NEW JERSEY LAWYER

DAILY BRIEFING      12/08/2005


News Briefs

STATE BAR WILL ARGUE AS AMICUS IN ATTORNEY ETHICS CASE
The New Jersey State Bar Association has entered a controversy pending before the New Jersey Supreme Court about attorney conflicts of interest. The NJSBA, represented by David H. Dugan III of Medford, will argue as amicus curiae in the justices’ review of Advisory Committee on Professional Ethics Opinion 697, which addresses lawyers and their firms representing municipal agencies and private clients concurrently. The committee ruled it’s unethical and a direct conflict of interest for lawyers to appear in municipal court and before municipal agencies when their colleagues or firm represents the same municipality’s zoning board, housing authority or other agencies. The Bar Association is seeking to overturn that, contending, in part, that whether there’s an adverse conflict in such situations should be left to the discretion of the lawyers involved. The high court several years ago repealed a rule making just the appearance of a conflict an ethical violation. 12-7-05

WESTWARD HO, SUBURBAN NJ FIRM EXPANDS INTO PHILLY
Reversing a trend of Philadelphia law firms opening offices in South Jersey, Cherry Hill-based Flaster/Greenberg has expanded into the City of Brotherly Love. The move to Penn Center on J.F.K. Boulevard follows the opening of an office in Trenton earlier this year. The firm, also with offices in Egg Harbor, Morristown and Vineland, was founded in 1972 as a two-attorney tax boutique and now has 55 lawyers in 22 practice areas. 12-7-05

‘STOP SNITCHING’ T-SHIRTS TO BE BANNED IN BOSTON
Saying controversial “Stop Snitching” T-shirts perpetuate a code of silence that makes it hard to solve crimes, Boston Mayor Thomas Menino is moving ahead with his plan to dispatch city employees to seize them. The American Civil Liberties Union maintains that effort aimed at protecting public safety violates constitutional rights to free speech. The mayor, police commissioner and district attorney have expressed concern about both the rise in violent crime and shirts with a message discouraging cooperation with law enforcement. With 70 percent of Boston’s homicide cases in 2005 unsolved, authorities say witnesses fear retaliation. Meanwhile, the creator of the shirts and owner of a local store has voluntarily removed the shirts after meeting with city officials. 12-7-05

CANADA’S CHIEF JUSTICE URGES EXCEEDING LETTER OF THE LAW
While politicians in Washington, D.C., debate judicial restraint, the Canadian chief justice is urging judges go beyond the strict letter of the law. In a speech to law students in New Zealand, Beverley McLachlin said jurists should go beyond the constitution’s words when protecting fundamental, unwritten rights and principles. She detailed several unwritten constitutional principles that have evolved into entrenched rights over time. Among them, she noted, are the right not to be punished without a trial, to enjoy the presumption of innocence until proved guilty and the right to retain an attorney. 12-7-05

RADIO ADS TOUT ALITO AS PROTECTOR OF CHRISTMAS
Samuel A. Alito Jr., President Bush’s nominee to the U.S. Supreme Court, is an accomplished lawyer, scholar and judge. Yale Law graduate. Princeton University undergraduate. Former U.S. attorney for New Jersey. And, of course, protector of Christmas. Protector of Christmas? Yes, according to radio commercials airing in Colorado, West Virginia and Wisconsin placed by the conservative Committee for Justice. “Liberal groups like People for the American Way and the ACLU have opposed public Christmas and Hanukkah displays and even fought to keep Christmas carols out of school,” the ads say. “Some courts and judges have supported this radical agenda, but not Samuel Alito. Throughout his career, Judge Alito has consistently upheld the constitution’s protection of free religious expression.” Meanwhile, a conservative Roman Catholic group, Fidelis, is planning to buy radio spots with a similar holiday theme and have already begun such ads on the internet. 12-7-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, DECEMBER 7, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, DECEMBER 7, 2005.

THE SUPREME COURT has announced that it will release opinions in STATE v. LEWIS, A-84, and CREANGA v. JARDAL, A-100, on December 8, 2005. The issue on appeal in Lewis addresses whether the defendant could be in constructive possession of drugs that were located outside of the public park where a drug transaction occurred. The issue on appeal in Creanga addresses whether the testimony of the plaintiff’s treating physician as to causation was inadmissible as a net opinion.



APPROVED FOR PUBLICATION
EDUCATION
L.W. v. TOMS RIVER REGIONAL SCHOOLS BOARD OF EDUCATION
Appellate Division, A-7084-03T5, approved for publication December 7, 2005. (48 pages). Facts-on-Call Order No. 92755

A claim may be brought by a student against a school district pursuant to the New Jersey Law Against Discrimination for peer harassment based upon perceived sexual orientation if the harassment creates a hostile school environment, and the school district may be liable for compensatory damages if it did not have in place appropriate anti-harassment mechanisms or if it knew or should have known of the harassment and failed to take effective measures to end it. In this case, the Director of the Division on Civil Rights properly awarded the student $50,000 in emotional distress damages under the LAD. However, the Director erred by ordering the district to strengthen its anti-discrimination policies, the Director lacked the authority to enforce the N.J.S.A. 18A:37-14 to -19 “anti-bullying” statutes, and the award of damages to the student’s mother was not authorized by the LAD. Judge Alley dissented in part.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
FITHEN v. JOHNSON
Appellate Division, A-934-04T3, December 7, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18925

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the trial court concluded that the plaintiff’s injury, which was documented by objective credible medical evidence, failed to satisfy the verbal threshold because it was not a “permanent serious” injury; reversal and remand were required in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn, Serrano v. Serrano, and Juarez v. J.A. Salerno & Sons, Inc. because a plaintiff is not required to prove a “serious injury” and because the plaintiff’s evidence in this case was sufficient to satisfy the sixth §39:6A-8a category of “a permanent injury within a reasonable degree of medical probability.”

NEGLIGENCE
McKESSY v. STEVENS
Appellate Division, A-1323-04T5, December 7, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18924

Summary judgment for the defendant second driver in an automobile negligence action affirmed based substantially on the trial judge’s “well-reasoned” oral opinion; the second driver asserted that he had pulled over onto the left shoulder of the Garden State Parkway and had parked in front of the defendant first driver’s disabled vehicle to offer assistance, that he had engaged his hazard lights but that the hazard lights on the disabled vehicle were not engaged, and that the plaintiff’s vehicle, which was traveling in the left lane, struck the disabled vehicle, which was not completely on the shoulder; the plaintiff asserted that he first noticed the disabled vehicle when the Mazda in front of him “veered away”; the trial judge correctly concluded that the second driver did not have a legal duty to warn the plaintiff of any dangerous condition that was created by the disabled vehicle.

ESTATES AND TRUSTS
IN RE JAMGOCHIAN
Appellate Division, A-6807-02T5, December 7, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18928

Appeal from a judgment declaring the respondent mother incapacitated and appointing her daughter as her guardian dismissed; in light of the mother’s death, the guardianship was effectively concluded, and there was no reason to address whether the Probate Part had erred by directing the appellant son to return the disputed monies and to provide an accounting of those assets in furtherance of the guardianship; there was a genuine dispute between the daughter and the son about the son’s admitted acquisition and retention of certain assets that the daughter claimed were the mother’s property, and the Probate Part in the guardianship action never definitively determined the issue of whether the son was entitled to retain any monies that he had received from his mother; in light of the mother’s death and the end of the guardianship, any issues about whether the disputed monies were part of the mother’s estate should be resolved in the estate proceedings.

HUSBAND AND WIFE
ELETTO v. ELETTO
Appellate Division, A-3827-04T2, December 7, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18926

Portions of a post-divorce-judgment order (1) that granted the defendant ex-husband, “on an exploratory basis,” additional overnight parenting time with the parties’ two daughters on the first Sunday of each month when the daughters are with him and (2) that granted the ex-husband a full income tax refund for 2003 instead of dividing it equally affirmed; as to visitation, the Family Part properly exercised its discretion and granted the ex-husband one overnight visit per month, rather than the two overnight visits sought by the ex-husband; as to the income tax refund, the Family Part properly concluded that the ex-husband was entitled to the full refund because he was the only one working during that tax year and because the income used to pay the taxes was generated by him.

MOTOR VEHICLES
MALONEY v. NEW JERSEY MOTOR VEHICLE COMMISSION
Appellate Division, A-3954-04T2, December 7, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18927

Final determination of the New Jersey Motor Vehicle Commission that denied the appellant’s request for an administrative hearing to determine the validity of an outstanding surcharge and the ongoing suspension of his New Jersey driving privileges affirmed; after the appellant was convicted in 1984 of driving while intoxicated, a mandatory surcharge of $1,000 per year for three years was assessed against him under N.J.S.A. 17:29A-35b(2)(b), which requires written notice of the surcharge to be sent to a violator’s “last address of record” with the Commission; the record contained “numerous notices” sent to an address in Fort Lee between 1985 and 1987, but the appellant denied receiving any of those notices and asserted that he first received notice at his current New York address in 2004; the record supported the Commission’s finding that the Fort Lee address was the appellant’s address of record when the notices were sent, and the Commission correctly concluded that sending the notices to the correct address of record satisfied the notice requirement and due process.

CRIMINAL TRIALS
STATE v. GRIFFIN
Appellate Division, A-5685-03T4, December 6, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18923

Conviction of first-degree armed robbery and sentence to a 10-year term of imprisonment subject to the No Early Release Act affirmed; after he was arrested, the defendant confessed to robbing a convenience store at gunpoint; although the defendant had fled the crime scene, he was arrested following his identification by four eyewitnesses; contrary to the defendant’s arguments on appeal, (1) the jury instruction on identification, which he did not object to at trial, was adequate, and an extended instruction on identification would not have changed the outcome and (2) the trial court acted “well within” its discretion when it declined to reduce the defendant’s sentence below the minimum sentence for a first-degree offense, despite his “contrition, full apology, sincere spiritual beliefs, and young age,” and any further reduction in sentence “would unjustifiably degrade the seriousness and dangerousness” of the defendant’s conduct.

FROM THE FEDERAL COURTS
GRAND JURY
UNITED STATES v. DOE
Third Circuit, No. 04-4136, November 23, 2005. By Rosenn, C.J. Also on panel: Sloviter, C.J. and Fisher, C.J. Appealed from the U.S. District Court for the District of New Jersey. (9 pages). Facts-on-Call Order No. 92743

In a criminal investigation of a federal law enforcement officer, the Third Circuit reversed the District Court’s grant of an attorney’s motion to quash a grand jury subpoena based on the attorney-client privilege. The officer had sought legal advice from the attorney in connection with a course of conduct that was allegedly fraudulent and was likely criminal. The District Court incorrectly determined that the crime-fraud exception to the privilege did not apply because the Government had made a prima facie showing that the officer had intended to commit a crime or fraud and had consulted with the attorney in furtherance of that crime or fraud.


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