NEW JERSEY LAWYER

DAILY BRIEFING      09/15/2005


News Briefs

THREE JUDGES GET THREE-MONTH STINTS ON APPELLATE DIVISION
Chief Justice Deborah T. Poritz has assigned Judges Jack M. Sabatino, Christina L. Miniman and Marie E. Lihotz to the Appellate Division from November 7 to February 5. According to a court spokeswoman, they will be doing appellate work in addition to their current assignments. Sabatino sits in the Family Part in the Mercer Vicinage; Miniman is in Civil in Passaic; and Lihotz is in Family in Burlington. According to the spokeswoman, there are three vacancies in the Appellate Division. Judges Paulette M. Sapp-Peterson of Mercer, Travis L. Francis of Middlesex and Kenneth S. Levy of Essex currently are on temporary Appellate Division duty. 9-14-05

MUNICIPAL COURT JUDGE SUES FOR MORE PAY
Trenton Municipal Judge Paul D. McLemore, a Trenton solo, has sued the city for underpaying him. McLemore, who has served more than three years as a part-time judge, claims the city owes him $79,840 because he’s been receiving $57,221 a year while a city ordinance sets a $78,477 minimum for municipal judges. Stephen E. Trimboli of Morristown’s Laufer Knapp Torzewski & Dalena, an attorney for the city, said McLemore’s suit in Mercer County court incorrectly cites the pay scale set for full-time judges. 9-14-05

HUDSON’S ASSISTANT CRIMINAL MANAGER RETURNS TO TAX COURT
Cheryl A. Ryan, assistant criminal division manager at Hudson County court, has been appointed clerk and administrator of the state’s Tax Court. Ryan, who now is responsible for managing the more than 8,000 tax court cases filed annually, worked as a secretary and administrator for Tax Court Presiding Judge Joseph C. Small from 1991 to 1997. “I am pleased to welcome Cheryl Ryan back,” said Small. 9-14-05

LAW FIRMS GET MORE CORPORATE, BUT SHUN OFFSHORING
Large law firms are increasingly using the management techniques employed by large corporations, but outsourcing to foreign markets apparently is not one of them. Offering pricing options and lateral growth — the search for new markets for existing services — were identified as techniques used the last five years by all law firms participating in a recent survey, while strategic planning was identified as useful by 97 percent. Offshoring, however, was identified by just 3 percent of the 200 firms surveyed by the Newtown Square, Pa.-based consulting firm Altman-Weil Inc. Ward Bower, a principal there, noted that as more firms use corporate America’s management techniques and strategies, “some will get it right and we will see those techniques move up in terms of frequency, experience and effectiveness.” 9-14-05

WAL-MART HIT WITH ANOTHER CLASS-ACTION SUIT
Wal-Mart Stores is the target of another class-action lawsuit, this one filed by advocates of workers in six countries who claim the retail giant overlooks labor abuses at factories run by its suppliers. The suit lists 15 workers in Bangladesh, Switzerland, Indonesia, China and Nicaragua as clients, but the class could be as many as 500,000, according to attorney Terry Collingsworth, of the International Rights Fund, which filed the suit in California Superior Court in Los Angeles. The plaintiffs also include two unionized workers at grocery stores in California who claim Wal-Mart’s entry into southern California forced their employers to cut wages and benefits. Wal-Mart spokeswoman Beth Keck said the company is taking the latest suit “very seriously.” The retailer is already fighting a class-action suit alleging it discriminates against its women workers, whose class covers 1.6 million current and former employees. 9-14-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, SEPTEMBER 14, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, SEPTEMBER 14, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, SEPTEMBER 15, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, SEPTEMBER 14, 2005.

NOT APPROVED FOR PUBLICATION
FOTI v. FINNE
Appellate Division, A-1396-04T5, September 14, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18525

Order denying the plaintiff’s request to compel the defendant Union County Sheriff’s Department and its officers to allow discovery and prohibiting the plaintiff from making discovery requests or issuing subpoenas to the Department and its officers affirmed; the plaintiff’s “complaint to compel discovery” alleged that his wife removed his gun collection from the marital home and that the Department had learned while it enforced a restraining order that the wife’s friend had the collection; the plaintiff sought to require the Department to help him learn the friend’s identity so that he could file a civil or criminal complaint against the friend; the Appellate Division was in “substantial agreement” with the trial court’s discretionary evaluation that the plaintiff was not entitled to relief; exceptions to the disclosure principle of the Right to Know Law, on which the plaintiff had relied, validated the Department’s refusal to provide the plaintiff with the information he sought.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.H.
Appellate Division, A-2984-04T4 and A-3715-04T4, September 14, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18524

Order terminating the defendants’ parental rights to their 6-year-old son and committing the son to the guardianship of the plaintiff Division of Youth and Family Services affirmed substantially for the reasons expressed by the trial court in its “detailed and well-reasoned decision”; the son tested positive for cocaine at birth, the defendant mother had a “long-standing” drug addiction, and the defendant father had three criminal convictions and a history of drug use; the trial court’s factual findings and its application of the law to the facts were supported by the record, which included testimony from a DYFS caseworker, both defendants, and three experts.

UNIROYAL, INC. v. AMERICAN RE-INSURANCE CO.
Appellate Division, A-6718-02T1, September 13, 2005, not approved for publication. (67 pages). Facts-on-Call Order No. 18521

Law Division rulings in an insurance coverage dispute arising from asbestos-related claims against the plaintiff insured affirmed in part, reversed in part, and remanded; the defendant insurers issued excess policies to the insured that were in effect between 1966 and 1976; the Appellate Division (1) affirmed the rulings that a 1969 “Stub Endorsement” extended the policy period for one month without providing an additional per-occurrence limit for the extension period and that coverage for asbestos-related liabilities was reasonably available to the insured between 1976 and 1985, (2) reversed the rulings that the insured’s manufacture and distribution of products that contained asbestos was a single occurrence within the meaning of the insurers’ policies, that the insurers’ multi-year policies provided multiple annual per-occurrence limits rather than a single per-occurrence limit for the policy period, that the insured was entitled to recover defense costs for all claims, even if they were not related to a covered occurrence, and that the insured was entitled to attorney’s fees as a successful claimant, and (3) remanded the issue of attorney’s fees.

STATE v. LAMA
Appellate Division, A-700-02T5, September 13, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18520

CDS convictions involving Ecstasy reversed and remanded for a new trial; the prosecution of a disorderly persons complaint that related to the defendant’s possession of a small quantity of marijuana at the time of his arrest was not before the jury, and the trial court’s pretrial rulings barred the State from referring to the marijuana possession at trial; however, after the defendant took the stand to assert that he had found the bag containing Ecstasy and was only examining it when the arresting officer encountered him, the trial court allowed the State to impeach him by referring to the marijuana possession; in a case where the defendant’s credibility was “such a critical issue,” the introduction of evidence related to the marijuana possession was a mistaken exercise of discretion that had the capacity to deprive the defendant of a fair trial.

STATE v. BROWN
Appellate Division, A-4081-03T4, September 13, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 18519

Denial of the defendant’s motion to suppress a handgun and marijuana that were found on his person reversed; the police went to an address to arrest two individuals for whom they had arrest warrants and encountered a group of men — the defendant, his two stepsons, and a friend of one of his stepsons — congregating on the street and sidewalk in front of the address; the defendant lived across the street; none of the men resembled the individuals sought by the police, but the police frisked the defendant; once the police determined that the individuals they sought were not present on the street, they had no justification for detention or investigation and should have allowed the men to leave the scene; a frisk for protection was not necessary and was “overly intrusive” under the circumstances.

FROM THE ADMINISTRATIVE AGENCIES
KACKOS v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
OAL Docket No. TYP 11694-03, Agency Docket No. PERS #2-10-193721, Initial Decision: August 1, 2005, Final Agency Decision: August 18, 2005, released for publication August 31, 2005. By Sukovich, ALJ. (19 pages).

The Board of Trustees of the Public Employees’ Retirement System rejected the recommendation of the administrative law judge and affirmed its original decision that denied the petitioner toll collector’s application for accidental disability retirement benefits because he had not experienced a “traumatic event.” The toll collector’s ap-plication was based on stress and anxiety resulting from his observation of the September 11, 2001 attacks on the World Trade Center from his tollbooth in Jersey City. The Board contended before the ALJ that the toll collector had not satisfied two of the three prongs of the Kane v. Board of Trustees, Police and Firemen’s Retirement System test for a “traumatic event” because he had not established “that his injuries were not induced by the stress or strain of a normal work effort” and “that the source of the injury itself was a great rush of force or uncontrollable power.” Based on the case law, the ALJ had concluded that these Kane prongs were satisfied and that the toll collector was entitled to accidental disability retirement benefits because he had experienced a “traumatic event.”

P.Z. v. MILLBURN TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 5720-05, Agency Docket No. 2005-10102, Final Agency Deci-sion: August 11, 2005, released for publication August 31, 2005. By Rigo, ALJ. (6 pages).

In a dispute about the appropriate placement for the petitioner parents’ 13-year-old son, the administrative law judge denied the petitioners’ motion for summary decision, granted the respondent Board of Education’s cross-motion for summary decision, and ordered that the son be placed in either of the two local day programs identified as appropriate by the Board’s child study team. Although the petitioners did not dispute that both local programs were appropriate, they sought a residential placement for their son at a school in Massachusetts because it was an “overall better choice.” The Board refused to consider whether the Massachusetts school was appropriate. The ALJ found that the Board did not have to consider or recommend the Massachusetts school (1) because the Board had identified and recommended two local day programs that the parties agreed were appropriate and (2) because a residential placement at the Massachusetts school was not the least restrictive environment, even though it might maximize the educational benefit to the son.


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