00001
1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - HUDSON COUNTY
2 DOCKET NO. HUD-L-3520-04
PETER deVRIES and TIMOTHY
3 CARTER
TRANSCRIPT
4 OF PROCEEDING
Plaintiffs,
5 TRIAL DAY 13
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
- - - - - - - - - - - - - - - -
8
HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Friday, May 30, 2008
Commencing 12:40 a.m.
11
B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
14
15
16
17
18
19
20 SCHULMAN, WIEGMANN & ASSOCIATES
21 CERTIFIED SHORTHAND REPORTERS
22 216 STELTON ROAD
23 SUITE C-1
24 PISCATAWAY, NEW JERSEY 08854
25 (732) - 752 - 7800
00002
1 A P P E A R A N C E S:
2
3 SMITH MULLIN, ESQS.
4 Attorneys for the Plaintiffs
5 240 Claremont Avenue
6 Montclair, New Jersey 07042
7 BY: NEIL MULLIN, ESQ.
8 NANCY ERIKA SMITH, ESQ.
9
10 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
11 Attorneys for the Defendants
12 360 Passaic Avenue
13 Nutley, New Jersey 07110
14 BY: DANIEL R. BEVERE, ESQ.
15 DAVID M. PARIS, ESQ.
16
17
18
19
20
21
22
23
24
25
00003
1 E X H I B I T S
2 NUMBER DESCRIPTION PAGE
3 C-10 Letter dated 9/19/05, Bates stamped
4 AG 36 136
5 C-11 Plaintiffs' first set of
6 Interrogatories to Defendants served
7 4/13/05 133
8 C-12 Defendants' Response to Plaintiff's
9 Interrogatories 134
10 C-13 Plaintiffs' Supplemental Request for
11 Production of Documents 135
12 C-14 Defendants' Response to Plaintiffs'
13 Supplemental Request for Production of
14 Documents 135
15 C-15 Complete deposition of Mayor
16 Elwell 136
17 C-16 Complete deposition of Mr. Walters 136
18 C-17 Complete deposition of Mr. Iacono 136
19
20
21
22
23
24
25
00004
1 JUDGE CURRAN: We will go on the
2 record in the matter of deVries and Carter
3 versus the City of Secaucus -- Town of Secaucus.
4 I will note for the record that the jury is not
5 in court, the attorneys are.
6 I will also indicate that we have
7 a number of motions and issues to discuss today.
8 One of the issues we need to cover -- and if
9 it's okay with counsel, we can do that later --
10 is evidence. I would, however, ask that we not
11 do that first because we have a very kind court
12 clerk who is filling in for the lunch hour; but
13 it wouldn't be fair to her to have to go through
14 the evidence. So when Shirley comes back, that
15 would be more appropriate.
16 I will note that I have received,
17 I believe, all of the submissions from counsel.
18 I wouldn't say, honestly, that I have had chance
19 to go over them and review them in depth; but I
20 have at least familiarized myself with them.
21 Does counsel have one issue with
22 which you want to start? Mr. Paris.
23 MR. PARIS: Excuse me, Your Honor.
24 Frankly, I would like to try to get our motions
25 to dismiss heard as early in the -- you know, as
00005
1 early as possible.
2 JUDGE CURRAN: Makes sense to
3 start with those.
4 MR. PARIS: I would think so,
5 before we have a charge conference.
6 JUDGE CURRAN: No, no, I wasn't
7 thinking the charge conference. I was thinking
8 of other issues, not just the motion to dismiss.
9 But certainly, it makes sense to start with the
10 motions to dismiss.
11 MR. PARIS: Well, if I can just
12 get my paperwork. I mean, I can pick up where
13 we left off because Mr. Mullin was -- was -- had
14 argued, and then I think it was my opportunity
15 to respond to Mr. Mullin's argument. And if I
16 may, I would do that.
17 The other thing that we advised
18 the Court -- and I realized today -- was that we
19 also made an earlier motion -- we made an
20 earlier motion to dismiss the -- excuse me, one
21 second, Your Honor. We had made an earlier
22 motion to dismiss the punitive damage aspects to
23 the case. And frankly, at this point there
24 is -- there has been no testimony that's been
25 presented that would support an award of
00006
1 punitive damages against a municipality. And we
2 would certainly argue that that aspect of the
3 plaintiffs' claim should be dismissed.
4 Most recently I directed Your
5 Honor's clerk to a case that came out of the
6 Federal District Court in March, the Damiani
7 matter. And in that case the court -- and we
8 would be heard on this case both with regard to
9 the motion to dismiss the punitive damage aspect
10 of the case, as well as the jury charge. But
11 the court in the Damiani matter analyzed the
12 inter -- the different New Jersey Statutes from
13 the NJ LAD to CEPA to the New Jersey Civil
14 Rights Act, which we're dealing with here.
15 And I will cut to the chase on
16 this. At page five of the opinion the court
17 said that, "Unlike the New Jersey LAD or CEPA,
18 the New Jersey Civil Rights Act does not contain
19 any specific provision allowing the plaintiff to
20 seek punitive damages or even all remedies
21 available in common law tort actions."
22 MR. MULLIN: What page are you on?
23 I'm sorry.
24 MR. PARIS: I'm sorry, this is
25 page five of the -- I'm sorry, this is a slip
00007
1 copy.
2 JUDGE CURRAN: Do me a favor -- I
3 had done this yesterday. Just alphabetize that
4 for me.
5 MR. MULLIN: What subsection.
6 JUDGE CURRAN: Off the record.
7 (Whereupon, a discussion is held
8 off the record.)
9 JUDGE CURRAN: Frankly, I will
10 tell you what I normally try to do -- thank
11 you -- is alphabetize the cases out here,
12 plaintiff and defense. But yesterday got a
13 little crazy, and so I didn't. I couldn't find
14 it. Thank you.
15 MR. PARIS: In any case -- and
16 again, just trying to cut to the chase, at the
17 end of Roman Numeral VI of the Damiani matter,
18 as I was saying, it says, "Unlike the New Jersey
19 LAD or CEPA, the New Jersey Civil Rights Act
20 does not contain any specific provision allowing
21 plaintiff to seek punitive damages or even all
22 remedies available in common law tort actions
23 but, rather, only provides a general provision
24 for seeking appropriate civil penalties of an
25 amount to be determined. If the legislative
00008
1 intended the New Jersey Civil Rights Act would
2 include punitive damages as a remedy, it would
3 have expressed its intent to do so in a manner
4 consistent with the New Jersey LAD or CEPA.
5 Instead, the New Jersey Civil Rights Act is
6 functionally equivalent to Section 1983 or -- to
7 Section 1983, a statute that prescribes awarding
8 punitive damages against public entities. Thus,
9 in this particular case the court held that
10 defendant's motion to dismiss the punitive
11 damage claims would be granted."
12 And earlier in the decision what
13 the court -- what the Court says -- and analyzes
14 the New Jersey Civil Rights Act -- what the
15 Court says is that the New Jersey Civil Rights
16 Act provides -- and this is actually in the next
17 Roman numeral. It says in Roman numeral VII --
18 JUDGE CURRAN: VII, right?
19 MR. PARIS: -- "Both statutes" --
20 and this is referring to the Civil Rights Act
21 and to 1983 -- "are functionally similar, as New
22 Jersey Civil Rights Act provides a cause of
23 action for any violation of substantive due
24 process or equal protection rights, privileges
25 or immunities secured by the United States
00009
1 Constitution, New Jersey Constitution, Federal
2 laws or New Jersey State laws."
3 And then it -- it does provide
4 some interpretation with regard to New Jersey
5 Civil Rights Act and the particular context of
6 12(b)(6) motion. But the fact is -- and the
7 Court had already determined -- that essentially
8 the New Jersey Civil Rights Act was the
9 functional equivalent of a 1983 action. We're
10 applying 1983 standards as the Court had ruled
11 earlier. And under 1983 there are no punitive
12 damage claims permitted against a municipality.
13 And then the court in Damiani
14 analyzed the language of this Civil Rights Act
15 and also concluded that the legislature had not
16 included the remedy of punitive damages within
17 the New Jersey Civil Rights Act.
18 So there -- there is no legal
19 authority to claim that there should be punitive
20 damages in this case. You know, and that's
21 strictly the legal position from a factual
22 position. There certainly is nothing that would
23 suggest in this case that an award of punitive
24 damages was required. There was certainly no
25 conduct -- even if you didn't have the bar under
00010
1 the statute, there is certainly no conduct
2 that's been alleged as part of the plaintiffs'
3 case that would support an award of punitive
4 damages.
5 JUDGE CURRAN: Thank you.
6 Mr. Mullin.
7 MR. MULLIN: Your Honor, I just
8 got the Damiani case, so it's new to me; but I
9 will try to respond.
10 First of all, counsel is
11 overlooking the fact that we have alive here two
12 separate cases of action. One is under the
13 State Constitution; and one is under 10:6-2, the
14 Civil Rights Act. Counsel has found an opinion
15 that's not binding on this Court from Judge
16 Irenas, United States District Judge, that
17 purports to interpret 10:6-2. Let's leave that
18 on the side for a moment.
19 The State Constitution. As the
20 Supreme Court said in Shaner is the
21 antidiscrimination provisions of the State
22 Constitution have been enacted and implemented
23 by the Law Against Discrimination.
24 In Abbamont, A-b-b-a-m-o-n-t, v.
25 Piscataway, 138 NJ 405, the Supreme Court of New
00011
1 Jersey held that punitive damages were available
2 against a public entity. And in fact, the
3 LAD -- through the LAD the legislature had
4 waived whatever common law immunity that existed
5 with regard to punitive damages. That's, again,
6 the LAD is the implementation and enactment of
7 the Constitutional provisions on which I rely.
8 In Cavouti, C-a-v --
9 C-a-v-o-u-t-i, v. New Jersey Transit Corp., 161
10 NJ 107, the Supreme Court of New Jersey set out
11 some important standards for when punitive
12 damages should be awarded in a discrimination
13 case. And of special importance there, that
14 court decision held that even supervisors and
15 managers in the second tier level who engage in
16 egregious conduct which showed a willful
17 indifference bind the entity for punitive
18 damages.
19 Here we had individuals leading
20 the attack who fit the description of second
21 tier management set forth in Cavouti, in that we
22 had the captain, Snyder, Jr., who was charged
23 with basically running that whole firehouse; and
24 he -- he was one of the mob leaders or one of
25 the attack leaders.
00012
1 But even notwithstanding that, we
2 have all the arguments I made yesterday, which I
3 am not going to repeat on the record. I think
4 it was yesterday. The days blur together.
5 JUDGE CURRAN: Yesterday.
6 MR. MULLIN: But I made a long and
7 detailed factual argument to demonstrate willful
8 indifference, albeit I did it for purposes of
9 the Federal -- Federal statutory standard that
10 counsel was suggesting. I rely on all those
11 arguments.
12 Upper level managers showed
13 willful and deliberate indifference, callus and
14 reckless indifference to the rights of my
15 clients in many different ways.
16 One way, certainly, is after
17 knowing what happened on April 25th, 2004, five
18 days later, without taking into consideration at
19 all -- and I'm referring to the testimony of
20 Administrator Iacono -- the life and safety and
21 health of Peter deVries and Tim Carter, they,
22 without notice to my clients, reopened that
23 firehouse and foreseeably and predictably,
24 immediately attacks and harassment began that
25 furthered their emotional collapse. It's a
00013
1 shocking and egregious and cruel act that rises
2 to the level of punitive damages.
3 There are many, many other
4 factors that I won't repeat. I'm sure -- I know
5 the Court took extensive notes and heard me.
6 And I don't want to have to repeat myself. I
7 rely on all of those arguments, Your Honor.
8 Now as to a separate cause of
9 action, 10:6-2, I haven't had time to absorb the
10 Damiani case; but to me it's -- let me say that
11 our Supreme Court has many times disagreed with
12 Federal authority, especially when it comes to
13 discrimination law. They have been more
14 liberal, more far-reaching in interpreting our
15 laws than the Federal Courts had been in
16 interpreting Federal Civil Rights laws. We, of
17 course -- than the United States Supreme Court
18 takes a viewing in interpreting Federal Civil
19 Rights law. Let me say that.
20 So I just got this decision
21 today. It's -- but it's really almost
22 immaterial because the question of punitive --
23 whether or not it goes to the jury under 10:6-2
24 doesn't matter. Punitive damages should go to
25 the jury under my State constitutional count
00014
1 under -- given the principles I just described.
2 We don't have to resolve at the trial level
3 this -- this novel issue of statutory
4 interpretation. It's simply not necessary.
5 Punitive damages go to the jury.
6 I would say, just glancing at the
7 decision and glancing at the statutory language
8 of 10:6-2, that at the end in Section F of
9 10:6-2, the statute says, "In addition to any
10 damages, civil penalty, injunction or other
11 appropriate relief awarded in an action brought
12 pursuant to Section C of this section, the court
13 may award prevailing party reasonable attorneys
14 fees and costs." While that phrase, "any
15 damages" is -- is -- could be interpreted to
16 mean all damages, including punitive damages,
17 but again, Your Honor, it's a novel issue, the
18 Court doesn't have to reach it.
19 I'm not prepared on -- on a few
20 hours notice to address this Damiani case, and
21 it's not necessary to reach the issue.
22 JUDGE CURRAN: Would you be kind
23 enough to please give me the names and the sites
24 on those two cases again?
25 MR. MULLIN: Sure, of course.
00015
1 JUDGE CURRAN: I just want to be
2 sure I have them.
3 MR. MULLIN: It was Abbamont,
4 A-b-b-a-m-o-n-t, v. Piscataway Township Board of
5 Education. And the site is 138 NJ 405. And
6 it's a 1994 New Jersey Supreme Court case.
7 JUDGE CURRAN: Thank you.
8 MR. MULLIN: The other one is
9 Cavouti, C-a-v-o-u-t-i, v. New Jersey Transit
10 Corporation, 161 NJ 101. And that's 1999. If
11 you will give me one second, maybe I can even
12 find the page cite to that passage on second
13 tier management. I would say that that passage
14 starts towards the end of page 122. There is a
15 subheading in the opinion entitled, "Upper
16 management is not uppermost management."
17 And there was a whole analysis
18 that goes on for several pages after that. And
19 I believe it's in -- in that subsection, Your
20 Honor, that the idea of second tier management
21 is discussed, that there is a certain kind of
22 second tier -- obviously, all upper management,
23 like a town manager, a mayor, fire chief,
24 fire -- police chief, well, they all obviously
25 bind the Town.
00016
1 The question becomes different
2 when we look at the middle tier management. And
3 this -- this Court has a very -- this decision
4 has a very well-reasoned, easily applicable set
5 of principles that I -- I can say, Your Honor,
6 that I did -- I used it at trial against Essex
7 County involving a case, Sheriff Caggiano. And
8 there the court held that the action of captains
9 bound the Town under Cavouti. But that is not
10 presidential; that was a trial court decision.
11 This is presidential, obviously.
12 And I think that it's very clear
13 that when you're given command of a firehouse --
14 and under Chapter 12 captain even has some
15 authority to discipline and to recommend
16 discipline, as well -- and to control and run
17 the firehouse, you're -- you're -- you can bind
18 the entity under Cavouti.
19 JUDGE CURRAN: Okay.
20 MR. PARIS: Your Honor, can I be
21 heard on it? Clearly, what's still being done
22 here today, even up to this point, is trying --
23 is trying to throw causes of action into this
24 case and law applicable to other statutes which
25 the Court has already determined do not apply to
00017
1 this case into this case.
2 What the Damiani court said,
3 which is absolutely illustrative here, is that
4 under LAD, under CEPA, you may get punitive
5 damages. And the cases that Mr. Mullin cites,
6 cases under LAD, under CEPA, you can get
7 punitive damages. And what does the court say?
8 Unlike LAD, unlike CEPA, the New Jersey Civil
9 Rights Act does not provide for that remedy.
10 Where the legislature intended to provide the
11 remedy they made it clear. Under the Civil
12 Rights Act they didn't -- they did not include
13 that as a remedy.
14 In addition, we keep hearing
15 about two causes of action. What the Court in
16 Damiani, what other courts -- well, what the
17 Court in Damiani says and which we've been
18 arguing and I think the court has held because
19 the Damiani court goes right back to Monell and
20 cites Monell, the fact is that in this case the
21 New Jersey Civil Rights Act, notwithstanding
22 cases that existed before the act was adopted,
23 the New Jersey Civil Rights Act talks about a
24 private cause of action in the event that you
25 are claiming a violation of your substantive
00018
1 or -- or equal protection rights under the
2 Federal Constitution or the State Constitution.
3 And it says this is your cause of action.
4 And that's the way the court has
5 framed this. That is the way we tried this case
6 from the beginning. The deliberate indifference
7 cannot be used somehow as a standard to make the
8 ordinary consequential damage recovery and say
9 that, at the same time, if I prove deliberate
10 indifference, I'm entitled to punitive damages,
11 when nothing that's ever interpreted deliberate
12 indifference has ever come back and said you're
13 entitled to punitive damages. There is not one
14 case that's been cited that says that under 1983
15 or under 10:6-2C that there can be an award of
16 punitive damages. That's just simply not a
17 cause of action.
18 Now, LAD, fine, CEPA, fine. We
19 are not arguing those cases here. But under
20 this, this is absolutely no legal basis. If
21 Mr. Mullin had legal basis for punitive damages
22 under the statute, the Federal statute upon
23 which this is framed, what -- what the court in
24 Damiani says -- I think the words they used are
25 "the functionally similar provides a cause of
00019
1 action"; and then it goes on.
2 This is, I guess -- hard for me
3 to figure out; but I guess it's page six of the
4 decision, which is in Roman numeral VII. The
5 court starts off -- the court starts, "The court
6 will also permit Plaintiff's Count Two claims
7 brought pursuant to Civil Rights Act to proceed
8 against the Township and the Chief of Police for
9 the same reasons that justify sustaining her
10 claims under 1983. Both statutes are
11 functionally similar," and it goes on to say,
12 "as the New Jersey Civil Rights Act provides a
13 cause of action" -- and it talks about the cause
14 of action with regard to the New Jersey
15 Constitution.
16 So you can plead things as two
17 separate counts; but the legislature made it
18 clear that when you're seeking to vindicate a
19 State Constitutional right, as the plaintiffs
20 say they are in this case, that this is a NJ
21 Civil Rights Act case and the remedy of punitive
22 damages simply isn't there.
23 MR. MULLIN: Your Honor, again, we
24 didn't even have 10:6-2 in the case until
25 recently, when Judge Gallipoli allowed us to
00020
1 amend. The only reason we sought that amendment
2 is because Your Honor dismissed the LAD claim
3 and we no longer had statutory attorneys fees.
4 And that's the only reason we amended. So if we
5 were to look at this case before we ever put in
6 10:6-2, what we had was an LAD claim with
7 various counts. Then we had a State
8 Constitutional claim that incorporated
9 everything in the complaint, pled, you know,
10 discrimination and harassment.
11 Counsel can refer to this statute
12 that's not cited anywhere in the pleadings all
13 he wants. He can say, "42 U.S.C. 1983" until
14 the chickens come home; but that's not in my
15 complaint.
16 I had a count under the LAD -- I
17 had a couple counts under the LAD. I have a
18 count under the State Constitution. And much
19 later I added 10:6-2.
20 Under the State Constitution --
21 State Constitution antidiscrimination provisions
22 have been enacted and implemented by the New
23 Jersey Law Against Discrimination. Those aren't
24 my words. Those are the words of the Supreme
25 Court of New Jersey in the Shaner case, which I
00021
1 cite in the footnote in my jury instructions.
2 It's also that phrase that a
3 concept of enactment appears elsewhere in the
4 jurisprudence. I haven't bothered to pull them
5 all out. So when you want to know what the
6 legislature thinks of -- of the State
7 Constitutional antidiscrimination provision, you
8 look to the LAD. Even if it's not an LAD case,
9 you look to the LAD because that's the
10 enactment.
11 It's really important to note
12 this. There is no case that the defense counsel
13 has cited for the proposition that when one
14 brings a discrimination case under the State
15 Constitution, the court is bound by the
16 principles of 42 U.S.C. 1983. Now, maybe they
17 have a case out there that says that. There are
18 a lot of cases out there. I haven't run into it
19 yet, and I haven't seen them cite that. That's
20 a really important fact because their whole
21 argument depends on that proposition. If your
22 whole argument depends on a proposition, it's a
23 good idea to have a case to back you up.
24 In Lewis and in Dale, the Supreme
25 Court of New Jersey -- and I cited those cases
00022
1 yesterday, you know, the Boy Scouts case and --
2 and the Lewis case concerning gay marriage, the
3 Supreme Court made it very clear that under the
4 State Constitution, especially in the Lewis
5 case --
6 JUDGE CURRAN: Excuse me. We will
7 go off the record.
8 COURT CLERK: Off the record.
9 (Whereupon, a discussion is held
10 off the record.)
11 MR. MULLIN: So Judge, in Lewis
12 and Dale, but especially in Lewis, where the
13 court focused on the Constitution, Supreme Court
14 of New Jersey said the State Constitution
15 protects gay people from discrimination. And
16 that is the source of the right here. We are
17 not looking to the Federal Constitution for that
18 protection, and we are not looking to Federal
19 statutes for that protection. I'm not invoking
20 42 U.S.C. 1983, which requires the
21 identification of some sort of Federal right.
22 I'm not invoking it. I'm not using it.
23 So Your Honor, on a whole
24 separate matter that ends up being related to
25 some degree is -- perhaps, Your Honor, after
00023
1 you -- after you've heard all the evidence here,
2 you may -- I would ask you to reconsider your
3 ruling on the LAD, as well. I may as well say
4 that. We have plenty of time today. I may as
5 well say that, Your Honor. I would -- I --
6 there are a few cases that I cited to you --
7 JUDGE CURRAN: Hold on one second,
8 Mr. Mullin. In regard to the punitive
9 damages --
10 MR. MULLIN: Yes.
11 JUDGE CURRAN: -- I'm going to
12 reserve. I have not read Damiani before. Some
13 of the cases I have. The Cavouti case I had on
14 another issue, although I would want to reread
15 it. But I'm just not familiar with -- I want to
16 take a look at it. I don't think it causes
17 anybody any problem to put that off until
18 Monday.
19 MR. MULLIN: It's a bifurcated
20 proceeding.
21 JUDGE CURRAN: So there is no
22 issue at all. But then, if you don't mind,
23 Mr. Mullin, in regard to the LAD, you did
24 mention that yesterday; but I think it would be
25 easier if we go back to Mr. -- and -- and more
00024
1 efficient if we go back to Mr. --
2 MR. MULLIN: Paris'.
3 JUDGE CURRAN: Yeah, but -- are
4 you calling these "motions"? I guess we are
5 calling these "motions," Mr. Paris; is that it?
6 MR. PARIS: Sure.
7 JUDGE CURRAN: So we have -- first
8 we have the punitive damages motion, which was
9 left over from earlier in the case.
10 MR. PARIS: Right.
11 JUDGE CURRAN: Now I believe we
12 are on the motion to dismiss; is that correct?
13 MR. PARIS: Correct. I am going
14 to go back to that. Your Honor, frankly, you
15 know, harkening back, Mr. Mullin's argument with
16 regard to the motion to dismiss, we argued, I
17 was going to say, on the 29th, which was
18 yesterday, seems so long ago, you know, I -- I
19 listened to Mr. Mullin and essentially I heard
20 his -- his opening again. And I heard probably
21 what's going to be the summation or pretty close
22 to it. You may have left a few surprises.
23 MR. MULLIN: A few surprises.
24 MR. PARIS: He might have a few
25 surprises for the summation. But frankly, the
00025
1 issue was never addressed. And that -- and you
2 know, the -- the appeal, the sympathy, calling
3 firemen "monsters," talking about an attacking
4 mob, you know, talking about those things does
5 not equate back to the legal analysis that's
6 required. And the legal analysis that's
7 required -- I will go back to it -- is that
8 initially someone has to have acted under color
9 of law.
10 And what we started with and what
11 I thought, that we would -- you know, we would
12 break it down because, you know, Your Honor had
13 indicated that that was acceptable and I think
14 it's an appropriate way to do it, is to talk
15 about the incident of April 25th. Were the
16 firemen acting under color of law when they did
17 what was alleged to have been done?
18 MR. MULLIN: Your Honor, I'm sorry
19 to interrupt. Just forgive me, but we argued
20 this already. I -- I don't see the point in
21 rearguing everything again.
22 JUDGE CURRAN: I don't either.
23 MR. MULLIN: I understand --
24 MR. PARIS: I'm not --
25 JUDGE CURRAN: I apologize.
00026
1 MR. PARIS: I am not rearguing. I
2 am just responding to Mr. Mullin's argument.
3 JUDGE CURRAN: All right. If I
4 might just ask you, Mr. Paris, when we were
5 going over the statute yesterday, I'd say that
6 it's a fair interpretation -- not that I haven't
7 heard one -- it's fairly imaginative. I heard
8 this once before. To say that because we have
9 the conjunctive phrases with the "or"s that the
10 color of law does not apply to all of those
11 previous phrases in Section C.
12 Do you have a case -- and I
13 thought part of the reason we put this off until
14 today was to see if you could find a case that
15 indicates that it does. I'm not limiting what
16 the argument was yesterday; but certainly,
17 Mr. Mullin made the Peper argument at -- at the
18 very minimum. Is that fair to say?
19 MR. MULLIN: Sure, I addressed
20 many issues. I will be happy to remind the
21 court what I did but --
22 JUDGE CURRAN: No, no, I have my
23 notes.
24 MR. MULLIN: Peper was for my
25 State Constitutional claim. And the or argument
00027
1 is for 10:6-2, even -- nothing under Peper ever
2 says anything about color of State law.
3 JUDGE CURRAN: No.
4 MR. MULLIN: Forget that, then.
5 Under 10:6-2 "or" is a classical disjunctive,
6 not a conjunctive.
7 JUDGE CURRAN: Right. Sorry.
8 MR. MULLIN: So "or" doesn't mean
9 "and." And so, therefore, even under this
10 statute I'm not required to prove color of State
11 law, et cetera, et cetera because I'm going
12 under a substantive right, namely, the Peper
13 right not to be discriminated.
14 MR. PARIS: Your Honor, when this
15 statute was adopted -- when the statute was
16 adopted, civil actions for rights violations --
17 Peper is from 1978, before the statute was
18 adopted. How that case somehow stands for the
19 proposition of how we are going to interpret a
20 statute that was adopted, I believe, in 2004,
21 when the legislature in the legislative history
22 clearly says the bill is modeled on the Federal
23 Civil Rights law, which provides for civil
24 action for deprivation of Civil Rights, 42
25 U.S.C. 1983, how it could possibly be argued
00028
1 that we're not going to look to 1983 in
2 interpreting this statute upon which it was
3 modeled -- and the legislature makes specific
4 reference to it. Now --
5 MR. MULLIN: What is counsel
6 reading from, when he says this?
7 MR. PARIS: I am reading from the
8 legislative history.
9 MR. MULLIN: What legislative
10 history? Can we have the passage and cite so
11 the judge can rule on it?
12 MR. PARIS: Your Honor, we have
13 provided this. And I am happy to provide copy
14 to counsel and everyone else.
15 MR. MULLIN: I am not being
16 critical. I just want the record to be clear,
17 that's all.
18 MR. PARIS: This is the same
19 legislative history that we argued in our
20 summary judgment.
21 MR. MULLIN: I am just saying what
22 is --
23 MR. PARIS: Senate submit
24 statement, 211th legislature, May 6, 2004.
25 MR. MULLIN: Can we have the
00029
1 passage read?
2 MR. PARIS: Sure. This bill is
3 modeled -- let me put it in quotes. "This bill
4 is modeled under Federal Civil Rights law which
5 provides for a civil action for deprivation of
6 Civil Rights, 42 U.S.C. A 1983, the
7 Massachusetts Civil Rights Act" -- I won't give
8 the cite -- "and the Maine Civil Rights Act."
9 Okay. So it's clearly modeled after 1983. It
10 talks about -- and you know what --
11 JUDGE CURRAN: You know what,
12 that's part of my problem.
13 Amy, do me a favor. Just make us
14 a copy of this page. May have had the
15 legislative history. I may have had that
16 portion; I don't see it.
17 MR. PARIS: And -- and Your
18 Honor --
19 JUDGE CURRAN: Yes.
20 MR. PARIS: -- while the copy is
21 being made there is another passage that I want
22 to read from. But when you look at the language
23 of the act, you look at the language of the act,
24 in the very first phrases of Section A and
25 Section B, which talk about -- which talk about
00030
1 actions brought by the Attorney General, it
2 says, "If a person, whether or not acting under
3 color of law."
4 JUDGE CURRAN: I got it.
5 MR. PARIS: Section C specifically
6 talks about a person acting under color of law.
7 JUDGE CURRAN: Right. But
8 unfortunately -- and I know how difficult this
9 is -- and it may sound mundane -- Section A and
10 Section B both start with, "If a person whether
11 or not acting under color of law."
12 Theoretically, it would be a stronger argument
13 if Section C went back to -- thank you --
14 started again with that same phrase, "If a
15 person." And if it was meant, as you say, to be
16 color of law -- if it was meant to be color of
17 law, if it went back to Section C saying, "If a
18 person acting under color of law" did X, Y, it
19 would just follow.
20 MR. PARIS: But you know what,
21 Your Honor, take the policy consideration. Take
22 the policy consideration. Is a municipality
23 going to be held liable for actions by its
24 employees or volunteers that were not taken
25 under color of law?
00031
1 JUDGE CURRAN: I think that's a
2 fairer argument.
3 MR. PARIS: That's -- you know,
4 that's why I mean --
5 JUDGE CURRAN: Similar to the Tort
6 Claims Act. There are different rules under the
7 Tort Claim Act than if you slip on someone's --
8 MR. PARIS: There is no respondeat
9 superior. It is not the same as a private
10 employer. There is all sorts of different
11 things.
12 In addition, I want to say again,
13 looking at the legislative history, it says, "In
14 addition, any individual may bring a civil
15 action if its rights, privileges or immunities
16 have been deprived, interfered with or attempted
17 to be interfered with by threats, intimidation
18 or coercion by a person acting under color of
19 law." And that's right, again, in the
20 legislative history.
21 When the courts interpret 1983 --
22 when the courts interpret 1983 -- and we
23 provided the Court with the Third Circuit model
24 charge on 1983 -- what is the first requirement?
25 You have to be acting under color of law. So we
00032
1 have -- we have language that says this is the
2 way you interpret it, both in a model charge, in
3 a legislative history and we think the clear
4 language of the statute, itself.
5 But what's more, if you look at
6 the policy consideration, you just can't hold a
7 municipality liable --
8 JUDGE CURRAN: I got it. I got
9 that.
10 MR. PARIS: Okay.
11 JUDGE CURRAN: Mr. Mullin, in
12 regard to the legislative history -- that's why
13 I thought I remembered this phrasing; that's why
14 I wanted to get it -- if you look at the third
15 paragraph, that says it, I think, more clearly
16 than perhaps the statute does, itself.
17 MR. MULLIN: The one that begins,
18 "In addition"?
19 JUDGE CURRAN: Any individual --
20 because it talks about the Attorney General,
21 paragraph one. The Attorney General, paragraph
22 two, number three.
23 MR. MULLIN: Notice how that
24 paragraph leaves out half of Section C of the --
25 JUDGE CURRAN: It does. It does.
00033
1 MR. MULLIN: So let me start with
2 this simple proposition. We all know from law
3 school you don't even look at legislative
4 history unless the statute is unclear.
5 JUDGE CURRAN: I know, but that's
6 part of the argument. You are quite right
7 but --
8 MR. MULLIN: They --
9 JUDGE CURRAN: They argue the
10 statute is not unclear. Your argument is an
11 interesting argument; but at the very least, it
12 would make it unclear. And if, you know, in
13 conjunction with the legislative history --
14 MR. MULLIN: Your Honor, let me
15 take --
16 JUDGE CURRAN: -- or the
17 legislative statement -- and I just should say
18 this in fairness. This is not the basis for any
19 decision I make. But having been elected to
20 four terms, I know when I was elected we didn't
21 have legislative statements. And part of the
22 reason we didn't was we didn't always get the
23 bills before they were even passed because we
24 didn't have things like computers. But I do
25 have a fair knowledge of why we have statements
00034
1 and what the purpose of the statements were and
2 should be.
3 Part of the history of the
4 statements is that they also work their way
5 through the legislature. When we also had the
6 concept of plain language and the theory was,
7 well, if people couldn't read the statute, which
8 had to say X, Y and Z because of lawyers, they
9 could read the statement to the bill and
10 understand it better.
11 It does seem to me that if I --
12 if I look at your interpretation, then I -- I
13 think, to give equal credit or -- or more credit
14 to yourself, representing the plaintiffs, that
15 at the very least it's not clear. Then you have
16 to go to the statement, and the statement is
17 clear.
18 MR. MULLIN: I want to argue that
19 it is clear, if I can.
20 JUDGE CURRAN: Okay, sure.
21 MR. MULLIN: I want to argue that
22 there must be a hundred or more cited decisions
23 on the meaning of "or" in statutes and that "or"
24 is the opposite of "and." And Your Honor, I
25 know, actually served in the legislature; and
00035
1 Your Honor knows the cases I'm referring to.
2 So let's start with that simple
3 proposition. Now let's read Section C slowly,
4 carefully and see if there is any ambiguity at
5 all. It says in C of 10:6-2, "Any person who
6 has been derived of any substantive due process
7 or equal protection rights, privilege or
8 immunities secured by the Constitution or laws
9 of the United States or any" -- let's stop right
10 there. Let's stop right with that phrase before
11 the next "or," okay, and follow it all the way
12 down to the second from the last sentence, "may
13 bring a civil action for damages." That is the
14 first thing we know is any person who has been
15 deprived of any substantive due process or equal
16 protection rights, privilege or immunities
17 secured by the Constitution or laws of the
18 United States may bring a civil action for
19 damages.
20 Now let's continue. Any person
21 who has been deprived of -- let's go into the
22 second "or." "Any substantive right, privilege
23 or immunity secured by the Constitution or the
24 laws of this State may bring a civil action for
25 damages."
00036
1 Let's go to the next branch after
2 the next "or." "Any person whose exercise or
3 enjoyment of those substantive rights,
4 privileges or immunities has been interfered
5 with or attempted to be interfered with by
6 threats, intimidation or coercion by a person
7 acting under color of law may bring a civil
8 action for damages."
9 Okay. So there are three
10 circumstances in which a person under Section C
11 may bring a civil action for damages. One of
12 them involves people threatening or interfering
13 with substantive rights under color of law.
14 That's just one of them.
15 Now let's suppose defense counsel
16 is right. Here is the way to read the statute,
17 Your Honor. Take your pen and cross out the
18 first sentence of Section C. Cross out the
19 second section of Section C. And cross out the
20 third sentence and start at -- well -- well, I
21 will tell you, we will leave a little bit in;
22 otherwise, the sentence won't make sense.
23 Let's read it their way. "Any
24 person" -- and then cross out everything after
25 that until, "whose exercise or enjoyment of
00037
1 those substantive rights, privileges has been
2 interfered with or attempted to be interfered
3 with," et cetera, et cetera. In other words,
4 let's eliminate language is what they're saying.
5 Well, you know this too. There
6 must be a hundred cases on the books saying you
7 cannot treat statutory language as surplusage.
8 A court must do everything possible to read a
9 statute in such a way that language is not
10 rendered surplusage. Their reading is contrary
11 to all the principles concerning the meaning of
12 the word "or." Their reading is contrary to the
13 rule concerning surplusage. Their reading is
14 contrary to the rule that says that the plain
15 language of a statute is clear, you do not go
16 to -- to legislative history.
17 And their legislative history,
18 all it is is a Senate committee statement, by
19 the way. It's a committee state. It's not any
20 sort of statement that -- you know, in the New
21 Jersey Law Against Discrimination the
22 legislature passed a statement of findings of
23 fact. It's not one of these --
24 JUDGE CURRAN: No, it is not.
25 MR. MULLIN: -- legislative
00038
1 findings of fact. That carries a lot of weight,
2 carries statutory weight. What the committee
3 said -- apparently, they said this on May 6th,
4 2004. Well, you know, that's -- I don't mean to
5 diminish the wonderful legislators who made
6 these wonderful laws we are here with today.
7 You have been down there, Judge.
8 JUDGE CURRAN: I won't even go to
9 the sausage reference, right.
10 MR. MULLIN: It went through my
11 head, Your Honor. It flashed in my mind.
12 So that's it. We can rewrite it
13 the Dave Paris way. I don't mean to personalize
14 it, but any person. And then we cross out
15 everything after, "every person." First line,
16 second line, third line, all the way up to the
17 "or" on the third line, cross out all that. And
18 then you have the Dave Paris interpretation, the
19 defense counsel's interpretation of this
20 statute.
21 Well, you know, it's really
22 elementary, Your Honor. We don't do that. "Or"
23 means, "or." "Or" doesn't mean "and."
24 Surplusage is -- avoid it at all costs. The
25 legislature wrote these words because they meant
00039
1 them. And the governor signed it because he
2 meant it.
3 And let me add this. Mr. Paris
4 is talking about policy. He is talking about
5 policy. It is the policy of this State -- and
6 you have it in many of the cases we cite -- to
7 eradicate the cancer of discrimination, the
8 Supreme Court's words. Over and over again in
9 decision we give you that phrase reappears.
10 Could it possibly be that through
11 the action of 10:6-2, whose purpose was to fill
12 in any gaps that might exist in the New Jersey
13 Law Against Discrimination, that's also in the
14 legislative history, could it be that what they
15 did, what they intended to do was to make it
16 harder for a victim of discrimination by the
17 government to prove a discrimination case under
18 the State Constitution than a -- say a victim of
19 Princeton's discrimination?
20 JUDGE CURRAN: I think that's
21 exactly what it could have been.
22 MR. MULLIN: That's what they're
23 saying, but that's not what the legislative
24 statement says and that's not what this is.
25 JUDGE CURRAN: No, but --
00040
1 MR. MULLIN: Far from it. The
2 purpose of this is to be expansive, to fill in
3 gaps, you know.
4 JUDGE CURRAN: But my concern is
5 similar to the Tort Claims Act. It's tough for
6 legislators to vote for things that are going to
7 cost money; and very often that's the way they
8 address it, something like the Tort Claims Act.
9 MR. MULLIN: If there is one thing
10 the Supreme Court has made clear -- and the case
11 is called F-u-c-i-l-l-a. I am just pulling it
12 out of memory, so I don't have the cite right
13 now. The New Jersey Tort Claims Act does not
14 apply to our Civil Rights Acts, LAD and CEPA.
15 JUDGE CURRAN: No, no, no, I do
16 not mean to indicate that it does. I am just
17 talking about legislative thinking.
18 MR. MULLIN: In construing -- in
19 construing Civil Rights Act 10:6-2 --
20 JUDGE CURRAN: Absolutely.
21 MR. MULLIN: -- your Honor, the
22 legislators' thinking is in 10:5-3 of the LAD.
23 "The legislature finds and declares that the
24 practices of discrimination against any of its
25 inhabitants based on race, creed" -- all the way
00041
1 through -- "sexual orientation are matters of
2 concern to the governor of the State and that
3 such discrimination threatens not only the
4 rights and proper privileges of the inhabitants
5 of the state but menaces the institutions and
6 foundations of a free democratic society."
7 That's -- that's more important than this
8 committee statement. That's 10:5-3. It goes on
9 and on. It's a very powerful statement.
10 This legislature would never have
11 done something to diminish the rights of victims
12 of discrimination under the State Constitution,
13 not in light of the legislature passing 10:5-3.
14 It's not possible that they would have chosen to
15 do that. And -- and the Supreme Court again has
16 said the Tort Claims Act does not apply to the
17 discrimination.
18 JUDGE CURRAN: That -- that's not
19 an issue.
20 MR. MULLIN: So that shouldn't be
21 brought in pari materia, Your Honor.
22 JUDGE CURRAN: No, no, I was using
23 that only as the example of why would vote that
24 way.
25 If it is as clear as you
00042
1 indicate, where are the cases that -- we are not
2 the only people who have ever dealt with this.
3 I have had color of law issues about four times
4 in the last year. Different facts, but still.
5 Where are the cases that are definitive in this
6 regard?
7 MR. MULLIN: Well, this is such --
8 this is a new statute.
9 JUDGE CURRAN: Yeah, but it's
10 not --
11 MR. MULLIN: I haven't seen many
12 reported decisions on them. I just --
13 JUDGE CURRAN: I haven't either.
14 That is the problem.
15 MR. MULLIN: So -- but what Your
16 Honor --
17 JUDGE CURRAN: Even when you go
18 back, even in -- I don't even know of any
19 cases -- any -- I don't even know of any
20 unpublished decisions. I realize 2008, but
21 still.
22 MR. MULLIN: Again I want to
23 remind the Court that I have a cause directly
24 under the State Constitution. We're looking at
25 the cause under 10:6-2.
00043
1 And again I remind the Court
2 eventually I would like to offer my motion for
3 reconsideration on the LAD.
4 But, look, there is -- this is
5 not -- it just doesn't seem to be a close
6 question. I wonder what Mr. Paris would argue
7 is the meaning of the words that I'm claiming he
8 is rendering are surplusage. Maybe there is an
9 explanation.
10 MR. PARIS: Be happy to, Your
11 Honor.
12 JUDGE CURRAN: Mr. Paris.
13 MR. PARIS: You know, this is why
14 sometimes, I guess, when you ask a layperson,
15 "Did you take action in reliance upon a
16 statute" -- here are two attorneys arguing to a
17 court about the reading. I think it's
18 absolutely clear. What is the legislative --
19 what are they saying? Has a person been
20 deprived -- deprived of any substantive due
21 process or equal protection rights, privileges
22 or immunities secured by constitution, laws of
23 the United States or any substantive right,
24 privilege or immunity secured by the
25 Constitution or the laws of this State?
00044
1 Now what do they do? They make
2 it a little broader. They say not just deprived
3 but exercise or enjoyment of those substantive
4 rights, privileges or immunities, again,
5 referring back to the rights, privileges and
6 immunities which they referred to earlier. So
7 it's not breaking it up. They refer back to the
8 rights, privileges and immunities has been
9 interfered with.
10 So goes have you been deprived?
11 Have you been interfered with or attempted to be
12 interfered with?
13 Now you have attempt action to
14 it, right, to be interfered with. How? By
15 threats, intimidation or coercion, okay, by a
16 person acting under a color of law may bring an
17 action.
18 It's so comprehensive, it's so
19 inclusive, it's so tortured to try to break it
20 up because it refers to rights, privileges and
21 immunities. Okay. It talks about secured by,
22 two different bodies of law, State and Federal.
23 Okay. It says deprived, interfered with or
24 attempted to be interfered with. How? Threats,
25 intimidation or coercion. By whom? By a person
00045
1 acting under color of law. Frankly, Judge, it's
2 the only way this makes sense.
3 And how -- and you know what,
4 when we go to 1983, you go to -- I always have
5 trouble -- Bielevicz.
6 JUDGE CURRAN: Bielevicz.
7 MR. PARIS: What do we have? What
8 is the court looking at? They are looking at
9 situations where policemen with police cars,
10 with badges, with guns are pulling people over
11 as policemen cloaked in the authority of
12 policemen and abusing someone's rights. That's
13 what you have when you're analyzing these cases.
14 So there are a lot of cases. And sometimes the
15 court doesn't even have to go into the issue of
16 color of law because it's so clear. You have
17 got a policeman pulling someone over --
18 MR. MULLIN: Your Honor, can I --
19 let me ask a question.
20 MR. PARIS: Excuse me. One other
21 thing.
22 MR. MULLIN: I'm sorry. I'm
23 sorry.
24 MR. PARIS: One other thing. One
25 other thing. It's so clear -- and we can give
00046
1 speeches about what the grand legislature
2 intended to do when it adopted the LAD, okay.
3 But guess what, Your Honor found that not every
4 discrimination case falls within LAD.
5 So what did they do? They said,
6 all right, we're going to fill the gap because
7 not every discrimination case falls within LAD.
8 We are creating a statute that provides for a
9 private cause of action when there has been a
10 violation of substantive or equal protection
11 rights, again, however -- however, again, if
12 you're going to provide that, it's provided with
13 a limitation. And it's the same limitation, not
14 just the legislature of New Jersey, but the
15 United States Congress limited it to. It's not
16 an unfair limitation. What would be unfair is
17 to make the people, the taxpayers,
18 municipalities liable for actions that are not
19 taken under color of law. That's the problem.
20 MR. MULLIN: Your Honor, let me
21 ask you a question. Can -- I wonder if
22 Mr. Paris could answer this question. Could
23 Miss Peper bring her action under the State
24 Constitution against Princeton under Section C?
25 Conceding there is no action by a state actor in
00047
1 the Peper case, there is no color of State law,
2 these -- this was a private university. So the
3 question is: Could Peper have brought her
4 action under Section C of 10:6-2?
5 MR. PARIS: You know what, Your
6 Honor, you know what -- see, this is where we
7 start getting far afield. He is like now let's
8 change the field of play because now can Peper
9 bring an action against whom? Princeton
10 University was a private entity, right? But
11 what's -- what's the legislature saying? You
12 can't hold a municipality liable.
13 MR. MULLIN: Could we have an
14 answer?
15 MR. PARIS: You know what, Your
16 Honor, I think it's irrelevant. I think it's
17 absolutely irrelevant as to what Miss Peper
18 could have done back in 1978 before this
19 statute.
20 MR. MULLIN: How about today?
21 Peper is today; and she wants to sue, Peper,
22 under the State Constitution. Can she bring an
23 action under 10:6-2?
24 MR. PARIS: I don't respond to
25 Mr. Mullin, Your Honor; I respond to you. I
00048
1 think it's an irrelevant question.
2 JUDGE CURRAN: We will go off the
3 record. We will go off the record.
4 (Whereupon, a discussion is held
5 off the record.)
6 MR. PARIS: It's not just a
7 question of reading the statute. It's not just
8 a question of reading the statute too.
9 MR. MULLIN: It is a question of
10 reading the statute.
11 MR. PARIS: The statute, I think,
12 is absolutely clear. It is a comprehensive
13 statute. It talks about three levels of
14 potential offense, the deprivation and
15 interference or an attempted interference. It
16 talks about two bodies of law that are being
17 protected, State and Federal. It talks about
18 rights, privileges and immunities. But it talks
19 about methods, okay, talks about methods,
20 threats, intimidation, coercion. God bless you.
21 JUDGE CURRAN: Pardon me.
22 MR. PARIS: Then it talks about by
23 whom? Person acting under color of law. It's,
24 to me, absolutely clear.
25 JUDGE CURRAN: All right. Let me
00049
1 ask you this. I apologize.
2 MR. PARIS: No, no.
3 JUDGE CURRAN: Are you arguing
4 that color of law is required -- that the
5 plaintiff has to demonstrate at least to the
6 Court that the firemen acted under color of law,
7 or are you arguing that he has -- that the
8 plaintiffs have to demonstrate that -- in regard
9 to the harassment charges, or are you arguing
10 that the plaintiffs have to prove that the Town,
11 in regard to the deliberate indifference, has to
12 prove that they acted under color of law or
13 both?
14 MR. PARIS: Well, the first
15 step -- the first step for a Town to get caught
16 into this whole thing is that somebody acting
17 under color of law has to have done something,
18 okay. If no one acting under color of law did
19 anything initially, then you can't blame the
20 Town for a response or lack of response to an
21 action that was not taken by somebody acting
22 under color of law.
23 JUDGE CURRAN: That's why I'm
24 asking you that. Given these facts, is that
25 accurate; or are they not two separate causes of
00050
1 action? And obviously, one being whether what
2 the firemen did under color of law -- whether
3 what the firemen did was under color of law or
4 whether or not -- whether or not the Town's
5 response to a citizen who had what at the very
6 least those two citizens believed were
7 legitimate complaints, were they -- are you
8 saying that if we -- if there is a finding that
9 the firemen were not acting under color of
10 law -- and I have at least one more argument I
11 need to resolve in that regard -- that therefore
12 nothing happens beyond that?
13 MR. PARIS: Your Honor.
14 JUDGE CURRAN: I don't understand
15 that part of the argument.
16 MR. PARIS: After that, okay,
17 there -- there has to be an identification of a
18 Constitutional right --
19 JUDGE CURRAN: Okay.
20 MR. PARIS: -- that's being
21 violated. And the answer is unless the initial
22 action is committed under color of law, the --
23 you can't -- you can't have an improper
24 municipal reaction to an act that is not
25 committed under color of law.
00051
1 JUDGE CURRAN: I got that. But
2 thinking of these facts --
3 MR. PARIS: Right.
4 JUDGE CURRAN: -- doesn't one have
5 a right to an investigation by Town officials or
6 whatever you want to call it? If one is
7 claiming --
8 MR. PARIS: You are saying does an
9 individual have a Constitutional right to a
10 police investigation?
11 JUDGE CURRAN: To have their
12 rights protected. Not to a police
13 investigation, not looking for shell casings,
14 but to have their rights protected.
15 MR. BEVERE: Judge, if I could
16 speak to that because there is a body of case
17 law. And I will just step in for a second.
18 DeShaney versus Winnebago. Essentially --
19 essentially what we're talking about are
20 situations where a -- a government entity is not
21 responsible to protect citizens from private
22 acts of misconduct or harm.
23 JUDGE CURRAN: Oh, yeah, right,
24 but -- you're quite right. You're quite right.
25 MR. BEVERE: Unless the State
00052
1 created danger or the in-custody doctrine.
2 JUDGE CURRAN: You're right about
3 those. I don't know DeShaney, but there are a
4 lot of those cases.
5 MR. BEVERE: Neeb versus Ketter
6 and all those.
7 JUDGE CURRAN: How is one going to
8 know if there was -- we are still here how many
9 years later arguing? How is one going to know
10 whether there was a violation under color of law
11 if one did no -- if the Town did no
12 investigation?
13 MR. BEVERE: Well, Judge, the
14 Police Department did an investigation.
15 JUDGE CURRAN: Well, yeah.
16 MR. BEVERE: And that was taken
17 over by the Attorney General's Office, and they
18 did whatever they did. And quite frankly, the
19 plaintiffs in this case, as well as the
20 defendants, have gotten the benefit of what was
21 learned during the course of the police
22 investigation.
23 We don't know what happened with
24 regard to the Grand Jury investigation for the
25 reasons that were stated on the motion that we
00053
1 heard in this case I think two or three --
2 probably three years ago now on the issue. But
3 certainly, the information about what occurred
4 that morning was -- was documented in the course
5 of police files and police investigations and
6 was turned over in discovery to all parties in
7 the case. And part of this trial was to
8 determine whether or not somebody -- those facts
9 proved that somebody was acting under color of
10 law.
11 JUDGE CURRAN: Okay. Let me go
12 back to an even more basic -- and you will have
13 your opportunity. I don't mean to cut you off,
14 Mr. Mullin.
15 MR. MULLIN: Thank you.
16 JUDGE CURRAN: I'm just trying to
17 go through the way I have been trying to think
18 this through. Go back to a more basic issue as
19 to whether or not -- I'm going to assume for the
20 moment because, frankly, I can't imagine I am
21 going to decide anything different, that the
22 statute does require individuals to bring
23 charges against those acting under color of law.
24 That I -- I read this. That's why I wanted the
25 statement because I -- I knew I had read the
00054
1 statement, and I think I might have left it
2 home. Anyway, okay, so then we get to court
3 finds --
4 MR. MULLIN: Your Honor, you're
5 only talking about the cause of action under
6 10:6-2 right now, right?
7 JUDGE CURRAN: Yes, yes. -- that
8 color of law is required. So then the next
9 question is were they acting under color of law?
10 Your argument, obviously, is don't be
11 ridiculous, they were all drunk, they were all
12 at a party, they all signed out, whatever.
13 But then you get to the -- there
14 is some evidence that the plaintiffs have given
15 us that, well, no, it really wasn't still color
16 of law because the Town paid for the bus and it
17 was a firehouse and whatever.
18 But then you get to closing the
19 firehouse, and you get to reopening the
20 firehouse. The firehouse was reopened,
21 according to Mr. Iacono, because it was not fair
22 to some of those guys who weren't even there,
23 because the morale was bad and/or they were
24 threatening to resign and because the public
25 felt that they were not being protected.
00055
1 So what they were saying was the
2 public felt -- and therefore there was some sort
3 of official status or official umbrella or
4 official color of law to, not just the bays
5 being open because the bays never closed, to the
6 social part of the firehouse staying open. So
7 wouldn't that not at least move one step toward
8 you can't divide the two? You can't say the
9 bays are one thing and because they weren't in
10 the bays and they weren't standing there getting
11 on their uniforms to go to a fire, because they
12 were socializing, that there is no color of law.
13 Does the color of law attach
14 itself to the firehouse and the firefighters
15 fighting the fires and being there on a social
16 basis, taken in conjunction with everything
17 else? If not, why, then, was one of the reasons
18 they opened the social part of the firehouse the
19 public's need to feel protected and whatever?
20 Doesn't that say that the social aspect, the
21 firemen being there, certainly not drunk, but
22 the firemen being there for something other than
23 fighting fires is under color of law?
24 MR. PARIS: No, because when
25 you -- when we look at the jury charge, we look
00056
1 at the instruction on the elements of proving
2 color of law, there has to be some action, there
3 has to be some activity that's in furtherance of
4 the function by which they are employed or
5 volunteers with the Town.
6 JUDGE CURRAN: But doesn't Mr.
7 Iacono's statement say part of the function was
8 that they were there socially, that they hung
9 out there, that they were active there, that
10 they were observed by the public there?
11 Otherwise, why did they need -- otherwise, then,
12 the only two reasons could have been some people
13 weren't there and it was unfair and the morale
14 of the firefighters was bad. The public
15 perception and the public need to feel protected
16 was one of the reasons given for reopening just
17 the -- because we can talk about closing the
18 firehouse -- it was never closed for
19 firefighting purposes -- and reopening. The
20 only thing it was reopened was the social aspect
21 of it --
22 MR. PARIS: But Your Honor --
23 JUDGE CURRAN: -- and the social
24 quarters.
25 MR. PARIS: But again, if you look
00057
1 back, okay, if you look back and you say they --
2 they did something on -- there -- there can
3 not -- there cannot be an action taken under
4 color of law by firemen who were coming back on
5 a permit to use a facility from a private party
6 with their wives, you know, in their plain
7 clothes, in an inebriated -- we will accept the
8 fact that they may have been inebriated. Let's
9 accept the fact that they were. Let's say they
10 were. How that can be an act taken under color
11 of -- and -- and then they come back, and then
12 what's the act here? The act isn't coming back.
13 The act isn't coming back.
14 JUDGE CURRAN: Thank you.
15 MR. PARIS: The act, then -- the
16 act, then, is for now the firemen -- because
17 what's the deprivation of Constitutional rights?
18 Not just them being there. In fact, there was
19 no deprivation of Constitutional rights by
20 reopening the firehouse. The deprivation of
21 Constitutional rights that the plaintiffs are
22 alleging is that they harassed, banged,
23 threatened.
24 JUDGE CURRAN: I don't --
25 MR. PARIS: In other words, there
00058
1 is nothing that the Town could have done, and
2 there was certainly no evidence in the case that
3 the Town took any action to encourage them to go
4 out on that night and bang and harass and scream
5 and yell antigay epithets at the plaintiffs.
6 There is nothing that the Town did, and there is
7 nothing to further that. And there is nothing
8 that the firemen were doing in furtherance of
9 their function by de -- that's the deprivation
10 of Constitutional rights. It's not a
11 deprivation of their Constitutional rights for
12 these gentlemen -- you know, for the firemen to
13 be there. I don't want to use the word
14 "gentlemen."
15 JUDGE CURRAN: But, no, I think
16 way of saying it is --
17 MR. PARIS: I'm.
18 JUDGE CURRAN: I'm just saying
19 isn't that at least --
20 MR. PARIS: How could a jury
21 find -- how could a jury find that -- take the
22 worst case scenario that Mr. Mullin presents,
23 that they were acting like animals, that they
24 were drunk out of their minds, that they were
25 shaking a fence, that they were yelling and they
00059
1 were screaming and they were threatening. How
2 could that possibly be construed as performing a
3 function for the Town? It can't be construed.
4 And any action that the Town took afterwards,
5 how can that action taken afterwards have been
6 an act that proximately caused them to commit
7 a -- what is a criminal act?
8 JUDGE CURRAN: I can understand
9 that argument. But I am just saying the
10 counter-argument of the only thing for the
11 firemen that equates to color of law is when
12 they're out fighting fires or they're in the
13 bays training to fight fires; and clearly, that
14 is too limiting because the social aspect,
15 having the firemen hang out there, if you will,
16 was given as a reason that the Town
17 Administrator used because that social aspect,
18 the firemen being there --
19 MR. PARIS: Your Honor.
20 JUDGE CURRAN: -- was an --
21 MR. PARIS: I'm sorry.
22 JUDGE CURRAN: -- aspect that the
23 Town needed. I can understand your argument
24 totally. It's the traditional argument.
25 MR. PARIS: Well, Your Honor, when
00060
1 you look at the elements of proof --
2 JUDGE CURRAN: I know, but --
3 MR. PARIS: -- color of law, it
4 doesn't -- it doesn't go there. It just doesn't
5 go there. You know, I understand -- I
6 understand that you are trying -- I
7 understand --
8 JUDGE CURRAN: I'm not trying to
9 help either side. I'm trying to resolve all the
10 issues.
11 MR. PARIS: I understand what the
12 Court's role is.
13 MR. MULLIN: This argument still,
14 Your Honor, is still under 10:6-2?
15 JUDGE CURRAN: It is.
16 MR. PARIS: Your Honor, I object
17 to that, as well. This statute was the
18 legislature's intent and what the legislature
19 provided in order to embody a private cause of
20 action enforcing a Constitutional right.
21 MR. MULLIN: Your Honor, can I be
22 heard? Could I be heard? He has gone on for
23 maybe a half hour.
24 MR. PARIS: Your Honor is asking
25 me questions. I am responding to your
00061
1 questions.
2 JUDGE CURRAN: You are. But in
3 fairness, I think I have my answers. Again, I
4 am not trying to help or hurt either side.
5 MR. MULLIN: I just want to make a
6 record. Does not overrule the Supreme Court's
7 ruling in Peper v. Princeton. Cannot -- the
8 legislature doesn't have the power to overrule a
9 Constitutional ruling by the Supreme Court. So
10 it's preposterous to suggest 10:6-2 overrules
11 Peper v. Princeton, which says you can bring a
12 direct action for sexual discrimination under
13 the Constitution.
14 I believe we are talking about
15 10:6-2 right now, and that's it. Your Honor, I
16 don't want to repeat all the arguments I made
17 yesterday.
18 I want to remind the Court and
19 counsel that we're arguing -- that they are
20 arguing a motion under 4:37 -- what is it --
21 dash two? It's 4:37. All inferences, all facts
22 have to be in a light favoring me, my clients.
23 And that's not the way counsel is arguing.
24 Counsel is drawing all inferences in his favor.
25 When it comes down to color of
00062
1 State law, Your Honor, I believe, if I'm
2 understanding what your questions are
3 suggesting, there is a lot of action under color
4 of State law here. When -- you know, if we jump
5 forward for a moment and now they know this
6 attack took place, they, the Town leaders, know
7 an attack took place in the early morning hours
8 of April 25th, 2004, they know there were
9 probably some traumatized people living in that
10 house, some fearful people. And if they didn't
11 know it, they get a voice mail message, the
12 Mayor does, on May 1 that makes it very, very
13 clear how scared and frightened he is. It's
14 foreseeable that that homophobic group would
15 launch further attacks. And it is frightening,
16 even their mere presence there.
17 If -- if, for example, you just
18 shifted this to the workplace and something like
19 this happened in the workplace, there was a gay
20 man working there and -- and a gentleman down
21 the hall did to him what -- what these folks did
22 to my clients, starting with throwing dirty
23 condoms on his desk and then management did
24 nothing about that, although they were aware of
25 it -- so there is a series of dirty condoms,
00063
1 management does nothing about it. And then
2 finally this guy becomes assaultive and
3 threatening and fires a gun into the ceiling --
4 and there is evidence of that in my favor under
5 this standard -- and tries to climb over his
6 cubical and get into it and screams and yells
7 death threats and then the next day the boss not
8 only doesn't suspend this fella but leaves him
9 just there next to him down the hall, that's --
10 that's not a violation of his rights, just to
11 leave a guy not suspended who attacks you that
12 way?
13 It was and is terrifying. In the
14 words of Peter deVries, "We were prisoners in
15 our own house." In the words of Peter deVries,
16 "We lived on the other side of our house. We
17 gave up that side of our house."
18 Just leaving them there was -- I
19 won't use the word "monstrous." It was a
20 deprivation of Civil Rights just to have these
21 people who did this awful thing present there,
22 not even suspended or even transferred to
23 another company site or even have their social
24 wing shut down, you know.
25 So knowing that this happened on
00064
1 April 25th, 2004, the Town manager, with input
2 from the Mayor and the Fire Chief, three
3 policy-making people, reopened the firehouse.
4 And when Iacono gives his reason, he doesn't
5 even -- his considerations, he doesn't even
6 mention the safety and health of my -- of the
7 plaintiffs?
8 Well, is someone suggesting that
9 Iacono and the Mayor and -- and the Fire Chief's
10 decision, conscious decision after being
11 threatened with a mass resignation to reopen
12 that firehouse, that that was not under of color
13 of State law? They did that in the course of
14 their official duties. That was an official
15 decision. That's not -- that wasn't a decision
16 about whether or not Iacono wanted to have a
17 cheeseburger or a burger without cheese. That
18 was a decision that had to do with the way they
19 were running the firehouse and the Town. Of
20 course that was under color of State law. It's
21 absolutely beyond a doubt that decision was
22 under color of State law.
23 And then the decision not to
24 reclose the social wing when the Mayor got that
25 tape from Tim Carter, saying now they are out
00065
1 here yelling, "The homos are home. The homos
2 are home" and all the input they got at the
3 police station about subsequent incidents. The
4 decision not to reopen.
5 How about this decision? The
6 decision not to accept the resignation of the --
7 of the firefighters. Forget fancy proceedings
8 that are alleged to be necessary for termination
9 or suspension. They didn't accept the
10 resignation of this group of firemen that
11 attacked this house. That was a conscious
12 policy decision. We will not accept that
13 resignation. We will do what you tell us.
14 April 29 you tell us you are going to resign if
15 we don't open the firehouse. The next day,
16 April 30, they open the firehouse. These are
17 all decisions under color of State law.
18 Even before the incident, the
19 decision not to have the firefighters covered
20 under any sort of policy or training concerning
21 harassment, in this case in April, when Lehmann
22 says, in 1994, the known prevalence of sexual
23 harassment. How could you have units that deal
24 with all kinds of members of the public in a
25 diverse community and never give them any
00066
1 training at all? You exempt them. You make a
2 decision to exempt them from the policies that
3 govern training and prevention of sexual
4 harassment? How could you do that in -- in the
5 year 2004, '3, '2, '1, 2000? How could you
6 possibly do that?
7 It was in the words of Bielevicz,
8 9:15 F.2d 845, well, this was custom, on the
9 other hand, can be proven that by showing a
10 given course of conduct, although not
11 specifically endorsed or authorized by law, is
12 so settled and permanent as to virtually
13 constitute law.
14 Opinion talks about acquiescence
15 in a well settled custom. Iacono almost
16 gratuitously offered us, oh, this policy not
17 having discrimination policies apply to the
18 volunteers, that's been going on for years, he
19 said. So there is this policy.
20 So these guys here, these guys,
21 the Fire Chief Walters, the Deputy Chief
22 Cieciuch hear that condoms are being thrown on
23 their back porch; and he doesn't even interview
24 them? He conducts no investigation at all? He
25 doesn't even recognize the danger of
00067
1 retaliation, now that they have called it in?
2 Instead, he authorizes a party shortly after the
3 complaint comes in?
4 Frank Walters says, in what we
5 read to the jury was one week before the
6 April 25th incident, he was aware of the
7 Cieciuch -- that Cieciuch had dealt with this
8 issue. Doesn't come and talk to the plaintiffs?
9 He does no investigation. He -- he issues no
10 discipline.
11 You know, I'm not going to
12 minimize this, especially under 4:37. Throwing
13 condoms on your co-employee's desk is probably a
14 sex crime. Throwing condoms on your -- on the
15 neighbor's porch is probably a sex crime.
16 Throwing used condoms filled with semen is a
17 disgusting and awful act that anybody with half
18 a brain would have taken seriously. If they'd
19 had some training, even the leaders of the Fire
20 Department, would have recognized this was a
21 serious sign, a sexually-loaded act; and they
22 not only should investigate but they should warn
23 those firefighters do not retaliate.
24 They knew at that point that
25 Chuck Snyder, Sr. had gotten the complaint from
00068
1 Carter. Carter had been directed to Chuck
2 Snyder, Sr. They had a duty to remediate. They
3 had a duty to investigation. And they did
4 nothing. They did nothing.
5 It appears, drawing all
6 inferences in my favor, that Frank Walters said
7 something untrue under oath in his deposition
8 when he said that Deputy Chief Cieciuch
9 conducted some sort of experiment -- we read
10 this to the jury -- went up to the second floor
11 of the firehouse and determined it would take a
12 southwest wind of 5 miles an hour. So, you
13 know, the jury can conclude from that that they
14 did nothing at all, zip, zero.
15 And I argued yesterday -- you
16 know, counsel keeps going back to it. I argued
17 all kinds of facts where the inferences have to
18 be drawn in my favor about why even the attack
19 that night was clearly under color of State law.
20 I said that it was an official party, officially
21 sanctioned on a form that's in Evidence, signed
22 off on by the Chief and someone in the Town
23 Administrator's Office, signed off on by the
24 captain, attended in the -- in the party phase
25 by the Mayor and the Council members and all the
00069
1 high level brass at the Fire Department.
2 They came back, and the attack
3 was led by people cloaked under Chapter 12 of
4 the Secaucus Code with the authority to lead
5 them. They were led in the attack by the three
6 captains. And they launched the attack from
7 company property. And they came back from the
8 party on a Town bus. And the Town bus was given
9 to them for free, and so was the Town bus driver
10 given to them for free.
11 Viewing the evidence under --
12 under -- in a light most favorable to us and
13 drawing all inferences, there is clearly a
14 genuine issue of material fact whether those
15 actors on that night acted under color of State
16 law. But all this other stuff I'm talking
17 about, all the policy of the Town to exclude
18 these firemen, the failure to investigate, the
19 reopening of the firehouse, the keeping it
20 reopened even after the Carter tape, all this
21 stuff was clearly done. It's indisputable that
22 this was done by official policymakers of the
23 Town. Indisputable. There is no close question
24 here. You know, again, Your Honor I don't think
25 I should even be under this standard.
00070
1 JUDGE CURRAN: I understand.
2 MR. MULLIN: But you know that. I
3 preserve that.
4 JUDGE CURRAN: All right. Based
5 on the information put on the record I am going
6 to make the following findings. I find that
7 NJSA 10:6-2C does require that the proofs the
8 plaintiff must demonstrate include -- are that
9 the person or persons were acting under color of
10 State law.
11 I find -- although I can
12 understand the way the plaintiffs are reading
13 Section C, I do not read it that way. I find
14 that if you read C in conjunction with A and B
15 as to what can be brought, what kind of a case
16 can be brought by the Attorney General versus an
17 individual, I find clearly here, having read the
18 disjunctives, some of which are more important,
19 shall we say, than others; but I find that
20 Section C talks about a person who has been
21 deprived or a person who's been interfered
22 with -- whose rights have been interfered with
23 or there has been and attempt to interfere with
24 their rights by threats, intimidation or
25 coercion by a person acting under color of law
00071
1 requires that the individuals act under color of
2 law.
3 I find there is -- there are more
4 than I can count, probably, genuine issues of
5 material fact as to whether or not these
6 individuals were acting under color of law. I
7 make that finding based on the very significant
8 facts in this case.
9 The defense is absolutely free to
10 argue they, the firemen, to get to the threshold
11 question, were not acting under color of law,
12 they were off-duty, it was a social event,
13 whatever.
14 I find that this is, which color
15 of law is usually not, but that this is a
16 fact-sensitive matter. The court does not
17 decide facts; the jury decides the facts.
18 I find that the plaintiffs'
19 arguments that, in fact, they were acting under
20 color of law is a question that has to be
21 resolved by the jury.
22 I find that at this point I'm
23 required to give all possible favorable
24 inferences to the non-movant.
25 And I find that the only legal
00072
1 question here is the interpretation of C, which
2 the jury should not make. I find color of law
3 is required. And then the rest is a jury
4 question -- or are jury -- questions for the
5 jury to consider.
6 I will note everybody's
7 objections on the record.
8 As to the next issue, Mr. Paris,
9 any other motions?
10 MR. PARIS: Your Honor.
11 JUDGE CURRAN: I apologize.
12 Obviously, therefore, the motion to dismiss is
13 denied.
14 MR. PARIS: Your Honor, I would
15 make a motion to strike testimony with regard to
16 after the Attorney General was -- was complete
17 in that there was no indication that caused
18 Mr. deVries to be permanently disabled. Maybe I
19 should start with -- let me start with an
20 earlier motion.
21 Your Honor, we would move to
22 strike Dr. Marcus' testimony. In this
23 particular incidence there was no foundation for
24 his opinion that Mr. deVries would never be able
25 to do any productive work ever again.
00073
1 JUDGE CURRAN: I apologize, please
2 let me get the transcript.
3 MR. PARIS: Sure.
4 JUDGE CURRAN: What day was that?
5 MR. PARIS: I can tell you, one
6 second.
7 JUDGE CURRAN: Four? Five?
8 MR. PARIS: That was day four.
9 JUDGE CURRAN: Thank you.
10 MR. PARIS: Yes, that was day
11 four.
12 JUDGE CURRAN: Thank you. Please
13 proceed.
14 MR. PARIS: Sure. Dr. -- Dr.
15 Bursztajn, who was called to testify as a
16 psychiatrist on behalf of the plaintiffs,
17 indicated that Mr. deVries would not be able to
18 work as a medical editor again. He indicated
19 that he had a knowledge of what was required to
20 work as a medical editor and said that he would
21 not be able to work as a medical editor again.
22 I believe he said that on two occasions.
23 He specifically testified that he
24 was not a vocational expert and he was not
25 retained to determine alternate employment that
00074
1 would be available to Mr. deVries.
2 The plaintiff then presents the
3 testimony of Dr. Marcus; and frankly, there was
4 no other testimony after that to indicate that
5 somehow the -- that Mr. deVries is totally
6 unemployable. Dr. Marcus was questioned. He
7 said I'm assuming that, I was provided with that
8 information.
9 But clearly, the foundation for
10 Dr. Marcus to say that Mr. deVries could not do
11 anything, that there isn't some other -- that
12 there isn't some other employment that he can
13 do, clearly, Mr. deVries has an obligation to
14 mitigate his damages. If he can't work as a
15 medical editor, there was no testimony to
16 indicate he sought other employment or that
17 they -- there was a vocational expert on behalf
18 of the plaintiff to say that no other employment
19 was available to him.
20 MR. MULLIN: Your Honor, this is,
21 as counsel just made clear, is a failure to
22 mitigate argument.
23 JUDGE CURRAN: Right.
24 MR. MULLIN: The leading case on
25 this -- and there are a couple after -- is
00075
1 Goodman v. London Medals Exchange Inc. And
2 that's 86 NJ 19, 1981.
3 JUDGE CURRAN: I'm sorry, would
4 you --
5 MR. MULLIN: 86 NJ 19 -- NJ 86 19,
6 1981.
7 JUDGE CURRAN: Thank you.
8 MR. MULLIN: While I don't have
9 Goodman in front of me, I have certainly argued
10 many times. What's really clear in Goodman and
11 subsequent cases, progeny of Goodman, if you
12 will, first of all, the burden of proof of
13 failure to mitigate is on the defendants.
14 JUDGE CURRAN: That's definitely
15 clear.
16 MR. MULLIN: So it's virtually
17 impossible -- so if they had -- if they, the
18 defense, had brought an employability expert or
19 vocational expert, they might have a prayer.
20 But on a 4:37 motion, where all inferences are
21 drawn in my favor, what they want to do is
22 get -- essentially, they want judgment in their
23 favor on affirmative defense.
24 Now, here is the critical point.
25 Goodman says you don't even get near mitigation
00076
1 unless you, the defendants, prove that there
2 were other available jobs at the time in the
3 relevant region. So they -- they would have had
4 to put on proofs with a vocational expert and a
5 jobs expert of some sort, maybe a human
6 resources person, identifying the jobs that he
7 could have done, that deVries could have done
8 and identifying -- and proving that he could
9 have done because our -- our expert testified
10 that deVries met the enormously high -- he
11 characterized it enormously high or very high,
12 Social Security standard for disability. This
13 is a very disabled man.
14 He is -- there is also testimony
15 from Tim and Peter about his -- basically, his
16 state of paralysis and depression and
17 posttraumatic stress disorder. He described in
18 detail his inability to concentrate. Dr.
19 Bursztajn testified, relying on years of
20 treatment notes by Dr. Almeleh, testified about
21 a real deterioration and talked about how
22 posttraumatic stress disorder undermines the
23 ability to concentrate.
24 And when you combine that with
25 major depression, which that -- again, here is a
00077
1 guy who is an editor, who has to be
2 detail-focused on language. And he, Dr.
3 Bursztajn, testified about how Peter deVries
4 really kept trying to go and it was like a car
5 whose gas finally ran out, the tank finally ran
6 out and he collapsed and -- and he just never
7 got well again.
8 So what you have here is a
9 complete failure even to attempt to prove their
10 affirmative defense, failure to mitigate.
11 Mitigation. And that's why the motion should be
12 denied.
13 And certainly, we put in plenty
14 of proofs that -- that allow a jury to make a
15 causation connection. And I think there was --
16 that's what I'll say for now. There are -- I
17 could recite more facts. I could talk about the
18 impact of the events after April 25th, '04; but
19 Your Honor, I will do that only if required.
20 JUDGE CURRAN: Thank you.
21 Mr. Paris.
22 MR. PARIS: I have nothing else,
23 Your Honor.
24 JUDGE CURRAN: I find that it is
25 appropriate to deny the motion. I haven't
00078
1 looked at Goodman in a long time; and there are
2 a number of other cases, the names of which I
3 cannot cite off the top of my head. But
4 clearly, the burden of proof in regard to
5 failure to mitigate is on the defense. And I
6 find that there is no reason to even go any
7 further because there was no defense expert.
8 Sometimes we have arguments in regard to what
9 the experts say, but that is not an issue here.
10 The motion is denied. I will note your
11 objection on the record. It's preserved for
12 appeal, as is any other objection either side
13 has in regard to my previous decisions.
14 MR. MULLIN: Thank you, Your
15 Honor.
16 JUDGE CURRAN: Mr. Paris.
17 MR. PARIS: Your Honor, the last
18 item is the fact that there is -- there is no
19 proof of any proximate causation of damages by
20 way of employability of Mr. deVries in terms of
21 his disability after the Attorney General
22 investigation was complete. So while counsel is
23 arguing that the Town should have done something
24 about the Attorney General investigation, by
25 that point in time Mr. deVries was already out
00079
1 on disability. So to claim that the actions of
2 the municipality after the Attorney General
3 investigation was deemed to be complete in July
4 of '05 somehow was a proximate cause of
5 Mr. deVries' permanent disability is
6 inappropriate. Therefore, the jury should not
7 be permitted to consider actions taken by the
8 municipality after Mr. deVries went out on
9 disability as in any way causing him to be
10 permanently disabled.
11 JUDGE CURRAN: Actions or
12 inactions.
13 MR. PARIS: Actions or inactions,
14 yeah, because by the time the Attorney General
15 decision was made and plaintiffs are claiming we
16 should have taken some disciplinary action,
17 Mr. deVries was already out on permanent
18 disability.
19 And again, these motions are made
20 on the -- on the -- in the context of the fact
21 that they're being made at the end of the
22 plaintiffs' proofs. The end of the plaintiffs'
23 proofs. And clearly, at the end of the
24 plaintiffs' proofs at that point in time he was
25 already permanently disabled and apparently met
00080
1 the high standards of Social Security, as
2 Mr. Mullin just said.
3 JUDGE CURRAN: Mr. Mullin.
4 MR. MULLIN: Just because you are
5 disabled doesn't mean you can't continue to feel
6 severe emotional pain. Dr. Bursztajn testified,
7 for example -- for example, the plaintiff's
8 learning of the promotion of Chuck Snyder, Jr.
9 to battalion chief was extremely painful to him.
10 He went on at some length without objection from
11 counsel before the jury because it showed that
12 the Town was putting their premature on the
13 awful act this gentleman had conducted. And so
14 there was no objection to that. This is before
15 the jury.
16 I mean, the jury can assess to
17 what degree that caused additional pain or not.
18 But just because someone is already disabled
19 doesn't mean they can't suffer additional
20 emotional anguish. And they did. And Dr.
21 Bursztajn said that. And goes to the jury, Your
22 Honor. This is a classical jury question.
23 I wasn't sure what that motion
24 was about. It started off being something about
25 proximate causation and ended up sounding like
00081
1 an in limine or jury question, so I am not sure
2 what I am responding to.
3 If it's proximate cause issue, we
4 have evidence that went in without objection on
5 this issue. All the events that happened, the
6 attack and living there six months in fear
7 and -- and then the subsequent events, you know,
8 the promotion especially, that caused them great
9 anguish. And that should go to the jury, Your
10 Honor. That is a classical jury question.
11 JUDGE CURRAN: Mr. Paris, it
12 started out as, I thought, an economic issue in
13 regard to the economic damages. I thought you
14 were saying there could be no economic damages
15 argued because the Attorney General's
16 investigation having been completed, the Town
17 didn't do anything. But then you went to the
18 whole other issue. If you could clarify it for
19 me. I think I understand it, but --
20 MR. PARIS: Sure, Your Honor.
21 Essentially there came a point in time when
22 Mr. deVries was disabled, put on disability.
23 Okay. How the plaintiffs could claim that any
24 subsequent actions after he was put on
25 disability and when they claim he was on
00082
1 permanent disability for the rest of his work
2 life, how they can argue that any of those
3 subsequent actions proximately caused him to be
4 on disability --
5 JUDGE CURRAN: I don't think they
6 are. I thought they were arguing that the
7 failure to act, if you will, on behalf of the
8 Town after the Attorney General's Office sent
9 the letter that said ours is complete goes to,
10 basically, pain and suffering, not to economic
11 damages.
12 MR. PARIS: I understand that.
13 JUDGE CURRAN: Am I wrong about
14 that, Mr. Mullin?
15 MR. MULLIN: It's a further
16 exacerbation of emotional distress.
17 JUDGE CURRAN: Right.
18 MR. PARIS: I understand that.
19 And I think we need to put on the record that
20 the plaintiffs talk about promotion of Snyder.
21 They talk about failure to discipline Snyder, et
22 cetera, et cetera, et cetera. I just want it
23 clear that the defendants still claim that those
24 are not Constitutional violations, that it was
25 not -- that it did not deprive someone of their
00083
1 Constitutional rights to promote or ratify the
2 election of the firemen. It was not a violation
3 of someone's Constitutional rights to reopen a
4 firehouse. Okay. It was not a violation of
5 Constitutional rights to make a decision to not
6 conduct a further investigation after the
7 Attorney General was done.
8 What violation -- this may have
9 upset people. This may have made people
10 unhappy. But this is not a violation of
11 someone's Constitutional rights. These actions
12 weren't taken because these individuals were
13 homosexual. These actions weren't taken to deny
14 them of their due process right. They didn't
15 have a due process right to have discipline
16 taken.
17 Okay. So I just want the record
18 to be clear that it's defendants' position that
19 they are not identifying violations of
20 Constitutional rights here. And that's why
21 we're trying to -- we're trying to determine
22 essentially what is this case about? There is a
23 lot that's being thrown on the wall, and a lot
24 of it is very appealing and it's compelling.
25 But the bottom line is the Township has an
00084
1 obligation not to violate Constitutional rights.
2 This is not -- you know, I just
3 say it again. You know, we can take apart all
4 these events; and if I haven't mentioned some of
5 them that Mr. Mullin mentioned, doesn't mean
6 that we agree any of this was a violation of
7 Constitutional rights.
8 With regard to the -- with regard
9 to the -- the proximate causation issue, all
10 that we are alleging is after he was disabled
11 none of those actions were proximate cause of
12 him being disabled, that's all.
13 JUDGE CURRAN: I think it's fair
14 to grant that motion. I do not believe that the
15 plaintiff was going to argue that, from what
16 Mr. Mullin just said. But just in case --
17 MR. MULLIN: Yeah, I -- I'm not.
18 JUDGE CURRAN: The economic
19 damages.
20 MR. MULLIN: No, the economic
21 damages flowed from the disability, which flows
22 from prior incidents when he became disabled.
23 JUDGE CURRAN: Absolutely.
24 MR. MULLIN: Just for the record,
25 I want to try to be brief. The analogy that one
00085
1 might use is if those firemen were outside and
2 they -- there was a black couple in the house,
3 instead of a gay couple, and the captains of the
4 firehouse were using -- I won't use that awful
5 word -- were using the "N" word and screaming it
6 and threatening to kill them and then -- then
7 the Town promotes two of the -- two of the mob
8 leaders, one of them to battalion chief and the
9 other one to head of a department in the DPW --
10 I have a feeling it's because it's -- it's gay
11 men that maybe sometimes, because the sexual
12 orientation law is rather new, that sometimes
13 maybe counsel doesn't see it, sometimes on both
14 sides of the table.
15 But if we imagine just a
16 classical discrimination setting, a mob of folks
17 who had Ku Klux Klan-type mentality, the stuff
18 that 42 U.S.C. 1983 was created for, well, there
19 would be no doubt. I don't think someone would
20 seriously be standing here and saying, "My God,
21 you promoted this guy to be battalion chief
22 after he did that?"
23 JUDGE CURRAN: No, no, but their
24 argument is they might even be saying that
25 themselves; but that's not a violation of a
00086
1 Constitutional right.
2 Isn't that your argument?
3 MR. PARIS: Yeah.
4 JUDGE CURRAN: They might agree
5 it's awful. They --
6 MR. PARIS: Of course it's awful.
7 And frankly, if the firemen were wearing Klan
8 outfits, it still doesn't mean they were acting
9 under color of law.
10 MR. MULLIN: I believe he would
11 make that argument.
12 JUDGE CURRAN: How about if they
13 were red and they had those black shiny helmets
14 on?
15 MR. PARIS: Your Honor, I just
16 want to be clear on one thing. I hope
17 Mr. Mullin is not planning on summing up on the
18 Ku Klux Klan.
19 MR. MULLIN: I understand.
20 JUDGE CURRAN: You are not going
21 to mention the Ku Klux Klan. I think we decided
22 early on we are not going to have any references
23 on either sides to any minority other than the
24 minority here because that would be improper.
25 MR. MULLIN: Right. And
00087
1 certainly -- of course, here we are being candid
2 with each other; the jury is not here.
3 JUDGE CURRAN: Right.
4 MR. MULLIN: I couldn't agree with
5 you more on that, in front of jury. Legally we
6 are talking about, when you look at the case
7 law, we're talking about the cases including
8 Bielevicz, but including Winkler. I cited
9 yesterday Winkler v. Hartford 66 NJ Super 22 and
10 Security Aluminum Window Manufacturing v.
11 Lehman, 108 NJ Super 137. These were the cases
12 cited in the Lehmann section on willful
13 indifference.
14 JUDGE CURRAN: Yes, they were.
15 MR. MULLIN: And what they talk
16 about is how you can get to willful
17 indifference, the high level you need for
18 punitive damages by showing acquiescence and
19 ratification by the high levels after the facts.
20 And that's -- it's -- just to be clear, legally,
21 when I talk about Snyder's elevation and Snyder,
22 Sr.'s elevation, that is ratification and
23 acquiescence after the fact that -- that makes
24 the entity liable for the previous event, if you
25 afterwards ratify it.
00088
1 If you are saying, "Well, what
2 you did was fine. In fact, it was great. How
3 about a promotion," that's a signal to the whole
4 Town and the whole Fire Department, by the way,
5 as a very practical matter. It's a most
6 unfortunate thing, I would say, that they did
7 that in this case. It's a very bad sign to send
8 out. But anyway, that's the legal question.
9 JUDGE CURRAN: I'm going to -- I
10 think I have already decided the motion. I --
11 there will be no reference to any of the
12 economic issues being causally related to after
13 the --
14 MR. MULLIN: Yes.
15 JUDGE CURRAN: -- Grand Jury's
16 determination was known. However, the other
17 information as to pain and suffering or
18 emotional distress will be allowable.
19 Next issue, Mr. Paris? Mr.
20 Bevere?
21 MR. PARIS: I think that's it,
22 Your Honor.
23 JUDGE CURRAN: Thank you.
24 MR. MULLIN: Could we just take a
25 two-minute break? And then I want to make --
00089
1 JUDGE CURRAN: Of course.
2 MR. MULLIN: -- motion for
3 reconsideration of the LAD issue --
4 JUDGE CURRAN: LAD, sure. We will
5 go off the record, please.
6 MR. MULLIN: -- thank you.
7 (Whereupon, a brief recess is
8 taken.)
9 JUDGE CURRAN: We are back on the
10 record. I will note that we have the motion on
11 the floor from Mr. Mullin in regard to the LAD.
12 I will also note that we have the
13 issues in regard to Mr. Leanza that certainly
14 have to be addressed. You can take whichever
15 one you want first.
16 MR. MULLIN: Your Honor, I will
17 take the LAD first.
18 JUDGE CURRAN: LAD.
19 MR. MULLIN: First, if I may, Your
20 Honor, I respectfully ask the Court to
21 reconsider your position based on what you have
22 heard in the trial. You heard very specific
23 testimony now about the fact that the plaintiffs
24 were driven out of their home. First they were
25 driven away from the side of their home that was
00090
1 on the parking lot and lived in fear on the
2 other side. That was Peter deVries' testimony.
3 You have seen the police reports
4 and heard them read into the record where they
5 said we have been driven out of this Town. That
6 I believe went in yesterday, actually.
7 You've heard the very poignant
8 testimony of Tim Carter about being driven out
9 of the library that he loved. You have heard
10 both of them testify about being afraid to walk
11 their dogs, and so they stopped walking their
12 dogs and even afraid to go out on the back
13 porch. Stopped going to restaurants. Stopped
14 going to doctors, dentists. I'm trying to
15 remember if it was drug stores. I believe that
16 may have been mentioned also. The cardiologist,
17 of course, Mr. deVries.
18 Driven out of the Town. Afraid
19 to go in the Town again. And even considering
20 do we have to move farther than Jersey City?
21 That also has come out.
22 So now perhaps Your Honor has, of
23 course, on paper a motion for summary judgment.
24 It's sometimes hard to get a feel of the case.
25 Perhaps now you have had a chance to hear this.
00091
1 And -- and so the law is very, very liberal in
2 this area.
3 There is the case that I cited;
4 the name -- I am going to spell the name.
5 P-t-a-s-z-y-n-s-k-i, v. another name I will
6 spell, U-w-a-n-e-m-e. And that's 371 NJ Super
7 333. That's active 2004. And there the court
8 is dealing with whether or not a police station
9 can be a place of public accommodation. And of
10 course, it starts with the -- on page 345 with
11 the principle that the LAD should be liberally
12 construed and points out on page 345 to 346,
13 Equally important, application of the LAD -- LAD
14 is not limited only to, quote, places of public
15 accommodations. To have the LAD's reach turn on
16 the definition of "place" is irrational because
17 places do not discriminate, people who own and
18 operate places do."
19 Citing Dale V. Boy Scouts, 308 NJ
20 Super 516. And of course, Dale went up to the
21 Supreme Court of New Jersey, 160 NJ 562. And so
22 the record is clear, it was reversed and
23 remanded on other grounds 530 U.S. 6:40. It was
24 reversed in the Supreme Court on First Amendment
25 grounds.
00092
1 So we have in Dale the Boy Scouts
2 are a place of public accommodation. In Frank
3 v. Ivy Club, 120 NJ 73, Princeton's Eating Clubs
4 are places of public accommodations.
5 When you actually look at the
6 definition of public accommodation at NJSA
7 10:5-5L, you see, "A place of public
8 accommodation shall include but not be limited
9 to"; and then, even though it's not limited to
10 an incredibly long list, including some of the
11 specific places of public accommodation
12 mentioned in the testimony, including, quote,
13 any public library, dispensary clinic or
14 hospital, any restaurant retail shop, store,
15 establishment.
16 I don't think it's too far of a
17 stretch to say the streets of a town, the
18 sidewalks of a town are places of public
19 accommodation, just because the public is
20 accommodated there. The public -- towns are not
21 allowed to bar gay people from walking down the
22 sidewalks. They are not allowed to bar gay
23 people from crossing the street.
24 Clearly, towns -- the streets and
25 sidewalks that Peter and Tim were afraid to
00093
1 walk. Tim described his counter-phobic
2 behavior, his assignment was to walk past the
3 firehouse and how frightening that was. And
4 Peter couldn't bring himself to do that. And
5 even thought that was dangerous.
6 These were men who were driven
7 out of -- driven away from all the public
8 accommodations in the Town of Secaucus. And --
9 and now Your Honor has had the opportunity to
10 hear specific testimony.
11 And also, the same provision that
12 deals with public accommodations also deals with
13 the right not to be discriminated against in
14 terms of -- also deals with the right to be free
15 from discrimination in -- in terms of real
16 property. The statutory provision, Your Honor,
17 is 10:5-4; and it talks about not discriminating
18 against people in connection with public
19 accommodations and also in connection with real
20 property. And then the statute defines real
21 property, Your Honor, at NJSA 10:5-5N. And
22 it's -- it's everything you would expect. It
23 has a limitation in connection with public --
24 publicly assisted housing accommodations.
25 JUDGE CURRAN: Yes, I have --
00094
1 MR. MULLIN: You have it.
2 JUDGE CURRAN: Thank you.
3 MR. MULLIN: So I don't see any
4 other limitation. I think renting a house --
5 and the case law we cited way back when in the
6 summary judgment period talked about not just
7 the right to buy and sell a property but to
8 enjoy the usage of it. And so obviously --
9 obviously, if a landlord said, "I'm not renting
10 to you because you're gay," well, obviously,
11 that would be a violation of that. So what's
12 the difference if people terrorize you and drive
13 you out of your home? Then you can't enjoy your
14 real property.
15 And now Your Honor has had the
16 opportunity to hear this testimony. So
17 respectfully, Your Honor, through -- through
18 creating a hostile environment, a hostile and
19 abusive environment in and near the residence of
20 Carter and deVries, these firemen, led by
21 supervisory level firemen, drove -- deprived Tim
22 Carter and Peter deVries of enjoyment of their
23 real property and deprived them of the enjoyment
24 and usage of public accommodations in and about
25 their house and throughout the Town of Secaucus.
00095
1 And so respectfully, Your Honor,
2 I ask that you reverse your ruling and restore
3 the Law Against Discrimination count.
4 And of course, Your Honor, we can
5 go through all the Lehmann standards and that
6 the Mayor and Council did nothing to protect --
7 to protect them. And there, Your Honor, I'm not
8 going to recite all the Lehmann standards. But
9 this case, it's a much lower standard than
10 deliberate indifference; and I have argued that.
11 Much, much lower. Actually, in -- in the --
12 under the LAD you only have to show negligence
13 to show Town liability. And -- and under the
14 LAD you don't even have to show that supervisory
15 personnel were acting under color of law or
16 anything like that. They can be acting outside
17 the scope of their authority.
18 So Your Honor is familiar with
19 these factors. And we meet them very, very
20 easily. And so I won't repeat all the factual
21 arguments on that.
22 JUDGE CURRAN: Thank you. So what
23 you are saying is if I had only left in the LAD,
24 we probably would have turned this into a
25 one-week case?
00096
1 MR. MULLIN: May have gone a
2 little quicker.
3 MR. PARIS: I don't want to say
4 how long we have --
5 JUDGE CURRAN: I'm sorry?
6 MR. PARIS: Then again, if you had
7 just granted our summary judgment motion before
8 we even started --
9 MR. MULLIN: There you go.
10 JUDGE CURRAN: Right, absolutely.
11 Absolutely, Mr. Paris.
12 Who is going to argue?
13 MR. BEVERE: I will argue.
14 JUDGE CURRAN: Mr. Bevere? Thank
15 you. Mr. Paris' comment is noted, though.
16 MR. BEVERE: Yes, thank you,
17 Judge. Judge, we were here in November, as you
18 recall; and we argued this motion. And quite
19 frankly, notwithstanding the two or three weeks
20 of testimony that we have, there is -- the basic
21 facts upon which Your Honor made her ruling have
22 not changed.
23 Your Honor's ruling back in
24 November on the motion is that the Town of
25 Secaucus took no official action to get
00097
1 Mr. deVries and Carter out of their home, they
2 took no official action to bar them from
3 anyplace in Town.
4 And quite frankly, what the
5 plaintiffs want the Court to do is apply a
6 sexual -- they know that there was no
7 affirmative acts by the Town saying, "Listen,
8 you get out. You can't go here." Mr. deVries
9 and Carter, they personally -- they testified
10 that they personally felt they couldn't go here,
11 they couldn't go there. But certainly, the Town
12 didn't bar them from anywhere. The Town didn't
13 say, "Gay people can't rent here." The Town
14 didn't say, "Gay people can't live here. Gay
15 people" -- "Gay people can't go to the park.
16 Gay people can't go to the library." That
17 certainly was not the case.
18 What the plaintiffs want --
19 and -- and clearly, under the -- the garden
20 variety discrimination, it's does the -- did the
21 municipality take some action against them, some
22 official action to remove them from the Town,
23 remove them from their home? Clearly, the
24 answer is no.
25 What the plaintiffs want to do is
00098
1 apply sexual harassment, hostile work
2 environment standards to this case that is not
3 an employment case. And this is where we were
4 back in November. This is where we are here
5 today. There is nothing different. Nothing has
6 changed since then. And there is no case law
7 that says that sexual harassment, hostile work
8 environment standards should apply outside of
9 the LAD.
10 And Your Honor has dis -- and
11 this wasn't -- I also want to make another point
12 which I think is important. Your Honor didn't
13 reserve on the LAD motion and say, "Well, I am
14 going to reserve and wait until after
15 Plaintiffs' case goes in." Your Honor granted
16 summary judgment as to the LAD.
17 This case was not tried, from the
18 defense perspective, as an LAD case. And it
19 would be clearly and patently unfair to allow --
20 to require us now to argue at summation in this
21 case on an LAD claim that was not in this case.
22 At some point a higher court may
23 decide that the LAD did apply; but as far as
24 right now, Judge, nothing has changed from your
25 decision back in November when you said that I
00099
1 don't see any official action taken by the Town
2 to remove Mr. deVries and Mr. Carter from their
3 home or from the community, and sexual
4 harassment and hostile work environment
5 standards do not apply to Mr. deVries and
6 Mr. Carter because they were not employees of
7 the Town.
8 JUDGE CURRAN: Anything else,
9 Mr. Mullin?
10 MR. MULLIN: Your Honor, I have
11 been saying since the beginning of this trial
12 and before that, under a count that remains in
13 this case, the Constitutional count, that the
14 LAD standards apply to that count. And Your
15 Honor hasn't ruled one way or the other on that.
16 So if counsel didn't try this case with an eye
17 to those standards, that's counsel's fault. So
18 there is no question that counsel should have.
19 It's an unresolved issue in this case, what the
20 jury charge should look like not under 10:6-2
21 but under the State constitution.
22 Counsel has tried this case the
23 way -- I have seen -- I have tried many, many
24 LAD cases. Counsel has tried this case in a way
25 that makes it defensible under the LAD, as well
00100
1 as the State Constitution. I hope -- I hope he
2 doesn't succeed, but it's all there. He had all
3 his officials testify about all their reasons.
4 It's all there. This case couldn't possibly
5 have been tried in a different way -- in a
6 fundamentally different way. This is the
7 evidence.
8 And -- but counsel can't say,
9 "Gee, I" -- "I would be prejudiced if all of a
10 sudden the LAD standard was to be used." I have
11 been arguing for a very long time, before the
12 trial, during trial, that the LAD standard is
13 the -- the LAD is the enactment --
14 JUDGE CURRAN: And every other
15 time we went to sidebar for leading questions.
16 MR. MULLIN: I think that must be
17 coming out of your ears, and I sound like a
18 broken record to myself at this point.
19 Now, counsel talks about the need
20 to prove official action. Well, that's not in
21 Lehmann v. Toys R Us. And Lehmann v. Toys R Us,
22 entity liability is discussed starting at
23 page -- that's -- Lehmann is 132 NJ 587, and
24 that starts at page 615. And there is a very --
25 very carefully reasoned description about how
00101
1 you prove entity liability.
2 And the Lehmann is a case that
3 involved the issue of supervise -- when
4 supervisors participate. And that's what we
5 have here. There is no -- you know, our proofs,
6 viewing the evidence in the light favorable --
7 even not, the allegation is that the captain and
8 the -- and the two other captains were out there
9 leading this attack. And it -- so when there is
10 supervisory liability, the Town is liable if
11 the -- they -- acting within the scope of the
12 employment, the things were done that are laid
13 out in that section of the opinion or if outside
14 the scope of employment the captains were
15 delegated authority to -- and they abused it.
16 Or even if you don't make it on either one of
17 those, the Town showed negligence by failing to
18 train, by failing to investigate, by failing to
19 remedy.
20 And then, Your Honor, I cited the
21 Payton case, which sheds further light on how
22 you evaluate the investigation of a Town. And
23 believe me, it's not just a police
24 investigation. There is an obligation for there
25 to be an investigation on an administrative
00102
1 level. And Payton talks about how the
2 investigation is not timely, if the
3 investigation -- if -- if after the
4 investigation steps are not taken reasonably
5 calculated to remediate the situation, like
6 closing down the social wing of the North End
7 Firehouse, for example. So -- so you have that.
8 And -- and then, if you -- there
9 are even cases on -- on the standards concerning
10 non-supervisory liability for the Town, but I
11 don't think we even have to go there.
12 Now, but the basic principle is
13 when you have non-supervisory employees, like
14 other firemen and the gang there or maybe like a
15 Matt Kickey, well, then, the question is: Did
16 the Town reasonably know of it, and did they
17 take reasonable steps to remediate it?
18 Well, they certainly knew
19 something bad had happened after April 25th,
20 2004. Did they take reasonable steps to
21 remediate the situation? They took reckless and
22 crazy steps, I would argue, Your Honor. They
23 exposed my clients to six months of hell.
24 So Your Honor, there is no
25 requirement for official action in Lehmann. Now
00103
1 we are talking about the LAD. Now we are not
2 talking about 42 U.S.C. 1983. Lehmann is the
3 case. And we meet all those standards. And
4 respectfully, Your Honor, I -- I ask you to --
5 to restore this to the case, to change that
6 decision.
7 JUDGE CURRAN: Mr. Bevere,
8 anything else?
9 MR. BEVERE: Nothing further, Your
10 Honor.
11 JUDGE CURRAN: Okay. I am going
12 to take, if you don't mind, 10 or 15-minute
13 break, if you just want to go get something to
14 drink or whatever because I want to reread
15 certain sections that I just did not get to
16 reread last night. Thank you.
17 MS. SMITH: Thank you, Judge.
18 JUDGE CURRAN: Off the record.
19 COURT CLERK: Off the record.
20 (Whereupon, a discussion is held
21 off the record.)
22 JUDGE CURRAN: We are back on the
23 record. In regard to the motion to restore the
24 LAD claims, this Court has continued that -- has
25 considered that request carefully.
00104
1 I will note that the request of
2 counsel for the plaintiff was put on the record
3 a number of times through the trial.
4 I will tell you it always bothers
5 me when counsel looks at the court and then
6 starts to write. So to be fair to everybody,
7 you can start to right now.
8 I am going to grant the motion to
9 restore the LAD claim on these bases. First of
10 all -- I'll take the easiest one first, perhaps.
11 The question of surprise. I find that as was
12 indicated fairly by the defense, I did not
13 reserve on this motion. I take the
14 responsibility for not doing that. That was my
15 mistake, not to reserve. I should have reserved
16 until I had heard the evidence that was put on
17 the record.
18 I am conscious of the fact that
19 basically causes of action can even be amended
20 right up through the trial. This is not that
21 kind of case. Clearly, the LAD filing was in
22 the initial complaint. Clearly, I did not give
23 all possible favorable inferences to the
24 non-movant, in this case the plaintiff, when I
25 made my initial decision.
00105
1 I find for the record also,
2 although this was not a motion for
3 reconsideration that was formally filed, I find
4 that I have even considered the standards of a
5 motion for reconsideration; and I find that this
6 motion meets those standards.
7 I find that my primary reason --
8 and certainly, the transcript will speak for
9 itself as to the day of my decision. But I find
10 that my decision basically was based on what I
11 believed to be a clear reading of the wording of
12 the statute.
13 I find that I put emphasis on,
14 for instance, the wording in Section 4 of NJSA
15 10:5-4, which states, "All persons shall have
16 the opportunity to obtain," that being the
17 operative verb; and then it goes on to the rest
18 of the statute.
19 When I originally considered
20 this, I considered the arguments of counsel. I
21 did listen to counsel for the plaintiff that
22 day, but I considered their arguments to be very
23 imaginative but not to encompass the purview of
24 the statute. I listened to their arguments that
25 the statute must be construed as liberally as
00106
1 possible; and frankly, my concern was I thought
2 maybe this kind of motion would be granted by
3 way of a reversal of my decision by the
4 Appellate Division or certainly the Supreme
5 Court, as in Lehmann.
6 I believed at that time the
7 wording of the statute did not encompass the
8 arguments made by counsel. I found that the
9 arguments in regard to public accommodations
10 went to the ability of an individual to obtain
11 accommodations in a hotel, to be able to be
12 admitted to a club, basically, the Boy Scouts,
13 that kind of issue. I found that in this case
14 there was no discrimination that prevented the
15 defendants -- strike that, defendant --
16 prevented the plaintiffs from obtaining their
17 housing but that it was their decision -- and
18 frankly, I still find that that is true -- the
19 facts support the fact that it was the decision
20 of the plaintiffs to move. And I found that,
21 therefore, the LAD claims could not be
22 sustained.
23 I find in this decision,
24 reconsidering the wording of the statute,
25 reconsidering probably 30 cases on the statute
00107
1 and especially reconsidering, in fairness, the
2 cases that the plaintiffs argued at the time of
3 the motion, I find that, having heard the
4 evidence in this case, that it is clear to me
5 that my decision was based on an improper
6 reading and/or understanding of certain cases,
7 including but not limited to what I will call
8 Ptaszynski, P-t-a-s-z-y-n-s-k-i, versus Uwaneme,
9 U-w-a-n-e-m-e, which is a case decided in July
10 of 2004 by the Appellate Division.
11 I'm also relying on and will
12 quote from Lehmann, which is the 1993 Supreme
13 Court case, as well as Payton, P-a-y-t-o-n,
14 versus the Turnpike Authority, which is the 1996
15 Supreme Court case.
16 I will note that there are
17 several factual differences between this case
18 and the other -- the three cases I'm going to
19 use as a basis.
20 I will also note for the record
21 that my -- part of my decision in the summary
22 judgment motion was based on the fact that I
23 felt -- and I could be wrong -- that the
24 legislature could just have said, "home," could
25 just have said, "house," could just have, you
00108
1 know, well, included that in the legislation
2 and, in fact, did not.
3 I will also note for the record
4 that I, frankly, believe this issue will go to
5 the Supreme Court either way.
6 Not wanting to indicate any
7 gender-specific, perhaps, allegations of
8 changing one's mind, I still believe that,
9 having heard this testimony in the light of
10 especially these three cases, that it is
11 appropriate that the LAD claims be reinstated.
12 I find that this is -- certainly,
13 counsel for the defense has every right to argue
14 that this is a surprise. I find, however,
15 that -- and this also was something that I was
16 thinking about through the case. And although I
17 understand that the defense counsel will
18 disagree with me, I find that the issues that
19 were covered are the issues that basically would
20 be covered by the LAD.
21 I will also note for the defense
22 that if counsel feels that some additional time
23 would be needed for an additional witness -- I
24 know we're under the gun as far as trying to
25 finish this case. But in fact, we had a juror
00109
1 ask yesterday would we require them to be in on
2 the following Friday. Nobody in the jury seemed
3 to jump up and down and complain about that.
4 And frankly, I think we're better off to take
5 the time, if we have to, to do things properly
6 than not.
7 I find that if we look at the
8 Lehmann case, this case, the deVries case, is
9 analogous to, as I believe, in fairness,
10 Mr. Mullin may have said when he argued the
11 motion, a hostile living environment. Any --
12 anything in the -- or similarly, anything in the
13 Lehmann case that relates to a hostile work
14 environment can be also considered by way of a
15 hostile living environment.
16 I find, having heard the facts of
17 this case, that if it is a violation under
18 Lehmann to create and/or contribute to a hostile
19 work environment, how could a hostile living
20 environment not be included?
21 If I took my original rationale
22 that in order to -- the purpose of the LAD was
23 to confront discrimination by way of entry into
24 a residential setting, a club, a business, that
25 rationale only goes halfway when we consider
00110
1 Lehmann, which does not deal with the question
2 of entry into. It does not deal with the
3 question of discrimination against a person
4 on -- on the basis of gender or sex by not
5 hiring them. It says once they're there, then
6 they cannot be discriminated against on certain
7 bases, certainly not sexual orientation in this
8 case.
9 When we look at Lehmann, I find
10 here that it is clear that the allegations of
11 the plaintiff -- and those questions will be
12 left to the jury -- clearly would not have
13 occurred but for the individuals here being gay
14 men. If the jury chooses to believe the
15 testimony of the plaintiffs here, as opposed to
16 the testimony of the defense witnesses, there is
17 no question that the discrimination was because
18 the two men were gay.
19 I find that it is certainly
20 within the reasonable decision-making ability of
21 the jury to find that the complaint of conduct
22 was severe and persuasive -- and pervasive, I'm
23 sorry.
24 I find also, according to
25 Lehmann, that, quote, The required showing of
00111
1 severity or seriousness of the harassing conduct
2 varies inversely with the pervasiveness or
3 frequency of the conduct. Rather than
4 considering each incident in isolation, courts
5 must consider the cumulative effects of the
6 various incidents, bearing in mind that each
7 successive episode had its predecessors, that
8 the impact of the separate incidents may
9 accumulate and that the work environment created
10 may exceed sum of the individual episodes.
11 I also find that a reasonable
12 jury here could find that the plaintiffs',
13 plural, injuries need be or were no more
14 tangible or serious than the conditions of their
15 living having been altered and their living
16 environment having been abusive.
17 I find also, according to
18 Lehmann, that a jury could certainly find that
19 the plaintiffs here would be able to establish
20 the requisite harm by showing that their living
21 conditions were affected by the harassment to
22 the point at which a reasonable individual would
23 consider the living environment hostile.
24 As I've indicated, it seems to
25 me, now having heard this case, that
00112
1 substituting "living" for "workplace
2 environment" or -- is a reasonable understanding
3 and a reasonable legal decision based on the
4 facts of this case.
5 I find that, again, dealing with
6 Ptaszynski versus Uwaneme, which outlines the
7 great detail definitions of public
8 accommodation, that I will not read all of those
9 cited in the decision in basically headnote 7A,
10 which, again, if you read these, lists -- this
11 list appeared to me to basically be areas, you
12 know, from commercial ventures, selling things
13 to entertainment venues, where people were
14 paying -- playing billiards or swimming or in
15 shooting gallery to schools, education
16 facilities.
17 And then, of course, with the
18 decision extended to the Police Department,
19 there is a note, I believe, in this case that
20 indicates that the -- there was an assumption
21 that the courts would soon decide that jails
22 and/or prisons were places of public
23 accommodation. Frankly, when I read that, I
24 realized that all, certainly, shelter is not
25 all-inclusive. I thought there must be some
00113
1 reason why homes or hostile living environment
2 within a community, if you will, is not included
3 here. And therefore, that was part of the basis
4 for my decision.
5 Frankly, having read more cases
6 than I ever thought I would in this regard
7 during this trial, those recommended or those
8 relied on by counsel and some others that I
9 researched, I find that it is clearly within the
10 purview of this statute and within the purview
11 of the decisions based on the statute to allow
12 the LAD cause of action to be reinstated, as
13 I've indicated.
14 Frankly, the Appellate Division
15 and/or the Supreme Court may disagree; but I
16 find that, having tried to balance the issues
17 here, having not given all favorable inferences
18 to the non-movant, the plaintiff, when I decided
19 the summary judgment motion, that giving all
20 favorable inferences by way of the wording of
21 the cases requires that the cause of action be
22 reinstated.
23 I find that the Payton case also
24 clearly stands for an understanding that is in
25 line with the two cases that I have stated
00114
1 clearly. I find that the Payton case goes more
2 directly to the actions complained of, rather
3 than the overall philosophy of a hostile living
4 environment. And I find, therefore, that under
5 Payton, the reasonableness or unreasonableness
6 of an employer's remedy will depend on its
7 ability to stop harassment by the person who
8 engaged in harassment.
9 And I also tried to read Payton
10 carefully with the argument that I knew was
11 certainly still extent in regard to under color
12 of law. And we've already had all of those
13 arguments.
14 I will note the strong objection
15 to the decision on behalf of the defendants.
16 And what I would suggest -- I
17 know normally -- I've never, that I can think
18 of -- no, I have never made a decision with this
19 kind of chronology. I have never granted a
20 summary judgment motion and then changed at
21 trial. But I find, based on these facts, that
22 it -- on these -- on the testimony -- and I have
23 heard virtually all of the testimony of the
24 defense cases -- I find that it is necessary.
25 However, sometimes there are
00115
1 motions that the defense wants to make. I would
2 just suggest that everybody think it over, do
3 whatever you want; and we'll address those
4 questions on Monday. In other words, I'm not
5 asking now that the defense make any comment or
6 request any actions by the Court, unless you're
7 prepared to do so.
8 MR. PARIS: No, I -- I think that
9 the better course is for us to be here Monday
10 morning.
11 JUDGE CURRAN: I do too. I think
12 so too. All right. That decision is on the
13 record.
14 MR. BEVERE: Judge, as far as
15 Monday morning, though, I mean, obviously, we
16 will most likely have applications. I mean --
17 MR. PARIS: You know what, can I
18 make a suggestion? If I may, Your Honor, you
19 are going to be here, anyway?
20 JUDGE CURRAN: Today?
21 MR. PARIS: Today, right now.
22 JUDGE CURRAN: Yes, I am,
23 unfortunately.
24 MR. PARIS: We may end up saying
25 we'd like to come back Monday. On the other
00116
1 hand, we may have an application right now.
2 JUDGE CURRAN: Either way, why
3 don't we go off the record now, so you two can
4 talk?
5 MR. PARIS: Thank you.
6 JUDGE CURRAN: The other thing I
7 would suggest is if we could find a list of the
8 jurors. I don't want to inconvenience anyone.
9 If, for instance, we -- you need time Monday
10 morning for whatever, we can always call the
11 jurors. But I would like to call them now or
12 within the next hour to say to them, "Gee, don't
13 come in" --
14 MR. BEVERE: Give us a couple
15 minutes, Judge.
16 JUDGE CURRAN: So I just want
17 to -- you know, that's an option.
18 MR. PARIS: Thank you very much.
19 JUDGE CURRAN: Off the record.
20 (Whereupon, a discussion is held
21 off the record.)
22 (Whereupon, a brief recess is
23 taken.)
24 MR. PARIS: Your Honor, we're
25 ready whenever the Court is.
00117
1 JUDGE CURRAN: Okay. Just give me
2 a moment. I apologize.
3 Mr. Bevere or Mr. Paris?
4 MR. PARIS: Yes, Your Honor, in
5 view of Your Honor's ruling, I think that the
6 best thing would probably be to come back on
7 Monday. Obviously, we have to reassess where
8 we're at. And I would suggest that the jury be
9 told not to come in at 9:00, in order that we
10 can be heard and discuss what -- what this does
11 with the case. I would suggest probably maybe
12 10:30 or 11, in view of the fact that we -- at
13 that point we would discuss, you know, any other
14 issues that -- well, you know what, I am just
15 going to leave it at that.
16 JUDGE CURRAN: May I suggest we
17 bring them back at 1:30?
18 MR. PARIS: That's fine.
19 JUDGE CURRAN: Only because that
20 will also give more time toward charges -- that
21 would give more time for charges.
22 You know, I do apologize to
23 counsel. As I indicated, I have been aware all
24 the way through that Mr. Mullin was making this
25 request. He said it a number of times. And
00118
1 frankly, I just felt that it was fairer to
2 listen to everything and, certainly, to listen
3 to the bulk of the defense case before I made
4 the decision. But I do realize that it is
5 somewhat difficult for the defense, obviously.
6 I'm afraid it might be difficult for the
7 plaintiff other than in one aspect. So whatever
8 I can do to accommodate you, I would be more
9 than glad to do that.
10 I will ask if you would be kind
11 enough to give the list to Amy. Maybe if you
12 could go in and explain to Mrs. Graham what
13 we're doing. She is so accommodating. And if
14 she -- no pun intended -- and if she would call
15 the jurors and ask them not to report until 1:30
16 and if she would make a note of anyone she
17 speaks to or did she leave a message, just so
18 that we know that on Monday.
19 Anything else, Mr. Paris?
20 MR. PARIS: Nothing else, thank
21 you, Your Honor.
22 JUDGE CURRAN: All right. I
23 believe we have to address the question of Mr.
24 Leanza.
25 MR. PARIS: Your Honor, I don't
00119
1 think we're prepared to do that at this point.
2 JUDGE CURRAN: All right.
3 MS. SMITH: Excuse me. He is a
4 witness on Monday. We have a jury.
5 MR. PARIS: I'm not sure if he is
6 going to be a witness on Monday, Your Honor.
7 I'm not sure we are going to make an application
8 on Monday. I'm not sure what's going to happen
9 on Monday.
10 MS. SMITH: Your Honor, we have a
11 trial going on. So I don't think they're
12 precluded from making any application with us
13 being heard with regard to Mr. Leanza. And
14 Plaintiff requests that you hear us with regard
15 to Mr. Leanza, who is scheduled to be a witness
16 on Monday.
17 JUDGE CURRAN: All right. I'll at
18 least hear the plaintiff. And we'll move beyond
19 that, if the defense asks to have me reserve
20 for --
21 MR. PARIS: Your Honor, I'm going
22 to ask -- I'm going to ask that the whole issue
23 be reserved with regard to Mr. Leanza. If we're
24 going -- if the jury is not coming back until
25 1:30, I'm not even sure what the scheduling is
00120
1 going to be on Monday.
2 JUDGE CURRAN: Okay. Just tell me
3 this. Absent the doctor and Mr. Leanza, what
4 other witnesses are there?
5 MR. PARIS: Your Honor, in view of
6 your ruling, I don't know if I need to call back
7 all of my administrative witnesses because there
8 are now issues in the case that weren't
9 necessarily in the case to the extent that they
10 were before. I have to analyze all of that.
11 JUDGE CURRAN: Okay.
12 MR. PARIS: We have to think about
13 all of that over the weekend. I don't know if
14 we need to reexamine the plaintiffs in the case
15 because now there are issues in the case that
16 weren't there when we were cross-examining. We
17 were making decisions based upon what was in the
18 case at that point in time. So for counsel now
19 to say that the biggest concern we have this
20 afternoon is to talk about Mr. Leanza, I have to
21 reevaluate where we are in terms of the whole
22 case.
23 JUDGE CURRAN: Okay. But assume
24 that I had not made that decision, what
25 witnesses were going to be left?
00121
1 MR. PARIS: Monday morning we
2 would have had --
3 MR. BEVERE: Mangone.
4 MR. PARIS: -- Mangone, Captain --
5 MR. BEVERE: Malanka.
6 MR. PARIS: Captain Malanka. Mr.
7 Leanza would have been in the afternoon. And
8 Dr. Goldwaser would have been on Tuesday.
9 MR. MULLIN: Your Honor, I want to
10 be -- I would like to be heard on this issue.
11 JUDGE CURRAN: Okay. But those
12 were the only other witnesses that you were
13 planning to have; is that correct?
14 MR. PARIS: That's what we --
15 JUDGE CURRAN: I understand that
16 you may want to recall people.
17 MR. PARIS: That's what we
18 anticipated.
19 JUDGE CURRAN: I understand.
20 MR. MULLIN: Your Honor, I took
21 all the discovery in this case on the theory
22 that Judge Santiago had denied the -- dismissed
23 the motion to restore the LAD case. I never
24 considered I only had to go to trial on this
25 theory of State law trial. Then Your Honor
00122
1 reversed it for the reasons you gave, granted
2 summary judgment; and I tried my case. Now
3 counsel are -- sounds almost like -- I won't
4 call it a "threat," but counsel seems upset and
5 counsel is saying now I have to retry my whole
6 case.
7 Here is what I think, Your Honor.
8 I think that we have a trial. And we have to
9 finish the trial. And Your Honor made a correct
10 ruling just now. And --
11 JUDGE CURRAN: Well, in the
12 opinion of the plaintiff; certainly not in the
13 opinion of the defense.
14 MR. MULLIN: I understand that.
15 But what we have is a jury, and we have a trial.
16 And we have to go forward, and we have to get a
17 verdict. Counsel can argue, if I should are
18 happen to get a verdict on the LAD, that it was
19 unfair, that it was unjust, that it should be
20 tossed out. Counsel can appeal that verdict.
21 But I don't think counsel should be allowed to
22 retry this case or sabotage this case by
23 dragging it out past the point this jury has
24 committed to. I don't think so. Just as I
25 didn't say, "You know what, now I get to do 450
00123
1 days of discovery all over again." This is not
2 the first time a judge has reversed a summary
3 judgment ruling during a trial.
4 JUDGE CURRAN: No.
5 MR. MULLIN: There are reported
6 opinions on them. I am aware of one that
7 involved Judge Hamlon. It happens. Summary
8 judgment opinion is not law of the case. Your
9 Honor is well within her rights. The rule
10 allows for amendments at the end of a trial.
11 Happens all the time.
12 Counsel has -- I have always
13 claimed from summary judgment -- before summary
14 judgment I have always claimed that under the
15 LAD claim, which is still alive and well under
16 the State Constitutional count, which is still
17 alive and well in this case, that it was the LAD
18 standard that applies.
19 If counsel did not prepare their
20 case with an eye towards defending that under
21 that standard, that's counsel's fault. I have
22 always made it clear that that's my position.
23 And Your Honor hasn't ruled on that because we
24 haven't had a charge conference.
25 I said it in my summary judgment
00124
1 brief. I said it in a jury charge that I gave
2 to opposing counsel before this trial started.
3 That's the charge I had. I have said over and
4 over again that I am taking the position and I
5 am going to fight for the position that this
6 case under the State Constitution is the same as
7 the LAD standard. If counsel didn't prepare
8 their witnesses and their cross-examination
9 based on that, that was a risk counsel took.
10 What I heard was a case that --
11 that defended on all fronts. That's what I
12 heard. If counsel made a strategic decision not
13 to take seriously the risk that Your Honor might
14 agree with me and charge this case under the LAD
15 standard with respect to the State Constitution,
16 that was their risk. That was their strategic
17 risk.
18 Now, I have two badly traumatized
19 clients; and I have a jury. And we're coming to
20 the close of this case. And no, Your Honor, I
21 don't think they should be allowed to call back
22 all their witnesses. I don't think they should
23 be allowed, Your Honor, to delay the progress of
24 this trial.
25 Counsel has -- I attempted to
00125
1 bring this issue up to the Appellate Division
2 when Your Honor denied me. Leave was denied. I
3 gather a couple days ago, when they made a
4 motion, you know, Your Honor, defense did, from
5 your decision on summary judgment, leave was
6 denied. The Appellate Division is not going to
7 reach this issue. They made it clear on both
8 sides. We both tried. So there is no basis for
9 a stay because there is no likelihood of success
10 on a leave to appeal. We both gave it a shot.
11 What counsel has to do is what I
12 had to do. Sometimes you get an adverse ruling.
13 And you just keep going. I had an adverse
14 ruling when Your Honor ruled against me, and I
15 just kept going. Now, all that's happened is
16 counsel is preserving some arguments to attack
17 any verdict I get under the LAD.
18 JUDGE CURRAN: Which he has a
19 perfect right to do.
20 MR. MULLIN: They have a perfect
21 right to do this. But do they have a right to
22 disrupt this trial, to slow down this trial, to
23 make vague suggestions that there are all kinds
24 of actions are going to be taken? Does that
25 mean that we shouldn't reach the Leanza issue
00126
1 and the issue of whether they waived the
2 privilege so that I can't make -- we may have to
3 take a deposition, if Your Honor orders one way.
4 We may have to ask them to provide all
5 documents, if Your Honor goes another way on
6 the Leanza issue. You may choose to bar
7 Leanza's testimony in whole or in part.
8 We have a trial on Monday. We
9 have a jury coming back. Your Honor has done
10 nothing wrong. Your Honor has exercised her
11 discretion in -- in a careful and intelligent
12 way. Your Honor ruled against me once before,
13 and I had to march on. Now you have ruled
14 against them on this issue. You have ruled for
15 them on the color of State law issue, and I have
16 to march on. Being upset, whining about it,
17 well, that's not the lawyerly way. That's not
18 the lawyerly way, Your Honor. We have a trial,
19 and we must go forward.
20 So, Your Honor, first and
21 foremost I ask that you reach the Leanza issue
22 now. If counsel elects not to respond, that's
23 his choice.
24 And on Monday, 1:30 seems a
25 little late for me, Your Honor, with a jury on
00127
1 this tight schedule. I would respectfully ask
2 for an earlier -- bring the witnesses in, let's
3 march forward with this trial. Let's not have a
4 mistrial -- let's not have delay. And no, let's
5 not have them redo this whole trial because they
6 don't like your ruling. No, that's not fair,
7 Your Honor. Let's just march forward.
8 JUDGE CURRAN: Thank you. In
9 fairness to Mr. Paris and Mr. Bevere, I do not
10 consider Mr. Paris' comments to be an attempt to
11 delay the trial, to sabotage the trial. In
12 fairness to their clients, they have an
13 obligation to put their strong objections on
14 the --
15 MR. MULLIN: I understand that,
16 Your Honor.
17 JUDGE CURRAN: -- record. So I do
18 not consider it an attempt in any way that is
19 unprofessional.
20 MR. PARIS: I guess you wouldn't
21 consider it to be whining, Your Honor.
22 JUDGE CURRAN: No, sir, no.
23 MR. PARIS: I resent that. And
24 Your Honor suggested Your Honor understands the
25 import of what's just happened. And Your Honor
00128
1 suggested that we take some time and perhaps
2 come back Monday. And when I said perhaps at
3 11:00, you said perhaps at 1:30. And I think
4 that that's reasonable because, frankly, we were
5 going to discuss charges. But I don't know --
6 JUDGE CURRAN: Right.
7 MR. PARIS: -- what we're going to
8 do on Monday at this point.
9 JUDGE CURRAN: My concern is we
10 can use the time one way or the other on
11 charges. And I really hate to see that jury
12 left inside.
13 The other thing, though,
14 Mr. Paris, to be fair, I don't see why
15 the Leanza -- everybody was, I thought, prepared
16 on Leanza. I don't see why that can't be argued
17 today. You may or may not, depending on what
18 the rulings are, have to, want to, need to
19 produce him on Monday or Tuesday or Wednesday.
20 But I just think that the legal argument should
21 be put on the record because I think that's in
22 everybody's best interests.
23 MR. PARIS: Your Honor, the only
24 thing -- the only thing that I guess I'm looking
25 at is what does Your Honor's ruling today,
00129
1 coming when it has -- honestly, coming when it
2 has, as compared to coming in November or coming
3 before the trial started or before we started
4 our case after the plaintiffs' case, when they
5 had put their case in, I am trying to determine
6 what impact this may have. Mr. Mullin may say
7 it doesn't have an impact, and that's wonderful
8 for Mr. Mullin in his case. But that's what I'm
9 trying to determine right now at 3:35 on Friday
10 afternoon.
11 Now, that's the question. I
12 don't know what impact this will have upon what
13 we intend to put on for Mr. Leanza. I don't
14 even know that at this point.
15 JUDGE CURRAN: The question is:
16 Do you or do you want to, can you, are you
17 allowed to even produce Mr. Leanza? That's
18 the -- the threshold question.
19 MR. PARIS: You know what, if we
20 want to -- I mean, if we want to argue that --
21 you know, I have asked to have this discussed
22 Monday morning; but if we want -- if the Court
23 wants to argue that now, obviously --
24 JUDGE CURRAN: I think it's fair
25 to at least put the arguments on the record.
00130
1 Everybody was prepared on Leanza.
2 MS. SMITH: Judge, if he is coming
3 on Monday, I would like to know today under our
4 agreement.
5 JUDGE CURRAN: I am going to
6 indicate no matter what the decision is we are
7 not going to -- I am going to ask the defense
8 please not to put Mr. Leanza on on Monday,
9 unless there is some sort of good cause argument
10 that I can hear. I don't think that would be a
11 problem, especially with the 1:30 deadline.
12 MR. PARIS: My understanding is
13 that he doesn't have to be put on Monday.
14 JUDGE CURRAN: Okay. Thank you.
15 As to the plaintiffs' arguments on Mr. Leanza.
16 MS. SMITH: Yes, Your Honor, I
17 would ask that the e-mail I sent last night at
18 7:44 be made part of the record, Your Honor, as
19 if it was legal memorandum filed with the Court.
20 And also, I'm going to ask that
21 some of the exhibits I'm going to refer to today
22 be made Court exhibits, so that the entire
23 record is very clear on this issue. I don't
24 know what Court number we're on, Your Honor. Do
25 we know?
00131
1 JUDGE CURRAN: I believe we are on
2 10.
3 MS. SMITH: Okay.
4 JUDGE CURRAN: Which exhibits?
5 I'm --
6 MS. SMITH: I'm going to start
7 with on September 19th, 2005, our office --
8 JUDGE CURRAN: Hold on. I
9 apologize.
10 MS. SMITH: I'm sorry, Your Honor.
11 JUDGE CURRAN: No, no, just let me
12 get the e-mail to which you are referring.
13 MS. SMITH: I have an extra copy.
14 JUDGE CURRAN: No, no, I know I
15 had it. I just want to make sure I found it.
16 It was e-mailed at what time?
17 MS. SMITH: 7:44, Your Honor. I
18 do have an extra copy right in my hand.
19 JUDGE CURRAN: All right. I will
20 take it, just so I don't delay you. I did read
21 it, even though I don't see it.
22 MS. SMITH: Thank you.
23 JUDGE CURRAN: Thank you.
24 And Mr. Paris, you have this
25 e-mail, page one of three?
00132
1 MR. PARIS: Yes, I do.
2 JUDGE CURRAN: Thank you.
3 MS. SMITH: Okay. Your Honor, I'm
4 going to mark as -- I'm going to ask the Court
5 to mark as C-10 the first document I want to
6 discuss. It's a letter dated September 19th,
7 2005. And it's a letter wherein my office
8 served upon Mr. -- served upon counsel the
9 Attorney General's files that we got in court.
10 The Attorney General's file included what's now
11 marked P-183. And it's -- and in the bottom
12 right-hand corner its marked AG 36. That's
13 because we got P-183 from the Attorney
14 General --
15 JUDGE CURRAN: I saw that
16 yesterday.
17 MS. SMITH: -- and not from
18 defendants.
19 (Whereupon, letter dated 9/19/05,
20 Bates stamped AG 36 is received and
21 marked as Court Exhibit C-10 for
22 Identification.)
23 MS. SMITH: So at page 146 of the
24 trial yesterday Mr. Bevere misspoke when he said
25 it was turned over by us. It was not turned
00133
1 over by defendants.
2 The second page, which is
3 actually marked a separate number because it
4 came separately, is P-164. That is a Bates
5 stamped document, handwritten Bates stamped.
6 And the reasons for that is it -- it was turned
7 over by defendants.
8 JUDGE CURRAN: Any objection --
9 MS. SMITH: I'm sorry, Your Honor.
10 JUDGE CURRAN: I apologize. Any
11 objection to these being court documents?
12 MR. PARIS: Not at all.
13 MR. BEVERE: No.
14 JUDGE CURRAN: Okay. Thank you.
15 MS. SMITH: I would like Your
16 Honor to mark as Court Exhibit 11 -- I gave Your
17 Honor a copy yesterday -- Plaintiffs' first set
18 of Interrogatories to Defendants. They were
19 served on April 13th, 2005 on Defendants.
20 (Whereupon, Plaintiffs' first set
21 of Interrogatories to Defendants served
22 4/13/05 are received and marked as Court
23 Exhibit C-11 for Identification.)
24 MS. SMITH: I would like to mark
25 as C-12 Defendants' response, which were
00134
1 received on January 6th, 2006, after the receipt
2 from the Attorney General of the document which
3 has been marked P-183.
4 (Whereupon, Defendants' Response
5 to Plaintiff's Interrogatories is
6 received and marked as Court Exhibit C-12
7 for Identification.)
8 MS. SMITH: At page -- the answer
9 to our question number 50 includes a broad and
10 complete claim of attorney-client privilege,
11 which states, "Any other meetings would have
12 occurred in the presence of counsel
13 accordingly" -- "and accordingly are subject to
14 the attorney-client privilege and the contents
15 thereof are non-discoverable." So even if there
16 were other people at the meetings, the privilege
17 was very, very broadly asserted.
18 I'm going to ask Your Honor to
19 mark -- with your permission to mark Plaintiffs'
20 Supplemental Request for Production of Documents
21 as C-13. And that supplemental request for
22 production of documents, number one, asked
23 Defendants to, "Provide a true and accurate copy
24 of Mr. Leanza's letter dated April 28th, 2004 to
25 Mayor Elwell [Only the first page of the letter
00135
1 was included in the documents produced by the
2 Attorney General's Office (AG docs)]."
3 (Whereupon, Plaintiffs'
4 Supplemental Request for Production of
5 Documents is received and marked as Court
6 Exhibit C-13 for Identification.)
7 MS. SMITH: I am going to ask Your
8 Honor if we can mark as C-14 Defendants'
9 response, which included only page two of the
10 letter. And that has been marked Plaintiff's
11 Exhibit 164. The only thing on page two is, in
12 terms of the body of the letter, it has the -- I
13 forget what you call that up on the left-hand
14 corner. It indicates it's page two of a letter
15 to the Honorable Dennis Elwell. "I enclose for
16 your distribution a copy of this letter and its
17 enclosures for each councilman. Very truly
18 yours, Frank Leanza." And it's copied to M.
19 Grecco, C. Marra, J. Bueckner, R. Kickey, J.
20 Reilly and F. Constantino, who I believe are the
21 Town Council members.
22 JUDGE CURRAN: I remember that
23 from yesterday.
24 (Whereupon, Defendants' Response
25 to Plaintiffs' Supplemental Request for
00136
1 Production of Documents is received and
2 marked as Court Exhibit C-14 for
3 Identification.)
4 MS. SMITH: Your Honor, I also
5 want to mark as C-15 the complete deposition of
6 Mayor Elwell, as C-16 the complete deposition of
7 Mr. Walters, of course, as Court exhibits, not
8 Plaintiffs' exhibits to go into Evidence for the
9 jury, and a C-17, the complete deposition of Mr.
10 Iacono.
11 (Whereupon, complete deposition of
12 Mayor Elwell, complete deposition of Mr.
13 Walters and complete deposition of Mr.
14 Iacono are received and marked as Court
15 Exhibits C-15 through C-17 for
16 Identification.)
17 MS. SMITH: Now, the broad claim
18 of privilege runs probably to every -- every
19 communication done by the Town attorney because,
20 as we know, a Town attorney gives advice most
21 frequently -- and in my career I have sued quite
22 a few towns -- at town council meetings, at
23 caucus meetings. Those meetings is when the
24 town council -- the town attorney meets with its
25 client. Because the client consists of a town
00137
1 council and mayor, those -- their individual
2 conversations are probably rare. Most of the
3 advice from a town attorney to a town is at a
4 council meeting or caucus meeting of those
5 sessions.
6 Now, yesterday Mr. Bevere also
7 said on the record at page 137 -- again, I'm
8 sure maybe misspeaking -- "No other documents
9 exist from the Town attorney." I assume that
10 means that have been turned over to the
11 plaintiffs. I mean, the Town attorney must --
12 there must be caucus meeting minutes. There
13 must be contracts of employment. There must be
14 bills. And I suggest there are probably lots of
15 correspondence and e-mails and other documents.
16 I have cited the case law in the
17 e-mail. I don't want to belabor it, unless you
18 have a question, Your Honor. I think that what
19 I didn't talk about in the e-mail, where I noted
20 the -- I'm not -- going to say this wrong --
21 Aysseh case, Aysseh versus Lawn, 186 NJ Super
22 218, where a town -- where an attorney was
23 barred from testifying because of the assertion
24 of the privilege during discovery. And that
25 case was favorably discussed in Kinsella versus
00138
1 Welch, again, where the issue is if you are
2 going to -- if the defendant is going to rely on
3 some piece of evidence, it has to be let -- the
4 plaintiff -- or the other side has to have that
5 evidence prior to trial.
6 JUDGE CURRAN: If I might
7 interrupt you, there is a portion of that,
8 though, that raises one of the questions here,
9 if I remembered correctly, that if a party
10 offers an attorney as a witness, that attorney
11 is -- the attorney-client privilege is deemed to
12 have been waived.
13 MS. SMITH: Well, actually,
14 there -- there is quite an analysis.
15 JUDGE CURRAN: There is.
16 MS. SMITH: One of the analysis is
17 in a case that defendants sent this morning --
18 JUDGE CURRAN: Right.
19 MS. SMITH: -- regarding what --
20 when -- when you have a waiver of the privilege.
21 I don't see where we have any waiver here ever.
22 You can't waive it after trial starts. That's
23 really clear.
24 JUDGE CURRAN: Well, yeah, that
25 is.
00139
1 MS. SMITH: What is really clear
2 is what they're trying to do now is amend their
3 Interrogatory answer. And Ingersoll -- Montiel
4 versus Joanne Ingersoll and Allstate Insurance
5 Company, which I e-mailed to Your Honor and
6 counsel last night, makes it really clear that
7 it is much too late to amend their Interrogatory
8 answers under 4:14-7.
9 JUDGE CURRAN: But my concern is
10 that I -- you thought their argument yesterday
11 was no, we waived it and you knew it all along.
12 Is that an oversimplification of your argument?
13 MR. PARIS: No, it's not.
14 MS. SMITH: And how were we to
15 know that?
16 JUDGE CURRAN: Again, they have to
17 get to that. I just want to make sure I
18 understand everybody's argument.
19 MS. SMITH: No, we will also
20 rely -- I think Your Honor has it. I don't want
21 to delay. I think Ingersoll is directly on
22 point that -- and I'm going to -- sorry to say
23 it wrong -- Aysseh or Aysseh, that -- that
24 Appellate Division decision and that Chancery
25 Division decision make it very clear that you
00140
1 can't come to trial and amend your
2 Interrogatories and withdraw a very broad waiver
3 of the privilege. And the implications of that
4 and how that would have changed this case are
5 laid out in the e-mail I sent Your Honor last
6 night.
7 JUDGE CURRAN: I believe you
8 didn't mean to say "waiver." Did you mean to
9 say, "invocation of the privilege"?
10 MS. SMITH: Yes, I'm so sorry.
11 JUDGE CURRAN: Okay. Mr. Paris.
12 MR. PARIS: Look -- excuse me, I
13 didn't -- I wasn't referring to you to say that.
14 JUDGE CURRAN: I apologize, did
15 you mark those documents?
16 MS. SMITH: I did, Your Honor.
17 Can I hand them in?
18 JUDGE CURRAN: Thank you. I just
19 want to be sure because poor Shirley is filling
20 in and doing yeoman's work at something she has
21 not started from the beginning. So we
22 appreciate it.
23 Thank you, Mr. Paris.
24 MR. PARIS: If I can just have one
25 second, Your Honor.
00141
1 JUDGE CURRAN: Sorry. Go off the
2 record for a moment.
3 (Whereupon, a discussion is held
4 off the record.)
5 MR. PARIS: Your Honor, there
6 are --
7 JUDGE CURRAN: We will go back on
8 the record.
9 MR. PARIS: There are two aspects
10 with regard to the -- I'm sorry. Your Honor,
11 there are two aspects with regard to the waiver
12 issue. And the case that we provided, the --
13 this morning talks about the fact that once a
14 holder discloses a privilege, the privilege is
15 gone.
16 In this case there were at least
17 two times when the plaintiffs were provided with
18 information with regard to not just -- with
19 regard to what advice Mr. Leanza provided the
20 plaintiffs. The first time was with regard to
21 the letter. And in fact, they have the letter.
22 They were given the letter. They were given a
23 second page of the letter by us. And there was
24 no objection made to that.
25 The letter not only indicates
00142
1 that Mr. Leanza communicated with his client,
2 but it also communicates exactly what advice he
3 gave to the client in connection with the
4 investigation at a very early stage.
5 The second time was during Mr.
6 Iacono's deposition at page 71 where Mr. Iacono
7 was specifically asked a question and the answer
8 got into what he was advised by Mr. Leanza.
9 JUDGE CURRAN: I'm sorry, did you
10 say page 71?
11 MR. PARIS: Yes. I am going to
12 just pull that up right now, if I may, Your
13 Honor -- should say if I can. Okay. And that
14 was -- that was where he was shown the Attorney
15 General letter -- excuse me, he was shown a
16 letter from himself to Chief Corcoran, dated
17 April 30th, which has already been discussed in
18 court.
19 JUDGE CURRAN: What is the number
20 on it, if you have --
21 MR. PARIS: April 30th was the
22 letter that -- the actual document number? I'll
23 try and find it.
24 JUDGE CURRAN: The exhibit number.
25 If not -- I think I remember the letter.
00143
1 MR. PARIS: In any case, he speaks
2 about -- he speaks about the document. He asks,
3 "Did you ever" -- he was asked the question,
4 "Did you ever" -- "Did you ever write a report?"
5 JUDGE CURRAN: Right.
6 MR. PARIS: "Did you ever write a
7 report?"
8 He answers, "No."
9 The question was, "Why?" He
10 answers, "By sometime very shortly after
11 April 30th, I'm sure the Attorney General's
12 Office had taken over the matter in general.
13 And at that point there was -- you know, I was
14 advised by general counsel, as well as the labor
15 attorney, that this is no longer a municipal
16 issue, as far as there was nothing else that we
17 could do. Just wait for the outcome of the
18 actual review by the Attorney General's Office."
19 Now, in that particular instance,
20 along with the letter that Mr. Leanza wrote to
21 the Mayor and Council, the question -- if -- if
22 he was only asked the question, which Mr. Iacono
23 testified during the course of his direct
24 testimony, did -- was this letter to -- provided
25 to counsel? Yes, it was.
00144
1 JUDGE CURRAN: Excuse me, I found
2 the number, thank you.
3 MR. BEVERE: Thank you, Judge.
4 JUDGE CURRAN: Thank you. I'm
5 sorry, go ahead.
6 MR. PARIS: At various points in
7 time during Mr. Iacono's testimony he was asked
8 the question, "Did you provide this to counsel?"
9 "Yes, I did."
10 And that was it. There was not
11 going to be any discussion. The Court was not
12 going to allow any discussion in terms of what
13 did Mr. Leanza tell you, okay. And that was cut
14 off. And for example, at page 72 of the
15 transcript of the testimony, the direct
16 testimony of Mr. -- of Mr. Iacono, Mr. Mullin
17 specifically said, you know, you can't deal
18 with -- you know, you can't get into that, bring
19 it up with the Town attorney.
20 Your Honor had said, "Well,
21 that's a question you can ask of the Town
22 attorney when he testifies." And I believe
23 there were at least two occasions where that was
24 discussed, well, when the Town attorney comes in
25 to testify, he can testify to that. And there
00145
1 was never an argument made at that point in time
2 by counsel that, no, the Town attorney can't
3 come in and argue that.
4 And then what happens the next
5 day after Mr. Iacono was no longer here as a
6 witness to go any further or even ask, you know,
7 another question? Well, it's okay because Mr.
8 Leanza is going to come in. Counsel didn't
9 raise the attorney-client issue at that point in
10 time. Mr. Iacono leaves --
11 JUDGE CURRAN: I can direct you --
12 I didn't know it was an issue at that time
13 myself.
14 MR. PARIS: No, it was never
15 raised. It was never raised. And in fact, on
16 two occasions -- it wasn't just a question
17 during discovery of being asked did Mr. -- was
18 Mr. Leanza advised? Because that's not
19 attorney-client privilege. In other words, just
20 to say, "Were you" -- "Were you part of the
21 discussion?" "Yes." That's not privileged.
22 What's privileged is what advice did you give to
23 your client? That's the privileged part.
24 Okay. So what happens is there
25 were two occasions where not only wasn't a
00146
1 privilege claimed with regard to the letter and
2 with regard to the -- the Iacono deposition, but
3 the testimony that was given or the information
4 was given in the letter was information that
5 would otherwise be privileged. In other words,
6 it wasn't just, "Did you consult with the
7 attorney?" "No." It was, "And what did the
8 attorney tell you?" And that's what Mr. Iacono
9 testified at his deposition, exactly what the
10 attorney said.
11 So what I'm suggesting is that by
12 having the letter that not -- that is not
13 redacted; we didn't claim any privilege to it.
14 By having the letter and by having -- having
15 been asked the question and Mr. Iacono putting
16 it out there, saying, "I was advised by general
17 counsel there was no longer municipal issue," et
18 cetera, that essentially in -- in the matter of
19 Grand Jury subpoena issued to Ramado Galasso,
20 can't have it both ways. And at that point in
21 time the Plaintiffs' counsel should have
22 realized there was no longer a claim of
23 privilege with regard to these specific
24 communications between Mr. Leanza -- Mr. Leanza
25 and his client.
00147
1 Now, the question was
2 specifically with regard to meetings. Counsel
3 is saying, well, you know, most of the times
4 there is discussion at meetings. Counsel could
5 certainly have sought minutes of meetings. That
6 had nothing to do with Mr. Leanza, but minutes
7 of Council meetings where the issue was
8 discussed, things like that. I don't know that
9 that discovery took place. But under the case
10 law that they even talk about an implicit waiver
11 of the privilege where the testimony is
12 provided.
13 So it would just appear to us
14 that in view of the question that was asked, in
15 view of the way it was answered, in view of the
16 fact that there has already been written
17 communication whereby Mr. Leanza's opinion has
18 been put out there by way of discovery, there
19 has been a deposition where testimony was given
20 as to what Mr. Leanza advised, certainly that
21 could have been followed up, you know, "Did you
22 ever get any other advice from Mr. Leanza?"
23 I must also add at the deposition
24 there was never a claim of privilege. There was
25 never a claim that, you know, this involves a
00148
1 discussion with an attorney and therefore we're
2 claiming a privilege.
3 So, you know, that's where we're
4 at. We believe that -- that certainly was out
5 there, Plaintiffs' counsel should have been
6 aware.
7 We put Mr. Leanza -- Mr. Iacono
8 on. We put Mayor Elwell on. The issue may have
9 come up with the Mayor, as well. At that point
10 in time Plaintiffs' counsel was saying, well,
11 it's a hearsay objection. Mr. Iacono -- Mr.
12 Leanza can come in and testify. That's what was
13 indicated. There was never an indication there
14 was an attorney-client problem or they didn't
15 anticipate that Mr. Leanza was going to testify.
16 They knew he was going to testify. They
17 indicated that they were ready, you know, that
18 they thought, well, let him testify to these
19 things.
20 So that's where we're at.
21 MS. SMITH: Judge, it's a hearsay
22 objection, whether Leanza testifies or not. We
23 would have made the hearsay objection whether he
24 was on the witness list or not. You can't
25 simply come in and say what somebody else said,
00149
1 one.
2 Two, Defendants did not turn over
3 Plaintiffs 183. So for them to claim, oh, they
4 should have known we were waiving the privilege,
5 they never turned it over. Are they now
6 admitting that they violated the discovery rules
7 and hid a document and then we happened to find
8 it somewhere else? A document that they knew
9 was relevant. If that's the case, we -- they
10 should have turned over all the caucus minutes.
11 At some point they -- a light
12 bulb went off in their heads and they said,
13 Oh, Leanza is our main witness, contrary to the
14 deposition testimony of the Mayor, who never
15 claimed to have relied on him or the Fire Chief,
16 who never claimed to rely on him, and the one
17 statement by Iacono, one statement that was
18 never followed up because the privilege had
19 already been claimed. We abided by that.
20 Is now the burden on us to amend
21 their Interrogatory answers and say, Oh, they're
22 not -- in our cases the privilege is claimed all
23 the time. We don't assume that if one witness
24 says something at a dep that -- that really
25 doesn't talk about the substance, it really is
00150
1 talking about what did you do next? Well, I
2 didn't do anything because I thought that, you
3 know, it was with the AG.
4 We didn't say, "Exactly what did
5 Frank Leanza tell you" -- and he didn't even say
6 what counsel it was -- because we respected the
7 assertion of the attorney-client privilege.
8 JUDGE CURRAN: But what did you
9 think Mr. Leanza was going to testify to when
10 you got at the very latest -- or earliest when
11 you got the list of witnesses?
12 MS. SMITH: Honestly, Judge, we
13 didn't give it a lot of thought because we were
14 working 20-hour days here trying to get this
15 trial together. At -- I thought that he might
16 say, "Did you send this letter to counsel"
17 because this letter was provided to us by the
18 Attorney General.
19 This is the only document we have
20 been made aware of. We certainly didn't have
21 caucus minutes. We certainty didn't have any
22 other advice. We had no e-mails. They asserted
23 the privilege. They hadn't amended their rog
24 answers. We thought he was going to come in --
25 you know, they put some police officers on and
00151
1 they have put a document in front of them, "Is
2 that your report," blah, blah, blah and they
3 have left. So we assumed that he is going to
4 come in and say, "Yeah, I wrote this letter to
5 the Town Council, yes" and leave and probably
6 have no recollection about why and read it,
7 based on what we have seen with the police
8 officers.
9 I certainly didn't think that by
10 the AG turning over P-183 that they had amended
11 their Interrogatory answers. And -- and Judge,
12 in that respect, I mean, to look at how far the
13 Appellate Division has gone with regard to
14 4:14-7, in that case the defendant provided the
15 name of an expert witness on the very last day
16 of discovery, which was 5/15/01. And this is
17 right after best practices. The report was
18 forwarded -- the expert report was forwarded six
19 weeks later, 7/3/01, July 3rd, '01, before
20 trial. It was found to be absolutely not
21 admissible because the rules are so clear about
22 amending your Interrogatory answers in a timely
23 way.
24 And -- and having -- the
25 defendant does not even argue in that case that
00152
1 they complied with the rule regarding amendments
2 to Interrogatories, requiring the party seeking
3 the amendment to certify that the information at
4 issue was not reasonably available through the
5 exercise of due diligence prior to the discovery
6 end date. Discovery end date? We're five weeks
7 into trial.
8 JUDGE CURRAN: What about the
9 reference during the deposition?
10 MS. SMITH: Judge, I -- that -- I
11 don't think any reasonable lawyer would consider
12 that's an amendment to their Interrogatory
13 answers. It was a -- it wasn't a substance --
14 the substance of Frank Leanza came and had a
15 meeting with us and he told us A, B, C and D.
16 We have already had the Attorney General's
17 letter in Evidence. You know, so they have
18 all -- we have never objected to them
19 testifying.
20 We relied on the Attorney
21 General's letter over and over again. This is
22 in substance what this is. You know, we relied
23 on the Attorney General's letter. Don't --
24 under these statutes, don't do anything. And --
25 and we're going to -- we're going to defer to
00153
1 the Attorney General. That's come in. And we
2 assumed that -- that what we got not from
3 Defendants was going to be the extent of -- and
4 it fits in with Leanza.
5 This is not about Mayor Elwell
6 saying I didn't answer a voice mail on May 1st
7 from Tim Carter because I was advised of
8 counsel. Mayor Elwell in his deposition didn't
9 mention advice of counsel for any decision he
10 made. Neither did the Police Chief.
11 So, clearly, there was no notice
12 to plaintiff that they intended to amend their
13 Interrogatory answers in a timely way pursuant
14 to the rule.
15 Are we supposed to guess? Is the
16 burden on the plaintiff to figure out if,
17 because of -- of two lines, literally two lines
18 in one deposition, that they're amending
19 something as important as the assertion of the
20 attorney-client privilege? Is that an amendment
21 to an Interrogatory? It's clearly not.
22 Under this -- under Montiel they
23 needed to do a certification. They needed to --
24 to change their Interrogatories. They needed to
25 do it in a timely way. This court -- the
00154
1 Appellate Division barred an expert in this case
2 for failure to comply with those certification
3 rules. I don't think the burden is on the
4 plaintiff to figure out that because one witness
5 says something that we knew from the Attorney
6 General's documents, not because it was turned
7 over by them. They have never given us one set
8 of caucus minutes -- meetings.
9 Now they are going to talk about
10 what happened at those meetings and what advice
11 was given? That's totally unfair. That's
12 exactly what these rules and what the -- the
13 main case that I have cited to Your Honor, which
14 I can never say the name of, talk about.
15 JUDGE CURRAN: Thank you.
16 MS. SMITH: We would have done
17 every witness differently, every single witness
18 differently. We would have done extensive
19 discovery. It's five weeks into trial. We
20 shouldn't be hearing this for the first time
21 that they're waiving. They didn't even come to
22 trial and say, "Oh, by the way, out of time,
23 we're amending our Interrogatory answers."
24 Admittedly, Judge, I didn't
25 memorize their Interrogatory answers. I take it
00155
1 one witness at a time. You hear me begging them
2 every night, "Who is up next?" I'm going to go
3 look at the rogs. I'm going to go read the dep.
4 I mean, that's how real trials work. Every day
5 I'm like -- it's not my burden to say, "Hey, did
6 you amend your Interrogatories by something said
7 at a dep two years ago?"
8 JUDGE CURRAN: Mr. Bevere or
9 Mr. Paris, did you wish to make an objection,
10 Mr. Bevere, before?
11 MR. PARIS: The only thing I can
12 say is, you know, if -- if -- I'm sure counsel
13 was prepping for the cross-examination of Mr.
14 Iacono. And in prepping for Mr. Iacono -- not
15 deposition, his trial testimony. I'm sure in
16 prepping for that testimony they had the
17 correspondence from Mr. Iacono, which they
18 asked -- which I believe they asked about. They
19 had the deposition transcript of Mr. Iacono,
20 which indicated that he relied upon the advice
21 of the Town Attorney general counsel when --
22 when he made certain decisions.
23 I don't know what else to say. I
24 mean, I don't see -- I don't see where, you
25 know, there was a huge issue of surprise. They
00156
1 knew Leanza was going to testify. They knew
2 there were at least two pieces of information,
3 one to the Mayor and Council, one to Mr. Iacono.
4 And just to correct the record,
5 the deposition testimony was given. I don't
6 think he can say, well, that was the only time
7 in his deposition he mentioned Mr. Leanza. I
8 don't think that that's the issue because it all
9 depends on the questions as to what kind of
10 answers you are going to get. They didn't ask
11 him, again, "Well, tell us what else Mr. Leanza
12 told you. We know he gave you advice on this.
13 What other advice did he give you? What other
14 discussions did you have with him?" Then the
15 record may not reflect anything.
16 Then I believe it was on cross --
17 I believe it was on cross that Mr. Mullin asked
18 the question with regard to the subsequent
19 letter; and that's when Mr. Iacono responded to
20 to Mr. Mullin, said, yeah, that was reviewed by
21 counsel. And he was not allowed to say what
22 counsel provided to him. But at that point in
23 time, having prepared for Mr. Iacono's direct,
24 counsel said, all right, we are going to hear
25 from Mr. Leanza. He is going to be a witness
00157
1 here. And the court said that, as well. So --
2 JUDGE CURRAN: I did.
3 MR. PARIS: Yeah. So that's --
4 that's where we're at, Your Honor.
5 JUDGE CURRAN: Okay. Well, what
6 we've got to do is find our way through this
7 because, frankly, I read the Aysseh case
8 carefully. I read the other cases. And
9 certainly under 4:14, I guess it is, 7 -- the
10 Appellate Division was a little stricter in 2001
11 than they are these days, but I won't even go
12 there.
13 But my concern is what they're
14 honestly seems to be here is a general
15 misunderstanding, lack of communication,
16 whatever. It is not that the attorney, for
17 instance, in -- in Aysseh, that, you know, the
18 attorney basically delayed, if you will, until
19 the trial.
20 The defense says that they felt
21 that the word "meetings" covered everything --
22 covered just meetings, not anything else. The
23 plaintiff, I think, understandably, read it the
24 other way.
25 Well, what I'm trying to do is
00158
1 figure out what's the fairest way to work our
2 way through this. Is there a proffer, without
3 indicating any strategy or anything
4 confidential, a proffer as to Mr. Leanza's
5 testimony?
6 MR. PARIS: Proffer would be that,
7 obviously, he consulted with Town officials,
8 excuse me, every step of the way and that he
9 gave them, you know, advice with regard to how
10 they should proceed and that -- that's it. It's
11 not -- we can't -- we can't ask him -- okay, we
12 can't ask him what was in the minds of Town
13 officials --
14 JUDGE CURRAN: Right.
15 MR. PARIS: -- when they acted or
16 didn't act. All he is going to testify,
17 essentially, is as a fact witness as to what he
18 told them. That's all. You know, there also
19 will be testimony because there was testimony in
20 references to Mr. Leanza having conversations
21 with the plaintiffs. And obviously, he would
22 testify about that, as well.
23 JUDGE CURRAN: When you say, "what
24 he told them," what does that encompass?
25 MR. PARIS: Pardon me?
00159
1 JUDGE CURRAN: When you say that
2 he would testify to what he told them, what does
3 that encompass?
4 MR. PARIS: In other words, what
5 advice that he gave them after the Attorney
6 General had come back with a -- you know, with a
7 determination that they were not going to
8 proceed with the matter. You know, what did he
9 tell the governing -- I don't know if it's the
10 governing body or -- Mr. Iacono might know that.
11 What did you tell them, that's all.
12 JUDGE CURRAN: Mr. Bevere.
13 MR. BEVERE: Judge, and I also
14 want to say for the record that I did not ask
15 Mr. Iacono on direct examination about any
16 conversations he had after July of '05 with the
17 Town attorney. I didn't -- I didn't even ask
18 about anything he did after July of '05 on my
19 direct examination. Mr. Mullin asked him on
20 cross-examination, "You didn't take any
21 discipline after July of 2005?" Mr. Iacono gave
22 an answer. On a redirect I asked him the why
23 question. I didn't solicit that information on
24 his direct examination. On cross-examination is
25 when that happened. And the same thing with the
00160
1 Mayor and the cassette tape. I didn't bring up
2 the cassette tape in the Mayor's direct
3 examination. I mean, I didn't go there.
4 MS. SMITH: Your Honor, I'll rely
5 on the numerous leading questions I read into
6 the record yesterday where Mr. Bevere inquired
7 as to the Town attorney being involved in these
8 decisions. Something that is not -- has never
9 been turned over. If they're claiming --
10 they're going to actually come here and they
11 want to put him on the stand to talk about what
12 he told these people, obviously, at caucus
13 meetings because that's when they're all
14 together and that's when they're making these
15 decisions, and they never turned over the
16 minutes of those meetings because they claimed a
17 privilege. That's where his advice is given.
18 It's out -- it really is just --
19 they made a very broad assertion of the
20 privilege in answer to 50, and they lived up to
21 it. They did not produce P-183, despite our
22 demand for documents just like this. They
23 didn't give it to us.
24 MR. MULLIN: Your Honor, let me
25 add we made extremely broad document demands in
00161
1 this case. I have personally reviewed every
2 single piece of paper turned over by the
3 defendants. They did not turn over any of the
4 minutes of caucus meetings. I have not seen a
5 shred of paper reflecting advice being given at
6 caucus meetings. I have not seen any e-mails
7 reflecting any communications between this --
8 this lawyer and any Town personnel.
9 I have not seen this lawyer's
10 contracts with the Town defining what his scope
11 of authority is. Is he only, for example, to
12 give advice to the caucus and the Mayor, as he
13 did indicated in that letter; or does he have
14 responsibility to give advice to other people,
15 like Iacono? I have nothing to work with by
16 cross-examination.
17 JUDGE CURRAN: Why would they not
18 have been turned over?
19 MR. MULLIN: Because they were --
20 thank you, Your Honor.
21 JUDGE CURRAN: Excuse me. Why
22 would they not have been turned over?
23 MR. BEVERE: Judge, I would have
24 to go back and look for the request for caucus
25 meetings. I have to go back and look for that.
00162
1 I don't have a recollection. Be honest with
2 you, I don't have a recollection. What I do
3 know is a letter that was turned over in the
4 Attorney General's files says, "In furtherance
5 of our caucus discussions, I enclose herewith
6 copies of the following."
7 JUDGE CURRAN: So let's assume
8 arguendo, even if they didn't do it before that,
9 as a result of that letter they said, "Okay,
10 let's give a" -- "We want the caucus minutes."
11 You don't remember any request like that?
12 MR. BEVERE: I'm not saying it
13 didn't happen, Judge.
14 JUDGE CURRAN: Okay.
15 MR. BEVERE: I can't speak to it
16 as I'm standing here right now.
17 JUDGE CURRAN: Okay.
18 MR. BEVERE: That's all I'm
19 saying; I can't speak to it.
20 JUDGE CURRAN: Is there an
21 argument they were turned over?
22 MR. BEVERE: No.
23 JUDGE CURRAN: Okay.
24 MR. BEVERE: I believe I have
25 reviewed every document in the case, as well;
00163
1 and I never saw any caucus meetings.
2 JUDGE CURRAN: Okay. So let's --
3 let's assume arguendo they did ask for the
4 caucus meeting minutes and that they were not
5 turned over.
6 MR. BEVERE: Let's assume that
7 that request was made and they were not turned
8 over? Why wouldn't they be turned over? To be
9 honest with you, Judge, as I'm standing here
10 right now, you know, I don't know. To be honest
11 with you, I don't know.
12 JUDGE CURRAN: Can you at least
13 see that if there was a request and if they were
14 not turned over, that that would be credence to
15 the plaintiff's argument that they just didn't
16 follow up because -- you know, there were 40
17 zillion motions on this, but they didn't follow
18 up and make a motion because they just knew this
19 was attorney-client privilege?
20 MR. MULLIN: Another question,
21 Your Honor, why, when they answered the
22 question, "Identify all persons having knowledge
23 and facts relevant to the subject matter of this
24 litigation," why didn't they list Leanza and
25 describe what he had knowledge of? Why didn't
00164
1 they do that?
2 MR. BEVERE: But Judge, that --
3 that answer, admittedly, was given in January --
4 I mean, there is a lot of people that were
5 deposed and a lot of people --
6 MR. MULLIN: Why didn't you amend?
7 MR. BEVERE: -- who weren't listed
8 in that Interrogatory. That is something done
9 very early in the case.
10 JUDGE CURRAN: Then you do have to
11 amend. I can remember on this case for ages
12 people sat inside when we were conferencing,
13 saying, we don't even know the names of the
14 defendants or -- you know, I mean, amending --
15 amending is what normally is done.
16 MR. BEVERE: Judge, I understand
17 that. But I also said that any further --
18 further discovery may reveal any person
19 referenced in any documents. I give that
20 general, you know, because -- so I don't have to
21 run around and find -- and amend my -- every
22 time a new name comes up or something else comes
23 up in discovery.
24 But -- but Judge, you know, I
25 also want to say that -- that, you know, with
00165
1 regard to a lot of these issues where the --
2 where advice of attorney came up, they were not
3 issues that were raised by me on direct
4 examination. These were issues that the
5 witnesses said in response to cross-examination
6 questions. I didn't ask Anthony Iacono anything
7 about relying on advice of counsel after July of
8 2005. He said that in response to Mr. Mullin's
9 question. All I asked him was the why.
10 JUDGE CURRAN: Okay. But we have
11 a couple of issues here. One is the original
12 motion, I think which was to strike.
13 Then we have got the, which I'm
14 considering, a motion to bar the testimony of
15 Mr. Leanza.
16 I think it would be in
17 everybody's best interests if we could find some
18 middle ground here because I honestly do think
19 there was a general misunderstanding. You're
20 very -- both sides here are very professional,
21 very experienced. This is not the matter of one
22 side taking advantage of, you know, a person
23 from a sole -- solo practitioner or something.
24 I don't know -- do you have any requests? Let
25 me put it that way.
00166
1 MR. PARIS: Let me start with
2 this. There is certainly no basis for striking
3 anything that's already been done. Number one,
4 the Court did not allow any hearsay. In other
5 words, the Court didn't allow any witness to
6 say, "Well, this is what I was told." So there
7 is no basis for striking anything because there
8 was never any testimony that theoretically
9 waived the privilege. So that -- that's number
10 one. I would certainly say that.
11 I don't know whether -- if they
12 want to take a deposition of Mr. Leanza and ask
13 what advice he provided to the governing body or
14 not, just to the governing body, Mr. Iacono, ask
15 him, "Who did you talk to about this?" And they
16 want to take a deposition. If it was our
17 intention to ask him what advice he gave to
18 various officials, members, employees of the --
19 of the Town, then, certainly, you know, they
20 could ask that question in advance.
21 I think that they could have
22 asked that question at depositions. They could
23 have followed it up with Mr. Iacono or Mr.
24 Elwell or whatever. And as soon as Mr. Leanza
25 was mentioned and it was mentioned as to what
00167
1 advice he gave, he certainly could have
2 requested Mr. Leanza's deposition at that point
3 and said, "Look, you have waived the
4 attorney-client privilege. It's over." But
5 that's -- that's an alternative; they can take
6 Mr. Leanza's deposition. I could try to, you
7 know, arrange that Monday evening, I guess,
8 something like that or -- then we have court on
9 Monday.
10 JUDGE CURRAN: Miss Smith raised
11 the issue. I raised the deposition issue, I
12 think yesterday. And then Miss Smith raised the
13 document issue, which she again indicates in her
14 memo.
15 MR. PARIS: Yeah, at this point it
16 would be hard for me to make a comment with
17 regard to the ability to pull caucus minutes
18 this afternoon. But I guess, you know, as early
19 as 9:00 Monday morning we could find out from
20 the municipal clerk what caucus minutes are
21 available over certain period of time. It's
22 really probably only about a year, which
23 governing bodies may have one meeting, two
24 caucus meetings a month, something like that.
25 We're not talking about thousands of documents.
00168
1 You may be talking about -- again, you know,
2 I'm -- I have been involved in governing
3 bodies -- maybe two a month at most usually.
4 So you're talking about from
5 April 30th of '04, you know, that period of
6 time, 4/25/04. The Attorney General comes back
7 July of '05. So you are talking about
8 approximately a 14-month period of time,
9 15-month period of time. Doesn't sound like a
10 hell of a lot of stuff, documents. I -- you
11 know, so, you know, we could try to do that.
12 I could represent to the Court
13 that we make that call first thing Monday
14 morning at 9.
15 JUDGE CURRAN: There is also a
16 request for e-mails, correspondence, billing
17 records. At this point I don't think that
18 telephone records -- I think that may be
19 overreaching a bit, but certainly any
20 communications.
21 MR. PARIS: Well, we will
22 certainly find out if there was any
23 correspondence similar to this letter. I would
24 certainly say that and find out if that -- you
25 know, if that existed.
00169
1 JUDGE CURRAN: When I looked at
2 the -- initially when I -- when I saw this this
3 morning, Miss Smith, I was thinking, Well, even
4 if it goes this way, you really don't need
5 anything probably beyond December of '05. But
6 is your theory that there was or may be
7 documents, communications, et cetera, for
8 example, in regard to the trial?
9 MS. SMITH: Judge, they're waiving
10 the privilege. They don't -- as --
11 JUDGE CURRAN: I was just thinking
12 more of a mechanical --
13 MS. SMITH: Can't be a shield,
14 then a sword. They are waiving the privilege.
15 They're waiving the privilege. That is it;
16 there is no privilege anymore. And discovery is
17 quite broad.
18 JUDGE CURRAN: You're quite right.
19 I was thinking more the practical --
20 MR. PARIS: Your Honor, the only
21 issue should be if he had discussions with them
22 about the plaintiffs' case, that's a different
23 story. In other words, you know, that type of
24 discussion --
25 JUDGE CURRAN: But that's the only
00170
1 reason you're proffering to bring him in here.
2 MR. PARIS: No, no, we're not. In
3 other words, we're not proffering him to bring
4 him in here to talk about his opinion with
5 regard to the merits of the plaintiffs' case.
6 JUDGE CURRAN: Well, no, no, I
7 don't mean that way. But if he discussed
8 anything about this, then that's it.
9 MR. PARIS: Well --
10 JUDGE CURRAN: That would -- if
11 there is no privilege, there is no privilege.
12 MR. PARIS: And frankly, I don't
13 know if there is correspondence out there on
14 that issue.
15 JUDGE CURRAN: Well --
16 MR. PARIS: The whole issue may --
17 the whole issue may be moot, if his only advice
18 to them was with regard to his view of the
19 merits of the plaintiffs' claim. I certainly
20 don't think that that's relevant to -- it's not
21 just a question of waiving the privilege. Also
22 has to be with regard to something that's
23 relevant to this case.
24 MS. SMITH: Well, I have --
25 MR. PARIS: His view of the merits
00171
1 to the case --
2 JUDGE CURRAN: Well, that's
3 relevant. I am going to find it is relevant
4 because there are so many issues in this case.
5 You have things like people taking the Fifth. I
6 don't know if he talked to somebody and said,
7 "Go ahead and do that because the plaintiffs
8 don't have anything."
9 It -- this is really something
10 that I normally wouldn't get into. But for all
11 I know, if Mr. Leanza advised the Town, "Don't
12 even try to settle this case because the
13 plaintiffs have nothing," that might be
14 relevant.
15 I'm just trying to open this up
16 as far as we can. This is what I'm going to do.
17 I'm going to order that Mr. Leanza be deposed by
18 Monday night. I'm going to order that those
19 documents, all of the documents requested, to
20 the best of your ability -- and this is not
21 something that you certainly should have to do,
22 Mr. Paris or Mr. Bevere. But all of the
23 documents on the request one through seven to
24 the best of anybody in the Town's ability to do
25 so should be produced.
00172
1 I am going to request that this
2 request be made to the Mayor right now or as
3 soon as it can be. With all due respect, we
4 can't wait for people to come to work at 9:00 on
5 Monday morning. And I don't think under these
6 circumstances that anybody should. There is all
7 sorts of testimony about how these people called
8 from the firehouse and they are awakened at 1 in
9 the morning, all that kind of thing. If the
10 Mayor can get awakened and not complain at 1 in
11 the morning because someone wants to keep the
12 firehouse open, then, in fairness, they're going
13 to have to bring people in tomorrow to get that
14 information.
15 MS. SMITH: Judge, I will take the
16 deposition Monday morning at 10:00 at my office,
17 if Mr. Mullin will be here, if you don't mind,
18 to argue the other issues that will come up.
19 JUDGE CURRAN: That should not be
20 a problem because Mr. Leanza was going to be
21 here, correct?
22 MS. SMITH: Yeah.
23 JUDGE CURRAN: 10:00 of Mr.
24 Leanza's deposition in the office of Smith
25 Mullin. Therefore, I'm going to ask that the,
00173
1 as I said, the documents be turned over.
2 However you want to do it, by messenger, fax,
3 e-mail, however you want to do it.
4 MS. SMITH: Could I have Sunday
5 night at 5, Your Honor?
6 JUDGE CURRAN: I was going to make
7 it earlier than that.
8 MS. SMITH: Thank you.
9 MR. BEVERE: I am going to call,
10 see if I can reach Mr. Leanza right now.
11 JUDGE CURRAN: I am going to make
12 it 5:00 on Saturday because, in fairness, if
13 this is going to be a -- Town employees who are
14 being brought in on their day off -- and I am
15 sorry for them. I apologize to them. But they
16 shouldn't have to come in on Sunday. So
17 anything should be gotten ready.
18 MR. BEVERE: Where are the
19 documents I'm getting? I will call Dave
20 Drumeler right now.
21 JUDGE CURRAN: By 5:00 on Saturday
22 they will have to be provided to Plaintiffs'
23 counsel.
24 MR. BEVERE: No, but what I'm
25 asking, Your Honor?
00174
1 JUDGE CURRAN: One through seven
2 on the list.
3 MR. BEVERE: One through seven on
4 the list. Let me step out and call
5 Mr. Drumeler.
6 MS. SMITH: Your Honor.
7 MR. PARIS: Can I say number
8 one -- I mean, now I need to look at these.
9 Minutes of all executive sessions, Town Council
10 from April 24th, '05 to the present.
11 MS. SMITH: They are probably in a
12 book.
13 MR. PARIS: But to the present
14 time?
15 JUDGE CURRAN: That's why I
16 indicated that at first when I looked at this I
17 was thinking 12/05, unless you want a
18 certification. Mr. Leanza is an attorney. If
19 he wants to certify that he never discussed this
20 case in any way, shape or form with anyone after
21 January 1st, 2006, then the Court would have
22 that certification. And in fairness, that is
23 more relevant because there was no real
24 testimony other than concurrent to the time
25 that --
00175
1 MS. SMITH: Judge, this is really
2 a discovery dep.
3 JUDGE CURRAN: Yeah, you're right.
4 MR. BEVERE: I am going to step
5 out and call Mr. Drumeler.
6 JUDGE CURRAN: Thank you.
7 MS. SMITH: Judge, I'm giving
8 counsel the address to deliver things to
9 tomorrow by 5.
10 MR. MULLIN: Judge, we are asking
11 that they be delivered to --
12 MR. BEVERE: Your house?
13 MR. MULLIN: It be delivered to
14 our residence, Your Honor. Is that okay?
15 JUDGE CURRAN: Okay. Where is the
16 residence?
17 MS. SMITH: Valley Road in
18 Montclair. It's not out of the way. They're in
19 Nutley.
20 JUDGE CURRAN: And Mr. Paris,
21 certainly, I'm ordering one through seven. Now,
22 if you come up with a specific argument on X
23 thing, I will certainly listen to that, as long
24 as there is, you know -- and in fact, in
25 fairness to Miss Smith -- I'm guessing that she
00176
1 will be very reasonable in that regard too -- if
2 there is an argument that has to be made, then
3 we will make the argument later.
4 MR. PARIS: Thank you.
5 MS. SMITH: Thank you, Judge.
6 MR. MULLIN: So I just want to
7 check on the schedule at this point, Your Honor.
8 MR. PARIS: Your Honor, can I just
9 make one other suggestion? Considering the fact
10 the jury is coming in at 1:30, is there a place
11 here to have the deposition taken?
12 MS. SMITH: Judge, I am going to
13 have all my documents. I am going to need to
14 make copies. It should be at my convenience. I
15 wish I was going to be here too because we are
16 putting witnesses on.
17 JUDGE CURRAN: It's up to them,
18 where they want to do it. They could use the
19 jury room, but nobody wants to stay in that jury
20 room.
21 Mr. Mullin, what is it?
22 MR. MULLIN: I want to clarify
23 Monday's schedule. I gather now they're calling
24 in a witness. Mangone I believe is scheduled?
25 MR. PARIS: Judge.
00177
1 MR. MULLIN: Need to know what
2 witnesses we have up on Monday; and then I need
3 to have Your Honor's ideas on what our schedule
4 is, what you expect us to be arguing. I think
5 we have a charge conference; is that --
6 JUDGE CURRAN: What I would
7 propose is we meet at 9:30, we go through the
8 charges and that kind of thing. And at that
9 time there will be discussions of the witnesses.
10 In fairness to Mr. Paris, I don't
11 think it's fair -- and I take the responsibility
12 for this -- to make them say today, which was
13 the agreement, we're going to tell you who we're
14 going to have first up at Monday at 1:30. We
15 will discuss that Monday morning, and then we'll
16 go from there.
17 MS. SMITH: The only possibilities
18 are the people they have named?
19 JUDGE CURRAN: The only
20 possibilities are Mangone, Malanka. That's it.
21 And who else? Well, Leanza may or may not. And
22 Goldwaser scheduled for Tuesday.
23 MR. PARIS: Your Honor, I don't
24 want my -- my silence -- we make applications on
25 Monday that result from Your Honor's ruling
00178
1 today --
2 JUDGE CURRAN: I understand that.
3 MR. PARIS: -- regarding the LAD.
4 I want to be clear.
5 JUDGE CURRAN: Absolutely, you
6 said. But we just are prepared for other
7 alternative.
8 MR. PARIS: That -- that's fine.
9 JUDGE CURRAN: No, those -- you
10 put those requests -- you put those requests on
11 the record earlier. Anything else?
12 MR. MULLIN: That's it, Judge.
13 MS. SMITH: Thank you, Your Honor.
14 JUDGE CURRAN: Off the record.
15 (Whereupon, the proceeding is
16 concluded at 4:50 p.m.)
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00179
1 C E R T I F I C A T E
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3 I, TRACEY R. SZCZUBELEK, a Certified Court
4 Reporter and Notary Public of the State of New
5 Jersey, do hereby certify that the foregoing is
6 a true and accurate transcript of the
7 stenographic notes as taken by and before me, on
8 the date and place hereinbefore set forth.
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18 ________________________________
19 TRACEY R. SZCZUBELEK, C.C.R.
20 LICENSE NO. XIO1983
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