NEW JERSEY LAWYER

DAILY BRIEFING      09/20/2005


News Briefs

HARVEY SUPPORTS STATE REGULATION OF BOUNTY HUNTERS
Attorney General Peter C. Harvey has made clear he supports a bill that would regulate bounty hunters. Such legislation has been stymied in Trenton for years. The AG says such regulation is needed because bounty hunters are not now required to show credentials when they enter the state in pursuit of fugitives. A-3828, which has cleared the Assembly Law and Public Safety Committee, would require bounty hunters operating in the state to be licensed, trained and undergo background checks by State Police. Sentiment for the measure, proposed by Assemblyman Peter J. Barnes (D-Middlesex), grew last June after two Pennsylvania bounty hunters apprehended the wrong person in Morris County. 9-19-05

SUIT SEEKS DOMESTIC PARTNERSHIP RIGHTS TO ESTATES
A Perth Amboy woman has sued the state to essentially expand the domestic partnership act to cover estate entitlement for surviving partners. Betty Jordan’s suit in Middlesex County notes because there was no will, she was not entitled to any estate assets when her companion of 19 years, Rene Price, died in July. The law grants domestic partners several rights, but does not mention estate matters. Jordan’s lawyer is Stephen J. Hyland, a partner at Hill Wallack in Princeton. 9-19-05

CLASS ACTION STATUS GRANTED TO BURLINGTON FLOOD CASES
The number of filings has reached flood proportions from the victims of a flood linked to breaks in dams in Burlington County in July 2004. Burlington County Judge Harold B. Wells III granted class action to the suits, and plaintiffs’ attorney Carlo Scaramella, of Cureton Caplan in Delran, estimates there could be as many as 2,000 victims seeking up to $100 million in damages. 9-19-05

ACADEMICS DOUBT EFFECTIVENESS OF SEX OFFENDER RESIDENCY BANS
Criminal law academics in the state are warning that the rush by some municipalities to adopt ordinances restricting where registered sex offenders can reside may give people a false sense of security. Jon’a F. Meyer, director of Rutgers University Law School’s criminal justice program in Camden, noted that the ordinances only apply to known and registered offenders, while many pedophiles are not registered, but are “known to the children” and, in many cases, they’re relatives. John H. White, an associate professor of criminal law at Richard Stockton College, said the residency restrictions don’t necessarily increase security against pedophiles, but governments and residents push for the rules anyway because “they feel like they’re doing something about it.” 9-19-05

LABOR DEPARTMENT SEES INCREASED DEMAND FOR PARALEGALS
Law firms could face stiff competition in hiring experienced paralegals and legal assistants. The U.S. Department of Labor reports that these positions are among just a handful of job categories that will grow faster than the national average for all jobs through 2012 and that demand will be particularly acute for highly skilled and formally trained ones. Demand is being driven by law firms’ assignment of additional responsibilities to these non-lawyers and by their increased use in federal, state and local government, says the DOL’s Occupational Outlook Handbook. 9-19-05

CORRECTION
At item in the Sept. 16 Daily Briefings gave the wrong first name of one of the recipients of the Legal Services Equal Justice Awards. He is Berlin attorney Robert J. Borbe. 9-19-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, SEPTEMBER 19, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, SEPTEMBER 19, 2005:

CIVIL PROCEDURE
GONZALEZ v. SAFE AND SOUND SECURITY CORP.
New Jersey Supreme Court, A-9, September 19, 2005. (36 pages). Facts-on-Call Order No. 92670

After the plaintiff in a personal-injury action refused to obey a court order directing him to testify, the trial court abused its discretion by not informing him that he faced the certain dismissal of his complaint unless he testified.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, SEPTEMBER 20, 2005.



APPROVED FOR PUBLICATION
INSURANCE
MANNION v. BELL
Law Division, Monmouth County, MON-L-4813-02, approved for publication September 14, 2005. (9 pages). Facts-on-Call Order No. 92668

Where an automobile insurance policy issued after the enactment of AICRA is deemed void, the insurer’s obligation to provide coverage to an innocent third party is limited to the “basic policy” set forth in N.J.S.A. 39:6A-3.1. Because the purchase of liability insurance is optional under the “basic policy,” the insurer has no obligation to provide liability coverage under the void policy.

NOT APPROVED FOR PUBLICATION
PUBLIC EMPLOYEES
IN RE OLIVEIRA
Appellate Division, A-6719-03T1, September 19, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18535

Final decision of the Merit System Board that adopted the administrative law judge’s initial decision to remove the petitioner police officer from his position with the respondent City of Newark affirmed substantially for the reasons expressed by the ALJ in her “well-reasoned” decision; in June 2001, the petitioner entered into a settlement agreement with the Newark Police Department after he was found guilty of violating the Department’s rules by failing to maintain residency in New Jersey and by engaging in deceptive conduct during the investigation of his residency; in March 2002, the petitioner was charged with violating the settlement agreement by failing to establish residency in New Jersey; the charges were transmitted as a contested case to the Office of Administrative Law, and an evidentiary hearing was conducted; the record “amply” supported the ALJ’s findings and decision, and the petitioner’s arguments on appeal lacked merit.

PARENT AND CHILD
DIVISION OF YOUTH AND FAMILY SERVICES v. C.N.F.
Appellate Division, A-3730-04T4, September 19, 2005, not approved for publication. (20 pages). Facts-on-Call Order No. 18537

Order terminating the defendant mother’s rights to three of her sons and two of her daughters and granting guardianship of the children to the plaintiff Division of Youth and Family Services affirmed substantially for the reasons expressed by the Family Part; the mother did not challenge the Family Part’s findings as to the first two prongs under N.J.S.A. 30:4C-15.1a, but she challenged its findings as to the third and fourth prongs; as to the third prong, DYFS’s efforts to assist the mother were “extremely reasonable” where it continued to refer her for evaluations, where it assisted her with trying to obtain housing, where it intervened with the welfare department, where it provided finances and furniture for the family, and where it consistently urged her to seek improvement in her living conditions but without success; as to the fourth prong, the requirement that the termination would not do more harm than good had been met because the “lack of a permanent and safe home has endangered these children” and because their removal from “a transient lifestyle will begin to restore some semblance of normalcy and safety in their lives.”

CRIMINAL TRIALS
STATE v. ROBINSON
Appellate Division, A-4533-03T4, September 19, 2005, not approved for publication. (31 pages). Facts-on-Call Order No. 18536

Convictions of second-degree conspiracy to commit robbery and second-degree robbery affirmed but the matter remanded for resentencing; the convictions stemmed from the theft of an automobile from a dealership; the trial court correctly found that, based on the totality of the circumstances, there was no impermissible suggestion by the police in a witness’s identification of the defendant from photographs; there was no reversible error in the trial court’s instructions to the jury; however, the extended term sentence of 20 years must be vacated and remanded for the imposition of an extended term sentence that is consistent with the New Jersey Supreme Court’s recent decisions in State v. Natale and State v. Abdullah; on remand, the sentencing court also may consider imposing a parole disqualifier.

ESTATES AND TRUSTS
IN RE ESTATE OF VAYDA
Chancery Division, Bergen County, P-191-01, September 15, 2005, released September 19, 2005, not approved for publication. By Escala, P.J. (4 pages). Facts-on-Call Order No. 18534

In a supplemental decision on remand to conclude the litigation between the plaintiff daughter and the defendant son about their deceased mother’s estate, payment of all of the $67,661.93 in attorney’s fees sought by the daughter ordered to be paid from the estate; using the fees charged by the son’s attorney as a benchmark, the Chancery Division had earlier ordered the son to pay $44,000 of the attorney’s fees sought by the daughter; however, that order was reversed by the Appellate Division, which held that the plaintiff’s demonstration of a prima facie case of undue influence was reasonable cause to contest the mother’s will and that the estate therefore should pay her attorney’s fees under Rule 4:42-9(a)(3); the New Jersey Supreme Court affirmed; the estate was responsible for all of the $67,661.93 because the other issues raised in the litigation were intertwined with the will contest and because it therefore could “fairly be said” that all of the fees were related to the will contest.

FROM THE FEDERAL COURTS
ERISA
McGOWAN v. NJR SERVICE CORP.
Third Circuit, No. 04-3620, September 13, 2005. By Van Antwerpen, C.J. Concurrence by Becker, C.J. Dissent by Fuentes, C.J. Appealed from the U.S. District Court for the District of New Jersey. (44 pages). Facts-on-Call Order No. 92667

In an action by the plaintiff employee, who sought declaratory relief directing the defendant employer and its retirement plan to recognize his second wife’s purported waiver of her rights as beneficiary and to recognize the employee’s subsequent nomination of his present wife as the new beneficiary, the Third Circuit affirmed the District Court’s denial of the employee’s motion for summary judgment and the grant of the employer’s motion for summary judgment. In a matter of first impression in the Third Circuit where there has been a split among the Courts of Appeals, the Third Circuit declined to follow the majority approach — which provides that the courts may turn to the federal common law to determine whether and when an individual may validly waive her benefits in an ERISA plan — and concluded that this matter was resolved by reference to ERISA’s terms and the plan’s documents alone and that asking the administrator to look beyond the designation of the second wife in the plan’s documents would go against the “specific command” of ERISA. Judge Becker concurred, and Judge Fuentes dissented.

EVIDENCE
UNITED STATES v. HINTON
Third Circuit, No. 03-3803, September 14, 2005. By Scirica, Chief Judge. Also on panel: McKee, C.J. Appealed from the U.S. District Court for the Eastern District of Pennsylvania. (19 pages). Facts-on-Call Order No. 92666

The Third Circuit affirmed the defendant’s conviction for possession with intent to distribute cocaine base, but it vacated his sentence. The Third Circuit concluded that the District Court erred by allowing the Government to offer as evidence out-of-court statements that were made by a witness the defendant never had an opportunity to cross-examine but that any error was harmless. The defendant’s sentence was vacated, and the matter was remanded for resentencing pursuant to United States v. Booker.

FORFEITURE
UNITED STATES v. BENNETT
Third Circuit, No. 04-3650, September 12, 2005. By Becker, C.J. Also on panel: Alito, C.J. and Shadur, U.S.D.J. for the Northern District of Illinois. Appealed from the U.S. District Court for the Eastern District of Pennsylvania. (18 pages). Facts-on-Call Order No. 92665

The Third Circuit affirmed the District Court’s order that amended the defendant’s sentence to require him to forfeit $42,020 in drug proceeds to the Government. The Third Circuit concluded that the District Court’s failure to include a final order of forfeiture in the defendant’s sentence after its entry of a preliminary order of forfeiture was a clerical error and that the District Court could correct the error under Fed. R. Crim. P. 36, which permits courts to correct clerical errors in their judgments.


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