Thursday, March 24, 2016

Jury awards Elizabeth school custodian a $25,000 verdict. Judge awards his attorneys $178,522.80 in costs and fees.

The headline seems outrageous and suggests an unjust result.  Why would the lawyers make more than seven times the amount the plaintiff received?

In his lawsuit, Jaime Davila, a former school custodian employed by the Elizabeth Board of Education, sued the Board, Superintendent Pablo Munoz and Human Resources Director Karen A. Murray claiming that his discharge violated both New Jersey's Civil Rights Act and Law Against Discrimination.

Both the Law Against Discrimination and Civil Rights statutes contain "fee-shifting provisions" that allow a court to make defendants, if they lose the case, pay the plaintiffs' attorney fees.  This is a departure from the "American Rule" which calls for each party to pay its own legal costs.

The purpose of fee-shifting is to give individuals of modest means a fighting chance when suing government agencies or large corporations.  Without fee-shifting, only the wealthy could afford to bring a lawsuit because their opponents have virtually inexhaustible financial resources.  Fee-shifting allows plaintiffs whose rights have been violated to attract competent legal counsel even if the amount of damages is relatively small.

Davila, who made $55,000 a year as a custodian, received a letter on March 17, 2011 telling him that he would be fired on May 30, 2011.  Davila claimed that the Board illegally refused to provide him with a statutorily required "written statement of reasons" for his firing.

In his lawsuit, Davila claimed that his firing was retaliatory and sought to punish him for having previously filed workers compensation claims.  He also claimed that Board officials retaliated against him for refusing to volunteering for Board candidates' political campaigns.  Davila said that he was told that volunteering "would be a good career move."  He claimed that by coercing him to support political campaigns, the Board violated his free speech rights secured under both the state and federal constitutions.

On November 30, 2015, a jury found in favor of Davila and awarded him $25,000.  Davila's lawyers, relying on the fee-shifting provisions, asked Judge Mark P. Ciarrocca to make the school board pay for Davila's attorneys fee and costs of suit.

In a February 29, 2016 order, accompanied by a 35-page written decision, Judge Ciarrocca ordered the Board to pay Davila's four attorneys, Matthew T. Rinaldo, Mildred V. Spiller, David H. Kaplan and Tiana C. Gimbrone fees in the amounts of $29,112.50, $24,810, $59,440 and $8,125, respectively, for a total of $121,478.50.

Judge Ciarrocca then ruled that each lawyer's fee would be "enhanced" by 45% "to reflect the risk of nonpayment" in case the plaintiff doesn't win.  The enhancement of $54,669.38 together with costs of $2,435.93 made the total award $178,522.80.

Monday, March 21, 2016

Bridgewater's ordinance amendment may have mooted property owner's zoning enforcement lawsuit.

On September 3, 2015, I wrote an article about a Bridgewater Township (Somerset County) man's lawsuit that sought to compel the Township Zoning Officer to cite his neighbor for not clearing his property of "dead and dying trees, stumps, roots and obnoxious growths."

On October 27, 2015, Judge William D'Annunzio granted Bridgewater Township' and Zoning Office Marie L. Broughman's summary judgment motion and dismissed Coulter's complaint. The order along with the parties' summary judgment briefs are on-line here.

Unfortunately, Judge D'Annunzio didn't issue a written decision and instead stated his findings and legal conclusions orally.  But, it appears that his decision was at least partially based on the Township's post-lawsuit municipal code amendment that expressly permits property owners to leave "brush, dead and dying trees, stumps, roots or other natural debris" on their properties as long as it resulted "from a hurricane, tornado or other natural disasters or Acts of God."


Friday, March 4, 2016

Brooklawn school board officials accused of wrongful firing, defamation and Sunshine violations.


Update: Settlement reported in subsequent article here.

In February 2016, the Brooklawn (Camden County) Board of Education was voluntarily dismissed from a school maintenance man's 2015 lawsuit that accused the Board's former president and the school district's superintendent of orchestrating a plan to fire him without cause.  The lawsuit also alleged that the Board violated the Open Public Meetings Act and that the former Board president fabricated a story about the custodian being a thief and caused that story to be circulated around the school system by the maintenance man's daughter's classmate.

In his lawsuit, Ryan Kincaid said that on June 12, 2014 Superintendent Dr. John Kellmayer "illegally searched [Kincaid's] backpack" without probable cause and without Kincaid being present or having granted his permission.  He claimed that later that day, he and his union representative were called to Kellmayer's office where Kincaid consented a Kellmayer's request to search the backpack.  According to Kincaid, the search came up empty.

Kincaid asserts that Kellmayer, along with former Board President Bruce Darrow, "orchestrated a plan to wrongfully terminate [him] for reasons that were willful, wanton and in bad faith."  According to Kincaid, Kellmayer and Darrow realized that they "could not use theft as a reason to terminate" him so "they devised the scheme of [his] alleged excessive use of the Internet as the reason for the termination."

When he was served with a Rice Notice, Kincaid said that he opted to have his disciplinary hearing held in public rather than in closed or executive session.  He claimed that despite his election, he was only allowed to make a statement in public after which the Board went into closed session.

Kincaid also accused Darrow of being the source of a false rumor that Kincaid was fired for stealing laptops and notebook computers.  He said that on December 19, 2014, his daughter was approached by two girls on the playground and informed that a another girl had been telling all the other children at her school that Kincaid was a thief.  A subsequent investigation allegedly showed that "the source of the false statement was attributed to the Board's president, Bruce Darrow."

Former Jersey City Municipal Judge faces ethics charges.


Update May 21, 2016: I have obtained a copy of Babcock's answer to the complaint.

In a January 22, 2016 complaint, the Office of Attorney Ethics alleged that a former Jersey City Municipal Court judge, in his capacity as a private lawyer, violated the Rules of Professional Conduct for disobeying a Superior Court Judge's orders and for failing to cooperate with ethics investigators.

According to the complaint, Francis C. Babcock, Jr., who served as a part-time Jersey City judge between 2007 and 2015, began his service as the administrator of a contested estate matter that was being litigated before Superior Court Judge Katherine R. Dupuis. Babcock allegedly failed to account for the estate's assets as required by a March 27, 2014 consent order.  On July 17, 2014, after noting his failure to account, Judge Dupuis ordered him to comply but Babcock still drug his feet.  This caused Dupuis to issue bench warrant for Babcock's arrest and remove his as the estate's administrator.

After Dupuis reported the matter to the Office of Attorney Ethics, Babcock reportedly has also blown off ethics investigators' requests for information and cooperation.  There is no evidence that any of the estate's money or property has been pilfered. Rather, it appears that Babcock has failed to explain why he stopped working on the estate or why he has failed to comply with Judge Dupuis' orders.