There are plenty of occasions in which a family needs assistance and/or supervision from D.C.P.P.. It would be hard to find someone to disagree with the proposition that parents who severely abuse children should have those children removed. There are also some that should be supervised by D.C.P.P. while they partake of rehabilitative services and/or parenting education. Those parents have something in common: They abused or neglected their children.
But what of the “low-risk” families?
Low-risk families are those families who have not abused or neglected their children, but somehow come under the watchful eye of D.C.P.P.. Despite the fact that there has been no abuse and no neglect, D.C.P.P. will often seek to supervise these so-called low-risk families, and to compel parents to undertake services or parenting education regardless.
The law does not require a parent to undertake services through D.C.P.P. without a court order. A court order requires at least an initial showing by D.C.P.P. of abuse or neglect. Thus, if D.C.P.P. does not substantiate abuse or neglect, then D.C.P.P. cannot compel that parent to submit to supervision, education or rehabilitative services. Despite the lip service paid to the new mission where low-risk families are concerned, the Division continues to supervise them and monitor them at taxpayer expense. The name has changed, but the song remains the same.
]]>DCPP’s practice in recent years has been to seek some of the following results through the “Order to Show Cause for Investigation”:
(1) Supervised visitation;
(2) Change in custody from one parent to another:
(3) Suspended visitation;
(4) Psychological evaluation;
(5) Psychiatric evaluation;
(6) Drug or alcohol evaluation.
The problem with this practice is that an “Order to Show Cause for Investigation” does not require DCPP either to prove or to substantiate child abuse or neglect. Further, the above list are not typically investigative tools. Investigative tools tend to be records requests, parent interviews or child interviews.
In a recent unpublished opinion, the Appellate Division has voiced its discomfort with the practice of placing parental restraints in orders involving investigation. Additionally, DCPP, through its attorney “acknowledged that the order should not have contained provisions restraining [the parent’s] contact with her children or ordering evaluations or therapy.” (See Div. of Youth and Family Servs. v. L.C., supra) Now that DYFS has committed to this position in the Appellate Division, one would hope that they would change their own practices.
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Indeed, the appellate court was presented with a difficult finding by a highly respected trial court judge concerned about a child in a state of crisis, who had ruled: “"no one went after this child, no one tried to get her help after she disappeared out of this car. Nobody acted to protect her.” Yet the facts brought out at trial, which appellate counsel marshaled successfully on appeal, demonstrated that parental error is not the same as child neglect under New Jersey law. As the Appellate Division held: “In this instance, the age of the child, the fact that the family had lived with K.R.’s drug use for some unspecified period of time, the daylight hour in which the incident occurred, that mother and child engaged in a major conflict in order to get K.R. in the car, and the fact that K.R. was in her own community, are circumstances
that weigh towards the conclusion that although L.M. and F.M. were negligent in their response to the crisis, their conduct was not gross negligence.”
Howes & Howes will continue to operate the same full-time practice of law at our Raritan office. It will remain fully staffed and open for business a minimum of five days each week. That will not change. What will change is some refinement in our areas of practice as follows:
1. Municipal court: Katherine Howes will no longer represent clients in the municipal courts of New Jersey. She can no longer do so as a result of an appointment that took effect on January 1, 2012.
2. Municipal court: Tim Howes will no longer represent clients in the municipal courts in Somerset County. He will continue to bring his two decades of experience in municipal court practice to the table as he represents clients in the municipal courts of all other New Jersey counties.
3. Juvenile court: Tim Howes will no longer represent clients in the juvenile part in Somerset County. He will continue to bring his 23 years of experience in juvenile part practice to the table as he represents clients in the juvenile part of all other New Jersey counties.
4. Criminal court: Tim Howes will no longer represent clients in the criminal court in Somerset County. He will continue to bring his quarter century of experience in criminal court practice to the table as he represents clients in the criminal courts of all other New Jersey counties.
If you have any questions about our areas of practice you can contact Pamela Vail or Jennifer Starr at the Howes & Howes office.
]]>New Jersey law vests the County Clerk in each of New Jersey’s twenty-one counties with the authority to construct the primary election ballot. The County Clerk has a degree of discretion in how to arrange the offices and names of candidates on the grid of the ballot for use in the voting machine. For the most part, logic prevails and the candidates are placed in the familiar grid. When there are statewide elections, the process is more complicated. It is more complicated because statewide elections tend give rise to “slates” of candidates who wish to “bracket” together on the ballot. Two New Jersey statewide primaries in the past decade resulted in significant litigation and reported decisions. The 2001 Republican gubernatorial primary gave rise to the Schunder v. Donovan decision. The 2008 Democratic primary gave rise to the Andrews v. Rajoppi decision. Both of those decisions establish interpretive principles for the County Clerks.
This year, the County Clerks will have to use those principles, together with the specific mandate of New Jersey statutes to design the ballot in a year in which there are a multiplicity of offices on the ballot:
(1) Presidential preference;
(2) At-large delegates to the national convention;
(3) Congressional district delegates to the national convention;
(4) United States Senate;
(5) House of Representatives in all 12 Congressional Districts;
(6) State Assembly in at least two districts;
(7) County Freeholders in most counties;
(8) County Constitutional officers in many counties;
(9) Municipal mayors and council people in most municipalities (as many as four in some places);
(10) Local party county committee persons (Two in each voting district.).
In addition to the proliferation of offices on the 2012 primary election ballot, there are potentially several competing slates of candidates. Candidates for different offices who share a philosophy or agenda have a right under the First Amendment of the Unites States Constitution to be associated together on the primary election ballot. This applies both to candidates who are endorsed by county party committees, and to those who are not. There are limitations on that right, however. In order to bracket together on the ballot, candidates must comply with certain legal requirements before the County Clerk will group them together in a column or row on the ballot.
In the 2012 Republican primary, there are four presidential candidates who may still be in the race when the ballot is designed. That means that there may be four slates of delegates to the Republican National Convention on the ballot in addition to the presidential preference. At present there are three candidates in the Republican primary for the United States Senate. The great unknown is how the presidential candidates and U.S. Senate candidates will choose to appear on the ballot. Will they associate with candidates for other office? If the answer is yes, then there may be entire columns or rows of competing candidate slates on the ballot.
With competing slates for all the different offices, the ballot design process promises to be both complex and interesting. As counsel to the NJGOP, I will be keeping a close eye on the process.
]]>Assemblyman Biondi served the Sixteenth Legislative District for seven two-year terms. On November 8, 2011, the voters elected him to to an eighth. Sadly, two days later, Assemblyman Biondi passed away, exactly two months before his eighth term was scheduled to begin. His passing created a vacancy in the New Jersey Legislature. According to the New Jersey Constitution, a new legislative session begins on the second Tuesday of January following a statewide legislative election. As such, Assemblyman Biondi’s seat became vacant on January 10, 2012.
There are portions of four counties in the Sixteenth: Mercer, Middlesex, Hunterdon and Somerset. Following New Jersey law to the tee, the elected Republican county chairs of those four counties notified the members of their county committees of the vacancy, and of the scheduling of a convention to name the interim successor. Those four county chairs then worked together to formulated proposed rules for the convention. Once those rules were drafted, they were circulated to the county chairs and the candidates, then on the night of the convention, they were distributed to all of the county committee persons in attendance.
Legislative vacancy law requires a quorum of at least one-half of the eligible county committee people. Only those county committee people who were elected in a primary election, and those who have been chosen to fill vacancies pursuant to local rules are eligible. And only those county committee persons whose election and/or membership in the county committee is duly registered with the County Clerk are deemed to be lawful members of the county committee. In all, 300 county committee persons were eligible to vote at the convention. 215 appeared and registered. After the ceremonials, the Convention Rules were moved and seconded from the floor with minimal turbulence. Once the rules were adopted and the chair established, the convention moved on to its business.
There are some very basic points of law covering a Title 19 Convention:
1. Notice from the county committee chairs to the members must occur within seven days of the vacancy.
2. There must be a quorum of at least one-half of the eligible voters.
3. Only duly registered county committee persons, registered seven days prior to the convention are eligible to vote.
4. The convention rules must be moved and seconded from the floor of the convention. (County party rules do not apply.)
5. The chair of the convention must be nominated and seconded from the floor.
Since the chairs of the convention followed these very basic rules to a tee, the convention went well, and a clear winner was established.
]]>Since then, she has served as a municipal prosecutor in Far Hills and Robbinsville, municipal public defender in Bernardsville and most recently as a member of the Peapack-Gladstone Borough Council.
This appointment is an honor. Ms. Howes is thankful for the opportunity to return to the bench. This appointment will not alter her practice in any dramatic way. She will continue as a partner in Howes & Howes, which will continue to be her primary occupation. Municipal court is a part-time job She is not giving up any of her current clients.
The appointment has, however, altered Ms. Howes’ participation in other community activities. She has resigned from the Peapack-Gladstone Borough Council, from the Board of Directors of Anderson House and from the District XIII Ethics Committee.
]]>The matter proceeded to trial. The trial reduced the margin to two votes. Ms. O’Connor appealed, and raised three issues.
One of those issues was the domicile of some of the voters. One in particular testified that her only connection with South Amboy was a room in the back of her business. The Appellate Division disqualified her vote, and provided some very clear guidance on the issue. There are some very important concepts to remember:
(1) In order to vote in an election, the voter must be registered at his or her domicile.
(2) One may have multiple residences but only one “domicile” for purposes of voting.
(3) The permanent home of a person is considered his domicile and the place of his or her domicile determines the right to vote.
(4) Additionally, and this is not part of the opinion, the law provides for a procedure for a person with multiple residences to elect one of them as his or her domicile. Such an action is taken through the Board of Elections.
When in the course of an election contest, a candidate challenges a voter’s domicile, the court must make a factual determination on the record. The relevant factors in determining domicile include billing address, residence from which tax returns are filed, mailing address, membership in local clubs, driver’s license, place where a person spends the greatest amount of time, newspaper subscriptions, etc. Common sense will also uncover other factors relevant to an individual case.
The South Amboy case may well head to the New Jersey Supreme Court. There are other legal issues that Ms. O’Connor may ask the Supreme Court to address, but it remains to be seen if she will proceed.
]]>New Jersey law recognizes that children suffer actual harm, and are placed at risk of harm when they are exposed to domestic violence. Indeed, New Jersey courts have held that a pattern of parental conduct can place a child at risk of harm without proving a particular act of physical or similar domestic violence. D.Y.F.S. v. I.H.C. and D.C., 415 N.J. Super. 551 (App. Div. 2010) However, New Jersey courts also recognize that the act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs. DYFS v. S.S. and F.S., 372 N.J. Super. 13 (App Div. 2004).
In our case, the Division had concerns about drug use in the home and about allegations of domestic violence in the home. In December 2010, the Division completed its investigation. At the conclusion of the investigation, the Division found that allegations of neglect were unsubstantiated against both parents. The case worker then remained involved in the case. In January, the family went on a family vacation. There was nothing preventing them from taking a family vacation together. There was no restraining order, no safety plan and no court order. Indeed, there was never a reported or substantiated incident of domestic violence, just evidence of marital contretemps.
Nevertheless, the Division intervened. They removed the children from the home and filed a child protective lawsuit against the parents.
At the first hearing, the court found that the children should be returned to the home. The family participated in services throughout and cooperated with those services fully.
The court held a fact-finding hearing in September and October. At that hearing, the defense established that (1) there were no substantiated domestic violence events; (2) that the Division ruled that allegations were unsubstantiated in December 2010; and (3) that nothing new happened to raise concerns that the children had been exposed to neglect or abuse between December 2010 and the time that the family went on vacation in January 2011. The court found that there had been no abuse or neglect of these children. In the end, the Division cannot prove a case against a parent based on the hunches or feelings of a case worker. That is exactly what the Division tried to do in this case, and they were unsuccessful.
]]>In 2001, two events opened up the fault lines in the 31st: Glenn Cunningham was elected Mayor of Jersey City, and powerful Hudson County Executive Bob Janiesziewski was indicted for official misconduct. The election restored Jersey City City Hall to the Democrats after nine years in Republican hands. The indictment removed the most powerful politician from county politics.
In 2003, Mayor Cunningham ran for state senate in the 31st. On his ticket were former freeholder Lou Manzo and Bayonne City Councilman Tony Chiappone (Both Chiappone and Manzo would later become Howes & Howes clients). Because he was mayor of Jersey City, Cunningham was able to raise enough money to challenge the Hudson County Democratic Organization (HCDO), whose ticket was led by former Assembly Speaker Joe Doria. The Democratic primary was brutal and it was expensive. Once the votes were counted, the Cunningham team had won.
HDCO challenged the election in court, alleging that the Cunningham team had committed multiple serious violations of New Jersey campaign finance law. The Superior Court heard the case under the election contest statute. At the outset, the Cunningham team moved to dismiss the case or in the alternative remand the case to ELEC on the grounds that the court lacked jurisdiction over campaign finance questions. The court denied their motion. The case proceeded to trial.
The trial court did not disturb the result of the election.
HCDO/Team Doria appealed. It was their contention that the alleged campaign finance violations effected the course of the election, and as such, Team Cunningham should forfeit their victory. The Appellate Division held that the campaign finance violations should be remanded to the Election Law Enforcement Commission (ELEC) because the statute provided ELEC with the authority to administer the campaign finance laws. The litigation resulted in a reported decision of the Appellate Division: IN RE: the CONTEST OF the DEMOCRATIC PRIMARY ELECTION OF JUNE 3, 2003.
Team Cunningham went on to win the general election, and took their seats in the state legislature.
Their victory did not last. In 2004, Mayor Cunningham died of a heart attack. His coalition unraveled. In the 2004 special election, his senate seat went to Joe Doria (who beat Chiappone), and the mayor’s seat went to Jerry Healy (who beat Manzo). The Cunningham coalition unraveled after that. Indeed, both Manzo and Chiappone are now retired from politics. The Senate seat went back to the Cunningham family when Cunningham’s wife, Sandra won the seat, beating Manzo in the primary. Sandra Cunningham still serves the 31st District as its Senator.
]]>After the primary, Twenty-three year old challenger Hank Lyon held a very slight lead on four term incumbent Margaret Lyon. Ms. Lyon pursued both a recount and an election contest. After a very contentious trial, the trial judge found that Mr. Lyon had violated campaign finance laws. Based on the violation, and a finding that the violations had an impact on the outcome of the primary, the court voided Mr. Lyon’s nomination, and ordered the Morris County Republican Committee to meet and vote on the nominee.
The Morris County GOP met. Ms. Nordstrom won the nomination by a vote of 213-208 over Mr. Lyon.
Meanwhile, Mr. Lyon appealed the trial court’s decision.
Soon after Mr. Lyon’s attorney perfected the appeal, the New Jersey Election Law Enforcement Commission (ELEC) moved before the Appellate Division to allow ELEC to intervene as a party in the appeal. ELEC is the division of the executive branch of the state government that administers the campaign finance laws. The Appellate Division has now granted the motion. ELEC will participate in the appeal. Presumably ELEC will file a brief and make oral argument. This provides another interesting turn because ELEC has made the following statements in its legal papers in this case:
“The lower Court’s ruling has the strong potential to negatively affect the Commission’s legislative mandate of primary jurisdiction, resulting in the public’s and the regulated community’s inability to rely upon the Commission’s uniform administration of the Campaign Reporting Act.” ELEC further argued, “If the lower court’s ruling stands, it would subject candidates and committees to inconsistent application of the Campaign Reporting Act in enforcement actions dependent on the forum where the matter is adjudciated.”
This language suggests that perhaps ELEC will argue that the trial court did not have the jurisdiction to determine campaign finance violations, and therefore did not have the authority to void this nomination. The Appellate Division will receive transcripts and briefs on an expedited basis, and hear oral argument in January 2012. Howes & Howes will continue to follow this unique case.
This is a common fact pattern. A parent is in a hurry. Too many errands; not enough time. To cut corners, the parent leaves a child in the car unattended while he or she runs in to make that last purchase. It is almost inevitable that someone will see the child alone in the car, and report it. The police arrive. They find the parent. They contact DYFS, who is obliged to investigate, and after investigation, usually finds that the parent has committed an act of neglect or abuse under New Jersey law.
That is a major problem because a substantiation places a parent in the DYFS Central Registry. (See our article “Escape from the DYFS Central Registry” on this website.) It is at this point that many law abiding parents contact Howes & Howes. There is good news for those parents because the New Jersey Appellate Division has issued an opinion in which it holds that the act of leaving a child alone in the car does not by itself constitute neglect. (Department of Children and Families v. A.S.)
Under New Jersey law, a parent or guardian must be grossly negligent to be found to have committed an act of child neglect. Whether a parent is grossly negligent will depend on the facts of each case and the history of each parent. For instance, how long was the child alone? Was he or she safe? Was he or she overheated? Did the child require medical attention? Does the parent have a history of good parenting? The answers to these and other questions will help Howes & Howes prepare your defense.
If DYFS has substantiated an allegation of neglect against you, then you have the right to appeal to the Office of Administrative Law. In the Office of Administrative Law, you have the right to an attorney and a full evidential hearing. If this is where you find yourself, then you should contact Howes & Howes.
]]>Another independent candidate filed papers with the Superior Court to try to block the County Clerk from designing a ballot that allows teams of two to be grouped ("bracketed") together on the ballot with a common slogan. The problem with the application is that the law clearly states that bracketing is allowed.
First, the First Amendment to the United States Constitution protects bracketing as part of the right to free speech and association. The New Jersey Supreme Court most recently articulated this principle in Schundler v. Donovan, 377 N.J. Super. 339, 348 (App.Div 2005), aff’d 183 N.J. 383 (2005). (Howes & Howes represented the plaintiff in that case.) The Schundler decision followed a long line of United State Supreme Court precedents protecting the right of free association on the ballot. See also, Eu v. San Francisco Co. Democratic Central Comm., 489 U.S. 214, 222 (1989).
Second, New Jersey law instructs election officials to grant bracketing requests, both in party primaries and in non-partisan municipal elections.
Howes & Howes submitted a very thorough brief on behalf of P.J. Leonard. Mr. Leonard elected NOT to bracket with any other candidates because he wants the ballot to demonstrate that he is an independent candidate, not part of any of the various factions in Jersey City politics. The court agreed that the bracketed tickets have the right to bracket together, and Mr. Leonard has the right to elect not to bracket. The court concluded its five-page opinion as follows:
“Thus, in light of the clear mandate of N.J.S.A. 40:45-10, I am not only compelled to affirm the Clerk’s bracketing determination in this matter but would in fact be compelled to overturn her determination had she refused to permit bracketing.”
If you are a candidate or a campaign in a primary election or a non-partisan election, and you have a bracketing question, you should contact Howes & Howes. We have experience in bracketing cases at the state, county and local levels, in several New Jersey counties.
]]>“If any candidate for nomination for or election to any public office or party position, or his campaign manager, shall fail to file any statement or oath required by this Title to be filed, at the time, place and in the manner required by this Title, and duly verified as herein required, or shall file any false statement, the nomination or election of such candidate, if nominated or elected at the primary or other election concerning which such statement shall have been filed, shall be null and void.”
During the course of the trial, there was evidence that Mr. Lyon failed to file certain campaign finance reports. Specifically, it was alleged that he failed to file the 48 hour report of expenditures that would have been required for him to disclose approximately sixteen thousand dollars worth of spending on a mail piece. It was further alleged that he filed the required report, that Ms. Nordstrom would have known about the mailer, and would have responded to the mailer. It was further alleged that the mailer was misleading and that the mailer had a direct impact on the outcome of the election.
The court held that since Mr. Lyon did not file the required disclosure, and that there was no defense for the failure to file, that the election was void.
An appeal is already in the works. It is likely that the Appellate Division will compare the Lyon case with an Appellate Division precedent, In re the Contest of the Democratic Primary of June 3, 2003, 367 N.J. Super. 261 (App. Div. 2004), which is the only reported appellate decision on point. In that case, the Appellate Division found that the Election Law Enforcement Commission (ELEC) had primary jurisdiction over the campaign finance claims. Counsel for Ms. Nordstrom appears to have effectively distinguished Nordstrom v. Lyon from the June 3, 2003 case. The trial court accepted the Nordstrom argument. The issue for the Appellate Division will be whether the trial court correctly interpreted the June 3, 2003 case and the related campaign finance law.
]]>What exactly is “bracketing”?
Bracketing is the arrangement of candidates for different offices together in a column or row or group on the ballot. In general elections, candidates from the same party are grouped together under the Democrat column or the the Republican column or the column of some other party. There are elections in which candidates are not arranged by party. Specifically, those elections are primary elections for nomination and non-partisan elections.
By law, Jersey City municipal offices are decided in non-partisan elections. That is, there is no party label associated with the candidate. They don’t run as Democrats or Republicans or members of the Green Party. They run on their own. When there is more than one office for election, candidates for different offices group together in teams. Usually, these are candidates who allied politically and/or have common beliefs. Bracketing has long been the practice in races for at-large seats on the Jersey City City Council. The candidates for each team who share resources on the street are associated together on the ballot. Those candidates must notify the Clerk of their desire to bracket together and to share a slogan. When designing the ballot, the Clerk then groups those two candidates together on the ballot.
That way, the voters can see from the ballot which candidates are allied. The voter is still able to cast individual votes for individual candidates. There is no requirement that a voter vote for both or either of the bracketed candidates.
One of the nineteen candidates for City Council has challenged the County Clerk’s ruling that allied candidates can bracket together on the ballot. This candidate’s application will and must fail because the First Amendment protects bracketing. And this is no secret: The United States Supreme Court ruled on this issue in 1989. This is an open-and-shut case.
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