NEW JERSEY LAWYER

DAILY BRIEFING      09/21/2005


News Briefs

UNPUBLISHED, BUT NOT UNPOSTED
The Appellate Division has begun posting its “unpublished” decisions online. The opinions, however, still don’t carry the force of precedent and aren’t binding on any court. Court rules stipulate that lawyers who cite unpublished opinions must provide copies of those cases and any related rulings they know of to opposing counsel and the judge. Judge Edward H. Stern, presiding judge for administration of the Appellate Division, said, “Posting unpublished opinions online will give equal access to attorneys, litigants, the media and the general public to a valuable source of legal research.” Making unpublished opinions readily available puts the state judiciary in line with the 3rd U.S. Circuit Court of Appeals, which has been posting its non-precedent opinions for some time. 9-20-05

BAR ASSOCIATION SEEKS MORE CHANGES TO LOBBYING REGS
State regulators haven’t gone far enough in reducing a new lobbying law’s proposed application to lawyers, according to the New Jersey State Bar Association. The newest set of proposed regulations still means attorneys would be forced to register as lobbyists “in far too many cases,” the Bar Association says in a letter to the Election Law Enforcement Commission, which held a public hearing Tuesday on its proposed regulations for implementing the law enacted in 2004. The State Bar says the commission must further define specific work areas defined as lobbying, and that it increase the number of hours of lobbying work requiring registration from 20 to 40. 9-20-05

SO FAR, SO CLEAN FOR MONMOUTH COUNTY PROSECUTORS
A federal grand jury investigation into whether members of the Monmouth County Prosecutor’s Office interfered with an FBI sting investigation into political corruption across the county has turned up nothing, according to county counsel Malcolm V. Carton. “It went no place; there was no indictment, just a lot of threats,” Carton told the Asbury Park Press. John C. Whipple of Morristown, one of the lawyers representing the county, said he knows of no indictments, but noted the probe is ongoing. Meanwhile, the official who would know for sure what’s happening, U.S. Attorney Christopher J. Christie, isn’t saying. The prosecutor’s office in February was served with subpoenas seeking to interview five county investigators and examine documents related to an investigation that netted 11 local officials. 9-20-05

PRIVATE PRACTITIONERS TAP TECH FOR MOBILITY
The legal profession is getting more mobile by the day. Eighty percent of private practitioners have internet access away from the office and the percentage using wireless technology outside the office has more than doubled since 2003 from 8.3 percent to 19 percent, according to an American Bar Association survey. The percentage accessing the internet from public terminals or kiosks has increased to 19 percent from less than 10 percent in 2002. The ABA surveyed more than 1,500 lawyers. 9-20-05

BAD NEWS FOR BEARS
Those who have a soft spot for Yogi or Gentle Ben, may want to attend Wednesday’s public hearing on the Department of Environmental Protection’s proposal to control New Jersey’s bear population. That plan includes a six-day hunt starting Dec. 5 in areas north of Interstate 78 and west of I-287. The DEP wants to thin the bear population in 21 counties that has grown into the thousands from less than 100 in the 1970s. The hearing begins at 6:30 p.m. at Rutgers University’s Cook Campus Center in New Brunswick. Written comment will be accepted until Oct. 6. 9-20-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, SEPTEMBER 20, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, SEPTEMBER 20, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, SEPTEMBER 21, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, SEPTEMBER 20, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
MOSIELLO v. WALLACE
Appellate Division, A-1803-04T3, September 20, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18539

Dismissal of the plaintiff’s personal injury complaint on the grounds that his physician’s certificate of permanency required under N.J.S.A. 39:6A-8a of AICRA no longer was sufficient reversed and remanded; after the certificate was timely submitted, the defendant moved for dismissal based on a form from the physician’s office on which the plaintiff had written that his symptoms were “gone”; there was no authority for the trial court to determine that the certificate was negated by the resolution of the plaintiff’s symptoms; dismissal was improper in light of Casinelli v. Manglapus, which was decided by the New Jersey Supreme Court after the dismissal and which held that a physician’s certificate is not “a fundamental element of the AICRA cause of action.”

DOMESTIC VIOLENCE
RAMOS v. CEASER
Appellate Division, A-863-04T2, September 20, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18538

Final domestic violence restraining order against the defendant grandfather reversed; during a five-day period, the grandfather allegedly used coarse and offensive language in two telephone calls to the plaintiff mother, who had two children with the grandfather’s son; the mother admitted that the purpose of the calls was to warn her to stay away from the grandfather after she had spoken with the grandfather’s estranged wife and had threatened his son with the loss of visitation of their children; there was nothing in the record to support a finding that the grandfather’s purpose was to harass, and it was not reasonable for the mother to feel threatened by the calls; under the circumstances, the disparity in the sizes of the parties and the plaintiff’s course of conduct with the son were “clearly insufficient” to justify the finding of domestic violence and the entry of the FRO.

REAL PROPERTY
CINTRON v. SELECT MODULAR HOMES, INC.
Appellate Division, A-2770-03T5, September 20, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18542

Judgment after a bench trial that required the defendant seller of property and a modular home to return the plaintiff buyer’s deposit with prejudgment interest affirmed; the plaintiff did not appear at the scheduled closing, and the defendant cancelled the contract and sold the property and home to someone else at a higher price; the trial court found that the seller had incurred no losses, even allowing for additional expenses incurred with the resale; the defendant’s argument that its profit would have been higher if the plaintiff had bought the property was “far too speculative and lacking in credible factual support,” and the trial court’s calculation of damages and allowable expenses was supported by sufficient credible evidence; the trial court’s refusal to enforce the liquidated damages and demurrage clauses in the contract was reasonable; the award of $500 in attorney’s fees to the plaintiff was not an abuse of discretion.

PARENT AND CHILD
McCOULLOUGH v. McCOULLOUGH
Appellate Division, A-6545-03T1, September 20, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18541

Post-divorce-judgment order affirmed; the order granted the defendant mother’s motion for an increase in the plaintiff father’s child support obligation for their two children and denied the father’s cross-motion to impute income to the mother, to allow him to use a tax exemption for one or both children, and to obtain joint physical custody; contrary to the father’s arguments on appeal, the trial court acted within its discretion when it (1) determined that the mother was not voluntarily underemployed, (2) increased the father’s child support obligation from an “extremely low” $51 to $193 per week pursuant to the Guidelines, (3) applied the “teen multiplier” to calculate child support for the older child, (4) denied the father’s request for physical custody of the children every other week, and (5) refused to modify the provisions about tax exemptions contained in the parties’ property settlement agreement.

UNEMPLOYMENT COMPENSATION
NELSON v. BOARD OF REVIEW
Appellate Division, A-2010-04T5, September 20, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18540

Board of Review order affirming the denial of unemployment compensation benefits to the claimant affirmed; the claimant was a school social worker who resigned because he “could not properly service the children” as he had been trained to do and because the district’s inadequate social service programs allegedly affected his health; he was disqualified for benefits because he left his job for personal reasons and not for good cause attributable to the work; the Board’s decision was supported by substantial credible evidence; persons who leave work for good but personal reasons do not qualify for unemployment benefits, and the claimant’s mere dissatisfaction with working conditions that he did not show to be abnormal or to have affected his health did not constitute good cause for leaving the job voluntarily.

FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
CONLON v. POLICE AND FIREMEN’S RETIREMENT SYSTEM
OAL Docket No. TYP 821-03, Agency Docket No. PFRS 3-10-23150, Initial Decision: August 17, 2005, Final Agency Decision: September 13, 2005. By Viscomi, ALJ. (11 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the administrative law judge’s initial decision, which reversed the Board’s denial of accidental disability retirement benefits to the petitioner corrections officer. The Board’s denial was based on its conclusion that the officer was not injured in a “traumatic event.” The officer injured his back and his leg when an inmate who was holding onto a railing in a staircase to avoid going to court suddenly let go, thus sending the officer down the stairs “like a catapult” and “in a ball” with the inmate and a second officer. The ALJ applied the three-pronged test for a traumatic event under Kane v. Board of Trustees, Police & Firemen’s Retirement System and concluded that all three criteria were satisfied (1) because the incident “hardly” could be considered to be the stress or strain of the normal work effort, (2) because the inmate’s actions caused the officer to meet involuntarily with the source of harm, and (3) because the source of the officer’s injury was a “great rush of force or uncontrollable power” caused by inertia and the “sudden, unexpected propulsion” that followed.

SPECIAL EDUCATION
M.J. v. NEWARK BOARD OF EDUCATION
OAL Docket No. EDS 5629-05, Agency Docket No. 2005 10058, Final Agency Decision: August 9, 2005, released for publication August 31, 2005. By McKeown, ALJ (temporarily assigned). (7 pages).

The administrative law judge dismissed the petitioner mother’s request to place her 10-year-old daughter on home instruction. The daughter was “other health impaired” and had to attend a multiply disabled sixth grade class in a new school in the respondent Board of Education’s district because she had “aged out” of her prior school when she completed fifth grade. The mother disputed the daughter’s placement at the prior school and her placement at any school in the district. The mother alleged that the prior school did not follow a recommendation that the daughter’s classes be held on only one floor and did not provide her with a full-time aide, that the prior school’s building was always cold and had an elevator that sometimes failed to work, and that officials at the prior school failed to take her daughter to the hospital after she suffered a seizure. The ALJ concluded (1) that the mother did not demonstrate any significant medical issues that would prevent the daughter from attending the prior school or that rendered placement at the new school inappropriate, (2) that the evidence indicated that the Board provided the daughter with an education that was appropriate to her needs, and (3) that the mother failed to state a cause of action because the daughter was no longer assigned to the prior school.

SPECIAL EDUCATION
D.F. v. ROCKAWAY TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 5340-05, Agency Docket No. 2005 10025, Final Agency Decision: August 12, 2005, released for publication August 31, 2005. By McKeown, ALJ (temporarily assigned). (3 pages).

The administrative law judge dismissed the petitioner parents’ request that the respondent Board of Education remove language from the proposed individualized education program for their autistic son. The language was designed to allow the son to slowly transition from his out-of-district placement into a program in the Board’s district if such a transition became appropriate. The ALJ found that the parents acted in good faith by requesting “minor language changes” but that they had requested a hearing before contacting the director of special services, the child case manager, or the Board’s attorney. The ALJ noted that the Board had agreed to the parents’ request for “some minor language changes” in the IEP and that the parents had stated that they understood that the changes were “solely an accommodation” to them and were against the child study team’s recommendations. Therefore, the ALJ concluded that there was no further need for a hearing.


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