NEW JERSEY LAWYER

DAILY BRIEFING      03/14/2005


News Briefs

VICTORY FOR ALIEN CLAIMING PERSECUTION BY CHINA FOR LARGE FAMILY
A divided 3rd U.S. Circuit Court of Appeals panel has granted Zhen Hua Li’s petition for review of the denial of his application for asylum. He claimed the Chinese government, in retaliation for him and his wife having four children rather than the two allowed, subjected the couple to a fine, loss of their government jobs, blacklisting from other such employment and confiscation of household items, all constituting economic persecution. Upholding the immigration judge’s denial, the Board of Immigration Appeals found Li had failed to establish the economic persecution claim. In granting review, senior Circuit Judge Edward R. Becker, writing for the majority, said, “While the issue is close, we believe that on the evidence in the record, this rigorous standard was met.” Prior to 1965, the Immigration and Naturalization Act required a finding of physical persecution to qualify for withholding of deportation, although case law recognized that could include economic restrictions that caused bodily injury by preventing any way to earn a livelihood, said Becker. Later, the word “physical” was deleted and the new standard became “a probability of deliberate imposition of substantial economic disadvantage.” Li’s situation met that standard, Becker held in Li v. Attorney General of the United States. In dissent, Circuit Judge Dolores K. Sloviter wrote that “the primary basis for the majority’s determination” of persecution was that Li and his wife were fired from government jobs. “Is this court ready to take the position that a government that terminates the employment of one of its workers who violated its laws not once but twice is persecuting that employee by terminating his employment?” she asked. (A full text of Li, Facts-on-Call Order No. 92353, can be ordered from NJL Online or by calling 800-670-3370.) 3-11-05

DISCIPLINARY BOARD REBUKES AUTOMATIC DISBARMENT RULE:
Members of the New Jersey Supreme Court’s Disciplinary Review Board is expressing frustration with the 1978 In re Wilson rule, which mandates automatic disbarment of lawyers who misappropriate clients’ or their law firm’s funds. Deciding how to penalize a New Jersey lawyer who kept fees belonging to his firm, four board members reluctantly concluded Wilson required disbarment, while the other four, seemingly ignoring the rule, called for a year’s suspension. “It’s time,” said some members, that “precedent must yield to compassion.” For a full story, see the March 14 New Jersey Lawyer. 3-11-05

KEY VOTES IN TRENTON
Several key pieces of legislation are scheduled for votes Monday. Up for consideration by the full Senate is S-2195 that would create the Office of the Inspector General. A bill to re-establish the Department of the Public Advocate, A-1424, will be voted on by the Assembly, as will S-2065 to increase the minimum wage and create a Minimum Wage Advisory Commission. 3-11-05

FAILURE TO SPEAK UP PLACES PATIENTS AT RISK
Medical errors are partly the fault of patients who fail to communicate their concerns that the provider is making a mistake, according to an internet survey by Utah-based VitalSmarts, a national research and consulting firm. Fifty-three percent of the 158 respondents reported such concerns about a possible incorrect diagnosis or suggesting an inappropriate treatment. But fewer than half spoke up when the doctor was unclear about a diagnosis, treatment options or next steps, and 20 percent said they suffered “substantial” health problems as a result of not raising questions. Patients were more inclined to voice anxiety when they believed the physician made a medication error, the study found, although more than one-third did not. 3-11-05

PAY THE TAXES OR FACE THE MUSIC
Tax defaulters in Rajahmundry, India, are being forced to face the music, now that the city has hired drummers to play non-stop outside their homes until they pay. After residents ignored requests to settle overdue property taxes totaling the equivalent of $1.15 million, even after offers to waive interest and penalties, authorities sent 20 groups of drummers to play outside offenders’ houses. And the new method seems to be working. One week of incessant drumming has cleared 18 percent of the arrearages. Must have been “snare” drums. 3-11-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, MARCH 11, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, MARCH 11, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, MARCH 14, 2005.


APPROVED FOR PUBLICATION
LAND USE
PULEIO v. NORTH BRUNSWICK TOWNSHIP BOARD OF ADJUSTMENT
Appellate Division, A-6279-03T5, approved for publication March 11, 2005. (11 pages). Facts-on-Call Order No. 92350

An application for a subdivision of property that had previously been granted a use variance requires only a simple majority vote of the members of the zoning board under N.J.S.A. 40:55D-9, rather than the enhanced requirement of five affirmative votes under N.J.S.A. 40:55D-70(d).

ORDINANCES
STATE v. CLARKSBURG INN
Appellate Division, A-3780-03T1, approved for publication March 11, 2005. (24 pages). Facts-on-Call Order No. 92351

The anti-noise ordinance in this case was not overbroad or vague and therefore did not violate the Fourteenth Amendment. An anti-noise ordinance does not violate the Due Process Clause as applied if, in balancing the reasonableness of the conduct against the rights of citizens to be free from the nuisance of excessive noise, the noise is found to be objectively unreasonable. Reaffirming State v. Holland.

TORTS
HOJNOWSKI v. VANS SKATE PARK
Appellate Division, A-2028-03T5, approved for publication March 10, 2005. (66 pages). Facts-on-Call Order No. 92352

Where a mother signed a pre-tort release on behalf of her son as a condition of his use of a skate park, (1) the agreement to arbitrate was valid and enforceable in connection with the bodily injury claims brought on the son’s behalf but (2) the mother did not have the power and authority to limit the claims asserted on her son’s behalf to anything less than the law would allow. Judge Fisher concurred in part and dissented in part.

NOT APPROVED FOR PUBLICATION
INSURANCE
RANALLO v. ALLSTATE INSURANCE CO.
Appellate Division, A-1457-03T5, March 11, 2005, not approved for publication. (24 pages). Facts-on-Call Order No. 17723

Dismissal of the plaintiff insureds’ complaint for failure to state a claim on which relief can be granted in an action seeking reformation of an automobile insurance policy and challenging the regulations of the defendant Commissioner of Banking and Insurance on notice and due process grounds affirmed; the plaintiffs received the New Jersey Auto Insurance Buyer’s Guide from the defendant insurer and selected the limitation on lawsuit option, and they were injured in separate accidents in 2001; the plaintiffs sought to reform their policy to provide the no limit on lawsuit option based on the failure of the Commissioner to revise the Buyer’s Guide to include both the need for a physician’s certification and the 2002 holding in James v. Torres that the serious impact prong of the Oswin test applies under AICRA; as to the insurer, it was immune from a claim for reformation due to the plaintiffs’ election of the limitation on lawsuit option, and the plaintiffs were not entitled to reformation on equitable grounds; as to the Commissioner, the plaintiffs did not demonstrate that the Buyer’s Guide deprived consumers of the ability to make an informed choice.

CIVIL PROCEDURE
MEHTA v. JAVERBAUM
Appellate Division, A-3225-03T2, March 11, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17724

Order vacating a default judgment reversed and judgment reinstated; the defendant attorney was sued by the plaintiff physician on a letter of protection, and the attorney counterclaimed for damages caused by the physician’s failure to appear at the client’s personal injury trial; the physician did not appear on her own trial date and notified the court that she intended to withdraw her complaint, the attorney proceeded on his counterclaim, and the original trial judge recused himself; a second judge entered a default judgment against the physician, the physician moved to vacate, and the original trial judge heard the motion and set the default judgment aside; the first judge’s continued participation violated New Jersey Shore Builders Association v. Township of South Brunswick; in addition, the first judge should not have vacated the default judgment because he misinterpreted the Court Rules.

HUSBAND AND WIFE
DeGANGE v. DeGANGE
Appellate Division, A-3153-03T1, March 11, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17722

Denial of the plaintiff wife’s motions to vacate a default judgment of divorce and for reconsideration reversed and remanded; in May 2002, the plaintiff’s divorce complaint was dismissed and default was entered on the defendant husband’s counterclaim because the plaintiff did not appear; her complaint later was dismissed with prejudice, and the judgment of divorce was entered on April 29, 2003 when the plaintiff did not appear; in May 2003, the plaintiff wrote to the court three times alleging that the defendant had interfered with her mailbox, and she supplied police reports and documents from the postmaster about problems with her mail service; in August 2003, the plaintiff obtained counsel and moved to set aside the judgment of divorce due to lack of notice, and she submitted correspondence from the postmaster stating that her mail carrier may have disobeyed delivery regulations to support her reconsideration motion; the trial court erred by failing to conduct a plenary hearing where the record “directly raised” a “fundamental question” about whether the plaintiff had received notice of the proceedings.

PUBLIC EMPLOYEES
DePOMPEO v. NEW JERSEY MERIT SYSTEM BOARD
Appellate Division, A-133-03T1, March 11, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17720

Merit System Board’s refusal to entertain the petitioner firefighter’s appeal reversed and remanded; in February 1997, the fire department demoted the petitioner from his probationary position of lieutenant after deciding that he did not successfully complete his working test period, the fire department removed the petitioner from the eligibility list in May 1997, and the petitioner appealed the working test period decision; the petitioner filed a federal action, including a CEPA claim, in March 2001, he withdrew his working test period appeal in June 2001, and the Appellate Division denied his appeal from his removal from the eligibility list; in June 2003, the federal court dismissed the CEPA claims that pre-dated November 1999, and in July 2003 the petitioner asked the Board to reinstate his working test period appeal, which the Board denied; based on the state of the record, the Appellate Division could not determine whether any CEPA claims remained or whether Scouler v. City of Camden applied.

EMPLOYMENT DISCRIMINATION
MIODUS v. AIR BP
Appellate Division, A-4778-03T2, March 11, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17718

Final decision of the Division on Civil Rights finding that there was no probable cause to credit the appellant ex-employee’s allegations of disability discrimination affirmed; before the defendant successor acquired the defendant employer on December 31, 2000, the appellant refused to give the employer medical documentation about his carpal tunnel syndrome and his work restrictions; the successor hired the appellant to perform a similar job, but its doctor determined that the appellant was unable to perform that job after the appellant presented a January 15, 2001 doctor’s note continuing his restrictions until March 5; the successor kept the job offer open until the end of March 2001, but the appellant did not contact the successor before then; the Division’s decision, which was based on the appellant’s failure to submit medical documentation that the employer needed to provide an accommodation and his failure to report to the successor after March 5, 2001, was not arbitrary, capricious, or unreasonable.

DRUNK DRIVING
STATE v. CARUGNO
Appellate Division, A-2820-03T1, March 11, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17721

Convictions of driving while intoxicated, reckless driving, failure to observe traffic signals, operating a motor vehicle without headlights, failure to signal before turning, failure to exhibit a registration certificate, and possession of an open container of alcoholic beverages affirmed; because a court sitting de novo has an “independent fact-finding function” as to a defendant’s guilt or innocence, any claim by the defendant that the Municipal Court judge’s alleged conversation with the defendant’s mother disqualified him from hearing the case was “rendered nugatory” by the Law Division’s independent findings of fact and conclusions of law; the defendant was not entitled to a new trial in the Municipal Court because he was not prejudiced by an “unintelligible record,” by the manner in which the Municipal Court proceedings were conducted, or by the Municipal Court’s rulings.

DRUNK DRIVING
STATE v. ROMEO
Appellate Division, A-5160-03T5, March 11, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17719

Conviction of driving while intoxicated affirmed; although the defendant admitted that the odor of alcohol on her breath and her involvement in an accident at 3 a.m. gave the arresting officer a reasonable basis to request field sobriety tests, she argued that her “stellar” performance on those tests negated probable cause to arrest; the Law Division’s finding of probable cause was not error where the defendant’s “unusual” explanation of how the accident occurred combined with her less-than-flawless performance of the field sobriety tests and the other circumstances would lead a reasonably prudent police officer to believe that the defendant had been driving while intoxicated; moreover, contrary to the defendant’s argument, the Law Division applied the correct standard of review.


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