inflexible rule in New Jersey

2024Accordingly, "the first-filed rule is not an inflexible doctrine." Id. at 387 .

2021Although A-0355-20 5 not an inflexible doctrine, in order to avoid its application, special equities must be found that "are reasons of a compelling nature that favor the retention of jurisdiction by the court in the later-filed action." Id. at 387 .

2024Contrary to defendant's contention, the Court in Fuentes explained that "[b]ecause N.J.S.A. 2C:44-1's statutory language does not suggest, and [the Court had] never held, that aggravating factor nine and mitigating factor eight are inherently incompatible," it "did not adopt such an inflexible rule." Id. at 79 .

2024As the Court explained, "even if the record demonstrates that the offense at issue arose in circumstances unlikely to recur, thus supporting a finding as to A-3437-21 48 mitigating factor eight, a defendant could nonetheless pose a risk of recidivism, requiring specific deterrence within the meaning of N.J.S.A. 2C:44-1(a)(9)." Id. at 80 .

2022Rul. 59-60, 1959- 1 C.B. 237 ).

2019An inflexible rule of mandatory *279 impoundment could impose greater inconvenience upon motorists, particularly if the vehicle's owner, a relative, or a friend of the motorist is nearby and able to come and remove the vehicle from the scene. 8 Id. at 415 , 126 A.3d 850 (noting that if *25 a vehicle is impounded, the period of detention of its occupants "will be extended").

2019An inflexible rule of mandatory *279 impoundment could impose greater inconvenience upon motorists, particularly if the vehicle's owner, a relative, or a friend of the motorist is nearby and able to come and remove the vehicle from the scene. 8 Id. at 415 , 126 A.3d 850 (noting that if *25 a vehicle is impounded, the period of detention of its occupants "will be extended").

2014D'Agostino declined to adopt such “an inflexible rule,” id. at 199, 78 A.3d 527 , and this court must do likewise.

2014Although the cases cited by defendant, State v. L.V., 410 N.J.Super. 90 , 979 A.2d 821 (App.Div. 2009), certif. denied, 201 N.J. 156 , 988 A.2d 1178 (2010), Briggs, supra, 349 N.J.Super. 496 , 793 A.2d 882 , and State v. Powell, 294 N.J.Super. 557 , 683 A.2d 1175 (App.Div.1996), illustrate that ag *80 gravating factor nine and mitigating factor eight rarely apply in the same sentencing, they do not hold that the two factors are irreconcilable.

2014Although the cases cited by defendant, State v. L.V., 410 N.J.Super. 90 , 979 A.2d 821 (App.Div. 2009), certif. denied, 201 N.J. 156 , 988 A.2d 1178 (2010), Briggs, supra, 349 N.J.Super. 496 , 793 A.2d 882 , and State v. Powell, 294 N.J.Super. 557 , 683 A.2d 1175 (App.Div.1996), illustrate that ag *80 gravating factor nine and mitigating factor eight rarely apply in the same sentencing, they do not hold that the two factors are irreconcilable.

2014Although the cases cited by defendant, State v. L.V., 410 N.J.Super. 90 , 979 A.2d 821 (App.Div. 2009), certif. denied, 201 N.J. 156 , 988 A.2d 1178 (2010), Briggs, supra, 349 N.J.Super. 496 , 793 A.2d 882 , and State v. Powell, 294 N.J.Super. 557 , 683 A.2d 1175 (App.Div.1996), illustrate that ag *80 gravating factor nine and mitigating factor eight rarely apply in the same sentencing, they do not hold that the two factors are irreconcilable.

2014Although the cases cited by defendant, State v. L.V., 410 N.J.Super. 90 , 979 A.2d 821 (App.Div. 2009), certif. denied, 201 N.J. 156 , 988 A.2d 1178 (2010), Briggs, supra, 349 N.J.Super. 496 , 793 A.2d 882 , and State v. Powell, 294 N.J.Super. 557 , 683 A.2d 1175 (App.Div.1996), illustrate that ag *80 gravating factor nine and mitigating factor eight rarely apply in the same sentencing, they do not hold that the two factors are irreconcilable.

2014Although the cases cited by defendant, State v. L.V., 410 N.J.Super. 90 , 979 A.2d 821 (App.Div. 2009), certif. denied, 201 N.J. 156 , 988 A.2d 1178 (2010), Briggs, supra, 349 N.J.Super. 496 , 793 A.2d 882 , and State v. Powell, 294 N.J.Super. 557 , 683 A.2d 1175 (App.Div.1996), illustrate that ag *80 gravating factor nine and mitigating factor eight rarely apply in the same sentencing, they do not hold that the two factors are irreconcilable.

2014Although the cases cited by defendant, State v. L.V., 410 N.J.Super. 90 , 979 A.2d 821 (App.Div. 2009), certif. denied, 201 N.J. 156 , 988 A.2d 1178 (2010), Briggs, supra, 349 N.J.Super. 496 , 793 A.2d 882 , and State v. Powell, 294 N.J.Super. 557 , 683 A.2d 1175 (App.Div.1996), illustrate that ag *80 gravating factor nine and mitigating factor eight rarely apply in the same sentencing, they do not hold that the two factors are irreconcilable.

2014Although the cases cited by defendant, State v. L.V., 410 N.J.Super. 90 , 979 A.2d 821 (App.Div. 2009), certif. denied, 201 N.J. 156 , 988 A.2d 1178 (2010), Briggs, supra, 349 N.J.Super. 496 , 793 A.2d 882 , and State v. Powell, 294 N.J.Super. 557 , 683 A.2d 1175 (App.Div.1996), illustrate that ag *80 gravating factor nine and mitigating factor eight rarely apply in the same sentencing, they do not hold that the two factors are irreconcilable.

2013Although the Court in Nótale did not establish an inflexible rule regarding the weighing of aggravating and mitigating factors, it commented that “reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range.” Natale, supra, 184 N.J. at 488 , 878 A.2d 724 .

2013Although the Court in Nótale did not establish an inflexible rule regarding the weighing of aggravating and mitigating factors, it commented that “reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range.” Natale, supra, 184 N.J. at 488 , 878 A.2d 724 .

2005The Wisconsin Supreme Court’s cautioning in Cook, supra, against application of the double-counting rule in a rigid way, bears repeating here: Such an inflexible rule runs counter to the equitable nature of these determinations and to purposes underlying the broad legislative authorization that the circuit court consider relevant financial information in dividing the property and setting the level of maintenance____Bather, the double[-]counting rule serves to warn parties, counsel and the courts to avoid unfairness by carefully considering the division of income-producing and non-income produc

2005Rather, the double[-]counting rule serves to warn parties, counsel and the courts to avoid unfairness by carefully considering the division of income-producing and non-income producing assets and the probable effects of that division on the need of maintenance.... [ 367 N.J.Super. at 442 , 843 A. 2d 344 (quoting Cook v. Cook, 208 Wis. 2d 166 , 560 N.W. 2d 246, 252 (Wis.1997))(emphasis added).] I would adopt that analysis.

2004NOTES [1] Arlein also made an adjustment by replacing Esco's ownership expenses related to its physical plant with a reasonable market rental rate, which he calculated at $60,640 per year. [2] Among the factors to be considered in the award of alimony is "[t]he equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair[.]" Ibid. [3] Even in those jurisdictions where courts adopted the prohibition against double dipping, there has been some retreat from applica

1999Rep. 681, 686 (KB 1838), that "the necessity of a demand ... is obviated, because there was nobody on whom a demand could be made." 514 U.S. at 934 , 115 S.Ct. at 1918 , 131 L.

1999Rep. 681, 686 (KB 1838), that "the necessity of a demand ... is obviated, because there was nobody on whom a demand could be made." 514 U.S. at 934 , 115 S.Ct. at 1918 , 131 L.

1997The Court explained that there was “good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting.” Id. at 381 , 102 S.Ct. at 2492 , 73 L.Ed.2d at 85 .

1997The Court explained that there was “good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting.” Id. at 381 , 102 S.Ct. at 2492 , 73 L.Ed.2d at 85 .

1992In so holding we declined to adopt an inflexible rule that would automatically mandate forfeiture on the commission of any misconduct relating to public employment. 91 N.J. at 76-77, *552 449 A.2d 1267 .

1991See Saltzman v. McCombs, 71 Nev. 93 , 281 P.2d 394 (1955) (evidence not sufficient to establish that purchasers failed to make bona fide effort to obtain FHA loan where evidence showed that purchaser inquired at local FHA office and then contacted bank official who testified that he told purchaser that he would not qualify under FHA regulations and that submitting an application would be useless; any breach without consequence since record showed application would have been rejected); Century 21 Acadia Realty and Development Co. v. Brough, 393 So.2d 287 (La.Ct.App.1980) (failure of purchasers

1991See Saltzman v. McCombs, 71 Nev. 93 , 281 P.2d 394 (1955) (evidence not sufficient to establish that purchasers failed to make bona fide effort to obtain FHA loan where evidence showed that purchaser inquired at local FHA office and then contacted bank official who testified that he told purchaser that he would not qualify under FHA regulations and that submitting an application would be useless; any breach without consequence since record showed application would have been rejected); Century 21 Acadia Realty and Development Co. v. Brough, 393 So.2d 287 (La.Ct.App.1980) (failure of purchasers

1991See Saltzman v. McCombs, 71 Nev. 93 , 281 P.2d 394 (1955) (evidence not sufficient to establish that purchasers failed to make bona fide effort to obtain FHA loan where evidence showed that purchaser inquired at local FHA office and then contacted bank official who testified that he told purchaser that he would not qualify under FHA regulations and that submitting an application would be useless; any breach without consequence since record showed application would have been rejected); Century 21 Acadia Realty and Development Co. v. Brough, 393 So.2d 287 (La.Ct.App.1980) (failure of purchasers

1990We repeat that in the absence of any action by this Court — felt to be constitutionally compelled — and as a matter of comity and respect for other branches of government, we accept and adopt all statutory arrangements touching or concerning the administration of any courts in the State, as well as such legislative enactments as have to do with public employees whose duties are intimately related to the judicial system. [ 73 N.J. at 255 , 374 A.2d 449 (emphasis supplied).] Plaintiff would read that language as somehow creating an inflexible rule of law restricting this Court’s constitutional,

1990We repeat that in the absence of any action by this Court — felt to be constitutionally compelled — and as a matter of comity and respect for other branches of government, we accept and adopt all statutory arrangements touching or concerning the administration of any courts in the State, as well as such legislative enactments as have to do with public employees whose duties are intimately related to the judicial system. [ 73 N.J. at 255 , 374 A.2d 449 (emphasis supplied).] Plaintiff would read that language as somehow creating an inflexible rule of law restricting this Court’s constitutional,

1987It also *295 restated the earlier language in State v. Currie, 41 N.J. 531 (1964), stressing the futility of trying to devise a single inflexible test of double jeopardy.

1987Ibid.

1976Recent applications and modifications of this rule to satisfy the vague contours of the due process clause have hardly mitigated its inadequacies for our day. [ 306 U.S. at 429 , 59 S.Ct. at 578 ].

1976Recent applications and modifications of this rule to satisfy the vague contours of the due process clause have hardly mitigated its inadequacies for our day. [ 306 U.S. at 429 , 59 S.Ct. at 578 ].