NEW JERSEY LAWYER

DAILY BRIEFING      07/14/2005


News Briefs

FORMER AG FARMER JOINS NEWARK FIRM
Former Attorney General John J. Farmer Jr. is now a partner at the Newark office of Kirkpatrick & Lockhart Nicholson Graham. Farmer, who also served as senior counsel to the 9/11 Commission, concentrates on special investigations and governmental/regulatory affairs, including white-collar criminal defense, corporate internal investigations, appellate advocacy and homeland security. The firm’s white-collar team also added four former assistant U.S. attorneys: John A. Azzarello, Jeffrey L. Bornstein, Michael D. Ricciuti and John A. Wortmann Jr. Farmer was attorney general from 1999 to 2002, during which Megan’s Law was implemented and allegations surfaced of racial profiling by New Jersey State Police. He was chief counsel to former Gov. Christie Whitman from 1997 to 1999. 7-13-05

IMAGING COMPONENT OF SPECIAL CIVIL PART FILING PROGRAM TO EXPAND
The imaging component of the Judiciary Electronic Filing and Imaging System (JEFIS) in the Special Civil Part will be implemented next year in the nine counties that don’t yet have it, the Administrative Office of the Courts has announced. The counties are Atlantic, Cape May, Essex, Hudson, Hunterdon, Middlesex, Passaic, Sussex and Warren. JEFIS involves the electronic filing of cases from law firms into the judiciary’s mainframe computer systems and includes document imaging. Participating law firms generally handle a high volume of collection matters. Lawyers who would like to file cases electronically may contact Patricia D’Errico of the Superior Court clerk’s office in Trenton at (609) 292-8987. 7-13-05

U.S. TAX TRIALS BY SPECIAL JUDGES TO BE MADE PUBLIC
Lower-level U.S. Tax Court decisions will be made public, according to proposed new rules. The change comes in response to a U.S. Supreme Court ruling in a 1999 Chicago case in which a reviewing judge declared an attorney and two partners had engaged in fraud and owed $30 million in taxes. That judge said he relied on the finding of a special trial judge who heard the case, but when the defendants challenged the ruling, they found the recommendations were secret, under a 1984 rule. When the Supreme Court ordered the Chicago findings made public, the record showed the special judge had found in favor of the defendants, not against them as the reviewing judge declared. The new rules state that beginning in September, findings will be made public. The rule change won’t resolve whether files secret since 1984 will also be made public. 7-13-05

VENTNOR SETTLES SUIT AGAINST REDEVELOPMENT PROJECT
In what may be an indication of a stronger bargaining position the recent U.S. Supreme Court decision gives municipalities over property redevelopment plans, the City of Ventnor has settled a lawsuit against one such plan despite objections from some residents who would be displaced. The settlement, which would allow a 28-acre tract of older homes be converted to condominiums and townhomes, was reached just weeks after the Supreme Court’s Kelo v. New London decision that allows municipalities to seize property for redevelopment that benefits the community. While some protestors may want to remain in their homes regardless of the settlement, Ventnor’s city administrator Andrew McCrosson said the municipality would use eminent domain “as a last resort” to evict them. Ventnor’s settlement with the Hispanic Alliance of Atlantic County requires the city to include low-income housing in its development. 7-13-05

‘UNINTENDED CIRCUMSTANCES’ LICENSE SUSPENSIONS STUDIED
A report on the suspension of driver’s licenses for reasons unrelated to driving is being prepared for the next governor by a Motor Vehicle Commission task force. The group, which this week was scheduled to complete public hearings on the topic, plans to have the report ready in February. MVC spokesman David Weinstein said the task force is addressing “unintended circumstances” that include suspensions being ordered because of such matters as a driver’s failure to pay child support or make a court appearance. 7-13-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JULY 13, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JULY 13, 2005:

TRIAL BY JURY
SHANKMAN v. STATE OF NEW JERSEY
New Jersey Supreme Court, A-76/77, July 13, 2005. (35 pages). Facts-on-Call Order No. 92577

In this consolidated personal injury case involving claims by a husband and wife against multiple defendants, it was reversible error for the trial court not to have engaged in further inquiry with the jurors, upon request by the wife’s attorney, about whether they had issued an illegal “quotient verdict.” The trial court also erred by permitting the jury to consider the wife’s pleading in a count against the husband as evidence of fault against the husband.

THE SUPREME COURT has announced that it will release opinions in STATE v. KENNEY, A-63, and LaMANNA v. PROFORMANCE INSURANCE CO., A-101, on July 14, 2005. Kenney is a capital cause. The issue on appeal in LaManna addresses whether N.J.S.A. 2B:23-17 is unconstitutional because it authorizes juries in civil matters to render verdicts based on a vote of less than five-sixths of their members if stipulated by the parties, even though Article I, Paragraph 9 of the New Jersey Constitution provides for civil verdicts by “not less than five-sixths” of the jury.



APPROVED FOR PUBLICATION
PUBLIC RECORDS
GANNETT NEW JERSEY PARTNERS, LP v. COUNTY OF MIDDLESEX
Appellate Division, A-6584-03T3, approved for publication July 13, 2003. (21 pages). Facts-on-Call Order No. 92578

Where the U.S. Attorney’s Office is not joined as a party or given notice of an action challenging a State agency’s refusal to release federal grand jury subpoenas under the Open Public Records Act, a court should presume that the release of those documents could interfere with a federal investigation and should uphold the refusal. OPRA preserves the confidentiality of telephone billing records that existed under the Right to Know Law. Documents that are protected from disclosure in litigation as attorney work product are also protected from disclosure under OPRA.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
LUONG v. CASTRO
Appellate Division, A-1104-04T1, July 13, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18225

Award of $400,000 in compensatory damages and $100,000 in per quod damages to the plaintiffs in an automobile negligence action affirmed; the plaintiff husband was injured when the vehicle in which he was a passenger was struck by a vehicle driven by the defendant; at trial, the plaintiff husband testified that he no longer performed his work as a baker and pastry decorator to his quality standards and that he had lost hope for job advancement due to his physical limitations; the trial court denied the defendant’s motion for remittitur or a new trial; although the damages award was “generous,” it did not amount to a miscarriage of justice.

TORT CLAIMS ACT
MACKIN v. CILIBERTI
Appellate Division, A-1286-04T2, July 13, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18226

Summary judgment for the defendant Department of Transportation based on plan or design immunity pursuant to N.J.S.A. 59:4-6 affirmed in an action arising from an accident involving the plaintiff’s decedent on Route 73; the plaintiff conceded at oral argument that the Department was immune under §59:4-6, but she argued that the Department could not enjoy that immunity because a dangerous condition existed; summary judgment was properly granted (1) because the case law provides that a stated immunity will trump a public entity’s liability and (2) because the Department had established plan or design immunity.

DRUNK DRIVING
STATE v. DEMING
Appellate Division, A-2109-03T3, July 13, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18227

Conviction of driving while intoxicated affirmed; the defendant moved to suppress evidence on the ground that the stop of her vehicle was not justified; at the suppression hearing in the Municipal Court, the arresting officer testified that he had stopped the defendant because she had not stopped at a stop sign; the record supported the findings of the Municipal Court and the Law Division that the officer’s testimony was credible; although the defendant was found not guilty on the charge of disregarding a stop sign after a trial in the Municipal Court, that decision was not inconsistent with the finding that the defendant probably ran the stop sign, which did not have to be made beyond a reasonable doubt.

DOMESTIC VIOLENCE
BRIZZOLARA v. BRIZZOLARA
Appellate Division, A-1794-04T1, July 12, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18221

Dismissal of the plaintiff wife’s domestic violence complaint and temporary restraining order affirmed; the plaintiff alleged that the defendant husband committed harassment when he entered the marital home, screamed, pounded on the locked door to her bedroom, and said in a “violent and strong manner” that he was going to “put” her “in the street” and that he was going to “take the dogs” from her; the defendant’s conduct and remarks were of the same character as those that were insufficient to establish harassment in Corrente v. Corrente, Peranio v. Peranio, and Murray v. Murray; therefore, the trial court’s order was in accordance with the governing law.

DOMESTIC VIOLENCE
FERSHT v. FERSHT
Appellate Division, A-1285-04T1, July 12, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18222

Final domestic violence restraining order against the defendant ex-husband and award of $1,500 in attorney’s fees to the plaintiff ex-wife reversed; the trial court found that the defendant had engaged in harassment based on the totality of the circumstances, including an earlier alleged assault on the plaintiff and the “sheer volume” of telephone calls that the defendant made to the plaintiff despite the divorce judgment’s limits on telephone communications between the parties; the trial court’s findings of harassment were not sustainable and could not be the predicate for a finding of an act of domestic violence; the definition of “harassment” in the matrimonial settlement agreement could not serve as the foundational definition of the predicate offense of harassment under N.J.S.A. 2C:33-4.

PUBLIC EMPLOYMENT
IN RE LAKEHURST BOARD OF EDUCATION v. LAKEHURST EDUCATION ASSOCIATION
Appellate Division, A-5624-03T1, July 12, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18223

Final decision of the Public Employment Relations Commission that rejected two of six unfair practice charges under the Employer-Employee Relations Act filed by the petitioner Education Association against the respondent Board of Education affirmed; as to the first rejected charge, PERC found that the evaluations issued to two fifth-grade teachers were based on “a good faith belief that the teachers had done a poor job”; as to the second rejected charge, PERC determined that a comment made to the Education Association’s grievance officer by the superintendent was permissible because no personnel action was taken against the grievance officer; the factual findings made by PERC were well supported by the evidence, and PERC did not err in applying the law.


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