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 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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“Here’s the mail it never fails . . . :” Judge Posner Criticizes “Rhetorical Envelopes” In Which Judicial Opinions Are “Delivered To The Reader”

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

Judge (pd)[Apologies for the Blue's Clues reference in the title to this post.]

In his concurring opinion in a recent Seventh Circuit decision — United States v. Dessart — Judge Posner agreed with the majority's conclusions, but wrote separately to express his "reservations about some of the verbal formulas in the majority opinion." He did not "criticize the majority for reciting them" because, as he noted, they are "common, orthodox, even canonical." But he did criticize the "verbal formulas" themselves as being "inessential and in some respects erroneous" and thus, he urged, "ripe for rexamination."

What were the "verbal formulas" that Judge Posner was so keen to criticize? Just some of the legal standards that we see recited in opinions every day. For example, the commonly-used "abuse of discretion" standard, of which Judge Posner appears not to be a big fan. In his concurring opinion, Judge Posner noted that the majority defined this standard as including "among other missteps, 'material errors of law.'" This apparently did not jibe with Judge Posner's understanding of discretion and its abuse, as he explained:

Of course, material errors of law are potentially very serious, but what has that to do with discretion or its abuse? Common as the term "abuse of discretion" is in opinions dealing with appeals from district court decisions, I find it opaque. If the appellate court is persuaded that the trial court erred in a way that makes the trial court's decision unacceptable, it reverses. What has discretion to do with it? And "abuse" seems altogether too strong a term to describe what may be no more than a disagreement between equally competent judges – the trial judge and the appellate judges – that the appellate judges happen to be empowered to resolve as they see fit.

Similarly, he challenged the majority's similarly well-settled statement that an appellate court, when reviewing a trial court's decision to issue a search warrant, must afford that decision "great deference." (Among the issues in the Dessart case was whether a search warrant was supported by probable cause.) Judge Posner acknowledged that the standard comes from a Supreme Court decisions holding that "[a] magistrate's determination of probable cause should be paid great deference by reviewing courts," but questioned it nonetheless. First, he questioned why "great" deference should be afforded to such decisions since "warrants [are] usually issued by the most junior judicial officers – and often police or prosecutors can shop among magistrates for one who is certain or almost certain to respond affirmatively to a request to issue a warrant." Second, Judge Posner noted that "[n]othing in the [Fourth] amendment requires warrants – ever," therefore it was not fair, in Judge Posner's opinion, to conclude, as is often concluded, that the Constitution expresses a preference for searches conducted pursuant to warrants or to afford great deference to a trial court's decision to issue one.

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Entrepreneurial Inmate Loses Lawsuit

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

Jail (pd)While pro se lawsuits by prisoners are not unusual, you don't see ones like Tormasi v. Hayman every day.

In Tormasi, plaintiff sued several officials from the prison in which he was serving a life sentence. In the lawsuit, he claimed that they improperly seized his intellectual property assets and corporate records. As the Appellate Division explained: "During his incarceration, plaintiff acquired various intellectual property assets, which he assigned to Advanced Data Solutions Corporation (ADS) in exchange for sole ownership of the corporation." At some point during his incarceration, prison officials seized plaintiff's personal property, including: "1) miscellaneous corporate paperwork related to ADS . . 2) patent-prosecution documents; 3) an unfiled provisional patent application; 4) several floppy diskettes; and 5) various legal correspondence." Plaintiff sued in federal court, asserting a claim under the Takings Clause of the Fifth Amendment to the U.S. Constitution, various federal civil rights claims, and a state law claim for inverse condemnation.

 

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Federal Judge Strikes Down “Flying Spaghetti Monster” (Or At Least A Prisoner’s Claims About His Ability To Worship The “Flying Spaghetti Monster”)

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

Spaghetti monster(pd)When appointments are made to the U.S. Supreme Court there is often much talk about the potential justice’s “paper trail” — the articles, briefs, or, if the candidate is already a judge, opinions he or she has written. If Judge John M. Gerrard of the U.S. District Court for the District of Nebraska is ever fortunate enough to be appointed to the Supreme Court, I hope that someone questions him about his recent opinion in Cavanaugh v. Bartelt. The decision does not provide much insight into his “judicial temperament” or his position on any hot button social issues that might come before the Supreme Court. It is just a well written and — not to  sound too geeky — enormously entertaining opinion to read.

Cavanaugh was a lawsuit filed by a prisoner in a Nebraska prison who claimed to be a “‘Pastafarian,’ i.e., a believer in the divine ‘Flying Spaghetti Monster’ who practices the religion of ‘FSMism’.” Plaintiff sued prison officials, claiming they were not accommodating his religious requests. Judge Gerrard concluded that FSMism was not a religion under the law, but was instead “a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education.” While he acknowledged that these were “important issues and FSMism contains a serious argument,” he held that FSMism was “not entitled to protection as a religion.”

Before addressing the legal issues presented by the complaint, Judge Gerrard provided a brief and entertaining history of FSMism. Because it developed as a response to “intelligent design,” Judge Gerrard traced the debate over teaching evolution in public schools from the adoption of state laws banning the teaching of evolution, to the Supreme Court’s rejection of those laws, to the adoption of state laws requiring that schools teach both evolution and “creation science,” to the Supreme Court’s rejection of “creation science” under the Establishment Clause, to the rise of “intelligent design” as an alternative to evolution. Proponents of “intelligent design” claim that the “Earth’s ecosystem displays complexity suggesting intelligent design by a ‘master intellect.” They try to avoid the Establish Clause issues that brought down “creation science” by not expressly identifying the “master intellect” as a deity.

 

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Game Over! Video Game Legend’s Lawsuit Against Cartoon Network Dismissed

Donkey kong (pd)
When I was a kid, cartoons and video games were far simpler than they are now. We watched Tom and Jerry and played Donkey Kong. The cartoons my kids watch today are often bizarre and the video games they play are way too complicated. A recent lawsuit in federal court, Mitchell v. The Cartoon Network, brought the old and new together, however, as a man who once held world records in Pac Man and Donkey Kong sued because his likeness was allegedly misappropriated in one of those new cartoons my kids like, "The Regular Show." (Incidentally, before you think I am just turning into a curmudgeonly old man, check out "The Regular Show" some time. It is hardly "regular".)

Plaintiff in Mitchell was a "well-known figure in the video gaming community." In addition to holding world records in both Pac Man and Donkey Kong at various times, he also competed in international gaming competitions, and even had his own trading card. But, he is perhaps most famous for his role in a documentary called "The King of Kong: A Fistful of Quarters," which "chronicles another gamer's attempt to surpass Plaintiff's world record for the game Donkey Kong." The district court described plaintiff's appearance in that film as follows:

In the film, Plaintiff is portrayed as succesful but arrogant, beloved by fans, and at times, willing to do whatever it takes to maintain his world record. In particular, the film shows Plaintiff attempting to maintain his world record by questioning his opponent's equipment and the authenticity of his opponent's submission of a filmed high score.

Plaintiff claims that defendants misappropriated his image for use in several episodes of "The Regular Show," which the district court noted is a show that "revolves around the adventures of two anthropomorphic animals, a blue jay named Mordecai and a raccoon named Rigby." One episode in the series included a villain named Garrett Bobby Ferguson, who appeared as a "giant floating head from outer space, with long black hair and a black beard, but no body." In the episode, Mordecai and Rigby are trying to break Ferguson's world record in a game called Broken Bonez that they play at their local coffee shop. (Yes, kids, we used to have to leave the house to play our favorite video games.) After they break the world record, the disembodied Ferguson appears to brag that he still holds the "universe record." Mordecai and Rigby then challenge Ferguson to play for that record. They almost beat his record, but then "throw the match when [Ferguson] begs them to let him win, claiming that he [ ] devoted his entire life to the game, that he played so much his wife left him, and that the universe record is all he has." After Mordecai and Rigby lose, however, Ferguson reveals that he was lying about it all. Mordecai and Rigby then go back and beat Ferguson's "universe record," at which point, the "enraged [Ferguson] explodes into goo." (When asked at breakfast if they ever saw this episode, two of my kids said they had, and they loved it.)

 

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Public or Private? Right To Counsel Of Your Choosing May Depend On Whether You Have Private Counsel Or Appointed Counsel

 by:  Peter J. Gallagher (@pjsgallagher)

I don't usually post about criminal law cases but the Appellate Division's recent opinion in  State v. Martinez hit close enough to home that I thought it was worth a few words. (I apologize for the uncharacteristically long title. Professor Cole, one of my journalism professors from college, would not be proud.)  

A few years back I was fortunate enough to be asked to represent the Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ) as amicus curiae in a case before the New Jersey Supreme Court — State v. Miller — that involved a similar issue to the one addressed in Martinez. Miller involved a defendant who was represented by the public defender's office. In the weeks and months leading up to the trial, defendant had been dealing with one public defender, but on the morning of trial a different public defender showed up to represent him. The trial court denied defendant's request for an adjournment, and forced defendant to go to trial with a lawyer he met for the first time on the morning of trial. Defendant was convicted and appealed the trial court's denial of his adjournment request. Both the Appellate Division and the Supreme Court affirmed the trial court's decision. Over an impassioned dissent from Justice Albin, the Supreme Court held that "it would have been preferable for the trial judge to have postponed the commencement of the [trial]," but that the decision to not do so was not an abuse of the trial court's broad discretion to control its own calendar and did not violate the defendant's right to counsel.

In Martinez, the facts were slightly different. Most importantly, as it turns out, unlike Miller, the defendant in Martinez was not represented by a public defender but was instead represented by private counsel. In Martinez, defendant retained a law firm to represent him and expected a specific partner from that firm to represent him at trial. However, the partner was not available on the trial date because of a conflict with another matter. It appears that both the prosecution and defense expected and agreed that the trial date would be adjourned to accomodate the partner's schedule, but the trial court refused to do so. Over defendant's objection, the trial court forced defendant to go to trial, not with the partner that he expected would handle the case, but with an associate from the partner's firm. By all accounts, the associate was capable and experienced, but defendant nonetheless objected to having to go to trial with counsel that was not the counsel he chose. 

 

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