NEW JERSEY LAWYER

DAILY BRIEFING      05/03/2005


News Briefs

HIGH COURT CONSIDERS CONFIDENTIALITY OF ETHICS COMPLAINTS
The New Jersey Supreme Court on Monday heard arguments in R.M. v. Supreme Court of New Jersey, a case that could determine whether ethics grievances against lawyers are to remain confidential in their initial stages. Currently, such grievances are made public only if an investigation determines grounds for a complaint. The New Jersey State Bar Association fears making grievances public even if a matter turns out meritless will unfairly harm the lawyer’s reputation. The attorney for a woman identified as R.M. contends the confidentiality rule violates the First Amendment. A court ruling is not expected for several months. 5-2-05

LAW SCHOOLS’ CONFLICT WITH MILITARY RECRUITING GOES TO HIGH COURT
It’s now up to the U.S. Supreme Court whether to uphold the 2003 decision by New Jersey’s U.S. District Judge John C. Lifland denying efforts by law schools here and nationwide to bar enforcement of a law stripping colleges and universities of federal funds if they ban military recruiters from campus. The high court agreed to hear the case following a 2-1 decision by the 3rd U.S. Circuit Court of Appeals approving the injunction against the so-called 1994 Solomon amendment. The case, Forum for Academic and Institutional Rights v. Rumsfeld, will be heard the next court year. A number of schools denied entry to military recruiters in protest over the nation’s policy of excluding openly gay people from military service. Among the plaintiffs are gay activists from Rutgers University. 5-2-05

RESENTENCING ORDERED IN POST-BOOKER APPEALS
Federal defendants whose cases were in the appeals process when the U.S. Supreme Court decided U.S. v. Booker are entitled to resentencing by district courts, according to the entire 3rd U.S. Circuit Court of Appeals. In its unanimous ruling in U.S. v. Davis, the appeals court held each defendant appealing under Booker would meet the “plain error” test since the sentencing judges had treated the federal sentencing guidelines “as mandatory rather than advisory,” said chief Circuit Judge Anthony J. Scirica. He also said the appellate court would not remand all cases at once, but would “continue to review each appeal individually.” (A full text of Case, Facts-on-Call Order No. 92440, can be ordered from NJL Online or by calling 800-670-3370.) 5-2-05

IMMIGRATION CASES SOARING IN FED CIRCUIT COURTS
It’s an ever-increasing problem that hasn’t received much exposure, but the federal appeals courts nationwide are being flooded with cases from immigrants battling to remain in the United States and challenging often one-sentence rulings by the Board of Immigration Appeals, a panel appointed by the attorney general. One result is much finger-pointing at immigration courts and their appeals process. As noted by the Los Angeles Times, the 9th U.S. Circuit Court of Appeals in San Francisco seemingly is the hardest hit. Its immigration case load for the court year ending June 2001 was 965; by last June, the number zoomed to 4,835. Immigration matters now consume nearly half the 9th Circuit’s calendar. 5-2-05

MINORS CAN’T BRING LEAD-PAINT SUITS
Children harmed by dangerous levels of lead paint in their dwellings are not “lessees” and don’t have standing to sue, ruled the 1st U.S. Circuit Court of Appeals. Rather, only tenants may sue landlords for failing to disclose the presence of lead paint as required by the federal Residential Lead-Based Paint Hazard Reduction Act. In Mason v. Morrissette, the appeals court upheld a federal trial judge in New Hampshire, stating, “Because a violation of the statute occurs when the seller or lessor fails to disclose, it is logical that the party harmed by the failure to disclose is the purchaser or the lessee.” The court said the children could sue in state court. 5-2-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, MAY 2, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, MAY 2, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, MAY 3, 2005.


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

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, MAY 2, 2005.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


PREMISES LIABILITY
CRAFTS v. ROSSMOOR COMMUNITY ASSOCIATION
Appellate Division, A-5843-03T1, April 29, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17901

Summary judgment in favor of the defendant condominium association dismissing the slip-and-fall action of the plaintiff condominium unit owner affirmed; the defendant’s bylaws provided for no liability in civil actions by unit owners for bodily injuries except for those resulting from a willful, wanton, or grossly negligent act or omission; the plaintiff’s complaint alleged ordinary negligence; N.J.S.A. 2A:62A-13 expressly allows provisions limiting liability in condominium bylaws; there was no inequality of bargaining power; the exchange of consideration between the parties at the time of purchase of the unit was enough to bind the plaintiff to the terms and conditions of the sale.

WORKERS’ COMPENSATION
PUYIA v. HARRAH’S CASINO HOTEL
Appellate Division, A-3797-03T5, April 29, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 17898

Workers’ compensation award of 25 percent permanent partial disability of the left hand affirmed; the petitioner cook was injured when he dropped a meat slicer that weighed more than 150 pounds on his left arm, and he returned to work about three months later after undergoing surgery to treat a hematoma; the petitioner testified that he had to use a cart to move food after his accident and that he had to alter the way he operated an industrial mixer; contrary to the respondent employer’s arguments on appeal, (1) the judge of compensation’s finding that the petitioner suffered a permanent partial disability was supported by objective medical evidence and (2) the petitioner’s difficulties at work were evidence of a lessening to a material degree of his working ability.

DOMESTIC VIOLENCE
BLACKMAN v. THOMAS
Appellate Division, A-3678-03T3, April 29, 2005, not approved for publication. (30 pages). Facts-on-Call Order No. 17897

Final domestic violence restraining order against the defendant mother and award of joint custody of the defendant’s son to the plaintiff paternal grandmother and the father affirmed in part, reversed in part, and remanded; before the entry of the FRO, the defendant and the father entered into a consent order in a nondissolution action that provided for joint legal custody and that gave the defendant residential custody temporarily in the plaintiff’s home; as to the FRO, the trial court’s factual findings were supported by the record and “fully” supported the conclusion that the defendant had harassed the plaintiff, but the record did not support the finding of terroristic threats; as to the custody award, the custody and parenting-time issues should have been addressed in the context of the nondissolution action rather than the domestic violence action, and remand was required for a plenary hearing on the issue of the defendant’s fitness to be the son’s residential custodian.

PUBLIC EMPLOYEES
BAADER v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
Appellate Division, A-146-03T5, April 29, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 17896

Final determination of the Board of Trustees of the Public Employees’ Retirement System that denied the petitioner legal secretary’s application for disability retirement benefits reversed and remanded; the petitioner’s expert testified that the petitioner was permanently and totally disabled by reactive airways dysfunction syndrome, but a second expert testified that she had idiopathic environmental intolerance and was only partially disabled; the Board failed to make adequate factual findings about whether the petitioner was “physically or medically incapacitated for the performance of duty and should be retired” and therefore was entitled to ordinary disability retirement benefits under N.J.S.A. 43:15A-42, and it had to explain on remand (1) why it found the second expert opinion more credible than the first and (2) why the petitioner did not qualify for a disability retirement where the second expert conceded that her disability prevented her from performing the duties of a legal secretary.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.P.
Appellate Division, A-4824-03T4 and A-6021-03T4, April 29, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17899

Judgment terminating the defendant parents’ parental rights and granting guardianship to the plaintiff Division of Youth and Family Services affirmed substantially for the reasons expressed by the Family Part; the Family Part found that DYFS had proved the four criteria of N.J.S.A. 30:4C-15.1 by clear and convincing evidence; the Family Part found (1) that, after almost three years of involvement with DYFS, neither parent had the ability to provide their children with “a safe and stable home” either now or in the foreseeable future, (2) that there was no assurance that the defendant mother finally had overcome her substance abuse problem, (3) that, if such a demonstration was made, the children’s best interests required permanency and that placing the children back with either of the defendants would cause “serious and enduring harm,” in light of the children’s bond with their foster parents, and (4) that whatever harm that might be caused by terminating the defendants’ parental rights was outweighed by the children’s need for a safe and stable home that their foster parents were able to provide.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. Y.C.
Appellate Division, A-1146-04T4, April 29, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17900

Order denying the defendant mother’s motion to vacate an order accepting her voluntary identified surrender of her parental rights to each of her children’s respective caregivers affirmed; in denying the motion, the Family Part found that the defendant’s surrender was voluntary and knowing and that there was no mistake, inadvertence, surprise, or excusable neglect under Rule 4:50-1(a) or newly discovered evidence under Rule 4:50-1(b) to grant relief from the voluntary identified surrender order; balancing the defendant’s desire to unify her family against her children’s needs for permanency and stability, the Appellate Division deferred to the Family Part’s determination, which was consistent with the law, that the children’s best interests were “better advanced” by upholding the order accepting the defendant’s voluntary identified surrender.


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