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Fasching v. Kallinger

Decided: August 11, 1988.

ALFRED FASCHING AND MARGUERITE FASCHING, HIS WIFE, AND VALERIE COLLINS, PLAINTIFFS-APPELLANTS,
v.
JOSEPH KALLINGER AND PAUL GIBLIN, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Bergen County.

King, Gaulkin and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.

D'annunzio

This is a continuation of litigation which we considered in part in Fasching v. Kallinger, 211 N.J. Super. 26 (App.Div.1986). Plaintiffs appeal an adverse summary judgment entered by Judge Hamer.

On January 8, 1975 Joseph Kallinger killed Maria Fasching. Plaintiffs Alfred and Marguerite Fasching are Maria's parents, and plaintiff Valerie Collins is Maria's sister.

On August 19, 1975 Kallinger entered into a contract with Flora Schreiber in which she acquired the book, magazine and movie rights to Kallinger's life story. Kallinger was to receive 12.5% of all future net earnings from any book or movie.

Kallinger retained defendant Giblin to represent him in defending charges arising out of Fasching's death. By contract dated July 6, 1976 Kallinger assigned his rights under the Schreiber contract to Giblin. On October 12, 1976 Kallinger was convicted of murdering Maria. He was sentenced to life imprisonment. The facts are treated in more detail in our previous opinion, supra, and in a companion case, Romaine v. Kallinger, 109 N.J. 282 (1988).

The issue is whether funds received by Giblin*fn1 as royalties under the assignment of the Kallinger-Schreiber contract must be paid to the Violent Crimes Compensation Board pursuant to

New Jersey's so-called Son of Sam law adopted and effective in 1983. L. 1983, c. 33; N.J.S.A. 52:4B-26 et seq. For a discussion of the statute and its legislative history see our previous opinion, supra 211 N.J. Super at 33-34 and at 41-45.

Judge Hamer ruled that Giblin was entitled to retain the moneys received to date because Kallinger had a constitutional right to counsel and because the royalties paid to Giblin did not exceed the reasonable fees and disbursements to which he was entitled for having defended Kallinger. In so ruling, Judge Hamer reluctantly accepted as the law of the case the prior ruling of Judge Cassidy that the statute applied retroactively to Kallinger's assignment to Giblin. Judge Cassidy's retroactivity ruling was not reviewed in the earlier appeal. 211 N.J. Super. at 35, 44.

Retroactive legislation operates on transactions which have occurred, or rights and obligations which have existed, before passage of the statute. Weinstein v. Investors Savings and Loan Assn., 154 N.J. Super., 164, 167 (App.Div.1977), certif. den. 75 N.J. 598 (1978). A fundamental tenet of statutory construction is that statutes ought not to apply retroactively "unless such an intention is manifested by the Legislature in clear terms." Skulski v. Nolan, 68 N.J. 179, 202 (1975). Prospective application of a statute is favored. Gibbons v. Gibbons, 86 N.J. 515 (1981). The most frequently stated reason for limiting statutes to prospective application is

Accord Gibbons v. Gibbons, supra at 522; Kendall v. Snedeker, 219 N.J. Super. 283, 285 (App.Div.1987); Weinstein v. Investors Savings & Loan Assn., supra, 154 N.J. Super. at 167. In addition, a legislature is ordinarily concerned with establishing ...


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