NEW JERSEY LAWYER

DAILY BRIEFING      12/29/2005


News Briefs

CONGRESSMAN PRESSES FOR MOCK TRIAL CHANGE
Rep. Steven R. Rothman (D-Bergen) hasn’t given up trying to get the National High School Mock Trial board to alter its policy against allowing changes in its schedule to accommodate teams that can’t compete on Saturdays for religious reasons. Rothman, who kept the issue in the public eye when it looked as though the New Jersey champion, Torah Academy of Bergen County, wouldn’t be allowed to compete in the 2005 national contest, has introduced a bill in the House of Representatives that would call on the Mock Trial directors to reverse their October decision to close the door to schedule shifts. Last spring, Rothman brokered a meeting between the New Jersey State Bar Foundation, the national board and officials from North Carolina, which hosted the May competition, and they agreed to a modified schedule that allowed Torah Academy to compete. But after that competition, the board voted to make no further accommodations. The New Jersey Bar Foundation immediately pulled out of the national network. The board’s action, Rothman said, “is unacceptable and violates the civil rights off these dedicated students who shouldn’t have to choose between their faith and participating in this competition.” 12-28-05

NO AGREEMENT ON FILLING MORRIS COUNTY JUDICIAL VACANCY
There’s early squabbling reportedly in Morris County over who should fill a judicial vacancy there, and the guessing is the issue will remain in limbo until sometime after Jon S. Corzine has been in the governor’s office. One thing, though, is certain. The Superior Court slot is earmarked for a Democrat, and even the county’s two Republican senators aren’t balking at that. But who gets the nod is another matter. According to The Record of Morristown, Sens. Robert J. Martin and Anthony R. Bucco are said to support Philip J. Maenza of East Hanover, a municipal judge in East Hanover, Mine Hill and Mount Olive. However, the chairman of the county Democratic Party prefers David H. Ironson of the Denville firm Einhorn, Harris, Ascher, Barbarito, Frost & Ironson. In the end, there well could be some horse trading between Corzine and the two senators, who under an unwritten Senate rule could block any judicial nomination from their home county. It conceivably could wind up being Corzine’s first test of so-called senatorial courtesy. 12-28-05

PENNSY JUSTICES TO HEAR JUDICIAL, LEGISLATIVE PAY-RAISE SUITS
For the first time in 20 years, the Pennsylvania Supreme Court has agreed to hear a challenge to the constitutionality of pay raises lawmakers there approved for themselves, judges and others in government. In a 6-0 ruling, the justices also said they would hear another suit challenging the repeal of those controversial raises. Harrisburg political activist Gene Stilp says there’s a variety of constitutional issues involved in the legislature’s approval in July of a bill that gave raises ranging from 16 percent to 34 percent. Critics have raised questions about whether it’s a conflict of interest for justices who stood to benefit from the raises to hear the cases. But some legal experts noted that if all the jurists eligible to hear a case are similarly situated and have a conflict, the need for a decision will trump the conflict. The Supreme Court agreed to take the case after the Commonwealth Court dismissed Stilp’s suit as moot after the legislature repealed the raises. Chief Justice Ralph J. Cappy has recused himself from these cases. 12-28-05

PIGEON RACERS FIND CHICAGO COURT RULING NOTHING TO COO ABOUT
Chicago’s claim to fame as the nation’s only large city to ban pet racing pigeons is intact, following a federal appeals court decision upholding the prohibition. The 7th U.S. Circuit Court of Appeals affirmed a lower court ruling backing the city’s ordinance and rejected claims by pigeon-racing supporters that the measure is unconstitutional. Proponents say the pigeons scatter feathers and droppings, and coo excessively. The appeals court said it wasn’t its job to balance the interests of pigeon-club members and their neighbors. But Karl Wollenhaupt, secretary and treasurer of the Greater Chicago Combine and Center, a pigeon-racing club, complains his group isn’t hurting anyone. “This sport has been in existence for hundreds of years, but the city says these birds are bad, dirty and evil. These are birds of pedigree.” 12-28-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, DECEMBER 28, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, DECEMBER 28, 2005:

TORT CLAIMS ACT
LYONS v. TOWNSHIP OF WAYNE
New Jersey Supreme Court, A-98, December 28, 2005. (20 pages). Facts-on-Call Order No. 92784

In an action alleging that the municipal defendants were liable under the Tort Claims Act for increased flooding on the plaintiffs’ private property, summary judgment was improvidently granted because the plaintiffs’ allegations, if true, might establish a prima facie claim of continuing nuisance and because the record was inadequate to conclude that there was no genuine issue of material fact.

CHARITABLE IMMUNITY
TONELLI v. BOARD OF EDUCATION OF THE TOWNSHIP OF WYCKOFF
New Jersey Supreme Court, A-105, December 28, 2005. (20 pages). Facts-on-Call Order No. 92785

The Charitable Immunity Act does not apply to public entities that are supported entirely by tax dollars and that provide services to which the public is entitled as of right. Winters v. Jersey City reaffirmed.

THE SUPREME COURT has announced that it will release an opinion in STATE v. GYORI, A-109, on December 29, 2005. The issue on appeal in Gyori addresses whether a sex offender who is required to register with authorities under Megan’s Law is guilty of a separate crime for failing to verify his address.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, DECEMBER 28, 2005.

NOT APPROVED FOR PUBLICATION
TORT CLAIMS ACT
OVERSTREET v. SENIOR HIGH RISE SENIOR CENTER
Appellate Division, A-1894-04T5, December 28, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 19020

Orders that denied the plaintiff security officer’s motion to file a late notice of tort claim and his motion for reconsideration affirmed; the plaintiff, who worked for a private security company and was assigned to the defendant senior center, was attacked by one of the residents, but the plaintiff did not file a notice of tort claim within the 90-day time limit of N.J.S.A. 59:8-8; the plaintiff failed to establish “sufficient reasons” constituting “extraordinary circumstances” to permit a late filing (1) because his contention that he did not know that the center was operated by a public entity — the defendant housing authority — was contradicted by reports that he had signed “just weeks” before the attack and (2) because, even if he did not know at the time of the attack that the center was operated by a public entity, he knew that fact within 90 days of the attack, as evidenced by his admission that he received flowers and a card from the housing authority following the attack; on reconsideration, the plaintiff did not present any new or additional evidence that was unavailable when the original motion was decided.

EMPLOYMENT DISCRIMINATION
BABCOCK v. SEARS, ROEBUCK & CO.
Appellate Division, A-1305-04T2, December 28, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 19022

Jury award of $50,000 for the plaintiff employee in an action alleging sexual harassment and retaliatory discharge affirmed; the plaintiff was a New Jersey resident who worked at the defendant’s store in New York; because the trial court determined that New York law and not New Jersey law applied, the jury was not instructed to consider punitive damages, and the plaintiff could not recover attorney’s fees; the trial court correctly applied New York law because New York had the greater interest in having its law applied where the conduct underlying the plaintiff’s claims occurred in New York, where the actors were employees in New York, and where the public policy of eradicating discrimination in the workplace would not be advanced by permitting different rules to govern the conduct of employees based on their state of residence; the trial court did not abuse its discretion by excluding the testimony of a former employee at the New York store.

SETTLEMENTS
SMITH v. UNITED PARCEL SERVICE, INC.
Appellate Division, A-4322-04T2, December 28, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 19021

Final order that enforced the parties’ settlement agreement in an action alleging violations of the Conscientious Employee Protection Act and the Law Against Discrimination affirmed; the plaintiff refused to accept the $50,000 settlement that her attorney had negotiated; based in part on an e-mail from the plaintiff to her attorney, the trial court determined that the plaintiff had authorized her attorney to settle for $30,000 and that the attorney had obtained a commitment from the plaintiff that she would accept a settlement that resulted in her receipt of $30,000 after the attorney’s compromised fee was paid; the trial court also determined that the provision in the settlement agreement that permitted the plaintiff to withdraw from the agreement had to be excised; because there was no offense to the interests of justice, the Appellate Division declined to disturb the trial court’s findings or conclusions as to the settlement agreement’s enforceability.

DRUNK DRIVING
STATE v. ZIMMERMAN
Appellate Division, A-2857-04T1, December 28, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 19019

Conviction of driving while intoxicated following a trial de novo affirmed; in the Municipal Court and in the Law Division, the defendant sought to suppress evidence of his intoxication that was obtained after the police officer stopped his vehicle; the Law Division concluded that the police officer had a reasonable and articulable suspicion that a traffic violation had occurred and had a reasonably objective basis for stopping the defendant’s vehicle where the vehicle twice crossed the double yellow lines, where the vehicle drifted within its lane, and where the defendant took a “circuitous route” after first being seen by the officer; the defendant’s argument on appeal that he had not violated the failure-to-maintain-a-lane statute was “without merit”; although the Law Division’s inference that the defendant took a “circuitous route” to avoid detection was not supported by the record, there was sufficient evidence beyond the “circuitous route” to sustain the State’s burden on the suppression motion.

HUSBAND AND WIFE
NAHAR v. NAHAR
Appellate Division, A-2728-03T2, December 27, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 19017

Judgment of divorce that equitably distributed the parties’ interests in a condominium and a house, that set the plaintiff husband’s child support obligation, and that denied the defendant wife’s requests for the reimbursement of certain funds and for attorney’s fees affirmed in part, reversed in part, and remanded; as to equitable distribution, the condominium was a marital asset, but the trial court erred by relying on the husband’s unsupported valuation of the condominium and by concluding that the husband’s interest in the house, which was a nonmarital asset belonging to the wife, offset her interest in the condominium; on remand, the condominium had to be listed for sale, and its value had to be allocated to the parties; as to child support, there were no grounds to impute an annual income of $65,000, rather than $55,000, to the husband, but the award had to be modified in light of the trial court’s arithmetical error; as to reimbursement, the wife’s claims were not supported by the record; as to attorney’s fees, the trial court did not abuse its discretion by denying the wife’s request.

PUBLIC RECORDS
IN RE SEARCH WARRANT FOR 33 LOCKWOOD AVENUE, FREEHOLD, NJ
Appellate Division, A-2516-04T2, December 27, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 19018

Order (1) that directed the Monmouth County Prosecutor to provide the appellants with the names of the officers involved in the execution of a search warrant at the appellants’ rooming house but (2) that denied the appellants’ requests for the names of the officers’ police departments, for the affidavit supporting the warrant, and for other documents, including police reports arising from the issuance and execution of the warrant, affirmed in part, reversed in part, and remanded; the appellants planned to use the information to file a civil action for property damage sustained in the search; as “aggrieved” parties who had demonstrated “good cause” under Rule 3:5-6(c), the appellants were entitled to the names of the officers and their departments or agencies, and they had a common law right to obtain the police reports that were prepared in connection with the execution of the warrant, subject to the trial court’s redaction of any parts that represented “legitimate security concerns”; however, the appellants’ remaining requests were properly denied based on a lack of “good cause” or on a balancing of the common law right to access and the State’s interest in preventing disclosure.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
WEST MORRIS REGIONAL BOARD OF EDUCATION
v. A.M., OAL Docket No. EDS 7418-05, Agency Docket No. 2005-10242, Final Agency Decision: November 30, 2005. By Reiner, ALJ. (12 pages).

The administrative law judge dismissed as moot the petitioner Board of Education’s due process request for an order authorizing its child study team to conduct an initial evaluation of the respondent father’s son. When the Board’s request was filed in June 2005, the son, who suffered from Sydenham chorea, was enrolled in the 10th grade at the Board’s high school. However, the father formally withdrew his son from the Board’s district in September 2005 and enrolled him at the private Alif Muhammad NIA School, which the father owned and operated in Newark. The ALJ determined that the matter was moot but analyzed whether a decision nonetheless was warranted. The ALJ concluded (1) that the issue presented was capable of repetition because the father could return his son to the Board’s district but (2) that the matter was not one of “substantial importance” sufficient to overcome mootness because there was no issue of “public importance” presented and because the costs incurred from future litigation, if necessary, would not impose a “considerable financial burden on the public.”


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