NEW JERSEY LAWYER

DAILY BRIEFING      02/02/2006


News Briefs

MCGRORY HANGS UP HIS ROBES
After 23 years of presiding over municipal court cases in Trenton, Judge R. Kevin McGrory has retired from the bench for the second time — and this time’s for good. The 59-year-old McGrory was first appointed in 1979 when drug cases were unusual and the ones he saw usually involved a small amount of marijuana or heroin. His work dramatically changed in the 1980s with an explosion of drug cases involving “angel dust,” methamphetamine (speed) and crack cocaine. Not only did the number of cases mushroom, but drug cases represented 80 percent to 85 percent of the case load, a concentration he says has dropped to about 50 percent. McGrory retired five years ago, but returned at the urging of Mayor Douglas H. Palmer. He’s working part-time at Szaferman, Lakind in Lawrenceville. 2-1-06

THE HIGHEST FIVE
When he was sworn in, U.S. Justice Samuel A. Alito became New Jersey’s fifth native son to reach the U.S. Supreme Court. His predecessor on that score was Justice Antonin Scalia (1986), who like Alito has his roots in Mercer County. Perhaps the most famous is Justice William J. Brennan Jr. of Newark (1956-1990). And rounding the list were two Morris County residents, Justices Mahlon Pitney (1912-1922) and John McLean (1829-1861). 2-1-06

BOY’S DROWNING CASE SETTLES FOR $1.8 MILLION
A suit by the parents of a boy who drowned in a Burlington County pool in 2002 has settled for $1.8 million. D’Andre Monk was among those in a Willingboro Recreation Department visit to the county Special Services School District’s indoor pool when the group’s adult leader, Amelia Dean, realized she couldn’t find him. The plaintiffs said Dean and lifeguard Michael Kiczek searched the entire facility, including the locker room, gym and parking lot before D’Andre was found in the pool. Monk v. Burlington County Special Services School District was settled after mediation with former Judge Gerald Weinstein of Fox Rothschild in Atlantic City. Richard J. Talbot of the Andrew A. Ballerini firm in Cherry Hill represented Shannon and Andre Monk. Willingboro and Dean were represented by Betsy G. Ramos of Capehart & Scatchard in Mount Laurel, the school district by Read S. Howarth of Tucker & Munyon in Marlton, and Kiczek by Kim Bloomer of Youngblood Corcoran Lafferty & Hyberg in Pleasantville. 2-1-06

TRUCKERS SETTLE FOR $7 MILLION IN ‘WARN’ CASE
About 1,700 truckers have settled their Worker Adjustment and Retraining Notification Act (WARN) case against the owners of the former USF Red Star division, which shut down without notice after a brief strike in 2004. Under the 1989 federal law, large employers are required to give 60 days’ notice before closing. Under a settlement order approved by U.S. District Judge Petrese B. Tucker in Philadelphia, $7 million — less 25 percent for their attorneys — will be distributed among the drivers and warehouse workers who lost their jobs in the closing. Claims before the National Labor Relations Board in In re USF Red Star are still pending. Robert F. O’Brien of O’Brien Belland & Bushinsky in Northfield and Charles A. Ercole of Klehr, Harrison, Harvey, Branzburg & Ellers in Cherry Hill were lead co-counsel for the workers. Steven L. Brenneman of Matkov Salzman in Chicago is attorney for USF, now owned by YRC Worldwide in Kansas. 2-1-06

ARBITRATOR’S NON-DISCLOSURE OF REPRESENTATION VOIDS AGREEMENT
The 5th U.S. Circuit Court of Appeals has vacated an arbitration agreement after the losing party discovered the arbitrator and his former law firm were co-counsel in a lengthy litigation seven years earlier with one of the law firms and counsel in the current arbitration. The court held the arbitrator was required to disclose these facts “because it might have created an impression of possible bias.” The decision in HYPERLINK "http://caselaw.lp.findlaw.com/data2/circs/5th/0411432cv0p.pdf" Positive Software Solutions v. New Century Mortgage was based on the “evident partiality” language in Section 10 of the Federal Arbitration Act and decisions from the Supreme Court and other circuits. 2-1-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, FEBRUARY 1, 2006
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, FEBRUARY 1, 2006:

INSURANCE
JOHNSON v. BRADDY
New Jersey Supreme Court, A-5, February 1, 2006. (7 pages). Facts-on-Call Order No. 92834

The New Jersey Supreme Court affirmed substantially for the reasons expressed by the Appellate Division in its opinion reported at 376 N.J. Super. 215 (2005). The holder of an insurance policy that was issued by an insurer that later became insolvent is personally liable for judgments in excess of the $300,000 maximum liability under the New Jersey Property-Liability Insurance Guaranty Association Act.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, FEBRUARY 2, 2006.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, FEBRUARY 1, 2006.

NOT APPROVED FOR PUBLICATION
LAND USE
TWIN OAKS REALTY DEVELOPMENT, LLC v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF CRANFORD
Appellate Division, A-2687-04T5, January 30, 2006, not approved for publication. (10 pages). Facts-on-Call Order No. 19167

Law Division order that upheld the defendant Zoning Board’s denial of multiple variances that were required for the plaintiff developer to build a 36-unit townhouse development affirmed; among other things, the developer applied for a conditional use variance because its plan exceeded the density permitted by the municipality’s land-development ordinance; the Law Division properly concentrated on the conditional use variance because the focal point of the developer’s application was its desire for 36 units instead of the 26 units that were allowed in the zone; the Law Division properly applied Coventry Square, Inc. v. Westwood Zoning Board of Adjustment and correctly determined that the developer had failed to satisfy both the positive criteria and the negative criteria for the conditional use variance.

PUBLIC EMPLOYEES
IN RE JOHNSON
Appellate Division, A-2517-04T1, January 30, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19171

Final decision of the Merit System Board that affirmed the rejection of the appellant applicant by the Department of Corrections for a position as a corrections officer recruit and the removal of the applicant’s name from the eligible list affirmed substantially for the reasons expressed by the Board; the Department’s psychological evaluation determined that the applicant was psychologically unfit for the position in light of his bipolar disorder, his criminal history, and his socialization skills; after the applicant submitted two expert reports to dispute that evaluation, an independent evaluation recommended by the Medical Review Panel concluded that the applicant was not psychologically fit for the position; the Board denied the applicant’s request for an evidentiary hearing because he had not raised any material issues of disputed fact, and it adopted the independent evaluator’s finding that he was not psychologically fit for the position.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.B.
Appellate Division, A-5371-04T4, January 30, 2006, not approved for publication. (22 pages). Facts-on-Call Order No. 19174

Termination of the defendant father’s parental rights to his daughter affirmed; the daughter tested positive for cocaine at birth and suffered from withdrawal, and she was placed into foster care upon her discharge from the hospital; the mother voluntarily surrendered her parental rights; the father had a history of drug addiction and suffered from depression that required medication; the plaintiff Division of Youth and Family Services satisfied the N.J.S.A. 30:4C-15.1a standards for termination by presenting evidence that established (1) that placing the daughter in the father’s care would expose her to substantial risk and that there was no reasonable likelihood of a reduction of that risk in the foreseeable future, (2) that the father was unable to eliminate the harm to his daughter or to provide a safe and stable home and that removing the daughter from her psychological parents would cause “serious and enduring emotional and psychological harm,” (3) that DYFS had made efforts to address the father’s substance abuse, mental health, and parenting skills and had sought alternatives to termination, and (4) that termination would not do more harm than good.

FORFEITURE
STATE OF NEW JERSEY v. ONE 2000 MAZDA MIATA
Appellate Division, A-4373-04T3, January 30, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19173

Summary judgment that granted forfeiture of an automobile to the State and that implicitly denied the former owner’s claim of replevin affirmed; the automobile was seized after a police pursuit, and the former owner pleaded guilty to third-degree eluding for unlawfully refusing to stop the automobile; in the ensuing forfeiture action, the former owner argued that summary judgment was premature because the discovery period had not yet expired and because the State had not yet responded to her discovery requests; the Appellate Division rejected that argument because the acknowledgments that the former owner made under oath as part of the factual basis to support her guilty plea “conclusively” established that she had knowingly violated the law in operating the automobile, because her admitted illegal use of the seized automobile authorized its forfeiture to the State, and because further discovery would not have changed that “inescapable conclusion.”

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF J.K.W.
Appellate Division, A-628-05T2, January 30, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19172

Order that continued the appellant’s involuntary civil commitment to the Special Treatment Unit pursuant to the Sexually Violent Predator Act affirmed; the appellant’s predicate offenses occurred between August and December 1983 when he performed sexual acts on four children for whom he was babysitting; the appellant’s expert had testified earlier that the appellant would not present a threat of sexually violent behavior to the community if he were released, but the trial court determined that the appellant was resisting the efforts to help him and that his expert’s suggestion was not persuasive; the record “fully” supported the trial court’s findings and conclusion that the State had proved by clear and convincing evidence that the appellant continued to suffer from a mental abnormality or personality disorder that caused him serious difficulty in controlling sexually harmful behavior, which made him highly likely to reoffend.

MEGAN’S LAW
STATE v. ARROYO
Appellate Division, A-1882-04T4, January 30, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19175

Conviction of fourth-degree failure to register as a sex offender based on the defendant’s failure to provide the required annual verification of his address reversed; contrary to the defendant’s arguments on appeal, the trial court did not err (1) by denying his motion for a new trial, which was based on his claim that he was unduly prejudiced by the testimony of two corrections officers that effectively informed the jury about his two previous incarcerations, and (2) by denying his motion to dismiss the indictment, which was based on his claim that the prosecutor infringed on the grand jury’s independence by failing to answer a question from a grand juror about why it took “so long” to present the matter to the grand jury; however, the Appellate Division was constrained to reverse in light of the New Jersey Supreme Court’s recent decision in State v. Gyori, which held that the failure to verify one’s address is not a separate fourth-degree crime.

FROM THE ADMINISTRATIVE AGENCIES
CIVIL RIGHTS
MOEBIS v. INTERNATIONAL CORPORATE MARKETING GROUP
OAL Docket No. CRT 6850-03, Initial Decision: August 17, 2005, Final Agency Decision: October 18, 2005, released for publication January 12, 2006. By Metzger, ALJ. (14 pages).

The Director of the Division on Civil Rights rejected the administrative law judge’s initial decision, which enforced the terms of the parties’ settlement agreement in an action alleging employment discrimination in violation of the Law Against Discrimination based on age, national origin, and disability. The ALJ determined that the agreement was enforceable because the complainant employee had authorized his attorney to negotiate a settlement, because the attorney acknowledged that an agreement was made, because the attorney could not explain why the employee refused to sign the agreement, and because no response was filed to the respondent employers’ motion to enforce the agreement. Following the ALJ’s decision, the employee filed pro se exceptions stating that he had not agreed to some of the terms of the employers’ proposed settlement, that later versions of the agreement did not incorporate his proposed revisions, and that his attorney had not responded to his inquiries. The Director concluded that the employee’s exceptions were sufficient to raise a “material and substantial issue” as to whether he had granted his attorney the actual authority to settle the matter under the terms of the settlement agreement that the ALJ had enforced.

COMMUNITY AFFAIRS
CAROBRESE v. DEPARTMENT OF COMMUNITY AFFAIRS, HOMELESSNESS PREVENTION PROGRAM
OAL Docket No. CAF 9091-05, Agency Docket No. BHS-573-05, Initial Decision: December 8, 2005, Final Agency Decision: January 6, 2006, released for publication January 11, 2006. By Robinson, ALJ. (9 pages).

The Acting Commissioner of the Department of Community Affairs adopted as his final decision the administrative law judge’s initial decision, which affirmed the Homelessness Prevention Program’s denial of funding to the petitioner. The petitioner had monthly Social Security income of $1,578.90, from which $78.20 was deducted to pay medical insurance premiums, and his monthly expenses totaled $1,140. The petitioner claimed that he was eligible for homelessness prevention funding based on the financial hardship resulting from his medical bills. The petitioner’s application for funding cited $260 per month in medical bills, and he provided the Program with receipts from the Methadone Center. However, the Program informed the petitioner that payment for his voluntary weekly methadone treatment could not be considered a medical expense for purposes of determining his eligibility for funding. The ALJ found that the petitioner could not provide documentation of a required medical treatment or medication that could be considered as a financial hardship when calculating his eligibility for funding and that the petitioner did not meet any of the eligibility criteria for funding under N.J.A.C. 5:41-2.1.


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