Kenneth Mr. Vercammen was included in the 2017 “Super Lawyers” list published by Thomson Reuters.

To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or visit www.njlaws.com

(732) 572-0500

Tuesday, June 17, 2014

05/02/14 DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY VS. G.R. A-4594-12T4


05/02/14 DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF
CHILD PROTECTION AND PERMANENCY VS. G.R.
A-4594-12T4
The Division of Child Protection and Permanency (the "Division") informed G.R. that she neglected her two-year- old son by leaving him unattended in her minivan while shopping in a Target store. G.R. immediately requested an Office of Administrative Law hearing to resolve numerous issues of disputed material facts. Five years later, the Division placed her name on the child abuse registry and issued its final agency decision, summarily concluding that G.R. neglected her son by failing to exercise a minimum degree of care as required by N.J.S.A. 9:6-8.21c(4)(b). This substantial delay was caused by agency inaction and by the misplacement of G.R.'s file by a deputy attorney general. Although G.R. timely disputed the Division's initial substantiation of neglect, she lived with the uncertainty of the outcome of her administrative challenge during  the  entire five years. We  reversed without prejudice, remanded, and directed the OAL to conduct a hearing to resolve the disputed issues of fact, and we gave G.R. the opportunity to argue on remand that the case should be dismissed as a matter of fundamental fairness.

05/05/14 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. M.C


05/05/14
NEW JERSEY DIVISION OF CHILD PROTECTION AND
PERMANENCY VS. M.C 
A-2398-12T2
On a father's appeal of a judgment entered against him a fact-finding hearing in an abuse or neglect action commenced pursuant to N.J.S.A. 9:6-8.21 to -8.73 and
N.J.S.A. 30:4C-12, we reverse. Construing N.J.S.A. 9:6-8.21(c)(4)(b), we conclude that in a case, such as this, where there is no finding of actual harm, N.J.S.A. 9:6-8.21(c)(4) requires a court to consider competent evidence establishing that the conditions that posed a risk of harm have been successfully remediated between the time that the Division of Child Protection and Permanency intervened and the time of the fact-finding hearing.  We  further conclude that if evidence of successful remediation by the time of the fact-finding hearing is undisputed and if there is no evidence establishing, or permitting a reasonable inference of,  likely repetition  of  the  conduct  or circumstances that warranted intervention, the evidence is insufficient to support a determination that the child "is in imminent danger of becoming impaired."

05/06/14 NEW JERSEY TRANSIT CORPORATION VS. MORI A-0122-12T4


05/06/14 NEW JERSEY TRANSIT CORPORATION VS.
MORI
A-0122-12T4
     This appeal concerns property acquired by New Jersey Transit through      condemnation. The  property contains navigable waters of the United States under the exclusive jurisdiction of the United States Army Corps of Engineers (ACOE). We held that because the ACOE has exclusive jurisdiction to determine whether the taking area falls under the category of wetlands, it was error to submit this issue to the jury.
     We also held that the trial judge should have conducted a pre-trial N.J.R.E. 104 hearing and rendered a determination that there existed the reasonable probability the ACOE would have granted a Section 404 permit as of the taking date for the proposed private development.

05/07/14 BARLYN VS. DOW A-0779-13T4


05/07/14 BARLYN VS. DOW
A-0779-13T4
     Plaintiff filed suit against various members of the Office of the Attorney General, individually and in their official capacities. He alleged that he was terminated from his position as an assistant county prosecutor after complaining that defendants dismissed indictments against the county Sheriff and members of her department for political purposes. Plaintiff claimed his termination was in violation of "clear mandates of public policy." See Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980). The Law Division judge granted his motion and compelled defendants to produce a copy of all materials generated by the grand jury in connection with its investigation of the Sheriff's Office, including but not limited to transcripts, exhibits, subpoenaed documents and other evidence.
     We granted defendants' motion for leave to appeal and reversed, finding that plaintiff failed to make "a strong showing of   particularized need  that outweigh[ed]  the interest in grand jury secrecy." State v. Doliner, 96 N.J. 236, 246 (1984).
We also addressed whether a motion seeking to compel production of grand jury materials must be brought before the vicinage assignment judge where the grand jury was empanelled, or whether the trial judge in another vicinage could decide the motion.

05/08/14 NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES
VS .N.D., J.P. AND A.J. IN THE MATTER OF E.D.
A-2093-12T2
     A few days after ingesting cocaine, N.D. gave birth to a child who tested positive for the drug but displayed no signs of withdrawal. At a fact-finding hearing, the Division introduced evidence that the infant was born premature  and     underweight,  but  presented   no  medical evidence to connect these conditions to the mother's druguse. The Family Part found the mother put the child at risk by her use of cocaine.
    The fact-finding took place before the decision in Department of Children & Families v. A.L., 213 N.J. 1 (2013), and the Family Part judge did not have the benefit of the Court's holding that drug use by a parent during pregnancy, standing alone, may not substantiate a finding of abuse or neglect. We reversed the finding of abuse or neglect and took the unusual step of remanding with a direction to re-open the fact-finding hearing to permit the parties to present medical or expert testimony as to whether the mother's consumption of cocaine caused harm to the child.

05/13/14 AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY VS. NEW JERSEY DIVISION OF CRIMINAL JUSTICE AND BRUCE SOLOMON A-3381-12T1



05/13/14 AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY VS.
NEW JERSEY DIVISION OF CRIMINAL JUSTICE AND BRUCE
SOLOMON
A-3381-12T1
In response to a request for government records under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to 47:1A-13, a government agency does not have the authority to redact an admittedly responsive document to withhold information the agency deems to be outside the scope of the request.  Absent   a   legally   recognized  exception    to disclosure,  a  citizen's  right  of  access  to   public information is unfettered.
We also reverse the trial court's decision to place the "onus" on the requestor to clarify or engage in negotiations   with   the  custodian  as a  jurisdictional prerequisite to instituting legal action to enforce his or her rights to access public information. This extra bureaucratic hurdle the requestor must clear before getting to the courthouse doors is untethered to any provision in OPRA and contravenes our State's strong public policy favoring "the prompt disclosure of government records." Mason v. City of Hoboken, 196 N.J. 51, 65 (2008); N.J.S.A. 47:1A-1.




05/13/14 AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY VS.
NEW JERSEY DIVISION OF CRIMINAL JUSTICE AND BRUCE
SOLOMON
A-3381-12T1
In response to a request for government records under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to 47:1A-13, a government agency does not have the authority to redact an admittedly responsive document to withhold information the agency deems to be outside the scope of the request.  Absent   a   legally   recognized  exception    to disclosure,  a  citizen's  right  of  access  to   public information is unfettered.
We also reverse the trial court's decision to place the "onus" on the requestor to clarify or engage in negotiations   with   the  custodian  as a  jurisdictional prerequisite to instituting legal action to enforce his or her rights to access public information. This extra bureaucratic hurdle the requestor must clear before getting to the courthouse doors is untethered to any provision in OPRA and contravenes our State's strong public policy favoring "the prompt disclosure of government records." Mason v. City of Hoboken, 196 N.J. 51, 65 (2008); N.J.S.A. 47:1A-1.


05/15/14 IN THE MATTER OF ADOPTION OF AMENDMENTS TO THE NORTHEASTUPPER RARITAN ET AL. A-3236-10TI/A-5271-07T3/A-5990-07T3/A-5993- 07T3


05/15/14 IN THE MATTER OF ADOPTION OF AMENDMENTS TO THE
NORTHEASTUPPER RARITAN ET AL.
A-3236-10TI/A-5271-07T3/A-5990-07T3/A-5993- 07T3(CONSOLIDATED CASE)
     In 2008, the Department of Environmental Protection (DEP) adopted amendments to its Northeast, Upper Raritan, Sussex County, and Upper Delaware Water Quality Management Plans (WQMPs). Those amendments established total maximum daily loads limiting the amount of phosphorus, a nutrient that contributes to the growth of algae, discharged into the Passaic River. Appellants Pequannock, Lincoln Park and Fairfield Sewerage Authority, Hanover Sewerage Authority, Madison-Chatham Joint Meeting, and Warren Township Sewerage Authority collect municipal wastewater for treatment, after which they discharge the treated water into the Passaic River.     Respondent North Jersey   District  Water Supply Commission (North Jersey), which operates the Wanaque Reservoir downstream from appellants, sometimes pumps water from the Passaic River into the reservoir.
     Appellants challenged the WQMPs in an earlier appeal. We affirmed as to most issues, but remanded for a determination  as  to whether it was institutionally practicable for the WQMPs to require strict compliance by respondents and other upstream treatment facilities from May through October only, with treatment at other times on an as-needed basis when North Jersey plans to divert water from the Passaic River to the Wanaque Reservoir. We retained jurisdiction.
     Following an evidentiary hearing, an administrative law judge concluded that an off-season, as-needed treatment plan was institutionally practicable. The DEP Commissioner disagreed  and  determined to  the  contrary.  Following further briefing and oral argument, we affirmed the Commissioner. After giving the required deference to the Commissioner's expertise, we found that his decision was not arbitrary, capricious, or unreasonable, and it that it was supported by substantial credible evidence in the record as a whole.





05/15/14 COMMITTEE OF PETITIONERS FOR THE REPEAL OF ORDINANCE NUMBER 522 (2013) OF THE BORO OF WEST WILDWOOD VS. FREDERICK A-0870-13T3


05/15/14 COMMITTEE OF PETITIONERS FOR THE REPEAL OF ORDINANCE
NUMBER 522 (2013) OF THE BORO OF WEST WILDWOOD
VS.  FREDERICK
A-0870-13T3


We review the interplay of the referenda procedures outlined in the Home Rule Act, N.J.S.A. 40:49-27, and the Walsh Act, N.J.S.A. 40:74-5. Defendants urge reversal of the Law Division's order, which considered the plaintiff's complaint in lieu of prerogative writs seeking a referendum to repeal the adoption of a municipal bond ordinance. Defendants argued the trial judge erred because the protest was untimely. Alternatively,  defendants challenge the judge's legal finding that the procedural requirements for referenda set forth in the Walsh Act are not required to be followed when citizens protest an ordinance incurring indebtedness, which is guided by the procedures outlined in the Home Rule Act. We affirm concluding a voter protest of a bond ordinance is governed by the procedures set forth in the Home Rule Act, which purposefully do not mirror the referenda provisions governing other types of ordinance challenges in a municipality formed under the Walsh Act.

05/21/14 CORTEZ VS. GINDHART, ESQUIRE A-0430-12T1


05/21/14 CORTEZ VS. GINDHART, ESQUIRE
A-0430-12T1
Plaintiff filed this legal malpractice action against his former attorney after pleading guilty to federal tax evasion charges and serving his sentence. He alleged that, due to his attorney's negligence in failing to negotiate a plea agreement early in the prosecution, he accepted a less favorable plea offer and received a harsher sentence. His complaint was dismissed on the ground that his exoneration on the criminal charge was a pre-requisite to maintaining a legal malpractice action. Because plaintiff did not allege that  he    suffered a     wrongful  conviction,  proof of exoneration was not required. However, he was required to prove that he suffered actual injury as a result of the alleged attorney negligence. His complaint was properly dismissed because he failed to present competent evidencethat he suffered an actual injury that was proximately caused by his attorney's alleged negligence.

05/22/14 PARASCANDOLO VS. DEPARTMENT OF LABOR, BOARD OF REVIEW, BRICK TOWNSHIP BOARD OF EDUCATION AND VINNY'S KING PIZZA A-3209-11T1


05/22/14 PARASCANDOLO VS. DEPARTMENT OF LABOR, BOARD
OF REVIEW, BRICK TOWNSHIP BOARD OF EDUCATION AND
VINNY'S KING PIZZA
A-3209-11T1
       The appellant held two part-time jobs when she was temporarily disabled as a result of an injury at her employment  by the  Board of Education. She received temporary disability benefits (TDB) through her employment at her second employer, where both she and her employer contributed to the Temporary Disability Fund. Because the Board of Education was not a "covered" employer under the Temporary Disability Benefits Law (TDBL), N.J.S.A. 43:21-25 to -66, her TDB was calculated solely on the wages earned from the  second employer.  Nonetheless, because she received temporary workers compensation benefits from the Board of Education, the Board of Review asserted a lien against her TDB based upon the subrogation provision in N.J.A.C. 12:18-1.5, a regulation designed to implement our decision in In re Scott, 321 N.J. Super. 60 (App. Div. 1999), aff'd, 162 N.J. 571 (2000). After examining the interplay of the TDBL and the Workers Compensation Act when only one of two employers is a "covered employer" under the TDBL, we conclude that the Board relied upon an erroneous interpretation of its regulation; that the amount of TDB appellant received was a "full recovery" and not a "double recovery "of benefits and therefore, subrogation was inappropriate.