NEW JERSEY LAWYER

DAILY BRIEFING      04/14/2005


News Briefs

STAGE SET FOR ONGOING MINIMUM WAGE INCREASES
Legislation signed by acting Gov. Richard J. Codey to increase the state’s minimum wage also sets the stage for more frequent minimum wage boosts in the future. The law increasing the rate from $5.15 now to $6.15 in October and to $7.15 in October 2006 also establishes a state Minimum Wage Advisory Commission that annually will evaluate whether the minimum wage is keeping pace with the cost of living, federal poverty guidelines and other factors. That body will be comprised of the state labor commissioner and two members each from business and labor unions. 4-13-05

HIS FIRST AMENDMENT RIGHTS WERE VIOLATED, BUT …
A Marlboro man who was arrested by township police for painting an anti-Arab slur on the side of his truck on the day of the Sept. 11 terrorist attacks may not sue the arresting police, ruled the 3rd U.S. Circuit Court of Appeals. In Schlaflin v. Borowsky, Paul J. Schlaflin sued arresting officers in U.S. District Court after he was acquitted of a charge of bias harassment. The law he was arrested under has since been repealed because of constitutional concerns. The 3rd Circuit panel said that although the First Amendment should have protected Schlaflin, the police did not act unreasonably by using the since-repealed statute as a guide. (A full text of Schlaflin, Order No. 17828, is available from the NJL Facts-on-Call Service, 800-670-3370.) 4-13-05

APPELLATE DIVISION TAKES ARGUMENTS TO JERSEY CITY
Jersey City area lawyers and others will have an unusually convenient opportunity to see the state’s Appellate Division in action next Wednesday, when a panel for the first time hears oral arguments in that city. Arguments in six cases will begin at 10 a.m. on the fourth floor of the William J. Brennan Jr. Courthouse at 538 Newark Ave. 4-13-05

LAWMAKER BLASTS WAL-MART IN PLAN FOR HEALTH INSURANCE BILL
Citing corporations like Wal-Mart that increase profits by skimping on employees’ benefits, Assemblyman Louis D. Greenwald (D-Camden) is preparing a bill that would require large companies to spend at least 8 percent of their payroll on employee health insurance. Large companies “need to help offset the costs of charity care and not add to the burden, and Wal-Mart is an example of that,” said the legislator who plans to introduce his bill when the Assembly reconvenes in early May. Wal-Mart spokesman Nate Hurst countered, “Legislation aimed to take a swipe at a company that provides more than 12,500 jobs in the state is not good legislation.” 4-13-05

PENSION FUNDS STILL UNDERFUNDED DESPITE INVESTMENT GAINS
Corporate pension assets stabilized somewhat last year, but the biggest funds on average remain under-funded, according to Milliman Consultants and Actuaries in Seattle. Its study of 100 of the country’s largest pension funds found although they had investment gains last year, their liabilities also grew. Pension funds now hold 90 cents for every dollar owed workers and retirees at the end of 2004, up one cent from a year before, the firm said. 4-13-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, APRIL 13, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, APRIL 13, 2005:

CRIMINAL TRIALS
STATE v. B.H.
New Jersey Supreme Court, A-59, April 13, 2005. (44 pages). Facts-on-Call Order No. 92411

In light of the requirements of the duress statute, N.J.S.A. 2C:2-9, courts must apply the standard of a “person of reasonable firmness” when determining whether duress excuses criminal conduct, and Battered Women’s Syndrome expert testimony is not relevant to that analysis. Evidence of Battered Women’s Syndrome (1) is relevant to a defendant’s subjective perception of a threat from her abuser and, in that respect, may be relevant to her credibility and (2) aids the jury in explaining why the defendant would remain with her abuser and, therefore, why she should not be perceived as acting recklessly.

CRIMINAL TRIALS
STATE v. BRENNAN
New Jersey Supreme Court, A-16, April 13, 2005. (8 pages). Facts-on-Call Order No. 92412

Based on the decision in State v. B.H., the New Jersey Supreme Court vacated the trial court’s order which held that expert testimony on Battered Women’s Syndrome was admissible to support a duress defense, and it remanded to the trial court for further proceedings. This is a companion case to State v. B.H.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, APRIL 14, 2005.



APPROVED FOR PUBLICATION
INSURANCE
WALCOTT v. ALLSTATE NEW JERSEY INSURANCE CO.
Appellate Division, A-5569-03T1, approved for publication April 13, 2005. (13 pages). Facts-on-Call Order No. 92413

N.J.S.A. 39:6A-4.5(b), which is a provision of New Jersey’s no-fault insurance law, does not bar an insured motorist who was intoxicated at the time of an accident from collecting personal injury protection benefits for injuries sustained in the accident.

TAXATION
NEW CONCEPTS FOR LIVING, INC. v. CITY OF HACKENSACK
Appellate Division, A-5044-03T2, approved for publication April 13, 2005. (16 pages). Facts-on-Call Order No. 92414

Under the “square corners” doctrine, the defendant City should not be permitted to proceed with a municipal tax sale on the basis of nonpayment of the plaintiff owner’s 2000-2001 taxes where the City (1) eliminated the tax exemption of the owner, which is a nonprofit organization, (2) did not reinstate the exemption, and (3) attempted to proceed with the sale that in the circumstances showed manifestly inequitable and uncandid conduct on its part.

NOT APPROVED FOR PUBLICATION
CIVIL ACTIONS
DIERNISSE v. BOROUGH OF WESTWOOD
Appellate Division, A-2329-03T5, April 13, 2005, not approved for publication. (20 pages). Facts-on-Call Order No. 17825

Jury award of $63,479 to the plaintiffs in their action against the defendant Borough for damages and injunctive relief as a result of repeated back-ups of raw sewage in their residence affirmed in part, reversed in part, and remanded for further consideration of injunctive relief and attorney’s fees; the plaintiffs’ damages claim for the loss of the plaintiff husband’s six manuscripts was not supported by the expert testimony; there was no principle that required a separate jury interrogatory about quality of life, and the interrogatories as they were presented were not “clearly capable of producing an unjust result”; the trial court properly excluded from the jury’s consideration the alleged loss of income that was suffered by the plaintiffs due to the loss of the husband’s computer keyboard design; however, the trial court should not have foreclosed the plaintiffs from having the “promised opportunity” to establish a right to injunctive relief, and it was “equally inappropriate” for the court to have been “substantially influenced” by its own knowledge and experience in matters that were not supported by the record; the trial court “plainly erred” by not exercising its discretion about the appropriateness of attorney’s fees when it stated it did not award attorney’s fees.

CIVIL PROCEDURE
BULIZAK v. DURABILT, INC.
Appellate Division, A-206-04T1, April 13, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17822

Dismissal without prejudice of the plaintiffs’ complaint based on the forum selection clause in the parties’ contract and denial of the plaintiffs’ motion for reconsideration affirmed substantially for the reasons set forth by the trial court; the plaintiffs entered into a contract with the defendant Ohio corporation for the construction of a pole barn, and they filed a complaint alleging breach of contract, consumer fraud, common law fraud, unjust enrichment, and conversion after the pole barn was not built; the parties’ contract provided that any lawsuit concerning the contract would be venued in Summit County, Ohio, and the trial court found no reason to deviate from the parties’ intention; on reconsideration, the trial court rejected the plaintiffs’ argument that one of the plaintiffs, who had not signed the contract, could bring a separate action in New Jersey because that plaintiff would have no right to enforce the contract if she were not bound by its terms.

ENVIRONMENTAL LAW
IN RE WATERFRONT DEVELOPMENT PERMIT NO. 0508-02-0030.1
Appellate Division, A-2423-03T5, April 13, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17824

Department of Environmental Protection’s issuance of a waterfront development permit to the respondent homeowner for the reconstruction of an existing bulkhead and for the construction of a new pier and new boat lifts affirmed; the appellant neighbor’s request for a third-party administrative hearing was properly denied because the Waterfront Development Act does not provide a right to a hearing and because the appellant’s “unsupported claims” of potential harm did not demonstrate a “particularized property interest”; the issuance of the permit was neither arbitrary nor unreasonable because the respondent’s application met all of the standards under N.J.A.C. 7:7E-4.5(b) for dock and pier development, and the issuance was supported by substantial credible evidence.

PUBLIC EMPLOYEES
IN RE WASHINGTON
Appellate Division, A-4127-03T5, April 13, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17823

Final decision of the Merit System Board that imposed a 60-working-day suspension on the appellant police detective affirmed; the appellant failed to appear in court pursuant to a trial subpoena, but he appeared the next day wearing “baggy jeans and a T-shirt” and “angrily berated” the county subpoena control officer and an investigator from the county prosecutor’s office in a public area; the appellant was charged by the respondent City with insubordination, conduct unbecoming a public employee, failure to respond to a subpoena, and violating the court dress code; the police department suspended the appellant for 80 days; on appeal, the administrative law judge found that the appellant’s conduct warranted discipline, and she recommended a 36-day suspension after finding several mitigating factors; contrary to the appellant’s argument on appeal, the Board’s decision was reasonable and thus conclusive on appeal.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.P.
Appellate Division, A-187-04T4, April 13, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 17826

Judgment terminating the parental rights of the defendant mother to her four children affirmed; the trial court’s conclusion that termination of the defendant’s parental rights was in the best interests of the children under the four standards of N.J.S.A. 30:4C-15.1a was based on clear and convincing evidence in the record; the trial court found (1) that the children would be harmed by the defendant’s failure to obtain stable housing and her “lack of judgment” about risks to the children, (2) that the defendant would not be able to eliminate the harm to her children, that delay in permanent placement would cause further harm, and that the children potentially would be harmed if they were removed from their caretakers, (3) that the Division of Youth and Family Services made reasonable efforts to remedy the circumstances that led to the placement of the children outside the defendant’s home, that other relatives could not help the children, and that “kinship and long term foster care” were the only remaining options, and (4) that terminating the defendant’s rights would not do more harm than good.


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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