NEW JERSEY LAWYER

DAILY BRIEFING      03/04/2005


News Briefs

AUTO INSURER PLANNING RETURN AFTER 22 YEARS
Ohio-based Progressive Casualty Insurance hasn’t yet applied for re-entry into New Jersey’s insurance market, but once it does, approval could take several months. According to acting Banking and Insurance Commissioner Donald Bryan, the nation’s third-largest auto insurer “is seriously considering” returning to New Jersey after a 22-year absence. “We are optimistic about our entry,” said Progressive President Glenn Renwick in the company’s annual report. Relatively low profits and excessive red tape drove Progressive from the state in 1983, one of dozens of companies that bolted between the mid-1970s and mid-1990s. An industry-friendly overhaul of the market by the Democratically controlled legislature two years ago prompted the company to seriously consider returning. Several other major carriers also have come back and others have expanded their operation here. 3-3-05

LEGISLATURE DEBATES ADOPTEES’ RIGHTS
It’s been a magnet for fever-pitch debate for years, and emotions seem to be running higher than ever now, with the legislature caught in the middle of a seemingly never-ending controversy. Does the right of adoptees to know where they came from, through access to their original birth records, trump the right of birth parents to keep their identity secret from the children they conceived and chose to place for adoption? Or is the dichotomy a false one, as some claim? For a full story, see the March 7 New Jersey Lawyer. 3-3-05

HARVARD’S MILLER TO DISCUSS PRIVACY CONCERNS
Harvard Law Professor Arthur R. Miller will address the question “Privacy Rights: Are Any Left After 9/11?” at 4 p.m. Tuesday at Seton Hall University School of Law. A frequent legal commentator on television, for eight years he hosted “Miller’s Court” and practically pioneered the debate on privacy in the age of computers with his 1971 book The Assault on Privacy. Miller also has moderated PBS dialogues on the constitution, health care and the presidency. His appearance at Seton Hall is part of the Student Bar Association’s Distinguished Guest Lecture Series. 3-3-05

RETIREMENT PLANS THREATENED BY THEFT
As defined-contribution plans like 401(k)s have skyrocketed in popularity, so have opportunities to tap into them illegally. In fact, U.S. Department of Labor investigators found 1,269 instances of missing 401(k) money in the fiscal year ending Sept. 30, a 37-fold increase from 34 violations in 1995. Protections for such funds are relatively weak. Although the federal government requires an annual independent audit for retirement plans with at least 100 workers, more than 500,000 plans don’t meet that minimum. And theft can be surprisingly simple, say experts. Employers may collect contributions from workers’ paychecks but never deposit that money in 401(k) accounts or fail to make promised contributions to savings plans. Workers are advised to check that the amount deducted from their paycheck matches the deposit into their 401(k). And at retirement, the money should be rolled into an IRA. 3-3-05

COURT RULES DELIVERY MAN NOT ‘TRANSPORTATION INDUSTRY WORKER’
A store employee who sued his employer for racial discrimination is not a “transportation industry worker” exempt from mandatory arbitration, even though his job duties include making deliveries to out-of-state customers, says the 11th U.S. Circuit Court of Appeals. In Hill v. Rent-A-Center, the employer moved to enforce the mandatory arbitration provisions of the Federal Arbitration Act, and the employee objected on the basis that the law states it does not cover “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” But the 11th Circuit, citing similar rulings in other jurisdictions, said in creating an exception for interstate commerce workers, Congress’ focus was on “a class of workers in the transportation industry, rather than on workers who incidentally transported goods interstate as part of their job in an industry that would otherwise be unregulated.” 3-3-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, MARCH 3, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, MARCH 3, 2005:

SENTENCING
STATE v. DALZIEL
New Jersey Supreme Court, A-98, March 3, 2005. (19 pages). Facts-on-Call Order No. 92332

The matter was remanded for resentencing because the trial court did not apply the proper sentencing standards, including a failure to consider mitigating factors grounded in the record.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, MARCH 4, 2005.



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

NOT APPROVED FOR PUBLICATION
PARENT AND CHILD
SCHWAKE v. WEISINGER
Appellate Division, A-6075-03T5, March 2, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17689

Family Part order requiring the defendant father to pay a maximum of $548 per week of a child support award of $839 per week for his two children reversed and remanded for the entry of an order requiring the defendant to pay $839 per week; the defendant had the children’s mother removed following allegations that she was abusing prescription medication, and he later abandoned the children; after they were placed in a foster home, the children were taken in by the plaintiffs, who were their maternal grandfather and stepgrandmother; the Family Part erred by considering the plaintiffs as parents and by considering their income when it calculated the defendant’s child support obligation; the plaintiffs were more properly characterized as foster parents, and only the defendant’s income should have been considered when calculating child support.

PARENT AND CHILD
DIVISION OF YOUTH AND FAMILY SERVICES v. V.H.
Appellate Division, A-6172-03T4, March 2, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17691

Judgment terminating the defendant mother’s parental rights to her 5-year-old son and awarding care, custody, and control of the son to the Division of Youth and Family Services affirmed; the son’s father surrendered his parental rights before trial; DYFS had removed the son from the defendant when he was 18 months old, and the son had lived with his foster parents since he was 3 years old; the defendant was undergoing treatment for bipolar disorder and drug and alcohol addiction, but she admitted that she was not yet able to care for her son; the trial court found that DYFS had met its burden of proving the criteria under N.J.S.A. 30:4C-15.1; the trial court applied the correct standard, and its decision was based on factual findings that were adequately supported by the record.

HUSBAND AND WIFE
MEYERS v. MEYERS
Appellate Division, A-6741-03T2, March 2, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17686

Post-divorce-judgment order denying the defendant ex-wife’s motion for an increase in support affirmed substantially for the reasons expressed by the Family Part; the April 9, 1997 property settlement agreement provided for the defendant to receive $2,500 per month for three years and $1,666.67 per month after that until her support ended on September 1, 2004; the defendant sought to convert her term alimony into permanent alimony because her clinical depression had gotten worse since the PSA was executed; the Family Part concluded that the defendant had not established a case of changed circumstances where the defendant had suffered from depression when the PSA was executed and where her medical condition was contemplated by the parties to the PSA.

APPELLATE PROCEDURE
APPLICATION PURSUANT TO N.J.S.A. 17:12b-121 REGARDING CLIFTON SAVINGS BANK, S.L.A.
Appellate Division, A-3342-03T3, March 2, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17688

Appeal from the Department of Banking and Insurance's February 13, 2004 denial of the appellant's request that the Department order the respondent bank to mail to its members a communication from the appellant that named two individuals whom the appellant wanted to nominate as directors dismissed as moot; the members were scheduled to vote on February 27 whether to accept the bank's proposal to convert from a mutual savings association to a capital stock association, and the appellant wanted his communication to be included with the materials that the bank circulated to its members before the vote; after the Department's denial, the members voted to approve the conversion, and stock was issued and publicly traded; the three decisions on which the appellant relied to contend that his appeal was not moot were distinguishable, and there was no effective relief that could be granted to the appellant.

CRIMINAL TRIALS
STATE v. ALSTON
Appellate Division, A-5906-02T4, March 2, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17690

Convictions of aggravated manslaughter, aggravated assault, and three weapons offenses affirmed; the 17-year-old defendant shot at a car that was driving past him, and the car’s passenger was killed; contrary to the defendant’s arguments on appeal, (1) the trial court did not commit reversible error when it excluded a police officer’s report and (2) the prosecutor’s comments discussing his son and asking the jurors what they would have done if they were presented with the same circumstances were inappropriate but were not egregious enough to require a reversal of the defendant’s convictions where the defendant declined the trial court’s offer to issue a curative instruction.

CRIMINAL TRIALS
STATE v. MOORE
Appellate Division, A-6189-03T5, March 2, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17687

Convictions of official misconduct, harassment, and contempt for violating a restraining order affirmed; while a restraining order was in effect, the defendant police officer repeatedly phoned his estranged wife, went to her workplace, used his police car to stop her vehicle, and used police facilities to obtain her address; contrary to the defendant’s arguments on appeal, the trial court did not err by charging the jury on harassment as a lesser-included offense of stalking or by refusing to admit tapes of messages that the wife left on the defendant’s answering machine; although the trial court’s limiting instructions concerning the wife’s testimony about the defendant’s prior bad acts were “marginal at best,” the failure to provide a more tailored instruction was not error that was “clearly capable of producing an unjust result.”


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