Monday, June 17, 2013

Letter to Manville - seeking repeal of invalid ordinance

06/27/13 Update: The Manville Council will discuss my repeal request at its July 15, 2013 meeting.  Click here.
June 17, 2013

Hon. Angelo Corradino, Mayor and members of the
Manville Borough Council
325 North Main Street
Manville, NJ 08835 (via e-mail only to ggarwacke@manvillenj.org)

RE: Ordinance #396

Dear Mayor Corradino and Council members:

The object of this letter is to get the Borough Council to finally repeal the captioned ordinance, on-line here, which seeks to prohibit various types of "vice, immorality, drunkenness and disorderly conduct."  I have checked the "New Ordinances" page on your web site and it appears that Ord #396 has yet to be repealed.

On-line here is former Borough Attorney C. Douglas Reina's June 16, 2003 letter in which he opines that "there is no question but that [Ord. #396] has been preempted by the provisions of Title 2C of the New Jersey Statutes."  In the same letter, Mr. Reina promises that Ord. #396 will not be included within the upcoming ordinance codification.  It appears now--10 years later--that neither the repeal nor the codification ever occurred.

On-line here is an August 5, 2011 letter from the Somerset County Prosecutor's Office warning Manville Municipal Prosecutor Matthew C. Dorsi that he might face an "ethical complaint and/or a supercession by this office" if he was again caught improperly downgrading statutory charges to Ord. #396 violations. 

Given that a) the Borough's own attorney has deemed Ord. #396 invalid and b) that the County Prosecutor won't let your local prosecutor downgrade statutory charges to it, do you agree with me that it's high time that Manville repealed this relic from the books?

I ask that you please discuss this during the June 24, 2013 Council meeting.

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Preempted Ordinance Repeal Project
P.O. Box 5424
Somerset, NJ  08875-5424
Voice: 732-873-1251


Pot defendant gets his watch back

For readers who aren't familiar with asset forfeiture matters, I have uploaded a forfeiture complaint and its settlement from the case of State v. One Breitling Watch/Four Thousand Ninety Five Dollars ($4,095.00), Docket No. MID-L-6295-09 here.

According to the complaint, two men were arrested in Woodbridge on May 12, 2009 for possession of fifty-two pounds of marijuana.  When the men were searched, police seized $4,095 and a Breitling watch found in their possession.  On April 18, 2013, the parties settled the forfeiture action with the prosecutor keeping the cash but returning the watch to its owner in "as in condition."

Readers will note that the complaint is styled as a "civil action" and that the cash and the watch, as opposed to the men themselves, are named as defendants.  Incredibly, New Jersey law (as well as federal law and the laws in most states) allow the government to "resort to a legal fiction" and sue the property itself "as though it were conscious instead of inanimate and insentient.” (See State of New Jersey v. One 1990 Honda Accord, 302 N.J. Super. 225, 229 (App. Div. 1997) affirmed 154 N.J. 373 (1998).

Resorting to this legal fiction allows the state many advantages.  Among them are a) the state only needs to satisfy a civil rather than a criminal burden of proof (preponderance of the evidence v. beyond a reasonable doubt) and b) "the fact that a prosecution involving seized property terminates without a conviction does not preclude forfeiture proceedings against the property."  N.J.S.A. 2C:64-4(b).  Yes, even if you're found not guilty of all crimes, the state still has a shot at forfeiting your stuff.  The state theorizes that a not guilty finding doesn't mean that you didn't do it, only that the prosecution wasn't able to prove a crime beyond a reasonable doubt. An acquittal, of course, should not prevent the state from seeking title to your property under the lower, civil burden of proof.  Got that?

To sweeten the deal even more, the police--in this case the Woodbridge Police--get a cut of the forfeited cash and property.  N.J.S.A. 2C:64-6 authorizes county prosecutors to "divide the forfeited property, any proceeds resulting from the forfeiture or any money seized" with local police departments "in proportion to the [local police department's] contribution to the surveillance, investigation, arrest or prosecution resulting in the forfeiture."  So, in essence, the police have a vested interest in pursuing drug, gambling and other cases where lots of cash is likely to be found.  Not much profit, unfortunately, in solving burglaries, rapes and other crimes where there is an identifiable victim.