NEW JERSEY LAWYER

DAILY BRIEFING      03/16/2005


News Briefs

ETHICS REPORT SHOWING HOLES IN STATE SYSTEM AVAILABLE ONLINE
The voluminous report of the two special ethics counsel to acting Gov. Richard J. Codey recommending major change in government policies is available online at nj.gov/Ethics_report.pdf. It shows there is no single ethics code for state employees and there is no business ethics code for those seeking — and getting — state contracts. The special counsel, retired Justice Daniel J. O’Hern and Seton Hall Law Professor Paula Ann Franzese, also found the public doesn’t have easy access to financial disclosure forms and there is confusion about the state’s ban on employees receiving gifts. In addition, they found rules about where state employees may work after leaving their job aren’t specific enough. 3-15-05

A BUSY YEAR FOR THE FEDERAL COURTS
Overall case filings in federal appellate and trial courts climbed for the federal fiscal year ending Sept. 30. In the U.S. Courts of Appeals, the number of cases increased 3 percent for an all-time record and a 25 percent increase in the past decade. In the 3rd Circuit, however, the number of appeals dropped 2.2 percent from the year before. In the U.S. District Courts, total filings of civil and criminal cases increased 9 percent and climbed 20 percent the past 10 years. In New Jersey, filings rose 5.3 percent. Nationwide, the number of appeals was 62,762, of which 20 percent were administrative agency appeals. Those grew 23 percent to 12,255. The increase consisted primarily of appeals from decisions by the Department of Justice’s Board of Immigration Appeals. In addition, motions for habeas corpus relief began rising as many prisoners moved to vacate sentences in response to the Supreme Court’s decision in Blakely v. Washington. There were 352,360 civil and criminal cases filed in the U.S. District Courts. Civil filings increased 11 percent to 281,338 cases, and criminal filings rose 380 to 71,022, a 0.5 percent increase. Meanwhile, the U.S. Judicial Conference is asking Congress to create 68 new judgeships, including 53 permanent slots and 15 temporary posts. The proposal includes one temporary bench slot for the District Court in New Jersey, which now has 17 permanent judgeships. 3-15-05

ASBESTOS EXPOSURE AT HAMILTON PLANT POSES HAZARD
An initial state and federal review of the Zonolite/W.R. Grace site in Hamilton has shown no elevated cancer rates in the community nearest the Mercer County site where asbestos-contaminated vermiculite was processed for more than 40 years. However, vermiculite processing did pose a health hazard to factory employees and their families, and soil contamination at the site remains a concern, officials said. The state Department of Health and Senior Services and the federal Agency for Toxic Substances and Disease Registry have recommended that soil clean-up continue and that off-site soil samples be taken to further evaluate levels of asbestos contamination. They also recommended that a health screening or health study be considered for former Zonolite/W.R. Grace employees and their families, focusing on asbestos-related diseases. 3-15-05

LET THE JOCKEYING BEGIN
With interviews already under way to choose a successor for Monmouth County Prosecutor John Kaye, a county organization is pushing for First Assistant Prosecutor Robert A. Honecker Jr. to fill the post Kaye has held more than two decades. The 60-member Monmouth County Human Relations Commission is urging legislators to interview Honecker, a 24-year veteran of the prosecutor’s office. Monmouth’s Democratic Sen. Ellen M. Karcher already interviewed six potential candidates, who have not been identified. Honecker has worked with the Human Relations Commission since its inception. The group focuses on combating and preventing bias crimes through outreach and youth awareness programs. Kaye’s term ends in June, and acting Gov. Richard J. Codey has said he won’t renominate the Republican. Meanwhile, there’s no word yet on Attorney General Peter C. Harvey’s investigation into allegations Kaye interfered with a federal investigation that led to the arrest of 14 officials and businessmen in Monmouth County. 3-15-05

CASH, CREDIT CARD — OR FINGERPRINT?
There you are in the checkout line at the supermarket. Uh-oh. Short of cash? Run out of the house without a credit card? What to do? If you’re in a market in one southwestern German town, not to worry. Just point your finger — the index one will do very nicely — toward the scanner at the checkout and pay by fingerprint. Users in this pilot project register once, then the scanner compares their prints with those in a database. The technology has been tested since November and the Edeka chain now will equip all its stores. 3-15-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, MARCH 15, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, MARCH 15, 2005:

CRIMINAL TRIALS
STATE v. MUHAMMAD
New Jersey Supreme Court, A-88, March 15, 2005. (45 pages). Facts-on-Call Order No. 92357

In a trial for kidnapping and rape, the prosecutor’s repeated use of the defendant’s silence was a violation of his State law privilege against self-incrimination that was clearly capable of producing an unjust result, and the trial court’s charge on the lesser-included offense of sexual contact was not erroneous because neither party objected and because the record provides rational support for the conviction.

THE SUPREME COURT has announced that it will release an opinion in IN RE HARRIS, D-52/D-109, on March 16, 2005. Harris is a disciplinary action.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, MARCH 15, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, MARCH 15, 2005.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


SETTLEMENTS
GEROW v. KLEINERMAN
Appellate Division, A-6641-02T5 and A-5660-03T5, March 14, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17734

Orders (1) finding that the defendant had voluntarily and knowingly entered into a settlement agreement in a defamation action, (2) requiring that the defendant comply with an earlier enforcement order that directed him to sign an affidavit with the language agreed upon within 10 days, (3) requiring the defendant to pay $750 in attorney’s fees and providing for a warrant of arrest for noncompliance, and (4) holding the defendant in contempt of previous orders, directing him to execute the affidavit, and requiring incarceration for 30 days pending his signing of the affidavit affirmed in part, reversed in part, and remanded; there was no abuse of discretion in the attorney’s fee award, and there was no basis to disturb the trial court’s finding that the defendant had voluntarily and knowingly entered into the settlement agreement; however, the contempt and incarceration orders were “without legal basis” because the defendant was not required to sign the affidavit as part of the settlement; where the defendant “consistently explained” during the contempt hearing that he could not swear to the truth of the second paragraph in the affidavit because it was not true, his contempt could not be seen as willful.

PREMISES LIABILITY
LEONARDIS v. EDISON GLEN CONDOMINIUM ASSOCIATION
Appellate Division, A-3120-03T3, March 11, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17729

Summary judgment for the defendant property management company and against the defendant condominium association, holding that the association had agreed to indemnify the management company for the management company’s own negligence, reversed; in the main action, the plaintiff alleged that she fell on ice in a common area of the condominium, and she sued both the association and the management company; measured against the bright-line rule of Azurak v. Corporate Property Investors, the association did not expressly and unequivocally undertake to indemnify the man

PUBLIC EMPLOYEES
IN RE CARTER
Appellate Division, A-2599-03T2, March 14, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17732

Final decision of the Merit System Board removing the appellant from his position as senior corrections officer affirmed; the appellant was terminated because he failed to disclose on his application to work for the Department of Corrections his prior termination for cause from his employment with a detention center in Maryland; on the appellant’s appeal, the administrative law judge concluded that the Department had met its burden of showing that the appellant had “misrepresented and falsified his employment application,” but the ALJ held that a six-month suspension was appropriate; the Board agreed with the ALJ’s determination that the appellant had “intentionally falsified material information” on his application, disagreed with the ALJ’s recommendation about the sanction, and concluded that termination was appropriate; the Board’s decision was not arbitrary, capricious, or unreasonable.

PUBLIC EMPLOYEES
IN RE CORRECTIONS SERGEANT PROMOTIONAL EXAMINATION
Appellate Division, A-2545-03T5, March 14, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17733

Final decision of the Department of Personnel denying the petitioner union’s application to invalidate the results of the May 17, 2003 civil service promotional examination for the position of state corrections sergeant and to conduct a replacement examination affirmed; the petitioner asserted that the integrity of the examination had been “irreparably compromised” when an unknown individual left a copy of the booklet from the morning administration of the examination at the petitioner’s offices on May 21, 2003; the record supported the Department’s findings (1) that there were no “measurable differences” between the scores of the morning administration and the afternoon administration, (2) that the rumors of perfect scores were untrue and that the best score was 56 correct out of 70 questions, (3) that the cost of developing a new test was prohibitive, and (4) that the current list expired in October 2003, that there was no option to extend it, and that it was unlikely that a new test would be ready by then.

UNEMPLOYMENT COMPENSATION
GOODMANN v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-3483-03T2, March 14, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17730

Final decision of the Board of Review affirming the Appeal Tribunal’s finding that the appellant was entitled to unemployment benefits at a weekly rate of $482 with a maximum benefit of $6,507 affirmed; the appellant’s assertion that the first quarter of 2003 should have been used to calculate his unemployment benefits was inconsistent with the definition of “base year” under N.J.S.A. 43:21-19(c)(1) because the first four of the last five completed calendar quarters immediately preceding the appellant’s benefit year were January 1, 2002 through December 31, 2002 and because, under the definition, the first quarter of 2003 was not considered; contrary to the appellant’s assertion, an alternate base year should not have been used.

UNEMPLOYMENT COMPENSATION
WHITE v. BOARD OF REVIEW
Appellate Division, A-4997-03T3, March 14, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17731

Final decision of the Board of Review affirming the Appeal Tribunal’s dismissal of the petitioner’s appeal from the denial of unemployment benefits affirmed; a deputy claims examiner denied the petitioner benefits on January 17, 2004, and the petitioner filed her appeal on March 9, 2004, which was almost three months after the initial determination; an appeal must be filed within seven calendar days after delivery of the determination or within 10 calendar days after the mailing of the determination; the petitioner acknowledged that she had received the determination on or about January 17 but that she had not carefully read the notice that came with the determination because she assumed that she would not be able to collect unemployment benefits due to her receipt of disability benefits at the time; the petitioner’s failure to carefully read the notice was not a good cause for delay, and the Board’s determination was not arbitrary, capricious, or unreasonable.


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