NEW JERSEY LAWYER

DAILY BRIEFING      07/28/2005


News Briefs

PROBATION OFFICERS’ APPEAL CHALLENGES JUDICIARY’S PRACTICE
The Probation Association of New Jersey has appealed a Mercer County court ruling regarding the judiciary’s right to remove or effectively demote probation officers. The union for the more than 2,800 probation officers and supervisors in all 21 counties claims Judge Paulette M. Sapp-Peterson’s ruling in State of New Jersey v. Probation Association allows for the removal of officers without cause or a hearing in violation of its collective bargaining agreement with the judiciary. The state argued such action complies with the agreement and accuses the union of “trying to gain through litigation what it could not achieve through negotiation.” In the underlying case, Sapp-Peterson denied the union’s request for a hearing into the demotion of a Bergen County probation supervisor. Benjamin Benson of Fox and Fox in Livingston represents the union, and Deputy Attorney General Karen M. Selby represents the state. 7-27-05

LAWYER FINED FOR WAITING TILL TRIAL TO SAY HE’S NOT READY
Union County Judge William L’E. Wertheimer fined a New Brunswick attorney more than $1,000 for waiting until jury selection was about to begin before disclosing he was unprepared to proceed. Darryl M. Saunders of New Brunswick must pay the daily stipend for the 110 prospective jurors plus $637 for two Spanish-speaking interpreters on hand for the murder trial of William Rivera of Plainfield. Saunders, who said he needed more time to have Rivera evaluated because he just received the case May 25 and the records in June, said the fine would have “a chilling effect” on the defense bar. Assistant Union County Prosecutor Ann R. Rubin said, “You’d think the guy would have at least had the professional courtesy to say ‘I’m not going to be ready.’ He basically caused needless expenses.” 7-27-05

JERSEY LAWYERS FILE AMICUS IN MILITARY RECRUITING CASE
On behalf of several retired generals and former government officials, lawyers from Greenberg Traurig’s Florham Park office worked on the amicus brief to the U.S. Supreme Court supporting the government’s fight to withhold funding to schools that deny military recruiters access to their campus. “Recruiting in our armed forces has suffered recently, and it’s in everyone's interest to ensure the continuing viability of our all-volunteer military,” Philip R. Sellinger, managing partner, said of the filing in Rumsfeld v. Forum for Academic & Institutional Rights. The 3rd U.S. Circuit Court of Appeal previously ruled the withholding of federal funds unjustly penalizes such schools. 7-27-05

PENNSY JUDGE STRIKES DOWN CIVIL LIABILITY RESTRICTION
A Commonwealth Court judge in Delaware County, Pa., has struck down a state law that restricted liability claims in civil suits, finding the provision had been improperly attached to legislation enacted in 2002. Senior Judge James R. Kelley effectively reinstated the “joint and several liability” doctrine when he overturned a measure that says defendants found to have less than 60 percent liability would not have to pay the full amount unless their actions were intentional. Pennsylvania Assembly Minority Leader H. William DeWeese and Democratic Whip Michael Veon sued former Secretary of State C. Michael Weaver to overturn the law, which is part of legislation that orders imprisoned sex offenders to submit to DNA testing. 7-27-05

TEEN CONVICTED FOR VOMITING ON TEACHER
An Olathe, Kan., high school student was convicted of battery for vomiting on his Spanish teacher. Johnson County Magistrate Judge Michael Farley said the action was “an assault on the dignity of all teachers” as he sentenced the 17-year-old to four months of community service. The boy’s attorney said he vomited because he was nervous about final exams, but other students testified he did so intentionally and had bragged about his plan beforehand. The teacher testified the boy, who was failing in class, made no attempt to stop throwing up on him. 7-27-05

CORRECTION
The Daily Briefing incorrectly reported this week that Moorestown attorney William H. Buckman, a board member of the National Association of Criminal Defense Lawyers, expected that association to challenge recent municipal ordinances restricting where convicted sex offenders may live. He says he anticipates there will be challenges, but not from the association. 7-27-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JULY 27, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JULY 27, 2005:

PREEMPTION
GONZALEZ v. IDEAL TILE IMPORTING CO.
New Jersey Supreme Court, A-53, July 27, 2005. (25 pages). Facts-on-Call Order No. 92596

Although a state tort action involving a third party and a workplace injury may survive an OSHA conflict analysis, the state tort action by the plaintiff in this case against the manufacturer of the forklift that struck him while his co-worker was operating it could not. Justice Zazzali dissented.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JULY 28, 2005.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, JULY 27, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
FLANNERY v. SZUWALSKI
Appellate Division, A-7142-03T3, July 27, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18299

Dismissal with prejudice of the plaintiff’s automobile negligence complaint following the jury’s response in the negative to the jury interrogatory asking whether the plaintiff had sustained “permanent injuries as a proximate cause of the accident, which injuries have a serious impact on her life,” and denial of the plaintiff’s motion for a new trial reversed and remanded; under the New Jersey Supreme Court’s recent decision in DiProspero v. Penn, the plaintiff was not required to show that her injury had a serious impact on her life to overcome the N.J.S.A. 39:6A-8a verbal threshold under AICRA; a new trial was required because any attempt to determine whether the jury’s negative response was based on its view of the “proximate cause” evidence rather than on its view of the “serious impact” evidence would be “an exercise in speculation.”

INSURANCE
D & G SAYLES CORP. v. BLUE GULF INDUSTRIAL SUPPLY CO.
Appellate Division, A-2939-04T1, July 27, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18298

Judgment of $2,500 for the plaintiff insurance agency in an action to recover a premium from the defendant insured on a marine open cargo policy issued by the insurer affirmed; the policy provided that a $2,500 “annual deposit premium” was due by January 27 of each year “until cancellation” and that the insured was not entitled to a “return premium” if the policy was cancelled “prior to the anniversary date”; the insured paid its premiums through the agency, and the agency first received written notice of the insured’s cancellation on February 12, 2003, which was after the third anniversary date; the insurer invoiced the agency for $2,500 on the insured’s policy in May 2003, and the agency demanded $2,500 from the insured in July; the record supported the trial court’s findings and conclusions.

PARENT AND CHILD
McCARRAHER v. GONZALEZ
Appellate Division, A-6864-03T3, July 27, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18300

Order suspending the plaintiff grandmother’s visitation with her three grandchildren affirmed substantially for the reasons expressed by the trial court; the order that permitted visitation with the grandmother prohibited unsupervised contact between the grandchildren and their grandfather, who had previously been convicted of first-degree sexual assault against a child under 13 years of age; the grandchildren’s legal custodian testified that, according to two of the grandchildren, they had slept in the same bed with their grandfather and their grandmother during one visit; the Division of Youth and Family Services submitted a report that corroborated the statements of the two grandchildren; the grandmother denied the allegations, but the trial court found that her testimony was not credible and concluded that she was not acting in the best interests of the grandchildren.

PUBLIC EMPLOYEES
IN RE O’NEILL
Appellate Division, A-1269-04T3, July 26, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18294

Final decision of the Merit System Board that upheld the 30-day suspension of the petitioner sheriff’s officer affirmed; the suspension was imposed on disciplinary charges after the officer unintentionally left his loaded off-duty handgun inside an unattended patrol car in a parking area at the Monmouth County Courthouse for 34 hours; upon realizing that he had left the weapon in the car, the officer notified the Sheriff’s Office, which retrieved the weapon without incident; it was within the Board’s discretion to reject the officer’s arguments (1) that there was no danger that the weapon would cause injury or fall into the wrong hands, (2) that the absence of “any tragic consequences” excused his conduct, and (3) that the disciplinary process was a pretext to bar his promotion to sergeant.

UNEMPLOYMENT COMPENSATION
CORNWELL v. BOARD OF REVIEW
Appellate Division, A-1827-04T1, July 26, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18295

Final decision of the Board of Review that dismissed the claimant patient care associate’s appeal of the denial of her application for unemployment benefits affirmed; after friction arose between the claimant and a new employee whom she had been asked to train, the claimant gave two weeks’ notice to her employer, called in sick the second week, and never returned to work; the Appeal Tribunal found the claimant ineligible for unemployment benefits because she had left work voluntarily without good cause attributable to the work, and the Board dismissed the claimant’s appeal as untimely under N.J.S.A. 43:21-6(c); on appeal, the claimant argued the merits of her claim instead of explaining the reasons for her late appeal; the appeal had to be dismissed because the claimant failed to establish good cause for filing the late appeal.

INMATES
POLICASTRO v. DEPARTMENT OF CORRECTIONS
Appellate Division, A-1208-04T2, July 26, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18297

Decision of the respondent Department of Corrections that imposed disciplinary sanctions for possession of a prohibited weapon against the petitioner inmate affirmed; a corrections officer had found the bent lid from a can of tuna in the inmate’s cell, but the inmate denied that the lid was bent; a hearing officer found that the lid was bent and could be used as a weapon or as a tool, and the Department adopted that finding; on appeal, the inmate relied “heavily” on an unpublished Appellate Division opinion, but that opinion involved the discovery of an “unmodified” tuna can lid in a cell and was not binding precedent; there was ample credible evidence to support the finding that the lid in this case had been modified for use as a weapon.

PAROLE
RIGHETTI v. NEW JERSEY STATE PAROLE BOARD
Appellate Division, A-437-04T5, July 26, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18296

Final decision of the respondent State Parole Board that denied parole to the appellant inmate for the third time and that established a 132-month future eligibility term affirmed; the inmate was serving a life term for convictions of first-degree murder and rape that were entered in 1977; the Board’s factual findings were supported by the record, and its conclusion was reasonable and in accordance with the law; contrary to the inmate’s arguments on appeal, (1) the Board properly considered all of the relevant information and did not violate the ex post facto clause of the U.S. Constitution by applying the current version of N.J.S.A. 30:4-123.56c, (2) the Board could consider information about a March 1976 incident that the inmate claimed was falsified, and (3) the Board did not improperly consider letters from the public that opposed the inmate’s parole.


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