By Mary Pat Gallagher

New Jersey Law Journal

September 27, 2010

Deviating from a trend towards requiring proof of actual harm from defamation, a state appeals court ruled Monday that mandating such damages in a suit over online accusations of child sexual abuse would create a “license to defame.”

The decision, in W.J.A. v. D.A., A-0762-09, is the second published Appellate Division opinion this year to address the issue of presumed damages over online smears.

On April 22, another appeals panel, in Too Much Media v. Hale, 413 N.J. Super. 135 (App. Div.), allowed a claim against a blogger to go forward despite the absence of pecuniary damages, though saying the plaintiff company would have to show harm to reputation.

The W.J.A. court said that until the Supreme Court decides the issue definitively, the right “to recover damages in an action premised upon libel without proof of actual harm remains the law in this jurisdiction.”

The ruling allows plaintiff W.J.A. to go ahead with a lawsuit against his nephew, D.A., who wrote on a website that W.J.A. molested him as a child.

W.J.A. and D.A. have been litigating for more than a decade over D.A.’s accusations. In 1998, D.A. sued W.J.A, claiming W.J.A. sexually assaulted him when he was a minor. W.J.A. counterclaimed for defamation based on statements D.A. allegedly made to the Ventnor police.

D.A.’s claim was thrown out as time-barred but W.J.A. won a $50,000 jury verdict on the defamation claim and was awarded an additional $41,323 as a frivolous litigation sanction.

After D.A. failed to get the debt discharged in bankruptcy, he went back to Superior Court to try to lift the judgment with a motion under Rule 4:50-1.

That motion was pending when W.J.A. sued D.A. over a website D.A. created that discussed the litigation and allegedly stated W.J.A. molested D.A. “many, many times” when he was a minor, and also another child.

D.A. shut down the site after W.J.A. sent him a cease-and-desist letter, but W.J.A. sued him for defamation on March 26, 2007, in Atlantic County.

On Aug. 28, 2009, Superior Court Judge Steven Perskie granted summary judgment dismissing the complaint with prejudice, ruling that D.A.’s web postings about W.J.A. were defamatory per se, but because they were akin to libel rather than slander, W.J.A. had to prove actual injury to his reputation, which he admittedly had not done.

Perskie found the postings defamatory as a matter of law and defamatory per se because they accused W.J.A. of a criminal offense and serious sexual misconduct. But he held there was no proof of damages beyond “individual subjective moral reactions which are absolutely understandable and rational and realistic” but are “by themselves insufficient as a matter of law.”

On appeal, Judge Paulette Sapp Peterson, joined by Francine Axelrad and Clarkson Fisher Jr., held defamatory Internet postings are libel, which is written and requires proof of harm, rather then slander per se, which is spoken and as to which damages are presumed.

The opinion mentioned Rocci v. Ecole Secondaire Macdonald-Cartier , 165 N.J. 149 (2000), where the Court declined to decide as a general rule whether damages should be presumed in defamation cases, and said it was leaving the question “for future resolution.”

The panel did not resolve the issue but said because D.A.’s words were undisputedly defamatory and there should be a remedy where there was a wrong, a jury should get to decide if W.J.A. was harmed.

W.J.A.’s lawyer, Egg Harbor Township solo Stanley Bergman Jr., says his client will seek damages for emotional distress as well as punitive damages because of the repeat nature of the offense.

D.A.’s lawyer, Egg Harbor Township solo Timothy Hinlicky, did not return a call.

Bruce Rosen, the lawyer for amici NBC, The New York Times, North Jersey Media Group and the New Jersey Press Association in Too Much Media , says the W.J.A. panel left the presumed damages question open and seemed to be challenging the parties to bring it up to the Supreme Court, which he says “has been moving away from the idea of presumed damages” and has hinted that they should not even exist for slander.

“Maybe this is the right time,” says Rosen, of McCusker Anselmi, Rosen & Carvelli in Florham Park.

Jeffrey Pollock, of Fox Rothschild in Princeton, the lawyer for defendant blogger Shellee Hale in Too Much Media , sees the W.J.A. ruling as inconsistent with appellate precedent moving away from presumed harm and says it renders everything “potentially actionable.”

Joel Kreizman, of Evans Osborne & Kreizman in Ocean, counsel for Too Much Media, says it makes no sense to presume damages for slander but not for libel, especially on the Internet, which is capable of reaching a bigger audience.

On Sept. 10, the Court granted an appeal in Too Much Media but solely on the issue of whether the defendant is a journalist entitled to the protection of the law allowing reporters to shield their sources and to the heightened “absence of malice” standard.

Toyota moves to dismiss sudden acceleration suits.

The AP (9/14) reported, “Toyota Motor Corp. has moved to dismiss hundreds of lawsuits over claims stemming from sudden acceleration in its vehicles. The auto giant filed a motion Tuesday with a federal court in Santa Ana, saying attorneys for Toyota drivers had failed to identify any defects in the vehicles.” On Tuesday, “lawyers for Toyota said there was no evidence of a flaw.”

        Toyota says it fixed black box “glitch.” USA Today (9/15, Carty) continues coverage of Toyota’s announcement that it has found and corrected “a software glitch” in its black boxes that can “provide inaccurate vehicle speeds.” “USA TODAY looked at the crash data recorders, also known as black boxes, and found that some of the data could be wrong in many boxes.” The company stressed that speed was the only factor that was incorrect.

        The Los Angeles Times (9/15, Bensinger, Vartabedian) reports that Toyota “acknowledged that a software bug in the device used to read its black boxes produced faulty data, only months after the automaker touted information from the recorders to suggest that human error caused sudden acceleration.” Toyota’s announcement “casts fresh doubt on the reliability of data taken from black boxes.” The Times adds that NHTSA told Congress last month “that it had reviewed 58 EDRs from Toyota vehicles involved in accidents and that they did not indicate any new safety defects. Instead, the safety regulator found that 35 of the 58 recorders showed that the brake had not been applied, suggesting that driver error, rather than a vehicle defect, caused the crashes.” However, some of these EDRs may have been scanned with the faulty readers.

Sheri Qualters
September 14, 2010

The U.S. Court of Appeals for the 1st Circuit heard oral argument on Tuesday in a case raising the issue of whether a Treasury Department regulation allowing companies to amend retirement plans is legal under the Employee Retirement Income Security Act of 1974 (ERISA) if the amended plan cuts workers’ accrued retirement benefits.

The hearing in Tasker v. DHL Retirement Savings Plan concerned Jeffrey Tasker’s efforts to recover retirement benefits earned while he work for Airborne Express, which DHL later acquired.

In February 2009, Tasker filed suit in the District of Massachusetts alleging that the reductions in his pension plan violated ERISA “anti-cutback rule.” On Nov. 20, 2009, Judge Nancy Gertner dismissed all but one count of the complaint — an allegation that the defendants “have failed to pay [Tasker] any benefits at all” and “refuse to pay his savings plan benefits as an annuity.”

In December, Tasker filed a voluntary dismissal without prejudice of that claim “so we could take the key issues up to the court of appeals,” said Tasker’s lawyer, Bob Catapano-Friedman of Boston-based Catapano-Friedman Law Firm. “Those other issues should be something the parties should be able to work out for themselves,” Catapano-Friedman said.

According to court papers, Tasker retired from Airborne in 2004, and DHL acquired the company “either shortly before or shortly after his retirement.” After the acquisition, DHL merged Airborne’s defined benefit and defined contribution plans into its own plans.

Defined benefit retirement plans offer workers specific benefits based on factors such as age, earnings, and years of service. Defined contribution plan payments depend on how much money the retiree contributed while working and the performance of the plan’s investments.

DHL’s change eliminated Tasker’s right to transfer his account balance in DHL’s defined contribution retirement plan to its defined benefit retirement plan. Tasker claimed he received an estimate in March 2004 of a $4,163.92 monthly annuity with a survivor option. He chose to start payments on or after October 2008. In April 2008, DHL’s retirement account trustee company informed Tasker that his expected monthly benefits were approximately $2,200.00.

In July 2008, Tasker said he was told that the 2004 estimate “was higher because it contemplated Tasker’s exercise of his transfer right.”

Tasker claims on appeal that the plan change violated ERISA’s anti-cutback rule, which bars certain plan amendments that would reduce or eliminate a participant’s accrued benefits. DHL argues that a U.S. Treasury Department regulation allows companies to eliminate such transfer rights, even if the change reduces a participant’s benefits.

The regulation in question, which the Internal Revenue Service issued, states that “a plan may be amended to eliminate provisions permitting the transfer of benefits between and among defined contribution plans and defined benefit plans.”

Tasker claims the appeal is a case of first impression concerning how courts should “interpret important federal ERISA statutory provisions and regulations.”

“The impact of the Court’s decision will be felt by many other participants in the Appellee plans who are similarly affected to Mr. Tasker as well as by many other participants in other ERISA-protected pension plans,” stated Tasker’s appeal brief.

During oral argument, Senior Circuit Judge Bruce Selya asked Tasker’s lawyer, Catapano-Friedman, to address Gertner’s observation that the plaintiff hadn’t raised the issue of “the reasonableness of the [Treasury Department] regulation.”

“There was no argument based on that,” Selya said. “The district court prefaced its opinion on the observation that there was no challenge to the reasonableness of the regulation and the only claim was how to interpret [whether it allows companies to eliminate transfer rights in all cases].”

Catapano-Friedman, who also represented Tasker at the lower court, replied that he didn’t know “whether this particular portion of the regulation or the statute was cited.”

‘It seems to me that you’re making an argument that was never made to district court and I think you know where that will lead,” Selya said.

Catapano-Friedman replied that Tasker specifically made the argument that the regulation allowing companies to eliminate the right to transfer funds wasn’t designed to reduce a retiree’s monthly annuity benefit.

“We don’t think this is a new argument,” Catapano-Friedman said.

“It’s a clear violation of ERISA’s anti-cutback rule,” he said. “We certainly made this argument before the court, below and here.”

In an interview after the hearing, Catapano-Friedman said that the existence of the regulation allowing elimination of the transfer benefit “doesn’t mean [that DHL] can also reduce the amount of Mr. Tasker’s pension.”

“That is a separate protected benefit [under ERISA],” Catapano-Friedman said. “Go ahead and take away the transfer option but keep his pension the same.”

DHL’s lawyer, Jeremy Blumenfeld, a partner in the Philadelphia office of Morgan, Lewis & Bockius, started his argument by stating, “Tasker did not argue below that this regulation exceeded the scope of Treasury’s authority.”

At one point during Blumenfeld’s argument, Circuit Judge Kermit Lipez noted that “the numbers are pretty dramatic.”

“Just on its face it’s hard to reconcile that dramatic reduction with the overall [goals of] ERISA,” Lipez said.

Blumenfeld replied that ERISA’s anti-cutback provisions “protect certain benefits and not others.”

Tasker had the right to his defined contribution account balance, which grew between his retirement and 2008, Blumenfeld said. The separate defined benefit plan “had a formula that always included an offset.”

The formula was based on years of service, age and salary minus an offset, said Blumenfeld said. Court papers said the retirement plan was “subject to a reduction based on a participant’s account balance in the Profit Sharing Plan,” which is the defined contribution plan.

Lipez asked whether, if Tasker had been able to make the transfer in question, he would have avoided the offset to his defined contribution account that had such a major impact on his retirement benefits.

“Whether he moves the money or not, that offset still applies,” Blumenfeld said.

“Can you explain to us, why did this abrogation of the transfer right have such a dramatic effect on Tasker’s benefits?” Lipez asked.

Blumenfeld said he understood that the “retirement income plan [the defined benefit plan] had certain assumptions that don’t apply to benefits under the defined contribution plan.”

Sheri Qualters can be contacted at squalters@alm.com.

Attorney Tracks Foreclosure Frauds and Files Class Action

September 6, 2010. By Brenda Craig

New York, NY: If attorney Susan Chana Lask is right, she has hit on class action suit that will go down in history as one of the critical features of the foreclosure crisis that has ruined the lives of millions of Americans. “It is disgusting,” says Lask, a smart and feisty New York City lawyer. “I am really starting to hate banks. They are messing with our lives.”

Lask started poking around after the distraught daughter of an 80-year-old woman came to her with some questions. A New York attorney called Steven Baum had a filed foreclosure complaint on behalf of HSBC and was preparing to takeover the Brooklyn brownstone owned by her mother, Concepcion Campbell. “I looked over the paperwork and I saw she never should have been foreclosed on,” says Lask.

The problem was, HSBC didn’t own the $190,000 loan. It belonged to something called MERS Corporation or Mortgage Electronic Revival System Corporation.

“So I sued Steven Baum, the attorney who did the foreclosure on the home, for legal malpractice and fraud,” says Lask who describes Baum’s practice as a “foreclosure mill” for the banks.

Lask started looking a little further and began to see what she describes as a “RICO fraud and a racket.” She has since filed a class action on behalf of thousands who lost homes in illegal foreclosures. If Lask is correct, and there are lots of reasons to believe she is, this is a mess and a half.

To get the full picture, Lask says, you have step back to the wild and crazy days when banks were high on the smell of money and were signing up risky mortgage customers.

Knowing that the bubble could burst at anytime, the banks stacked the loans under the name of MERS Corp. “So you would go and take a loan with Chase Bank but on the mortgage is would say MERS Corp.,” says Lask. “It splits the title. The title is bad right there. But they didn’t care, and the title companies didn’t care because they are all part of it too. Everybody gets paid. They just wanted a closing. They were like vultures.”

Courts in New York State are starting to figure this out. Ultimately, it could mean that the ownership of thousands and thousands of homes across the US are in doubt. “The judges are denying these foreclosures left and right – the documents are bad,” says Lask. “The documents they are filing are just basic fraud.”

Susan Chana Lask is a high-profile New York City litigator and appellate attorney. She has handled hundreds of complex divorce, legal malpractice, civil rights and class action cases. She is admitted to and practices in the United States Supreme Court, the New York Court of Appeals and Federal District and Circuit Court of Appeals. She is an author and frequent media commentator.

Fired Jacksonville waitresses file federal lawsuit against Cracker Barrel

Source URL: http://jacksonville.com/news/crime/2010-09-10/story/fired-jacksonville-waitresses-file-federal-lawsuit-against-cracker

By Jim Schoettler

Two former Jacksonville waitresses have filed a civil rights lawsuit against Cracker Barrel saying the national restaurant chain fired them in retaliation for reporting discrimination against black customers by two co-workers.

The lawsuit was filed Thursday in Jacksonville on behalf of Karen Hutcheson, 60, and Heather Ellis, 35. The women already have a discrimination case pending against Cracker Barrel that was filed with the Equal Employment Opportunity Commission last month. The lawsuit does not ask for any specific damages.

Hutcheson and Ellis were fired Aug. 8, four months after Hutcheson sent the Tennessee-based company an unsigned letter saying a hostess and waiter, who were girlfriend and boyfriend, conspired to ensure that the waiter got better tips by seating only white patrons in his section. Hutcheson told The Florida Times-Union last week that she sent the letter.

Hutcheson and Ellis also said the waiter was getting more customers than them or co-workers. The women said the company launched an investigation, then fired them on allegations that they discriminated against black customers. The two women have denied those claims.

A Cracker Barrel spokeswoman said the company took appropriate action based on the investigation. The co-workers named by the fired waitresses are still employed by Cracker Barrel, though the hostess is apparently now waiting tables.

As with the Equal Employment Opportunity complaint, the lawsuit says the company had no grounds to fire the women and did so to retaliate against them for being whistleblowers.

Eric Jones, the Jacksonville attorney representing the women, said he intends to clear his clients’ names.

 “They did a witchhunt investigation that was self-serving,” Jones said of Cracker Barrel. “We want a jury trial.”

Cracker Barrel spokeswoman Julie Davis said there is no merit to the allegations in the lawsuit or complaint.

“We, of course, will defend against this because … Cracker Barrel does not tolerate discrimination,” Davis said.

The lawsuit seeks damages for loss of pay, pain and suffering, embarrassment, loss of personal dignity and other claims. It also asks a judge to order Cracker Barrel officials to adopt a clear anti-discrimination policy and adequately train managers and employees in anti-discrimination practices.

Tuesday, September 7, 2010
Last updated: Tuesday September 7, 2010, 1:49 PM

BY JOHN PETRICK

The Record

STAFF WRITER

The state Appellate Division Tuesday reversed the aggravated manslaughter and attempted rape convictions of Michael Coppola of Pompton Lakes, who was tried in 2008 for fatally stabbing a Wanaque man and trying to rape his girlfriend just hours after he befriended the young couple at a bar and invited them to his townhouse.

Coppola has been serving a 27-year state prison sentence for the crimes. The 2008 trial hinged on drastically different accounts of what happened in Coppola’s bedroom following a night of hot tubbing and partying on March 12, 2005, and what happened between 22-year-old Andrew Vogel and Coppola during their fatal confrontation.

Vogel’s girlfriend testified she awoke to discover her pants and underwear inexplicably off and a naked Coppola sitting next to her as Vogel remained asleep nearby. She said the defendant then told her she had had sex with him, though she testified she had no memory of it.

She panicked, awoke Vogel and the two rushed out, she said. When the girlfriend told Vogel in the car what had just happened, Vogel returned to the town house to confront Coppola. A fight between the two broke out, ending with Coppola fatally stabbing Vogel.

Coppola, then 27, testified at trial that Vogel forced his way into the townhouse upon returning to confront him and that he acted in self defense. The victim was stabbed 11 times.

The state Appellate Division, which sent the case back for re-trial, cited a number of errors during the trial before state Superior Court Judge Philip H. Mizzone Jr. Among them: a medical examiner should not have been allowed to testify that the nature of Vogel’s injuries made it a medical certainty that he was incapable of resistance. The panel also found that the prosecutor, in his summation to the jury, mischaracterized several statements presented during trial, and that he cited the improper testimony of the medical examiner about Vogel’s incapacitation. The appellate court also found no foundation had been established to allow a police officer’s reading of the alleged rape victim’s on-the-scene statement to police.

When and if Coppola will be retried could not be immediately determined Tuesday.

Attorney John Vincent Saykanic of Clifton , who argued the defense’s case on appeal, said  he  intends to ask a state Superior Court  judge in Paterson  that bail be set anew. “My immediate concern is obtaining Mr. Coppola’s release as soon as possible,” Saykanic said. “He is presumed innocent, now.”

Saykanic said he spoke to Coppola’s family this morning but neither he or they have yet been able to reach Coppola, so he may not yet be aware of the  appellate ruling.

E-mail: petrick@northjersey.com

The state Appellate Division Tuesday reversed the aggravated manslaughter and attempted rape convictions of Michael Coppola of Pompton Lakes, who was tried in 2008 for fatally stabbing a Wanaque man and trying to rape his girlfriend just hours after he befriended the young couple at a bar and invited them to his townhouse.

FILE PHOTO

Michael Coppola in court in 2007.

Coppola has been serving a 27-year state prison sentence for the crimes. The 2008 trial hinged on drastically different accounts of what happened in Coppola’s bedroom following a night of hot tubbing and partying on March 12, 2005, and what happened between 22-year-old Andrew Vogel and Coppola during their fatal confrontation.

Vogel’s girlfriend testified she awoke to discover her pants and underwear inexplicably off and a naked Coppola sitting next to her as Vogel remained asleep nearby. She said the defendant then told her she had had sex with him, though she testified she had no memory of it.

She panicked, awoke Vogel and the two rushed out, she said. When the girlfriend told Vogel in the car what had just happened, Vogel returned to the town house to confront Coppola. A fight between the two broke out, ending with Coppola fatally stabbing Vogel.

Coppola, then 27, testified at trial that Vogel forced his way into the townhouse upon returning to confront him and that he acted in self defense. The victim was stabbed 11 times.

The state Appellate Division, which sent the case back for re-trial, cited a number of errors during the trial before state Superior Court Judge Philip H. Mizzone Jr. Among them: a medical examiner should not have been allowed to testify that the nature of Vogel’s injuries made it a medical certainty that he was incapable of resistance. The panel also found that the prosecutor, in his summation to the jury, mischaracterized several statements presented during trial, and that he cited the improper testimony of the medical examiner about Vogel’s incapacitation. The appellate court also found no foundation had been established to allow a police officer’s reading of the alleged rape victim’s on-the-scene statement to police.

When and if Coppola will be retried could not be immediately determined Tuesday.

Attorney John Vincent Saykanic of Clifton , who argued the defense’s case on appeal, said  he  intends to ask a state Superior Court  judge in Paterson  that bail be set anew. “My immediate concern is obtaining Mr. Coppola’s release as soon as possible,” Saykanic said. “He is presumed innocent, now.”

Saykanic said he spoke to Coppola’s family this morning but neither he or they have yet been able to reach Coppola, so he may not yet be aware of the  appellate ruling.

E-mail: petrick@northjersey.com

In Mary Pat Gallagher’s recent New Jersey Law Journal article on September 2, 2010, she cites the two recently filed putative class-action suits accusing New Jersey collection firms of systematic abuses in trying to squeeze money from debtors.

Pressler & Pressler in Parsippany, the state’s preeminent collection powerhouse, has been sued over its alleged practice of going after joint bank accounts that contain non-debtor money.

The other suit accuses Lenox Socey Formidoni Brown Giordano Cooley & Casey in Trenton of regularly overstating the interest component of debts.

Robert and Diana Kieffer of Atlantic County, who share two joint bank accounts at Ocean First Bank, filed suit Aug. 3 in federal court, alleging that the Pressler firm — in an effort to collect credit card debt incurred by Diana before marriage — had the Ocean County sheriff levy on one of the joint accounts in August 2009, without checking first to see if she was the sole owner. The firm was acting on behalf of frequent client New Century Financial, which had acquired the debt and is a defendant in the case, Kieffer v. Pressler & Pressler , 10-cv-3938.

The Kieffers’ lawyer, Wesley Hanna, of Friedman Doherty in West Berlin, says he persuaded Superior Court Judge Craig Wellerson in Ocean County that everything in the account actually belonged to Robert and none to Diana, so Wellerson lifted the levy on Oct. 23, 2009, and Pressler never got any of the money in the account.

But for more than two months, the account was frozen, causing automatic payments to bounce and leading Robert to incur penalties by drawing against his retirement savings to pay bills, Hanna says. And during that time, Pressler & Pressler tried to use the frozen account to pressure Diana into agreeing to a payment plan. The situation created discord between Diana and Robert, who “doesn’t even owe the debt and suddenly he doesn’t even have access to his money any more,” Hanna says.

In the federal suit, the Kieffers claim Pressler and New Century have an “established business practice to levy upon joint bank accounts” and “as a matter of regular business practice, do not instruct levying authorities to limit levy attempts only to accounts where a debtor is the sole authorized signatory.”

In consequence, joint accounts are levied, resulting in unnecessary and undue expense, harassment and abuse of the non-debtors and also the debtors themselves due to increased tension, acrimony and hostility between them and the other account owners, they say.

The practices allegedly violate the federal Fair Debt Collection Practices Act’s ban on misrepresentation and deceit and unfair or unconscionable means in attempting to collect a debt. The Act, 15 U.S.C. §1692 et seq., allows for actual damages or statutory damages up to $1,000, plus legal fees. For class actions, it allows recovery of statutory damages, plus additional damages not exceeding $500,000 or one per cent of the debt collector’s net worth.

The Kieffers assert claims on behalf of a class of individuals from whom the Pressler firm and New Century sought to collect a debt by levying on a joint account within the last 12 months. Hanna estimates there are several hundred class members based on the defendants’ extensive collections activity.

Hanna says New Jersey’s Multiple-party Deposit Account Act bolsters his position that joint accounts should be off-limits to debt collectors. N.J.S.A. 17:16I-4 states that a joint account “belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit.” Absent proof of who put in what, equal ownership is presumed.

Hanna says lawyers should not be able to gain leverage to extract payment by disregarding the joint nature of an account or foregoing asset depositions. “The potential to make people’s lives miserable to collect debt means you have to follow very specific rules.”

Pressler & Pressler has not answered the complaint and could not be reached for comment.

Another class-action suit asserting Fair Debt Collection Practices Act, Baratta v. Lenox Socey Formidoni Brown Giordano Cooley & Casey , 10-cv-4324, filed in Middlesex County in July, was removed to federal court on Aug. 23.

Lenox Socey sued Robert Baratta in state court in May 2009 seeking to recover nearly $6,700 for medical services provided to him by Bayshore Community Hospital in Holmdel between February 2006 and May 2008. Baratta alleges the amount included interest calculated from March 2006 on the entire amount of the debt, even portions that were not incurred until 2007 or 2008.

The class allegations are predicated on the assumption that the firm has done the same thing in other cases. The complaint alleges 100 or more.

Baratta’s lawyer, Andrew Wolf of Galex Wolf in North Brunswick says Baratta went to Northeast Legal Services which referred the case to him.”

The answer is not due until Sept. 13 and the firm’s lawyer, Claudia Costa, of Kaufman Dolowich Voluck & Gonzo in Hackensack, declines comment.

Kieffer is assigned to District Judge Stanley Chesler and Magistrate Judge Michael Shipp in Newark, while Baratta is being handled by Chief District Judge Garrett Brown Jr. and Magistrate Judge Douglas Arpert in Trenton

By Mary Pat Gallagher

New Jersey Law Journal

August 11, 2010

A month before the start of the new Supreme Court term, the seat once occupied by Justice John Wallace Jr. is empty, raising the question of who, if anyone, might fill it temporarily in light of the standoff between the governor and Senate over Wallace’s replacement.

And, if someone is to be named to the spot, who will do the choosing?

The state Constitution and court rules do not provide an easy answer.

The Constitution says the chief justice can assign a senior Superior Court judge for temporary service on the Court. But it is not clear whether that can be done for a purpose other than to meet the quorum requirement of five justices.

The court rules expressly allow it under a greater variety of circumstances, not just when needed for a quorum, but also “to replace a justice who is absent or unable to act, or to expedite the business of the court.”

The rules are also both broader and narrower than the Constitution concerning who can fill in on the high Court.

While the Constitution authorizes temporary stints by senior Superior Court judges — which presumably includes trial judges — Rule 2:13-2 narrows that to Appellate Division judges and allows retired Supreme Court justices who are not practicing law.

In addition, N.J.S.A. 43:6-A-13 authorizes the Court to recall retired justices.

Seton Hall Law School Professor Edward Hartnett, who teaches constitutional law, says that the rule, which would appear to allow Chief Justice Stuart Rabner to name a interim justice, is not valid because it goes beyond what the Constitution allows.

Instead, it is Gov. Chris Christie who has the constitutional power to fill the seat temporarily through a recess appointment, says Hartnett.

Christie chose Anne Patterson of Morristown’s Riker Danzig Scherer Hyland & Perretti to replace Wallace, but the nomination has been stalled by the refusal of Senate Majority Leader Stephen Sweeney, D-Gloucester, to hold confirmation hearings.

Christie’s decision not to reappoint Wallace to a tenured term was widely criticized as undermining judicial independence. Sweeney cited that reason when he announced on May 4 that he would not allow the Patterson nomination to move forward until March 2012, when Wallace would have reached the mandatory retirement age of 70.

If Hartnett is correct about recess appointments, Christie could circumvent the Legislature and place Patterson or someone else of his choosing on the Court before the new term begins on Sept. 13.

Hartnett points to Art. V, sec. 1, para. 13, which allows the governor to “fill any vacancy occurring in any office during a recess of the Legislature, appointment to which may be made by the Governor with the advice and consent of the Senate.”

The interim appointment is good until the end of “the next regular session of the Senate, unless a successor shall be sooner appointed and qualify.”

Thus, in Hartnett’s view, Christie could act as soon as this summer and certainly no later than the year-end recess, and the appointment would be good until the end of 2011.

Hartnett notes that federal recess appointments are not uncommon under constitutional language comparable to that of New Jersey. Art. II, sec. 2 of the U.S. Constitution reads: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Hartnett’s opinion that the Constitution does not allow Rabner to plug the vacancy is based in part on the history of the relevant provision, Art. VI, sec. 2, para. 1.

Adopted in 1947, it reads: “Five members of the court shall constitute a quorum. When necessary, the Chief Justice shall assign the Judge or Judges of the Superior Court, senior in service, as provided by rules of the Supreme Court, to serve temporarily in the Supreme Court.”

As originally drafted, the paragraph specifically referred to using the power when necessary to make a quorum, and the paring of the quorum reference from the final version was a stylistic change, Hartnett says.

He also finds support in the evolution of R. 2:13-2, pointing out that the language about replacing absent justices and expediting Court business was not added until 1967, and the provision allowing appointment of retired justices did not appear until 1978.

Hartnett is not the only one who doubts Rabner’s authority to assign an interim justice.

Earl Maltz, a constitutional law professor at Rutgers Law School-Camden, agrees, based on the language of Article VI. It “doesn’t say if the seat is vacant for a while that the Chief Justice can appoint someone,” he notes.

To allow temporary assignments for nonquorum purposes, such as expediting Court business as the rule states, would give the chief justice “unfettered authority,” adds Maltz.

But he also finds it significant that the rule granting such authority has been around for decades and thus constitutes a longstanding gloss on the constitutional language that has apparently never been challenged and is thus entitled to some weight.

Taking a different stance is Frank Askin, director of Rutgers Law School-Newark’s Constitutional Litigation Clinic and an experienced litigant before the Court.

If the chief justice can bring someone up for a single case, “I don’t know that they can’t bring them up for all cases,” says Askin.

Another constitutional law professor, Robert Williams of Rutgers Law School-Camden, says that in the past, chief justices “have not considered themselves constrained” from making nonquorum-related assignments.

The current situation presents a “classic textbook case of separation of powers” with the three co-equal branches of government “staring each other down.” Without a seventh justice, the Court is more likely to deadlock 3-3, making the Appellate Division the final arbiter, Williams says.

Judiciary spokeswoman Winnie Comfort had no comment concerning the professors’ views, saying the Court does not do so in such matters. Christie spokesman Michael Drewniak did not comment by press time.
Through the years, Appellate Division judges have been asked to step in when a justice recused.

And chief justices have routinely recalled just-retired judges for a short while so they could help decide cases argued while they were still on the bench.

Most recently, Rabner recalled Wallace for that reason, and since the end of his term on May 20, Wallace has taken part in about 30 decisions and written seven or more majority opinions.

Rabner’s June 1 order recalling Wallace “for the limited purpose of participating in the final disposition of appeals argued or submitted” before May 20, does not cite the Constitution or the rule, only the statutory recall authority.

To the extent that Rabner decides to use the rule and add an interim justice, his choices are more circumscribed than it might appear.

Only a retired justice who is not practicing law is eligible.

That excludes everyone except Marie Garibaldi, who served from 1982 until 1990, and possibly Wallace.

Garibaldi declines comment on whether she would be willing to return after a 20-year hiatus, and it is not known whether Wallace, who could not be reached, is now practicing law and thus disqualified.

That leaves only Appellate Division judges, in the order of their seniority.

Comfort says Stephen Skillman, appointed in March 1981, is the longest-serving.

He faces mandatory retirement in December. Next in line is Edwin Stern, a judge since December 1981 who turns 70 next year.

The next most-senior judges are Sussex County Superior Court Judge Peter Conforti, who turns 70 in November 2013; Appellate Division Judge Ronald Graves, 70 in December 2013; and Hudson County Superior Court Judge Shirley Tolentino, 70 in February 2013.

By Charles Toutant

New Jersey Law Journal

June 28, 2010

A state appeals court held on Monday that New Jersey’s Open Public Records Act allows a criminal defendant to obtain the educational records of detectives assigned to his case — including a list of courses on interrogation and confessions they have taken.

The Appellate Division said a trial judge was wrong to find that a provision in OPRA allows a county prosecutor to refuse to disclose educational data beyond that relating to qualifications required for government employment.

“Given the overarching public policy favoring public disclosure, any ambiguity [in the statute] must be resolved against those seeking to withhold information from public scrutiny,” the panel wrote in Kovalcik v. Somerset County Prosecutor’s Office , A-5432-08.

Charged with sexual assault and child welfare endangerment, Vasil Kovalcik requested during discovery the professional resumes of Jorge Ramos and Kristen Houck, detectives for the Somerset County Prosecutor’s Office who worked on the case against him. He also asked for lists of their courses on interrogation and confessions.

When the request was denied, he asked for the documents under OPRA. In April 2009, a records custodian for the prosecutor’s office certified that the documents could not be found for Ramos or Houck. In May 2009, a different records custodian certified that a pre-employment background check of Houck yielded a two-page list of courses she took before joining the office.

But the counsel for the prosecutor’s office argued that OPRA’s exemption for personnel records, N.J.S.A. 47:1A-10, did not mandate public disclosure of the list, since the courses were not required as a qualification of employment.

At a hearing, Superior Court Judge Yolanda Ciccone asked the records custodian o state the “basic qualifications” for becoming a prosecutor’s investigator. The custodian responded that a detective must attend the Division of Criminal Justice Academy and obtain a Police Training Commission certification.

Ciccone said the only information available under 47:1A-10 about a government employee’s educational background is that which established whether he or she met the basic requirements of the job. Any other disclosure about her education is “at the pleasure of the prosecutor,” Ciccone ruled.

On appeal, Judges Stephen Skillman and Jose Fuentes disagreed. They held that because the list of classes taken by Houck met the statutory definition under OPRA of a record that was “kept” or “maintained” by the prosecutor’s office “in the course of … its official business,” the item was subject to disclosure absent a countervailing legal impediment.

They also said the records custodian failed to shoulder his burden of proving that the denial of the record was authorized by law, since the colloquy between the records custodian and Ciccone had no evidentiary value because it was not given under oath, and was not subject to cross-examination.

Reviewing the two-page list, filed under seal, the appeals court concluded that it did not contain information that would trigger concern for Houck’s privacy rights, such as a Social Security number, personal financial information, health records or disciplinary matters.

The appeals court upheld denial of the request for Ramos’ educational records that the custodian certified could not be found. The prosecutor’s office “is not obligated under OPRA to create a document that compiles information; it is only obligated to provide that which is already in existence,” the court said.

The case against Kovalcik is pending. His lawyer, Jack Venturi, who heads a New Brunswick firm, did not return a call. Neither did the attorney for the prosecutor’s office, Scott Rodgers of Miller, Robertson & Rodgers in Somerville.

By Henry Gottlieb

New Jersey Law Journal

June 29, 2010

After Gov. Chris Christie declined to reappoint John Wallace Jr., calling him part of what’s wrong with the current Supreme Court, Wallace set about finishing up cases he had heard before his term ended, as outgoing justices usually do.

On Tuesday, he wrote the kind of opinion that Christie, a conservative former federal prosecutor, might have had in mind when he sought to remake the Court in his own image.

By a 5-2 vote, the Court threw out a drug conviction because the arresting officer found the critical narcotic evidence when he lifted the bottom of the suspect’s tee-shirt in a search for a weapon. The officer should have just done pat-down search.

“That maneuver exceeded the scope of the pat-down search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search of defendant that is not condoned,” Wallace wrote for the majority in State v. Privott, A-7.

Sometimes it is okay for officers to go beyond a pat-down search to ensure their safety, the Court said. “Such is not the case here where the suspect was cooperative, and, as instructed, placed his hands on a fence when the policeman conducted the search,” Wallace wrote.

In a dissent, Justice Barry Albin wrote that the officer took appropriate action, given reports that the suspect might have a gun. “Courts should not look at the uncertain events facing the officer in the street through the distorting lens of hindsight,” he wrote, joined Justice Robert Rivera-Soto.

Wallace participated in the oral argument in the case last Dec. 1 and followed Court tradition of having former justices deliberate and sometimes write opinions in cases they heard before they stepped down. He maintains chambers in Woodbury.

He had two years to go before mandatory retirement age of 70, but in a break with tradition that ignited a protest by eight former justices and other members of the state’s legal establishment, Christie declined to re-nominate Wallace to the tenured seat.

The governor said his goal was to remake what he believed to be an activist Court. Though calling Wallace “someone I believe has pointed the Court in a direction I believe is inappropriate,” he didn’t name any decisions by Wallace that he found objectionable and didn’t say whether the activism he decried was exhibited in civil or criminal cases.

On Tuesday, spokesmen for Christie and the Attorney General Paula Dow did not return calls for comment about the Privott case.

It may not have been an example of activism, but it was a classic matter of defendant rights v. police power and the defendant won.

Plainfield Police Officer Jeffrey Plum testified at a hearing that he was patrolling on May 13, 2003 when he received a dispatcher’s call. An anonymous tipster had reported the presence of a dark-skinned man wearing a black jacket and a black and red cap with a handgun on a particular corner where violent gangs were known to congregate.

Plum said he observed a man who fit the description in many respects and was wearing a long tee-shirt that hung down below the jacket. The man, Tysen Privott, started walking away, but Plum — having seen the man move his hand to his waistband, and fearing there was a weapon there — frisked the suspect and also lifted the tee-shirt above the man’s stomach, the officer testified.

During that search he found a bag of cocaine, he testified.

Under Terry v. Ohio, 392 U.S. 1 (1968), officers can stop and frisk people without a search warrant if there are articulable facts and rational inferences that a weapon may be concealed. But officers must take “the least intrusive means” to allay their concern about their safety.

In this case, the Court found that Plum had an objectively reasonable concern for his safety, given the anonymous tip, the neighborhood’s reputation and the suspect’s hand movement.

But the Court also found, “a reasonable search, as well as the least intrusive maneuver needed to protect the safety of the officer against a possible weapon, would have been the traditional pat down search of defendant’s outer clothing.”

“That did not occur,” the Court said. “Rather, the police officer lifted defendant’s tee-shirt to expose defendant’s stomach, and in doing so, observed a plastic bag with suspected drugs in the waistband of defendant’s pants.”

The cocaine evidence seized from the defendant should have been suppressed the Court concluded. Privott, who was convicted and sentenced to five years in prison, is eligible for a new trial.

In the dissent, Albin said the officer, “making a split-second decision in a fast-moving and dangerous encounter” was merely trying to “gain control of a gun that might have been concealed and used to kill him.”

He said the majority should have applied cases along the lines of Adams v. Williams, 407 U.S. 143 (1972) that permit more than a pat-down frisk if the officer has a reasonable and articulable suspicion that suspects have weapons concealed in a specific place, such as a waistband.

“Here the officer — who rapidly responded to a dispatch, identified defendant as the suspected man with a gun, and went to further investigate – was not ‘required to proceed in the coldly logical sequence which may suggest itself after the event,’” Albin said, quoting from People v. Atmore, 91 Cal. Rptr. 311 (Ct. App. 1970).