On March 7, 2007, the Supreme Court decided Tarus v. Borough of Pine Hill, 189 N.J. 497 (2007).  In a unanimous opinion by Justice Zazzali, the Court issued a ringing pronouncement that citizens have a common law right, subject to reasonable restrictions, to videotape public proceedings of municipal bodies.  Plaintiff had attempted to record two meetings of the Pine Hill Borough Council with a video camera that he set up in the back of the meeting room.  The mayor ordered plaintiff to stop taping.  When plaintiff would not comply, the police chief arrested plaintiff for disorderly conduct.  In subsequent municipal court proceedings, plaintiff was found not guilty.  Plaintiff then filed a federal Civil Rights Act lawsuit. read more

Law v. Siegel, ___ U.S. ___ (2014).  Outrageous behavior of a litigant deserves to be punished.  That is why provisions such as Federal Rule of Civil Procedure 11 and a comparable bankruptcy rule, Federal Rule of Bankruptcy Procedure 9011, among other remedies, permit a court to impose sanctions on wrondoing litigants.  However, as this bankruptcy law opinion by Justice Scalia makes clear, courts have no power to impose sanctions using a mechanism whose application contravenes a statute. read more

Prioleau v. Kentucky Fried Chicken, Inc., ___ N.J. Super. ___ (App. Div. 2014).  In Arroyo v. Durling Realty, LLC, 443 N.J. Super. 238 (App. Div. 2013), discussed here, Judge Sabatino discussed the “mode of operation” theory of negligence liability.  In essence, the doctrine eases the burden of proof on a plaintiff who is injured on commercial property where, “as a matter of probability, a dangerous condition is likely to occur as a result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.”  In such circumstances, it is unnecessary to prove that the defendant was on notice of the dangerous condition that allegedly caused the injury.  Yesterday, in a 2-1 decision, the Appellate Division overturned a jury verdict against Kentucky Fried Chicken, Inc. (“KFC”), holding that the jury charge on mode of operation liability was erroneous.  Judge Lihotz wrote the majority opinion, in which Judge Sapp-Peterson joined.  Judge Hoffman filed a dissent and would have upheld the jury’s verdict. read more

The landmark right to counsel case of Gideon v. Wainwright, 372 U.S. 335 (1963), famously involved a prisoner’s handwritten petition for certiorari that was granted and went on to change the legal landscape.  In 2012, the Supreme Court of the United States granted another handwritten prisoner petition and ultimately ruled in favor of the inmate in Millbrook v. United States, 569 U.S. ___ (2013).  Today, the Supreme Court granted another handwritten prisoner petition in Holt v. Hobbs, which seeks review of a decision by the Eighth Circuit Court of Appeals, reported at 509 Fed. Appx. 561 (8th Cir. 2013).  The key question presented is whether a policy of the Arkansas Department of Corrections that prevents inmates from having a beard of any sort (except that inmates with a diagnosed dermatological problem may wear facial hair no longer than one-quarter of an inch) violates inmates’ rights under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc (“RLUIPA”).  The petition, filed by an inmate who asserts that his right to observe the principles of Islam by having a beard has wrongly been abridged, is available here. read more

At the upcoming 38th Annual United States District Court Judicial Conference sponsored by the Association of the Federal Bar of New Jersey on March 20, 2014, one of the programs is titled “Third Circuit Practice:  A Practitioner’s Guide.”  Among the panelists are Third Circuit Judges Chagares and Shwartz.  That session will undoubtedly be very educational for those who practice, or wish to practice, in the Third Circuit Court of Appeals.  (The first session that day, titled “Why Women Lawyers Should Stay in the Game:  A View From the Bench and Bar,” which features retired Justice Long, Judge Wolfson, and Magistrate Judges Arleo and Williams, will also be very well worth hearing). read more

For many months, the class action defendants’ lobby has highlighted two Circuit Court opinions as the latest poster boys in a campaign whose ultimate goal is to abolish class actions.  In those cases, the courts independently certified nationwide classes of consumers who purchased two different brands of washing machines that proved to be defective.  Neither case was from a “magic jurisdiction” or “judicial hellhole,” defendants’ incendiary terms for any venue that certifies a class action.  On the contrary, the Sixth Circuit is not notably friendly to class actions, and the Seventh Circuit’s opinion was written by none other than Judge Posner, who has written some famously negative class action opinions, see, e.g., In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995), as well as some decisions approving class certification. read more

Feliciano v. Faldetta, ___ N.J. Super. ___ (App. Div. 2014).  Rule 4:58-1 allows a plaintiff to make an offer of judgment.  If the defendant does not accept the offer, and the plaintiff then tries the case and achieves an award that is 120% of the offer or more, the plaintiff can apply under Rule 4:58-2 for the attorneys’ fees that were incurred thereafter.  That is what happened in this personal injury case.  Plaintiff served an offer of judgment for $15,000.  Defendant, or the insurer that was defending the case, rejected that offer.  The jury awarded plaintiff $50,000.  Plaintiff then sought $62,780 in attorneys’ fees.  The Law Division awarded a fee of $42,230, plus additional sums in expenses and interest.  Both parties appealed.  In a concise opinion by Judge Waugh, the Appellate Division affirmed. read more

Newman v. Board of Review, ___ N.J. Super. ___ (App. Div. 2014).  This is a case in which plaintiff sought unemployment benefits.  The detailed facts of the case are almost not relevant.  In an opinion by Judge Koblitz, on plaintiff’s appeal from an appellate administative decision, the Appellate Division reversed, for two purely legal reasons, applying the de novo standard of review.  read more