Archive for July, 2011

US SUPREME COURT INSULATES MUNICIPALITIES FROM FIRST AMENDMENT SUITS

SteveK July 21st, 2011

In a decision unifying the approach to what are referred to as “petition clause” cases, The United States Supreme Court reversed a Third Circuit decision upholding a jury verdict in favor of a public employee. In Borough of Duryea v. Guarnieri the plaintiff, a municipal employee, claimed the municipality retaliated against him after he filed a lawsuit. The employee claimed his lawsuit was a protected activity under the First Amendment because he was “petitioning” the government with his grievances. Under the existing Third Circuit jurisprudence, the trial court agreed and submitted the matter to the jury. The jury returned a verdict against the municipality. The Supreme Court reversed indicating that there is a requirement that in order for an activity to be protected pursuant to the Petition Clause of the First Amendment, the “petition” or grievance, or lawsuit, must involve a matter of public concern. AS a result, the municipality was therefore absolved of liability.  Therefore, if a grievance or complaint by an employee involves an internal matter, the municipality cannot be held liable under the petition clause of the First Amendment.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

 

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N.J. App. Div. rules that Spill Act liability requires a nexus between a discharge and the contamination of the surrounding environment.

SteveK July 5th, 2011

In NJDEP v. Ofra Dimant, et.al. the New Jersey Appellate Division recently confirmed that liability under the Spill Act, requires a connection between the discharge of a contaminant and the contamination of the environment of that contaminant that was caused by the discharge. In the case, the defendants included succession of owners and operators of a dry cleaning establishment. The contamination in the groundwater included the well known dry cleaning chemical, PCE, as well as the byproducts of its degradation: TCE and DCE.  There was evidence that the PCE was related to the dry cleaning operations. All but one of the direct defendants settled with the State.  The remaining defendant went to trial. The trial judge found that although there were discharges or releases of PCE during the stewardship of the remaining defendant, there was no proof that those discharges went through the asphalt and contaminated the environment.  Since there was no nexus between the discharge and the remediation, the claims against the defendant were dismissed. The State also sought leave to amend the complaint to add certain other prior operators. The denial of that motion by the trial judge was affirmed as being made too late in the case; in fact, it was made near the end of the trial.  This case affirms the need for the State or any plaintiff in a Spill Act case to demonstrate a nexus; and further reaffirms that there is no liability for passive migration of contaminants during the ownership of property.

 

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.

 

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N.J. Appellate Court Rules in Favor of Grandparents Receiving Visitation Following Adoption by Family Members

SteveK July 5th, 2011

In J.M.S. v. J.W., the Superior Court of New Jersey, Appellate Division, recently concluded that the Adoption Act, does not bar grandparents from seeking visitation under the grandparent visitation statute.  The trial court judge relied heavily on the case of In re Adoption of a Child by W.P., 163 N.J. 158 (2000). The Appellate Court distinguished this case from W.P. because W.P. addressed the issue of grandparent visitation in the context of a non-relative adoption.  In this case, the children had been adopted by other relatives.

 

Plaintiffs in this appeal are the paternal grandparents of J.W., born in 1999, and T.W., born in 2001.  Defendants are the adoptive parents and are cousins of the children’s biological mother.

 

Beginning in or about December 2008, parents began to cut the grandparents out of the children’s lives.  The parents refused to inform the grandparents of events, and then flatly denied them visits and/or access to the children.  These actions were quickly followed by allegations from the grandparents that the parents were now taking poor care of the children.

 

In this appeal the plaintiffs’ requested grandparent visitation where:

(1) The grandparents had been the children’s temporary foster parents for almost two years;

(2) The children were later adopted by defendants who are related to the children’s mother; and

(3) Defendants had afforded the grandparents visitation for two years following the adoptions.
Following oral argument, the trial judge dismissed plaintiffs’ complaint for grandparent visitation, based upon the W.P. case.   The grandparents appealed.

The Appellate Court concluded that the Adoption Act, N.J.S.A. 9:3-38 to -56, does not preclude these grandparents from seeking visitation under the grandparent visitation statute (N.J.S.A. 9:2-71), because the W.P. case dealt with children who were adopted by a non-relative.  The Appellate Division determined that this distinction was critical and subsequently reversed the Order granting summary judgment to defendants, reinstated grandparents’ Complaint for grandparent visitation, and remanded for further proceedings.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in matrimonial and family law matters. For additional information about the matters in this bulletin or in the firm’s family law practice please contact James Moloughney, Esq.

 

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