NEW JERSEY LAWYER

DAILY BRIEFING      02/14/2005


News Briefs

ONE YEAR LATER, SENTENCING PANEL GETS ROLLING
After marking time for a year after its creation, the state Commission to Review Criminal Sentencing seems to be just getting started. Perhaps realizing that sentencing laws passed over the years may have unintended consequences, legislators created a commission to review those laws and see if they can be tweaked. The main impetus was a sentencing structure that routinely leads to heftier prison terms for urban minority defendants than for suburban white offenders. Signed into law in January 2004, members were chosen last spring and an organizational meeting was held in July. Then the panel had to wait for the state to provide a staffer and office. The next meeting is Feb. 23. See full story in the Feb. 14 New Jersey Lawyer. 2-11-05

APPLICATION TO DESIGNATE ACCUTANE LITIGATION MASS TORT
Comments and objections are due by March 15 on an application to the New Jersey Supreme Court to designate Accutane litigation as a mass tort to be managed in Atlantic County. Included would be all pending and future complaints alleging side effects attributed to the acne drug. These include depression, psychotic symptoms and suicide attempts, birth defects including deformities, miscarriage, premature birth and death of the baby, as well as problems affecting the brain, abdomen, bones and muscles, hearing, vision and blood cholesterol, and allergic reactions. Copies of the application are available from Christopher A. Seeger at Seeger Weiss, One William St., New York, N.Y. 10004-2502, (212) 584-0700. Comments must be submitted in writing to Judge Philip S. Carchman, Acting Administrative Director of the Courts, Administrative Office of the Courts, Justice Complex, P.O. Box 037, Trenton, N.J. 08625-0037. 2-11-05

NEW MANAGING PARTNER AT WOLF BLOCK
John D. Fanburg, chairman of the Health Law Practice Group of Wolf, Block, Schorr and Solis-Cohen, will take over as managing partner of the firm’s Roseland office. He replaces Alan R. Hammer, who will continue to serve as a member of the firm’s executive committee. The Roseland office specializes in a variety of practice areas, including real estate, health, tax, litigation, environmental, trust and corporate law. Fanburg is a graduate of the New England School of Law. Founded in Philadelphia in 1903, the firm has 300 attorneys and other professionals in seven offices in New Jersey, Pennsylvania, New York and Delaware. 2-11-05

ARIZONA MAY RE-THINK JURY PATRIOTISM LAW
After hearing complaints like that of Joann Paulmenn, 75, who needed documentation of her Parkinson’s disease from both a neurologist and her family doctor before being excused from jury duty, Arizona may loosen its 2003 law designed to decrease the rate of jury duty no-shows. Arizona is one of eight states that enacted variations of the Jury Patriotism Act, a model statute promoted by the American Legislative Exchange Council to make juries more representative of their communities. The law also requires household income information from those claiming financial hardship, largely removes jury commissioners’ discretion to excuse potential jurors based on transportation difficulties, and increases the fine for jury scofflaws from $500 to $100. State legislators have introduced bills setting age-based criteria for the right to be temporarily or permanently excused upon request, but others are uncomfortable with the potential “arbitrary impact” of such criteria. On the plus side, the number of jurors appearing as ordered has doubled in Maricopa County, Ariz., since the law took effect. Colorado, Louisiana, Mississippi, Missouri, Ohio, Oklahoma and Utah also have adopted versions of the jury act. 2-11-05

CALIFORNIA CLEARS WAY FOR DEATH PENALTY APPEALS BASED ON LOW IQ
The California Supreme Court is allowing dozens of condemned prisoners to challenge their death sentence on the grounds they are mentally retarded. The U.S. Supreme Court ruled in 2002 that executing mentally retarded people would violate the constitutional ban on cruel and unusual punishment, but left the states to decide how to define retardation. Ruling in the case of Anderson Hawthorne Jr., sentenced to death for the 1982 killing of two rival gang members in Los Angeles, California’s high court ruled that standard will be flexible. Prosecutors had recommended defining retardation as an IQ of 70, but “IQ tests are insufficiently precise to utilize a fixed cutoff in this context,” wrote Justice Janice Rogers Brown. Instead, said the court, an inmate designated by a qualified expert as retarded can get a hearing, at which the death sentence can be reduced to life in prison without parole if a judge decides it is more likely than not that they have “significantly sub-average general intellectual functioning” and behavioral and practical difficulties that began before age 18. Thirty of the state’s 640 death row inmates claim mental retardation and many more are expected to make similar claims as their appeals proceed. 2-11-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, FEBRUARY 11, 2005
NEW JERSEY COURTS WERE CLOSED ON FRIDAY, FEBRUARY 11, 2005, AND NO OPINIONS WERE RELEASED.

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



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, FEBRUARY 14, 2005

NOT APPROVED FOR PUBLICATION
LANDLORD AND TENANT
TEN PROPERTIES, L.P. v. SUMMIT BANK
Appellate Division, A-2150-03T3 and A-2724-03T3, February 10, 2005, not approved for publication. (36 pages). Facts-on-Call Order No. 17612

Partial summary judgment that dismissed the plaintiff landlord’s claims for failure to remove severable property and for attorney’s fees, an award of $13,500 for the plaintiff, and an award of $106,745 in attorney’s fees for the defendant tenant based on the offer of judgment rule affirmed; the defendant surrendered the premises after its 10-year lease ended, and the plaintiff sued for breach of contract to recover the cost of repairs arising from the defendant’s failure to remove severable property and to leave the property in a condition as good as it was when the lease began; the plaintiff rejected the defendant’s offer to settle for $27,500; contrary to the plaintiff’s arguments on appeal, the trial court did not err (1) by granting partial summary judgment, (2) by refusing to consider parol evidence of a course of dealing to determine the parties’ intent, (3) by excluding testimony about damage to the parking lot, (4) by denying damages for elevator repairs, (5) by denying attorney’s fees to the plaintiff, or (6) by awarding attorney’s fees to the defendant.

APPELLATE PROCEDURE
LUDVIKSEN v. MAYOR AND COUNCIL OF THE BOROUGH OF NORTH ARLINGTON
Appellate Division, A-5223-03T1, February 10, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 17613

Appeal from an order declaring the individual defendant’s appointment to a vacant seat on the defendant Borough Council “null and void” dismissed as moot; the individual defendant was appointed on December 29, 2003; when North Arlington held a general election on November 2, 2004 to elect members of the Borough Council, the individual defendant was not a candidate in that election, and another candidate was elected to the seat on the Borough Council; the election rendered the individual defendant’s appeal moot.

EVIDENCE
STATE v. CORVINO
Appellate Division, A-306-04T1, February 10, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17614

Criminal Part ruling that two of the defendant’s prior convictions could not be used to cross-examine him if he testified affirmed; the defendant was charged in a 10-count indictment with sexual assaults on a child and endangering the welfare of a child; the Criminal Part’s ruling permitted the State to use the defendant’s 1998 conviction for marijuana distribution to cross-examine him, but it precluded the use of his 1988 conviction for unlawful possession of a weapon and his 1990 conviction for possession of cocaine with intent to distribute because those convictions were too remote in time and too removed in subject; contrary to the State’s argument on appeal, the Criminal Part’s ruling did not exceed its discretionary authority and was based on “arguably valid” applications of the State v. Sands standards.

POST-CONVICTION RELIEF
STATE v. TISDOL
Appellate Division, A-3698-03T4, February 10, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17615

Denial of the defendant’s petition for post-conviction relief affirmed; the defendant was convicted of an accomplice murder that arose from an attempted robbery; contrary to the defendant’s arguments on appeal, (1) the record indicated that neither the defendant’s trial counsel nor his appellate counsel was ineffective, and the PCR court properly declined to conduct an evidentiary hearing on that issue, (2) the trial court’s voir dire was adequate, (3) the trial court’s jury charge “appropriately and correctly” instructed the jury to consider each defendant’s culpability separately, and (4) the State’s plea offer, which was contingent on the co-defendant’s acceptance, did not violate the defendant’s due process rights.

FROM THE FEDERAL COURTS
ARBITRATION
SARBAK v. CITIGROUP GLOBAL MARKETS, INC.
U.S. District Court (DNJ), Civil No. 03-CV-4043 (JLL), December 21, 2004, amended opinion released February 7, 2005. By Linares, U.S.D.J. (18 pages). Facts-on-Call Order No. 92299

The District Court granted the motion of the defendant employer and the defendant supervisor to compel the arbitration of the discrimination claims brought by the plaintiff employee, who was a female of Jamaican/West-Indian national origin and ancestry. When she was hired in 1997, the plaintiff signed three documents — an employment application, the principles of employment, and an employee handbook — which provided that she agreed to comply with the defendant employer’s dispute resolution and arbitration procedures for employment-related disputes. Claiming that she was subjected to a hostile work environment based upon her origin, ancestry, and sex that resulted in her constructive discharge, the plaintiff ended her employment in 2001, and she filed a complaint in 2003 alleging that the defendants had violated Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination. The District Court determined that arbitration was required because the parties had agreed to arbitrate their disputes and because the defendants had not waived their right to arbitration.

IMMIGRATION LAW:
LIE v. ASHCROFT
Third Circuit, No. 03-4106, February 7, 2005. By Becker, C.J. Also on panel: Nygaard, C.J. and Rosenn, C.J. Appealed from the Board of Immigration Appeals. (12 pages). Facts-on-Call Order No. 92301

The Third Circuit denied the petition for review of an order of the Board of Immigration Appeals that denied the petitioners’ application for asylum and withholding of removal. The petitioner wife, who was a naturalized Indonesian citizen, alleged that she and her husband were persecuted because they were ethnically Chinese Christians. The wife asserted that, in 1997, Muslim Indonesians had threatened her husband with a knife, called him a “Chinese pig,” and robbed him. She also claimed that two people had called her a “Chinese pig” and robbed her in her home at knifepoint in July 1998. The Third Circuit found “substantial” evidence supporting the Board’s conclusions that the robberies were not motivated by religion or ethnicity and that the robberies were not sufficiently severe to constitute persecution. The Third Circuit also found that the wife had failed to demonstrate that she had a subjective fear of persecution, that she faced an individualized risk of persecution, or that there was a pattern or practice of persecuting Chinese Christians in Indonesia.

INTELLECTUAL PROPERTY:
ARISTA RECORDS, INC. v. FLEA WORLD, INC.
U.S. District Court (DNJ), Civil Action No. 03-2670 (JBS), January 27, 2005. By Simandle, U.S.D.J. (49 pages). Facts-on-Call Order No. 92300

In a copyright infringement action brought by 14 member companies of the Recording Industry Association of America, the District Court (1) denied the defendant flea market operators’ motion for reconsideration of an order that, among other things, struck six of their affirmative defenses, (2) granted in part and denied in part the defendants’ motion to amend their answers to the plaintiffs’ amended complaint, (3) granted the plaintiffs’ motion to dismiss the defendants’ second amended counterclaims and to strike three of their separate defenses, and (4) denied the plaintiffs’ motion to strike the defendants’ 19th separate defense. The plaintiffs alleged that the defendants had ignored their repeated demands to curtail the sale of pirated and counterfeit compact discs and cassettes at their flea market. The District Court permitted the defendants to amend their answers to the numbered paragraphs of the plaintiffs’ amended complaint as long as the amended answers restated the original answers and did not supersede or replace them. The District Court also permitted the defendants to amend their 19th separate defense, which asserted that the defendants were landlords who were not liable for their tenants’ actions.

EMPLOYMENT LAW:
GARY v. AIR GROUP, INC.
Third Circuit, No. 02-3534, February 3, 2005. By Garth, C.J. Also on panel: Nygaard, C.J. and Pollak, Senior U.S.D.J. for the Eastern District of Pennsylvania, sitting by designation. Appealed from the U.S. District Court for the District of New Jersey. (24 pages). Facts-on-Call Order No. 92302

The Third Circuit reversed the decision of the District Court that dismissed the appellant employee’s action which alleged that the appellee employer had violated the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. The appellant, who was a co-pilot, reported to his supervisor that the pilot-in-command was unqualified, and the appellant was fired a few hours later. The appellant, who lived in New Jersey, filed a CEPA claim in the Superior Court in New Jersey, and the appellee, which was a California corporation, removed the case to the District Court. The District Court dismissed the complaint because it concluded that the CEPA claim was preempted by the Airline Deregulation Act, 49 U.S.C. 41713, as amended by the Whistleblower Protection Program, 49 U.S.C. 42121. The Third Circuit reversed because the appellant’s CEPA claim was not “related to” the “service of an air carrier” within the meaning of the preemption provision of the Airline Deregulation Act and because the WPP did not alter the scope of that provision to include the CEPA claim.


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