Tuesday, July 18, 2017

Appellate Court: East Orange under no duty to pay $300K excessive force verdict against police officers.

In a July 16, 2017 decision, the New Jersey Superior Court, Appellate Division, affirmed an Essex County trial judge's ruling that the City of East Orange is not responsible for paying a $300,000 verdict a woman obtained against two city police officers in 2009. 

Esmay Parchment, then 62, had claimed that the two officers, William Flood and Kim Johnson, had barged into her home in February 2001 when she answered her door wrapped only in a towel. According to February 4, 2012 Star Ledger article, when Parchment wasn't quick enough to answer the officers' questions, they allegedly slapped and kicked her "even after the towel fell away and she lay naked on her kitchen floor."

The appeals court, as well as the trial court, found that the City had decided to "go bare" by electing not to purchase insurance or participate in a joint insurance fund.  Both courts found that the City's decision to defend the officers in court did not force it to indemnify those officers if a judgment was entered against them.  Also, the Star Ledger article quotes an assistant city attorney as saying that "the city has no obligation to pay the settlement because the officers were found individually liable."

Monday, July 17, 2017

Cumberland SPCA discloses invoices. Discounts not passed on to taxpayer in some cases.

In response to a court order, the Cumberland County Society for Prevention of Cruelty to Animals (CCSPCA) disclosed unredacted versions of invoices that it had received from a veterinary clinic and submitted for reimbursement to the City of Millville.  In some cases, the unredacted invoices show that the clinic had given the CCSPCA a 50% discount that the CCSPCA's redacted versions, which were submitted to the City, did not reflect.  In sum, the CCSPCA in certain cases received discounts from the clinic that it did not pass along to Millville taxpayers.

As an illustration, I have posted a five-page document here.  The first page shows that CCSPCA invoiced the City of Millville for, among other items, $48 and $101 for exam and euthanasia cases SC34786 and SC34788, respectively.  Pages 2 and 4 are redacted versions of the clinic's invoices for cases SC34786 and SC34788, respectively, that Millville provided in response to an Open Public Records Act (OPRA) request.  Millville claimed that those invoices, which disclosed only the $48 and $101 figures and not any discounts, were redacted by the CCSPCA prior to having been submitted to the City for payment.  Pages 3 and 5 are unredacted versions of Pages 2 and 4 and show that the $48 and $101 charges were actually discounted by $24 and $50.50 respectively.

There is no evidence that the CCSPCA's decision to not pass the discounts along to Millville violated any law or its contract with the City.  Also, some of the invoices disclosed in response to the court order were redacted only to remove information related to other towns for which the CCSPCA performed services.  

Readers who want to compare the unredacted invoices that the CCSPCA disclosed in response to the lawsuit and the redacted versions of those same invoices may find them here and here.  For more information on the lawsuit out of which the court order arose, click here.

Tuesday, July 11, 2017

Burlington judge affirms bridge cop's firing.

In a May 8, 2017 order, Burlington County Superior Court Judge Janet Z. Smith affirmed the Burlington County Bridge Commission's September 13, 2016 decision to terminate one of its police officers for failing to pass a random urinalysis.

According to a September 1, 2016 report written by Hearing Officer James D. Fattorini, Officer Garry S. Church, Jr. (also referred to as Gary S. Church, Jr.) was served with departmental charges on April 21, 2016 because he tested positive for amphetamines as a result of an April 12, 2016 random drug screen.  Fattorini, who also serves as Burlington County Bridge Commission's vice-chairman, found that 6,870 ng/ml of amphetamines were found in Church's urine which was well above cut off level of 500 ng/ml.  Fattorini's report is one of several exhibits attached to Church's civil complaint.

Four days after having been advised of the presence of amphetamines in his urine, Church reportedly told Bridge Commission officials that he had taken some of his father's medicine when he had a sore throat.  During an administrative hearing, Church said that he thought that his father's medicine bottle contained Amoxicillin, an antibiotic, so he took two pills a day from the bottle for five days during April 2016.  According to Fattorini's report, the medicine bottle that that Church offered as evidence during his hearing "was a bottle of Adderall prescribed to his father."  Adderall is an amphetamine. Church reportedly testified that he never read the labels on the bottle and conceded that the label also instructed him that "Federal Law prohibits the transfer of this drug to any other person than the patient for whom it was prescribed."

According to a July 8, 2016 letter from the Commission's Human Resources Director, Church submitted a hair follicle test result to the Commission in early June 2016.  Church apparently believed that the test would prove his innocence. But, the Commission "determined that the hair follicle test did not establish a defense to the violation in this matter, nor did it absolve [Church] of liability."  Yet, Fattorini's report stated: "On May 19, 2016, Officer Church submitted to a hair follicle test which resulted in a negative testing for amphetamines."

In his report, Fattorini wrote: "I [] find that based upon Officer Church's actions and inactions in blindly consuming ten (10) pills, his inaction in not responding with his explanation for a period of four days, his inaction in not getting a hair follicle test for a period of one month, and his action of taking not one, but ten pills admittedly not belonging to him in clear violation of the State statute and according to the bottle, a Violation of Federal law, all lead to the determination that termination is the appropriate disciplinary sanction."

In her May 8, 2017 Order, Judge Smith wrote that she had heard testimony from both Church and his father at an April 12, 2017 hearing.  Based on reasons she orally placed on the record during that hearing, she affirmed Church's termination.

Appellate Division affirms dismissal of insurer's lawsuit against Elizabeth woman and her lawyer for violating "confidentiality clause" in settlement agreement.

It all started with a parking ticket that was issued to Lorraine Selecky in 2009 for parking in a handicapped spot.  The ticket, which was mailed to Selecky, was issued by James Cantrell, an off-duty Roselle Park Borough (Union County) police officer with whom Selecky engaged in an argument at a Redbox video vending machine outside a 7-Eleven store in the Borough.

Selecky was convicted of the offense by a municipal court judge and the conviction was affirmed by a Union County Superior Court judge.  On January 11, 2012, the Appellate Division reversed the conviction and ordered a new trial in a different municipal court.  After the new court acquitted Selecky of the parking offense, her lawyer, Joel I. Rachmiel of Springfield, filed a civil, malicious prosecution action against Cantrell and the Roselle Park Police Department.  That lawsuit resulted in a $15,000 settlement being paid to Selecky by the New Jersey Intergovernmental Insurance Fund (NJIIF)--the Borough's insurer.  But, the settlement imposed a confidentiality clause that forbade Selecky and Rachmiel from disclosing the terms or even the existence of the settlement agreement.

On May 20, 2014, I learned of the settlement through an Open Public Record Act (OPRA) request and published it on my NJ Civil Settlements blog.  That blog article drew the interest of Star Ledger reporter Tom Haydon who wrote a June 1, 2014 article entitled "Elizabeth woman wins five-year battle over parking ticket."

Both Selecky and Rachmiel were interviewed by Haydon and the quotes attributed to them in Haydon's article referred to the underlying parking ticket rather than the settlement agreement.  Still, the NJIIF sued both Selecky and Rachmiel and argued that by speaking with Haydon, they violated the settlement agreement's confidentiality clause.

A Union County Superior Court judge granted Selecky's and Rachmiel's motion for summary judgment after finding that their comments "did not discuss" the malicious prosecution action and that the comments had "nothing to do with" the Borough or the police officer.  The judge found that the only statement that violated the confidentiality clause was made by Borough Attorney Richard Huxford, who was also quoted in the article.  The NJIIF appealed the trial judge's grant of Selecky's and Rachmiel's summary judgment motion and the Appellate Division, in a July 11, 2017 opinion, affirmed that ruling.

Saturday, July 1, 2017

Mullica (again) seeks to pass illegal "Peace and Good Order" ordinance.

On July 11, 2017, the Mullica Township (Atlantic County) Committee will consider enacting Ordinance No. 6-2017 which seeks to establish a "Peace and Good Order" code in the Township.  Among other things, the ordinance will prohibit "participat[ing] in any practice having a tendency to annoy, disturb or frighten any person or animal in any public place."  Also prohibited will be "[a]ll other riotous, indecent or disorderly conduct, breach of the peace and vagrancy not hereinabove specifically mentioned."

These prohibitions are almost certainly unconstitutional because they are overly broad and vague.  The ability to conduct oneself in public without being arrested cannot depend on whether ones conduct might annoy or disturb somebody else.  Otherwise, everyone would be required to conform their conduct to the preferences of the most sensitive person in town.  Penal codes, especially those governing speech and assembly, need to be narrowly tailored to prohibit specific conduct while preserving citizens' rights to lawfully express themselves.

However, according to Committeeman Christopher Silva, the Township's main intention is not to directly enforce the ordinance.  Rather, as Silva stated at the May 23, 2017 Committee meeting, "the focus of the Ordinance is a catch-all to plead out a lesser statute in municipal court."  So, Mullica probably realizes that it can't enforce the ordinance but still wants to have it on the books so that municipal court defendants can plead down their statutory offenses to violations of the ordinance. 

For example, a person charged with simple assault, a violation of the New Jersey Criminal Code, could plea-bargain the charge down to an ordinance violation.  This would allow the defendant to avoid having an assault conviction on his or her record and from having to pay mandatory assessments to the Violent Crimes Compensation Board and Safe Neighborhood Services Fund.

The apparent goal is to entice defendants to not demand costly and time-consuming trials but to instead plea bargain their charges and line up at the Court Administrator's payment window with checkbooks in hand.

Beyond raising troubling policy concerns (e.g. Isn't saddling a violent assailant with an assault conviction on his or her criminal record a good thing?  Isn't it wrong for Mullica to let defendants evade paying into the Violent Crimes and Safe Neighborhood Funds?), Mullica's proposal also runs afoul of a 1998 Attorney General Directive that prohibits municipal court prosecutors from pleading down statutory offenses to ordinance violations when the ordinance is pre-empted by state law.  Since everything prohibited by the ordinance is either unconstitutional or already prohibited by Chapter 33 in Title 2C of the New Jersey Criminal Code, using the ordinance in the manner that Silva suggests would violate the 1998 Directive.

Over the years, I, as chairman of the New Jersey Libertarian Party's Preempted Ordinance Repeal Project, have notified six county prosecutors of violations of Directive and in each case the prosecutor has agreed with me and told the town to stop the improper plea bargains.  Here is the proof:

Bergen (my letter and the reply)
Burlington (my letter and the reply)
Cumberland (my letter and the reply)
Gloucester (my letter and the reply)
Morris (my letter and the reply)
Somerset (my letter and the reply)

Yet, engaging in these prohibited plea bargains is exactly what Silva and the other members of Township Committee have in mind. 

Mullica attempted to pass a similar version of this ordinance in late 2014.  After being roundly criticized by the public and press, the Committee decided to abandon the effort.  See "'Peace and Good Order' / Misguided in Mullica." Press of Atlantic City, December 16, 2014.  The Committee should take a similar tack this time.