Saturday, November 28, 2015

Open letter to Director of the Office of Attorney Ethics.

November 29, 2015

Charles Centinaro, Director
Office of Attorney Ethics
via e-mail only to Charles.Centinaro@judiciary.state.nj.us

Dear Director Centinaro:

I want to share with you (and the public) my experience being a complainant in an attorney ethics grievance bearing docket numbers IIA-2015-0010E and IIA-2015-0011E.  I have redacted the attorneys' names from all of the documents at the links below and have published this letter to you on my Random notes on NJ government blog.

I hope that you will agree with me that my experience would lead many in the general public to believe that New Jersey's attorney disciplinary system is less than user-friendly.

1. I filed my ethics grievance on February 5, 2013 against two attorneys from a very well known and prominent law firm in Essex County.

2. On March 1, 2013, Deputy Statewide Coordinator William B. Ziff transferred my grievance to the District VI Ethics Committee because "a conflict of interest would exist were this matter to be considered by the VA Ethics Committee."

3. On February 4, 2014, after not having received any further correspondence, I wrote to Jack Jay Wind, Secretary of the District VI Ethics Committee, to follow up.

4. By August 9, 2015, I still had not heard from Mr. Wind.  I reached out to the Chair and Vice Chair of the District VI Ethics Committee in hopes that they would be more responsive than Mr. Wind.

5. The next day, Mr. Wind faxed me his August 10, 2015 letter.  In it, he acknowledged that even though Mr. Ziff had provided him with my grievance with his March 1, 2013 letter, he had "no record of having received the original documentation" and suggested that "obviously somehow it was lost in transmission."

6. By letter of August 12, 2015, Mr. Wind determined that the District VI committee was conflicted because a member of the Committee is employed by the same law firm as the two attorney against whom my grievance was filed.  So, the matter went back to Mr. Ziff.

7. On August 19, 2015, Mr. Ziff reassigned the matter to the District IIA Ethics Committee.

8. In a November 13, 2015 letter,  Nina C. Remson, Secretary of the District IIA Ethics Committee informed me that my grievance was being "administratively dismissed" in accordance with R.1:20-3(f) because of "pending litigation."

Notably, Ms. Remson's letter does not identify the litigation that is the basis for her dismissal.  Being informed of the litigation's caption and docket number would allow me to investigate and perhaps challenge her dismissal decision.  It would also allow me to determine when the litigation concludes so that I know when to refile my grievance.  (You will see that I faxed both you and Ms. Remson a Records Request today for the complaint or other record that will identify the litigation supporting the dismissal decision.)
Question 1: Would you be willing to issue a directive requiring all District Ethics Committee secretaries to inform the grievant of the caption and docket number of any litigation relied upon when dismissing a grievance under R.1:20-3(f)?
Also notable is Ms. Remson's mischaracterization of R.1:20-3(f).  In her letter, she states:
Please be informed that the Supreme Court of New Jersey has established a policy of not considering any grievance received from a litigant in a pending civil matter, either about the conduct of a trial attorney therein or about the underlying conduct of any attorney who is a party to the litigation, until the case is finally concluded, except in rare situations that involve clearly provable ethical violations or where the facts present a substantial threat of imminent harm to the public. 
Yet, R.1:20-3(b), in relevant part, states:
If a grievance alleges facts that, if true, would constitute unethical conduct and if those facts are substantially similar to the material allegations of pending civil or criminal litigation, the grievance shall be docketed and investigated if. in the opinion of the secretary or Director, the facts alleged clearly demonstrate provable ethical violations or if the facts alleged present a substantial threat of imminent harm to the public. 
As you can see, the Rule allows for dismissal only if the grievance's alleged facts "are substantially similar to the material allegations of pending civil or criminal litigation."  Ms. Remson appears be applying a much looser standard and dismisses grievances when the respondent attorney is a party to litigation that may be only tangentially related to facts alleged in the grievance.
Question 2: Would you be willing to issue a directive requiring all District Ethics Committee secretaries to apply the more rigorous "substantially similar to the material allegations" standard before declining or dismissing a grievance in accordance with R.1:20-3(f)?
Thank you for your attention to this matter.  I look forward to hearing from you.

Very truly yours,

John Paff

Tuesday, November 24, 2015

Hunterdon municipal judge jails and sets bail for divorce litigant in violation of statute and court rules.

Edward Romanowski, a pro se litigant in a very contentious Hunterdon County matrimonial action, has complained of mistreatment by the Holland Township Police and the Delaware Valley Municipal Court--a joint municipal court that covers Holland Township.  I've looked into his complaints and believe that they have merit.

At the center of Romanowski's complaint is his April 10, 2015 arrest while he was at the Hunterdon County Courthouse preparing to enter a Family Division courtroom for a hearing in his matrimonial case.  The arrest was effected by the Holland Township Police and arose out of Complaint-Warrant No. 1020-W-2015-000027 that charged Romanowski with harassment and making a false police report--both of which are disorderly person offenses.

There are three troubling things about the Complaint-Warrant.

1. While Romanowski's alleged offenses occurred on December 22, 2014, the Complaint-Warrant form wasn't drafted until April 8, 2015--about three and a half months after the offense--and only two days prior to Romanowski's arrest at the Courthouse.  Also, it was originally written up as a summons and was later replaced with a warrant.  If Romanowski presented a public danger sufficient to justify an arrest warrant, it seems as though the police shouldn't have waited over three months before securing the warrant.

2. As stated on the warrant, Municipal Court Judge Joseph S. Novak set Romanowski's bail at "$4,000/Full" meaning that he would need to deposit $4,000 in cash to secure his release from jail. According to the Bail Recognizance, Romanowski's surety wasn't able to raise that much cash until April 11, 2015 causing Romanowski to be held in jail overnight.  This appears to be wrong for two reasons:

a. New Jersey law, specifically N.J.S.A. 2C:6-1, limits the bail for disorderly persons offenses (Romanowski was charged with two disorderly persons offenses) to $2,500 "unless the court finds that the person presents a serious threat to the physical safety of potential evidence or of persons involved in circumstances surrounding the alleged offense or unless the court finds bail of that amount will not reasonably assure the appearance of the defendant as required.  The court may for good cause shown impose a higher  bail; the court shall specifically place on the record its reasons for imposing bail in an amount exceeding $2,500.00."

Yet, when I sent a written request to Delaware Valley Municipal Court Administrator Barbara Lingsch for Judge Novak's specific findings as to why the bail was more than $2,500, she would not respond to my request despite me calling and faxing that office for a response.  When I appealed Lingsch's refusal to respond to Vicinage 13 Trial Court Administrator Adriana M. Calderon, Calderon informed me that "the court does not have written or oral records as to the reason for the bail amount set."  Accordingly, Judge Novak violated the law by requiring Romanowski to deposit $4,000 bail without setting forth any reasons why the statutory $2,500 bail limit wasn't sufficient to protect the public's interest.

b. Court rule R.7:4-3(g) permits courts to allow a defendant to deposit ten percent of the bail instead of the full cash amount.  The ability to pay ten percent instead of the full cash bail is the default condition and "is presumed to be available to all defendants." State v. Casavina, 163 N.J.Super. 27, 31 (App.Div.1978). Further, "the burden of proving grounds for exclusion by a preponderance of the evidence rests with the State." Ibid. In this case, Judge Novak made no findings, and apparently received no argument from the prosecution, as to why Romanowski should not have been allowed to deposit 10% of the cash bail amount.

Absent specific findings, Judge Novak should have set bail at $2,500 and allowed Romanowski to be released from jail by depositing $250, i.e. ten percent, rather than the $4,000 he was required to deposit.

3.  Beyond the bail amount, there is a question as to the appropriateness of issuing a warrant, rather than a summons, against Romanowski

According to the warrant, Judge Novak considered Holland Township Patrolman Michael D. Bent's application for the warrant telephonically.  Telephone conferences are governed by R.7:2-1(e) which states:
R.7:2-1(e) Arrest Warrant by Electronic Communication. A judge may issue an arrest warrant upon sworn oral testimony of a law enforcement applicant who is not physically present. Such sworn oral testimony may be communicated by the applicant to the judge by telephone, radio, or other means of electronic communication. 
The judge shall administer the oath to the applicant. Subsequent to taking the oath, the applicant must identify himself or herself and read verbatim the Complaint-Warrant (CDR-2) and any supplemental affidavit that establishes probable cause for the issuance of an arrest warrant. If the facts necessary to establish probable cause are contained entirely on the Complaint-Warrant (CDR-2) and/or supplemental affidavit, the judge need not make a contemporaneous written or electronic recordation of the facts in support of probable cause. If the law enforcement applicant provides additional sworn oral testimony in support of probable cause, the judge shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine, if such are available; otherwise, adequate longhand notes summarizing the contents of the law enforcement applicant's testimony shall be made by the judge. This sworn testimony shall be deemed to be an affidavit or a supplemental affidavit for the purposes of issuance of an arrest warrant.
An arrest warrant may issue if the judge is satisfied that probable cause exists for issuing the warrant. Upon approval, the judge shall memorialize the date, time, defendant's name, complaint number, the basis for the probable cause determination, and any other specific terms of the authorization. That memorialization shall be either by means of a tape-recording device, stenographic machine, or by adequate longhand notes. Thereafter, the judge shall direct the applicant to print his or her name, the date and time of the warrant, followed by the phrase "By Officer _________________, per telephonic authorization by________________" on the Complaint-Warrant (CDR-2) form. Within 48 hours, the applicant shall deliver to the judge either in person or via facsimile transmission the signed Complaint-Warrant (CDR-2) and supporting affidavit. The judge shall verify the accuracy of these documents by affixing his or her signature to the Complaint-Warrant (CDR-2). 
Procedures authorizing issuance of restraining orders pursuant to N.J.S.A. 2C:35-5.7 (“Drug Offender Restraining Order Act of 1999”) and N.J.S.A. 2C:14-12 (“Nicole’s Law”) by electronic communications are governed by R. 7:4-1(c).
In accordance with this rule, if Patrolman Bent testified as to the need why a warrant--rather than a summons--was needed in Romanowski's case, Judge Novak was required to have made an oral recording or written notes "summarizing the contents of [Bent's] testimony."  Further he should have memorialized why a warrant was justified in an oral recording or written notes.  Additionally, Bent should have provided Judge Novak with another copy of the warrant and any supporting affidavit for the judge to sign to "verify the accuracy of these documents."  According to the response I received from Trial Court Administrator Calderon, however, none of these documents or audio recordings exist.

Monday, November 16, 2015

Terri Gross gets probation, forfeits public office.

In 2012, Terri Gross, a police department clerk in Salem, New Jersey, and Isaac A. Young, the head of the Salem City Housing Authority, were charged with publicly releasing confidential DYFS records in an alleged attempt to derail the mayoral campaign of Charles Washington.

Although the newspapers covered the matter well, I never did see anything written about the disposition of the charges against Gross.

Salem's response to my Open Public Records Act (OPRA) request reveals that on February 6, 2015, Superior Court Judge Timothy G. Farrell sentenced Gross to one year probation and required her to forfeit her ability to hold public office.  She was also required to pay  $280 in various assessments and to submit a DNA sample.