NEW JERSEY LAWYER

DAILY BRIEFING      07/26/2005


News Briefs

PEDOPHILE RESIDENCY RESTRICTIONS TO BE CHALLENGED
The National Association of Criminal Defense Lawyers (ACDL) may fight New Jersey communities’ movement toward restricting where convicted sex offenders can live. “These local ordinances will be challenged,” Moorestown attorney William H. Buckman, an ACDL board member, told the Asbury Park Press in a story about Brick Township’s plans to vote Tuesday on an ordinance to ban offenders from living within 2,500 feet of schools, day care centers and school-bus stops. Hamilton, the first New Jersey community to have such a ban, passed an ordinance in May prohibiting offenders from living within 2,500 feet of schools, parks and playgrounds. 7-25-05

SERVICES FOR JOHN P. MCGEE, FORMER STATE BAR GENERAL COUNSEL
Services will be Wednesday for John P. McGee, general counsel for the New Jersey State Bar Association from 1981 to 1993 and president of the Essex County Bar Association in 1992, who died Friday at age 74. The State Bar awarded McGee, a partner in Millburn’s McDermott & McGee, its Professionalism Award in 2003, and the Essex Bar gave him its Lifetime Achievement Award in 2002 and its Civil Trial Achievement Award in 1998. A Mass will be offered 11:15 a.m. at the St. Rose of Lima Church in Short Hills. 7-25-05

OPRA EXEMPTION PROPOSAL LIKELY TO BE CHANGED
Attorney General Peter C. Harvey’s proposal to exempt certain government documents from the Open Public Records Act is likely to be changed somewhat, according to a member of the group charged with implementing the revisions. “Not only will the regulations be re-examined, but it appears as if some modifications will be necessary,” said Ronald J. Riccio of the Domestic Security Preparedness Task Force. At a public hearing last week, the New Jersey Press Association and the New Jersey Foundation for Open Government roundly criticized the proposal as too broad. Nomi I. Lowy, attorney for the Press Association, said the rules would even prevent taxpayers from accessing plans for new school construction to be funded with tax revenues. 7-25-05

BOONTON TO CONSIDER REQUEST FROM ‘THE SOPRANOS’
It could be a mob offer that officials of Boonton can refuse. The town’s governing body is expected to vote next Monday on a request from the HBO series “The Sopranos” to film an episode there. There’s speculation the vote may go against Tony Soprano and his cohorts because some residents are still upset about a 2001 episode that depicted a character getting killed in Boonton when that show was actually shot elsewhere. The town in 2001 rejected the show’s request to film there because of traffic congestion concerns. 7-25-05

DO YOU THINK YOU’RE SEXY?
Lawyers ranked 10th on the list of “sexiest” jobs, according to a survey of 5,000 people by Salary.com. The top three sexiest jobs are firefighter, flight attendant and chief executive officer. Lawyers ranked just below doctors and one ahead of veterinarians. 7-25-05



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, MONDAY, JULY 25, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JULY 25, 2005:

LAW AGAINST DISCRIMINATION
GERETY v. ATLANTIC CITY HILTON CASINO RESORT
New Jersey Supreme Court, A-33, July 25, 2005. (38 pages). Facts-on-Call Order No. 92594

The application of the defendant employer’s medical leave policy to terminate an employee after she exceeded the policy’s 26-week limit due to a difficult pregnancy did not violate the Law Against Discrimination because the policy was applied in a nondiscriminatory manner and was not subject to exception. Chief Justice Poritz dissented.

THE SUPREME COURT has announced that it will release an opinion in RALEIGH AVENUE BEACH ASSOCIATION v. ATLANTIS BEACH CLUB, INC., A-40, on July 26, 2005. The issue on appeal in Raleigh Avenue Beach Association addresses whether the New Jersey Public Trust Doctrine mandates public access to the private beach in this case and, if it does, whether the Coastal Area Facility Review Act authorizes the Department of Environmental Protection to determine the appropriate fees for access.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, JULY 25, 2005.

NOT APPROVED FOR PUBLICATION
LAND USE
ELBERON VOTERS AND PROPERTY OWNERS ASSOCIATION v. CITY OF LONG BRANCH
Appellate Division, A-4253-03T3, A-4730-03T3, and A-4749-03T3, July 25, 2005, not approved for publication. (30 pages). Facts-on-Call Order No. 18286

Dismissal of the plaintiff objectors’ actions in lieu of prerogative writs that challenged the defendant City Council’s decision to vacate Lakeside Avenue and that challenged the defendant Planning Board’s grant of preliminary site plan and subdivision approval to the defendant developer and Law Division order that initially remanded the matter for consideration of the subdivision on its merits affirmed; contrary to the plaintiffs’ arguments, (1) the City Council’s decision to vacate the roadway was not “irrational,” (2) the Planning Board did not lack jurisdiction to consider the amended subdivision application, (3) the Planning Board had the authority to approve the widening and realignment of a proposed internal roadway in the development in derogation of an easement at that location, and (4) the Planning Board could approve a project that turned two neighboring lots owned by three of the plaintiffs into nonconforming lots without their consent.

HUSBAND AND WIFE
BORCHERT v. BORCHERT
Appellate Division, A-4942-02T2, July 25, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18285

Judgment of divorce affirmed; among other things, the judgment awarded the plaintiff ex-wife (1) a one-half interest in the marital home, (2) $239,945.16 in liquid assets, (3) rehabilitative and permanent alimony, which was to decrease from $15,790 per month to $12,250 per month, (4) $6,000 per month in child support for the parties’ four sons, and (5) $90,000 in attorney’s fees and expert fees; the defendant ex-husband appealed, and the ex-wife cross-appealed; considering the judgment as a whole, it was “fair and reasonable,” and there was no basis to reverse it; within the limited scope of appellate review, there was little challenge to the trial court’s legal conclusions, and the trial court stated its factual findings in “extensive detail.”

ESTATES AND TRUSTS
HOLEVINSKI v. OCEAN COUNTY BOARD OF SOCIAL SERVICES
Appellate Division, A-1461-03T1, July 25, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18287

Summary judgment for the defendant Ocean County Board of Social Services, the defendant employees of the Board, and the defendant doctor on immunity grounds in an action that arose from an investigation by the Board affirmed; the investigation confirmed that an 89-year-old woman’s son was exploiting her, and it led to the plaintiff niece’s appointment as guardian after competency proceedings; the niece alleged claims for defamation, deprivation of constitutional rights under 42 U.S.C. §1983, intentional infliction of emotional distress, inadequate training and supervision, false light defamation, and medical malpractice; the doctor was immune from liability because he was ordered by a court to evaluate the woman; the Board and its employees were immune from liability under the Adult Protective Services Act because their actions were within the scope of their employment.

INSURANCE
HARTMANN v. TRAVELERS PROPERTY CASUALTY INSURANCE CO.
Appellate Division, A-5881-03T5, July 22, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18282

Orders that dismissed the claims of the plaintiff driver and the plaintiff attorney in an action arising from the driver’s work-related accident with an uninsured motorist, that denied the plaintiffs’ discovery motion on the amount of a workers’ compensation lien, and that denied the plaintiffs’ request for attorney’s fees affirmed; after paying benefits to the driver, the defendant workers’ compensation carrier had a lien against the driver’s recovery of uninsured motorist benefits; the amount of UM benefits that the workers’ compensation carrier recovered from the defendant automobile insurer in the driver’s name exceeded the amount of the lien; after the plaintiffs sued, they received the UM benefits that remained after the lien was satisfied plus interest; contrary to the plaintiffs’ arguments on appeal, the trial court properly (1) granted summary judgment to the automobile insurer because it had complied with its obligations, (2) denied the discovery motion as untimely, (3) dismissed the claims that contested the amount of UM benefits that the plaintiffs received, and (4) denied the fee request.

PARENT AND CHILD
S.O. v. M.O.
Appellate Division, A-6046-03T3, July 22, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18281

Order directing that supervised visitation between the plaintiff father and his 7-year-old daughter resume with a therapeutic monitor affirmed; when the daughter was 3 years old, she alleged that her father had sexually molested her; the allegations never were definitively established, nor were they likely to be; supervised visitation was ordered after the allegations, and the father later acquiesced to a temporary suspension of visitation; by the time of the hearing to determine whether therapeutic supervised visitation was in the daughter’s best interests, the suspension had lasted two years, and the parties had divorced; contrary to the defendant mother’s argument on appeal, the trial court did not abuse its discretion by “cautiously moving the matter forward” by directing that therapeutic supervised visitation begin as soon as possible.

CRIMINAL TRIALS
STATE v. C.L.
Appellate Division, A-4186-02T4, July 22, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18284

Convictions of attempted aggravated sexual assault, second-degree sexual assault, two counts of second-degree endangering the welfare of a child, and fourth-degree child cruelty and an aggregate sentence of 18 years in prison with eight years of parole ineligibility affirmed; the credibility of the 14-year-old alleged victim was “hotly contested” and was the “cornerstone” of the State’s case; contrary to the defendant’s arguments on appeal, (1) the trial court did not err by admitting the fresh complaint testimony of the alleged victim’s foster mother and his biological mother, (2) the trial court did not err in its instructions to the jury, and (3) there was no basis to disturb the defendant’s sentence.

CRIMINAL TRIALS
STATE v. N.I.
Appellate Division, A-366-03T4, July 22, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18283

Conviction of third-degree endangering the welfare of a child based on a negotiated guilty plea affirmed; the defendant was caught shoplifting with his 5-year-old daughter, whom he left behind while he fled; the defendant was convicted of third-degree theft and second-degree endangering the welfare of a child; on March 14, 2002, the conviction on the endangering charge was reversed and remanded for a new trial, and the retrial began on April 2, 2003; after his motion to dismiss for lack of a speedy trial was denied, the defendant entered the plea agreement and received a three-year prison term that ran concurrently with his sentence on the theft conviction; although the defendant did not preserve his right to appeal the denial of his speedy trial motion, his right to a speedy trial was not violated under the four-part test of Doggett v. United States.


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.