determining that the insurer was insolvent and that further efforts at rehabilitation would be useless; as to the rehabilitation order, the trial court properly determined (1) that the insurer was in a “hazardous financial condition,” (2) that there was a “clear basis” to place the insurer into rehabilitation under the Act, and (3) that rehabilitation of the insurer could not await the “uncertain outcome” of an action by the Commissioner against the insurer’s reinsurer that might have resulted in a financial recovery for the insurer; as to the liquidation order, the trial court properly found that a balance sheet prepared by the Department established that the insurer was insolvent and therefore that there were grounds for the entry of a liquidation order under the Act.

PARENT AND CHILD
CONAHAN v. KLINGENBERG
Appellate Division, A-4579-04T4, November 29, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18889

Family Part final order that awarded custody of the defendant father’s 17-year-old son to the plaintiff maternal grandparents and that required the father to pay them $20,000 in attorney’s fees and costs affirmed in part, reversed in part, and remanded; after his son’s mother died in 1998, the father remarried in 2000 and moved to Tennessee with his son; the son had spent the summers following his mother’s death with his grandparents in New Jersey, and he moved into their home after finishing eighth grade in May 2002; the son asked the grandparents to act to prevent his return to Tennessee; the record supported a finding of psychological parenthood by the grandparents, who therefore had demonstrated exceptional circumstances sufficient to overcome the presumption of custody in favor of the biological parent; in light of the fact that the order applied only until the son finished high school, there was no unwarranted intrusion on parental rights or abuse of discretion; however, the award of attorney’s fees was not supported by findings of fact or conclusions of law.

UNEMPLOYMENT COMPENSATION
SCHOMBURG v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-6296-03T1, November 29, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18890

Denial of the petitioner’s application for additional unemployment benefits during training affirmed; the Appeal Tribunal found that the petitioner was ineligible under N.J.S.A. 43:21-60a because he had not been “permanently separated from his employment due to a substantial reduction in work opportunities” for his job classification at his former work site, and the Board of Review affirmed; contrary to the petitioner’s argument on appeal, §43:21-60a requires both (1) permanent separation from employment or a layoff and (2) an unlikelihood of returning to employment due to a workforce reduction; the petitioner therefore was disqualified because he had been discharged for being late to work and because his discharge was “isolated” and was not part of an overall reduction in jobs at his former employer.


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