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Tuesday, August 30, 2011
Another Bill Aims at Upending Dram Shop Ruling
We reported last month that Assemblymen John Amodeo, R-Atlantic, Erik Peterson, R-Hunterdon and Michael Patrick Carroll, R-Morris, had introduced a bill, A-4228, designed to undo a state Supreme Court ruling that permits drunken drivers to sue the establishments that served them.
The Court held in May in Voss v. Tranquilino that an automobile insurance statute prohibiting drunken drivers from suing other drivers did not pre-empt the state's dram shop statute, which was a decade older and not explicity repealed. Thus, the tavern alone stands liable to the patron it served despite visible inebriation.
Now, an identical bill, sponsored by Jeff Van Drew, D-Cape May, has been lodged in the Senate. S-3028 would amend N.J.S.A. 2A:22A-5 to bar dram suits suits not only by the drunken driver but also by any passenger who rides with the driver knowing of his or her intoxication. [See text of bill here.]
The loophole-plugging legislation has the support of a tort-reform organization, the New Jersey Lawsuit Reform Alliance, whos executive director, Marcus Rayner, calls it "a first step toward protecting our business community from the Supreme Court's misinterpretation of the law." No one has yet weighed in against it.
Posted by Ronald J. Fleury at 12:50 PM.
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Thursday, August 25, 2011
Appeals Court Upholds Former Senator Bryant's Corruption Conviction
The Third US Circuit Court of Appeals on Thursday affirmed former state senator Wayne Bryant's conviction on charges of honest services fraud, mail fraud and bribery.
A federal jury found in November 2008 that R. Michael Gallagher, formerly Dean of the School of Osteopathic Medicine at the University of Medicine and Dentistry of New Jersey in Camden paid Bryant for a “low show” teaching job in return for Bryant steering more than $10 million in extra state funding to the school over a three-year period.
At the time, Bryant was Chairman of the Senate's Budget and Appropriations Committee and the Joint Budget Oversight Committee.
The jury also determined that Bryant used a “no show” job providing legal services to the Gloucester County Board of Social Services to inflate his pension benefits. Bryant was a partner with Zeller & Bryant in Cherry Hill, but retired on March 1, 2007.
Bryant drew a four-year prison sentence. Co-defendant Gallagher, convicted of honest services fraud and bribery, was sentenced to 18 months.
In their joint appeal, they argued that prosecutors violated their due process rights by interfering with their pretrial access to potential witnesses; that the evidence of honest services fraud and bribery was insufficient; and that the jury instructions were defective.
In addition, Bryant challenged the sufficiency of the evidence that he committed mail fraud in connection with the pension scheme and contended his conviction on those charges should be overturned because at trial, District Judge Freda Wolfson improperly allowed a lay witness to testify about the law.
Circuit judges Thomas Ambro, Anthony Scirica and Thomas Vanaskie rejected all of those arguments.
They also upheld both men’s sentences, including a requirement that Bryant and Gallagher jointly make restitution to UMDNJ for the $113,167 it paid to Bryant.
Posted by Mary Pat Gallagher at 05:50 PM.
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Tuesday, August 23, 2011
Statutes Purged of Archaic Gender Distinctions
Gov. Christie signed a bill on Aug. 19 repealing 19th century statutes that were laced with language reflecting the unequal status of women at the time.
The repealer centers mostly on the Married Women's Property Acts, N.J.S.A 3A:37-2 to -29, which first allowed a married woman to own, control, and dispose of property as though she were single, but which have been superseded by constitutional protections and antidiscrimination laws.
As exceptions to the common law doctrine of coverture that merged a woman’s property rights into the marital estate, the acts permitted a married woman to make a will; to sue or be sued in her own behalf (without her husband having to be joined as a party); to own her own wages and earnings as her separate property; to own paraphernalia (defined as “suitable ornaments and wearing apparel”) provided by her husband; and to convey real property without her husband’s consent if he were mentally insane or incapacitated.
But the repealer also trashes two other statutes that were, more than anachronistic, explicitly sexist.
One provided for forfeiture of a woman’s marital property rights in cases of infidelity.
"N.J.S.A. 3A:37-3. Bar by consent to ravisher
If a wife after being ravished, consent to the ravisher, she shall be disabled and forever barred from having her jointure or dower, unless her husband is voluntarily reconciled to her and permits her to dwell with him, in which case she shall be restored to her jointure or dower."
Another gave a man accused of a sexual offense against an unmarried woman a clear path to marry her, and thus gain immunity:
"37:1-5. Immediate marriage if arrested upon criminal charge
If a person is arrested upon a criminal charge, involving an accusation of bastardy, rape, fornication or of having had carnal knowledge of an unmarried female, and the accused person consents to marry such female, any licensing officer is authorized to immediately issue a marriage license ... ."
The New Jersey Law Revision Commission, in a November 2007 report described the statutes as "a demeaning relic."
The repealer bill, S-2665, with no fewer than 20 sponsors, sailed through both houses — the Senate in March and the Assembly in June — without a nay vote.
Posted by Ronald J. Fleury at 11:47 AM.
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Monday, August 22, 2011
Shorter Crack Sentences Don't Mean Higher Recidivism
Public safety apparently hasn't suffered much from retroactive application of a 2007 law that shortened sentences for crack cocaine.
A U.S. Sentencing Commission study finds no evidence that offenders whose sentence lengths were reduced via retroactive application of the 2007 Crack Cocaine Amendment had higher recidivism rates than a comparison group of offenders who were released prior to the effective date.
The amendment, which became effective Nov. 1, 2007, reduced the base offense levels assigned by the Drug Quantity Table for each quantity of crack cocaine. Sentences consequently dropped an average of 26 months, though some offenders were released almost immediately or within a few months.
The commission later permitted retroactive effect for offenders imprisoned as of March 3, 2008. The study looked at sentences between then and April 7 of this year.
Within two years of release, 30.4 percent of offenders who won retroactive application of the amendment committed another crime, a tad lower the 32.6 percent rate of those who would have been eligible to seek retroactivity but served their full terms. Drug possession made up 20 percent of the re-offenses by each group. According to the commission, there is no statistically significant difference between the two.
The study was issued on May 31 and reported in the August issue of The Third Branch, the newsletter of the Administrative Office of the U.S. Courts. It is available as a PDF here.
Posted by Pamela Brownstein at 01:15 PM.
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Monday, August 22, 2011
Tax Adviser Done in by His Own Device
One hopes that Joseph Gallagher’s tax clients didn’t follow his example. The former Jersey City attorney — who was disbarred a quarter century ago for trust account finagling — pleaded guilty last Wednesday to tax evasion stemming from a scheme he devised to mask his income as a tax preparer.
Since 1986, according to the U.S. attorney, Gallagher had his earnings from tax work deposited into the bank account of a New York City consulting company, established at his direction and operated by another person. He didn’t report that income on his own tax returns, and some years he didn’t file at all. For the five-year period 2004-08, the unreported revenue exceeded $3.3 million — a third of which allegedly was the government’s cut.
Gallagher, 68, might have seen this coming, since he had been down the same road before. In 1993, he pleaded guilty to failure to file tax returns and was sentenced to six months in prison, according to the information filed against him.
The count to which he pleaded last week carries a maximum potential penalty of five years in prison and a $250,000 fine, or twice the gross $1.1 million gained from the offense. He is free on bond pending a Dec. 1 sentencing before District Judge Noel Hillman.
Gallagher was disbarred on April 13, 1984 for multiple instances of misappropriation of client trust funds of more than $52,000, combined with several instances of neglect and failures to carry out contracts of employment (96 N.J. 54).
Posted by Ronald J. Fleury at 11:00 AM.
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