Lawyer Loses Challenge To Rule Limiting The Amount Of Time He Could Speak At City Council Meeting

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

SpeakingThere is a lawyer joke in here somewhere about lawyers suing to get more time to speak or how someone should sue to force lawyers to talk less. Potential jokes aside, the issue in Feld v. City of Orange was an interesting one. In Feld, plaintiff challenged a municipal ordinance that reduced, from ten minutes to five minutes, the time members of the public could speak on certain matters at city council hearings. Plaintiff claimed that this ordinance violated his First Amendment right to free speech. Spoiler Alert: He lost. But the issue and the decision are nonetheless interesting. 

Feld was the latest chapter in litigation that has been raging between plaintiff, a lawyer, acting on behalf of himself and his parents' business, and the City of Orange for years. (In a prior decision, the Appellate Division noted that plaintiff considered himself a "zealous gadfly" and a "radical barrister.") At some point during this long-running battle, the city adopted an ordinance "that reduced the time from ten minutes to five that individual members of the public could speak at City Council meetings on general  issues, agenda items or second readings of ordinances before adoption." The city council claimed the change was necessary because "council meetings can extend late into the evening or early into the next day" and this "discourages, if not precludes[,] a fair opportunity to be heard by other members of the public." The city council further claimed that, "without appropriate and rational limitations, the rights of all public speakers [would be] curtailed and undermined." The city council also noted that other municipalities limited the time for speaking during public meetings to five minutes.

The underlying issue in Feld involved plaintiff's objection to the city council's adoption of a resolution that allowed the mayor to sign a lease and option to buy a building owned by the YWCA of Orange, which was in bankruptcy. He challenged the resolution when it was before the city council, and, after it passed, filed a 257 paragraph complaint in lieu of prerogative writs seeking to have it invalidated. As part of this complaint, he also challenged the rule reducing the amount of time members of the public could speak at city council hearings. After filing his complaint, plaintiff filed an order to show seeking, among other things, to restrain the city from enforcing the five-minute rule while the lawsuit was pending. The trial court heard oral argument on the order to show cause, and took testimony from a witness on behalf of the city, who testified that the rule was necessary to "administer the Council meetings more efficiently," and that it was an attempt to "make sure that all of the comments are heard and that everyone gets a chance to talk."

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You Can’t Be Compelled To Arbitrate In A Nonexistent Forum

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Arbitration (pd)This one may seem obvious, but, in MacDonald v. Cashcall, Inc., the U.S. Court of Appeals for the Third Circuit held that a contractual arbitration provision that calls for arbitration in an "illusory forum" is not enforceable. So, if you were thinking about trying to compel arbitration in Wakanda or before the Jedi Council, better think twice.

In MacDonald, plaintiff entered into a loan agreement with a entity known as Western Sky in connection with a $5,000 loan. The loan agreement stated that it was "subject solely to the jurisdiction of the Cheyenne River Sioux Tribe," and "governed by the . . . laws of the Cheyenne River Sioux Tribe." It also contained an arbitration provision requiring that any disputes arising out of the agreement be "conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules and the terms of [the agreement]." But the agreement also provided that either party, after demanding arbitration, could select an arbitrator from the American Arbitration Association ("AAA") or Judicial Arbitration and Mediation Services ("JAMS") to administer the arbitration, and, if it did, "the arbitration [would] be governed by the chosen arbitration organization's rules and procedures" to the extent that they did not contradict the "law of the Cheyenne River Sioux Tribe." The agreement also contained a severability clause, providing that, if any provision of the agreement was deemed invalid, the remaining provisions would remain in effect.

Although plaintiff originally borrowed $5,000, "[h]e was charged a $75 origination fee and a 116.73% annual interest rate over the seven-year term of the loan, resulting in a $35,994.28 finance charge." After paying approximately $15,493 on the loan, which included $38.50 in principal, $15,256.65 in interest, and $197.85 in fees, plaintiff filed a putative class action lawsuit against defendants, asserting federal RICO claims and state law claims for usury and consumer fraud. Defendants moved to compel arbitration. The district court denied the motion, holding that the loan agreement's "express disavowal of federal and state law rendered the arbitration agreement invalid as an unenforceable prospective waiver of statutory rights." Defendants appealed. 

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I Thought That Juror Looked Familiar!

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Jury (pd)What happens if you are a party in a lawsuit and you recognize one of the jurors as someone who not only knows you, but probably does not like you and may be looking for revenge? According to the Appellate Division in Rumbas v. Sony Electronics, Inc., at the very least, you bring it up before the jury returns its verdict.

In Rumbas, plaintiff claimed that a television defendant manufactured was defective and caused a fire that damaged plaintiff’s condominium unit and three other units. At the start of jury selection, the judge explained the nature of the case to the potential jurors. He then sat the first eight jurors in the jury box and explained the jury selection process. Specifically, he explained that he would be asking a series of 28 questions, each of which was “designed to elicit a negative response.” As jurors in the box were excused, they would be replaced by jurors from the panel, but the judge would not repeat the 28 questions. Instead, he would simply ask the replacement juror if his or her answer to any of them would be anything other than “no.”  Therefore, the judge stressed that it was important for all jurors, not just those in the jury box at the time, to pay attention to the questions.

Early on in the selection process, while the original eight jurors were seated in the jury box, the judge asked the attorneys to introduce their clients. Plaintiff was not in the courtroom at the time. Apparently, he had to go to the pharmacy, but his attorney indicated that he would be returning soon. The judge then read a list of potential witnesses and asked if any of the jurors knew any of them. None did. During this questioning, plaintiff returned to court, at which time he was introduced to the jurors. The judge asked if any of them knew plaintiff, but none did.

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Final Chapter In The Case Of The Missing Double Eagle Coins

     by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Double eagle (pd)
One of the more interesting cases I have written about is Langbord v. U.S. Dept. of Treasury, which I described in a June 2015 post as follows:

It's not every day that you find a case that starts with Depression-era monetary policy, ends with a relatively obscure federal statute, and in between tells the tale of the alleged theft of a coin considered to be "the most valuable ounce of gold in the world." Did I mention that the case also involves both Presidents Roosevelt, King Farouk of Egypt and the Sept. 11, 2001, terrorist attacks? A case recently decided by the U.S. Court of Appeals for the Third Circuit, Langbord v. U.S. Dept. of Treasury, has all of this and more.

Langbord involved the 1933 Double Eagle gold coin. It is a $20 gold piece that was designed by famed artist Augustus Saint-Gaudens after he was commissioned by President Theodore Roosevelt to help beautify American coinage. Almost a half million Double Eagles were minted, but none were ever officially released into circulation. Shortly after they were minted, newly-elected President Franklin D. Roosevelt, seeking to stem a run on the banks, issued Executive Order 6102, which made it illegal to "hoard" large amounts of gold. Accordingly, the U.S. Mint was ordered to stop issuing gold coins and to melt down any gold coins in its possession, including the Double Eagle. As part of this process, two Double Eagles were sent to the Smithsonian Institution for posterity, but the rest were supposed to have been melted down.

As you might have guessed, not all of the remaining coins were melted down. According to the government, approximately 20 of them ended up in the hands of a coin dealer who worked with a corrupt cashier at the US Mint to smuggle them out before they could be melted down. Over the years, it was alleged, he sold several of these coins. But, after his death, his family found 10 of them in his safety deposit box and offered to return them to the government. They requested the same terms as the government had agreed to several years earlier with a different individual who came into possession of another one of the coins. The government originally seized that coin after luring the dealer into a sting conducted at the Waldorf Astoria in New York City, but later, after the dealer sued, agreed to sell the coin at auction and split the proceeds with him. At auction, it sold for almost $7.6 million, more than twice the world record for any coin sold at auction at the time. Plaintiffs in Langbord were looking for the same arrangement for their coins. The government agreed in principle but asked to authenticate the coins first. Plaintiffs agreed and sent the coins to the government for authentication. However, after authenticating them, the government refused to return them, arguing that they were stolen and were rightfully the property of the U.S. government. 

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You Can’t Cross Examine A Map!

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Drug free zone (pd)In a case decided earlier last week, State v. Wilson, the New Jersey Supreme Court answered an interesting Constitutional Law question: Whether the admission into evidence of a map showing the designated 500-foot  "drug free zone" around a public park violated an accused's right, under both the U.S. Constitution and New Jersey Constitution, to be "confronted with the witnesses against him." The court held that maps like this do not violate the Confrontation Clause and, if properly authenticated, are admissible. The problem in Wilson, however, was that the map was not properly authenticated as a public record, therefore it was inadmissible hearsay. 

The Sixth Amendment to the U.S. Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The New Jersey Constitution contains an almost identical provision. "The Confrontation Clause affords a procedural guarantee that the reliability of evidence will be tested 'in a particular manner' through the crucible of cross-examination." As interpreted by the U.S. Supreme Court, the Confrontation Clause provides that a "testimonial statement against a defendant by a non-testifying witness is inadmissible . . . unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him or her." The threshold issue, therefore, is whether a statement is "testimonial."

The U.S. Supreme Court has "labored to flesh out what it means for a statement to be 'testimonial.'" It eventually arrived at the "primary purpose" test, which asks whether a statement has the primary purpose of "establishing or proving past events potentially relevant to a later criminal prosecution." If it does, then it is testimonial. If not, then it is not. For example, the U.S. Supreme Court has held that statements made to police to assist them in responding to an "ongoing emergency," rather than to create a record for a future prosecution, are not testimonial. 

The New Jersey Supreme Court has wrestled with this "primary purpose" test as well. For example, in one case, police sent a defendant's blood to a private laboratory after a fatal car crash. Approximately 14 analysts performed a variety of tests on the blood. A supervisor at the lab then wrote a report concluding that the defendant's blood contained traces of cocaine and other drugs and that this "would have caused the defendant to be impaired an unfit to operate a motor vehicle." The State sought to admit the report, or statements from it, into evidence. The court refused, holding that the report was testimonial because its primary purpose was to "serve as a direct accusation against the defendant." Similarly, the court held, in a separate case, that the statements in an autopsy report were testimonial because the autopsy was conducted after a homicide investigation had begun, after the defendant was a suspect, and after he had spoken to police, and because the autopsy was conducted in the presence of the lead State investigator. Thus, the court held, the "primary purpose of the report was to establish facts for later use in the prosecution."

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“Knee Deep In The Water Somewhere . . .” Plaintiff Injured by flying coffee cup cannot invoke maritime jurisdiction

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Virgin islands (pd)
If you are like me, you have probably wondered: If I were standing on a boat in the Virgin Islands and was injured when someone tossed "an empty insulated coffee cup" at me, could I invoke a federal court's maritime jurisdiction? Well, we now have the answer in the form of the Third Circuit's opinion in Hargus v. Ferocious and Impetuous, LLC.

In Hargus, plaintiff was a passenger on a boat, the "One Love," which was owned by Ferocious and Impetuous, LLC. He rented the boat along with some friends to sail from St. Thomas to various points in the U.S. Virgin Islands. Hargus was standing on the deck of the boat while it was anchored in "knee deep" water, close to shore. Some of the other passengers, who were standing on shore, threw beer cans at Hargus (the opinion does not explain why they did this). Upon seeing this, the captain of the boat, who was standing nearby the passengers who threw the beer cans, threw "an empty insulated plastic coffee cup at Hargus" (the opinion does not explain this either). The coffee cup hit him in the temple. He did not lose consciousness or complain about any injury at the time, and the boat continued on its voyage without further incident.

Two days after the incident, plaintiff sought medical attention after experiencing pain and impaired vision, which he attributed to being hit by the coffee cup. He was diagnosed with a concussion and a mild contusion. (The opinion notes that he had a history of head trauma, having suffered 10-12 prior concussions.) He was not prescribed any medication and was allowed to return to work without restrictions. He did not seek additional treatment until one year later when he went back to the doctor, complaining of headaches, memory loss, mood swings, and neck pains.

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Party Cannot Lose Its Right To Jury Trial For Violating Procedural Rules

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Jury (pd)It is not often that a case that starts in the Special Civil Part — New Jersey's small-claims court — ends up before the New Jersey Supreme Court. But this is exactly what happened in Williams v. American Auto Logistics. It could not have been cost effective for the plaintiff to see this case through two separate bench trials, two separate appeals to the Appellate Division, and finally an appeal to the Supreme Court. But the issue in the case was so important that, notwithstanding the costs, the effort was likely worthwhile.

In Williams, plaintiff had his car shipped from Alaska to New Jersey by defendant. After he picked up the car, he discovered water damage in the trunk. Plaintiff sued in the Special Civil Part after efforts to amicably resolve the dispute failed. Plaintiff did not demand a jury trial in his complaint, but defendant did in its answer. At the pretrial conference, the trial court referred the parties to mediation, which was unsuccessful. Upon returning from mediation, defendant waived its jury demand. Plaintiff objected, but the trial court granted defendant's request. In support of its decision, the trial court noted that plaintiff had violated Rule 4:25-7 by failing to make the requisite pretrial submissions. (Among other things, Rule 4:25-7 requires parties to submit proposed voir dire questions, jury instructions, and jury verdict forms.) The trial court held that it could deny plaintiff's request for a jury trial as a sanction for this failure. Therefore, the case proceeded to a bench trial, where the trial court found no merit to plaintiff's claims.

Plaintiff appealed and the Appellate Division reversed and remanded. It held that a jury demand can only be withdrawn by consent, even when only one party demanded a jury trial and that party seeks to withdraw the demand. It further explained that "a trial judge may impose sanctions, including striking the jury demand, on a party that fails to submit the requisite pretrial information," but that the trial court in Williams erred by "allowing a single party to unilaterally waive the jury demand."

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