Recent Appeals

Shouldn’t You Be Able To Actually Use The Records You Get From The Government?

I argued an appeal this week in one of favorite OPRA cases as of late – Banda v. Bloomfield.  Ms. Banda asked for a tape of meeting.  She was given a tape recorded at ultra-low speed.  When it was played on “normal” consumer audio equipment – stereo, tape player in her car and a boom box -  you could not understand it.  Bloomfield offered to convert it to normal speed for $85 + another tape charge.  And to have it transcribed required a $1000 deposit.  We filed suit under OPRA, asserting that government should provide records in a format consumers would expect to encounter so the records COULD ACTUALLY BE USED.  Bloomfield defended its actions because it wanted to “save on tapes” by fitting more on a tape.  A tape costs less than a $1 AND only needs to legally be kept for 90 days by the way, so it is not like storing them was a big deal.  The trial judge disagreed with us, finding that providing the tapes in the format they were recorded was enough.  The appellate panel of Judges Paulette Sapp Peterson and Mitchel Ostrer seemed poised to reverse.   I expect this to be a relatively quick opinion to issue because the judges  honed right in on the issue as if they were clarifying writing points, not discerning what the issues were.  There was a lot here Bloomfield could have done to make access far easier – new digital equipment is only a few hundred dollars, 90 minute tapes are the same size as the 60 minute tapes used, the record function could have been set to normal speed or the playback machine could have been kept in the library.  For these and other reasons, I predict Bloomfield’s “saving on tapes” rationale will not stand.

Firm Appeals Constantine v. Bass River To NJ Supreme Court

We have recently appealed Constantine v. Bass River to the Supreme Court.  That case involves the practice of 217 municipalities charging excessive fees for municipal court discovery.  (“Discovery” is the evidence the State has to prove you did something illegal.)  These fees range from $20 to $50, which results in people be charged $7 or more per page, a far greater sum than other public records.  Even worse, you have the constitutional right to know the evidence the State has against you – and to exercise that right, you have to pay these excessive fees.  The trial and appellate courts both acknowledged the fees were an injustice, but both held that the the lower court’s lacked authority to address these problems and called upon the Supreme Court to correct the practice.  The Court should hear the case and end this illegal revenue grab by New Jersey municipalities.

Mr. Constantine was charged with a 5 point driving violation when he insisted he was not speeding at all.  He faced a huge fine plus the loss of his company car privileges.  He asked Bass River for the proof that the radar gun used to allegedly measure his speed was accurate.  Bass River charged him $20 for the 3 pages of radar gun calibrations.   As it turns out, the radar unit was not properly calibrated and the State had no evidence to back up its claims.  Constantine then filed a class action, seeking that the towns return the excessive fees being collected.

Firm Appeals Stone v. Kahr to the NJ Supreme Court

We have recently taken over a case, Stone v. Kahr.   It purports to be a Consumer Fraud case and we practice consumer law, so that would seem logical.  However, we are representing the defendant, accused of committing Consumer Fraud.  As we understand the law, Consumer Fraud only applies to ‘consumers’ as one would commonly conceive of them – those who obtain the product for their own use.  Here , the plaintiff was a real estate speculator.  The defendant performed renovations on the home so the speculator could re-sell it.  We have asked the Supreme Court to hear the case, contending that the meaning of “consumer” does not include someone who buys a product or service for purposes of re-selling it.  The Court has never addressed this issue and there is a very good chance they will agree to hear this case.  (Unlike appeals to the appellate division, the Supreme Court generally has the discretion to decline cases.)

The second issue in the case is a disappointing reflection on the profession.  The decision against the Defendant relies upon the application of a part of the New Jersey Consumer Fraud Act that took effect on December 31, 2005.  Our client did the work in 2003 and 2004, prior to the law taking effect.  Neither the trial nor appellate attorneys ever pointed this out (we got involved after the appeal, first seeking to have the appellate division reconsider its ruling and then to appeal to the Supreme Court).  Normally, you cannot bring up an issue for the first time on appeal; however, there is a little known judicial safety valve called the “plain error doctrine”.  We have asked the Court to consider whether it is “plain error” to apply a law that did not exist when the work was performed.

NJ Supreme Court Denies Our Adversary’s Request For Hearing

In Zagami, LLC, d/b/a The Landmark Americana Tape and Grill, d/b/a Landmark Liquors v. Cottrell, this firm prevailed in the appellate division (discussed below about 5 posts).  Our client, Ms. Cottrell, was being sued for exercising her free speech rights when she confronted Glassboro city council about the renewal of the Landmark’s liquor license.  On her behalf, we contended the litigation privilege protected her ability to address city council.  The appellate panel of Judges Marie Lihotz, Anthony Parrillo and Carmen Messano agreed and extended the litigation privilege to a liquor license hearing.  Essentially, citizens may speak freely in municipal hearings much like they can in court.  Our adversary had appealed to the New Jersey Supreme Court under the auspices of  “a business’ right to reputation needed to be protected, too”.  The New Jersey Supreme Court refused to hear the case by way of an Order dated February 4, 2009.  Congratulations, New Jersey citizens.  You continue to have civil rights, freedom of speech and the freedom to petition government.

Firm Appeals Felicioni vs. The Administrative Office of The Courts to the New Jersey Supreme Court

A few posts below, our appellate argument in Felicioni vs. The AOC is discussed.  On behalf of crime victims waiting years for their restitution payments, we had sued the New Jersey Administrative Office of the Courts (AOC),seeking to reform the payment policy.  The AOC policy is to collect the restitution from the criminal and pay all sums collected to just one victim until that victim was paid in full.  Under such a distribution, victims, like our client, sometime waited years for payments.  Sometimes the payments never come at all if the criminal loses his job, goes to jail for another crime or dies.  Even worse, the way the restitution laws work, any civil judgment a victim would get could not be collected.  Our client sought have the restitution paid out to victims on a pro rata basis, much like how creditors are paid back in a bankruptcy.  That way, everyone equally bears the risk of nonpayment and suffers the inconveniences of the delayed payments.  Our client, and others, wanted to get $127 per month for 10 years, starting right now, rather than wait 7 years to start collecting $745 per month for 2 years.  No one knows if they are even going to be alive in 7 years, much less if the criminal will.  And what happens when the bank owed $80,000 is collecting $100 per month in front of you – you have to wait 66 years for payments to start ?!!!

The appeals court did not see this as a problem.  In Felicioni vs. The AOC the court ruled that the current payment system was acceptable.  Disappointingly, the court did not address the Victim’s Rights Amendment to the New Jersey Constitution with any depth and made only passing references about the Crime Victim’s Bill of Rights.  The panel seemed troubled with the idea that the we sought to expand these rights beyond applying in the context of criminal procedure.   On the positive side, the panel completely endorsed our approach to the New Jersey Civil Rights Act, ironing out an issue that has plagued such cases from the beginning.  That point centered on whether both a denial of right and an interference with a right require coercion by the government.  The answer was a resounding “no”.  Coercion is required only when a right interfered with, not when it is denied completely (often when you are denied a right, you are no even told why, much less “coerced”).

We have appealed to the New Jersey Supreme Court, asking them to review the fairness of the payment scheme.  This is our second case now pending there – as noted below, our win in Zagami v. Cotrell has been appealed by our adversary to the Supreme Court.

What makes a debt “valid”?

Today we argued the appeal of D’Allesandro v. Vision Financial in the New Jersey state court appellate division before a panel consisting of Judges Winkelstein and Fuentes.  The case is a Fair Debt Collection Practices Act (FDCPA) class action involving Vision sending collection letters in which it claimed the debt (allegedly owed) was a “valid debt”.  There was only one problem – no one had actually determined the debt to be “valid” – no judge, no jury, no arbitrator had ever said the money was due.  The letter was part of series of collection letter of increasing forcefulness and intensity.  An earlier letter indicated Vision was acting pursuant to state and federal law.  The very next letter claimed the debt was “valid” – as if a court had determined it was owed.  D’Allesandro claimed the reference to the debt being “valid” was misleading as to the status or character of the debt.  Vision countered by claiming D’Allesandro’s failure to refute the debt rendered it valid.

We do not believe Vision’s defense has any merit, so much as the letter does not explain that only it is considering the debt valid and the FDCPA otherwise prohibits a failure to dispute the debt as an admission of liability.  However, the state appellate courts rarely run across FDCPA cases in New Jersey and it remains to be seen if it will enforce the pro-consumer stance taken by the federal courts in the 3rd Circuit.  This panel has proven to be difficult to read as the Judges are both fairly reserved and come to argument with a specific few questions to be addressed.  I believe I was asked 3 questions and Vision’s counsel was asked one.

“Fair” v. “Most Fair”

Today we argued the appeal of our civil rights class action dealing with whether it is “fair” for the New Jersey Administrative Office of the Courts to pay restitution over to crime victims one-at-a-time or should it be distributed pro rata to all victims.  As usual, the panel of Lihotz, Parrillo and Messano was extremely well-prepped on the issues.  This was the firm’s 3rd appearance before the same appellate panel in 60 days (Our client has already prevailed in Zagami v. Cottrell, ___  N.J. Super. ___ (App.Div. 2008), (957 A.2d 691) and are awaiting the ruling in Constantine v. Bass River.) The discussion was quite lively.

One issue that arose was whether or not the Constitution requires that the process be “fair” or the “most fair”.  My response was that I do not expect there to be “grades” of fairness.  Something is either fair or unfair, just like a switch is “on” or “off” .  Otherwise the court would then have to define how fairness is graduated, giving rise to Constitutional conundrums that need not exist.

What do you think – is “fair” an all or nothing concept or are there grades of fairness?

Should the government earn a profit on evidence?

The firm is currently awaiting decision in an appeal dealing with your right to access evidence the government will use against you in a prosecution.  Everyone who paid attention in 7th grade civics or who watched “My Cousin Vinny” knows that if the government chooses to prosecute you, it must provide you all evidence it possesses that would tend to prove your innocence or guilt.  This is a sound protection of your right to “due process”, as declared by the United States Supreme Court in Brady v. Maryland.

However in New Jersey municipal court, where speeding tickets and other minor crimes are prosecuted, there is a distinct twist on fulfilling this Constitutional right.  You see, 217 towns were charging a very handsome sum for you to find out how the State was going to prove the case.  Say for instance you received a speeding ticket.  Venturing further, let’s dare say you disputed you were speeding and wanted to see the evidence.  That means you would be entitled to the certification of the radar gun, the certification of the tuning fork used to calibrate the radar gun and the officer’s training certificate showing that he was trained to properly use the equipment.  For those three pages, towns were charging $25, $50 and even $100!!!

The firm brought a class action to stop the practice, contending this evidence should be free (under Brady v. Maryland the government has to give it to you whether you actually asked for it or not) or, at worst, should cost no more than any other government record.  Constantine v. Bass River, et. als.

If you are innocent until proven guilty, isn’t this a fine being imposed on the innocent?

Why isn’t restitution paid out to crime victims on a pro rata basis?

On November 13, an appeals court must determine the proper method to distribute restitution to crime victims.

Currently, restitution is paid to crime victims one-at-a-time, even when there are many victims.  When a criminal pays his $300 per month, all of that money goes to one person until they are paid in full.  Then all of the money goes to the second person, etc..  This would be a great system, except for a couple of problems – first, no less an authority than the New Jersey Constitution mandates that crime victims be treated with fairness and restitution be made whenever possible and second, if you happen to be 9th in line to be paid, you stand a far lesser chance of getting any money if the criminal loses his job, goes back to jail or passes away.

The firm brought a class action to correct this practice, seeking to block the one-at-a-time serial payment policy and force the implementation of a pro rata distribution system where all victims would be paid some money every month.  The simple rationale is that all victims would then bear the risk of non-payment equally.  Surprisingly (this is sarcasm), the government offers no rationale for the current policy other than “this-is-our-policy”.  Felicioni v. Administrative Office of the Courts

Should common sense and simple economic theory prevail over “because this is how it was always done”?

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