NJ Legal Beat
Friday, September 09, 2005
Former sex offenders question the scope of bans
At least four New Jersey towns ban sex offenders from living near schools, parks and playgrounds and others are considering these restrictions. Some sex offenders who have served their sentences are questioning the effectiveness and the legality of these bans.
People who have been convicted of sex offenses are required under Megan’s Law to register with the authorities even after they have served their sentences. The government is under continuing pressure to do even more. As a result, New Jersey towns are considering sex offender bans and some have already been passed into law.
One New Jersey town banned convicted sex offenders from living within 2500 feet of areas where children congregate. The theory is to establish a “buffer zone” for the safety of the children. The town leaders went one step further - they established a buffer zone with a 2500 foot radius around each school bus stop in town. Since there are over 2000 school bus stops in that town, the ordinance effectively bars sex offenders from living anywhere in that town.
If this trend continues, then there will be nowhere in New Jersey for convicted sex offenders to live. Sounds good, right?
Opponents of these ordinances fear that there is no way for a local politician to vote against them. Some have gone so far as to question how government would be able to enforce such a ban, and have questioned the legality of such a ban. According to some, the bans are too broad in scope. One advocate has even accused elected officials of using the issue to score “cheap political points” with their constituents.
It is likely that a formal legal challenge will materialize, and the New Jersey courts will decide the issue.
Wednesday, August 03, 2005
D.W.I. Update: The constitution still matters. (State v. Puzio)
In recent years, the New Jersey Legislature has made drunk driving law increasingly tougher, removing discretion from the prosecutor and from the judge. In a recent case, the Appellate Division has made it clear that police officers must comply with the constitution even when it turns out that the motorist was driving while intoxicated.
Score one for the advocates of motorists’ rights. On August 1, 2005, the New Jersey Appellate Division held that in order to stop a motorist for a motor vehicle violation, an officer must have more than a “good faith belief” that the motorist has violated the motor vehicle code; instead, the courts will hold the officer to the higher standard of “objectively reasonable belief.”
Each time a police officer takes an action, he must comply with the search and seizure requirements of the New Jersey and U.S. Constitutions. In the case of a motor vehicle stop, the officer must have a reasonable and articulable suspicion that the motorist has violated the law. That standard is something less than is required for a conviction. If a court finds that an arresting officer did not have a reasonable and articulable suspicion for a stop, then it can not consider any evidence that the police obtain as a result of the illegal stop.
In a drunken driving case, that means that the breathalyzer results and any observations of the motorist’s performance of psycho-physical testing. In other words, if the stop is unconstitutional, then the motorist wins the case, even if there was enough evidence to prove him guilty.
What does the Puzio case mean? It means that the officer must be correct in his understanding of what the motor vehicle code means. The courts will not uphold a stop if the motor vehicle code says something other than what the officer believed it to say. The officer can not just say, “Oops, I was wrong about the statute, but I really believed that I was in the right.” The officer must be right about the law in order to justify the stop to the court.
Thursday, April 21, 2005
The New Jersey Supreme Court rocks the Jersey City Mayor’s race with unanimous ruling.
Despite the fact that she had collected more than enough signatures to qualify for the May 10, mayoral election, the City Clerk of Jersey City kept former City Councilwoman Melissa Holloway off of the ballot. The New Jersey Supreme Court did not let the City Clerk get away with it, and ordered him to place Ms. Holloway on the ballot.
Melissa Holloway is a former City Councilwoman in Jersey City. Like many public servants, she wanted to serve at a higher level, so she prepared a nominating petition to run for Mayor of Jersey City in the May 10 election. The only other substantial candidate in the race is Mayor Jeremiah Healy, who is seeking re-election.
Ms. Holloway and her supporters collected far more signatures than the 1,197 needed for nomination. However, the City Clerk found that her petition was deficient. As was her right under the law, she cured many of the alleged defects. The City Clerk then certified her petition, thereby allowing Ms. Holloway on the ballot.
Enter Mayor Jerry Healy.
After the statutory time period for petition challenges, someone acting on Mayor Healy’s behalf filed a challenge. In response to the challenge from the Jersey City Mayor, the Jersey City Clerk de-certified Ms. Holloway.
Ms. Holloway then headed to the Superior Court. She lost in the Superior Court. Her emergent appeal to the Appellate Division failed. Her last hope was the New Jersey Supreme Court. Associate Justice Barry Albin heard argument from Karen DeSoto, Esq., Ms. Holloway’s appellate counsel. After deliberations, the full court decided unanimously to reverse the trial court and the Appellate Division, and allow Ms. Holloway’s name to appear on the ballot.
Now the voters of Jersey City will have a true choice on May 10. There will still be problems, however, because absentee ballots have already been mailed, and absentee votes have already been received.
Tuesday, March 29, 2005
The Schiavo case points to the need for advance directives for health care
While the media has focused on the political and moral issues raised by the Schiavo case, there is a very practical lesson for all of us: Make sure you have an enforceable living will.
The Teri Schiavo case has dominated the news this March. Her parents have left no stone unturned in their quest to save her life. They have gone to every level of the Florida state and federal courts, and have petitioned the U.S. Congress, the Florida Legislature and Governor Jeb Bush for help.
The case has forced many Americans to recognize that human life is sacred, and when there is doubt as to someone’s wishes, the presumption should be in favor of life. While the moral and political issues have dominated the debate, there is one practical issue for each and every one of us: Make sure that you have a living will.
The law allows Each of us to decide who will serve as our health care representative if we become incapacitated, and what measures doctors should use to keep us alive should we become incapacitated. Our wishes are then memorialized in a legally recognized document known as Advance Directive for Health Care, or more commonly, a living will. Unfortunately, there is no such document in the Schiavo case.
There are road maps that guide us in creating advance directives. In New Jersey, experts have done extensive research, created guidelines and drafted forms of advance directives for New Jersey residents to use. Each person makes decides which options suit him based on his or her own ethical and/or religious beliefs. Many experts have published guides. The State of New Jersey has published one for general use. The Roman Catholic Diocese of Metuchen has published another for practicing Roman Catholics.
None of us ever wants to use our living will. However, each of us should create one as part of a comprehensive estate plan. By doing so, we can save our loved ones months or even years of anguish.
For more information on how to create a living will, click on the links below:
Roman Catholic Diocese of Metuchen, NJ
State of New Jersey
Wednesday, January 26, 2005
Illinois v. Caballes: Is the Consitution going to the dogs?
The United States Supreme Court eroded our freedoms yesterday when it ruled that the police can use a canine sniff at the scene of a routine stop of a motor vehicle for a traffic violation. There is hope, however, because the New Jersey Constitution provides for individual protections that go beyond those that the United States Constitution provides.
Imagine that the police have stopped your car for a routine speeding violation. The police ask for your license, registration and insurance, but then they do something unexpected: They have a drug sniffing dog smell the outside of your car. There is no suggestion of anything illegal, other than a speeding violation. It may seem absurd but it has happened.
Thanks to the recently decided case of Illinois v. Caballes, the United States Constitution now permits the police to take such an intrusive action. The facts of the case are as follows. In 1998, an Illinois State Trooper pulled over Caballes for speeding. As the officer issued Caballes a warning, another officer arrived and led a drug-sniffing dog around Caballes’ car. The dog alerted the officers to the trunk of Caballes’ car, in which they found over $250,000 worth of marijuana. Caballes claims that using a “canine sniff” in the absence of a reasonable suspicion of illegal activity violated his Fourth Amendment right against unreasonable search. The state trial court held the search reasonable and denied Caballes’ motion to suppress the drug evidence. The appellate court affirmed. The Illinois Supreme Court reversed, stating that “specific and articulable facts” are necessary to justify the use of a drug-sniffing dog.
The United States Supreme Court reversed the Illinois Supreme Court, holding that the police don’t need anything beyond a legitimate motor vehicle violation to have a drug dog sniff your car. The Caballes decision is certain to cause litigation in the New Jersey courts because the New Jersey Constitution gives the individual more protection than its federal counterpart. This is a decision that New Jersey courts must severely limit.
Howes & Howes is currently involved in a substantial case that may be directly affected by the Caballes decision. If you have any questions regarding this issue, then please contact Howes & Howes.
Tuesday, December 28, 2004
Settlement of New York class action lawsuit gives new hope to victims of domestic violence
The settlement in Nicholson v. Scoppetta ended the pitiless double abuse of removing children from the custody of mothers who were the victims of domestic violence in New York. This landmark case is likely to have implications here in New Jersey as DYFS struggles with domestic violence in custody, visitation, and abuse and neglect.
Domestic violence does not discriminate. It is a scourge that touches on each and every one of New Jersey’s 568 municipalities. More often than not the victims of domestic violence are mothers who face a horrible dilemma. They need to protect themselves from a violent spouse or significant other, but if they report him to the police, they fear that the police will report the family to DYFS and they will lose their children.
Mothers who are victims of domestic violence need not navigate between Scylla and Carybdis anymore, thanks to a settlement reached in a class-action lawsuit on behalf of New York victims of domestic violence. The settlement in Nicholson v. Scoppetta has ended the practice of automatic removal of children who witness their mother’s being abused.
The settlement is not binding in New Jersey, but it is likely to have implications here.
In New Jersey, DYFS can remove a child from his or her home if there is neglect or abuse of that child. Removals sometimes happen in the context of an abusive household. When DYFS learns of domestic violence in a home with children, it will intervene in that family. Domestic violence can be part of a finding of neglect or abuse under New Jersey law. A victim of domestic violence need not fear being a second indignity when DYFS removes their child from the home.
The settlement in the Scoppetta case stands for the proposition that domestic violence in a home is not grounds for removal of the children in-and-of-itself. DYFS must take heed of this principle so that domestic violence victims don’t have to fear DYFS when seeking the police protection that they need.