NEW JERSEY LAWYER

DAILY BRIEFING      06/02/2005


News Briefs

TROOPER CLAIMS RACIAL-PROFILING FEAR THWARTS POLICE WORK
The State Police discouraged proactive police work out of fear of accusations of racial profiling, according to a state trooper who alleges he was unjustly punished for engaging in three motorist pursuits. In a lawsuit filed in Mercer County, Sgt. Richard Gacina says he was the victim of a policy discouraging vehicle pursuits that began in 1999 after State Police agreed with federal authorities to end the practice of targeting black motorists for stops. The suit, filed by South Orange sole practitioner Michael J. Reimer, claims the State Police “did everything possible to curtail proactive engagement” to ensure federal monitoring would end. Gacina says his superiors’ harassment included calling him back to the barracks to wash a frying pan and reprimanding him for having his feet on a desk. Spokesmen for the State Police and Attorney General’s office declined comment. 6-01-05

MUNICIPAL JUDGE IN ATLANTIC COUNTY HIT FOR HAVING HEAVY HAND
An investigation by The Press of Atlantic City has found that Henry J. Broome, a Northfield sole practitioner and part-time municipal judge in eight municipalities, has a sentencing practice significantly stiffer than other municipal judges there. According to the newspaper, Broome typically charges the highest fines allowable for convictions while many other municipal judges charge the minimum, and he threatens defendants with jail if they do not immediately pay the first $100 of their fines. Broome told the paper the high fines deter repeat offenses. 6-01-05

U.S. SUPREME COURT RULING REVIVES NJ INMATE’S CASE
The U.S. Supreme Court’s upholding of a federal law requiring state prisons to accommodate inmates’ religion has given new life to a fight by an inmate at East Jersey State Prison. The man’s lawyer, Stephen M. Latimer of Hackensack’s Loughlin & Latimer, said he will file a motion in U.S. District Court in Newark to reactivate a suit in which inmate Patrick J. Pantusco alleges that officials of the prison in Rahway have denied access to materials needed to practice Wicca. Latimer, the American Civil Liberties Union of New Jersey’s cooperating attorney in the matter, said the case was ready for trial last November but he held off when the U.S. Supreme Court took the case on which it ruled this week. Latimer said the Supreme Court’s ruling that Ohio Corrections Department officials violated federal law by denying inmates’ ability to worship Satan changes the burden-of-proof standard for his case. Pantusco is serving 50 years for murder. 6-01-05

JUDGE ALLOWS ACCESS TO ADOLESCENTS’ FAMILY-CLINIC RECORDS
An Indiana judge has ruled that a family planning clinic must turn over to the state medical records of its patients under age 14. Planned Parenthood of Indiana argued the state is “on a fishing expedition” to identify partners of sexually active adolescents, while the state Attorney General’s office said it is investigating whether children “were neglected by virtue of a failure to report instances of child molestation.” The state sued after Planned Parenthood instructed its clinics not to surrender records. 6-01-05

POLICE BRUTALITY SCRUTINIZED IN CHINA
The Chinese government has promised to crack down on police brutality in the wake of reports that confessions have been gained from wrongfully accused people by using such torture techniques as electric shock and forcing them to drink water spiked with hot pepper. The matter drew attention when a policeman, suspected of torturing a man to force a murder confession, used his own blood to write a note declaring his innocence on a tombstone, shortly before he hanged himself. 6-01-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JUNE 1, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JUNE 1, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, JUNE 2, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, JUNE 1, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, JUNE 1, 2005.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


ATTORNEY’S FEES
CONWAY v. 287 CORPORATE CENTER ASSOCIATES
Appellate Division, A-5304-03T2, May 31, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18033

Judgment for the defendant clients on remand in an action for attorney’s fees affirmed; in a prior decision, the Appellate Division had remanded for a new trial for the trial court to consider parol evidence about the intent of a contract for legal services between the decedent attorney and the defendants; contrary to the plaintiff executor’s arguments on appeal, the trial court on remand (1) was faithful to the Appellate Division’s directive to consider all of the pertinent evidence, including parol evidence, to determine the contractual intent, (2) reached findings and conclusions that were well supported by the evidence, (3) made no errors of law in reaching its decision, and (4) exercised its discretion to make evidentiary rulings that were “well within the bounds of reasonableness and propriety”; moreover, the plaintiff’s arguments about the trial court’s decision to file a supplemental opinion were “meritless.”

DISCOVERY
VENETIAN CORP. v. SNS ARCHITECTS & ENGINEERS
Appellate Division, A-1326-04T5, May 31, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18030

Orders that barred the plaintiff catering facility owners from supplementing their expert report and that denied their motion for reconsideration in a professional malpractice action arising from renovation work done on the plaintiffs’ premises reversed and remanded; the plaintiffs “reasonably relied” on the Law Division’s case management plan, which provided for the production of preliminary expert reports, expressly preserved the right to supplement the preliminary reports, but did not establish a deadline for filing supplemental reports; the Law Division mistakenly exercised its discretion by denying a brief extension of discovery to permit the plaintiffs to submit a final expert report and to allow the parties a reasonable amount of time to deal with that report because the Law Division’s “frustration” did not provide a sufficient basis for the “harsh sanction” it imposed and because it failed to consider the content and context of its own case management plan.

PROFESSIONAL MALPRACTICE
ABREU v. GALUSKIN
Appellate Division, A-2954-03T3, May 31, 2005, not approved for publication. (24 pages). Facts-on-Call Order No. 18032

Summary judgment for the defendant accounting firm and its partners in a professional negligence action affirmed; the plaintiff owners of real estate companies asserted their claims after they were indicted for tax evasion and mail fraud that were related to the defendants’ alleged malpractice; contrary to the plaintiffs’ arguments on appeal, the trial court did not abuse its discretion (1) by denying their motion for a stay pending the resolution of their criminal prosecution, (2) by barring them from testifying at trial after they had asserted the Fifth Amendment privilege against self-incrimination during discovery, and (3) by excluding their expert report as untimely; summary judgment was appropriate because the plaintiffs could not establish their claims without their testimony and could not establish their damages without their expert report.

ESTATES AND TRUSTS
KOURY v. FRIEDLAND
Appellate Division, A-6514-02T1, May 31, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18031

Order barring the defendant daughter from the further receipt of assets from a 10-year trust created by the decedent father affirmed; the decedent’s three children were the sole beneficiaries of the trust and were trustees and executors of the estate, which included a tavern; seeking a distribution of his share of the estate, the plaintiff first son sued the daughter, who filed a counterclaim and a third-party complaint against the second son; the second son counterclaimed against both the first son and the daughter; at trial, it was established that both the first son and the daughter had taken money that rightfully belonged to either the tavern or the estate, and the trial court placed the remainder of the estate into a new trust with an independent trustee and with the second son as the sole beneficiary; contrary to the daughter’s arguments on appeal, the trial court did not err (1) by failing to hold the second son responsible for the estate losses as a co-fiduciary or (2) by applying the unclean hands doctrine to take away her property rights as a beneficiary of the decedent’s will.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
L.P. v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES, OFFICE OF EDUCATION
OAL Docket No. EDS 1959-05, Agency Docket No. 2005 9764, Final Agency Decision: April 25, 2005, released for publication May 18, 2005. By McKeown, ALJ (temporarily assigned). (17 pages).

The administrative law judge dismissed the petitioner 18-year-old multiply disabled student’s due process request to hold the Office of Education and two school districts responsible for the costs connected with her attendance at the New York Institute of Technology. After filing an earlier due process petition, the petitioner had accepted, on the advice of counsel, the Office’s settlement offer of a fifth year of high school at a program in Bergen County and $2,000 in exchange for a waiver of “all claims against the State of New Jersey with regard to the subject matter of this dispute.” Another ALJ approved the settlement, but the petitioner later claimed that the Bergen County program was not helping her and unilaterally enrolled at NYIT. The ALJ in this case found that the settlement agreement was binding and that the subject matter of that agreement addressed the same issue as the petitioner’s current request. The ALJ noted that the petitioner could seek relief through the Department of Education if the Office was not abiding by the terms of the settlement.

SPECIAL EDUCATION
M.B. v. VOORHEES TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 6270-04, Agency Docket No. 2004 9104, Final Agency Decision: April 26, 2005, released for publication May 17, 2005. By Martone, ALJ. (49 pages).

The administrative law judge granted the petitioner parents’ request to continue the current individualized education program and placement for their 10-year-old son, who was classified as autistic based on a diagnosis of childhood disintegrative disorder. The son’s 2003-2004 placement consisted of both 25 hours per week of home-based, one-on-one applied behavior analysis discrete trial instruction provided by the county educational services unit and a school-based program in a multiply disabled classroom with a one-on-one aide who was trained in applied behavior analysis techniques. For the 2004-2005 school year, the respondent Board of Education sought to place the son in a full-day school-based program that used applied behavior analysis techniques, to reduce his home-based program to 10 hours per week, and to replace the county therapists with school district personnel. Among other things, the ALJ found (1) that the basis for the proposed IEP did not take into account the “true nature” of the son’s disability, (2) that the Board had failed to establish that its proposed IEP would provide a meaningful educational benefit because it did not use the applied behavior analysis discrete trial therapy method, and (3) that the proposed IEP was not appropriate because the son’s individual profile required that he be taught in an environment that was controlled and familiar, such as his home.

SPECIAL EDUCATION
OAKLAND BOARD OF EDUCATION v. D.M.
OAL Docket Nos. EDS 3985-03 and EDS 9935-04, Agency Docket Nos. 2003-7605 and 2005-9372, Final Agency Decision: April 19, 2005, released for publication May 17, 2005. By Giordano, ALJ. (14 pages).

In a consolidated action, the administrative law judge granted the petitioner Board of Education’s motion to dismiss the respondent parents’ claim for reimbursement of charges that arose before September 1, 2003. At a plenary hearing on December 11, 2003, the parents were ordered to file an amended petition to include claims that they had not yet asserted, which included a claim for reimbursement for educational costs from October 2001 to August 2003. The parents eventually filed an amended petition that included that claim on September 1, 2004, and the Board filed its motion on December 14. The ALJ determined that the parents’ claim was time-barred by the equitable limitation of action established by the Third Circuit in Bernardsville Bd. of Educ. v. J.H. (1) because the Board’s assertion of the limitation of actions defense was not precluded by the terms and conditions of a settlement agreement between the parties or by the doctrines of equitable estoppel or unjust enrichment and (2) because the parents’ claim was not timely filed based on an earlier due process petition.


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