Monthly Archives: October 2010

Muni-mail – Muni Ct. Trial Certification Now in Play

The New Jersey Supreme Court is actively considering trial certification for municipal court attorneys. Certification would be based upon experience in trying cases in municipal court with special emphasis on DWI. It would also require substantial CLE study in the field of New Jersey drunk driving law. The following is a notice to the bar from the AOC inviting comments. A copy of the proposed regulations is attached to this muni-mail.

Notice to the Bar regarding Municipal Court Trial Certification

The Supreme Court is seeking comment on the Report of the Board on Attorney Certification regarding certification in the area of Municipal Court Law. The Report is published with this notice and includes the proposed amendments to Rule 1:39-1 et seq. and the Board’s proposed regulations in respect of this new area of specialty certification.

Those wishing to comment on the Report, the proposed rule amendment, or the proposed regulations must do so by December 15, 2010, in writing to the following address:

Glenn A. Grant, J.A.D.
Acting Administrative Director of the Courts
Rules Comments (re: Municipal Court Law Certification)
Hughes Justice Complex; P.O. Box 037
Trenton, New Jersey 08625-0037

Comments also may be e-mailed to .

The Supreme Court will not consider comments submitted anonymously. Thus, those submitting comments by mail should include their name and address (and those submitting comments by e-mail should include their name and e-mail address). The identity of those commenting and the substance of those comments may be subject to public disclosure.

Glenn A. Grant, J.A.D.
Acting Administrative Director of the Courts

Download a copy of Proposed Trial Certification Requirements and Regulations.

Category: Muni-Mail Archive

Muni-mail – Law Division not bound by improper Laurick order – State v. Enright

[10/04/10 – 11:11 am] In this morning’s Appellate Division decision in State v. Enright, the Court held that the Law Division is not bound by an improperly granted order under State v. Laurick, 120 N.J. 1 (1990). The order in question provided that the defendant’s previous municipal court DWI conviction could not be used for sentence enhancement purposes. However, the Law Division declined to follow the order based upon the fact that underlying relief should never have been granted in municipal court as the defendant was legally ineligible for relief under Laurick. The Appellate Division’s ruling affirms this decision by the Law Division.

Download a copy of State v. Enright.

Category: Muni-Mail Archive

Muni-mail – First Monday in October – SCOTUS Begins New Term TODAY

The following are the cases set for argument before the Supreme Court over the next several days.
Prepared by the LIIBULLETIN editorial board

  • Bruesewitz v. Wyeth, Inc. (09-152)
  • Premo v. Moore (09-658)
  • Kasten v. Saint-Gobain Performance Plastics, Corp. (09-834)
  • Harrington v. Richter (09-587)
  • Skinner v. Switzer (09-9000)
  • Bruesewitz v. Wyeth, Inc. (09-152)
    Oral Argument: Oct. 12, 2010
    Appealed From: United States Court of Appeals for the Third Circuit (Mar. 8, 2010)
    After their daughter suffered severe health problems following a routine vaccination for diphtheria-tetanus-pertussis (“DTP”), Russell and Robalee Bruesewitz sued Wyeth, Inc., the manufacturer of the vaccine, alleging that Wyeth’s DTP vaccine was outmoded and inadequately designed. In response, Wyeth argued that Section 22(b)(1) of the National Childhood Vaccine Injury Act (“NCVIA”) exempted vaccine manufacturers from all design-defect claims, including the one asserted by the Bruesewitz family. The Third Circuit Court of Appeals agreed with Wyeth and dismissed the claim. The Supreme Court must now determine whether to sustain the categorical preclusion of all design-defect claims advanced against vaccine manufacturers, or whether to expose vaccine manufacturers to potential design-based litigation. This decision will affect the right of vaccine victims to seek compensation for their injuries and the ability of vaccine manufacturers to avoid costly litigation that may drive them out of the vaccine market.

    Premo v. Moore (09-658)
    Oral argument: Oct. 12, 2010
    Appealed from: United States Court of Appeals for the Ninth Circuit (July 28, 2009)
    The police brought in Respondent Randy Moore for questioning in connection with the kidnapping and murder of Kenneth Rogers. Moore requested legal counsel and was told that he was not entitled to counsel unless he could afford it. Moore ultimately confessed to accidentally killing Rogers and was then appointed legal counsel. On counsel’s advice, Moore pled no contest to felony-murder and was sentenced to twenty-five years in prison. After Oregon state courts denied Moore’s petition for post-conviction relief, Moore petitioned for federal habeas corpus relief, asserting that he had been denied effective assistance of counsel because his attorney had failed to move to suppress his confession. The federal district court denied his petition, but the Ninth Circuit reversed, reasoning that the failure of Moore’s counsel to seek suppression of Moore’s confession was unreasonable and highly prejudicial. On appeal to the Supreme Court, Oregon argues that the Ninth Circuit failed to apply the correct standard in granting habeas relief and that Moore did not show that he was prejudiced by his counsel’s failure to seek suppression of his confession. This decision will ultimately impact when and how often defendants and states pursue plea agreements, the finality of those agreements once made, as well as the deference federal courts accord to decisions of state criminal courts.

    Kasten v. Saint-Gobain Performance Plastics, Corp. (09-834)
    Oral argument: Oct. 13, 2010
    Appealed from: United States Court of Appeals for the Seventh Circuit (Oct. 15, 2009)
    Petitioner Kevin Kasten sued his employer, Saint-Gobain Performance Plastics, Corp., alleging that Saint-Gobain terminated his employment in retaliation for his oral complaints regarding the location of the company’s time clocks. Kasten alleges that Section 215(a)(3) of the Fair Labor Standards Act protects employees who make oral complaints from employer retaliation. However, Saint-Gobain asserts that Section 215(a)(3) only protects written complaints made to governmental authorities. The Seventh Circuit held that Section 215(a)(3) only protects written employee complaints. The Supreme Court’s decision will affect several aspects of the employer-employee relationship, including informal dispute resolution procedures in the workplace and employees’ abilities to raise their grievances without fear of retaliation.

    Harrington v. Richter (09-587)
    Oral argument: Oct. 12, 2010
    Appealed from: United States Court of Appeals for the Ninth Circuit (Aug. 10, 2009)
    Joshua Richter, convicted of murder, alleged that he received inadequate assistance from his attorney at trial. Richter argued that his attorney should have presented expert testimony concerning a blood splatter at the crime scene, which could have corroborated his version of the events. The United States Court of Appeals for the Ninth Circuit agreed with Richter and granted his request for habeas corpus relief. Kelly Harrington, the prison warden, claimed that Richter did not receive inadequate counsel and that the California Supreme Court’s earlier summary disposition denying habeas corpus relief should be upheld. The Supreme Court’s decision in this case will determine the level of deference that should be granted to lower court orders, such as summary dispositions, which could discourage lower courts from issuing such orders in the future.

    Skinner v. Switzer (09-9000)
    Appealed from: United States Court of Appeals for the Fifth Circuit (Jan. 28, 2010)
    Oral argument: Oct. 13, 2010
    Florida convicted petitioner Henry Skinner of capital murder and sentenced him to death. Although Skinner admits that he was present at the scene of the murders, he maintains his innocence. Skinner now seeks access to biological evidence for DNA testing, which he claims will prove that he is innocent of the murders. After unsuccessfully filing two habeas corpus claims, Skinner filed a 42 U.S.C. § 1983 claim to attempt to gain access to the evidence. The Fifth Circuit denied Skinner’s motion to stay his execution, but Skinner appealed that decision and the Supreme Court agreed to hear Skinner’s case. The Court must now decide whether a demand for access to biological evidence may be brought under 42 U.S.C. § 1983, or whether the claim falls within the realm of habeas corpus law and was thus improperly filed. The Supreme Court’s decision will not only decide Skinner’s fate, but also clarify the scope and procedure of habeas corpus claims.

    Category: Muni-Mail Archive

Muni-mail – Ooopps! Supreme Court Withdraws Previous Opinion – State v. Dellisanti

[09/20/10 – 1:46 pm] Last week, the New Jersey Supreme Court withdrew its previous opinion in the case of State v. Dellisanti and issued a new opinion with a different outcome. The initial decision was based upon a fact pattern where the Justices were told (as was the Appellate Division) that the defendant had been removed from his trial by way of arrest on an outstanding probation warrant and transported tout of the court room to another county while the jury deliberated. His absence was explained away to the jury by the judge by saying that the defendant was ill and seeking medical attention. The defendant was not in court when the jury returned and published the verdict. Following the publication of the case, the trial judge (since retired) communicated with the Court and provided evidence that, in fact, the reason the defendant was not in court was indeed related to the immediate need for medical aid and had nothing to do with being arrested on a warrant. Counsel for the defendant and the State subsequently stipulated that these were the correct facts. As a result, in its second opinion, the Court took the highly unusual action of withdrawing its initial decision and went on to hold that by seeking medical attention, the defendant had waived his right to be present at his own trial.

Download a copy of State v. Dellisanti

Category: Muni-Mail Archive