NEW JERSEY LAWYER

DAILY BRIEFING      08/29/2005


News Briefs

PROPOSED LOBBYING REGS SOFTENED FOR LAWYERS
In an about-face from its position earlier this year, the Election Law Enforcement Commission has revised proposed regulations for a new state lobbying law to exempt many lawyer activities that were deemed lobbying under its original proposal. “As a matter of comity with the judicial branch, it is necessary to refrain from regulating attorney communications with government officials that are not intended to be lobbying communications,” says the new proposal. The change is significant because lobbyists must report to ELEC, pay a $425 annual registration fee and be subject to random audits. The new proposal, posted on the organization’s website, HYPERLINK "http://www.elec.state.nj.us" elec.state.nj.us, will be the subject of a public hearing Sept. 20 at the commission’s Trenton office. 8-26-05

CLIENT SECURITY FUND PAYOUTS RUNNING BEHIND LAST YEAR
The New Jersey Lawyers’ Fund for Client Protection, which last year paid a record $4.4 million to clients victimized by unsavory lawyers, is well behind last year’s total so far this year. In the first two quarters of 2005, the fund paid $623,000 compared to $1.2 million in the first two quarters of 2004. The fund is supported by a $50 annual assessment on attorneys. Its purpose is to pay on behalf of the vast majority of honest lawyers for the wrongdoing of the few who are suspended or disbarred for misappropriation. The New Jersey State Bar Association wanted the assessment cut because of the fund’s $12 million surplus, but the Supreme Court rejected that idea. 8-26-05

MOLDY MERCER COURTROOMS REOPENING
Two Mercer County courtrooms are being cleaned top to bottom after mold was found there last week; both facilities could be back in operation Monday. One courtroom was fully cleaned by Thursday, but officials were awaiting air-quality test results before deciding whether to open it; the other facility was being cleaned and had been scheduled to be tested Friday. The county also is considering adding dehumidifiers to the courtrooms of Judges Darlene J. Pereksta and Maria Mariana Sypek to reduce the potential for a mold recurrence. 8-26-05

ONCE HIGH-FLYING LAWYER FELLED BY INDICTMENT
A. Kenneth Weiner, a once prominent East Brunswick attorney suspended in 2004 after clients complained he stole their money, now faces criminal charges. A Middlesex County grand jury indicted him on charges of accepting more than $79,000 from clients, then failing to represent them. Weiner apparently has fallen on hard times; he filed for bankruptcy protection in 2004, but the case was dismissed. He gained a modicum of national fame for high-profile cases that include winning acquittal for a man accused of killing a Rahway policeman in 2001 and gaining public sympathy for Chante Fernandez of Elizabeth after she was arrested in 1990 for leaving her child locked in a car while she worked. 8-26-05

SHAKEOUT EXPECTED FOR BANKRUPTCY PRACTICES
The practice of bankruptcy law may undergo major changes after the new federal bankruptcy law takes full effect Oct. 17. Bankruptcy lawyers here predict the broad bankruptcy code revamp — changes include tight certification standards for lawyers representing clients in Chapter 7 filings — will prompt a massive departure by lawyers handling those cases, render some large-volume bankruptcy firms unable to represent clients in new areas created by the law and cause a surge in filings prior to mid-October. Indeed, the number of bankruptcy filings in the state spiked in the three months ending June 30, reversing a stretch when filings had declined. For a full story, see the Aug. 29 New Jersey Lawyer. 8-26-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, AUGUST 26, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, AUGUST 26, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, AUGUST 29, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, AUGUST 26, 2005.

NOT APPROVED FOR PUBLICATION
LAW AGAINST DISCRIMINATION
TERRELL v. SCHWEITZER-MAUDUIT, INTERNATIONAL, INC.
Appellate Division, A-1364-04T2, August 26, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18437

Summary judgment for the defendant employers in the plaintiff’s action under the Law Against Discrimination based on racial discrimination affirmed; as to the plaintiff’s failure-to-promote claims, the trial court properly concluded that the statute of limitations barred two of his claims and that, as to the third claim, he had failed to overcome the employers’ showing of a legitimate, nondiscriminatory reason for the action that they took with a showing that the reason was pretextual; as to his claims of hostile work environment and disparate treatment, the plaintiff failed to rebut the legitimate, nondiscriminatory reasons given — including the belief that the plaintiff’s job performance “was deficient in relating to his co-workers” — for the actions that management employees took on the employers’ behalf; as to the plaintiff’s claim of intentional infliction of emotional distress, it could not stand in light of his deficient showing on the substantive LAD claims.

LAND USE
DECKER v. BOROUGH OF NORTH HALEDON PLANNING BOARD
Appellate Division, A-4801-03T3, August 26, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18435

Order in an action in lieu of prerogative writs that reversed the defendant Planning Board’s denial of the application of the plaintiff developer for variances and a de minimis exception to the Residential Site Improvement Standards affirmed; the plaintiff needed the variances and the exception because he sought to create a four-lot subdivision in an R-3 residential zone; the record supported the trial court’s conclusions that the Board’s denial was arbitrary, capricious, and unreasonable and that the Board exceeded its authority by requiring the plaintiff to stabilize the banks of a waterway on the property, which was subject to the jurisdiction of the Department of Environmental Protection; the proofs supported the grant of a c(1) or c(2) variance; Judge Landau dissented.

LANDLORD AND TENANT
BLOOMFIELD CONDOMINIUM ASSOCIATES v. LJULJDJUROVIC
Appellate Division, A-6800-02T5, August 26, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18438

Judgment that validated the plaintiff landlord’s increase of the base rent for the apartment occupied by the defendant tenants from $840 to $1,205 per month, that awarded possession of the apartment to the landlord, and that stayed the issuance of a warrant of removal provided that the tenants paid the overdue base rent, which would be held in escrow pending appeal, affirmed; the parties’ previous lawsuit concerning a rent increase for the apartment had resulted in the entry of a judgment for the tenants because the landlord’s proofs that the increase was not unconscionable were deficient under Fromet Properties, Inc. v. Buel; in this case, the proofs addressed most of the Fromet factors and addressed other factors; the trial court should have required proofs about the landlord’s expenses and profitability, but its failure to do so was not a reason to impugn its “reasonable and balanced” decision in light of all of the proofs.

UNEMPLOYMENT COMPENSATION
CAPANO v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-1674-03T3, August 26, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18436

Determination of the respondent Board of Review that the claimant was disqualified from receiving unemployment benefits affirmed; the claimant was not “unemployed” under N.J.S.A. 43:21-19(m)(1) and was “clearly disqualified” for benefits for the time period of the claim because he was the president and sole owner of the employer when he filed the claim; the fact that the claimant may have qualified for benefits with a former employer had no bearing on his ineligibility for the claim, and his later formal dissolution of his business did not alter the fact that he was disqualified for the time period of the claim; alternatively, denial was proper because the claimant did not earn any wages with the employer.

CRIMINAL TRIALS
STATE v. KING
Appellate Division, A-5172-01T1, August 25, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18434

Convictions of carjacking, armed robbery, and weapons offenses remanded; on remand, the Law Division must develop the record and make findings and conclusions about (1) whether the out-of-court photographic identification procedure was unduly suggestive and, if it was, whether the in-court identification of the defendant was reliable and admissible, regardless of the out-of-court-identification, (2) whether the proffered testimony of a defense witness would potentially affect the outcome of the case, and (3) whether the sole defense witness wore prison clothes or shackles while he testified and, if he did, whether a new trial was warranted; the Law Division also must resentence the defendant pursuant to the New Jersey Supreme Court’s recent decisions in State v. Natale and State v. Abdullah; the Appellate Division retained jurisdiction.

TORTS
TEVA PHARMACEUTICALS USA, INC. v. STOP HUNTINGDON ANIMAL CRUELTY USA
Chancery Division, Bergen County, BER-C-63-05, August 19, 2005, not approved for publication. By Doyne, J. (6 pages). Facts-on-Call Order No. 18431

Motion by the plaintiffs to dismiss the defendants’ counterclaim granted; the plaintiffs filed a complaint and an order to show cause to enjoin the defendants from violating the plaintiffs’ rights and to obtain damages; the counterclaim asserted a claim of malicious prosecution or malicious use of process; the motion had to be granted under the New Jersey Supreme Court’s decision in Penwag Property Co., Inc. v. Landau, which held that a claim of malicious use of process can be asserted only after the action on which the claim is based has been resolved in the defendant’s favor and thus cannot be asserted in a counterclaim; the defendants argued that their counterclaim was actually a “SLAPP-back” claim that should be permitted under LoBiondo v. Schwartz, in which the Appellate Division urged the Supreme Court to relax Penwag, and under an Act that was recently passed by the Assembly; however, Penwag was binding, and the Chancery Division could not be guided by an Act that was neither passed by the Senate nor signed by the Governor.

FROM THE FEDERAL COURTS
SOCIAL SECURITY
TESCHNER v. COMMISSIONER OF SOCIAL SECURITY
U.S. District Court (DNJ), Civil Action No. 04-2884 (JEI), August 17, 2005. By Irenas, Senior U.S.D.J. (20 pages). Facts-on-Call Order No. 92633

The District Court reversed the final determination of the defendant Commissioner of Social Security that denied the claimant’s application for benefits as the surviving child of a recipient of Social Security disability insurance benefits and remanded for the payment of benefits. The Commissioner’s denial was based in part on the conclusion that the claimant did not satisfy 42 U.S.C. §416(h)(2)(A), which considers a claimant who is recognized as a deceased recipient’s child under the intestacy laws of the deceased recipient’s domicile at the time of his death to be the deceased recipient’s child for Social Security purposes. The District Court concluded that that the Commissioner’s finding that an order from the New Jersey Superior Court — which declared that the recipient was the claimant’s father — did not satisfy the intestacy laws of the state of the recipient’s domicile was “incorrect as a matter of law.”

SOCIAL SECURITY
PEARSON v. BARNHART
U.S. District Court (DNJ), Civ. Action No. 04-2237 (WHW), August 9, 2005. By Walls, U.S.D.J. (23 pages). Facts-on-Call Order No. 92636

In a Social Security disability and supplemental security income benefits action, the District Court reversed the denial of benefits and remanded to the Commissioner of Social Security for further proceedings. The court concluded that the administrative law judge failed to conduct a proper residual functional capacity determination pursuant to Social Security Rule 96-8p and instead made a conclusory assessment that did not refer to specific medical evidence and that did not specify how long the plaintiff could perform each of the seven external functions set forth in the Rule.


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