NEW JERSEY LAWYER

DAILY BRIEFING      03/03/2005


News Briefs

FOR JUDICIARY, PROPOSED STATE BUDGET COULD BE WORSE
Acting Gov. Richard J. Codey’s proposed $27.4 billion fiscal year 2006 budget, if adopted, would cut overall spending about $1 billion. But the judiciary would see a slight increase in its appropriation — from $552.3 million to $554 million. Also in line for increases are the Department of Law and Public Safety, from $553.9 million to $560.5 million, and the Department of Corrections, from $904.5 million to $913.9 million. The department with the second-largest amount of spending, Human Services, would see its budget fall from $773.3 million to $759.7 million. 3-2-05

SPAT ESCALATES BETWEEN U.S. ATTORNEY AND PROSECUTOR
A very public spat between U.S. Attorney Christopher J. Christie and Monmouth County Prosecutor John Kaye seems headed for open warfare over what Kaye sarcastically has characterized as “a question of who has a bigger badge.” FBI agents this week served subpoenas on the prosecutor’s office, suggesting Christie is investigating whether Kaye intentionally interfered with a federal investigation into corruption in Monmouth County, as federal sources have alleged. Kaye claims he and his investigators inadvertently crossed paths with the long-running FBI sting called Operation Big Rig while pursuing cases of their own. Kaye — livid over Christie’s highly publicized move to subpoena several probers from the county prosecutor’s office — says he’s begun the process of filing a formal complaint about Christie with the U.S. Department of Justice. 3-2-05

FEDERAL BANKRUPTCY FILINGS DOWN, BUT STILL EXCEED 1.5 MILLION
Bankruptcy filings in the federal courts dropped 3.8 percent during 2004, from 1,660,245 petitions in the 12 months ending Dec. 31, 2003 to 1,597,462 last year, according to the Administrative Office of the U.S. Courts. Despite the decline, total filings still exceed the 1.5 million bankruptcies first reported in 2002, prompting the Judicial Conference of the United States to recommend to Congress that 47 bankruptcy judgeships be created in 31 judicial districts. The last bankruptcy judgeships were authorized in 1992, before total bankruptcies exceeded 1 million. Filings in New Jersey dropped 2.6 percent, from 42,377 in 2003 to 41,280 last year. Of those, 40,596 were personal bankruptcies and 684 were filed by businesses. Filings in the 3rd Circuit fell 1.4 percent from 105,770 to 104,288 in 2004. Only three circuits saw an overall increase, 3.5 percent in the 2nd Circuit and under 1 percent each in the 5th and 10th. 3-2-05

PUBLIC OFFICIALS ALLOWED CONFIDENTIALITY, 2ND CIRCUIT RULES
In a decision that conflicts with Clinton-era rulings that forced President Clinton’s lawyer to testify before independent counsel Kenneth Starr’s Whitewater grand jury, the 2nd U.S. Circuit Court of Appeals said public officials are entitled to confidential conversations with government lawyers. In a recent written opinion in In re Grand Jury Investigation, the appeals panel explained the reasoning behind a sealed ruling in August, stating that Anne George, legal counsel for Connecticut John G. Rowland’s office from 2000 to 2003, could not be forced to testify against Rowland before a grand jury investigating contract favoritism. “It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failing to do so, be encouraged to seek out and receive fully informed legal advice,” wrote Chief Judge John M. Walker Jr. The ruling creates conflicting legal precedent, according to Ross Garber, who argued on behalf of the governor’s office; but the Justice Department has not yet decided whether to appeal to the U.S. Supreme Court. 3-2-05

LEGAL SERVICES ANNOUNCES AVAILABILITY OF GRANTS
Complete information will be available the week of April 18 concerning competitive grant funds to provide civil legal services to eligible clients in specified service areas of the nation during 2006, Legal Services Corp. has announced. The Washington, D.C.-based nonprofit provides funding for civil legal assistance to those who cannot afford it. A listing of the covered service areas for each state, along with estimated grant amounts, are included in Appendix-A of the Request for Proposals, which will be available, along with other relevant information including filing dates and submission requirements, at ain.lsc.gov. Inquiries regarding the competition should be e-mailed to HYPERLINK "mailto:Competition@lsc.gov" Competition@lsc.gov. 3-2-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, MARCH 2, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, MARCH 2, 2005:

TORT CLAIMS ACT
COYNE v. STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION
New Jersey Supreme Court, A-1, March 2, 2005. (19 pages). Facts-on-Call Order No. 92331

In an action for injuries sustained by the plaintiff when he ran into a truck being used by a road cleaning crew on Route 287, (1) the defendant Department of Transportation and the defendant truck driver were not immune based on the record developed below on the defendants’ motion for summary judgment but (2) it could not be determined on the record whether the defendants’ actions were palpably unreasonable.

THE SUPREME COURT has announced that it will release an opinion in STATE v. DALZIEL, A-98 on March 3, 2005. The issue on appeal in Dalziel addresses whether the sentencing court’s findings and application of the aggravating and mitigating factors of N.J.S.A. 2C:44-1 constituted an abuse of discretion.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, MARCH 2, 2005.

NOT APPROVED FOR PUBLICATION
PUBLIC RECORDS
T.S. v. NEW JERSEY DIVISION OF CRIMINAL JUSTICE, CUSTODIAN OF RECORD
Appellate Division, A-4646-03T3, March 2, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17684

Final determination of the Government Records Council denying the appellant’s request under the Open Public Records Act for certain records from the New Jersey Division of Criminal Justice reversed and remanded for further proceedings; the appellant sought a copy of the file of a Division investigation that was based on his allegations of racial profiling, and the Council found that the file was not accessible under OPRA because the Division’s custodian stated that there was “no record information”; the Council’s response to the appellant’s request was inadequate because it “simply accepted” the statement of “no record information” without asking for clarification; there was no doubt that a file did exist and that it contained more than the information provided by the appellant, and the file was not expunged because there was no reason to do so; if the basis for the claim of “no record information” was that the file contained references to the appellant’s expunged conviction, it was “untenable”; the Council’s decision made judicial review “nearly impossible,” and its deference to the Division’s “cryptic” response was “unwarranted.”

INSURANCE
TAYLOR v. NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE
Appellate Division, A-175-03T1, March 2, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17685

Department of Banking and Insurance’s determination that the respondent insurer had not violated the governing regulations when it decided not to renew the appellant’s homeowner’s policy remanded for reconsideration; during the last seven years of renewal of the policy, the appellant submitted eight claims, but only three were paid; the insurer characterized the appellant’s insurance history as “one of an unacceptable loss history,” but the only “loss experience” that was “adverse” was the three paid claims; if there were valid underwriting standards that applied to the appellant’s insurance history, the appellant was entitled to be advised of those standards by the Department, and the Department’s decision did not do that.

WORKERS’ COMPENSATION
VARA v. HIMBER CONSTRUCTION CORP.
Appellate Division, A-3500-03T3, March 2, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17683

Determination that the petitioner surviving spouse was entitled to dependency benefits affirmed substantially for the reasons expressed by the judge of compensation; the decedent, who was a construction supervisor, was killed in an automobile accident while he was driving his own vehicle to a job site and was using a cell phone provided by the respondent employer to coordinate work efforts with a subcontractor; the respondent admitted that it had paid the decedent a weekly car allowance of $140 and that it had paid all usage charges for the cell phone; the judge of compensation found that the accident was compensable under the employer authorized vehicle exception and that the decedent was conducting business and was under the respondent’s control and direction when the accident occurred.

WORKERS’ COMPENSATION
MURPHY v. SUNROOMS OF AMERICA, INC.
Appellate Division, A-1636-03T1, March 2, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17682

Dismissal of the petitioner employee’s claim for workers’ compensation benefits and denial of the petitioner’s motion for reconsideration affirmed substantially for the reasons expressed by the judge of compensation; the petitioner alleged that he was injured when he lifted scaffolding on November 1, 2001, but he sought to amend the date of his injury to October 25, 2001 during his testimony because the proofs indicated that he had not worked on November 1; the respondent employer presented proofs that contradicted the petitioner’s allegations, including a nonparty witness who directly contradicted the petitioner’s testimony; the judge of compensation properly found the respondent’s witnesses to be more credible than the petitioner and dismissed the claim because the petitioner had not met his burden of proof.

LAND USE
MDM CONTRACTORS, INC. v. BOARD OF ADJUSTMENT OF TOWNSHIP OF PEQUANNOCK
Appellate Division, A-3093-03T1, March 1, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17680

Order dismissing the plaintiffs’ action in lieu of prerogative writs and upholding the defendant Board of Adjustment’s decision that denied the plaintiffs’ variance application and that determined that the denial was not a regulatory taking affirmed; the Law Division properly affirmed the Board’s decision because it was not arbitrary, capricious, and unreasonable for the defendant to conclude that the grant of the variance in this case would not “improve” the zoning in a way that would benefit the community, as opposed to benefiting only the landowner; furthermore, the denial was not a taking because the property in question “was not zoned into idleness” but became idle as a result of the sale of the adjacent property, which was an action taken by the plaintiff property owner.

PUBLIC EMPLOYEES
ZOPPI v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
Appellate Division, A-5776-03T5, March 1, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17681

Final decision of the Public Employees’ Retirement System denying the petitioner truck driver for New Jersey Transit accidental disability retirement benefits affirmed; the petitioner was injured when he fell from a truck and landed on his back in 1996, and he claimed a work-related injury; the petitioner had been involved in both work-related and non-work-related accidents in 1981, 1992, and 1998; in its final decision, PERS adopted the administrative law judge’s determination that the 1996 traumatic event “was not the essential significant or substantial contributing cause” of the petitioner’s disability; although one part of the ALJ’s decision referred to a sole-cause test, it was clear that the correct test was applied when the entire decision was considered; PERS did not err when it adopted the ALJ’s decision, and PERS’s final decision was supported by sufficient credible evidence in the record.


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