NEW JERSEY LAWYER

DAILY BRIEFING      04/27/2005


News Briefs

BAR ASSOCIATION INVALIDATES BYLAW CHANGES VOTE
The New Jersey State Bar Association has invalidated a membership vote on proposed bylaw changes that include granting general membership to limited license holders, who now are associate members without voting rights. The State Bar took the action because it inadvertently sent ballots to associate members. In a Notice to the Bar to be published Monday, the association says a “technological error” caused the mid-April mailing to go beyond its intended target of voting general members. It further says it cannot identify the invalid votes since voting is anonymous. The organization will conduct a new vote sometime before its mid-year meeting in November. Other ballot issues include new standards for how attorneys report their counties of record, an increase in the number of at-large trustees and empowering the nominating committee to immediately recommend replacements for trustee vacancies. 4-26-05

FORMER PRESIDING APPELLATE JUDGE WARREN BRODY DIES
A funeral is scheduled at 11:30 a.m. Thursday at Menorah Chapels in Union for Warren Brody, 74, retired presiding judge of the Appellate Division. He died April 25. Judge Brody was elevated in 1982 from Superior Court to the Appellate Division, where he stayed until retiring in 1995. He wrote about 275 published trial and appellate opinions and numerous unpublished opinions. He later served on the Supreme Court’s Disciplinary Review Board, taught rules and theory of evidence at Rutgers Law School-Newark and served on Supreme Court committees for civil practice, evidence, model jury charges-civil and model jury charges-criminal. His wife, Elizabeth Brody, is a sole practitioner in Roselle. Donations in Judge Brody’s memory may be made to the Roselle Public Library, 104 West Fourth Ave., Roselle, N.J. 07203. 4-26-05

OOPS. SILLY US, WE REPORTED THE 2005 RANKINGS, NOT THE 2006
Where did the time go? Last time we checked it was 2005, but for the U.S. News & World Report law school rankings, it’s already 2006. In any event, Rutgers Law School-Camden moved up from 72nd best to 65th, Rutgers Law School-Newark sank a spot to 73rd and Seton Hall came in at 83rd. For the record, three schools across the river (Hudson or Delaware) were in the top 10: Columbia (4), NYU (5) and Penn (7.) Fordham was 27th, Brooklyn and Cardozo-Yeshiva were tied at 58th, and Temple was tied with Rutgers-Camden at 65th. 4-26-05

PLAINTIFFS’ LAWYERS GAVE CAMPAIGN FUNDS TO JUDGE IN VIOXX CASE
It’s being seen by some as another example of the baggage elected judges bring to the bench. The judge handling the first scheduled wrongful death trial over Whitehouse Station-based Merck & Co.’s Vioxx drug last year received campaign contributions from the plaintiff’s law firm, Montgomery, Ala.-based Beasley Allen. The counsel for Cheryl Allen, who claims her husband died as a result of taking Vioxx, provided $35,000 directly and another $25,000 that was part of political action committee contributions to the unsuccessful 2004 state Supreme Court bid by Judge John Rochester, a state circuit court judge presiding over the trial scheduled to start May 23 in Ashland, Ala. Rochester said contributions would not influence him. Merck’s attorney, Theodore V.H. Mayer of Hughes, Hubbard & Reed in New York, said news of the extent of contributions “is a surprise to us.” 4-26-05

SUPREME COURT TO HEAR SOCIAL SECURITY-STUDENT LOAN DEBT CASE
Whether the federal government can seize Social Security payments to pay old college loans is a $3.5 billion question that will be answered by the U.S. Supreme Court. It has agreed to hear arguments in Lockhart v. U.S., an appeal from a disabled man and student-loan debtor who claims he needs his Social Security money to survive. Approximately half the nation’s $7 billion in student loans are more than 10 years old. The Higher Education Act of 1991 eliminated the 10-year limit on the government’s right to seek repayment of student loans by seizing payments to debtors, but the Debt Collection Act created an exception for Social Security payments. Lockhart, an appeal of a 9th U.S. Circuit Court of Appeals ruling in favor of the U.S. Department of Education, is scheduled to be heard in October. 4-26-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, APRIL 26, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, APRIL 26, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, APRIL 27, 2005.


APPROVED FOR PUBLICATION
CRIMINAL TRIALS
STATE v. WILLIAMS
Appellate Division, A-1995-02T4, approved for publication April 26, 2005. (36 pages). Facts-on-Call Order No. 92434

In a criminal case, (1) a juror who was unable to follow the law charged by the court because of the Free Mason principles to which he loyally adhered was properly discharged from further jury deliberations because of an exclusive personal conflict and (2) where it was evident that the jury was deeply concerned about the fresh complaint testimony because the jury had requested a readback of the testimony of the witness to whom a fresh complaint had been given and had requested guidance as to how to arrive at a judgment, it was reversible error for the jury charge on fresh complaint evidence to have included language to the effect that a complaint made within a reasonable time could be used in evaluating the credibility of a victim who made the fresh complaint.

NOT APPROVED FOR PUBLICATION
REAL PROPERTY
RNR CONTRACTORS, INC. v. OUTDOOR PROPERTIES, L.L.C.
Appellate Division, A-95-04T1, April 26, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17878

Summary judgment for the defendant property owner in an action to enforce a construction lien claim for work performed on the construction of a charter technical high school affirmed; the general contractor entered bankruptcy, and the plaintiff subcontractor claimed that the property owner was liable under N.J.S.A. 2A:44A-2 because the developer had acted as the property owner’s agent when it contracted with the general contractor to improve the property; the trial court correctly ruled that the plaintiff could not prevail because there was no reasonable inference to be drawn that the developer was the property owner’s agent or that the property owner was the developer’s principal.

PARENT AND CHILD
FRANK v. SUPARDI
Appellate Division, A-524-04T1, April 25, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17874

Post-divorce-judgment order that awarded equal parenting time to the plaintiff mother with the parties’ three children remanded for factual findings and for interviews of the children; the parties’ son was 14, and their twin daughters were 12; the parties’ property settlement agreement awarded custody to the defendant father and provided the plaintiff with “liberal visitation”; the parties later agreed that the children would spend alternating weeks with each parent, and a Probation Department investigation produced a recommendation that the alternating schedule continue; the defendant opposed the recommendation because the alternating schedule was disruptive during the school year; as to remand, the Appellate Division agreed with the defendant’s contention that the trial court did not consider the N.J.S.A. 9:2-4 criteria when it made its decision.

DOMESTIC VIOLENCE
BAYES v. WALLACE
Appellate Division, A-5176-03T5, April 25, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17876

Final domestic violence restraining order against the defendant ex-boyfriend reversed and remanded; although the Family Part already had heard all of the plaintiff ex-girlfriend’s evidence before the defendant requested an adjournment because his attorney had been unable to accompany him, a short adjournment, together with a continuing temporary restraining order for the benefit of the plaintiff, was required; at the hearing, the plaintiff testified that a previous domestic violence complaint had been dismissed because the judge “did not want to ruin” the defendant’s military career, but she did not reveal that the judge had dismissed the complaint based on the finding that the plaintiff was not credible; the Family Part erred by “considering anew” the allegations that the judge previously had dismissed because the plaintiff’s “mistaken, if not false, testimony” about the basis for the judge’s decision led the Family Part to credit her testimony about the prior incidents, where the judge had not.

DOMESTIC VIOLENCE
QUICK v. QUICK
Appellate Division, A-6650-03T3, April 25, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17877

Final domestic violence restraining order against the defendant husband affirmed; contrary to the defendant’s assertion, the Family Part did not deny him a fair hearing by refusing to allow him to call as a witness the parties’ 11-year-old son, who had been present during the interactions between the parties; the Family Part had the discretion to determine which of the parties it believed, and the Appellate Division was required to defer to those credibility evaluations due to the Family Part’s “better feel for intangibles”; based on the “relative consistency” of the testimony from the parties, the Family Part also had the discretion to determine whether the probative value of the son’s testimony “was substantially outweighed by the risk of needless presentation of cumulative evidence”; although the son may have been “an independent source for potentially relevant evidence,” the Family Part’s decision was not an abuse of discretion and did not prejudice the defendant.

APPELLATE PROCEDURE
DAVITA INC. v. NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES
Appellate Division, A-2427-03T3, April 26, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17875

Appeal from the denial by the Commissioner of the Department of Health and Senior Services of the petition for rulemaking by the appellant providers of dialysis treatment facilities dismissed as moot; the appellants sought to compel the Commissioner to amend the licensure regulations for ambulatory care facilities to change the standard for reviewing applicants’ out-of-state track records; after the appellants’ petition was denied, the Department adopted an amendment to the licensure regulations for ambulatory care facilities that established standards for reviewing applicants’ out-of-state track records; the Department’s continuing regulatory actions rendered the appeal moot.


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