New Jersey State Bar Association - The voluntary Bar Association of New Jersey, serving members since 1899.

Capitol Report

May 28, 2012


Special Edition

This is a report of cases in which the New Jersey State Bar Association (NJSBA) has participated as an amicus curiae party in 2011 and 2012. More information, including the NJSBA’s brief filed in each case, can be found at or by calling the NJSBA’s Legal Affairs Department at 732-937-7505.



Aronberg v. Tolbert, 207 N.J. 587 (2011). This case questioned whether N.J.S.A. 39:6A-4.5(a), which bars a lawsuit for automobile accident damages by an individual who was operating an uninsured vehicle, also precludes a wrongful death claim by the estate of that individual. The NJSBA submitted a brief, drafted by Anthony Murgatroyd, arguing that the plain language of the statute and the longstanding distinctions between survivorship and wrongful death actions support the lower court’s ruling that a wrongful death action is not barred by the decedent’s status as an underinsured motorist. On Aug. 29, 2011, the Supreme Court issued its decision, holding that when an uninsured motorist's cause of action is barred by N.J.S.A. 39:6A-4.5(a), an heir has no right of recovery under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6.


He v. Miller, 207 N.J. 230 (2011). In this case, the Court considered whether a judge was permitted to use his own experiences in determining whether to remit the plaintiff’s jury verdict for pain and suffering. Gerald H. Baker drafted a brief on behalf of the NJSBA, arguing that the trial court should not be permitted to rely on facts outside of the record in making a remittitur determination, but if it is, the court should be required to give notice to the parties and a fair opportunity to be heard. On May 12, 2011, the Supreme Court issued its decision, holding that, in this case, the trial court provided a sufficient explanation for remittitur and its decision was supported by the record.


Yousef v. General Dynamics Corp., 205 N.J. 543 (2011). This case focused on whether New Jersey was the appropriate forum to hear the claims of New Jersey residents against a Florida resident and an American corporation, for injuries sustained in a motor vehicle accident that occurred in South Africa. The NJSBA submitted a brief drafted by Amirali Y. Haidri, arguing the defendants failed to show, under the well-settled doctrine of forum non conveniens, that the choice of forum was demonstrably inappropriate and, thus, these New Jersey residents were entitled to have the New Jersey courts hear their dispute. On April 11, 2011, the Supreme Court issued its decision, holding that the trial court properly weighed the public-interest and private-interest factors in finding the defendants failed to carry their burden of demonstrating that New Jersey is a "demonstrably inappropriate" forum. Therefore, the trial court did not abuse its discretion in denying the forum non conveniens motion and retaining the case in New Jersey.



DePascale v. State of New Jersey, Docket No. 069401. This case asks the Court to determine if the Pension and Health Care Benefits Act, P.L. 2011, c. 78, which increases public employees' contribution rates for their pension and healthcare benefits, operates to diminish judicial salaries, and thereby violates Article VI, Section 6, Paragraph 6 of the New Jersey Constitution. The NJSBA submitted a brief arguing that the intention of the constitutional drafters, the words of the New Jersey Constitution and other policy considerations require a determination that the act, as applied to certain judges and justices, does violate the constitution’s prohibition against diminishing judicial salaries. Certification was granted on Nov. 10, 2011, and oral argument was heard on March 26, 2012. The Court’s decision is pending.



Segal v. Lynch and Schofel, Docket No. 067683. At issue in this case is whether a parenting coordinator, who also is an attorney, may be awarded fees for time she spent responding to the plaintiff’s motions and subpoenas, and to his grievances against her under the Parenting Coordinator Pilot Program Implementation Guidelines. The NJSBA submitted a brief, drafted by Bonnie C. Frost, Ronald G. Lieberman and Andrea Beth White, arguing that trial judges should retain discretion to award fees to court-appointed parenting coordinators to respond to grievances filed against them, and that the right to such fees is implied in the Parenting Coordinator Pilot Program Guidelines. Certification was granted on July 14, 2011, and oral argument was heard on April 25, 2012. The Court’s decision is pending.


Tannen v. Tannen, 208 N.J. 409 (2011). At issue in this case was whether the New Jersey courts would apply the Third Restatement of Trusts to determine whether it was proper to impute income to the defendant based on her beneficial interest in a discretionary trust for purposes of determining the plaintiff’s alimony and child support obligations. The NJSBA submitted a brief drafted by Martin L. Bearg, Lawrence A. Friedman, Richard H. Greenberg, Stephanie F. Hagan, Glenn A. Henkel, Richard Kahn, Jeralyn L. Lawrence, Daniel M. Serviss and Thomas J. Snyder, arguing that utilizing the principles of the Third Restatement of Trusts would make new law that is ill-advised and, under existing New Jersey trust principles, trusts cannot be compelled to make distributions, but imputation of income on assets can and should be properly considered. On Dec. 8, 2011, the Supreme Court issued its decision affirming the Appellate Division in its application of existing trust law to the facts of this case, in its refusal to impute income to the defendant, and in its reluctance to apply principles of the Third Restatement of Trusts.



Gere v. Louis, 209 N.J. 486 (2012). In this case, the Court considered whether the plaintiff’s legal malpractice claim was barred under Puder v. Buechel, 183 N.J. 428 (2005), where the plaintiff resolved a property dispute with her former spouse by entering into a settlement agreement that included a reservation of rights to sue her former attorney. The NJSBA submitted a brief drafted by Christopher J. Carey, Amirali Y. Haidri, Theodore H. Hilke, Robert Hille and John W. Kavaney, arguing that, where the equitable considerations in Puder are present, the holding in that case should apply regardless of whether the lawyer negotiated the underlying settlement. On March 6, 2012, the Supreme Court issued its decision, in which it found this case was materially distinguishable from Puder and, thus, the Court permitted the legal malpractice to proceed.



State v. Cahill, Docket No. 068727). In this case, the Court was asked to determine whether the defendant’s motor vehicle violations were properly dismissed on the basis that he was denied a speedy trial when there was a 16-month delay in the defendant being prosecuted on a driving while intoxicated (DWI) charge. The NJSBA submitted a brief, drafted by Jeffrey Evan Gold, arguing that the Appellate Division properly affirmed the dismissal of the DWI for lack of a speedy trial since the delay in this case was inordinate, and was caused solely by the state, and since the defendant asserted his right to a speedy trial and was prejudiced by the delay. Certification was granted on Dec. 8, 2011. Oral argument is pending.


State v. Ciancaglini, 204 N.J. 597 (2011). In this case, the Court considered whether a prior guilty plea entered by the defendant on a charge for refusal should be regarded as a prior conviction to enhance sentencing on a charge of driving under the influence, pursuant to N.J.S.A. 39:4-50(a). In a brief drafted by Jeffrey Evan Gold and James J. Gerrow Jr., the NJSBA argued that neither the plain language nor the legislative intent of the DWI and refusal statutes allow for a prior refusal to enhance a DWI sentence. On Jan. 19, 2011, the Supreme Court issued its decision, holding that the defendant’s conviction for refusing to take a breathalyzer test did not constitute a prior conviction for purposes of determining her sentence for a subsequent driving while intoxicated conviction.