Tuesday, July 10, 2018

Judge orders NJ municipality to pay for employee's medical marijuana.

Citing a need to stop "killing people" by forcing injured people to take opioids for their pain, a New Jersey Workers' Compensation Judge ordered Freehold Township (Monmouth County) to pay for a municipal employee's medical marijuana.

According to a transcript of a June 28, 2018 hearing before Workers' Compensation Judge Lionel Simon, Freehold Township employee Steven McNeary filed an application to compel the Township to pay for medical marijuana used to treat his muscular spasticity.   Both the Township's and its insurer's attorneys, James Supple and Christine Shea, respectively, agreed that McNeary had fully complied with the state's Compassionate Use Medical Marijuana Act and was eligible to receive medical marijuana.

At issue was whether marijuana' illegality under the federal Controlled Substance Act precluded Judge Simon from using New Jersey's Medical Marijuana Act as a predicate for compelling Freehold to pay for McNeary's medical marijuana.  During the hearing, Judge Simon referred to the Maine Supreme Court's June 14, 2018 ruling in Bourgoin v. Twin Rivers Paper Co., Docket No. WCB-16-433 (2018 WL 2976309) which held, in a 5 to 2 decision, that federal law controlled and that any employer who paid for an employee's medical marijuana would be "aiding and abetting" a violation of federal law.

Accordingly, the Maine court ruled that Maine's Medical Use of Marijuana Act "cannot create a state right to commit a federal crime" and therefore cannot compel an employer to pay for an employee's medical marijuana.  McNeary's attorney, Leonard D. Weiss of Metuchen, argued that New Jersey's Compassionate Use Medical Marijuana Act provides that "[s]tates are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law; therefore, compliance with this act does not put the State of New Jersey in violation of federal law."  Judge Simon rejected Weiss' argument, stating that "I don't buy that argument. . . I don't think that any New Jersey statute can say that [it] supersedes federal law."

Judge Simon, a former prosecutor, stated that while he is in full support of federal and state narcotics laws he didn't believe "in [his] heart of hearts" that an employer or its insurer who reimburses an employee for medical marijuana "is in any way complicit with the distribution of illicit narcotics."  Judge Simon also noted that McNeary had "a documented medical need" for medical marijuana and expressed concern that he might become addicted to opioids if he did not received medical marijuana. "Quite frankly, this Court is very aware of the . . . the explosion of these narcotics on the streets in the United States in the last decade, the tremendous amounts of death and addiction that are associated with these opioids. If there's anything criminal here, it's how these drugs have been force fed to injured people creating addicts."

Judge Simon went on to state that "I believe, and I think the science supports this, is that medical marijuana is safer, it's less addictive, it is better for the treatment of pain. It is better for, in this particular case, the muscular spasticity which Mr. McNeary suffers from. The long-term prognosis is better and, quite frankly, it is cheaper for the carriers. I think it's the right thing to do and I feel no moral or legal hesitancy in that."

Judge Simon said that he would "welcome" New Jersey's Appellate Division or Supreme Court to weigh in on this issue and recognized that he would be bound by those higher courts' rulings.  "I simply think it's the right thing to do. And, again, I welcome a reviewing court to tell me I'm right or I'm wrong," he stated.  In the meantime, however, he believed that "it's time for us, as the Division, of Compensation, to try to get away from these opioids which are killing people and I don't say that lightly. They are killing people."

Friday, June 22, 2018

Burlington County mayor cited for ethics violations.

After a nearly four year investigation, the sitting mayor of a Burlington County municipality was fined $200 by the New Jersey Local Finance Board (LFB) for having twice violated the Local Government Ethics Law (LGEL).  The fines arose out of the mayor's connection to a Political Action Committee that operated out of the law office of the Township's attorney.

In its June 14, 2018 Notice of Violation, the Local Finance Board--the chief enforcer of the LGEL--found that during 2014 Delran Township Mayor Ken Paris was employed by and received monetary compensation from the Initiate Civil Empowerment Political Action Committee (ICE PAC) while Douglas Long, who was law partners with ICE PAC treasurer Albert Marmero, served as Delran's municipal attorney.  The Notice of Violation noted that Paris nominated Long to be Delran's attorney.

The LFB determined that Paris, who was "being paid by the ICE PAC while the township solicitor was partners in a law firm with the treasurer of the ICE PAC" engaged "in a business, transaction, or professional activity which is in substantial conflict with the proper discharge of his duties in the public interest."  In a related matter, the LFB determined that Paris committed another violation of the LGEL by failing to report the $5,200 he received from the ICE PAC on his 2015 Financial Disclosure Statement.

The LFB assessed a $100 fine for each violation, for a total of $200, and informed Mayor Paris of his right to contest the findings and the fines by requesting an administrative hearing.  The LFB's final decision will not be issued until after Mayor Paris, if he chooses to contest the findings and the fines, has had his case heard by an Administrative Law Judge.

By law, local government officials can be fined between $100 and $500 for each LGEL violations.  The ethics complaint that resulted in the LFB's determination was filed on September 18, 2014 by John Paff and the New Jersey Libertarian Party.

Sunday, June 10, 2018

Atlantic County woman seeks $144,387.46 under Mistaken Imprisonment Act.

On April 30, 2018, an Atlantic County woman filed a lawsuit against the State of New Jersey claiming that she "is an innocent person who was wrongly imprisoned"  for 1,054 days for a crime she did not commit.  She is seeking compensation for the 1,054 days she spent in jail at the $50,000 per year rate prescribed by the Mistaken Imprisonment Act, N.J.S.A. 52:4C-1 et seq.

In her lawsuit, Domonique Hines of Folsom asserted that on April 1, 2014 she was convicted by a Cumberland County jury of conspiracy to commit robbery in the second degree and was sentenced to six years in prison with a requirement that she serve eighty-five percent of the sentence before being eligible for parole.  In a February 13, 2017 opinion, a three-judge panel of the New Jersey Superior Court, Appellate Division reversed her conviction because she was deprived of a trial separate from her co-defendant and because of improper testimony by police.  Hines stated in her lawsuit that all charges against her were dismissed on October 17, 2017.

The judge who presided over the trial was Cumberland County Superior Court Judge Cristen D'Arrigo.  The case was covered extensively by local media (here, here and here). 

Hines, who is currently 29 years old but was 19 at the time of the alleged robbery in December 2007, is being represented in her civil action by Robert N. Agre of Haddonfield.  In addition to the $144,387.46, Hines is also seeking reimbursement of her court costs and Agre's attorney fees.

Wednesday, May 30, 2018

Monmouth Judge grants Sea Bright's summary judgment motion in police excessive force case because plaintiff's lawyers were too "occupied and distracted" to properly oppose it.

In his August 19, 2015 lawsuit, a Lincroft man claimed that Sea Bright Borough (Monmouth County) police officers severely beat him after taking him into custody following his August 13, 2013 arrest for assault on a police officer, disorderly conduct and resisting arrest.  In a May 25, 2018 Order, Monmouth County Superior Court Judge Dennis R. O'Brien dismissed the man's lawsuit because his lawyers did not properly respond to the Borough's summary judgment motion.

According to his lawsuit, Brian Beyer offered no resistance to the Sea Bright officers who responded after Beyer and another man were "engaged in a verbal altercation" at the Driftwood Cabana Club.  Beyer claimed that after being placed in a holding cell, Officers Chad Murphy and Brian T. Conover stuck a "billy club" into his abdomen and used it "in a careful, methodical way" to cause "serious injury."  According to Beyer's complaint, the officers placed the club "below his stardom [sic - probably intended "sternum"] and struck it at the other end with an open fist with such force and for such an extended period" to cause serious injury.

The Sea Bright Police Department had a different recollection of the incident as reflected in a Statement of Facts that accompanied the Borough's April 13, 2018 Motion for Summary Judgment.  According to police, Beyer instigated the altercation with a club patron and the shouted obscenities at police and physically resisted when the officers were attempting to handcuff him.  At the holding cell, Beyer reportedly "continued to act extremely belligerent by kicking the cell door and screaming profanities."  Sea Bright Police also claimed that they "do not carry 'billy clubs' or any similar mechanical weapons."

In this case--like most others--there are stark differences between the arrestee's and the officers' versions of events.  Courts use summary judgment motions to identify which facts are genuinely in dispute and need to be resolved by a jury.  In this case, Sea Bright's lawyer, Charles J. Uliano of West Long Branch, claimed in his summary judgment motion that Sea Bright's version of events was unassailable and should lead the court to conclude that Beyer's lawsuit should be dismissed.

Sea Bright's motion, which was filed on April 13, 2018, was supposed to be heard by Judge O'Brien on May 11, 2018.  Beyer's lawyer, Michael T. Warshaw of Redbank, requested and was granted an adjournment of the hearing until May 25, 2018.  Then, at 4:06 p.m. on May 24, 2018--the day before the hearing--Warshaw electronically submitted a single-page letter to Judge O'Brien that stated: "Please accept this letter an an opposition to [Sea Bright's] motion for Summary Judgment.  Between myself and co-counsel, we were very occupied and distracted and the opposition got away from us.  There are too many disputed issues of material facts and we would like the opportunity to oppose the motion."

In a Statement of Reasons that accompanied his May 25, 2018 Order, Judge O'Brien ruled that Warshaw's May 24, 2018 letter was too little too late.  Judge O'Brien noted that procedural rules require parties who oppose summary judgment motions to provide detailed responses that admit or deny each statement of fact as set forth by the movant.  Judge O'Brien wrote that Warshaw's letter was "insufficient" and "falls far short of" the court's procedural rules.  While he was "sympathetic to the demands of the modern day practice of law," Judge O'Brien wrote that Warshaw's failure to properly oppose Sea Bright's motion was "inexplicable, especially when the offending party requested and was granted an adjournment." Judge O'Brien considered Sea Bright's motion as unopposed and granted its motion to dismiss Beyer's lawsuit.

Sunday, May 13, 2018

No charges against cop who threw an off-duty hissy fit at local bar and exposed his weapon to bar patrons.

According to a police incident report, an off-duty police officer was harassing customers in a Medford Lakes pub at about 11 p.m. on February 27, 2014 and pulled up his shirt to show bar patrons a gun in his waistband.  The off-duty officer was not charged with a crime.  According to a May 2, 2018 memo from the officer's police chief, "the matter was handled administratively."

Medford Lakes Police responded to PJ Whelihan's Pub in response to a complaint that an off-duty Eastampton Township (Burlington County) police officer was yelling at and harassing customers.  According to the incident report, Officer Michael Mulhern, who has been employed by the Eastampton PD since June 3, 2011 and who presently receives an $89,499 annual salary, confronted two of his Shawnee High School classmates with whom he played football.  When he learned that the pair had been "doing nothing" since graduating, he reportedly "became irate" and said that "he served three tours of duty in Iraq fighting for their freedom." 

After learning that Mulhern was a police officer, his former classmates asked him if he was a member of the Medford Police Department.  Mulhern reportedly replied that he was not a "pussy ass" Medford cop and pulled up his shirt to show a gun in his waistband.  According to the report, he later exposed his gun to two female patrons.  Mulhern had left the pub by the time police arrived.

Eastampton declined to say what punishment, if any, was imposed on Mulhern.  However, a Public Synopsis of Disciplinary Action (all New Jersey police departments are required to maintain a public synopsis by Attorney General guidelines), shows that Eastampton suspended one officer for 15 days in 2014.  While that officer is likely to have been Mulhern, there is no way of confirming this due to the confidentiality of Internal Affairs investigations and outcomes.

Eastampton's Internal Affairs Summary Reports from for 2014 though 2017 (another public record required by Attorney General guidelines) show that three investigations were opened during 2014 for "other criminal violations" charged against Eastampton officers.  One of those investigations resulted in "internal disciplinary action" in 2014, one was determined to be "unfounded" in 2014 and one still remained open as of the end of 2017 and is probably still open as of the date of this writing.  The reports are flawed because the "cases pending" in the last column of the 2016 report do not correspond to the "cases pending from prior years" listed in the first column of the 2017 report.  Accordingly, readers are cautioned against relying on the accuracy of these reports.

Tuesday, May 1, 2018

Judge mulls dismissing Sparta Councilman's lawsuit that claims an "organized conspiracy" by Sparta Police to set him up for DWI arrest.

On April 27, 2018, Superior Court Judge David J. Weaver heard oral argument on Sparta Township's motion to dismiss a lawsuit filed on February 9, 2018 by a sitting member of the Sparta Township Council who claimed that Township Police conspired to set him up for a drunk driving arrest.  According to the court's on-line docket, the matter is "pending" as a decision on the motion has not yet been rendered by Judge Weaver.

In his lawsuit, Sparta Councilman Jerard J. Murphy claimed that a former member of the Sparta Police Department acted as "an informant" who was planted at the St. Moritz restaurant to text Officer Richard Smith when Murphy left the establishment on February 12, 2016.  Upon receipt of the text, Smith showed it to Officer Daniel Elig who left a Panera Bread store to "position himself behind [Murphy's] vehicle" and pull him over, according to the court filing.  Murphy claimed in his suit that Elig lied in his police report by saying that he was "monitoring traffic in both directions with radar" when he detected Murphy speeding.  According to Murphy, Elig was at the Panera Bread and not monitoring traffic with radar.

Murphy claimed that he had previously voted to furlough Elig which was the motivation behind the "organized conspiracy."  Murphy claimed that the DWI charge as well as a speeding, lane change and careless driving ticket against him were ultimately dismissed by the court and that he pled guilty only to a license plate violation.  Murphy's claim that the bulk of the charges were dismissed is supported by a February 1, 2018 article in the New Jersey Herald.  Murphy is being represented in the matter by George T. Daggett of Sparta.

In a legal brief filed on April 9, 2018, the attorney representing the Sparta Police, Brent R. Pohlman, argued that Murphy's lawsuit should be dismissed because it does adequately allege violations of the New Jersey Civil Rights Act or the New Jersey Constitution. 

Monday, April 23, 2018

Truck driver sues County for racial discrimination. Same driver received $6,000 settlement in 2015.

On February 7, 2018, a truck driver employed by Salem County filed a lawsuit against the county claiming that he was called a "n****r" and "compared to primates."  He also claimed that his superiors retaliated against for being injured on the job by subjecting him "to a barrage of false or frivolous write-ups."

In his lawsuit, Grady Butts, who has worked for the county since 1997, claimed that the racial harassment started in 2013.  In 2014, after internal complaints did not abate the alleged harassment, Butts filed a verified complaint with the the New Jersey Division on Civil Rights (NJDRC).  In his NJDCR complaint, Butts claimed that co-worker Sean Eastlack referred to him and another black employee as "primates" and called him a "n****r."  Butts said that his complaints to supervisors fell on deaf ears and that he "received an unpaid suspension for insubordination and abandonment on December 3, 2014" in retaliation for his complaints.  The NJDCR matter was resolved on June 12, 2015 by a settlement in which Salem County paid Butts $6,000 and "agreed to expunge all discipline from [Butts'] personnel file."

In his recent lawsuit, Butts claimed that in 2014 he suffered two on-the-job injuries that caused his physician to order him to be placed on restricted work duties.  He claimed that in retaliation for seeking modified duties, his supervisors falsely accused him of insubordination and suspended him.  He also claimed that he was written up for frivolous reasons, forced to perform heavy lifting despite his doctor's orders and was again called a "n****r" and compared to primates.

On April 19, 2018, the county filed an answer to Butts' complaint which denied Butts' allegations and claimed, among other things, that Butts "welcomed and/or participated in the conduct of which he or she now complains."

Butts' lawyers are Gregg L. Zeff and Eva C. Zelson of Mount Laurel and the County of Salem is represented by Allan E. Richardson of Mullica Hill.  Butts' lawsuit, like all lawsuits, is comprised of allegations.  Nothing has been proven and the burden of proof is upon Butts.