NEW JERSEY LAWYER

DAILY BRIEFING      04/25/2005


News Briefs

PROPOSAL TO REPEAL FAST-TRACK LAW ON SLOW TRACK
While environmental groups are pressing for the legislature to repeal a controversial law enacted a year ago after little debate and unusually swift action, it appears acting Gov. Richard J. Codey is in no hurry to change the statute requiring state officials to deal quickly with proposed plans by builders and developers. Critics say what’s known as the Fast Track Law simply doesn’t give state regulators sufficient time to review such plans. Proponents say that’s nonsense. For now it appears the push for repeal could die a slow death without ever being considered by the full Assembly and Senate. Codey, in his capacity as Senate president, controls what measures come to a floor vote there. Assembly Speaker Albio Sires has the same power in the lower house and, perhaps pointedly, has offered no definitive statement on where he stands on the repeal effort, which could be a crucial issue in the November election when all 80 Assembly seats will be at stake. Builders and developers traditionally have been heavy campaign contributors to lawmakers. 4-22-05

JURORS ARE LISTENING AND BEING HEARD
There were skeptics a few years ago when juror questions became part of the trial process. Not anymore. That change on New Jersey’s legal justice landscape has proved a huge success, according to judges, lawyers and jurors themselves. Says Judge Paulette M. Sapp-Peterson, “Jurors tell me they feel much more they are part of the process.” For a full assessment, see the April 25 New Jersey Lawyer. 4-22-05

PENNSY SENATE TRYING AGAIN TO REGULATE LOBBYISTS
The Pennsylvania Senate has unanimously approved a bill that would regulate lobbying, while challenging their somewhat reluctant lower-house counterparts by saying their state is a “laughingstock” as the only one without such a law. There was such a law for about three years, but in 2002 the state Supreme Court struck it down because it infringed on the judiciary’s regulation of the legal profession. In 2001, the last year that law was in effect, some 800 lobbyists spent $52 million trying to influence legislation. New Jersey lobbyists spent $19 million that year; they’ve been regulated since 1971. The Pennsylvania proposal would require any lobbyist receiving or spending more than $2,500 in a calendar quarter to register and report how the money was spent. 4-22-05

REV UP THE SHREDDER FOR CREDIT INFO
Companies holding consumer credit information they no longer need must get rid of it, according to a new Federal Trade Commission rule that takes effect June 1. Dictated by the Fair and Accurate Credit Transaction Act, the rule applies to any operation that gets information on a consumer by obtaining a credit report. That could include law firms in the areas of family law, debt collection, bankruptcy, real estate, health care and employment. The goal is reducing the abundance of documents and computer records that can be gleaned by identity thieves. There will be a six-month grace period to devise a compliance plan. When it comes to electronic media, the rule allows “wiping,” but advises destroying hard drives as well as CD-ROMs and floppies. The good news is such destruction is cheap — the cost of a hammer to do the smashing. 4-22-05

WILL FEDS LEAVE FAMILY LEAVE LAW ALONE?
Skirmishing between management and labor organizations is off to a head start in Washington as the U.S. Labor Department considers revising regulations governing the 12-year-old Family Medical Leave Act that mandates most workers can have up to 12 weeks’ unpaid leave to care for themselves or family members. A study by the Employment Policy Foundation, partially funded by corporations, found the law costs corporations some $21 billion a year and that the number of multiple leaves has grown about 50 percent the past five years. At the same time, though, the rallying cry of employee organizations is that families need help, not people undermining their protections. One change seemingly getting serious consideration would allow employers to ask a worker’s doctor if a leave was necessary. 4-22-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, APRIL 22, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, APRIL 22, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, APRIL 25, 2005.


APPROVED FOR PUBLICATION
PARENT AND CHILD
DIVISION OF YOUTH AND FAMILY SERVICES v. D.F.
Appellate Division, A-1738-03T5, approved for publication April 22, 2005. (18 pages). Facts-on-Call Order No. 92427

A mother’s alleged failure to take adequate measures to shield her child from the effect of acts of domestic violence committed upon the mother by the child’s father did not constitute child neglect that warranted the Division of Youth and Family Services’ inclusion of the mother’s name in the Central Registry of child abusers.

ENVIRONMENTAL LAW
IN RE ADOPTION OF N.J.A.C. 7:26E-1.13
Appellate Division, A-3158-02T2 and A-4167-02T2, approved for publication April 22, 2005. (36 pages). Facts-on-Call Order No. 92428

N.J.A.C. 7:26E-1.13, which was promulgated by the Department of Environmental Protection and which sets minimum groundwater and surface water remediation standards for the cleanup of contaminated property under all New Jersey environmental remediation laws, does not violate the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1, et seq., and therefore is valid.

SENTENCING
IN RE COMMITMENT OF M.M.
Appellate Division, A-5601-03T4, approved for publication April 22, 2005. (8 pages). Facts-on-Call Order No. 92429

The application of the “usual principles of sentencing” when determining the term of commitment for a defendant who was found not guilty by reason of insanity does not include consideration of aggravating and mitigating factors under N.J.S.A. 2C:44-1a and b because N.J.S.A. 2C:4-8b(3) establishes the maximum term of commitment, subject to periodic review in accordance with State v. Krol.

JURY INSTRUCTIONS
STATE v. FRANKLIN
Appellate Division, A-1793-02T4, approved for publication April 22, 2005. (15 pages). Facts-on-Call Order No. 92430

Plain error required reversal of the defendant’s conviction of attempted murder when the trial court did not give an accomplice-liability instruction to the jury in the trial of the defendant alone with regard to his culpability and intent during an escape from jail.

ESTATES AND TRUSTS
IN RE ESTATE OF BONARDI
Appellate Division, A-6714-03T5, approved for publication April 13, 2005. (16 pages). Facts-on-Call Order No. 92431

The Probate Part improperly terminated a testamentary trust — even though both primary beneficiaries consented to acceleration and distribution of the principal in favor of their mother, who was the income beneficiary — because the daughters’ renunciation of the trust corpus in favor of their mother would defeat the express intent of the testator, which was to provide the mother with only supplemental support and maintenance and to insulate the trust principal from any control by his daughters during their mother’s lifetime, and because continuance was necessary to carry out a material purpose of the trust, which was to preserve principal for the ultimate benefit of the daughters per stirpes and not per capita.

NOT APPROVED FOR PUBLICATION
MEDICAL MALPRACTICE
FAGAN v. GURLAND
Appellate Division, A-861-03T5, April 22, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17864

Summary judgment for the defendant doctor in a medical malpractice action affirmed; the plaintiff patient sued the defendant on May 9, 2001 for damages that arose from the displacement of an intraocular lens; the trial court ordered the plaintiff to provide an expert report by January 20, 2003, and the defendant moved for summary judgment after the plaintiff did not comply; in opposition to that motion, the plaintiff filed an expert report that the trial court found to be a net opinion; the trial court allowed the plaintiff to serve an amended expert report by March 21, 2003, and it granted summary judgment for the defendant because the amended expert report was “another net opinion”; the trial court’s reasoning was “essentially correct,” and the expert’s “bare conclusions” that were unsupported by factual evidence constituted an inadmissible net opinion.

HUSBAND AND WIFE
DELLE DONNE v. DELLE DONNE
Appellate Division, A-2982-03T3, April 22, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17866

Post-divorce-judgment order modifying the judgment of divorce to reflect that the defendant ex-wife shall have a $12,000 lien on the plaintiff ex-husband’s interest in the former marital home to cover the plaintiff’s obligations to pay the defendant’s attorney’s fees affirmed; it was reasonable to conclude that the award of attorney’s fees was “a necessary” and that its intended function was “to equalize the disparity of income between the parties” and to allow the defendant to support herself; there was no reason to disturb the Family Part’s determination that the award of attorney’s fees was in the nature of spousal support and therefore was not dischargeable in bankruptcy.


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