NEW JERSEY LAWYER

DAILY BRIEFING      08/12/2005


News Briefs

BANKRUPTCY SOLICITATION GUIDELINE FLOATED FOR PUBLIC COMMENT
The New Jersey Supreme Court’s Committee on Attorney Advertising is publishing for comment an attorney advertising guideline covering written solicitations to represent clients in bankruptcy proceedings. The guideline, which will be submitted to the high court for its approval, reflects the committee’s revised Opinion 30, which toned down the warnings the committee advised attorneys to give potential clients about the pitfalls of bankruptcy proceedings contained in the original opinion. Under the proposed guideline, solicitation letters must contain the following language: “The decision to file for bankruptcy is a serious choice. It is a remedy that may affect your credit and may affect your ability to use the bankruptcy code in the future time. Be sure to discuss the advantages and disadvantages of bankruptcy with any professional whom you are considering to represent you.” Comments on the guideline should be sent by Oct. 15 to Committee on Attorney Advertising, Samuel D. Conti, Committee Secretary, Hughes Justice Complex, P.O. Box 037, Trenton, N.J. 08625 8-11-05

COURT SETS HEARING FOR MCCLURE DISBARMENT
It may turn out to be a mere formality, but the New Jersey Supreme Court has scheduled a Sept. 26 hearing on whether to disbar former Bergen County Prosecutor Larry J. McClure. The Disciplinary Review Board (DRB) recommended McClure’s disbarment for using client trust funds for himself. Such offenses usually mean automatic disbarment. Citing the long-standing Wilson doctrine, the DRB last month passed up ruling on other ethics allegations, including practicing while under suspension, lying to authorities and theft from clients. McClure has been under suspension since May 2003. 8-11-05

JUST A GLIMMER OF HOPE FOR LIMITED LICENSES
Proposals that would allow drivers with a suspended license to drive to work — and only to work — have been around for years. But groups claiming suspensions have a regressive economic effect on those who can least afford it may finally be getting some traction in Trenton. In contrast to a code of silence on the issue in past years, the Motor Vehicle Commission’s Fairness and Affordability Task Force is at least looking at it. Also, the principle is embodied in a bill that would provide one more reason for suspending licenses — violation of a domestic violence restraining order — but allowing a limited license for those suspended under that provision. For a full story, see the Aug. 15 New Jersey Lawyer. 8-11-05

WALL TOWNSHIP COPS SUE OVER LOCKER ROOM VIDEO CAMERA
It appears to be shaping up as a case of cops watching cops. Fifty-six members of the Wall Township Police Department have sued in federal court in Newark, claiming the town had installed a videotape camera inside their locker room. The suit claims Police Chief Roy Hall installed it after a search of lockers in January. The officers contend the action violates their constitutional rights. In addition, an individual officer, claiming he was subjected to crude and degrading remarks after some officers looked at part of a videotape on which he was seen, filed a suit against Hall and a police lieutenant. Robert B. Woodruff of Algeier Woodruff in Morristown represents the officers. 8-11-05

GEESE PATROLS BARK AWAY HONKERS
“Who ya gonna call” if flocks of geese are defoliating playing fields and each goose is leaving a pound a day of gooey green stuff in the parks? Sounds like a job for Geese Police, Inc. Game laws protect geese from being shot or injured out of season, but there’s no law against annoying them so much they just go away. A firm based in Howell keeps a pack of very smart border collies that chase and “herd’ the geese without biting them. Ponds aren’t safe either as the dogs’ handlers paddle them onto the water in kayaks. After a few weeks of such treatment, the geese eventually take the hint and move on. Usually employed to patrol large corporate lawns, local governments are trying out the geese hounds, too. Paterson, for instance, has hired the dogs for 13 weeks to “patrol” three city parks. 8-11-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, AUGUST 11, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, AUGUST 11, 2005:

HOSPITALS
SAINT PETER’S UNIVERSITY HOSPITAL v. LACY
New Jersey Supreme Court, A-74, August 11, 2005. (32 pages). Facts-on-Call Order No. 92624

The Department of Health and Senior Services regulations codified at N.J.A.C. 8:43G-22A.6(c) and (e) are valid and are not plainly incompatible with the Health Care Facilities Planning Act. The regulations require all licensed children’s hospitals in New Jersey to operate a regional perinatal center and exempted children’s hospitals that were already licensed from obtaining a certificate of need before establishing a perinatal center. Justice Zazzali dissented.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, AUGUST 12, 2005.



APPROVED FOR PUBLICATION
SENTENCING
STATE v. YOUNG
Appellate Division, A-6234-02T4, approved for publication August 11, 2005. (22 pages). Facts-on-Call Order No. 92625

After a conviction is reversed, the trial judge on remand may increase the sentence on a surviving conviction subject to the original aggregate sentence that was imposed. An extended term for a persistent offender may be imposed under N.J.S.A. 2C:44-3a, which is a recidivism statute, based on judicial fact-finding without violating the Sixth Amendment. This matter was remanded for resentencing in light of the New Jersey Supreme Court’s recent decisions in State v. Natale and State v. Abdullah.

NOT APPROVED FOR PUBLICATION
PUBLIC RECORDS
MICHELSON v. WYATT
Appellate Division, A-6839-02T3, August 11, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 18360

Order denying the plaintiff citizen’s request for information about the health insurance benefits enjoyed by his municipality’s employees and their dependents affirmed as modified; in response to the plaintiff’s request, the municipality had provided several documents but did not include the names or other “individualized information” about the health-plan participants; the trial court ruled that the unproduced records were exempt from the Open Public Records Act and were not subject to inspection under the common law; although the plaintiff had no right to the withheld documents under OPRA, he had a common law right to inspect public records on the coverage elected by municipal employees; however, the plaintiff was not entitled to addresses, names of dependents, personal health information, or any other confidential information.

HUSBAND AND WIFE
ROLL v. ROLL
Appellate Division, A-1081-03T3, August 11, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18361

Denial of the plaintiff ex-husband’s post-divorce-judgment motion to require the defendant ex-wife to pay half of a deficiency assessed on the parties’ 1997 New York State and New York City non-resident joint income tax returns reversed and remanded; in early 1997, the ex-husband moved from the marital home in New Jersey to New York City, and he filed for divorce three years later; the parties’ property settlement agreement released each party from claims for contribution that were asserted against only the other party; the deficiency arose post-judgment from New York’s determination that the ex-husband was a resident of New York State and New York City in 1997; the deficiency had to be apportioned because it was a marital debt that was not covered by the PSA; the trial court erred by deciding disputed factual issues without a plenary hearing and by denying the ex-husband’s request for oral argument.

MEDICAL MALPRACTICE
BASIL v. WOLF
Appellate Division, A-4570-03T5, August 10, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18359

Summary judgment for the defendant workers’ compensation insurer in a medical malpractice action by the plaintiff executrix affirmed; the insurer arranged for the decedent to see the defendant orthopedist, who was an independent contractor, in connection with a work-related accident; the malpractice claims arose from the decedent’s death from a sarcoma that was not related to the accident; the orthopedist and the executrix stipulated to a dismissal without prejudice, and the Appellate Division determined that the proper forum for her claims against the orthopedist was the Division of Workers’ Compensation; contrary to the executrix’s arguments on appeal, the insurer was not vicariously liable for the orthopedist’s malpractice because the insurer did not control the orthopedist’s medical functions and because the executrix did not establish that the orthopedist was an incompetent independent contractor; the insurer’s only duty was to provide a qualified doctor to an injured worker.


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