NEW JERSEY LAWYER

DAILY BRIEFING      02/16/2005


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SENATORS OPPOSE BUSH NOMINEE — AGAIN
Among some 20 attorneys nominated by President Bush this week for federal judgeships nationwide is Peter G. Sheridan, a Trenton attorney and former director of the state Republican Party. First nominated in 2003, Sheridan’s Senate confirmation was held up by opposition from New Jersey’s two Democratic senators, Jon S. Corzine and Frank R. Lautenberg, who felt the position should be filled by someone from South Jersey. The two remain opposed, according to Brad Woodhouse, a Corzine spokesman in Washington. But with two current openings on the New Jersey bench and two more anticipated, Sheridan’s nomination is expected to move forward once a full complement of judges is formulated. The two senators have been in discussions with the White House on a judicial package that could include Sheridan as part of a group of candidates who “reflect the needs of South Jersey and the diversity of the state,” Woodhouse told The Star-Ledger. 2-15-05

LEGISLATION WOULD SET FEE RANGE FOR VICTIMS’ ATTORNEYS
Attorneys advising people appearing before the Victims of Crimes Compensation Board (VCCB) would receive $300 to $1,000 for their guidance, according to legislation introduced by Assemblywoman Linda R. Greenstein (D-Middlesex). Greenstein, an attorney, said in a statement accompanying A-3814 that she hopes the “increase in attorney fees may have the result of increasing the number of attorneys who are willing to provide representation to crime victims.” Under current law, lawyers are paid a maximum of 15 percent of the compensation awarded. The proposed bill would guarantee at least $300 even if a minimal award or none is granted. Greenstein introduced a companion bill, A-3813, that would increase VCCB assessments charged defendants for certain crimes. 2-15-05

FEDERAL JUDGE TOSSES NEWSPAPER’S ACCESS SUIT
A federal judge has dismissed a suit by The Baltimore Sun against Maryland Gov. Robert L. Ehrlich Jr., who had ordered state employees to stop talking to two Sun writers. Fourth U.S. Circuit Judge William D. Quarles Jr. said the government has no particular obligation to talk to individual reporters. The reporter and the columnist were seeking comment mostly about legislation or government operations, but weren’t barred from using the state’s public records law. Quarles wrote that their interview requests “are far beyond a citizen’s reasonable expectations of access to his or her government.” In citing similar cases, the judge said the First Amendment, while protecting freedom of the press, does not mean journalists must be provided special status beyond that of ordinary citizens. Several news organizations filed amicus briefs on behalf of the Sun, but several newspapers editorialized against forcing the issue in the courts. The Sun will appeal. “We believe that this is a clear case of a government official retaliating against people based on what they write and say, and in a democracy, where government should be transparent, that is a very troubling thing,” said Sun editor Timothy A. Franklin. 2-15-05

NEW ABA LEADER IN THE WINGS
Denver lawyer Karen J. Mathis has been nominated president-elect of the 400,000-member American Bar Association. If elected by the group’s House of Delegates at the 2005 annual meeting in Chicago this August, she will serve as president-elect until the close of the 2006 annual meeting, at which time she will begin a one-year term as president. 2-15-05

BILL WOULD EXEMPT BREAST-FEEDING MOTHERS FROM JURY DUTY
The ordeal of Fairfax County juror Pamela Greene, who described her two days of jury duty as an endless cycle of hearing testimony, then hurrying to a restroom to pump breast milk for her 4-month-old daughter, has inspired legislation that would exempt breast-feeding mothers from jury duty. Although Virginia already exempts those who are “necessarily and personally responsible” for a child under 16, Greene was told that law did not apply to her, because she had returned to work and therefore wasn’t taking care of her daughter during the work day. But pumping at work in a designated quiet and clean area was much easier than the courthouse, Greene said. States that already exempt breast-feeding mothers from jury duty include Iowa, California, Oregon, Idaho and Minnesota. 2-15-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, FEBRUARY 15, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, FEBRUARY 15, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, FEBRUARY 16, 2005.


APPROVED FOR PUBLICATION
PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.M.B.
Appellate Division, A-5075-03T4 and A-5361-03T4, approved for publication February 15, 2005. (10 pages). Facts-on-Call Order No. 92311

The determination of whether or not to proceed with a plenary consideration of a parental termination case after an “identified surrender” is discretionary with the trial court.

NOT APPROVED FOR PUBLICATION
IMMUNITY
SPELL v. R.C. MAXWELL CO.
Appellate Division, A-5568-02T1, February 15, 2005, not approved for publication. (22 pages). Facts-on-Call Order No. 17627

Summary judgment for the defendant telephone company and denial of the plaintiff’s motion for reconsideration affirmed in an action for injuries sustained by the plaintiff when the vehicle in which he was a passenger was forced off the road and into a pole owned and maintained by the defendant; although the defendant did not get permission from Atlantic County pursuant to N.J.S.A. 48:17-10 when it first placed the pole in 1928, Atlantic County was aware of the pole’s existence and its location; procedurally, the law of the case doctrine did not necessarily prevent the trial court from rehearing the defendant’s renewed motion for summary judgment; as to the merits, the defendant fell within the immunity granted to a governmental entity for the placement of a utility pole under Contey v. N.J. Bell Tel. Co. because Atlantic County had retroactively ratified and approved the placement of the pole that was the cause of the plaintiff’s injuries; Judge Weissbard dissented.

HUSBAND AND WIFE
BONAVENTURA v. BONAVENTURA
Appellate Division, A-4881-02T1, February 15, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17624

Judgment of divorce, amended judgment of divorce, and denial of the motions for reconsideration filed by the plaintiff ex-wife and the defendant ex-husband affirmed; the plaintiff filed for divorce after almost 24 years of marriage, and the parties had two children who were enrolled in college; contrary to the plaintiff’s arguments on appeal, the judgment of divorce did not provide for the automatic termination of alimony if she engaged in cohabitation, and the Family Part specified that the defendant was required to maintain his existing life insurance policies until the children completed their educations; contrary to the defendant’s arguments on appeal, there was no reason to disturb the Family Part’s findings or conclusions about permanent alimony, including a savings component.

HUSBAND AND WIFE
MIX v. MIX
Appellate Division, A-5336-03T1, February 15, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17623

Post-divorce-judgment order denying the defendant ex-husband’s application to terminate his alimony and life insurance obligations to the plaintiff ex-wife affirmed; the parties were divorced in 1992, and the judgment of divorce entitled the plaintiff to $1,500 per month in alimony and 25 percent of the defendant’s pension as of the date of the divorce complaint; the defendant, who was approximately 62 years old and had only a high school education, lost his job of 40 years in March 2000, and his alimony obligation later was reduced; the Family Part did not abuse its discretion in denying further relief to the defendant; the defendant had not met his obligation to make all reasonable efforts to maximize his income because he had not exercised his right to begin receiving his pension.

DRUNK DRIVING
STATE v. OLINGER
Appellate Division, A-4270-03T3, February 15, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17625

Denial of the defendant’s motion to suppress and conviction of driving while intoxicated affirmed; a police officer saw the defendant backing a truck — which was towing a trailer that carried a motorized dinghy — out of a parking lot during the early morning hours of April 30, 2003; the officer stopped the truck because he thought the trailer was going to jackknife and cause the dinghy to flip over, and he issued the defendant summonses for three offenses, including careless driving and driving while intoxicated; contrary to the defendant’s arguments on appeal, (1) the officer’s actions were an appropriate exercise of his community care-taking function, even though it was debatable whether the defendant was driving carelessly, and (2) there was no “practical difference” between the Municipal Court sentence that was stayed pending appeal to the Law Division and the Municipal Court sentence that was imposed on remand.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.B.
Appellate Division, A-5308-03T4, February 15, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17626

Order approving a permanency plan regarding the defendant father’s two children affirmed; the Family Part found that it would not be safe to return the children home in the foreseeable future, that DYFS had undertaken the reasonable efforts needed to finalize a permanency plan, and that the termination of parental rights was in the children’s best interests; the Family Part’s finding that the children could not be returned home without endangering their health or safety was not based only on its conclusion that the defendant probably caused the “devastating injuries” to one of the children; rather, the Family Part also found that the children could not be returned to the defendant based on his conviction of aggravated sexual assault, his guilty plea to cruelty and neglect of the one child, and his stipulation that he and the mother failed to obtain timely medical attention for the one child; based on these findings, the Family Part’s conclusion that the children could not be returned home was “unassailable.”

UNEMPLOYMENT COMPENSATION
CROWE v. BOARD OF REVIEW
Appellate Division, A-1142-03T5, February 15, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17628

Decision of the Board of Review that affirmed the Appeal Tribunal’s dismissal of the appellant’s claim for unemployment benefits affirmed; on May 17, 2003, the appellant received a notice dated May 14, 2003 that advised her that her claim for unemployment benefits had been denied and that she had seven days after the date of delivery or 10 days after the date of mailing to appeal; the appellant did not appeal until June 9, 2003 because she was waiting for a decision on her application for disability benefits and because of personal difficulties; pursuant to N.J.A.C. 12:20-3.1(i), the Board properly decided that the appellant’s appeal was not delayed for good cause.


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