NEW JERSEY LAWYER

DAILY BRIEFING      03/02/2005


News Briefs

NEITHER SNOW, NOR RAIN — WELL, MAYBE SNOW
New Jersey Supreme Court oral arguments were snowed out Tuesday, putting two of the term’s most critical criminal cases on hold until March 14 when, weather permitting, they’ll be heard. State v. Natale and State v. Abdullah involve an examination of judge-enhanced sentencing in New Jersey in light of recent U.S. Supreme Court decisions. The Appellate Division has split on whether the statutory presumption of a sentence at or near the middle of the range imposed for a particular degree of crime is the most that can be given without a jury finding the existence of aggravating factors. The state contends any prison term within the range specified in the sentencing statute is legal. 3-1-05

MAKING PARTNER GETTING TOUGHER
The number of equity partners at large law firms grew just 2.5 percent last year, down from 3 percent growth in 2002 and 4.5 percent five years ago, according to a study by Citigroup Private Bank. Last year, more lawyers were promoted into salaried senior positions, which carry less prestige and do not share in the firm’s profits. But while the pace of equity partnership growth slowed, profits per partner, often cited as an indicator of the firm’s success, grew 8.9 percent in 2004. One reason is that the fewer people sharing the profits, the more each receives; but lawyers also are working more, with the number of hours billed rising 2.5 percent last year after falling each of the previous three years. In the past, much law firm profit growth was the result of increases in billable rates, but those increases are becoming more difficult to pass along to clients, the numbers suggest. Hourly rates grew 5.1 percent last year compared to 5.7 percent in 2003 and 12.3 percent in 2000. 3-1-05

HIGH COURT TO CLARIFY WHERE CLASS ACTIONS CAN BE BROUGHT
The U.S. Supreme Court will use a renters’ personal injury lawsuit over toxic mold to clarify when plaintiffs can sue in federal or state court, a hot topic since President Bush last month signed legislation aimed at steering class-action lawsuits to federal court. Consumers often sue in state court, where awards tend to be larger. Examining whether Virginia renters Christophe and Juanita Roche can sue their landlord, Texas-based Lincoln Property Co., in state court in Virginia, the justices will clarify what determines a corporation’s “citizenship” in both individual and class-action lawsuits when a company has subsidiaries in multiple states. The Richmond-based 4th U.S. Circuit Court of Appeals had ruled Lincoln Property was a “citizen” of Virginia because it conducted business through a subsidiary there. Lincoln’s appeal is supported by an array of businesses arguing the ruling would unfairly expose them to litigation in state court. 3-1-05

SECOND CIRCUIT WEIGHS IN ON SENTENCING
The U.S. Supreme Court’s recent decision that the mandatory application of the federal sentencing guidelines is unconstitutional does not give district court judges “unfettered” discretion, ruled the 2nd U.S. Circuit Court of Appeals. In U.S. v. Crosby, the defendant appealed a 10-year prison sentence that included three enhancements based on findings by the trial judge. While the appeal was pending, the Supreme Court decided in U.S. v. Booker that the mandatory application of the federal sentencing guidelines violated the Sixth Amendment right to trial by jury when a judge, rather than a jury, decided the facts underlying a sentence enhancement. In remanding Crosby for resentencing, the appeals court said “it would be a mistake to think that, after Booker, district judges may return to the sentencing regime that existed before 1987 and exercise unfettered discretion to select any sentence within the applicable statutory maximum and minimum,” adding sentencing judges have a statutory obligation to “consider the guidelines.” 3-1-05

ILLEGAL IMMIGRATION CASE LOAD BURDENS COURT INTERPRETERS
The number of times federal courts used court interpreters jumped more than 18 percent last year, from 189,044 in fiscal year 2003 to 223,996 in fiscal year 2004. The increase is traceable, in part, to an increase in petty offense and immigration filings in the Southern District of Texas and other border patrol areas, due to stepped-up efforts to stop a flood of illegal border crossings. Spanish accounted for 95 percent of all reported occasions when an interpreter was necessary. But federal courts also required interpreting in a variety of other languages, including Mandarin, Arabic, Russian, Vietnamese, Portuguese, Cantonese, Korean, French and Haitian Creole. 3-1-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, MARCH 1, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, MARCH 1, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, MARCH 2, 2005.


APPROVED FOR PUBLICATION
JURY INSTRUCTIONS
STATE v. DENOFA
Appellate Division, A-4303-02T4, approved for publication March 1, 2005. (33 pages). Facts-on-Call Order No. 92330

Because territorial jurisdiction is an element of every crime, the trial court must instruct the jury on that element where the evidence raises a question as to whether the crime charged was committed in New Jersey; in this murder prosecution, the court should have given that instruction, even though the defendant introduced no affirmative evidence to establish that the death occurred elsewhere and made no argument addressed to the issue.

NOT APPROVED FOR PUBLICATION
HOPE STEAM FIRE ENGINE COMPANY NUMBER ONE OF THE CITY OF BURLINGTON v. CITY OF BURLINGTON
Appellate Division, A-2402-03T5, March 1, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17677

Summary judgment for the defendant City in the plaintiff volunteer fire company’s action in lieu of prerogative writs and denial of the plaintiff’s cross-motion for discovery affirmed; the City adopted an ordinance to remove the plaintiff as one of the six volunteer fire companies in the City’s Fire Division; the plaintiff claimed that the City relied on erroneous information that the plaintiff could not provide effective fire service or attract sufficient membership; this claim was not enough to overcome the presumption that the ordinance was valid, particularly in light of the City administrator’s 16 months of investigation and negotiations and the endorsement of the City’s Board of Fire Engineers; moreover, the trial judge correctly held that allowing litigants to obtain discovery from part-time municipal officials “could literally bring to its knees the operations of a city government.”

MUNICIPAL CORPORATIONS
OSTERGREN v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HILLSBOROUGH
Appellate Division, A-6475-03T5, March 1, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17675

Law Division judgment that the ordinance approved by the defendant Township Committee was void ab initio affirmed; the ordinance, which sought to place the issue of whether to form a charter commission to study changing the Township’s form of government on the 2004 general election ballot, was unanimously approved by the Township Committee after a public hearing; the trial court found that the defendants had not complied with N.J.S.A. 40:49-1 because the notice of the hearing did not state (1) when and where the ordinance could be viewed and copied and (2) that the members of the charter commission would be elected by the public; contrary to the defendant’s argument on appeal, the failure to include the required information was not a “mere technicality” but was a “fatal defect.”

NEGLIGENCE
JIMINIAN v. MARIN
Appellate Division, A-989-02T5, March 1, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17679

Judgment of no cause of action in an automobile negligence case affirmed; contrary to the plaintiff’s argument on appeal, the trial court did not commit reversible error when it refused his request to instruct the jury that the defendant had a duty to yield under N.J.S.A. 39:4-144; furthermore, there was no basis for the plaintiff’s request for Model Jury Charge, Civil, 5:20, G4 — which addresses when the view of the roadway is impaired by obstructions caused by “darkness, fog, rain on glass or other such obstruction” — where the defendant referred to a “blind spot” coming off the ramp (1) because the testimony on which the plaintiff relied referred to a point on the ramp before the yield sign, (2) because there was no evidence that a driver at the yield sign had an obstructed view, and (3) because the fact that the accident happened in the early morning hours did not require the instruction.

CIVIL PROCEDURE
KARLSEN v. MATACERA
Appellate Division, A-2012-03T3, March 1, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17678

Dismissal of the plaintiff’s complaint alleging false arrest, police brutality, malicious prosecution, false reports, and defamation against the defendant North Brunswick public officials and police officers and summary judgment for the defendant South Brunswick police officers affirmed; although the plaintiff raised “serious charges of misconduct,” he did not sufficiently justify why he failed to answer the interrogatories provided by the North Brunswick defendants and why summary judgment was improperly entered as to the South Brunswick defendants; there was substantial compliance with Rule 4:23-5 and Rule 4:46, and there was no legal basis to overturn the trial court’s decisions.

DOMESTIC VIOLENCE
DEMPSEY v. DEMPSEY
Appellate Division, A-5299-03T3, March 1, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17676

Final domestic violence restraining order entered against the defendant husband affirmed; the plaintiff wife filed a divorce complaint against the defendant in January 2004, the defendant answered and counterclaimed in March, and both parties continued to live in the marital home; the plaintiff twice went to the police to report that the defendant was verbally abusive, and she filed a domestic violence complaint in April, alleging that the defendant slammed a door in her face and threatened her; the trial court found the testimony of the plaintiff and two witnesses more credible than the defendant’s testimony, and it concluded that the defendant’s behavior constituted harassment; the trial court’s decision was supported by the record.

HUSBAND AND WIFE
GOLDSTEIN v. GOLDSTEIN
Appellate Division, A-415-03T3, February 28, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17673

Order that directed the defendant ex-husband to pay the plaintiff ex-wife 20 percent of his 2002 income in excess of $320,000 and an order that required income in excess of $60,000 that was advanced to the defendant in 2001 to be counted toward his 2002 income, that prohibited the deduction of alimony payments from the defendant’s gross income for purposes of calculating alimony, and that directed the defendant to pay $1,000 in attorney’s fees affirmed in part but remanded for a hearing on the defendant’s advance; the parties’ property settlement agreement provided for the plaintiff to receive 20 percent of the defendant’s gross earnings that exceeded $320,000, and she claimed that the defendant’s 2002 gross income exceeded $320,000; the defendant admitted earning $367,214 in 2002, but he claimed that, before the PSA was executed, the plaintiff had consented to his taking an advance on his 2002 salary in 2001; although a hearing was required to resolve the factual dispute about the advance, the PSA was “clear and unambiguous” that alimony could not be deducted from the defendant’s gross income, and there was no abuse of discretion in the attorney’s fees award.

FLEMING v. BOARD OF TRUSTEES OF THE POLICE AND FIREMEN’S RETIREMENT SYSTEM
Appellate Division, A-3431-03T3, February 28, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17674

Final determination of the Board of Trustees of the Police and Firemen’s Retirement System that forfeited the petitioner former county corrections officer’s entire pension benefit reversed and remanded; the petitioner worked as a corrections officer from May 1977 to March 1985, when he resigned after he pleaded to fourth-degree endangering the welfare of a child; the plea was based on conduct that occurred between March and May 1984 but that did not occur either at work or during work time; the Board incorrectly determined that the petitioner’s criminal conduct was “directly related” to his public duties; based on the totality of the circumstances, the Board’s decision was arbitrary, capricious, and unreasonable.


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