NEW JERSEY LAWYER

DAILY BRIEFING      03/17/2005


News Briefs

BAR ASSOCIATION BLASTS LOBBYING PROPOSAL
A representative of the New Jersey State Bar Association has warned the state Election Law Enforcement Commission that proposed revisions to state lobbying rules, which would classify lawyers as lobbyists for seemingly nonpolitical activity and require them to report to the commission, encroaches on the New Jersey Supreme Court’s constitutional authority over the practice of law. The commission so far hasn’t decided how to implement the controversial law that has generated criticism from numerous organizations furious over some of the law’s provisions, including payment of a $450 licensing fee by anyone deemed a lobbyist under the statute’s broad definitions. 3-16-05

$25 MILLION SETTLEMENT FOR SELLING DEFECTIVE FILM
Jazz Photo Corp. of Piscataway agreed to accept $25 million from Imation Corp. for knowingly selling 1 million rolls of defective film. The parties settled during opening arguments of their federal trial in Newark before U.S. District Judge Jose L. Linares, according to Jazz Photo’s attorney, Peter John Frazza of Short Hills. Jazz Photo, a reloader of disposable cameras, said the prints developed from the film were badly discolored and that Imation of Oakdale, Minn., failed to reveal and subsequently denied the film was faulty even after other users had experienced similar problems. The faulty film forced Jazz Photo, now in bankruptcy, to cancel a contract to deliver 5 million disposable cameras to Wal-Mart Stores, according to ComputerWorld magazine. Imation will pay $20.95 million and its insurers will pay the remainder, according to Frazza. Bankruptcy Judge Morris Stern approved the settlement. 3-16-05

NEW RULES IN CAPITAL CASES
The New Jersey Supreme Court has approved new rules dealing with aggravating factors in death penalty cases. One change requires prosecutors in their formal indictments to include the aggravating factors the state intends to prove at the penalty phase of the murder trial. If, for some reason, those factors are not cited then, but are contained in a supplemental indictment, the prosecutor must give the defendant discovery opportunity regarding the newly cited factors. It is further specified that only for good cause will supplemental indictments listing aggravating factors be allowed to be filed after 90 days from the time the original indictment was handed up. 3-16-05

CUMBERLAND PROSECUTORS GET EXTRA $3.5 MILLION
Cumberland County freeholders have agreed to fund the county prosecutor’s office an additional $3.5 million to hire more detectives and purchase equipment as a result of a Quigley action filed by County Prosecutor Ronald J. Casella. A Quigley action allows prosecutors to take disagreements over budget matters to Superior Court. However, the two sides, in their hearing before Assignment Judge George H. Stanger Jr., could not resolve how to fund detective salary increases as high as 30 percent, reports The Press of Atlantic City. 3-16-05

JUDGES’ SAFETY IN THE SPOTLIGHT
In the wake of the murders of U.S. District Judge Joan Humphrey Lefkow’s husband and mother in Illinois and the killing of a judge in Atlanta and three others in a courthouse, the Judicial Conference of the United States called on the Justice Department and U.S. Marshal’s Office to review “all aspects of judicial security and, in particular, security at judges’ homes and other locations away from the courthouse.” In New Jersey, sheriff’s departments have responded to last Friday’s shooting in Georgia by reviewing the safety within state courthouses. For example, Passaic County Assignment Judge Robert J. Passero met with court staff to discuss security procedures, and Middlesex County sheriff’s officers and local police reviewed response procedures in case of an assault in courthouses in New Brunswick. Similar steps were taken in South Jersey. 3-16-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, MARCH 16, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, MARCH 16, 2005:

ATTORNEYS
IN RE HARRIS
New Jersey Supreme Court, D-52/D-109, March 16, 2005. (26 pages). Facts-on-Call Order No. 92358

The pattern of the respondent attorney’s conduct over a course of years made clear that she did not possess the essential qualifications to practice law in New Jersey, her persistent and multiple violations of the Rules of Professional Conduct did not allow a finding that she was professionally salvageable, and protection of the public and preservation of the integrity of the legal profession required her disbarment.

THE SUPREME COURT has announced that it will release opinions in OSTROWSKI v. CAPE TRANSIT CORP., A-66, and TOWNSHIP OF MONROE v. GASKO, A-30, on March 17, 2005. The issue on appeal in Ostrowski addresses whether evidence of the plaintiff’s good character and honesty was admissible in light of the defendants’ claims that the plaintiff was faking his symptoms of a brain injury and the testimony of the defendants’ experts to that effect. The issue on appeal in Township of Monroe addresses whether the greenhouse structures in this case were exempt from local property taxation as single-use agricultural facilities under N.J.S.A. 54:4-23.12(a), given the extent of their use for sales and marketing activities.



APPROVED FOR PUBLICATION
ATTORNEYS
NEWELL v. HUDSON
Appellate Division, A-4813-03T1, approved for publication March 16, 2005. (30 pages). Facts-on-Call Order No. 92359

A litigant who either lied or later claimed that she lied about her understanding and voluntary acceptance of the terms of her property settlement agreement to induce the court to accept and incorporate it into a judgment of divorce is judicially estopped from asserting a claim for malpractice against her matrimonial attorney based on the settlement.

PARENT AND CHILD
CHRISTENSEN v. CHRISTENSEN
Appellate Division, A-3290-03T3, approved for publication March 16, 2005. (13 pages). Facts-on-Call Order No. 92360

In a child support action where the doctrine of equitable estoppel was applied as between the stepfather and the biological father, the Family Part’s critical omission of a finding about the biological father’s ability to pay child support required a remand, and under appropriate circumstances both the stepfather and the biological father could be required to contribute to child support.

INSURANCE
MEDICAL SOCIETY OF NEW JERSEY v. AMERIHEALTH HMO, INC.
Appellate Division, A-3542-03T1, approved for publication March 16, 2005. (19 pages). Facts-on-Call Order No. 92361

In an action by the Medical Society of New Jersey, which is an association of 8,000 New Jersey physicians, against the defendant health insurer alleging that the defendant had wrongfully refused or delayed payment to physicians who had contracts with the defendant, dismissal of the claims was proper (1) because the Society’s factual claims could have been submitted to the Commissioner of Banking and Insurance for investigation or could have been the subject of a lawsuit by the physicians, (2) because the complaint did not state a cause of action under the Consumer Fraud Act, on Pierce public policy principles, or for tortious interference with prospective economic advantage, (3) because the Health Care Information Technologies Act did not create a private cause of action for third parties such as the Society, and (4) because the Society did not have standing to sue the defendant for breach of contract or breach of the duty of good faith and fair dealing because it was not a party to the contracts between the physicians and the defendant.

NOT APPROVED FOR PUBLICATION
CIVIL PROCEDURE
LANZI v. POLIZIANA
Appellate Division, A-3267-03T2, March 16, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17735

Law Division order dismissing the defendants’ counterclaim with prejudice reversed; when they answered the plaintiff’s complaint for contract damages, the defendants counterclaimed for fees and sanctions on their claim that the complaint was frivolous; on the day of trial, the court granted the plaintiff’s motion to voluntarily dismiss the complaint with prejudice and also dismissed the counterclaim over the defendants’ objections; the trial court “misconstrued” Rule 4:37-1(b) and ignored the provision of the Rule that precludes the dismissal of an action where the defendant-counterclaimant has objected unless the counterclaim “can remain pending for independent adjudication by the court”; proper procedure would have been to dismiss the complaint with prejudice while allowing the defendants to try to perfect their right to relief in a post-judgment motion.

LANDLORD AND TENANT
ZAKLAMA v. BANOBE
Appellate Division, A-1780-03T3, March 16, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17736

Money judgment for the defendant residential tenant in the plaintiff landlord’s action for possession for nonpayment of rent affirmed; the tenant asserted the defense of breach of the warranty of habitability, paid three months’ back rent into court, and announced that he would move from the premises at the end of August 2003; after trial, the judge abated the rent from $780 to $500 per month, awarded the landlord the difference between $1,500 of abated rent and the $1,050 security deposit, and awarded the tenant the difference between the $2,340 deposited into court and the award to the landlord; contrary to the landlord’s arguments on appeal, the tenant was entitled to abatement, he gave adequate notice of the defects, he gave adequate notice to terminate the lease, and the court did not err by conducting trial in the absence of the landlord’s attorney because the landlord waived his attorney’s presence; in addition, allowing the tenant to offset his security deposit against rent due was an appropriate remedy for the landlord’s failure to comply with the security-deposit statute.

PUBLIC EMPLOYMENT
CITY OF PATERSON v. PATERSON POLICE PBA LOCAL 1
Appellate Division, A-5759-03T5, March 16, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17737

Orders vacating an arbitrator’s award in the defendant police unions’ favor that enforced an extra-contractual practice of awarding detective and night differential payments to 60 union members, that required that the affected members be made whole, and that retained jurisdiction to enforce the remedy affirmed; there were no legal or equitable grounds that would allow for the continuation of payment practices that were contrary to the collective bargaining agreement or to public policy; contrary to the situation in Office & Prof. Employees Internat. Union Local 32, ALF-CIO v. Camden Cty. Munic. Utilities Auth., the past practices provision of the collective bargaining agreement specifically precluded reliance on the past practices when addressed by a contrary contractual term.

PUBLIC EMPLOYEES
IN RE FLANAGAN
Appellate Division, A-953-03T1, March 16, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17738

Merit System Board’s final decision adopting the administrative law judge’s initial decision that ordered reinstatement of the respondent police officer affirmed substantially for the reasons expressed in the ALJ’s decision; the respondent’s urine sample in a lawful random drug test tested positive for “cannabinoids,” the appellant police department concluded that this was evidence of the respondent’s consumption of marijuana, and it was the appellant’s policy to terminate any officer found to have ingested an illegal drug; the respondent denied having ingested marijuana and testified that his fiancee had been taking hemp supplements to help deal with her chemotherapy and that she shared them with him to reduce his stress; the ALJ “justifiably discounted” the testimony of the appellant’s experts that the respondent’s test results must have been the product of marijuana consumption.


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