NEW JERSEY LAWYER

DAILY BRIEFING      06/29/2005


News Briefs

OFFENDER-MONITORING MEASURE HEADING TO BUDGET COMMITTEE
A bill to launch a satellite-monitoring program for high-risk sex offenders statewide is heading to the state Assembly’s Budget Committee after unanimous passage in the state Senate. Committee clearance is needed before the full Assembly can vote on S-1889, which calls for about $3 million for a two-year pilot under which police would use global positioning technology to track the whereabouts of 250 offenders. The Public Defender’s Office has argued this program would create a false sense of security among the public and destabilize the offenders’ lives. 6-28-05

COUNTY MEDICAL EXAMINER OFFICES MAY DIE A LEGISLATIVE DEATH
The fate of county medical examiner offices across the state is uncertain in the wake of the Senate’s passage of A-2817, which would establish a statewide medical examiner’s office to investigate suspicious or unexplained deaths. The measure would authorize the attorney general to establish six regional offices over five years to replace county medical examiner offices. 6-28-05

MOVE TO CURB EMINENT DOMAIN FOLLOWS SUPREME COURT RULING
In response to the U.S. Supreme Court’s Kelo v. New London ruling last week that seemingly expands governments’ eminent domain authority, state Sen. Leonard T. Connors Jr. (R-Ocean) and Assemblymen Christopher J. Connors (R-Burlington) and Brian Rumpf (R-Atlantic) are drafting legislation to restrict some property seizure rights. Claiming Kelo “opens the floodgates” for eminent domain, Connors said, “A government’s power of eminent domain should only be used in limited circumstances that serve the best interests of the community.” Rumpf added the ruling raises the risk that businesses would use campaign contributions to help sway governmental eminent domain decisions. Their legislation won’t be acted on until after the November elections and other similar proposals are likely in the interim. 6-28-05

CODEY NOMINATES TWO TO SUPERIOR COURT
The Senate Judiciary Committee soon will consider acting Gov. Richard J. Codey’s newest nominations as Superior Court judges: Assistant U.S. Attorney Michael A. Guadagno in Trenton and East Brunswick sole practitioner James F. Hyland, both Republicans. Guadagno was a prosecutor in the tax evasion trial of Herbert Axelrod, who gained notoriety in 2003 when questions were raised about the value of 30 instruments he sold to the New Jersey Symphony Orchestra, and in 2004 when he fled to Cuba and Switzerland to avoid the tax evasion trial. 6-28-05

THERE SHE IS — UMM, WAS?
The Miss America Pageant, hosted by Atlantic City since its birth in 1921, may change venues. The Miss America Organization, which replaced ABC with Country Music Television as the show’s broadcaster, has declined to commit on where the next pageant will take place, which has fueled speculation it may move to CMT’s hometown of Nashville, or another southern location. Organization spokeswoman Jenni Glenn has said the event’s producers will talk to Atlantic City officials and CMT before deciding. They scrapped ABC due to the show’s declining ratings. 6-28-05



Today's Decision Summaries

To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)

FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JUNE 28, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JUNE 28, 2005:

LAW AGAINST DISCRIMINATION
HENNESSEY v. WINSLOW TOWNSHIP
New Jersey Supreme Court, A-11, June 28, 2005. (20 pages). Facts-on-Call Order No. 92546

Issue preclusion did not apply to an employee’s claim under the Law Against Discrimination where the employee abandoned her right to appeal to the Merit System Board after a departmental termination hearing.

HUSBAND AND WIFE
RANDAZZO v. RANDAZZO
New Jersey Supreme Court, A-15, June 28, 2005. (25 pages). Facts-on-Call Order No. 92547

A trial court has the equitable power to order the sale of marital real property before a final judgment of divorce and, if the circumstances warrant, to order the distribution of the proceeds to serve the best interests of the parties.

THE SUPREME COURT has announced that it will release opinions in IN RE ESTATE OF VAYDA, A-48, and NEW JERSEY ASSOCIATION OF NURSE ANESTHETISTS, INC. v. NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS, A-92, on June 29, 2005. The issue on appeal in Estate of Vayda addresses whether an executor who breaches a fiduciary duty to a beneficiary can be held personally liable to pay the attorney’s fees incurred by the beneficiary. The issue on appeal in New Jersey Association of Nurse Anesthetists addresses whether the regulations that require a qualified doctor to supervise the administration of anesthesia in physicians’ offices are valid.



APPROVED FOR PUBLICATION
PUBLIC RECORDS
COURIER NEWS v. HUNTERDON COUNTY PROSECUTOR’S OFFICE
Appellate Division, A-3517-03T1, approved for publication June 28, 2005. (14 pages). Facts-on-Call Order No. 92548

As the custodian of the tape recording of a 911 call that was the subject of the plaintiff newspaper’s successful request for disclosure under the Open Public Records Act, the Hunterdon County Prosecutor’s Office, rather than the State, was responsible under OPRA to pay the attorney’s fees incurred by the plaintiff.

STATUTORY CONSTRUCTION
STATE v. LOPEZ
Appellate Division, A-2284-03T4, approved for publication June 28, 2005. (23 pages). Facts-on-Call Order No. 92549

The defendant’s conviction for robbery was reversed and remanded for the entry of a conviction of third-degree theft from the person and for sentencing on that charge because N.J.S.A. 2C:15-1a does not include the concept of “afterthought” robbery.

NOT APPROVED FOR PUBLICATION
INSURANCE
TORODE v. PRUDENTIAL INSURANCE CO.
Appellate Division, A-5634-03T3, June 28, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18155

Summary judgment for the defendant insurer and the defendant insurance agent in an action to reform an automobile insurance policy affirmed; after the plaintiff was involved in an accident with a vehicle that was insured under a policy with liability limits of $100,000/$300,000, she sought to reform her bodily injury and UM/UIM coverage from $100,000/$300,000 to $300,000/$300,000; the plaintiff claimed that the agent never explained that higher limits of UM/UIM coverage were available at a minimal cost; the trial court properly determined that the plaintiff’s claim was barred by the immunity provisions of N.J.S.A. 17:28-1.9, and there was nothing in the record that could be equated with gross negligence or willful or wanton conduct.

PREMISES LIABILITY
JOHNSON v. WRIGHT
Appellate Division, A-4375-03T2, June 28, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18157

Summary judgment for the defendant residential landlord in a personal injury action by the plaintiff tenant affirmed; the plaintiff notified the defendant of a hanging branch in the back yard that was likely to fall; the defendant contracted with tree trimmers to remove the branch, and the plaintiff was injured by the branch as the removal was about to begin; summary judgment was appropriate because the plaintiff did not demonstrate that the defendant had breached a duty; the plaintiff did not claim that the defendant had waited too long to correct a dangerous condition after being notified of it, that the condition had progressed during the wait, or that the defendant was negligent in contracting with the tree trimmers; moreover, there was no competent evidence of negligence by the tree trimmers.

PUBLIC EMPLOYEES
DAWKINS v. WATSON
Appellate Division, A-1522-04T3, June 28, 2005, not approved for publication. (20 pages). Facts-on-Call Order No. 18158

Summary judgment for the defendant Corporation Counsel of the City of Newark in an action by the plaintiff attorney who challenged his termination affirmed; the defendant hired the plaintiff as a legal assistant and initially assigned him to prosecute municipal court matters; the plaintiff later was assigned also to represent the ABC Board, and he was terminated after he refused to submit a memorandum about an appeal from an ABC Board decision; the trial court did not err (1) by rejecting the plaintiff’s claim that he was a municipal prosecutor and that he thus was entitled to notice and a hearing before termination under N.J.S.A. 2B:25-9, (2) by rejecting the plaintiff’s claim that the defendant did not have the authority to supervise or dismiss him, and (3) by finding that there was no genuine issue of material fact about whether the plaintiff’s assignments violated public policy.

DRUNK DRIVING
STATE v. DINALLO
Appellate Division, A-5222-03T2, June 28, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18156

Convictions of driving while intoxicated and refusal to take a Breathalyzer test affirmed; a witness called 911 to report that the defendant’s vehicle was weaving on the road; the responding officer detected a strong odor of alcohol and observed that the defendant moved slowly and deliberately and had watery and bloodshot eyes; the defendant fell while exiting the vehicle, performed poorly on field sobriety tests, and refused to provide a breath sample; contrary to the defendant’s arguments on appeal, (1) the Municipal Court judge did not violate Rule 1:12-1 by refusing to recuse himself, (2) the Municipal Court did not find the defendant guilty based on his ingestion of prescription drugs, (3) there was sufficient evidence in the record to support his conviction for driving while intoxicated, and (4) there was sufficient evidence of intoxication to permit the officer to request a Breathalyzer test.

NEGLIGENCE
GIAMBRONE v. LUONGO
Appellate Division, A-1489-04T2, June 27, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18159

Judgment for the defendants in an automobile negligence action and denial of the plaintiffs’ motions for judgment n.o.v. or for a new trial affirmed; the plaintiffs were passengers in a car driven by the named defendant when the accident occurred; one issue in dispute at the jury trial was whether a second vehicle driven by the “John Doe” defendant was traveling close to the named defendant’s car shortly before the named defendant’s car blew a tire and ended up in an embankment on the opposite side of the road; the jury found that neither defendant was negligent; contrary to the plaintiffs’ arguments on appeal, (1) there was no “compelling” evidence that either or both defendants were negligent because the mere occurrence of an accident is not sufficient to justify a finding that a defendant was negligent, (2) the proofs adequately supported the jury’s finding that the plaintiffs failed to prove negligence, and (3) the plaintiffs failed to meet the miscarriage of justice standard required by Rule 4:40-2 and Rule 4:49-1.

PRODUCTS LIABILITY
SPIVEY v. KRUEGER INTERNATIONAL
Appellate Division, A-5638-03T1, June 27, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18160

Judgment following a jury trial of more than $1.1 million against the defendant chair manufacturer affirmed in a products liability action for injuries sustained by the plaintiff when the chair in which he was seated collapsed; contrary to the defendant’s arguments on appeal, (1) the opinion of the plaintiff’s liability expert was not a net opinion, (2) any error due to the plaintiff’s use of the records from his family doctor during the cross-examination of the defendant’s medical expert was harmless, and (3) the verdict was not against the weight of the evidence.

FROM THE FEDERAL COURTS
IMMIGRATION LAW:
PAPAGEORGIOU v. GONZALES
Third Circuit, No. 04-3135, June 24, 2005. By Van Antwerpen, C.J. Also on panel: Ambro, C.J. and Tashima, Senior C.J. for the Ninth Circuit, sitting by designation. Appealed from the Board of Immigration Appeals. (7 pages). Facts-on-Call Order No. 92545

The Third Circuit denied the petition for review of a final order of the Board of Immigration Appeals that summarily affirmed an order of removal entered by an immigration judge against the petitioner. The petitioner was a Greek citizen and a permanent resident of the United States who was convicted in 1998 of distributing cocaine in violation of 21 U.S.C. §841(a)(1), and removal proceedings were brought against him. The petitioner claimed that the Board’s summary affirmance denied him due process because the Board did not issue a separate opinion. Although the petitioner’s claim would have been dismissed for lack of jurisdiction before May 11, 2005, the Third Circuit concluded that it was not barred from reviewing the claim (1) because the REAL ID Act of 2005, which was signed by the President on May 11, 2005, permits all aliens to obtain judicial review of constitutional claims and questions of law upon filing petitions for review of final removal orders and (2) because the Act applies retroactively to pending petitions for review. On the merits, the Third Circuit denied the petition because it had previously held that due process challenges to such summary affirmances by the Board are “without merit.”


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2005 The New Jersey Lawyer Inc. All rights reserved.