NEW JERSEY LAWYER

DAILY BRIEFING      07/29/2005


News Briefs

COURTS BACKLOG DROPS AGAIN
The backlog of cases in state courts dropped 13.3 percent from 26,369 to 22,854 during the court year ending June 30, with declines reported in all divisions, according to the latest statistics from the Administrative Office of the Courts. Civil, the largest division, reduced its backlog 15 percent, while general equity experienced a 17 percent drop and criminal reduced a backlog of post-indictment cases 6 percent. The latest figures continue a steady decline in backlogged cases in recent years. From 2000 to this year, the backlog plummeted from 51,368 to 22,854, a 55.5 percent decline. Judge Philip S. Carchman, administrative director of the courts, credits the introduction of best practices in September 2000, as well as the “hard work and dedication” of judges and court staff. These five-year declines occurred even in the face of a slight increase in filings. For a full story, see the Aug. 1 New Jersey Lawyer. 7-28-05.

SUPREME COURT FAST-TRACKS SUIT BY SUBRYAN CLERK
The New Jersey Supreme Court is fast-tracking the suit filed last month against the judiciary by the former law clerk who accused Passaic County Judge Randolph M. Subryan of sexually harassing her. She also claims the judiciary retaliated against her after she alleged the judge groped and kissed her in his chambers in 2003. Once Breaton v. State is resolved, the high court will decide what punitive action, if any, to take against the veteran judge. The court’s Advisory Committee on Judicial Committee (ACJC) previously found the clerk’s accusations credible and recommended the justices censure Subryan. The full court held a hearing on that recommendation a half year ago. Last week the court directed that Judge Harold B. Wells, on recall assignment in Mercer County, handle on an expedited basis the suit by the former clerk, Jennifer M. Breaton. Subryan’s attorney, Justin E. Walder of Roseland’s Walder Hayden & Brogan, has said Breaton’s suit undermines her credibility because she testified to the ACJC she did not intend to take civil action in the matter. 7-29-05

BOUNTY HUNTERS TAKE WRONG PERSON
Bounty hunters continue to make some bizarre blunders in New Jersey, and now a policeman is paying for at least one mistake. Rutherford Policeman Nicholas Loizzi has been charged with official misconduct and filing false reports in a matter involving bounty hunters who apprehended the wrong woman, The Record of Hackensack reported and police confirmed. Claudia Santana said that Rutherford police failed to intervene June 28 when two bounty hunters handcuffed and took her from her home and drove away. After the bounty hunters from Mantis Recovery Service in Philadelphia realized she was the wrong person, they dropped her off at a police station 30 miles from her home. Loizzi has been suspended without pay. 7-28-05

AMNESTY FOR NEW JERSEYANS OWING $27 MILLION TO INDIANA
New Jersey has a presence in Indiana, but not one to brag about. There are 2,900 New Jerseyans with Indiana addresses who, according to Indiana’s Department of Revenue, owe the state $27 million in delinquent taxes. But there’s a chance to bail out. Indiana has announced a tax delinquent amnesty from Sept. 15 to Nov. 15, when back taxes can be paid free of penalty, interest and collection fees, and without fear of criminal or civil prosecution. For more information, visit HYPERLINK "http://www.in.gov/dor/amnesty. 7-28-05" in.gov/dor/amnesty. 7-28-05

KNOCK-KNOCK IS NO JOKE IN BRICK
Under a new Brick Township ordinance, vendors can be fined up to $1,250 for knocking on doors of residents who register for a “Do Not Knock” registry. It’s the latest Ocean County community to take such action since a salesman selling magazines murdered a Dover Township woman last year. Door-to-door salespeople must obtain copies of the no-knock registry; residents who join receive a sticker for their door or window showing they’re not to be disturbed. 7-28-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JULY 28, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JULY 28, 2005:

WITNESSES
STATE v. WILLIAMS
New Jersey Supreme Court, A-61, July 28, 2005. (37 pages). Facts-on-Call Order No. 92597

In this prosecution for aggravated assault and weapons offenses, the testimony of a mediator about the defendant’s statements during mediation that was ordered by a Municipal Court on related charges was properly excluded because the defendant did not make the requisite showings to overcome the mediation privilege. Justice Long dissented.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JULY 29, 2005.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, JULY 28, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, JULY 28, 2005.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


CONTRACTS
ACCURATE DOCUMENT DESTRUCTION, INC. v. MOORE NORTH AMERICA, INC.
Appellate Division, A-4379-03T2, July 27, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18301

Partial summary judgment for the defendant customer on the plaintiff document destruction company’s claim for consequential lost profits in a breach of contract action reversed and remanded; part of the contract provided for the company to remove materials from the customer’s premises at no charge and to pay the customer a rebate for those materials based on the prices stated in an industry publication; after the customer changed vendors for recycling services, the company sued to recover lost profits due to its inability to resell materials removed from the customer’s premises to third parties, among other things; partial summary judgment was improper because a jury might reasonably find that the customer knew that its rebates resulted from the company’s resale profits, which would mean that the lost profits were reasonably within the contemplation of the parties when they entered into the contract.

CONTRACTS
ACCURATE DOCUMENT DESTRUCTION, INC. v. MOORE NORTH AMERICA, INC.
Appellate Division, A-4396-03T2, July 27, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18302

Judgment for the plaintiff document destruction company in a breach of contract action reversed and remanded for a new trial; the defendant customer asserted defenses of waiver, estoppel, and interference based on the company’s failure to provide a copy of the parties’ written contract upon request; the customer was “collectively prejudiced” by the trial court’s jury instructions and reversal was required where the trial court (1) failed to instruct the jury on the waiver defense, (2) improperly instructed the jury on the estoppel defense and failed to tailor that instruction to the facts of the case, and (3) failed to explain interference in the context of the parties’ duty of good faith and fair dealing.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
NORTH WARREN BOARD OF EDUCATION v. W.T.
OAL Docket Nos. EDS 5088-05, EDS 5993-05, and EDS 5994-05, Agency Docket Nos. 2005 9980, 2005 10136, and 2005 10024, Final Agency Decision: June 28, 2005, released for publication July 12, 2005. By McKeown, ALJ (temporarily assigned). (16 pages).

The administrative law judge granted the respondent father’s request for an independent evaluation of his 17-year-old son, who was legally blind, profoundly deaf, and cognitively impaired. The son had been placed in a mainstream general education program by the New York City School System. After relocating to New Jersey in August 2004, the son continued in a mainstream general education program. Before an evaluation was performed, the petitioner Board of Education was granted emergent relief in October 2004 to change the son’s placement to homebound instruction. The New Jersey Specialized Child Study Team evaluated the son in February 2005, which prompted the father’s request for an independent evaluation. The ALJ concluded that the father was entitled to an independent evaluation and that the Board must bear the costs of that evaluation. The ALJ observed that an evaluation of the son needed “more substance” than the Team’s evaluation, which said little about the son’s visual, communication, cognitive, and developmental impairments or about the son’s age.

SPECIAL EDUCATION
C.G. v. MAPLE SHADE TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 4460-05, Agency Docket No. 2005 10206, Final Agency Decision: June 22, 2005, released for publication July 12, 2005. By Martone, ALJ. (6 pages).

The administrative law judge denied the petitioner mother’s request for emergent relief to allow her 18-year-old emotionally disturbed daughter to participate in the respondent Board of Education’s graduation ceremony that was scheduled for the evening of the hearing date, which was June 22, 2005. The mother was notified on June 10, 2005 that the daughter was not eligible to participate in the ceremony because she was failing physical education. The daughter refused to change her clothes for gym class due to severe anxiety, and the mother therefore sought to amend the daughter’s IEP to include a waiver of the physical education requirement. Applying the four-part test of N.J.A.C. 1:6A-12.1(e), the ALJ found (1) that the “major difficulty” with the request for emergent relief involved whether the mother was likely to prevail on the merits of her underlying claim and (2) that he could not reach a conclusion on that issue without a full hearing. The ALJ also found that the alleged lack of sufficient notice about the daughter’s failing grade in physical education did not constitute a waiver of the physical education requirement.

SPECIAL EDUCATION
S.S. v. WEST MILFORD TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 7036-05, Agency Docket No. 2005-10141, Final Agency Decision: June 17, 2005, released for publication July 12, 2005. By Jones, ALJ. (8 pages).

The administrative law judge granted the petitioner student’s request for emergent relief to permit her to participate in the respondent Board of Education’s 2005 graduation ceremony. The student was a 19-year-old high school senior who had met all of the academic requirements for graduation. The Board agreed to provide the student with additional services for her transition out of high school, but it would not allow her to participate in the 2005 ceremony if it provided those services. The ALJ applied the four-factor test for granting emergent relief under N.J.A.C. 1:6A-12.1(e) and determined that the student was entitled to the relief she sought (1) because she would suffer irreparable harm if she was not permitted to participate in the ceremony, (2) because she had a right to participate in the ceremony after she satisfied the graduation requirements, (3) because she had a substantial likelihood of prevailing on the merits, and (4) because, after balancing the equities, she would suffer greater harm than the Board if the emergent relief was not granted.


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