NEW JERSEY LAWYER

DAILY BRIEFING      05/11/2005


News Briefs

STREET GANG VIOLENCE IS PUBLIC ENEMY NUMBER 2
Fighting gang violence is the Attorney General’s Office’s second leading concern — topped only by counter-terrorism. And the gang problem will intensify, according to Attorney General Peter C. Harvey. He said it’s a problem for all 21 counties, not just inner cities. “The simple truth is we are battling against decades of family and community deterioration. We have come to the conclusion that simple prosecution may not be enough,” he said. 5-10-05

BIG CLASS-ACTION PAYDAY SET FOR CHERRY HILL LAWYER
A $350 million settlement is awaiting a federal judge’s approval in a class action against tax services company H&R Block and its banking partner, according to one of the plaintiffs’ lead attorneys, Steven E. Angstreich, the Cherry Hill-based managing partner of Levy, Angstreich, Finney, Baldante, Rubenstein & Coren. The 15-lawyer team in Carnegie v. Household Financial International filed for fees and costs of up to 25 percent of the settlement value. Approval is pending before U.S. District Judge Elaine E. Bucklo of the Northern District of Illinois. The class of about 28 million taxpayers accused Block and Household Financial of misrepresentation in preparing refund anticipation loans that were to be repaid with their tax return refunds. The other lead plaintiffs firm is Kirby, McInerney and Squire in New York City. 5-10-05

AG REVISING ELECTIONS COMMUNICATIONS ON EX-CONS
The state Attorney General’s Office has announced plans to revise its communications with county election offices in the wake of allegations by the New Jersey chapter of the American Civil Liberties Union regarding disparities in how counties register ex-convicts to vote. The ACLU wants the legislature to remove the Division of Elections from the AG’s direction because nine counties — Bergen, Burlington, Camden, Cumberland, Hudson, Passaic, Hunterdon, Ocean and Salem — “illegally” demand ex-offenders provide “proof of release” to register, says the ACLU, while the remaining counties allow registration without such proof. An ACLU survey conducted after last November’s elections also found wide differences in how counties make voter information available to ex-offenders. Markus Green, AG chief of staff, said the office is developing a system to ensure none of the counties require proof of release. “We are aware there is some miscommunication with respect to this, but the rule is the same for every county,” he said. The AG’s office in 1998 replaced the secretary of state as overseer of the elections division. 5-10-05

SETTLEMENT REACHED IN WRONGFUL IMPRISONMENT CASE
The state and the Somerset County Prosecutor’s Office have agreed to pay $487,500 to a man who served seven years in prison after being unjustly convicted of drug kingpin charges in 1991 by the county’s corrupt former prosecutor Nicholas Bissell Jr. Isaac Wright, who was imprisoned from 1988 until his conviction was overturned in 1995 upon findings of official misconduct by Bissell’s office, agreed to settle shortly before his wrongful imprisonment case was slated to go to trial in Warren County. Bissell, who committed suicide in 1996 after he was convicted of 30 counts of fraud and corruption, allegedly targeted Wright for prosecution for personal reasons. Frances A. Hartman of Moorestown represented Wright, 43, now a law student at the University of Miami. 5-10-05

A NEW CODE FOR CODE ENFORCERS
Building inspectors charged with enforcing construction codes will face their own set of standards under an ethics code ordered them by acting Gov. Richard J. Codey. The executive order, which includes a push to advise homeowners of their rights, comes after State Commission of Investigations hearings revealed abuse by inspectors and other related difficulties for homeowners. Codey also ordered the Department of Community Affairs to develop a website where consumers can lodge complaints against builders. 5-10-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, MAY 10, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, MAY 10, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, MAY 11, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, MAY 10, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, MAY 10, 2005.

THE FOLLOWING OPINION NOT APPROVED FOR PUBLICATION HAS BEEN RELEASED:


JUVENILES
STATE IN THE INTEREST OF K.C.
Appellate Division, A-6742-02T4, May 6, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17936

Adjudication of delinquency affirmed but remanded for merger of the obstruction-of-justice and resisting-arrest offenses and for further consideration of the appropriate amount of restitution; in connection with a stolen car, damage to the car, and the robbery of items from the car, the juvenile was sentenced to three years of probation for receiving stolen property and concurrent three-year terms of probation for resisting arrest and obstructing justice; the Family Part’s factual findings were specific, and its conclusions were supported by sufficient credible evidence; however, the State conceded that the obstruction-of-justice and resisting-arrest adjudications should have been merged; the argument that the order requiring restitution to the car owner’s brother for the loss of his merchandise was error lacked merit because N.J.S.A. 2A:4A-43, which applies to juveniles, refers not to the victim but to the “person or entity who has suffered loss”; although the Family Part erred by failing to consider the juvenile’s ability to pay $2,000 in restitution, the Family Part on its own has indicated its readiness to hold a restitution hearing; therefore, a decision on the appropriate amount of restitution is left to the Family Part’s sound discretion.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
C.R. v. HAMMONTON BOARD OF EDUCATION
OAL Docket No. EDS 2191-05, Agency Docket No. 2005-9895, Final Agency Decision: April 4, 2005, released for publication April 11, 2005. By Miller, ALJ. (12 pages).

The administrative law judge granted the petitioner student’s request for emergent relief and ordered that he be placed in an in-district program that consisted of 50 percent in-district education and 50 percent homebound instruction or tutoring pending a final resolution of his placement. The petitioner, who was classified as “multiply disabled,” had attended high school in the respondent Board of Education’s district for two years in a cooperative industrial education program before he was placed in a mainstream program with modifications with the Juvenile Justice Commission. When the petitioner was discharged by the Commission, the respondent conducted an IEP meeting that the ALJ found to be “rushed and faulty” and that recommended an out-of-district placement based in part on the petitioner’s “extensive discipline record.” The petitioner sought an order that would allow him to finish 12th grade at the respondent’s high school. The ALJ concluded that the petitioner was entitled to a “stay put” placement because he had timely challenged the respondent’s IEP, and the ALJ granted his request for emergent relief because there was “no clear stay put placement.”

SPECIAL EDUCATION
WASHINGTON TOWNSHIP BOARD OF EDUCATION v. H.B.
OAL Docket No. EDS 2036-05S, Agency Docket No. 2005 9799, Final Agency Decision: March 29, 2005, released for publication April 18, 2005. By Masin, ALJ. (4 pages).

The administrative law judge ordered the respondent parents to cooperate with the petitioner school district by assisting in the process of applying for out-of-district placements for their son and by attending any necessary interviews. After a prior proceeding in which a different ALJ ordered the respondents to participate in a meaningful way in the selection of an out-of-district placement for their son, they signed an individualized education program that agreed to an out-of-district placement for the son for the preceding school year, but that placement no longer was available due to the son’s lack of cooperation and attendance. The order sought by the district was appropriate because the district intended to find a different out-of-district placement and because there had not been any agreement or order to change the son’s program from an out-of-district placement to a different placement.

WORKERS’ COMPENSATION
CAMPANA v. EVENING JOURNAL
Claim Petition No. 1998-24694, Final Agency Decision: March 10, 2005, released for publication April 11, 2005. By Tuber, J.W.C. (21 pages).

On a claim petition for total disability as a result of an acute myocardial infarction suffered at work and a prior work-related accident resulting in an award of 37 and one-half percent for residuals of an L4-L5 laminectomy and fusion, the judge of compensation fixed the disability at 50 percent cardiac and 10 percent psychiatric for a total of 60 percent, subject to an Abdullah credit to the employer. The effects of the employee petitioner’s work – including changing from the day shift to the night shift and handling 147 bundles of newspaper weighing 40 pounds each – were sufficient either to “cause the myocardial infarction he suffered at work” or, “in reasonable probability,” to “contribute in a substantial and material way to the precipitation, or acceleration of his preexisting heart pathology, which led to his cardiac dysfunction.” The preexisting cardiac pathology entitled the employer to a functional credit toward the petitioner’s total cardiac disability. The length of time and the 18 hours per week that the petitioner now works for another employer, albeit in “a much less strenuous type job,” clearly indicated that he was not totally disabled. The employee also had a significant psychiatric disability because the evidence showed that the impact of his myocardial infarction on his working ability and ordinary life pursuits made him anxious and depressed.

WORKERS’ COMPENSATION
GONZALEZ v. COLART AMERICAS, INC.
Claim Petition No. 2000-1290, Final Agency Decision: February 23, 2005, released for publication April 11, 2005. By Womack, J.W.C. (12 pages).

The judge of compensation awarded the petitioner employee $3,000 for 20 chiropractic treatments, $4,202.14 for almost 16 weeks of temporary disability benefits, and $21,441 for 22.5 percent partial total disability for 135 weeks. The petitioner injured his back while lifting boxes when he tried to hold a box that had begun to fall. The judge found (1) that the petitioner should have received no more than 20 chiropractic treatments because it was “clear” that he was not responding to the treatments and that $150 per treatment, and not $236 per treatment, was a reasonable amount, (2) that he was temporarily totally disabled based on the treating doctor’s opinion, and (3) that the petitioner was partially totally disabled where he had a herniated disc, radiculitis, and a lumbosacral strain. Even though the petitioner was exaggerating his injuries because he wanted to prove to himself that he was totally disabled, the judge determined that none of the doctors “even come close” to supporting that proposition.


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