NEW JERSEY LAWYER

DAILY BRIEFING      08/08/2005


News Briefs

SUPREME COURT TO WEIGH ADMINISTRATIVE LAW ISSUES
The New Jersey Supreme Court has agreed to hear arguments in two cases that address one of the key issues in administrative law — the extent to which critics of a proposed state agency action should have third-party status to fully challenge the issue at hand. In In re Freshwater Wetlands Statewide General Permits, the Appellate Division said a group known as Preserve Old Northfield (POND) was not entitled to a third-party hearing on a DEP grant of a permit allowing the filling of wetlands on a neighboring property. In In re NJPDES [Pollutant Discharge Elimination System] Permit No. NJ0025241, another appeals panel affirmed the denial of an application from Clean Ocean Action for an administrative hearing on the renewal of a permit for Asbury Park for the operation of a wastewater treatment facility. For a full story, see the Aug. 8 New Jersey Lawyer. 8-5-05

HACKENSACK POLITICAL SUIT WITH A STRANGE TWIST
Does six belong to a subset of five minus one? That’s what Bergen County Judge Robert P. Contillo will begin weighing Aug. 15, the start of a trial in which Calvin Coles, who finished sixth in the voting for five Hackensack City Council seats, wants to be named to the body because one of the five winners died on Election Day in May. Saying it was acting as mandated by state law, the City Council appointed a replacement and has vowed to fight Coles. Attorney S. Theodore Takvorian of Hackensack claims Coles, his client, should have been appointed by virtue of being first runner-up. 8-5-05

POWERHOUSE FIRM GIVING ASSOCIATES 6 PERCENT RAISE
In a move that may prompt New Jersey regional firms to consider loosening their purse strings, New York-based Skadden Arps Slate Meagher & Flom is giving many of its associates pay raises as high as 6 percent. Senior associates with six years’ experience will see their pay rise $12,000 to $212,000, five-year attorneys will receive a $10,000 spike to $200,000 and four-year associates will be up $6,000 to $185,000, according to executive partner Robert Sheehan. 8-5-05

BLOCKING DATING-SERVICE E-MAIL DOESN’T VIOLATE FIRST AMENDMENT
An online dating service’s speech rights were not violated when a university blocked its unsolicited e-mail, the 5th U.S. Circuit Court of Appeals has ruled. In White Buffalo Ventures v. University of Texas, the court said that although the dating service complied with the federal anti-spam law, the university could set its own anti-spam policy. White Buffalo Ventures sued after it legally obtained e-mail addresses to sites within the university and the school’s filters blocked 59,000 messages. The university said the dating service was part of a larger spam problem that crashed the school’s computer system. 8-5-05

YOGA COUNTER-PRODUCTIVE FOR NORWEGIAN INMATES
Norway’s prison for its most dangerous convicts has stopped giving yoga sessions after officials found the classes made the inmates more aggressive and agitated, reported warden Sigbjoern Hagen. In addition, some prisoners also developed sleeping disorders. The warden theorizes the improved deep breathing that comes from yoga unblocks psychological barriers that could make the criminals even more dangerous. 8-5-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, AUGUST 5, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, AUGUST 5, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, AUGUST 8, 2005.


APPROVED FOR PUBLICATION
ELECTIONS
IN RE APPLICATION OF THE OCEAN COUNTY COMMISSIONER OF REGISTRATION FOR A RECHECK OF THE VOTING MACHINES FOR THE MAY 11, 2004, MUNICIPAL ELECTIONS IN THE TOWNSHIP OF LONG BEACH AND MANCHESTER AND THE BOROUGH OF ISLAND HEIGHTS
Appellate Division, A-5899-03T5 and A-5900-03T5, approved for publication August 5, 2005. (26 pages). Facts-on-Call Order No. 92618

In consolidated appeals arising from an unsuccessful candidate’s loss by one vote in the May 11, 2004 municipal election in the Township of Long Beach, the Appellate Division affirmed (1) an order permitting a recheck of the voting machines on the State’s request and (2) summary judgment dismissing the unsuccessful candidate’s complaint, which was based on absentee, provisional, and write-in ballots that were not counted.

NOT APPROVED FOR PUBLICATION
PROFESSIONAL MALPRACTICE
WEATHERSBY v. RAPUANO
Appellate Division, A-5821-02T3, August 5, 2005, not approved for publication. (29 pages). Facts-on-Call Order No. 18335

Judgment for the defendant oral and maxillofacial surgeon following a jury trial in a dental malpractice action affirmed; the plaintiff alleged that the defendant had been negligent in his treatment of her “severe and persistent” jaw pain that she had experienced for some time; the trial court did not err by instructing the jury in accordance with Blazoski v. Cook that the absence of FDA approval for a device — in this case a temporomandibular prosthesis — is not material to informed consent; there was a sufficient basis for the trial court to conclude that there was no opinion or diagnosis of bruxism in the record (1) that was sufficiently contemporaneous with the plaintiff’s implant surgery to justify admission or (2) that could be admitted under an exception to the hearsay rule.

CONSUMER PROTECTION
OSTROFF v. SHPUNDER
Appellate Division, A-3270-03T3, August 5, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18336

Orders on summary judgment and following trial affirmed in an action by the pro se plaintiff attorney alleging false representations, fraudulent misrepresentation, and violation of New Jersey’s consumer fraud laws in connection with his purchase of 34 compact fluorescent lamps from the defendants; the trial court properly denied the plaintiff’s claim for attorney’s fees for his pro se involvements on the consumer fraud claims and for his breach-of-warranty claims; the trial court’s award of partial summary judgment to the plaintiff was correct because a prima facie showing of consumer fraud had been made as to only two bulbs and because there were issues of fact on the breach-of-warranty issue; although a different ruling on the admissibility of the proffered testimony of a rebuttal witness for the plaintiff might have been made, the Appellate Division declined to substitute its judgment for the trial court’s discretionary ruling that the testimony was not rebuttal evidence but should have been offered in the plaintiff’s direct case.

HUSBAND AND WIFE
LAMBERT v. LAMBERT
Appellate Division, A-4243-02T5 and A-5594-02T5, August 5, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18334

Portion of a post-divorce-judgment order that valued the plaintiff ex-husband’s personal property that the defendant ex-wife had disposed of improperly and that denied the ex-husband’s claim for punitive damages affirmed, portion of the order that awarded $3,500 in attorney’s fees to the ex-husband on his personal property claim vacated and remanded, and subsequent order that denied the ex-husband’s motion to modify child support by imputing income to the ex-wife and that denied the ex-wife’s motion for attorney’s fees reversed and remanded; as to the valuation of the personal property, the trial court’s findings were supported by the record; as to the $3,500 fee award, the trial court did not adequately explain why it awarded less than the amount sought by the ex-husband and did not address the Rule 5:3-5(c) factors; as to child support, the trial court did not apply the appropriate standard to determine whether child support should be modified.

CRIMINAL TRIALS
STATE v. EVANS
Appellate Division, A-2480-03T4, August 5, 2005, not approved for publication. (23 pages). Facts-on-Call Order No. 18337

Convictions of first-degree carjacking, second-degree conspiracy to commit carjacking, and first-degree robbery affirmed but the defendant’s sentence of 15 years in prison with a five-year parole ineligibility period under NERA modified to vacate the NERA term; contrary to the defendant’s arguments on appeal, (1) the trial court did not abuse its discretion by denying his severance motion, (2) there was no evidence that there was purposeful discrimination in the decision-making process or that the racial composition of the jury had a discriminatory effect, (3) there was no prosecutorial misconduct, (4) the jury instructions were not deficient, and (5) the trial court did not abuse its discretion by not imposing a 10-year sentence; however, the trial court erred by imposing a NERA sentence because the jury had specifically found that the State had failed to establish beyond a reasonable doubt that the defendant “knew or had reason to know, before the crime was committed, that another person would possess a firearm during commission of the carjacking or its immediate flight.”


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