NEW JERSEY LAWYER

DAILY BRIEFING      12/30/2005


News Briefs

PAY RAISE FOR JERSEY JUDGES? EDITORIALS DIVIDED
Two of the state’s largest daily newspapers are split over the 17 percent salary increase Chief Justices Deborah T. Poritz is seeking for all state judges. The Star-Ledger of Newark last week said judges deserve more and urged lawmakers in the lame-duck session to approve a raise. This week, though, the Asbury Park Press opined that handing judges a raise when the state budget faces a shortfall pegged as high as $6 billion would be a major mistake. 12-29-05

BEWARE, THE GARBAGE COPS ARE ON THE PROWL
Residents and businesses have been required to recycle certain items for years, but that doesn’t mean compliance. And now the state Department of Environmental Protection has launched a series of inspection sweeps of various small businesses including, most recently, Atlantic City convenience stores. Enforcers want to see if the stores are separating and properly disposing of glass, paper and other recyclables. In an effort to educate first rather than come down hard, the DEP warned the businesses in advance of the inspections, which still revealed widespread ignorance of the law and large-scale noncompliance. 12-29-05

ALITO’S SCHOOL DISTRICT SPRINGS FOR DC TRIP
When President Bush nominated Samuel A. Alito Jr. to the U.S. Supreme Court, folks in his hometown of Hamilton Township, a Trenton suburb, were tickled pink. Politicians and especially officials in the public school district that educated young Sam during his formative elementary and high school days were bursting with pride and claimed him as their product. Now, they’re so excited that the Hamilton Township Board of Education has approved spending more than $2,000 to pay for up to six board members and administrators to travel to the nation’s capital next month to witness his Senate Judiciary Committee confirmation hearings, which will be televised, too. But one board member among the nine who unanimously voted to authorize the spending, Wendy Sturgeon, is having second thoughts, saying the money could be spent for a better purpose. 12-29-05

CDR PILOT STARTS WITH LEMON LAW
On Tuesday, the New Jersey Supreme Court will launch its plan to test a program that would give civil litigants three choices for alternative dispute resolution for settling cases: mediation, non-binding arbitration or binding arbitration. The two-year statewide complementary dispute resolution pilot will use the state’s Lemon Law for the experiment. Plaintiffs can still file a motion for a trial, but if they choose neither a trial nor one of the three choices, the case will be sent to mediation. If the program is successful, CDR could be expanded to other types of litigation. 12-29-05

COLLEGE STUDENT’S PRANK LEADS TO JAIL AND SUIT
A Bryn Mawr college student’s joke turned out to be not amusing to law enforcement officials who arrested her on drug charges and put her behind bars for three weeks — all because of flour in her luggage. Now, she’s suing. Janet Lee has just sued the city of Philadelphia based on circumstances stemming from her arrest two years ago when airport officials discovered flour-filled condoms in her luggage. Field tests determined the white powder was cocaine and opium but subsequent tests revealed the substance was just what she claimed: plain flour. Lee’s explanation was that she and her dorm mates filled condoms with flour to squeeze for stress release during pre-Christmas exams. 12-29-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, DECEMBER 29, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, DECEMBER 29, 2005:

MEGAN’S LAW
STATE v. GYORI
New Jersey Supreme Court, A-109, December 29, 2005. (4 pages). Facts-on-Call Order No. 92786

In a one-sentence opinion, the New Jersey Supreme Court reversed and remanded for the entry of an order dismissing the indictment substantially for the reasons expressed in Judge Wecker’s dissenting opinion reported at 373 N.J. Super. 567 (App. Div. 2004). In a prosecution for failure to register under N.J.S.A. 2C:7-2a of Megan’s Law, Judge Wecker concluded that the defendant’s failure to verify his address — in contrast to the failure to register, re-register, or provide notice of a change of address — is not a separate fourth-degree crime.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, DECEMBER 30, 2005.



APPROVED FOR PUBLICATION
ATTORNEYS
MASONE v. LEVINE
Appellate Division, A-4739-03T2, approved for publication December 29, 2005. (19 pages). Facts-on-Call Order No. 92787

Local counsel’s responsibility for the acts or omissions of out-of-state counsel admitted pro hac vice depends on local counsel’s participation in the acts or omissions. In this case, local counsel was not liable because there was no evidence that local counsel knew or should have known of the falsity of the representation made by out-of-state counsel that formed an integral element of a settlement. Despite the existence of an affidavit of merit, a frivolous litigation sanction was upheld because the facts that formed the basis of the opinion were supplied by the plaintiff’s counsel and were proved to lack factual support.

EMPLOYMENT DISCRIMINATION
EL-SIOUFI v. ST. PETER’S UNIVERSITY HOSPITAL
Appellate Division, A-3174-02T5, approved for publication December 29, 2005. (41 pages). Facts-on-Call Order No. 92788

The defendant employer and the defendant supervisor were entitled to summary judgment on the plaintiff nurses’ claims alleging religious discrimination, retaliatory discharge, and hostile work environment. The Appellate Division (1) applied the prima facie case analysis under Zive v. Stanley Roberts, Inc. to the religious discrimination claim, (2) concluded that an unfavorable performance evaluation was insufficient to establish adverse employment action in the context of retaliatory discharge, and (3) addressed the evidentiary requirements for a hostile work environment claim arising in the context of alleged religious discrimination.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
SHECK v. DALCORSO
Appellate Division, A-4468-03T5, December 29, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 19027

Involuntary dismissal of the plaintiff’s personal injury action following the presentation of his proofs to the jury reversed and remanded for trial, and ruling that barred the plaintiff from presenting expert testimony as to hedonic damages remanded for an N.J.R.E. 104 hearing; as to the dismissal, the plaintiff’s evidence was sufficient for the jury to infer that the defendant driver was negligent and had struck the plaintiff’s ankle with his car while exiting a parking space; as to the expert testimony, the record did not demonstrate that the trial court had ruled from an “informed position” because it had not conducted an N.J.R.E. 104 hearing and because counsel had not advised the court of the “extensive case law and law review articles” that have analyzed the issue of whether it is proper to use an expert’s opinion on hedonic damages.

WORKERS’ COMPENSATION
MURPHY v. GIAMBOI BROTHERS
Appellate Division, A-2487-04T1, December 29, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 19028

Division of Workers’ Compensation order that granted medical and temporary disability benefits to the petitioner worker reversed and remanded; the petitioner received an award of benefits after he was injured while working for the respondent employer in February 2001, and he sought medical and temporary disability benefits based on an aggravation of his injuries that occurred in April 2003 when he fell after stepping on a curb; the appeal was properly filed because any award of medical and temporary disability benefits is appealable as of right; reversal was required (1) because, in the context of a request to modify a prior award where the causation of the current injury is disputed, medical evidence must be presented to establish that the current injury was causally related to the original injury and (2) because the petitioner’s lay opinion as to his injury and the conflicting expert medical reports attached to the pleadings were insufficient to prove medical causation and thus to trigger the respondent’s legal liability.

PUBLIC EMPLOYEES
SHANNON v. CITY OF PLEASANTVILLE
Appellate Division, A-504-04T1, December 29, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 19026

Order entered on de novo review that affirmed the decision of the defendant City’s Public Safety Committee that the plaintiff firefighter’s conduct constituted grounds for termination affirmed substantially for the reasons expressed by the Law Division in its “thoughtful and extensive written opinion”; the Law Division concluded (1) that termination was the appropriate penalty because the firefighter possessed a rock of cocaine when he was arrested and because, even if he had not possessed cocaine, he had pleaded guilty to the disorderly persons offense of loitering with the intent to purchase an illegal substance and (2) that the City had not been required to consider the firefighter’s history of service in light of both the City’s zero-tolerance policy regarding public safety officers and illegal substances and the firefighter’s guilty plea.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF R.Z.R.
Appellate Division, A-6193-02T2, December 28, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 19025

Judgment that ordered the appellant’s commitment to the Special Treatment Unit under the Sexually Violent Predator Act affirmed; just before the appellant’s release from prison on a sentence for CDS offenses and theft by deception, the State sought to commit him based on his earlier convictions on charges arising from sexual encounters with two underage females; contrary to the appellant’s arguments on appeal, the trial court did not err (1) by committing him under the Act, even though he was not serving a sentence for a sexually violent offense at the time of commitment and there was no evidence of recent behavior that was sexually dangerous, (2) by admitting into evidence treatment notes and presentence reports, by accepting the testimony of the State’s expert that was based on those documents, or by referring to those documents in its opinion, and (3) by concluding that the appellant was a sexually violent predator who needed treatment at the STU.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF W.M.V.
Appellate Division, A-1069-03T2, December 28, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 19023

Judgment ordering the appellant’s commitment to the Special Treatment Unit pursuant to the Sexually Violent Predator Act affirmed; the 44-year-old appellant had “a lengthy history of criminal sexual conduct”; the three experts who testified at the commitment hearing agreed that the appellant was a pedophile who presented a moderate-to-high risk to the community, and the appellant’s expert conceded that the appellant was not ready for release; the trial court concluded that the appellant was a sexually violent predator who was highly likely to recidivate and who had “grave problems with self control”; contrary to the appellant’s arguments on appeal, (1) his involuntary commitment under the Act did not violate the ex post facto clauses of the U.S. and New Jersey Constitutions, (2) the trial court’s findings were “amply supported” by the record, and (3) the trial court’s admission of hearsay was not improper.

UNEMPLOYMENT COMPENSATION
MURRAY v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-2563-04T1, December 28, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 19024

Final decision of the Board of Review that determined that the claimant client services manager was ineligible for unemployment compensation benefits affirmed; the claimant alleged that she had left her employment due to her employer’s unethical business practices; the Board’s decision affirmed the decision of the Appeal Tribunal, which had properly concluded that the claimant did not demonstrate that she had left her employment for good cause attributable to the work because there was no credible evidence of unethical business practices; an employee who believed that her employer was engaged in unethical business practices “probably” would have discussed that belief with her immediate supervisor before resigning, but the claimant left her employment without waiting for her immediate supervisor to return from vacation.


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