NEW JERSEY LAWYER

DAILY BRIEFING      07/15/2005


News Briefs

FORMER BERGEN PROSECUTOR FACES DISBARMENT
The man who once served as the top law enforcement officer in the state’s largest county is about to be booted from the profession. The New Jersey Supreme Court’s Disciplinary Review Board has recommended the high court disbar former Bergen County Prosecutor Larry J. McClure for dipping into client trust funds for his own use in violation of the court’s Wilson doctrine. Bergen’s top prosecutor from 1983 to 1989 has a long history of ethics violations that resulted in three separate suspensions and an admonishment. Other allegations against him include accepting clients while on suspension, then leaving them high and dry. 7-14-05

CDR TO BE DE FACTO VENUE FOR LEMON LAW FILINGS
Complementary dispute resolution will be the de facto venue for Lemon Law cases effective Jan. 1. That’s the launch date of a statewide pilot program in which the Administrative Office of the Courts (AOC) will offer counsel and pro se filers the option of mediation or binding or non-binding arbitration; failure to select one within 90 days will result in cases being assigned to mediation. Counsel would have to file a motion showing good cause for the case to go to trial. If the CDR pilot proves effective with Lemon Law cases, it may be expanded to other case types, said Michelle V. Perone, chief of the AOC’s civil courts program. She said Lemon Law cases are the testing ground because of their relatively limited number of filings, about 1,500 per year. 7-14-05

PROFILING MONITORS GIVE STATE POLICE A PERFECT SCORE
After more than five years of scrutiny, New Jersey State Police may be able to put the racial profiling controversies of the 1990s behind them. A 12th report by independent monitors rates them at 100 percent compliance. The monitors, James Ginger and attorney Alberto Rivas of Lite DePalma Greenberg & Rivers in Newark, decided State Police had put into place all procedures necessary to avoid behavior that could be construed as profiling. The monitoring was part of a 1999 consent decree between the state and the Department of Justice, which also ordered overhauling procedures at every level. Attorney General Peter C. Harvey recently announced plans to extend racial profiling avoidance training to local police departments. 7-14-05

ALL MVC OFFICES NOW OPEN FOR FOREIGNERS
Depending on where you live, you soon may see shorter lines at your local Motor Vehicle Commission office. The agency has rescinded a rule passed after the 2001 terrorist attacks that had restricted driver’s license renewals by foreign visa holders to just four locations. Chief Administrator Sharon Hughes said that added security is enabling the commission to expand foreigners’ access to all 45 regional centers and should result in shorter lines at the four centers that had been their only venue: West Trenton, Wayne, Eatontown and Deptford. 7-14-05

SUIT MAY PROMPT CHANGE AT DRUG COURTS
The state’s drug court program may have to revise some policies depending on the outcome of a suit filed against a drug court in Chester County, Pa. Sheryl Ann Fletcher, a participant there, sued in the county’s Superior Court claiming it denied her due process when it tested her for drug use without providing advance notification. The finding of methamphetamine use was her third violation of program rules and was used as evidence in her June 29 conviction for drug use. Carol Venditto, a manager of New Jersey’s drug court, said that if the case results in an order to change the program’s core principles, it would affect programs here and in other states. Chester County Court Judge William P. Mahon has removed Fletcher from the program, saying she signed up for rehabilitation not litigation. 7-14-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JULY 14, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JULY 14, 2005:

TRIAL BY JURY
LAMANNA v. PROFORMANCE INSURANCE CO.
New Jersey Supreme Court, A-101, July 14, 2005. (27 pages). Facts-on-Call Order No. 92579

N.J.S.A. 2B:23-17, which authorizes parties in a civil action to stipulate that a smaller majority of jurors than five-sixths may render a verdict, is constitutional. Any error resulting from the failure to have the parties agree on the record to a verdict rendered by less than five-sixths of the jury was harmless. Justice Albin dissented.

POST-CONVICTION RELIEF
STATE v. FEASTER
New Jersey Supreme Court, A-63, July 14, 2005. (75 pages). Facts-on-Call Order No. 92580

In this capital cause, the prosecutor substantially interfered with a defense witness’s decision to testify in the post-conviction relief proceeding, thus violating the defendant’s constitutional due process and compulsory process rights. Justice Rivera-Soto dissented.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JULY 15, 2005.



APPROVED FOR PUBLICATION
ARBITRATION
MUHAMMAD v. COUNTY BANK OF REHOBOTH BEACH
Appellate Division, A-558-04T3, approved for publication July 14, 2005. (38 pages). Facts-on-Call Order No. 92581

As a matter of first impression in New Jersey, a mandatory arbitration provision in a payday loan contract is enforceable. The plaintiff failed to establish that the contract was unconscionable and therefore unenforceable, but she could vindicate her claims in arbitration. Judge Kestin concurred.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
BARTLEY HEALTHCARE, INC. v. CONCATO
Appellate Division, A-1941-04T5, July 14, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18235

Summary judgment for the defendant law firm based on the plaintiff nursing home’s failure to file an affidavit of merit affirmed; the nursing home sued the defendant husband of a nursing home resident and the law firm, which had been retained by the husband, in connection with a Long Term Care Admission Agreement; the nursing home’s allegation that the law firm had failed to notify it at least six months before the date of the resident’s anticipated eligibility for Medicaid required expert testimony about the nature and extent of an attorney’s duty under those circumstances and whether the law firm’s conduct breached that duty; furthermore, the complaint was subject to dismissal because there was no privity between the nursing home and the law firm.

MENTAL HEALTH
B.A. v. ST. BARNABAS MEDICAL CENTER
Appellate Division, A-809-04T2, July 14, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18234

Order finding probable cause for an order of temporary civil commitment affirmed; the plaintiff was involuntarily committed on July 23, 2005, and he was discharged two days later; about a year later, the plaintiff sought to vacate the temporary orders of involuntary commitment and to expunge all of the records of the entry of the orders; the Law Division expunged the orders but found that there was probable cause for the entry of the orders; probable cause is determined by the screening certificate; there was probable cause for a temporary commitment in this case where the screening certificate provided (1) that the plaintiff’s wife reported that the plaintiff had threatened to drive off a bridge and had spoken about a family suicide pact, (2) that the wife feared for herself and their 5-year-old daughter, (3) that the plaintiff allegedly had been menacing toward the wife, and (4) that the wife reported that the plaintiff had stated that “his hunter friend will gut her like an animal in the woods.”

DRUNK DRIVING
STATE v. RAMROOP
Appellate Division, A-2343-04T4, July 14, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18233

Conviction of driving while intoxicated affirmed; a police officer testified in the Municipal Court that the defendant was the operator of a vehicle that struck another vehicle from behind, smelled of liquor, had glassy and reddish eyes, was “swaggering,” slurred his speech, was not “able to follow” sobriety tests, refused to take a Breathalyzer test, admitted to drinking before the accident, and was “antagonistic” at police headquarters; although it found discrepancies between the officer’s testimony and the videotape of the scene, the Law Division gave “some deference” to the Municipal Court’s finding that the officer was credible; there was no “very obvious and exceptional showing of error” to justify not deferring to the credibility findings below.

LAND USE
QUAGLIARIELLO v. TOWNSHIP OF EDISON
Appellate Division, A-6187-03T1, July 13, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18229

Denial of the developer’s motion to intervene to appeal from an order that declared the defendant Township’s redevelopment ordinances invalid and denial of the plaintiff neighbors’ request for attorney’s fees affirmed; among other things, the ordinances adopted a redevelopment plan for the neighbors’ property that included a Walgreen’s pharmacy and designated the developer as the redeveloper of the property; the Township declined to appeal from the declaration that the ordinances were invalid; the developer could not intervene because its only interest in the property was as the designated redeveloper and that interest was extinguished when the Township abandoned its redevelopment plan; the neighbors were not entitled to attorney’s fees under the Eminent Domain Act or the Court Rules.

HUSBAND AND WIFE
CASEY v. CASEY
Appellate Division, A-4760-03T1, July 13, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18230

Post-divorce-judgment order denying the defendant ex-husband’s motion to terminate his alimony obligation affirmed; under the parties’ property settlement agreement, the defendant had paid $1,300 per month in unallocated support for the plaintiff ex-wife and the parties’ three children; after the children were emancipated, the defendant’s support obligation under the PSA was only $400 per month; the defendant thus benefited from “a very substantial reduction” in his support obligation; contrary to the defendant’s argument on appeal, a plenary hearing was not necessary because he had failed to establish a prima facie case of changed circumstances based on his age, his health problems, or his loss of employment; the evidence supported the trial court’s findings.

CIVIL RIGHTS
SCANNAVINO v. DOWD
Appellate Division, A-250-04T2, July 13, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18228

Dismissal of the plaintiff’s civil rights complaint under 42 U.S.C. §1983 against the defendant Township of North Bergen, the defendant Township Administrator, the defendant Mayor, and the defendant three members of the North Bergen Police Department and denial of the plaintiff’s motion for reconsideration affirmed; the plaintiff was arrested for allegedly disrupting a public meeting, and he was later found not guilty of the ensuing charges; the record, which included a videotape of the meeting, supported the trial court’s findings that the police had tried to keep order at the meeting and that the plaintiff had not shown that the defendants had acted arbitrarily or unreasonably; the conduct of the police officers was objectively reasonable, and the trial court did not err by dismissing the plaintiff’s complaint.


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