NJ Legal Beat
Sunday, January 03, 2010
Howes & Howes Partner Set to Serve on Peapack-Gladstone Borough Council
At Howes & Howes, we believe in giving back to the community that has supported us so well. Last year, Howes & Howes partner Kathy Howes ran in a contested election for a seat on the Peapack-Gladstone Borough Council, an election that she won. On Tuesday, January 5, 2010, Kathy will be sworn-in as the Twin Borough’s newest Borough Council member.
The Borough of Peapack and Gladstone is a small suburban town nestled in the Somerset Hills. It is home to the Pfizer Pharmaceutical Company and the Olympic-medal-winning U.S. Equestrian Team. It has approximately the same land mass as Jersey City at 5.9 square miles. The “Twin Borough”, as it is known is governed by a directly elected mayor and a six member borough council. On January 5, 2010, Kathy Howes will take a seat on the Borough Council.
The Borough Council is the governing body of the Twin Borough. It makes the rules and oversees the budget process. Each council member serves on at least two or three sub-committees of the borough council. Each subcommittee oversees one department or one aspect of the borough government. (Roads, Sewer, Property, Police, Fire, Open Space, Recreation, Land Use etc.) The borough form of government is a hands-on form of government. It works for small towns. It works for small towns especially when the borough residents volunteer to serve.
Kathy Howes has served in the past as the Twin Borough’s public defender and most recently as a member of the Land Use Board. And now she will serve a three year term on the Borough Council. The meetings are night meetings. We do not expect that Kathy’s new role will interrupt service to our clients. Indeed, Kathy’s service will enhance her insight and experience, and therefore her ability to serve our clients.
Sunday, December 06, 2009
Howes & Howes Partner Named to Christie Transition Team
At Howes & Howes, we believe in giving back to the community that has supported us so well over the past seventeen years. By giving service we are giving thanks. At the same time, we are gaining insight and experience that will help up better serve you. This week, I was honored as I was chosen to serve as a member of the Transition Team for New Jersey Governor-elect Chris Christie. The photo depicts the Gold Dome of the New Jersey State Capitol.
There will be a new boss under the Gold Dome in Trenton come January 19. That boss will be former United States Attorney Chris Christie, who was elected Governor of New Jersey on November 3, 2009. Over the next six weeks, the nascent Christie Administration will be planning on how to hit the ground running once the Governor-elect takes the oath of office. The group of people who performs this task is known as the Transition Team.
This past week, the Transition Team chose me as a member of the Transition Counsel team.
What does that mean? Mr. Christie has split his transition team into several committees, one for each cabinet department. Each of those committees has a leader and about ten to twelve members. Each of those teams will examine its department, then provide the administration with information from which the administration will work in its early days.
In addition to the teams for each department, Mr. Christie has appointed a Transition Counsel team. The Transition Counsel team is made up of twelve New Jersey lawyers. We will provide legal assistance and advice to the departmental teams. We are all volunteers. We receive no compensation for our service. What is interesting about the Transition Counsel is that it is comprised of lawyers from small law firms from around the state. As a group, we will bring a Main Street perspective to our task.
I am humbled and honored to play even a small part in this transition.
Wednesday, November 25, 2009
Reflections on 25 Years in the Law (Part One)
I have been preparing to handle your legal matter for twenty-five years. Knowing the law and knowing how to find the law is only one part of the lawyer’s stock in trade. The law must be tempered by experience. From my work in a law firm while still in college to my time as a prosecutor to my years in private practice, I have accumulated different experiences and insights that help my clients. At decade’s end, we are taking stock of the successes - and disappointments - that have brought our firm to the new decade. (The photo depicts the Point-a-la-Hache ferry across the Mississippi River in Louisiana’s Plaquemines Parish.)
In 1984, I was a senior at Tulane University in New Orleans. For a variety of reasons, I had become interested in the law, and had been fortunate enough to land a job as a “court runner” at a very well-regarded New Orleans law firm. As a court runner, it was my job to make sure that the firm’s legal papers were filed in the right place, and that the firm had filed copies to prove it. Most of the time, that meant a quick run to the New Orleans Central Business District. Sometimes, however, that meant a drive to one of Louisiana’s more remote outposts of justice.
One day that sent me to Point-al-la-Hache, the seat of the parish government in Plaquemines Parish, and home to the Twenty-Fifth Judicial District Court. Plaquemines Parish sits at the mouth of the Mississippi River. It is where the roads end and where the land gradually disappears. To get to the courthouse, I had to go to road’s end and take a ferry across the river to Point-a-la-Hache.
My task that day was to get a particular court order signed. I don’t remember the details, but I do remember that there was some sort of important deadline to make. So there I was, a young, skinny college student from Northern New Jersey, who was quite clearly from the city. I had never been to Point-a-la-Hache, so I had to figure out how to get a judge’s signature on the proposed order. I had to go to every room in the courthouse - Civil Case Management, the cashier, the Sheriff, jury management - before someone explained to me that I needed to go see the judge directly.
Usually, that means going to the judge’s chambers, which I did. Once there, the judge’s secretary told me that I needed to go into the courtroom and see the judge himself. The courtroom was one of those large courtrooms, sort of like the one in the movie “My Cousin Vinny”. From his elevated bench, the judge was presiding over a trial. I had no idea what to do. The secretary had told me to approach the bench and hand the papers to the judge, but to say the least, I was not comfortable doing that. More to the point: I was mortified.
However, I could not drive an hour each way, take a ferry, and come back empty handed and have my firm miss a deadline.
I asked the Sheriff’s officer what to do. He got the judge’s attention. The judge took a short break, and motioned for me to approach. I felt like I was approaching the fifty yard line in the New Orleans Superdome. That is, I felt very small and very out of place and like everyone in the room was looking at me. The judge looked at the papers, signed the order and sent me on my way. Once I obtained a true copy of the order, I got back on the ferry and made my way back to New Orleans.
I was not a lawyer, and I did not say a word on the record, but I guess you could say that on that day in 1984, I made my first court appearance on the banks of the river that inspired Mark Twain.
As a court runner, I learned about the practical side of the law. A lawyer has to be able to know the law and be able to find out what the law is so that he or she can advise his or her client as to their legal rights. But it is not enough to have a legal right. It is not enough to identify it. A lawyer has to be able to know where to go, especially in a pinch, to protect those rights. By learning the basements and the administrative offices that stand in the background of the courts, I learned how to do just that.
Thursday, August 27, 2009
Howes & Howes to Defend Assemblyman Chiappone
Assemblyman Anthony Chiappone represents New Jersey’s 31st Legislative District. He is a first rate public servant who has fought for fiscal accountability and teen driver safety, and against costly P.S.L.s. Tony’s political opponents have recycled some old allegations against Tony. Has now been indicted by a state grand jury. Assemblyman Chiappone has done nothing wrong. He has asked Howes & Howes to defend him against these allegations. On this website, we will provide regular updates on the status of this very important case.
Assemblyman Tony Chiappone represents the 31st Legislative District. The district covers the City of Bayonne and Wards “A’ and “F” in Jersey City. He served honorably as a City Councilman for Bayonne until early this year. While a member of the Bayonne City Council, Tony was a fiscal watchdog and whistleblower. The problem with being a whistleblower is that you can make some very powerful enemies.
That’s just what happened when Tony blew the whistle on a very big and very shady land deal. The very big and very shady land deal involved the City of Bayonne and the Military Ocean Terminal. When the mayor of Bayonne made a deal to sell the land to the Port Authority for fifty million dollars, Tony objected because the price offered for the very strategic piece of land was grossly insufficient. Furthermore, the deal was done in violation of the Sunshine Laws. Tony succeeded. The transaction was voided. The land was sold for ninety million dollars not long after the Port Authority contract was canceled.
Ever since, Tony’s powerful enemies have tried to get rid of him politically. First, he was forced out of his seat on the Bayonne City Council this April. Not long thereafter, an investigation surfaced, an investigation of very old and very scurrilous allegations made by Tony’s enemies. Yesterday, those allegations ripened into an indictment.
It has often been said that you can indict a ham sandwich. That is, the proof level for an indictment is so low that it doesn’t take much evidence for a grand jury to return an indictment. A grand jury can indict someone based on hearsay evidence. It can indict someone if there are one or more alternate explanations for each piece of evidence, or even if there is some inconsistency in evidence. A conviction is quite different.
To get a conviction, the State must prove each and every element of the offense beyond a reasonable doubt. We have been trying criminal cases at Howes & Howes for seventeen years, and we intend to try this case. We fully expect that the jury will find Mr. Chiappone not guilty.
PLEASE VISIT THIS WEBSITE FOR PERIODIC UPDATES.
Thursday, July 02, 2009
“No entiendo” is no defense, according to the New Jersey Appellate Division
On July 1, the Appellate Division ruled that “no entiendo” is no defense to the charge of refusing to take a breath test. A motorist who clearly did not speak English stated that he did not understand the standard DWI rights form. He did not take the breath test, then was tried and convicted for refusing to take a breath test. The court held that New Jersey law does not require the state to publish or the police to use a foreign language rights form when investigating a case of driving while intoxicated, and upheld the conviction.
A duly licensed driver drove drunk through Plainfield. He was stopped because the police suspected that he was driving while intoxicated. When asked for his credentials in English, he did not understand. When asked in Spanish, he complied. He had a valid drivers license, valid registration and valid insurance. He was also driving while intoxicated. As such, the investigating officer arrested him and took him to the Plainfield Police Division for further investigation.
A standard and legally required part of a DWI investigation is the use of a written statement of rights. The officer reviews the written statement with the motorist prior to the administration of the breath test. Among other things, the statement explains the mandatory nature of the breath test, the minimum penalties for refusing the test, and the test subject’s right to have a defense expert conduct independent chemical testing of the sample. The statement was written in English.
After the standard statement was read to him in English, defendant responded in Spanish, “No entiendo,” meaning “I do not understand.” Officer Lugo then visually demonstrated to defendant, an estimated “three or four times,” how to blow air into the test device. Defendant did not perform the test. Instead, he shook his head and pointed to one of his eyes.
The motorist defended against the refusal charge by arguing that due process required a Spanish language form. The municipal court and the Law Division did not agree. The Appellate Division upheld the conviction, opining:
“In the present context of this case involving the refusal
statute, we are persuaded that due process was satisfied, and
that Officer Lugo was not constitutionally obligated to read the
standard statement to defendant in Spanish. We are mindful that
it is undisputed that defendant is not fluent in English.
However, we are also mindful of the clear implications of the
implied consent law, a statute that our courts have consistently
upheld as constitutional. Cummings, supra, 184 N.J. at 89;
Breslin, supra, 392 N.J. Super. at 584. In procuring his New
Jersey driver’s license and in operating his automobile on our
public roadways, defendant provided his advance consent to
submit to a breath sample. That consent, as a constitutional
matter, sufficiently reflects that defendant knew, or should
have known, that he could not decline to blow air into the
breath testing device without exposing himself to licensure
sanctions.
The sufficiency of notice is buttressed by the fact that
the New Jersey motor vehicle license testing process includes
specific coverage of our drunk driving laws, including the
refusal statute. Defendant was permitted to take the written
portion of the examination in Spanish. It is noteworthy that
the MVC’s driver’s manual, which is made available to persons
such as defendant before they sit for the examination, is
translated into Spanish. The manual contains a specific section
that describes the refusal statute and the informed consent law,”
Thursday, February 26, 2009
Will the New Jersey Budget Crisis Hurt Parental Rights?
The State of New Jersey is on the precipice. Tax revenues are down due to the effects of the recession. The Division of Youth and Family Services seems oblivious to the hard fact of declining resources. DYFS continues to increase the number of families that it supervises or seeks to supervise. Something has to give. What will be cut, and how will that effect your parental rights if you are involved with DYFS?
Because of the New Jersey state budget crisis, there will be pressure - and rightly so - for the state government to cut spending. For DYFS, the solution to diminished resources should be simple. DYFS could respond by using the “Jerry Maguire” philosophy. In the hit movie “Jerry Maguire”, the protagonist causes quite a stir in the sports and entertainment agency firm when he circulates a memorandum that proposes a change in corporate philosophy. Jerry’s thesis: Serve less clients, do a better job. It would make sense for DYFS to serve less clients and do a better job with the more serious cases of abuse and neglect. I think that we are pretty safe in predicting that DYFS will not reduce the number of families that it supervises, despite the fact that it could do so without any danger to children.
The budget pressure will manifest itself in other ways, ways which will harm parental rights.
It is likely that there will be short furloughs. According to reports, state workers will be asked to take two day furloughs. DYFS workers and the attorneys who represent them will have two less days in which to do their jobs. The likely result is that it will be much more difficult for parents to communicate with their DYFS workers and for the parents’ attorneys to communicate with DYFS’s representatives. The result will be to make life even more difficult for those whose lives are supervised by DYFS.
It is also likely that there will be less money for rehabilitative services. In many instances, DYFS is required to provide rehabilitative services to parents. Services such as drug/alcohol rehabilitation, parenting classes, anger management etc. are quite often required by law and enforced by court order. The budget crisis will likely restrict the resources available to DYFS to provide rehabilitative services. Reduced services will tend to cause more conflict between DYFS and families, and will tend to extend DYFS’s supervision of many individual families.
The bottom line is that the budget crisis has the potential to erode parental rights and privacy in New Jersey.