NEW JERSEY LAWYER

DAILY BRIEFING      02/11/2005


News Briefs

NO BIAS IN STATE’S DEATH PENALTY CASES
Mirroring findings from previous years, the New Jersey Supreme Court has been advised that an annual study has found no evidence of racial or ethnic bias affecting death penalty cases during court year 2004. “There is no indication” that either “race of defendant or race of victim has consistent and significant impact upon death outcomes or upon advancement to penalty trial in New Jersey,” stated a report by former Appellate Division Judge David S. Baime, the court’s special master. Because death penalty cases in New Jersey have declined, as they have nationwide, the 2004 study will be considered an interim report, with a more complete compilation expected next year, said Baime. 2-10-05

SHOWDOWN ON MED-MAL FEE
The New Jersey State Bar Association goes to court Feb. 18 to battle the three-year $75 fee being assessed lawyers to cushion the costs of some doctors’ medical malpractice insurance premiums. State Bar President Edwin J. McCreedy will argue the merits of the constitutional challenge at a show-cause hearing before Union County Chancery Judge Thomas N. Lyons. For a full story, see the Feb. 14 New Jersey Lawyer. 2-10-05

UNIVERSITY TO PAY $517,000 IN FIRST GENE THERAPY DEATH
More than five years after the September 1999 death of 18-year-old Jesse Gelsinger in a gene therapy experiment at the University of Pennsylvania, the U.S. Department of Justice has announced a $517,000 settlement to be paid to the government by the school and research restrictions will be imposed on the three doctors involved. Gelsinger’s death, the first caused by gene therapy, raised questions of whether scientists had acted too quickly to move the experiments from animals to people and whether volunteers were fully informed of the risks. The government said that before Gelsinger’s participation, “the study had produced toxicities in humans that should have resulted in termination, but the study continued.” Children’s National Medical Center in Washington, D.C., which also helped conduct the trial, will pay the government an additional $514,000 to settle the case. Gelsinger’s family had settled earlier. 2-10-05

AFTER A DECADE, JUDGES’ OBJECTIONS OVERRULED
Some 10 years after the concept was initiated, New York’s publicly accessible judicial directory has made its debut on the state’s judicial website, nycourts.gov/judges/directory.shtml. The timing constitutes a recognition of the fact that, as Chief Judge Judith S. Kaye said in her state of the judiciary address, “a key feature of accountability is openness.” E. Leo Milonas, former chief administrative law judge, tried to create a directory just over a decade ago, only to encounter a storm of protest from judges alleging they feared for their safety, even though no personal material would be included. Detailed professional information about federal judges had long been public, apparently creating no danger. A panel on judicial reform appointed by Kaye recommended the creation last summer of a judicial voters’ guide — essentially, the new directory. 2-10-05

GRAYING OF DEATH ROW
“Dead man walking” is one thing, but “Dead man being pushed along to the execution chamber in a wheelchair” has a different feel, says George Washington University law professor Jonathan Turley. But it could come to that, based on U.S. Bureau of Justice Statistics showing a record 110 prisoners aged 60 or older on death rows nationwide as of Dec. 31, 2003. That’s nearly triple the 39 death row seniors tallied nine years earlier, creating a phenomenon that raises new questions for courts. Older killers, including 89-year-old LeRoy Nash on Arizona’s death row, have asked federal judges to rule on the constitutionality of executing inmates with dementia and other age-related maladies. Reasons for the “population explosion” vary. Some convicts already were up in years when they committed their crime. Nash, for example, was 67 when he fatally shot a Phoenix coin store clerk, an act he still insists was self-defense. And Blanche Moore, 71, the oldest of four elderly women on death row, was 57 when she was convicted of killing her boyfriend with an arsenic-laced milkshake. Others are there because death penalty appeals can stretch for decades — 65-year-old North Carolina convict Jerry Cummings has been appealing since he was 27 — leading death penalty supporters to argue it is disingenuous for seniors to prolong their appeals and then claim they’re too old to be executed. 2-10-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, FEBRUARY 10, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, FEBRUARY 10, 2005:

ATTORNEYS
IN RE ZEITLER
New Jersey Supreme Court, D-162, February 10, 2005. (20 pages). Facts-on-Call Order No. 92307

The respondent attorney’s ethics derelictions in these matters — which consisted of multiple instances of neglect, lack of diligence, failure to communicate, and misrepresentation — together with his extensive ethics history required his disbarment.

NEW JERSEY COURTS ARE CLOSED ON FRIDAY, FEBRUARY 11, 2005, AND NO OPINIONS WILL BE RELEASED.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, FEBRUARY 14, 2005.



APPROVED FOR PUBLICATION
INMATES
SELOBYT v. KEOUGH-DWYER CORRECTIONAL FACILITY OF SUSSEX COUNTY
Appellate Division, A-6615-02T3, approved for publication February 10, 2005. (12 pages). Facts-on-Call Order No. 92308

Instead of directly appealing to the Appellate Division, a State prisoner who is confined at a County correctional facility must appeal an inmate disciplinary proceeding to the Law Division in an action in lieu of prerogative writs.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
WANG v. LIVINGSTON
Appellate Division, A-3426-03T1, February 10, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17609

Order precluding the plaintiff’s experts from testifying and granting summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed; the plaintiff, who had been injured in a 1997 accident, was rear-ended by the defendant in 1999; the trial court denied the defendant’s summary judgment motion, the defendant filed a motion in limine to bar the experts’ testimony on the first day of trial, and the trial court precluded the plaintiff’s experts from testifying and granted summary judgment for the defendants; as to the merits, the plaintiff presented sufficient evidence of both her back injury and her psychological problems to withstand summary judgment; procedurally, there was no basis to bar the experts’ testimony, and the defendant’s use of a motion in limine to avoid the Rule 4:46-1 notice requirement was “inappropriate.”

TORT CLAIMS ACT
VIQUEZ v. COUNTY OF SOMERSET
Appellate Division, A-3641-03T1, February 10, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17607

Summary judgment for the municipal defendants in a Tort Claims Act action affirmed; as he was leaving a soccer field in Somerville, the plaintiff was injured when he tripped and fell in a depression adjacent to a manhole that was installed and maintained by Bridgewater Township pursuant to a sewer easement; the depression was located in the middle of a large grassy field; contrary to the plaintiff’s arguments on appeal, (1) it was proper for the trial court to decide the threshold issue of palpable unreasonableness pursuant to Maslo v. City of Jersey City and (2) neither Bridgewater nor Somerville acted or failed to act in a way that a reasonable jury could find was “patently unacceptable under any circumstances.”

TORTS
BALDWIN v. NATIONAL FAIRWAYS, L.L.C.
Appellate Division, A-2921-03T3, February 10, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17608

Summary judgment for the defendant corporation and denial of the plaintiff’s motion for reconsideration in an action alleging conversion, violation of constitutional rights, and intentional and negligent infliction of emotional distress affirmed; the plaintiff was evicted from her farm after the DeLorean bankruptcy proceedings and left behind two Maremma Albrazese sheepdogs; the defendant’s employee began caring for the dogs, and the plaintiff first sought their return five months later; the trial court determined that the plaintiff’s conversion claim was precluded because there was no evidence that the plaintiff owned the dogs and because, even if she did own the dogs, she had abandoned them; there was no basis to overturn the summary judgment ruling on the conversion claim or to address further the plaintiff’s remaining claims.

COMMERCIAL TRANSACTIONS
TRIFFIN v. FLEET NATIONAL BANK
Appellate Division, A-2064-03T3, February 10, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17606

Judgment of $632.14 for the plaintiff assignee affirmed; the plaintiff sought to enforce two checks that he had obtained by assignment from a licensed check casher and that the defendant bank had dishonored and returned after it was told that the checks were forged; the defendant asserted that the check casher was barred from doing business with the plaintiff under N.J.S.A. 17:15A-48(a)(5) of the Check Cashers Regulatory Act of 1993 because a civil fraud judgment had been entered against the plaintiff in Pennsylvania in 1989; the defendant could not invoke §17:15A-48(a)(5) because there was no evidence in the Act that a bank sued by a holder in due course for the alleged improper dishonor of a check is “one of the class for whose especial benefit the statute was enacted” or that the Legislature intended to create a private cause of action under the Act; moreover, there had been no determination that the check casher had violated the Act.

UNEMPLOYMENT COMPENSATION
WHITEHEAD v. BOARD OF REVIEW
Appellate Division, A-2792-03T2, February 10, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17610

Final decision of the Board of Review denying the petitioner’s application for continuation of unemployment benefits pursuant to the federal Temporary Extended Unemployment Compensation Act affirmed; the Act was passed to provide additional unemployment benefits to airline industry employees who were displaced as a result of the September 11, 2001 terrorist attacks; the petitioner was laid off from her job in the airplane parts industry and was offered her job back two weeks later, but she opted instead to pursue a nurse training program; the petitioner was not eligible for funds under the Act because N.J.S.A. 43:21-4(c)(4)(A), which allows an individual attending an approved training program to continue to receive State-funded unemployment benefits without having to pursue employment, does not apply to federally funded benefits under the Act; her decision to decline her employer’s offers to return to her job rendered her ineligible for benefits under the Act.

UNEMPLOYMENT COMPENSATION
PEREZ v. BOARD OF REVIEW
Appellate Division, A-3781-03T2, February 10, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17611

Board of Review’s determination that the petitioner left his employment voluntarily and without good cause attributable to the work and its order requiring the repayment of benefits summarily affirmed; the petitioner worked as a selector in the warehouse for a frozen food company; the petitioner testified that a large group of workers had been told to “go home” and were not permitted to come back to work and that some of the workers later were invited back but that he was not; the employer testified (1) that a large group of workers had gathered outside of the manager’s office, in which the manager was meeting with an employee and a shop steward, (2) that the group refused to go to work, (3) that one worker specifically refused requests to go to work, (4) that the manager fired that worker, (5) that the petitioner then led all of the other workers out of the building, and (6) that the petitioner never returned to work or asked to work again; the record supported the Board’s determination.


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Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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