BLS Library Blog

The New Jersey Law Journal reports a change in how the NJ Motor Vehicle Commission (MVC) assesses points on traffic tickets that are dismissed in court and merged with another offense as part of a plea bargain. The change began in May and will have a major impact on municipal court traffic cases where plea bargaining of NJ Title 39 motor vehicle offenses is now common practice. The MVC policy relies on an unreported November 2007 opinion in State v. Price (2007 WL 3287844) (password needed), an appeal of a judgment of conviction for second degree eluding where the trial court merged motor vehicle offenses into the eluding conviction. The Monmouth County Appellate Division rejected the appeal but, on its own motion, remanded the judgment of conviction to the trial court to require the imposition of mandatory motor vehicles points:

This merger, however, does not obviate the imposition of mandatory penalties under Title 39….“Those penalties…must survive the merger, particularly since they represent not only punishment for the offender but also protection for the driving public.”

In May, the MVC sent a memo to municipal judges, court administrators and municipal prosecutors to announce the change. But the change comes with very little notice to the NJ municipal court defense bar catching many off guard.

Traditionally, NJ Supreme Court rules prohibited plea bargaining in municipal court. Now, plea bargains in the Municipal Courts are permitted and governed by R. 7:6-2(d). In July, 2000, the NJ Legislature passed P.L.2000, c.75 to prohibit operating a motor vehicle in an unsafe manner and to allow municipal prosecutors to move before the municipal court to amend the original charge to a lesser offense. This lesser offense, “Unsafe Driving”, imposes no points against the defendant’s record. This resulted in plea bargains amending a point-producing charge, such as speeding or passing on the right, to a charge without points. That practice will change as a result of the new MVC directive. Now, to insulate a defendant from MVC points, the better practice will be to ask the municipal prosecutor to move for a directed verdict of not guilty. Whether municipal prosecutors will make such motions is another question as the affect on revenues generated in muncipal courts could be significant. That is an item for a separate posting.

Source: New Jersey Law Journal, Points Now Assessed For Merged Traffic Charges by Charles Toutant, June 19, 2008 (password needed)

This month, the New York State Bar Association established a task force of 22 professors, former judges, prosecutors, defense attorneys and others to identify rules, procedures and statutes contributing to the problem of wrongful convictions. The news release issued earlier this month lists BLS Prof. William Hellerstein as one of the task force members. Professor Hellerstein, who has been a member of the faculty since 1985, is the author of articles, books and reports on criminal law and constitutional litigation. An experienced civil rights and appellate advocacy authority, Prof. Hellerstein brings the perspective of the defense bar to this new task force. See Second Look Victory, a 2004 News Channel 4 report which briefly covers the reversal of the wrongful murder conviction of David Wong, for whom Prof. Hellerstein, the Director of Brooklyn Law School’s Second Look Clinic, served as lead counsel.

Other members of the task force with connections to BLS are the Hon. Charles J. Hynes, Kings County District Attorney and BLS Adjunct Professor of Law; David Louis Cohen, Esq., BLS Class of 1971; and the Hon. George Bundy Smith, Retired Court of Appeals Judge and 2008 BLS commencement speaker.

The Task Force is expected to conduct an analysis of cases in New York State that have led to wrongful convictions and to hold hearings with input from communities around the state and to study the rules, procedures and statutes that may play a part in wrongful convictions. Adequacy of compensation is one of the key issues under review. The Task Force is expected to issue a final report in April 2009.

This past Saturday, US Supreme Court Justice Stephen Breyer appeared on C-Span with Bill Press to talk about good legal writing. The discussion was part of the Burton Awards program held at the Library of Congress to honor partners in law firms and law school students who use plain, clear and concise language in briefs and other legal writing. Anna Burns, BLS Class of 2008, was a recent recipient of a Burton Award for Legal Writing.

In the conversation, Justice Breyer refers to his own book Active Liberty: Interpreting Our Democratic Constitution, Call No. KF4552 .B74 2005 along with The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin, Call No. KF8748 .T66 2007 both of which are in the BLS library collection.

This week, the Associated Press has a story about City of Seattle v. Professional Basketball Club LLC, the lawsuit about the final two years of the lease between the city and the SuperSonics at Seattle’s KeyArena. The Sonics gained the NBA’s approval to move the team to Oklahoma City, the hometown of team owner Clay Bennett, largely based on economic considerations. The City of Seattle argues that the lease forces the franchise to play two more seasons before departing.

The Sonics are represented by 53 year old Brad Keller, who graduated magna cum laude from Brooklyn Law School with the Class of 1979. Keller is the managing partner of Byrnes & Keller LLP in Seattle, Washington. The case has been pending in U.S. District Court for the Western District of Washington since October 2007 when Keller successfully removed the case from the state courts to the federal court. The six-day, no-jury trial before U.S. District Judge Marsha Pechman is expected to conclude this week.

The Sonics’ argument that it can terminate its lease early because they are losing money at Key Area, if successful, could set a precedent with broad implications in the sports world. If the court permits early termination, it could impact the willingness of taxpayers to authorize public funding of new stadiums.

Today’s New York Law Journal has a front page story (password required) about the dismissal of defamation claims filed against two federal judges by a pro se attorney. The libel actions stem from an employment discrimination suit filed in September 2003 by Loretta McHenry, a 1990 graduate of Brooklyn Law School. In August 2005, Judge David G. Trager entered an order for summary judgment in favor of Ms. McHenry’s former employer. McHenry appealed the dismissal to the Second Circuit where in February 2007 Judge Robert A. Katzmann affirmed the order for summary judgment in favor of the employer. In October 2007, McHenry filed a 22 page libel complaint against Judge Katzmann in Kings County Supreme Court. The following month, she filed a separate 38 page libel complaint in state court against Judge Trager, a former Dean of Brooklyn Law School from 1983 to 1993. Both libel actions were removed to federal court. In January 2008, Eastern District Judge Dora L. Irizarry entered an order dismissing the pro se plaintiff’s complaint against Judge Trager. On June 13, 2008, Judge Irizarry entered a separate order of dismissal of the complaint against Judge Katzmann. The dismissals of both libel complaints against the federal judges cited the US Supreme Court decisions of Mireles v. Waco 502 U.S. 9 (1991) and Forrester v. White, 484 U.S. 219 (1988) stating “It is well-settled that judges have absolute immunity from suits for damages arising out of judicial acts performed in their judicial capacities”.

Searching SARA, the library catalog, for material about judicial immunity yields only a few titles. Suing Judges: a Study of Judicial Immunity (1993) by Abimbola A. Olowofoyeku, Call No. K2146 .O45 1993 (Int’l) traces the origin of the doctrine of judicial immunity almost 400 years of the common law for the rule that “no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him”, quotiing Lord Denning in Sirros v Moore [1975] QB 118. The book reviews “the law relating to the protection of judicial officers in common law legal systems” and argues that immunity is unnecessarily wide. This book tests fundamental assumptions on the topic of judicial immunity.

A search of recent legal periodicals shows some cracks in the doctrine of absolute judicial immunity. For example, the November 2006 edition of the ABA Journal had an article entitled Getting out the ‘No’ Vote by Wendy N. Davis reporting a South Dakota campaign to persuade voters to reject a ballot initiative known as Judicial Accountability Initiative Law or JAIL. The proposal would have amended the state constitution to allow litigants to sue judges for intentionally violating people’s due process rights. The May 2008 edition of the Wisconsin Law Journal reported that the proposal was ultimately defeated by a margin of 89% to 11%, even though early polls showed voters in favor of the proposal by margins of 3 to 1. In the upcoming issue of 24 Touro Law Review at page 473, Erwin Chemerinsky has an article entitled Absolute Immunity: General Principles and Recent Developments which explores the issue of judicial immunity in detail.

When the US Congress passed the United States Arbitration Act (now known as the Federal Arbitration Act or the FAA) in 1925, it seemed a good alternative to costly litigation. Before that, the common law rule of revocability (which allowed either party to revoke an arbitration clause before an arbitral award was determined) made enforcement of agreements to arbitrate future disputes all but impossible. The 1920 passage of the New York Arbitration Law, the first American statute to make arbitration effective, led to the federal legislation. Since then, arbitration has had the reputation of being an efficient method of alternate dispute resolution saving precious judicial resources for more serious matters. Over the years, US Supreme Court precedents have given an expansive reading of the FAA. The most recent ruling by the Court was the decision in Hall Street Associates, LLC v. Mattel, Inc. that parties cannot agree to a higher standard of judicial review of arbitration awards. That decision questioned the validity of a long-standing doctrine permitting courts to overturn arbitration awards that are in “manifest disregard” of the law.

For further reading on the topic, see Consumer Arbitration Agreements: Enforceability and Other Topics, by F. Paul Bland, Jr. (Call No. KF9084 .B53 2007) in the library’s main collection.

If you have questions about searching for legal periodicals, other legal titles or other questions about bookmarking and downloading material from HeinOnline, easy to view help has arrived. HeinOnline has created six video tutorials and posted them on YouTube. View them at http://www.youtube.com/HeinOnline08 . There are six topics:

· “Introducing the HeinOnline YouTube Channel”
· “How to Find an Article in the Law Journal Library”
· “Finding the Coverage Information for a Title”
· “Bookmarking a Search in HeinOnline with Internet Explorer”
· “Bookmarking a Search in HeinOnline with Firefox”

Each video goes step-by-step through its respective topic. They are available on YouTube, as well, by entering Hein Online in the search box.

“Footprints in the Sand” has appeared on plaques, t-shirts, mugs and other merchandise sold in stores and online usually signed “Author Unknown”. With merchandising rights at stake, it comes as no surprise that a lawsuit is pending in a federal court on Long Island to decide just who wrote it.

On May 12, Basil Zangare of Shirley, N.Y., filed a 16 page complaint (password needed) under the Copyright Act of 1976, claiming that the words were written by his late mother, Mary Stevenson, in the 1930s and that she registered them with the U.S. Copyright Office in 1984. There are two defendants named in the suit. One of them, Margaret Fishback Powers, is a Canadian traveling evangelist. Powers says that she has a registered trademark for “Footprints” and “Footprints in the Sand” and that she wrote the words at a Thanksgiving religious retreat in Canada in 1964. She has a website marketing items using the poem. The second defendant, Carolyn Joyce Carty, claims on her webpage that she wrote the poem in 1963 when she was 6 years old and was inspired by poet Henry Wadsworth Longfellow. The poem was popular 20 years ago but has become less so today. According to the complaint, Zangare seeks more than $1 million from each of the two women as unjust enrichment.

Source: Washington Post, Search to Divine Authorship Leads ‘Footprints’ to Court by Hank Stuever, June 1, 2008