NEW JERSEY LAWYER

DAILY BRIEFING      09/01/2005


News Briefs

AOC PLANNING WIRELESS TECH FOR PROBATION WORKERS
The state’s probation officers someday might be able to access court records from virtually anywhere via wireless technology. The Administrative Office of the Courts’ information technology office and probation division officials are working on plans for a pilot program that would add wireless connectivity capability to probation officers’ laptop computers to ease their access to web-based court records and e-mail. The plan, being developed for review by the Supreme Court’s Information Technology Committee, will focus on ensuring security of the data, according to the AOC’s chief information officer, James R. Rebo. The Administrative Office of the U.S. Courts says a pilot wireless program it launched last year for its probation officers and pre-trial service workers resulted in saving an average 4.3 hours monthly per worker. 8-31-05

ATTORNEY GENERAL TO REVISIT PROPOSED OPRA EXEMPTIONS
The Attorney General’s Office task force that recommended curtailing access to public records for the sake of homeland security will revisit its recommendation in the wake of public criticism. Office spokesman Roger Shatzkin said the committee, headed by Attorney General Peter C. Harvey, is “going to pay very close attention” to public comments and written statements calling the proposal too broad. The committee has proposed exempting from the Open Public Records Act documents related to government-owned buildings, mass transit facilities, bridges, tunnels and arenas to help defend against terrorism on those sites. 8-31-05

BIG PAYCHECKS DON’T NECESSARILY MAKE NEW JERSEY AFFORDABLE
Despite being among the wealthiest in the nation, New Jerseyans have a harder time than most paying their mortgages. While the U.S. Census Bureau this week reported New Jersey’s $61,359 median income in 2004 is the nation’s highest, it also said the state’s median $291,294 price for owner-occupied homes also is among the nation’s highest and may be growing faster here than paychecks. The number of New Jerseyans spending more than 30 percent of their income on housing rose 5 percentage points to 38.4 percent from 2002 to 2004. Financial planners typically recommend people limit housing costs to 25 percent of income. The high-income statistic “is cancelled to some degree by the very, very high costs of living in New Jersey,” said James Hughes, dean of Rutgers University’s Edward J. Bloustein School of Planning and Public Policy in New Brunswick. 8-31-05

FED’S TERRORISM MEMO BOOSTS TOWN’S BAN AGAINST HOMELESS
A Justice Department warning about disguised terrorists is giving Summit hope in its defense of a lawsuit contesting the municipality’s removal of homeless people from its NJ Transit station. “It absolutely does buttress our position,” said Timothy P. Beck of Warren, an attorney for the city, of an e-mail U.S. officials sent to some federal employees citing the London terror bombings and warning of terrorists posing as homeless people in transit stops. Earlier this year, a Justice Department official said Summit over-reached when it invoked the Patriot Act to force homeless people from the station. Richard Kreimer sued in federal court seeking $5 million from Summit and NJ Transit. He gained national attention in 1991 and a $230,000 settlement after he sued Morristown over his treatment at the public library. 8-31-05

APPEALS COURT DENIES FALWELL’S BID TO SHUT DOWN WEBSITE
The Rev. Jerry Falwell cannot use federal trademark law to close the HYPERLINK "http://www.fallwell.com" fallwell.com website that is critical of his views on homosexuality, the 4th U.S. Circuit Court of Appeals has ruled. In reversing a trial court ruling, the appellate judges found that no visitors to the site, which deliberately misspells Falwell’s name, would be confused into thinking the pastor supports its content. Falwell sued in U.S. District Court in Alexandria, Va., claiming the site’s operator, Christopher Lamparello of New York, violated the trademark law by using a common misspelling of his name. 8-31-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, AUGUST 31, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, AUGUST 31, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, SEPTEMBER 1, 2005.


APPROVED FOR PUBLICATION
SELF-INCRIMINATION
STATE v. FLETCHER
Appellate Division, A-4229-03T2, approved for publication August 31, 2005. (20 pages). Facts-on-Call Order No. 92648

In the absence of an express retraction of a police officer’s promise during the early stages of an investigation to allow the defendant to make an “off-the-record” statement, the defendant’s later self-incriminating statements must be deemed involuntary and induced by the earlier promise.

LABOR LAW
MARX v. FRIENDLY ICE CREAM CORP.
Appellate Division, A-6105-03T1, approved for publication August 31, 2005. (34 pages). Facts-on-Call Order No. 92649

As a matter of first impression, N.J.A.C. 12:56-7.1 exempts an employer from paying overtime under the New Jersey minimum wage law to the managers of its individual restaurants because those managers serve in a bona fide “executive” capacity.

PARENT AND CHILD
R.A.C. v. P.J.S.
Appellate Division, A-6130-02T2, approved for publication August 31, 2005. (30 pages). Facts-on-Call Order No. 92650

In the plaintiff’s action to recover the sums he expended to support a child that was born during his marriage to the mother, the statutory limitations period of the Parentage Act was equitably tolled because the mother and the child’s biological father had concealed the parentage of the child.

HUSBAND AND WIFE
GORDON v. ROZENWALD
Appellate Division, A-3835-02T1 and A-620-03T1, approved for publication August 31, 2005. (30 pages). Facts-on-Call Order No. 92651

The N.J.S.A. 2A:34-23c standard for modification of “limited duration alimony” may be applied retroactively to orders entered before the statute’s effective date; regardless of the date of the order that incorporates an agreement or a decree, a motion to modify term alimony must be addressed under the statutory standards, unless the moving party establishes that both parties agreed to terminate permanent alimony based on a condition or expectation that was not fulfilled or was not realized.

CIVIL PROCEDURE
HALL v. MICHAEL BELLO INSURANCE AGENCY, INC.
Appellate Division, A-197-04T5, approved for publication August 30, 2005. (18 pages). Facts-on-Call Order No. 92647

In an action by insureds to avoid the anti-suit injunction entered by a Texas court that was administering the estate of the insurer in rehabilitation, Aly v. E.S. Sutton Realty applied to determine that principles of comity required New Jersey courts to recognize the injunction and that there was insufficient evidence of the insureds’ hardship to support interference with the injunction.

NOT APPROVED FOR PUBLICATION
CONTRACTS
JODHA v. BAILEY
Appellate Division, A-381-04T5, August 31, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18458

Dismissal of the plaintiff’s complaint, which alleged breach of contract and defamation of credit, affirmed; the plaintiff and the defendant knew each other since the summer of 1995, lived together since 1996, became engaged in 2001, and ended their relationship in 2002; according to the plaintiff, the parties agreed before they moved in together that each would pay half of the rent, groceries, and other household expenses and that the defendant alone would be responsible for the cost of her pets; however, there were times when the defendant was unable to pay, and the plaintiff paid some of the defendant’s personal bills; the plaintiff sued the defendant for $11,630.84; the core fact found by the Special Civil Part — that the plaintiff had not proved the existence of an enforceable agreement between the parties — was adequately supported by the record.

WORKERS’ COMPENSATION
FERRARO v. G & R OPERATING CORP.
Appellate Division, A-1756-04T3, August 31, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18459

Judge of compensation’s full award of dependency benefits for the petitioner wife as a result of the death of her husband and $30,000 in attorney’s fees assessed entirely against the respondent employer affirmed; the decedent, who worked as a motel manager, was shot through the neck during a robbery at the motel and was rendered a paraplegic for the rest of his life; under an agreement with the employer’s insurer, the decedent was paid his full weekly salary and medical expenses for the remainder of his life, but there was no application to the Division of Workers’ Compensation for a declaration that his disability arose out of the work injury or for a formal order that granted disability benefits; there was sufficient evidence to support the judge’s findings that the decedent’s death was related to complications from the paraplegia, which had resulted from his being shot during the course of his employment; the judge properly calculated the dependency benefits, and the award and apportionment of attorney’s fees clearly followed the Workers’ Compensation Act, the case law, and a memorandum from the Division Director.

PARENT AND CHILD
VASQUEZ v. GONZALEZ
Appellate Division, A-6390-03T3, August 30, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18456

Family Part order that denied without prejudice the defendant father’s motion to vacate an earlier order that reinstated his child support arrears affirmed; in support of her motion to reinstate the arrears, the plaintiff mother claimed that she had agreed to forgive the arrears in exchange for the father’s promise to maintain a relationship with his daughter, but the daughter did not hear from her father after the arrears were forgiven; a plenary hearing was scheduled, but the father, who lived in Trinidad, West Indies, asked the Family Part to decide his motion on the papers submitted without requiring him to appear; the record did not support the father’s assertion that he had no opportunity to contest the mother’s motion to reinstate the arrears, and equitable estoppel did not apply to bar the mother from moving to reinstate the arrears.

SENTENCING
STATE v. BOESMAN
Appellate Division, A-838-04T4, August 30, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18455

Sentence to special drug probation reversed and remanded for resentencing on the State’s appeal; the defendant was indicted for and pleaded guilty to three CDS offenses; at sentencing, the trial court refused to consider on procedural grounds the State’s motion to impose a mandatory extended prison term; the defendant was ineligible under N.J.S.A. 2C:35-14a(6) for the sentence imposed because he had been convicted previously on two separate occasions of third-degree non-possessory offenses; the trial court erred by disregarding the defendant’s prior convictions and by failing to consider the State’s motion, even though it was filed late; on remand, the defendant must be resentenced and the State’s motion, if pursued, must be considered and resolved.

INMATES
DIAZ v. DEPARTMENT OF CORRECTIONS
Appellate Division, A-2721-04T1, August 30, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18454

Final determination of the Department of Corrections that upheld sanctions that were imposed on the appellant inmate in a disciplinary proceeding for using drugs or other prohibited substances not prescribed affirmed; the search of an area that was accessible to the inmate revealed a prohibited substance, and his urine sample contained both opiates and a constituent of marijuana; there was sufficient evidence to sustain the administrative determination, and the inmate received all of the process that was due to him; the inmate’s assertion that he was victimized by “procedural irregularities” regarding the paperwork for the chain of custody of his urine sample lacked merit.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
M.S. v. PRINCETON REGIONAL BOARD OF EDUCATION
OAL Docket No. EDS 402-05, Agency Docket No. 2005 9706, Final Agency Decision: August 9, 2005, released for publication August 15, 2005. By Martone, ALJ. (20 pages).

The administrative law judge granted the respondent Board of Education’s motion to dismiss the petitioner parents’ request for reimbursement of their unilateral out-of-district placement of their daughter. The daughter was born in 1990 and was referred to the Project Child Assessment Service of the Mercer County Special Services School District by her preschool. Despite the Service’s recommendation for placement, the parents continued to place their daughter privately. After the daughter completed sixth grade, the parents registered her in the Board’s district but placed her at a New Jersey-approved residential school in Vermont pending the development of an appropriate placement by the Board. The parents did not consent to the Board’s proposed placement, and they placed their daughter at the Vermont school for a second year. Although the daughter had received “related services” from the Board through the Service in the form of early identification and assessment of her disabling condition, the ALJ concluded that the parents were not entitled to reimbursement under 20 U.S.C. §1412(a)(10)(C)(ii) because the daughter never had received both “special education” and “related services” from the Board.

SPECIAL EDUCATION
J.B. v. NORTH BRUNSWICK TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 2622-05S, Agency Docket No. 2005-9968, Final Agency Decision: August 1, 2005, released for publication August 15, 2005. By Masin, ALJ. (23 pages).

The administrative law judge ordered that the proposed individualized education program for the petitioner parents’ 13-year-old son be modified to address the ALJ’s concerns, which included the son’s “significant problem” with failing to do his homework or failing to turn it in on time and his “significant” difficulties with reading and writing. The son was classified with a Specific Learning Disability and had attended seventh grade in a mainstream environment with in-class support and remediation classes. Among other things, the parents sought a declaration that the proposed placement for their son was inappropriate as well as an out-of-district placement for him. The ALJ found that the respondent Board of Education had provided the son with a meaningful and significant educational benefit “for the most part,” and he concluded that the need for the “extreme step” of removal to a segregated placement had not been demonstrated. The ALJ was convinced that the son could succeed in a generally mainstream environment “with certain adjustments,” but he also determined that the proposed IEP was “not fully appropriate” and had to be altered to meet the son’s “unique needs.”


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