NEW JERSEY LAWYER

DAILY BRIEFING      02/25/2005


News Briefs

JUSTICES TO EXAMINE STATE’S SENTENCING GUIDELINES
The fallout of recent U.S. Supreme Court decisions in U.S. v. Booker and Blakely v. Washington regarding the constitutionality of judge-enhanced sentencing hits home Tuesday when the New Jersey Supreme Court hears two differing interpretations of the state’s sentencing scheme. In State v. Abdullah, judges were found to be acting constitutionally by giving sentences within the given range and not enhancing penalties at all. In State v. Natale, defendants were found deprived of their Sixth Amendment right to have juries — not judges — find facts that determine their sentence. At stake in Tuesday’s arguments are not only how future sentences are meted out, but also whether imprisoned convicts will have their time shortened. A full story is in the Feb. 28 New Jersey Lawyer. 2-24-05

NEW RULE GOVERNS SEALING OF ELECTRONICALLY FILED DOCUMENTS
In response to the New Jersey District Court’s implementation of Case Management/Electronic Case Filing last February, Local Rule 5.3 has been amended to govern any applications to seal materials filed with the court or utilized in connection with judicial decision-making, or to restrict public access to any judicial proceedings. While asserting the “right of public access to filed materials and judicial proceedings” under the First Amendment and federal common law, the rule addresses a variety of potential situations in which parties might seek to seal records or limit public access, and describes the relevant procedures for doing so. Other issues addressed include emergent applications for temporarily sealing orders and when filing may make otherwise confidential material a public record subject to public access. 2-24-05

RUTGERS LAW-CAMDEN BUILDING GETS $11 MILLION BOOST
The Camden Economic Recovery Board has approved an $11 million grant for Rutgers Law School-Camden as part of its $37 million funding for a new building. The money comes from $175 million earmarked by the state for Camden’s revitalization. In addition to classrooms and faculty offices, the 51,800-square-foot facility will include a free legal clinic for city residents. If any of the law school’s 8,000 graduates want to visualize where the new structure will go, it will be across Fifth Street from the current school and connected by an enclosed walkway. Construction should be completed by spring 2008. 2-24-05

$725,000 SETTLEMENT IN SEX ASSAULT CASE
Mediation prior to the start of trial has resulted in a $725,000 settlement for Doris Robinson, a former Burlington County corrections officer. She had sued the county, claiming her direct supervisor, Sgt. Kevin Ryan, had sexually assaulted her. Ryan allegedly had previously been demoted for sexual harassment, but the county later re-promoted him to sergeant. Robinson resigned as a result of the assault. Marlton attorney Alan H. Schorr represented the plaintiff in Robinson v. Burlington County. Ryan’s attorney was Elizabeth A. Dalberth of Cherry Hill. 2-24-05

DISABLED WAL-MART WORKER AWARDED $7.5 MILLION
A 10-day jury trial before U.S. District Judge James Orenstein of the Eastern District of New York has resulted in a $7.5 million award for Patrick Brady. The jury found Wal-Mart discriminated against the 21-year-old, who has cerebral palsy, when he was reassigned from the pharmacy department in the Centereach, N.Y., store to such duties as collecting garbage and shopping carts from the parking lot. Brady’s lawyer, Douglas H. Wigdor, said the $5 million in punitive damages is likely to be reduced to $600,000, since federal law limits the amount that can be awarded, but there is no similar limit for the $2.5 million compensatory damages award. Brady said he hopes the retail giant “now understands that they can’t get away with treating people with disabilities like second-class citizens.” But Wal-Mart spokeswoman Christi Gallagher said the company feels “very strongly that Mr. Brady did not suffer discrimination” and plans to appeal. 2-24-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, FEBRUARY 24, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, FEBRUARY 24, 2005:

LAW AGAINST DISCRIMINATION
ZIVE v. STANLEY ROBERTS, INC.
New Jersey Supreme Court, A-82, February 24, 2005. (31 pages). Facts-on-Call Order No. 92322

As long as the employee shows that he has been performing in the position from which he has been terminated, the second prong of the prima facie case under McDonnell Douglas is fulfilled, and the quality of the employee’s performance does not come into play on his prima facie case.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, FEBRUARY 25, 2005.



APPROVED FOR PUBLICATION
INSURANCE
McSHANE v. NEW JERSEY MANUFACTURERS INSURANCE CO.
Appellate Division, A-3565-03T2, approved for publication February 24, 2005. (14 pages). Facts-on-Call Order No. 92323

Where the plaintiff insured had received collision benefits from the defendant insurer, where the defendant was made whole as a result of its recovery through subrogation from the tortfeasor’s insurer, where the defendant’s recovery reduced the amount of the tortfeasor’s liability insurance available to the plaintiff from $100,000 to about $90,000, where the plaintiff settled for the tortfeasor’s remaining policy limit and then sought underinsured motorist benefits, only the $90,000 that the plaintiff actually received should be subtracted from the $300,000 in underinsured motorist benefits available under the defendant’s policy because, when neither contract nor statute requires otherwise, an insured should be made whole before his insurer receives a recovery and because the insurer is the proper party to bear the risk of loss. Furthermore, only injury liability recovery, and not property damage recovery, can be set off against UIM limits under N.J.S.A. 17:28-1.1(e).

APPELLATE PROCEDURE
SHIMM v. TOYS FROM THE ATTIC, INC.
Appellate Division, A-3948-03T3, approved for publication February 24, 2005. (6 pages). Facts-on-Call Order No. 92324

To advance the policy against piecemeal appellate litigation, the Appellate Division dismissed an appeal (1) where the defendant had obtained a judgment of no cause of action and the plaintiff filed a notice of appeal, (2) where the defendant’s motion in the Law Division for attorney’s fees was dismissed for lack of jurisdiction, (3) where the defendant failed to move for dismissal of the appeal as interlocutory or for a temporary remand to have the attorney’s fee issue decided, (4) where the defendant won the first appeal and then renewed its motion for attorney’s fees, which was denied, and (5) where the defendant appealed the denial of that motion.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
MICK v. DEVALCY
Appellate Division, A-2505-03T5, February 24, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17663

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold reversed and remanded; the plaintiff’s vehicle was rear-ended while it was stopped at a red light, and she suffered spinal injuries and neurological deficits; several years before the car accident, the plaintiff fractured her tailbone; at her deposition, the plaintiff indicated that the fracture occurred when she fell down the stairs, that she received an injection at the hospital, that she did not receive any follow-up treatment for the fracture, and that she did not experience pain from the fracture before the car accident; the trial court erred by granting summary judgment based on the plaintiff’s failure to provide a comparative medical analysis of her pre-existing injuries because there was no evidence that the plaintiff had received medical treatment for her tailbone fracture before the accident.

VERBAL THRESHOLD
FARR v. BOURGEOIS
Appellate Division, A-5349-03T5, February 24, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17662

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the plaintiff, who was 75 years old, was retired, suffered from diabetes, and had undergone heart surgery, claimed that his injuries prevented him from walking to the store, performing household chores, and playing pool; the record was “clear” that the plaintiff’s objective medical evidence, which included the results of an MRI and EMG tests, was sufficient to satisfy the first Oswin prong, and the plaintiff presented sufficient evidence that the impact of his injuries on his life was serious enough to satisfy the second Oswin prong; the trial court erred by evaluating the impact of the plaintiff’s injuries on his life in the context of a healthy young adult instead of in the context of the plaintiff’s age and circumstances.

LAND USE
WASKIN v. MONTGOMERY TOWNSHIP ZONING BOARD OF ADJUSTMENT
Appellate Division, A-2831-03T5, February 24, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17660

Law Division judgment for the defendant Zoning Board in an action in lieu of prerogative writs challenging the Zoning Board’s adoption of a 16-page resolution that approved the defendant tennis club’s application to expand its nonconforming use affirmed substantially for the reasons given by the Law Division; the tennis club, which was located on 13 acres in a residential zone and had opened in the early 1970s, sought to construct a new building with 23 parking spaces on its property, which already contained 11 tennis courts, a swimming pool, and 56 parking spaces; the Law Division rejected the plaintiff objector’s contentions that the Zoning Board had not made adequate findings of fact and that the Zoning Board’s decision was arbitrary, capricious, and unreasonable.

APPELLATE PROCEDURE
IN RE MUNICIPAL VACANCY ON THE GOVERNING BODY OF THE TOWNSHIP OF RIVER VALE
Appellate Division, A-3670-03T5, February 23, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17659
Appeal from a Law Division order stating that the appellant was not entitled to one of the five seats on the Township municipal council and that the oath of office taken by the appellant was void dismissed as moot; a Republican council member died in November 2003, but his term did not expire until December 2004; after the Mayor and two council members passed a resolution to leave the seat vacant for the remainder of the deceased member’s term, the Republican Municipal Committee selected the appellant to fill the seat, and the appellant took the oath of office; the Mayor and two council members brought an action in lieu of prerogative writs to remove the appellant; the appeal was moot because the deceased member’s seat was filled in the November 2004 general election, and there was no vacancy on the council.

CRIMINAL TRIALS
STATE v. MAGLIES
Appellate Division, A-5648-03T5, February 23, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17658

Fine of $500 for the violation of a City of New Brunswick ordinance concerning downspouts and the discharge of roof water reversed; because water collected when the lower part of his building’s downspouts were crushed or removed due to vandalism, the defendant removed the lower part of the downspouts to prevent damage to the building’s foundation, which caused water to be discharged at five or six feet above ground level; the ordinance prohibited roof water from being “discharged in a manner that creates a public nuisance”; there was no evidence that the defendant’s downspouts created a public nuisance where the housing inspector’s testimony indicated that the downspouts affected only the defendant’s property and where the defendant’s testimony indicated that only persons in his driveway would be hit by the discharged water.


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