THOMAS B. DUFFY
COUNSELLOR AT LAW
739 BAYVIEW DRIVE
ABSECON, NJ 08201-1208
Phone: 609-457-6700
Fax: 609-646-2211
By Fax & Email
The Honorable James E. Rafferty, P.J.Eq.
Gloucester County Courthouse
PO Box 728
Woodbury, NJ 08096-0728
RE:
Duffy & Lusk v. Armstrong et al.
Docket No. GLO-C-31-06
Brief of Plaintiffs in Response to Various Defense Filings
Your Honor:
My adversaries, as is their duty, have been very avid in pointing out the defects in this suit. In
both cases (generally Margate and "the State"), however, there is a significant law1 and not one,
but two, recent Supreme Court cases that will determine the outcome of this suit which are
unbriefed by them. The cases in particular are directly on point, are recent and, indeed, I would
not have filed this suit if either of them had "gone the other way." So, after the brief facts, I state
what is "right" about this suit – that was not briefed by the State.
Brief Counterstatement of Facts
I believe that Your Honor knows the basic contentions in this suit. I will just make a
counterstatement to items in the defendants’ Statements of Facts that are false or, at least, open
to different interpretation. Margate is not the prime offender: its main questionable allegation is
that my appearance was voluntary. Nothing could be farther from the truth. Read the Transcript
Mr. Paarz has provided or my summary in Appendix A: I stated that I needed chemotherapy in
six to either weeks and, “I don’t want to get myself into a case.” T4-16-22. Most people would
have taken that as a “no.” Judge Savio pressed on which started me thinking it was an
assignment and he did not have to take “no” for an answer. I tried to address my ethics concern
that Client X needs to be represented due to her mental condition. This was not addressed. I
finally stated, “Somebody has to and I guess I’ll do it. … Yes. … Since I am being forced.” T64-9. Hardly voluntary – I “had to” given that His Honor would not address my ethics concerns, as
numerous cases demand that a judge do. Certainly, this is a disputed fact for trial, if ever there
were one – especially given the ethical quandary.
The big fact for Margate is that the City was totally ignoring the Municipal Public Defender Law
which automatically means they were violating the Constitution. They cannot blame me for this
because they were ignoring it before I was counsel by not following indecency or expert report
sections early in the case and then by not immediately securing a replacement for Mr. Robertson
when he was excused (or temporary – if her indecency were still unclear).
Now Ms. Sked has bent the facts pretty severely – I guess she has to. She alleges I “interjected”
myself into the case. As I say elsewhere, it’s called practicing law. All my appearances were at
the request of the client or, with regard to the interlocutory appeal, Public Defender Robertson
who did not have time to file a motion for leave to appeal in one or two days.2 Her whole analysis
1
2
The Municipal Public Defender Act which Margate does not bother to follow. N.J.S.A. 2B:24-1 to 17.
The motion won so it’s a good thing that it was filed.
is based on my “interjecting” myself which is a non-legal, fact rich term precluding her motion. I
take “interjected” to mean “appeared” and to the extent I appeared, I had a right to
accommodations for my chemotherapy which were never granted. Further, she does not address
that I already had an accommodation from Judge Armstrong’s predecessor which was ignored.
With regard to communicating with the Court in June, I was told I was back in the case and to call
Judge Garofolo immediately while I was very ill from the chemotherapy – which explained my
“ranking and raving” behavior. This contact was caused by a law clerk mentioning (or confirming)
me to Client X as a possible replacement counsel, which caused Client X to call saying a fax was
required (i.e. I had to appear), which led to my having a PTSD attack. I contacted Judge
Armstrong solely in her capacity as the Vicinage ADA Coordinator to stop the assignment – which
I was assured was inaccurate.
A week later, Judge Garofolo demanded an explanation for my behavior while I was sick. I
thought I had a right to be accommodated several ways. First, while I’d still like to apologize, I
wanted to be sure nothing further would happen. Second, I wanted to be sure my name did not
get mentioned again because I get severe PTSD (even if not on chemo) when told I have to
represent Client X. Third, I wanted a possible a free lawyer to help with my need for
accommodations at my new job because the Client X appearance had held up treatment and was
causing severe problems at the job. (I realize the last accommodation was unlikely.)
Also, I do not question Madden, though I believe it needs to be changed, because, if it had been
followed in any way, this suit would not have happened and it gives attorneys who are not
assigned under its terms an equal protection cause of action – which I am bringing.
On the law clerk matter, I stated I was still disabled in the letter to the AOC. E81-2. I stated, I
may be “cured”3 from the Hepatitis C in the future. At that point, I still had Crohn’s Disease and
the Hepatitis C. It took 120 days to take action on the email, despite two reminders. When the
“rejection” came, it just restated the rule again and did not engage in a mandatory interaction with
disability and BFOQ analysis. Even with the Hepatitis in remission, I still have Crohn’s Disease
and, even if not, under the law I am still “disabled” as a “person with a record of disability.” I
stated I was a person with disability (I was still on chemo) and, by way of explanation and as a
further reason for accommodation, that I was simply unable to do the job in the past (and I still
was uncertain but hopeful).
Finally, on the law clerk matter, she conveniently forgets to mention that I have alleged that the
“no practice” rule is not a BFOQ and that the rule also, clearly, discriminates against, inter alia,
disabled and older people. The fact that there has been no disability or BFOQ analysis precludes
Summary Judgement, let alone a dismissal on the pleadings.
ADA’s Abrogation of the 11th Amendment: Lane & Georgia
In May 2004, the Supreme Court of the United States ruled that Congress was within its powers
to vitiate the sovereign immunity of the states with regard to Title II of the ADA.4 Tennessee v.
Lane, 541 U.S. 509 (2004). Mr. Lane was a paraplegic who was a defendant in an action the
courtroom for which was in an older courthouse at the top of two flights of stairs. There was no
elevator in the building due to its age. The first time Mr. Lane attended Court, he disgorged
himself from his wheelchair and dragged himself up the stairs to the courtroom. The second time,
he refused to crawl up the stairs and he also refused to be carried by the court staff. As a result,
he did not appear and was arrested on a failure to appear warrant. Mr. Lane had a co-plaintiff
who was a paraplegic court reporter who had similar access issues regarding her chosen
profession. Id. at 513-14. Obviously, the State of Tennessee trotted out the 11th Amendment
I put “cured” in quotes because the technical term is remission.
There is no Title I claim against the State. The EEOC did want me to summarize the entire complaint,
however, in their box so it includes the Judge Armstrong issues.
3
4
argument that New Jersey does here. They did not hold any weight: the District Court held
Tennessee to answer, the Sixth Circuit affirmed (Tennessee had a right to an immediate
interlocutory appeal on its immunity claims) and so did the Supreme Court. These courts held
that Congress could do what it had stated it was doing: it could hold the States to answer for
disability discrimination under the 5th Paragraph of the Fourteenth Amendment. See holding of
court at 531-34.
To be sure, Lane was a 5-4 vote but the case is still the Law of the Land. Furthermore, if Justices
Scalia, Thomas and Alito are true to their previous writings, they would not vote to over-rule the
holding of Lane because the rule does not involve a fundamental issue and it has been
internalized into the system -- most importantly, to their reasoning, that Congress has not had the
opportunity properly to invoke its 14th Amendment Powers as may have happened if the case
had gone the other way. In respect of this concept, a unanimous Court held that Tony Goodman
had a direct cause of action against the State in U.S. v. Georgia, 546 U.S. 151 (2006). (The U.S.
had intervened to uphold Congress' 14th Amendment Powers with regard to the ADA.)
Goodman was a paraplegic prisoner in the Georgia penal system. He was also confined to a
wheelchair. He was subjected to degrading treatment with regard to his disability by his jailers -sufficiently degrading that no one questioned his right to invoke the 8th Amendment if his
allegations were accurate. His claims did not stop there: he made the usual Fundamental Rights
claims under the 14th Amendment. Id. at 154-57. The unanimous Court held that no one
questioned Congress' power to vitiate sovereign immunity where the same conduct violated both
Fundamental Rights concepts and the ADA. Id. at 158-59. As relates to this case, does this
mean that the plaintiff must win both on his Section 1983 claims as well as his ADA claims -obviously not (if for no other reason that a Section 1983 case cannot be maintained against the
State because it is not a "person"). I think it is obvious that the plaintiff can pick and choose. I
wish I could tell the Court that I will just proceed with the (easier and clearer) ADA claim.
However, I read Tony to hold that to have an absolutely unshakable (as in 9-0 vote) ADA claim,
you have to at least have a colorable claim of Fundamental Rights under the 14th Amendment in
addition to the disability discrimination claim.
Do you need to have a good Section 1983 claim to have a good ADA claim? Absolutely not -Lane answered that question. (Also it is clear that Section 1983 is a self-limiting enactment in
that it only allows suit against "persons" who act under color of state authority while the 14th
Amendment limits the actions of states DIRECTLY. In other words, Section 1983 includes 11th
Amendment concepts under its own terms.) That having been said it is clear that Congress'
power to vitiate the 11th Amendment under its power to enforce the 14th (under its 5th
Paragraph) is stronger when it is trying to remedy "irrational discrimination" against the disabled
(which violates the Equal Protection Clause's case law that the State must have a rational basis
for differentiating among its citizens). Congress has this power under Title II of the ADA but it
does not under Title I. In Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct. 955
(2001), the Court, on a 5-4 vote, held that there was not a sufficient history of irrational
employment discrimination by the States for the Congress to invoke its powers to enforce the
14th Amendment against them. This case clearly dooms any Federal claim against the State,
without its consent. (I note that I will argue that the State has consented, via the LAD’s allowing
suit against “the State,” to Employment suits under the ADA and, certainly, the educational part of
the Law Clerk Program case is based solely on Title II.)
Finally, Lane & Georgia are alive and well in New Jersey and they extend beyond court and
prison settings to public education:5
5
The AOC has continually evoked the image that the law clerk program was an education program. Based
on this, it is going to take much more that the ipse dixit statement of counsel to back the AOC out of this
characterization. It’s a job and an educational opportunity: like work-study at college or working for a law
professor in law school.
Reported cases from the courts of appeals since the Supreme Court's decision in
Georgia have likewise found that Congressional abrogation of sovereign
immunity with respect to public education was valid. As the Fourth Circuit
observed in Constantine, Congress limited the scope of Title II in several
respects. First, the statute only protects "qualified individuals with a disability."
Second, Title II permits States to limit participation in their programs and
activities for all other lawful reasons. Third, Title II only requires States to make
"reasonable modifications" to accommodate the disabled, thus protecting the
States from having to compromise essential eligibility criteria for public programs.
Finally, States are able to make available other accommodations if structural
modifications of physical structures are too burdensome. 411 F.3d at 488-89.
For those reasons, and against the backdrop of discrimination against disabled
students, the Constantine court concluded that Title II was valid legislation as
applied to public education. Id. at 490 at 490. See also Toledo, 454 F.3d at 40
("Title II's prophylactic measures are justified by the persistent pattern of
exclusion and irrational treatment of disabled students in public education,
coupled with the gravity of the harm worked by such discrimination."); Assoc. for
Disabled Americans, Inc., 405 F.3d at 959 ("Discrimination against disabled
students in education affects disabled persons' future ability to exercise and
participate in the most basic rights and responsibilities of citizenship, such as
voting and participation in public programs and services. The relief available
under Title II of the ADA is congruent and proportional to the injury and the
means adopted to remedy the injury.").
Accordingly, we join several sister circuits in holding that Congress acted within
its Constitutional authority in abrogating sovereign immunity under Title II of the
ADA..
Bowers v. NCAA, 475 F.3d 524, 555-556 (3d Cir. 2007)
Finally, on the related matter of State immunity and the LAD and other Civil Right Laws, you do
not need to comply with the Torts Claims Act to have a valid statutory cause of action against the
State. Fuchilla v. Layman, 109 N.J. 319 (1988).
The Municipal Public Defenders Act
As I state in the introductory footnote there is an entire statute of this State – aimed specifically at
the conduct of appointing counsel in Municipal Courts for the indigent 6 – that Margate has been
totally ignoring. I believe this make out a prima facie Section 1983 case when the Statute, the
Municipal Public Defenders Act, N.J.S.A.. 2B:24-1 to 17 (1998) (MPDA), was intended to secure
the constitutional rights of the indigent – I claim that the Statute only follows the contours of the
Constitution. I have two slightly different unconstitutional policies and practices of which I accuse
Margate: bring the costs of defending the indigent below its Constitutional minimum (the money
saving or public fisc conspiracy) and just simply trying to deny Client X a Defense Team (for
lawyer and psychiatrist or at least one of the two). Margate failure to follow the MPDA provides
great evidence of both. See Margate Unconstitutional Policy & Practice listing in Appendix C
(mostly listing items from the current Complaint) as well as the 3rd Amended Complaint.
If the municipal judges (as administrator) still have some appointment power – it is clear that it is
co-incident with the appointment power of the MPDA. The Court Rules may leave some
appointment power in the hands of the Municipal Judges – a Rule of which I was very much
6
It also includes protections for the possibly indigent (i.e. defendants, possibly including Client X, whose
indecency status was undetermined. (I’d like to note that her indecency status was undetermined, as Judge
Savio colorfully put in September 2003, because he “screwed up.”)
aware during the case7 and which, if Ms. Sked is correct, was promulgated on the dual error that
the Assignment Judges were still maintaining lists and that Madden still controlled the assignment
of counsel where there was no public defender. 8
The MPDA was supposed to end assignments in our Municipal Courts (but see footnote 6) by
mandating paid Public Defenders (PD) in every municipality. N.J.S.A. 2B:24-1d.9 & N.J.S.A.
2B:24-3 (at least one MPD). It was not followed. There is a very carefully thought out algorithm
for replacing absent or conflicted “one person” MPD offices. N.J.S.A. 2B:24-4 (vacancies filled
“as soon as practicable”) & N.J.S.A. 2B:24-7b.10 It was not followed. There is a procedure for
resolving eligibility and error issues which involves “provisionally” referring the defendant to the
MPD pending determination of the status of the defendant. N.J.S.A. 2B:24-9. It was not
followed. It is the job of the “municipal court,” not me, to determine the eligibility of the defendant
(N.J.S.A. 2B:24-9) using various means to summon the information (N.J.S.A. 2B:24-10). It was
not followed.11 There is a “trust fund” that should have paid for the psychiatric fees (and any
replacement MPD legal fees) without burdening the taxpayers of Margate. N.J.S.A. 2B:24-17. It
was not followed.12
What is interesting here is that there was plenty of opportunity to follow the law – and the
Constitution (I claim that the law just follows the contours of the Constitution – no more, no
less.)13 I believe there is also a point to be taken from the statute’s use of the terms “court”
I saw this Rule which did not then include any reference to the MPDA (including Judge Pressler’s
comments) and figured I had been involuntarily assigned and that, if I did not watch myself on how I got
out of the case, I end up within the ambit of the the case mentioned in the Complaint: In Re Frankel, 119
N.J.Super. 579 (1972) & In Re Spann, 183 N.J.Super. 62 (1982). For the rest of this brief I will simply
refer to them ad the “Contempt Cases.”
8
There may still be some need to maintain a list – certainly Judge Carchman still is when he writes to us
every year to determine our “list” eligibility – to assign attorneys to be appointed, as it were, due to the
possible low pay. I do not know. I’d like to find this out as well as other key questions by conducting
discovery (or having a master appointed so I do not have to bother busy judges – who’d probably retaliate
against me).
9
Legislature finds “it essential to require the appointment of municipal public defenders by each municipal
government in the State.” Id.
10
“If there is a vacancy in the office of municipal public defender, if the municipal public defender is
temporarily unavailable or if a finding of conflict of interest precludes the municipal public defender from
representing an indigent defendant, the municipal prosecutor may prosecute the offense if the municipal
court appoints a qualified attorney to represent the defendant. …” Id.
11
My constant complaining about my medical issues got Administrator Savio (in chambers) to tell me to
fill out an application for the client to be relieved. See July 16, 2004 Savio Letter (Savio 05). It was the
job of the Margate Municipal Court to provide accommodations to the disabled client and summon the
information necessary. As always, I was willing to help out – since my life was on the line – but this is
their job, when I failed (the Superior Court said they did not have copies of the Indecency Form), the court
staff should have done it. When they finally did do it, months later, I was called (though relived according
to Judge Garofolo) and extorted for $100 or they were not going to process the application (to be fair they
could have extorted me for $100 for each remanding charge ($500), but they did not). Clearly both the
Constitution and N.J.S.A. 2B:24-17a. required a waiver.
12
If there is trust fund maintained, that would show that the failure to follow the MPDA in Client X’s case
was INTENTIONAL: The city knew about the MPDA and due to its policy and practice of lowering the
costs of Municipal Court below their Constitutional Minimum and their policy and practice to deny Client
X a valid defense team. For the purposes of the 3 rd Amended Complaint, it is alternatively alleged that the
money which should have gone into the trust fund was converted by the City on a regular basis and is
evidence of the policy and practice of keeping costs in MC below the minimum or, in the alternative, if
they did keep the trust fund, then the City knew of the MPDA and was going out of its way not to use it to
deny Client X a defense team.
13
I, for example, did not know of the Statute until late December 2006 yet, using my basic Constitutional
reconnoiter, I was able to predict most of its terms. I now put the statutory “glove” around the
7
(without “municipal” before it) and “appoint.” On the latter term, I believe that since the drafters
were abolishing an assignment system in municipal courts, they were very careful to use the term
“appoint” rather than “assign.”14 “Appoint” also means that you will not be within the ambit of the
Contempt Cases if you refuse to appear (or resign from – subject to the ethical rules) a case – I
think that was the main reason for the term shift.
I believe that every time that the Legislature used the word “municipal court” when describing
actions taken they were describing administrative functions that would usually be done by the
staff but may occasionally be done by the judge – in an administrative capacity. When the
Legislature used the term “court” alone they usually meant “the judge” in his judicial capacity
(usually regarding determining eligibility). This buttresses the argument I have made that
determination of eligibility is a Judicial Act – BUT determining who shall serve as MPD is an
administrative one.
The status of persons who are working as MPDs is that of an employee of the city. In Stomel v.
City of Camden, 383 N.J.Super. 615 (2006), Judge Winkelstein wrote for an unanimous panel
that an attorney who filed a complaint after being fired as MPD for not making a contribution to
the Mayor’s re-election campaign was an employee of the city, not an independent contractor.
The main reasons for this analysis are that the professional cannot, based on the ethical rules, be
controlled by the city, the position must be filled and, since the position was “created by social
legislation,” a liberal standard should be used. Id. at 636. This is relevant because it gives me a
double handicap discrimination claim and provides a more force to the deprivation of property
claim, equal protection and other Constitutional claims. I say “double” because both Title I and
Title II of the ADA would be active and, similarly, I would have two “modes of attack” under the
LAD.
Judicial Immunity – Not When Acting in an Administrative Capacity
Obviously a very important question in this case is judicial immunity. Three parties happen to be
Judges but here, as stated in Paragraph 20 of the complaint, they lose their “traditional immunity”
when they act as administrators. This is particularly true where they act in the employment, or
appointment, arena – they have the same risks as everybody else they have to follow the civil
rights laws. As for Judge Armstrong, she was the ADA Coordinator for Vicinage 1 – that’s why I
contacted her. At first, it was just for the client, but the April 2 letter was nearly 100% complaining
about my15 being made to serve as counsel when I need chemo as early as, perhaps, that same
month.16
Constitutional “hand” I plead in the Complaint and they fit nearly perfectly. The only error I made was the
allegation that there should be a conflict PD. The statute only provides an ad hoc procedure for appointing
replacements when the City does not act to fill a vacancy – which should be done “immediately.” So the
statute makes it a wise choice to have conflict PD available to meet the Statute’s tight time requirements
but does not mandate it. If the City had behaved reasonably, instead of trying to lower the cost below
Constitutional standards or deny Client X a defense team, they would have complied with the statute
merely by working with an eye to reasonable Constitutional standards.
14
The only time the word “assign” appears in the statute is in a quote from Rodriguez v. Rosenblatt, 58 N.J.
281 (1971).
15
I note that the State does not argue that Judge Carchman cannot be sued despite being a judge. I am
clearly just suing him (both in his official capacity for declaratory and injunctive relief and personally for
any acts be may have committed) because he is AOC Chief – I’ve never met and have not corresponded
with His Honor.
16
It was Her Honor’s decision turning me down for any relief, by the way, not the one refusing to replace
Judge Savio, that I sought to review by calling Earnest Comber – who is listed (near the bottom of the
internet page – after the last judge listing) as the “Statewide Judiciary ADA Coordinator (Title II
Programmatic Access).” Both Mr. Comber and the website said I have to sue – there are no appeals: well,
ecce id.
In any case, the starting point in the judicial immunity test is the Stump v. Sparkman, 435 U.S.
349, 362 (U.S. 1978) test for judicial immunity: "The relevant cases demonstrate that the factors
determining whether an act by a judge is a "judicial" one relate to the nature of the act itself, i.e.,
whether it is a function normally performed by a judge, and to the expectations of the parties, i.e.,
whether they dealt with the judge in his judicial capacity." Id.
Under the facts, Judge Armstrong was performing her task as "ADA Coordinator." Anybody could
fill this position -- in fact Her Honor "shares" the position with 2 non-judges. Further, I did not
write to her as a judge: the first thing I wrote to her was that I was engaging her because she was
"in charge" of the Municipal Courts and was "administering the ADA/LAD Handicap
Accommodation Programs." I then reasserted I was writing to her "in both of these
administrative capacities.” March 5th Letter at E21 (emphasis added). Believe me, I was not
planning this suit: I just wanted Her Honor to be clear that it was not a matter before her because
it did bear the caption of the case below. This would clearly indicate that Judge Armstrong
cannot shield herself from this suit on the Stump test. I am still unclear how I was supposed to
get the "accommodations that would, of course, be granted." Put that in the most favorable light
to Her Honor, that was also an administrative, not judicial, error.
Her Honor was clearly "blowing me off" so I assumed the accommodations would have to come
from the Municipal Court -- they never did. So whether Judge Savio was the designee of the
County ADA Coordinator or was just the ex officio ADA coordinator for the Margate Court, this
was an administrative duty that he, simply, did not perform. Please refer in the 3rd Amended
Complaint to numerous letters I wrote mentioning my health concerns and need for
accommodation. This says nothing of my mentioning in chambers that "I need to get my
chemotherapy started." He did tell me I could be relieved in July or so of 2004 if I filled out the
indecency forms for the client -- this was his staff's job not mine. Still in an effort to save my life, I
did it. (See subpoena to Superior Court to obtain its indecency form which Client X filled out.)
Eventually, I learned the big stumbling block on the indecency forms was the $100 processing fee
-- so I paid it. It should have been waived but that was just another aspect of the conspiracy to
keep Municipal Court cost below their Constitutional minimum and to deny Client X the services
of a healthy attorney (or maybe any attorney).
I freely admit things are more difficult with Judge Savio and his appointment or assignment power
(the latter I claim never existed or, if it did in the past, it was abrogated by the MPDA or they may
co-exist per footnote 6). Clearly, deciding whether Client X need a PD was a judicial decision but
deciding WHO to appoint to the position was administrative in nature. When he filled it with Mr.
Robertson, the administrative work had been done by city council pursuant to MPDA. When the
vacancy arose, someone should have been appointed by the city. They knew of the vacancy and
did nothing. The appointment power then passed to the court (yes, small "c"). Anybody could
(and should) have called around to attorneys to take the job. I doubt Judge Savio would do the
work himself. If I had been called, I would have said I needed chemotherapy just like I did in
court -- but I would have been more free to say, "no" outright because I would not have had the
Contempt Cases to worry about. In any case, the MPDA makes it clear somebody should have
been obtained (thought civil, as in polite and professional, means -- not in roughshod manner that
my services were procured) and then Administrator Savio could have formally appointed them.
All this should have been done long before March 8, 2004 as demanded by the MPDA. Instead
this administrative task was put on Client X herself in late January -- a very clear invitation to me
to enter the case. When I declined, Administrator Savio needed more forceful means -- forcing
me to take the assignment (or appointment) or else I would have been in dereliction of my ethical
duties.
The expectations of the parties should have been they would be contacted in a dignified manner
to ask whether they wanted the case by some administrator trying to fill the position. Similarly, if
it had been filled by assignment, the parties would have expected to hear from an administrator
about the assignment BEFORE the court date. Judges should not particularly have been
involved. If they were, they were just performing administrative duties.
The fact that Administrator Savio shared this appointment power with the city is strongly indicative
of its not being a judicial role -- it is administrative. Somebody, anybody (the city should act first
but then the court staff should do it for the municipal court) has to find lawyer to take the case -- a
case that was still with the Margate MPD OFFICE though not with Mr. Robertson. This analysis
does not change if it was an assignment under the pro bono system except that some
administrator would have to call the Assignment Judge to get a name off the list.
I believe that Forrester v. White, 484 U.S. 219 (U.S. 1988) is instructive:
Administrative decisions, even though they may be essential to the very
functioning of the courts, have not similarly been regarded as judicial acts. In Ex
parte Virginia, 100 U.S. 339 (1880), for example, this Court declined to extend
immunity to a county judge who had been charged in a criminal indictment with
discriminating on the basis of race in selecting trial jurors for the county's courts.
... Although this case involved a criminal charge against a judge, the reach of the
Court's analysis was not in any obvious way confined by that circumstance. …
In the case before us, we think it clear that Judge White was acting in an
administrative capacity when he demoted and discharged Forrester. Those acts - like many others involved in supervising court employees and overseeing the
efficient operation of a court -- may have been quite important in providing the
necessary conditions of a sound adjudicative system. The decisions at issue,
however, were not themselves judicial or adjudicative.
Id. at 228-29.
The result is not different under the K.D. v. Bozarth case cited by the defense: "Judicial immunity
has two prerequisites: 1) the act complained of must be a 'judicial act;' and 2) the judge must
have subject matter jurisdiction at the time he or she acts. Delbridge, supra, 238 N.J. Super. at
335, 569 A.2d 872. A 'judicial act' is one normally performed by a judge in his judicial capacity.
Ibid. In this case it is undisputed that Judge Bozarth's re-sentencing of K.D. constituted a 'judicial
act.'" K.D. v. Bozarth, 313 N.J. Super. 561, 568 (App. Div. 1998). None of the acts here are
judicial acts -- they are all administrative in nature. The appointment power is shared with and (I
would claim) only available when the municipality fails to provide a replacement. If I was
assigned and that is a judicial act (I claim it is still administrative -- for example, it was done for
years in Atlantic County by Annette LaVette, who is not a judge), it was still not with in the
jurisdiction of municipal judge to assign a case (particularly after the MPDA was passed) -- he
had to go through the Assignment Judge (if that was "practicable" -- and here there was plenty of
time to do so).
Also, there is no “jurisdiction” here: if so, Judge Armstrong shares her “jurisdiction” as ADA
Coordinator with two non-judges (clearly not allowed) and Judge Savio shares his appointment
“jurisdiction” with the city (also clearly not allowed).
Furthermore, the Bozarth case is also distinguishable in that the plaintiff was the defendant in a
criminal action and she did avail herself of her appellate rights and her plea, conviction and
sentences were all vacated on trial de novo. (K.D. was a juvenile and should have been tried in
the Family Part of Superior Court and, in all events, should not have been representing herself.) I
had no such appeal rights. My remedy was to file a separate lawsuit (this one) after the
appointment or assignment was over -- that's what the Contempt Cases say, that's what Mr.
Comber told me to do and that is what I have done. The lack of a method of direct appeal (other
than ADMINISTRATIVELY complaining to the Assignment Judge) is highly indicative of the
administrative, not judicial, nature of appointing or assigning counsel.
The city is derivatively liable for acts as an administrator (I would think especially so where they
had the option to act to appoint a replacement first):17
We turn to the claim against the City which prevailed on summary judgment in
the Law Division on absolute immunity grounds. We reverse because under
certain circumstances the City could be liable under agency principles for the
alleged discriminatory conduct of the Commissioner in charge of public safety. Of
course, the City enjoys derivative immunity for Lynch's legislative activity,
discussed above. This derivative immunity does not extend to Lynch's
administrative or executive activities. The City may be liable as a principal or
employer under the LAD. The definition section clearly includes as "persons," . . .
"the State, any political or civil subdivision thereof, and all public officers,
agencies, boards or bodies." ...
We reverse and remand for trial on liability as to the City under extant agency
principles generally recognized under the LAD. Again, with the sparse factual
record before us, we cannot be more specific on the controlling agency
principles, as applied to this particular racial discrimination claim.
Brown v. City of Bordentown, 348 N.J. Super. 143, 151 (App. Div. 2002)
The essence of these cases is that when judges are appointing, hiring or firing employees, they
have no immunity. This was an employee position with the city -- it needed to be filled, pursuant
to the 13th Amendment and numerous statutes, with a WILLING employee.18 Forrester and its
progeny control.
Comparison of Facts of Lane to This Case
When the case involves BOTH irrational discrimination (a violation of the Equal Protection
Clause) and a Fundamental Rights violation (which enforces the 14th Amendment's Due Process
Clause -- whether directly by its own terms or via "incorporation" of the most of the Bill of Rights),
Congress’ power is at its zenith, and no member of the Supreme Court questions its power to act
under those joint circumstances. This case presents such joint circumstances but, even if I am
wrong on this point, the 11th Amendment is still vitiated in this case under the holding in Lane.
Lane is also better factually on point with my facts than the Georgia case.19 First, the Court made
absolutely no distinction between Lane himself, who was a litigant, and his co-plaintiff, who was a
self-employed officer of the Court, as I am. For this reason, whenever I mention "Lane" as a
person I am invoking both his fact pattern and his co-plaintiff's, which involves lack of
accommodation for her access issues and a claim that court employees had gone out of their way
to block various alternate access routes (service elevators) in some courthouses (many
courthouses, such as the one involving Lane himself, were simply inaccessible to her).
I would equate Lane being required to get up the stairs without any accommodation to my being
offered no accommodations to perform as attorney in an insanity defense case. I, like Lane, had
17
Under the ADA and the LAD, the City is derivatively liable but even under Section 1983, where there is
no derivative liability, the administrator – whoever that was – was acting under unconstitutional policies
and procedures and not following the MPDA. As a result, there would be Section 1983 liability also. See
Point Heading, infra, regard Section 1983.
18
This issue has not been properly briefed in this motion so I will stop at this point.
19
Although at times, it seemed as though I had been “sentenced” to represent Client X.
a difficult task to perform. I, like Lane, was offered no help and set about to do the task as best I
could. I, like Lane, had to abandon my assistive technology (in my case, Hepatitis C treatment; in
his, the wheelchair) because it was incompatible with the task at hand. I, like Lane, completed
the task at the cost of my dignity and much more. I, like Lane, was faced with contempt
charges20 for refusing to complete the task on command. I, like Lane, was not accommodated
despite the fact that simple accommodations were known to be available (in my case, the case
could have been accelerated, via special sessions, to comply with my treatment schedule –
instead, as with Lane’s co-plaintiff, Margate went out of its way to drag the case out; in Lane's
case the Court could have held session on the first floor -- in the hallway, if necessary).21
When a second call came suggesting an assignment to the client, I, like Lane, steeled my reserve
to refuse to be demeaned. I, like Lane, was threatened with inappropriate punishments given that
the issue was really the disability, not any inherent unwillingness to perform, to appear or to retain
a professional demeanor.
This case is controlled by Lane -- and I note it is so controlled whether my appearance for the
defense is seen as an assignment, a de facto appointment22 or "voluntary." In all three scenarios,
I had a "job" to do, I could do it and I DID DO IT. Some accommodations should have been
given, though, so the "job" did not have to affect my treatment plan just as Lane should not have
had to abandon his wheelchair to perform the task required of him. Instead of being
accommodated, I was taunted with the statement, "accommodations would, of course, be made"
at some uncertain time in the future23 and Margate refused for months (yes, months and months)
to pay the psychiatric appearance fee ($1500) to finish the trial (the cost for which I was
threatened to bear if I procured the appearance at a time when the municipal court could not get
to the testimony). When I did ask for specific accommodations24 with regard not to being
assigned (or bothered) again,25 I was very clearly and definitively threatened to keep my place.
This happened despite my making it absolutely clear to the Judge's Law Clerk that I was merely
seeking assistance for my situation both orally and by fax.26
Best case scenario for Her Honor, she and I both lost our tempers over (slightly different)
misunderstandings: I apologized, she did not; I had an excuse for my behavior (a known and
20
I thought I was being forced into a Madden assignment and I could be held in contempt for refusing to
appear. Please refer to the Contempt Cases, supra.
21
I note that both the State and the County were liable for that Judge’s decision not to accommodate Mr.
Lane – and he had to be an employ of one of the other. (I suspect the County.) He was not even sued, and
he could only have been an employee of one or the other and yet both were liable.
22
As before, Margate totally ignored the Municipal Public Defender Act (MPDA) which was meant to end
assignments of attorneys in this State’s Municipal Courts.
23
I note that Lane too is now accommodated at the Tennessee Courthouse, which now has an elevator -too late to have helped when he needed it.
24
In most of my requests, I was not so bold as to suggest a remedy – Judges don’t like it when you tell
them what to do (one of the many reasons they should not be handling accommodation requests). Look
what happened when I made the specific suggestion of asking the staff not to mention my name: Boom!
25
I was asking for three things: 1) a request for help with the misunderstanding with Judge Garofolo caused
by my treatment and by (justifiable) PTSD about being reassigned to Client X’s case; 2) a request that my
name not be mentioned as counsel while I was being treated; and 3) a request that I receive some assistance
-- possibly a free lawyer -- to try to keep my job at the IRS which was in jeopardy due to my service having
delayed my treatment for over a year.
26
Bottom line, read Judge Armstrong's letter at E61: Is that a letter that one sends to someone on
chemotherapy? Even if the person requesting accommodations did commit the egregious offenses of
taking up the staff's time with requests for accommodations and of "interjecting" themselves in a case – a
case which, 14 months earlier, the Judge had said the person was "in the best position" to handle. Should it
not have been obvious that some accommodations (or, at least, fact finding) was called for? The answer is,
"no" -- at least not when they were thinking of suing for your malfeasance in (administrative) office and
had already talked to executive officials regarding the situation.
common side-effect of a life-saving drugs I was taking), what's hers? There was none -- only a
motivation to keep me quiet and in my place so that my complaints would die with me (which was
then very likely to happen in the near term). Also, she did all of this while I was merely engaging
her services as the person listed on the AOC's internet site as the "Americans with Disabilities
Act Coordinator" for Vicinage I or Atlantic/Cape May County -- a position and listing she holds to
this day. See www.judiciary.state.nj.us/services/aocada.htm and go about half way down the
page. If she does not have the time, training or temperament to hold this administrative position - and the voluminous evidence is that she does not have any of these qualifications, she should
delegate it to someone who does.27
There are three people listed under the Americans with Disabilities Act Coordinator heading. I
believe I understand the division of labor between them quite well -- certainly until Judge
Armstrong "bit my head off" for contacting her, Her Honor never complained that she was the
wrong person to work on the matter. (One time she did refer a question about the "Not Guilty"
issue in the trial to the Municipal Court Coordinator. She did not complain about my contacting
her first and Mr. Berchtold answered my question -- albeit in an annoyed tone.) Mr. Shannon
handles employment matters -- clearly not applicable. Mr. Dickerson handles "Public
Accommodations" such as making sure people like Mr. Lane and get into the Courthouse and get
to their appointments. This leaves Her Honor to handle the more sophisticated "programmatic"
and administrative issues.
As relevant here and for example, she would be the one to contact if you felt you had unfairly had
your name mentioned as replacement counsel while you were having predictable and dire
reactions to chemotherapy which had led to a misunderstanding and you had been previously
promised that "accommodations would, of course, be granted." She would be the one that you
would contact if you were concerned that another disabled person's lack of representation might
lead to your being assigned as counsel even though you were not in a position, due to treatment,
to be counsel but you thought some qualified person should appear. She would be the person
with whom you would discuss the total lack of previous accommodation having caused a lot of
damages but that future catastrophic damages could possibly be avoided if counsel could be
assigned, in recognition of the hundreds of service for other disabled people in the County, to
help with your disability accommodation issue at your new job.
No matter what the merits of these requests were, no matter what the answer was,28 I had a right
to a prompt, on point and -- yes -- respectful answer. Also, I had been told that I should send a
letter with specifics (beyond the fax) – it would have been appropriate to wait for that letter before
jumping to (ridiculous and totally unsupported) conclusions.29
27
To the extent that Her Honor may have gotten mixed up between her Administrative and Judicial Duties
(which I do not “buy”), this is just another example of why judges should not be fielding accommodation
requests.
28
I have no delusion that it would have been anything other than, "No, no and no" -- although I was
hopeful that Her Honor has enough control over the judicial staff that she could at least get them to stop
mentioning (or confirming) my name as replacement counsel.
29
There is the mystery of Her Honor's law clerk Warren's role in all this. I thought I was "OK" talking to
Warren about these issues -- I figured he was her "designee" to deal with me. I saw absolutely nothing
improper about it -- it was not a case (as with a caption), there was no adversary, there were merely the
three administrative issues. I saw nothing wrong with talking to the Judge's assistant about things for
which the Judge herself was "advertising" herself as "point person" on the AOC's internet site. I still don't.
Furthermore, here is the story with Warren: Warren is an adult, Warren is a lawyer and Warren was a fully
trained law clerk near the end of his term. If Warren thought my talking to him was improper, he did
nothing to indicate it to me -- he was a willing participant in at least two lengthy (about a half-hour and
hour, respectively) talks. The first was on June 10, 2005 when he assured me that I was not going to be
assigned to Client X’s case.
The second was before the fax of June 17, 2005. The content of that conversation would have followed
the never completed June 17, 2005 Letter (Ex. 73-85) -- the one I was afraid to send in after I was retaliated
Obviously, this is a lead in to the discussion of whether Judge Armstrong was an administrator or
a judge in the matter of my accommodation. I think it is clear she was an administrator. The
Courts themselves denominate her as "Coordinator" -- clearly an administrative position.
Furthermore, she was not hearing a captioned case within an adversarial system. As became all
too apparent, she was in many ways my adversary -- I had to convince her to accommodate me.
If I did not like what she wanted to do (i.e. nothing), I could sue -- the AOC's own website says
that. You get the administrative decision and, if you don't like it, then you can ask for
reconsideration but, failing favorable reconsideration, you have to sue. There was no method of
appeal to, say, the Appellate Division. Her findings were in letters, not opinions. These are all
indicative of administrative procedure -- not judicial procedure.
Now on this sole point, I have considerable sympathy for the Judge. Was she a Judge? Was
she an administrator? What were her duties? What set of ethical rules applied to me (I think it is
clear the adversarial rules were not in effect)? Did the Judicial Canons apply to her actions? It is
all very confusing now and it was then. Adding to the confusion was the duality that both the
client and counsel had considerable disabilities. MAYBE she thought I was threatening suit on
behalf of Client X when I was threatening suit on my own behalf to prevent another illegal
assignment.30 Well, those are the hazards you run when you assign someone in need of
chemotherapy to represent a mental patient on an insanity defense.
But let's suppose that I had been threatening suit on behalf of Client X. According to her, I would
be "interjecting" myself into Client X's case. Absolutely correct: it's called zealous advocacy.
That's what we do when we practice law: we interject our superior training, skills and, hopefully,
mental abilities to obtain the best result we can for a client. She is probably displeased that I
represented Client X with a 100% ultimate success rate in the past and wants to dissuade me
from doing so in the future.
Are there any technical bars to the representation? No: none that I see. She has no attorney so
the bar of being represented does not exist. Her insanity might be a bar to forming a contract but
I see no bar to representing her.31 The biggest bar -- and the reason I did not consider the
request -- was I was in too bad shape to do Court-related work. That's why I was at the IRS! I
could do desk work that I was highly trained to do but I could not be "quick on my feet" for court
with a supra-100 degree fever and nausea.
But let's just continue with the hypothetical that I were representing Client X. That would mean
you have an Assignment Judge threatening me because she thought I was representing an
otherwise unrepresented mentally disabled woman who does not understand something the
Court has asked of her. (I still have only a vague idea what was being requested.) I think this is
a worse ethical situation for her than just unjustifiably blowing up on a disabled person. It's
double disability discrimination: Her Honor demeans me by equating my representation "to
against -- almost to the word. There is good reason for this: Warren told me to get the Judge Garofolo
letter into him then and to write up the rest of what I had said to him and send it in to the Judge at the end
of that conversation -- so I was doing what I was told when the retaliatory letter showed up in the mail. I
was shocked and still am.
No matter how you slice it or dice it, my fax of June 17, 2005 at least clearly asked for one
accommodation -- having staff not mention my name while I was in chemotherapy. Furthermore, the fax
was supplemented by a lengthy call which made it clear I was solely interested in help getting through the
difficult treatment -- if that happened to help Client X get another attorney, that was good too. As the fax
says twice, "I cannot be put in the position" of having my name mentioned as replacement counsel.
30
This conclusion is truly unreasonable given that every other statement I made was that I did not represent
Client X and just wanted to be left alone to finish my chemotherapy.
31
A lawyer least has to give fair consideration to her request or risk violating the RPC's command that
lawyers offer their services without regard to disability. See, e.g., RPC 1.14, Client under a Disability, and
RPC 8.4(g), Discrimination as Professional Misconduct.
interjecting myself" and she demeans the client by implying that she does not have the mental
ability to try to get an attorney to help her out with something she does not understand. This says
nothing of the fact that she probably lost her temper because I called the Governor's Office -- last
time I checked I had a Constitutional Right to complain to the government about something I think
is unfair especially when I am merely trying to save my life and avoid an assignment that could kill
me by causing me to have to terminate my treatment.
Back to the real facts. In reality, the Judge was building a "straw man" that I am interjecting
myself into case where I have repeatedly stated I wanted out or that I was out. It is Her Honor
herself who "interjected" me into the case, stating that I was "in the best position to represent
[Client X]" despite having one foot in the grave from a fatal disease. E37-8. Now I get a call out
of the blue that I need to call a judge because that Judge's law clerk has mentioned (or
confirmed) me as replacement counsel. As I said in the June 17th fax, what should I do: Not call?
Ignore what I have to assume to be a valid order from a judge? E55 (Fax to Judge Armstrong of
June 17, 2005). Now it is a shame that I "freaked out" 32 when I thought I was being told I was
being put back in the case but that really was not my fault -- that's what happens when you
precipitate calls to people who are on chemotherapy. My name should not have been mentioned
(or affirmed) as a possible replacement. What's more there should have been no need for a
replacement if the Court had made sure counsel completed his duties on the trial de novo.
Bottom line: the Judge is trying to blame me for a situation she and the Courts created.
This is not the first time they have done this. Her Honor blamed me for her one month delay in
replying to Client X's informal complaint about procedures in Margate. Her lieutenant Mr.
Berchtold blamed me for his 3 week delay in getting to my request for a venue change in my
divorce. As I said in my fax, I am always available to blame when something is wrong. Do I ever
get any credit when things do well -- of course not.
Madden
I believe that Madden v. Delran 126 N.J. 591 (1992) is still relevant to this case, because no
matter how you characterize my status, I believe it is clear that Judge Armstrong was assigning
me to Client (in spite of the chemo). I see no other reading of her “best position” comment –
especially when made to someone who needs chemotherapy.
Further, simply put, if the aspirations of this case had been followed at nearly any in this case
32
My behavior was driven by the medicine I was on please refer to the medical warning at E87 (under
"Mental Heath problems"): "Pegasus may cause some patients to develop mood or behavioral problems.
Signs of these problems include irritability (getting easily upset), depression ... and anxiety. Some patients
may have aggressive behavior." This is the exact reason why I could not be appearing in court on the
medicine -- and had arranged my affairs accordingly. Even so, my behavior was not that bad: I was
"ranting and raving" (Angello Memo, E60, paragraph 2) but Ms. Angello stayed on the phone with me and
did not hang up. Judge Garofolo characterized the conversation as unprofessional -- fair enough -- but I
was not calling the Court as a professional. I was calling as a sick, sad, frightened person, whose lawyerly
instincts were "out the window" due to the chemo side-effects AND a CO-INCIDENT and RELATED
PTSD attack. Please refer to E71-73 for a full account of the debilitating effect of this PTSD attack. I
thought I had been reassigned to Client X's case again and wanted to make clear I could not, and would not,
appear. Any mistakes I made (which the court did not help to clear up) were also driven by my condition
and were not that serious. The mistake was driven by the fact that every time in the past 5 years Client X
had no attorney, the Court System "came looking" for me. This was true whether it be the Municipal Court
in the person of Judge Smoger or Judge Savio, the Superior Court in the person of Judge Neustader and
Judge Armstrong or the Appellate Division (which took over a year to get other counsel -- during which
time I thought they were waiting for me to get better). I believe this was indicative of a “If it is Client X,
call Duffy” attitude which, as I said in the Complaint, is predicated on the belief that I “created” Client X’s
cases – which is untrue the prosecutor did by demanding jail time.
before the last one33 this case would not exist. Madden dictates a "wheel" or random system of a
list of names of attorneys who are not doing pro bono (or public service) in other ways. Also, and
very importantly to this case, it expects an interaction between the assigning Judge (who should
usually be the Assignment Judge herself but may be a municipal court judge acting from a name
referred from the Assignment Judge's Madden List34) and the attorney chosen from the list. Id. at
219. (“We leave it to the municipal court judges to direct counsel, who will usually inform them of
their concerns, if any, about their competency, to provide substitute counsel when appropriate ….
Ultimately, however, if the municipal court judge concludes that defendant will not receive
effective assistance of counsel, the judge’s obligation will be to select other counsel.”)
It was bad enough that the list was skipped but the interaction was a one way street too. The
autocratic judges just told me to do what they wanted me to do without listening in the slightest to
what I was saying: that my health concerns obviated an appearance.35 I should not have Madden
List duties because I have always volunteered (yes, willingly) to work for the County Legal
Services Organization and, in any event, should be excused due to disability. The first reason
should have been an absolute bar to assignment if our Supreme Court is to be followed.
Surprisingly, the second, that I needed treatment for a fatal disease, was less determinative but
should "of course" have resulted in some accommodation (e.g. acceleration) if it were determined
that I had to make the appearance. In any case, Judge Savio’s unwillingness to engage in a
Madden or ADA interaction36 led me to the Assignment Judge to revoke an unfair assignment that
was thrust upon me.
Madden only takes us so far. It does not tell us how to interface Madden with the ADA/LAD – no
case does.37 This is particularly troubling in that Madden lists only financial burden as the sole
means of “escape” from a Madden assignment. I had, then, no such problem. Madden is
founded on the “standard model” that the attorney is perfectly healthy and, this is key, will
continue to be so for the duration of the case. In nearly all municipal cases, if you are standing at
bar at the beginning of the case, you will still be “OK” an hour or two later when the case is over
33
When Judge Garofolo did follow the dictates of Madden and released me from serving as counsel in the
trial de novo appeal. This was a matter of right but I still had to beg for it.
34
See R. 7:3-2(b) which states, “… [T]he court shall assign the municipal public defender to represent the
defendant. The court may, however, excuse the municipal public defender for cause and assign counsel to
represent the defendant, without cost to the defendant from, insofar as practicable, a list of attorneys
maintained by the Assignment Judge.” Id (Emphasis added). Ms. Sked has said this list is no longer
maintained and, indeed, the “list” has been stricken from R 3:4-2(c). However, R. 7:3-2(b) is still on the
books – and had a considerable impact on my behavior making me think that “insofar as practicable” the
assignment was valid and my only recourse was to the Assignment Judge herself. Additionally, Judge
Carchman is still “taking names” every year with his “Madden Memo” to “Members of the Bar” – is he
doing so for no reason?
35
I attempted to have a Madden dialogue with Judge Savio about the fact that insanity defenses are almost
unknown in tax and financial crimes. This “concern” – to use the term from Madden – also received no
reply. This concern ended up being moot because I, ultimately, performed adequately but the fact that I
was adequately trained to effect an insanity defense was far from certain, to me at least, at that time.
36
The ADA, like Madden, requires an interactive process regarding the disabled person’s abilities and
disabilities. See Tynan v. Vicinage 13 of the Superior Court of New Jersey, 351 N.J.Super. 385 (App. Div.
2002) which is discussed at length in the next section.
37
I guess this case will. It is a shame that the holding will be moot in 99% of cases due to the MPDA.
However, there are still Madden assignments in de novo appeals (just ask Mr. Cianci) and appeals
thereafter (just ask Mr. Fabi who did Client X’s successful appeal of her 2001 conviction). These cases are
not distributed randomly either: Mr. Cianci replaced Mr. Fabi when he resigned from the bar (I allege
because of the Client X assignment but he denies it) so two successive appeals from the same client were
assigned to attorneys sitting in the same chair, as it were. If there are 300 such “chairs” or attorneys in the
county, the chance of two successive assignments such as that are astronomical. Maybe the maxim, “If it’s
Client X, call Duffy” should be modified to include, “but, if not him, call Fineburg & McCarthy’s (one
man) Atlantic County office.”
so the “standard model” works. But, as in physics, the standard model does not cover all
situations or cases. Additionally, I wish they had mentioned ADA/LAD reasons but I assume the
Court took it for granted that Judges would take the ADA and LAD into consideration in their
assignments (if only for 5th Amendment reasons). On this assumption, they were sadly mistaken
or, perhaps, they were not mistaken – they were just so invested in the standard model they did
not think of it.
No case gives us a good fit for the facts of this case but stepping down to the Appellate Division
from the Supreme Court, we do find a judicial employee with similar disabilities to mine who was
not accommodated by her superiors – which included the Assignment Judge in her County.
Reasonable Accommodation in the Courts
Regarding the Court System’s obligation to comply with the ADA and the LAD, I did find a very
instructive case involving a woman who has the same disabilities I do (which I do not believe is
relevant) who was asking to be accommodated. Tynan v. Vicinage 13 of the Superior Court, 351
N.J.Super. 385 (App. Div. 2002).38 The main similarity was that the Assignment Judge was
involved in the accommodations (or lack thereof). That assignment judge had a more “arms
length” approach to Ms. Tynan. He or she delegated most of the work on the case to Trial Court
Administrator Sue Regan. Medical proof was provided after Regan was put on the case. Regan
came up with a “five-point” plan to deal with the plaintiff’s health issues which the Assignment
Judge approved. Id. at 392-3.
I would equate this in my case to former Assignment Judge Winkelstein’s “Long Term
Accommodation” given me. It was never much good to begin with but no ADA or LAD
interpretation supports the proposition that accommodations only last as long as the administrator
giving them. I tried to get Judge Winkelstein himself to intervene but the fact that they were both
Judges got in the way again – I think (maybe Judge Winkelstein did call and Judge Armstrong
just did not care). Certainly, there should be nothing improper about a former administrative
office holder calling the new office holder and discussing the continuation of a policy regarding
someone whose life might be in danger.
After a seven month leave, Tynan’s boss received a note that she needed to report to a new boss
and the boss and Administrator Farkas discussed the note. Farkas claimed not to understand the
note. “Consequently, the vicinage ignored it.” Id. at 393-4. The ignoring of the request was
exactly the same as what happened in my case with the “accommodations, of course, will be
made” letter except the Assignment Judge herself was ignoring me.39
Several months passed and Tynan was running out of leave. Her boss demanded that she return
to work when her leave ended or be considered to have resigned. Id. at 394. I would liken this to
where I thought I was being told to enter a case and send a fax while sick on chemotherapy.
When I realized my error, I still thought it was unfair for clerks to be mentioning my name when
they knew I was unavailable from the chemotherapy – especially when had fought so hard to free
myself from the case.
38
Since I am certain that the vicinages have no separate existence from the AOC or the Court System in
general, I suspect that naming the vicinage is “code” for naming the Assignment Judge in his/her
administrative capacity. To pay homage to this fiction, I have added Vicinage I to the 3 rd Amended
Complaint but I think you can just name the Assignment Judge in his/her administrative capacity as I have.
To not be able to sue in some form, would violate the 14 th Amendment as I have stated in the next footnote.
39
Does my having a case turn on whether the Assignment Judge delegates the task – so that “judicial
immunity” does not apply. I think not. Further, if it does, I would claim that is an equal protection and due
process violation – that a claim depends on who acts on the request! Obviously, I have covered this
elsewhere and you can sue a judge in his/her administrative capacity.
Because Tynan wanted some help with the “no leave extension” position taken by her boss, she
wrote to the assignment judge. In the brief synopsis of the letter in the case, Tynan put the judge
on notice of her current health status, complained that she had to make the request to her boss
despite numerous physician notes that she have no contact with her boss and she stated, “My
disability has not been accommodated.” She went on to note her displeasure about some other
items and then stated that the recent actions “have exacerbated [my] physical and emotional
disabilities.” Id. at 394-5.
Now I am sure that this was not the most “happy” letter that that assignment judge ever received:
it was assertive about the fact that she should not have been answering to her boss and it
basically accused the judge of illegal activity (failure to accommodate). From all accounts, this
Judge managed to retain her composure and not lash out on Tynan40 based on some straw man I
am sure that judge was capable of creating. Comparing, I too stated my disability. I expressed
my displeasure about getting calls from an unrepresented client (recall, every time she had gone
unrepresented, the Courts had “come looking” for me) having my name mentioned and having to
call the Court (because my name was mentioned by the clerk) while I was very, very sick. As
with Tynan, I was very assertive – disabled people have to be or they get ignored.41 Finally,
rather than state the judge had committed illegal disability discrimination as Tynan did , I was
much more muted stating at the beginning of the letter, “I think the Court does not realize the
position that it keeps putting me in.” Similarly, I did not state that the Court’s treatment had
exacerbated my symptoms (which it had) but made the more diplomatic statement “You seem to
understand I cannot be put in such a situation under my current circumstances” at the end.
Tynan’s assignment judge handed the matter off to Administrator Farkas who basically wrote to
Tynan and told her she was fired. Id. at 395. I got excoriated about a set of fallacious facts.
The Vicinage trotted out the same arguments that the State does in this case: that Tynan was not
disabled and that she never proposed a formal enough accommodation request. Neither was
accepted by the Appellate Court. The big strike against the vicinage was that it never engaged in
an “interactive process” with Tynan to flesh out what accommodations could be made for her. Id.
at 395-404.
Similarly, the argument that I was not disabled is, well, ridiculous. I am not only otherwise
qualified – I am just qualified.42 I did the task WITHOUT accommodation. As far as having a
disability that affects a major life activity: I had a fatal disease – the major life activity it affects is
life itself. Just in case this is not clear, I cured these alleged defects with a full recitation of my
disabilities in the 3rd Amended Complaint. Also, I have a social security disability letter issued in
January 2002 so I think it’s a pretty “cold deck”43 to try to argue I am not disabled. (Plus, I will
always be disabled under the “person with a record of disability” standard.)
Both of the Judges in this case who did not accommodate me just did not care. I wrote both of
them about my health problems. Neither ever initiated an interactive process – which they would
have been free to delegate so as not to take up their time (and risk their ire). Judge Armstrong
paid lip service to the ADA but what did she do – nothing. She merely “hoped” the whole matter
she was forcing me to do because I was “in the best position” would be over before my chemo
40
Since Tynan did get fired without any real action on her letter to the Assignment Judge, there is the
specter that she may have been retaliated against for writing the letter.
41
As I have written elsewhere, the real mystery here is Warren the law clerk. He willingly listened to my
complaints (which did accuse the courts of disability discrimination), told me to send him Judge Garofolo’s
letter (which I did with the brief fax note) and, per his instructions, set about writing a longer letter about
my travails and requests for accommodation. E64-75. Despite his willingness to listen, somehow these
calls were improper – I’d still like to know how (e.g. they were not ex parte)!
42
Although I have to engage in a ridiculous amount of procedure (appellate or otherwise), I have never lost
a case for Client X – and with good cause: she’s insane.
43
As in collateral estoppel applies – at least as far as the Federal Causes of Action are concerned.
would start.44 Very tellingly, however, when she was confronted with the fact that she had made
a mistake not making an accommodation, she did attempt to start an interactive process – too
little, too late.45
Judge Savio was constantly confronted with my complaints – I even offered my resignation of
record. All he did was tell me I could be relieved if I did his administrative job for him and filled
out a PD application form for Client X. To be fair, he did relieve me of a post-conviction
appearance in approximately January 2005 when I brought my interferon (one of the two therapy
elements) in an igloo and told him AGAIN my treatment had been held up.46 Once again, this
was too little, too late.
The only difference with this case is that I may not have been an employee. 47 The cases suggest
it does not matter: accommodation is accommodation.48 There may be a slightly higher standard
for employers but, given this case’s very big similarity to Lane,49 I do not see how to argue that
44
I note that my April 2, 2004 letter to Her Honor mentioned the following: I did not want to appear for the
defense because … I am scheduled for chemotherapy in April or May. E33 (First New Paragraph) In
footnote 4 right after the word “May,” I wrote, “… I have to have chemotherapy for a potential fatal
condition ….” E33. In footnote 6 at E35 , I wrote, “Obviously, the Handicapped Accommodation Statutes
are implicated but I really believe that, even if I were the healthiest person who ever lived, the 13 th
Amendment is implicated.” In footnote 7, I clearly but sheepishly suggested the accommodation of limited
trial hours and predicted, “but I am sure that such a request will fall on deaf ears in the Municipal Court.”
What more could I have done? I really must ask Your Honor to read the whole letter at E32-6. I clearly
wanted out of the case (note the mention of not being relieved by the County Legal Services). Does Your
Honor think I would have gotten a better response if I had stated, “I demand to be relieved?” The evidence
would be that if I had been assertive about any specific remedy, Her Honor would have blown up on me
then instead of a year later. I know I sound like a broken record but this is the problem: the disabled should
be allowed to be assertive with their “accommodators” – after all, it is basically a adversarial negotiation
without a mediator -- but how many judges take kindly to having things demanded of them? What’s the
remedy if the negotiation fails? Suit? Now, I ask how many judges take kindly to being threatened with
suit? Without the threat of suit, what bargaining power does the disabled person have? They can beg – and
we can see how well that worked out in this case. I threatened suit while I was at least half insane from the
chemo and we all know what happened when that got back to Judge Armstrong. Furthermore, how many
attorneys are going to sue a judge? I can answer that question: they might if they were sure they were
going to die.
45
Recall that when she offered to interact with me, her lieutenant, Judge Garofolo, on his authority as
Presiding Judge Criminal, had relieved me in Client X’s case on de novo appeal and given me extra time to
file her father’s brief (also on appeal). I had no other cases – anywhere – so Her Honor’s offer to interact
was truly moot. (It was also a non-sequitor because I had already interacted with her predecessor and
received a useless “long term accommodation” which I tried to invoke but the administrators would not
question their new boss.)
46
I was going to start the treatment but then my wife Tammy reminded me that this would send me to the
IRS in horrible condition with no leave time accrued – so we decided to build up some leave time and start
the treatment later.
47
As I stated in the previous section, there is a strong argument that I was a de facto employee of Margate
because of their failure to follow the MPDA. If I was assigned by the assignment judge, as I argue in the
alternative, then I claim I was a de facto employee of the State (for failure to follow Madden) – but I realize
that is a much weaker argument.
48
Please also refer, inter alia, to the “Reasonable Accommodation” regulation in the “Access to Public
Accommodations” section of the LAD regulations. N.J.A.C. 13:13-4.11.
49
To reiterate, my access to the Courts could have been accommodated in two ways: relief or acceleration.
Both would have assured my continued access to the Courts in the future (if I was cured as I am now). In
our Einsteinian Universe, there is no difference between assuring access now by traveling in space (usually
“up”) and doing all that is possible now to assure access in the future. The former takes place in the spatial
dimension and the latter, in time. Both have a risk of failure. Put in less “cosmic” terms, the self-employed
court reporter in Lane had to be accommodated also.
there was no duty to interact and accommodate.
Interactive Process?
Obviously, I was in a bad position so I offered a compromise to excusing me.50 Judge Armstrong
has no trouble picking up on the compromise to absolutely excusing me which I was offering: that
I obtain the psychiatric report and that I be relieved at that point OR that the case be greatly
accelerated (special sessions -- whatever if would have taken) so I could start my treatment on
time. Instead, Judge Armstrong merely "hop[ed]" that the case would "be brought to a conclusion
as quickly as possible." Judge Armstrong to Duffy April 8, 2004, paragraph 3, last sentence. Her
Honor is the Chief Judge of Vicinage 1: she can do much more than "hope" that a matter be
brought to a conclusion as quickly as possible. Her Honor has also named herself Chief
ADMINISTRATIVE contact for ADA accommodations in the Vicinage, this should have given her
more power than to slough off accommodating me on the Margate Municipal Court -- which I think
is the most favorable reading TO HER of the "accommodations will, of course, be made"
comment.51 Id., paragraph 4.
50
Recall that the Contempt Cases state that I cannot flat out refuse to do the work. So I have to dance
around that. I thought failure to follow Madden and the ADA did give me a right to refuse to do the work
but I was uncertain. In one of the Contempt Cases, Mr. Spann labored (and was convicted) under a similar
belief. I tried to ask questions of Judge Savio and was rebuffed. He wanted an answer and I told him I
need chemotherapy. Most reasonable people would have taken that as a “no” – a word I had to be careful
about using while I was uncertain if I was in a Madden mandatory situation (one of the questions I was
trying to ask). But Judge Savio pressed on – he needed a “yes” because, otherwise, there would be a huge
attorney bill in addition to the psychiatric bill he now had no control over due to Judge Garofolo’s ruling.
If there were an attorney’s fee bill, he would not be a faithful conspirator BOTH in keeping the indigent
costs in Municipal Court below their Constitutional minimum and in denying Client X an attorney. He
pressed on – I tried to have a Madden/ADA dialogue and I eventually said, “yes” so I could not be held in
contempt for refusing an assignment and so the client would not be pro se which would have violated my
ethical duties. I did, however, state that I was being forced. Because I had said I could not do it and he
refused to take that answer – which made me think it was a Madden situation where he did not have to take
“no” for an answer. Remember, the duty of counsel only ends when they make sure the client has counsel
at the next step in the process. This is particularly so when counsel (following the lead of the Appellate
Division) believes the client is seriously incapacitated, if not insane. Mr. Robertson should have made sure
there was continuity of counsel (once again especially given that he had argued she was insane) – he was
still the Public Defender (as in the administrator of that office) even though personally relieved. He did not
do this -- which left me to assure continuity of counsel. That’s what the ethic rules demand – especially for
an insane person.
51
In the worst case scenario, she just does not care: she pays lip service to the ADA and LAD and provides
no means by which their intent should be carried out. Her own actions later show that Her Honor concedes
that some interactive process should have started in April 2004 because with no real additional information
-- other than I had been moaning and groaning to Judge Garofolo -- she asked for my medical records and
offered to help with my schedule. If I had been asked for medical records in April, I would told Her Honor
to look in her own files she inherited from Judge Winkelstein. Granted, they would need to be updated by
three years but the essential facts would have been the same (that I was nutritionally and otherwise
compromised by Crohn's Disease and an ostomy and that I had Hep C which could easily be fatal and that,
when beginning treatment for the Hep C, I would be significantly incapacitated for three months to four
months -- maybe more). So her allegation that the difference between Her Honor actions in April 2004 and
in January 2005 was that she found out I "had medical problems for many years" rings pretty hollow -- at
least insofar as the Vicinage and the Office of the Assignment Judge are concerned. Judge Winkelstein had
gotten my medical records in 2001 and had granted a "Long Term Accommodation" with Civil Case
Manager Theresa Ungaro as his designee. This accommodation was useless with regard to Madden
problems. For example, when I tried to use it in March or April of 2002 (shortly after it was issued) to get
Ms. Ungaro please to tell Judge Neustader that I was medically ineligible for the assignment to Client X's
case (after at least two attorneys had "weaseled out" of the assignment), she refused saying the
accommodation was not applicable to the criminal division. As for Her Honor's own knowledge, I stand on
The information that I need chemotherapy in a few weeks alone should have been more than
enough to start an interactive process. Would it be OK, if I had just contracted the Hepatitis C in
2004 while totally healthy,52 to have ignored me and "hoped" my problem would go away without
intervention which "of course" would be available at some future time, in some undetermined
manner, from some undetermined official53 -- so long as it was not Her Honor having to work on it
now. "Of course" without treatment, the "problem" (the person requesting accommodation) will
go away because, without treatment, the disease is always fatal. I think it is very clear what her
motives were. If Her Honor does not have the time, training or patience (and I think that last two
points are embarrassingly clear) to be hearing from disabled people, why does she keep her
name on internet as the principal ADA Coordinator for the Vicinage? Why does Judge Carchman
keep her (and the other Assignment Judges) as Coordinators? (From what I can tell they do not
seem too happy to be hearing from the disabled: they are slow to respond, 54 dismissive55 and,
when that combination fails, rude.56)
If Her Honor had accelerated the case in almost any way (or there had been minimal interaction),
it would not have fallen into the doldrums between August and December of 2004.57 During that
last three of these four months my treatment (PEG-interferon) sat in my refrigerator. This case
should have ended in September 2004 but Margate was too busy not "cutting" the $1500 check
for the psychiatrist – continuing its long pattern of interfering in the case. Eventually, Judge Savio
had to go and demand the check on the day of trial in person in December.58
Why did he not demand the check sooner? I think he should have to answer that as the Chief
Administrator of the Municipal Court.59 The fact that he had to perform the ministerial or
administrative task of demanding the check 60 at the last minute, begs the question why he did not
Footnote 9 in the Amended Complaint -- which basically says that there was enough information in my
April 2, 2004 letter to let her know I was in pretty bad medical shape (i.e. needed chemotherapy) without
regard to lack of transmission of information from Judge Winkelstein.
52
I make this point because in Her Honor’s “too little, too late” offer of accommodation in January 2005,
she made the point that the information that I had “medical problems for many years” had caused her to
start the interactive process – which was then moot.
53
I, of course, thought the official would be Judge Savio. Based on his conduct, I would say he was totally
untrained in the area.
54
Recall she was not going to respond to my informal complaint for Client X (nothing about me) because I
was not (then) her criminal attorney. (I think if, say, one of Client X’s brothers had written the informal
complaint, especially given her mental status, Her Honor still should have excused their lack of bar
membership and acted on it – the ADA regulations are VERY clear that accommodation requests can come
from third parties, especially family members. She tries to blame me for her lack of diligence. She also
seems to totally write off the fact that I am a licensed attorney bringing a civil matter to her where HER
HONOR is specifically listed as the ADMINISTRATIVE contact by the AOC on its website.
55
I would say that is a fair summation of Her Honor’s April 8, 2004 letter to me. E37-8.
56
I would suggest that is an overly kind description of Her Honor’s June 20, 2005 letter. In the Complaint,
I have attributed malicious motives to this letter – such as silencing me and letting me know there would be
major retaliation if I choose to sue. Furthermore, this is the way Judge Savio also treated me when I
attempted to explain my medical issue obviating an appearance. (Now I realize that he was on the bench so
I probably cannot sue for that one instance but he never did anything as Administrator Savio in the months
that followed – and I am suing for that.
57
Although, if the case ended in August, my treatment was still delayed.
58
This says nothing of the fact that I had to file suit in Federal Court asking, inter alia, that the check be
issued. (The ethics hotline advisor told me to sue civilly for instructions or a guardian or both. Since the
Chancery Division refused my filing, I changed the caption, added the failure to issue the check and filed it
in Federal Court.)
59
A position I allege he held under his employment contract with Margate. Or, if I am wrong, why did the
actual administrator not demand the check sooner.
60
Remember he had already Ordered the check to be issued as a Judge -- that did not work.
act to get the check sooner -- as Administrator, not as Judge. As Judge, His Honor had already
done all he could short of holding Margate in contempt -- which he should have done -- but that
would have shown too much independence for him to be tolerated as Judge any longer and it
would have violated the agreement that he do everything possible to save Margate money. He
waited until the last minute to get the psychiatrist paid because it was part of his administrative
job to put off all payments as long as possible -- hoping they would never have to be made.
In any case, Madden was violated both in terms of its "wheel" and its professional process (i.e.
interaction between the judges and lawyers) to get the indigent some reasonable
representation.61 There was no professional process with Judge Savio. He let Mr. Robertson out
of the case because Client X thought he was out “to get” her. It is important to note that this did
not let the Margate Public Defender's Office "off the hook" -- this is especially so since Judge
Garofolo sitting on interlocutory appeal Ordered that Margate “shall incur all cost of eval for about
def including expert testimony.” 62 Superior Court Order, E19. Client X's file, literally, remained
with the MPD's office, it being a one person office and that person being removed, this should
have gotten wheels moving – but not the Assignment Wheel.
Mr. Robertson should have written as administrator of the MPD's office that he needed a special
appointment for the Client X case. He could have written to the Judge or the City or, better yet,
both. Similarly, Judge Savio had let Mr. Robertson out of the case -- fine, judicial decision,
cannot sue him for that -- but Administrator Savio (or whoever is the administrator) should have
gotten the wheels moving to get another MPD. He should have written to the City because, if I
read the Statute correctly, the City should act to fill vacancies, only if the City does not, then the
municipal court (an administrative body) must act to use its appointment power as a last resort.
Those are two actors, the MPD and the municipal court, whose actions the city is responsible for
who did not act to get a substitute MPD. Beyond those two, I would add the City Solicitor -- he
seemed to be paying all too close attention to the case and it was his meddling in the case that
caused (both from the actual meddling and from the mere passage of time) Client X to become
suspicious of Mr. Robertson -- as yet another actor who should have reported to the City that the
case they had ordered him to pay attention to needed an MPD appointed pursuant to the MPDA.
In any case, none of this happened, so the Court, in late January, Ordered Client X to try to find
her own attorney. I think this was a very clear invitation for me to enter the case and, pursuant to
the conspiracy, save the City money. 63 I declined the invitation. Instead, I wrote to Judge
Armstrong that the city was dilly-dallying when the Constitution (several different sections)
demanded it name a replacement immediately (the MPDA -- of which I was unaware -- demands
the same result). Her Honor did not act quickly enough on that informal complaint to weigh in on
the issue -- she considered it mooted by my involuntary service.64
Recall Madden concedes that the best or “ideal” representation may not be possible.
Clearly Judge Garofolo got distracted and wrote both “for” and “about” when either one alone would
have done. It is clear that a cost of evaluation will be counsel fees for the indigent defendant and, if that
were not clear enough, the “including expert testimony” makes clear that costs other than for the expert
were included (such as for new counsel – since Judge Garofolo was aware that Mr. Robertson was moving
to be removed from the case).
63
It may also have been in furtherance of the plan to deny Client X a defense. I had already revealed in my
interlocutory brief that I was pending chemotherapy so it could be that trying to get me to serve they were
trying to put a half-dead tax attorney (with no real training in insanity defenses) in “the driver’s seat” of a
criminal action. Obviously, the hope would be that I would “crash” and Client X would be sent to jail –
preferably for life, 30 days at a time – a suggestion made by the Judge during sentencing in the 2001 case.
(For having a habit of making statements like this from the bench as well as numerous other transgressions,
Judge Smoger has been both defrocked and disbarred.) Unfortunately, his disregard for the Constitution
still lingers.
64
The question was not mooted -- ultimately she put the question of whether my involuntary service was an
allowable method to fill a MPD vacancy off on this Court.
61
62
Of course, with no money and me pending chemotherapy, Client X showed up on March 8, 2004
with no attorney. I considered myself to still be in the case -- if only for the reason that I was the
only attorney from the interlocutory appeal "left standing." We will never know, but I greatly
suspect if I did not show up, Judge Savio would have come calling for me demanding why I was
not there to help. More importantly, I was there because Client X asked me to come. I was there
as her CIVIL counsel to argue for immediate appointment of an MPD. I know Judge Armstrong
considers this "interjecting myself" in Client X's case -- I call it practicing law and, unfortunately for
Judge Armstrong, so would the Supreme Court and its Ethics Committee. More to the point -- so
did Judge Savio when I initially wrote stating the client needed a PD in July 2003 – and the
prosecutor agreed. An attorney who appears at the tail end of a voluntary representation (the
interlocutory appeal) should not have his services shangh'haied for a new representation -Madden says so and so does common sense and common courtesy. See page about limitations
on service in Madden. This is particularly so when the attorney tells the Court that he cannot
continue service due to medical needs – which is the first thing I told the Court.
My ADA/LAD Case is Unaffected by My Status as Counsel
Now here are two fairly fine points about what happened on March 8, 2004. First, I still have a
case even if, by some convolution, my service can be seen as "voluntary." Second, the decision
to let Mr. Robertson out of the was a judicial decision but the decision as to WHO would serve in
Mr. Robertson's stead was ministerial or administrative in nature – and should have been
performed by the City or the “municipal court” as soon as he was relieved. See the MPDA.
Even if I did actually volunteer to do the case, I simultaneously put the Judge on notice of my
medical limitations. In no uncertain terms, I said that if I did have to do it, it must not interfere with
my treatment. This fell on deaf ears -- there was no reply to these issues except for
acquiescence in my desperate musings that maybe the County Legal Services Organization
could relieve me. This is disability discrimination: plain and simple. I was asking for an
accommodation and the Judge did not care. The Judge's ADA and LAD duties are an
administrative duty of his office. If he fails to accommodate, you do not file an interlocutory
appeal, you write to his "boss" and complain -- that's what I did. It is an administrative procedure
(called an informal complaint) and it is encouraged by the Court System. Unfortunately for the
judges, though, they lose their traditional immunity due to the administrative nature of the
proceeding. See Paragraph 20 of Complaint. This has always been a key “ingredient” in the
viability of this suit. Other indicia of judicial immunity are also missing -- mostly having to do with
the admitted lack of formality -- such as the lack of a caption, having an automatic right to
complain rather than having to ask for leave to appeal and the fact that the complaint is seen as a
new matter.
The Court System cannot have it both ways: when the formality is gone and we are left with
administrative procedure,65 there is nothing more American than suing a government official
whose decision you believe violates a Statute or the Constitution (or both) -- the judges are just
administrators subject to suit at that point. If the State does not want judges getting sued for
administrative duties – especially those that have nothing per se to do with being a judge (such
as accommodating the disabled and investigating administrative complaints), they should appoint
more administrators.
And I note that it is PURE administrative procedure – there is no judicial component. It is an
investigatory and mediation process – similar to the EEOC. Judicial immunity applies to administrative
judges (e.g. Article I Judges – like Tax Court Judges) but their decisions are final – but for appeal. Here
there is no appellate procedure (there is a reconsideration process): if you are still unhappy, the AOC’s own
website directs you to file a complaint in a Court of competent jurisdiction. This is not a judicial function.
As I stated elsewhere, it is more adversarial – you have to convince the administrator to do what you want;
otherwise you sue the offending officer. Judge Armstrong certainly behaved like an adversary.
65
Unfortunately for the Court System, both Judge Savio and his boss, Judge Armstrong, "blew me
off" and decided to do nothing. Judge Armstrong only did this in her April 8, 2004 letter. Judge
Savio did it numerous times in many letters. The letters are all in the proposed 3rd Amended
Complaint as Exhibits but I have Summarized them in an Appendix B to this brief. Here is the
quick summary of the summary: I complained that I was working involuntarily 4 times in 3
different letters; that I had health issues 4 times in 4 letters; I offered my resignation (unaccepted)
from the defense on June 28, 2004 and I report on being tasked to get my own replacement – by
filling out a indecency form which the court staff should be doing under the MPDA -- on July 16,
2004.
These letters alone ought to keep Margate in the case and I regret not putting them in the initial
complaint but they are 39 pages of mostly procedural information but I did, where appropriate,
complain about the involuntary appearance and my need to get to my medical treatment. These
letters document a total disregard for the involuntary nature of my appearance and my health.
Now, if Judge Savio is immune, the staff (the “municipal court” in an administrative sense) still
saw these letters – and they should have been acted upon. This says nothing of Margate’s
conspiracy to keep costs in Municipal Court below their Constitutional minimum, the constant
dragging its feet on paying for the psychiatrist, the solicitor’s having meddled in the case, the total
failure to follow the MPD law, and the total lack of any kind of instructions or apparatus regarding
reasonable accommodations (assuming that Margate and not the State and the Assignment
Judge are responsible for accommodations in its own court).66 See 3rd Amended Complaint &
“Margate Unconstitutional Policies & Practices” list (Exhibit A).
Finally, on the voluntary issue, you will note that I said I was serving involuntarily several times in
the letters. I believe that Judge Savio's acceptance of this characterization bar his lawyer and
Margate from arguing otherwise on grounds of equitable estoppel and adoptive admission. If he
disagreed with this dire characterization, he should have challenged it or, at least, accepted my
resignation in June 2004.67 The simple fact is that he did not challenge it because he knew it was
true. Also, any administrator (probably the judge himself acting as administrator) looking at the
letters should have questioned the characterization and, once again, that never happened either.
Section 1983
Now that all the inter-related facts and statutes in this case are on the table, I turn to the most
legally complicated cause of action in the complaint: Section 1983. First, I think it is clear all
persons were acting under some color of state law or I would not have been dealing with them.
Second, I guess it is appropriate to state whom you are suing. I am suing Margate (which is a
This Court’s handling of this issue will make new case law of great value to disabled people. Consistent
with the ADA and LAD, I believe that BOTH the city and the state are responsible for accommodations in
Municipal Court. (For example, in Lane, the Counties were responsible for the Courts – as our system was
until the Court Unification in 1995 – but the State was still liable too. In fact, in the settlement in Lane, the
counties paid the damages and the State paid about $1M in legal fees.) In this particular case, I certainly
tried to engage both sets of relevant officials. Neither did anything so BOTH are liable for their joint
dereliction. Preliminarily, the city is only liable for ADA violations but if the disabled person “goes
higher” and seeks State intervention (with the Assignment Judge complaint process), then both would be
liable. It may be that the State, along with the Municipality, should be strictly liable for Municipal Court
ADA violations on a failure to supervise theory or similar theory – that’s what happened in Lane. This
would make the State carefully supervise ADA requests (or at least train the Municipal staff – including the
judges as administrators – to handle the requests properly).
67
If my resignation had been accepted, I would have had some damages but I would not have sued –
despite what counsel may think, I am not fond of suing Judges. This suit was filed when I was sure the
treatment had failed and I would die. Judge Armstrong miscalculated when she retaliated against me for
even thinking of filing suit. Retaliatory threats only work if the person is going to live to experience more
retaliation. If the person doesn’t think they will live, it will make them more resolute to file – if only
because the evidence of retaliation shows that the retaliator had done something wrong in the past.
66
“person” under the case law) and Administrator Savio for failure to follow Madden, the MPDA or
both and for having a policy and practice of saving money in the Municipal Court by keeping costs
below the minimum that the Constitution (or the MPDA) would require as well as a policy and
practice to deny Client X a defense team (both lawyer and psychiatrist). Usually these would just
be words on a page – which I think would get me past a failure to state a claim motion – but in
this case there is a rich set of facts to prove both policies. 68 I have set out the allegations which
appear in the complaint that establish these policies and practices in Appendix C. Some of the
fact patterns and allegations are in the Exhibits to the Complaint but they are incorporated into
the complaint by reference in Paragraph 8 of the Complaint (“Both of these letters, as well as all
the other exhibits to this suit, are adopted as part of this complaint as if set forth herein in full in
the relevant part of the suit.”)
It is also important to note that it is clear in the suit that I am suing the judges as administrators.
See Paragraph 20 (“Since their decisions are administrative in nature, they lose their traditional
immunity which opens them up to suits, such as this one”). Further, they are being sued both in
their administrative capacity for injunctive relief 69 as well as personally, as administrators – not
judges, for damages.70 Margate is being sued for both injunctions and damages as a “person”
separate and distinct from the State. If this is unclear in the current complaint, the 3 rd Amended
Complaint fixes the problem.
With regard to Madden, I am suing Judge Armstrong and Judge Carchman, in their administrative
capacities for injunctions and personally as administrators for endorsing and using non-Madden
practices. This is stated several places in the complaint. (See, e.g., Paragraph 2: “[T]he trial
judges … use whatever methods they want to get attorneys to perform work for indigent clients
and the Assignment Judges and the AOC will either ‘look the other way’ or, if necessary, ‘back
them up.”)
With regard to the law clerk suit, I am suing Ms. Danilo in her administrative capacity for
declaratory or injunctive relief and personally for damages. Judge Carchman has the misfortune
of being named again as Ms. Danilo’s ultimate boss. He is sued as an administrator for
declaratory and injunctive relief (ultimately it is he who must eliminate the discriminatory policy)
and personally for damages. If the AOC is a separate entity from the State, it’s getting sued too.
The policy and practice here is, substantively, having an irrational policy that discriminates
(mainly by disparate impact) on all kinds of protected classes and, procedurally, having no policy
or practice for handing disability accommodation requests.71
There may be other claims but I think these will do at this point in the litigation – even assuming
Which ultimately may be the same policy and practice – the first practice is aimed at all indigents and the
second is aimed more specifically at Client X. The conspiracies were also aimed at me. First, in keeping
costs below the Constitutional minimum it became necessary to assure my appearance for free. Second,
since it would be imprudent to have Client X proceed pro se (pervious appeals had proven that), who better
to force to the task than a broke down sick person who is not trained or experienced in Criminal Law (one
required class – that’s it) – especially insanity defenses.
69
It is important to note that usually it would be a dire pleading error to name the State and its officer in the
same complaint. Here I have no choice, the Section 1983 case runs to the officers but I need to name the
State and AOC for the ADA, LAD and Rehabilitation Act, if nothing else.
70
This is the so called “Officer Suit Fiction.”
71
First, the AOC seems to have no timeline for handing these requests. This timeline in this case is
laughable: 120 days to get out a form letter having nothing to do with disability. (So far as the ADA and
the LAD goes, I will claim that such a timeline is per se discrimination – even if the person turns out not to
be disabled. I guess that is an argument for another day.) Second, there is a procedural requirement for
disability accommodation requests that a determination of disability and a BFOQ analysis be done – which
would clearly eliminate the “no practice” rule. The disability determination and the BFOQ analysis still
has not been done to this day. This just more example of the Court System ignoring the disabled persons’
accommodation request and not engaging in an interactive process.
68
the Section 1983 issues were properly briefed. Since I do not want to take a chance that I would
be wrong that is was too early to address the fact of the Section 1983 claim, I will continue.
I have found only one case that is remotely similar to this one. In Whisenant v. City Haltom City,
106 Fed. App. 915 (5th Cir. 2004) the Court of Appeals found that in a similar situation the plaintiff
could survive a motion to dismiss for failure to state a claim:
Whisenant alleges that he was incarcerated in the Haltom City jail for fifty days in connection with
various misdemeanors. According to Whisenant, former municipal judge Jack Byno incarcerated
him without informing him of his right to counsel, providing him with appointed counsel, or holding
a hearing to determine whether Whisenant was able to pay his misdemeanor fines. Whisenant
argues that the City is responsible for these alleged constitutional violations because (1) the City
had a policy of incarcerating defendants who were unable to pay misdemeanor fines without
providing them with indigency hearings or appointing counsel for them, (2) the City ratified Byno's
actions, and (3) the city council conspired with Byno to incarcerate indigent defendants in order to
extract money from them.
The City cannot be liable under § 1983 for having a "policy" of wrongfully incarcerating indigent
defendants because the relevant decisions were made by a municipal judge acting in his judicial
capacity. As the Ninth Circuit reasoned in Eggar v. City of Livingston:
Because [the judge] was functioning as a state judicial officer, his acts and omissions
were not part of a city policy or custom. A municipality cannot be liable for judicial
conduct it lacks the power to require, control, or remedy, even if that conduct parallels
or appears entangled with the desires of the municipality.
40 F.3d 312, 316 (9th Cir. 1994) (footnote omitted); see also Johnson v. Moore, 958 F.2d 92, 94
(5th Cir. 1992). Similarly, because the City had no power to control Byno's judicial actions, the
City cannot be liable for "ratifying" his judicial conduct.
Whisenant, however, also contends that the City is liable because the city council conspired with
Byno to incarcerate him and other indigent defendants in order to raise money for the City. To
state a claim for conspiracy under § 1983, a plaintiff must allege the existence of (1) an
agreement to do an illegal act and (2) an actual constitutional deprivation. See Cinel v. Connick,
15 F.3d 1338, 1343 (5th Cir. 1994). Whisenant has alleged an agreement between Byno and the
city council to violate his rights (and the rights of other indigent defendants): "Byno conspired with
the City counsel [sic] to establish procedures designed to deprive individuals of their constitutional
rights to generate revenues for the City by intimidating accused individuals to plead guilty, levying
unjust fines, refusing to appoint counsel . . . and throwing citizens in 'debtor's prison." Whisenant
Compl. at 4. Furthermore, by alleging that he was not given an indigency hearing or provided with
appointed counsel before being incarcerated, Whisenant has alleged actual deprivations of his
constitutional rights. See Scott v. Illinois, 440 U.S. 367, 373-74, 59 L. Ed. 2d 383, 99 S. Ct. 1158
(1979); Tate v. Short, 401 U.S. 395, 399, 28 L. Ed. 2d 130, 91 S. Ct. 668 (1971).
The next question is whether the City could be liable under § 1983 for this conspiracy. The City
cannot be liable for Byno's role in the conspiracy, since Byno was not acting as a municipal
official or lawmaker. Johnson, 958 F.2d at 94. But the City can be held liable for the city council's
part in the conspiracy, because the city council is the City's policymaking body and,
consequently, its decisions constitute City policy. See id. (defining "official policy"). Therefore, we
hold that Whisenant has stated a § 1983 claim against the City for his wrongful incarceration.
Whether the claim will survive a properly supported motion for summary judgment is not before
us.
Id. at 917-18.
I allege, inter alia, violations of several right such as the equal protection clause (not using “the
wheel” and/or not getting a willing appointee) and the 13th (indentured servitude) and 14th
Amendments (a “taking”). As far as an illegal act, they are numerous but I do not think you have
to go farther than not following the MPDA. I have alleged these actions were aimed directly at me
but, if I am wrong on that point, there certainly were illegal act aimed at my client and I believe the
principles of transferred intent from tort law apply to Section 1983. (If for example, a city has an
unconstitutional policy of shooting fleeing petty criminals (say stealing a TV set) and the officer is
a bad shot and kills or maims another citizen, there is no impediment to the wounded persons
Section 1983 claim.)
If I am still wrong, this case involved an employment setting. I have found a case where, if the
city transferred all hiring and firing duties and policy in the court to a judge, the city would be
liable for the judge’s Section 1983 employment illegalities:
In light of the Supreme Court's decision in Pembaur [v. City of Cincinnati, 475
U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986)], we hold that § 1983
municipal liability may be imposed upon the City of Little Rock in this case. The
record before us indicates that Butler was delegated final policy-making authority
concerning employment matters in the municipal court, and that he acted
pursuant to that authority when he chose to discharge Williams for exercising her
first amendment rights. At the conclusion of the evidence the district court found
that the undisputed evidence demonstrated that Butler was the policy maker with
respect to employment matters in Little Rock Municipal Court. The district court
specifically found that the city delegated to Butler, as judge and chief
administrative officer of the municipal court, the final authority for administering
personnel decisions in the municipal court. Butler "had the sole and exclusive
control of the hiring, termination, discipline, [and] discharge of his employees." In
response to the city's question whether Butler set policy, the district court stated:
"I'm finding that they completely turned it over to him, and he operated it
exclusively. Yes." The court added, "I think he not only set the policy, he did it all.
I don't know how I could go into it other than just reaching that conclusion. The
fact and the legal conclusion is that he did it all." The district court also found
that Butler was acting in his official capacity if he in fact terminated the plaintiffs.
The court therefore concluded that the city would be liable for Butler's conduct if
the jury found that Butler violated the plaintiff's constitutional rights. …
The record amply supports the district court's finding that Butler possessed
policy-making authority and was acting pursuant to that authority when he, as the
jury found, discharged Williams. Therefore, we conclude that the district court's
finding is not clearly erroneous. Butler admitted in his response to requests for
admissions that his personnel served at his "sole pleasure" because of the city's
policy of delegating to him the final authority in employment matters. He also
admitted that he did not consult the personnel office or the City Board of
Directors when he discharged Williams or any other clerks.
Williams v. Butler, 802 F.2d. 296, 299-300 (1986) (footnote & citations to transcript omitted).
I allege that such a transfer occurred here (and that Judge Savio did not exercise the power – mainly
because it would cost money) and led to deprivations of my rights as stated above.
Law Clerk Job & Educational Program
I have covered the law clerk situation throughout this brief. I think it is clear this is a classic “rule”
employment or access question – similar to Mr. Bakke’s claim that a racial quota violated his
rights. I think the State is trying to defend showing that all the policy letters from the various
judges, ipse dixit, mean the policy is legal or has a rational basis. That might be relevant if I were
mounting a pure equal protection challenge but the equal protection challenge here, ab initio, is
subsumed within the ADA, ADEA and LAD (disability and age) causes of action – which are more
favorable. Now, they did not act on my request for 120 days, they did not interact with me and
they did not do a disability analysis – that forms the basis of both new discrimination claims and
separate equal protection challenges. I think I can prove disparate impact. Even if I cannot, the
Disability Accommodation laws cut out all kinds of “rational” job qualifications under the BFOQ
analysis to help employ our disabled citizens. That how the Disability Accommodation Laws
work: they strip a job down to its BFOQs (i.e. minimum essential qualifications) and see if the
applicant can make the grade. I can – if this irrational (and traditional) requirement is eliminated.
I list as proof of the irrationality neither any other state nor the Federal Courts have such a
requirement. Please read my former brief asking for an injuction for a deeper discussion of these
issues.
Now on the age issue, the former AOC Chief said in one of the memos I was sent that he wants
to save the clerkship for “young attorney.” That illegal! So on the age issue I am just going to
rest on that fact.
Section 1981
The Section 1983 Claim will do fine. I abandon the Section 1981 claim.
The Rehabilitation Act
The Rehab Act, like its teenage sibling the ADA, vitiates the 11th Amendment. It uses a totally
different method: contract. If the Entity takes Federal funds, it consents to suit on its programs
and activities. This has totally not been argued by the State or by Margate but I mention it to be
complete in this opposition. The State did argue the EEOC enforces Section 504. The EEOC
does not enforce the Rehab Act – I can’t prove a negative, it’s just a fact. On this issue, I
assume New Jersey is out of luck but maybe Margate can make such a showing.
EEOC Issues
The problem obviously is from when to measure my 270 day period to go to the EEOC. Margate
knowingly denied me information that I was an employee so I think discovery rules should apply
to the filing (and I went to the EEOC within about 45 days of discovering my employee status on
December 23, 2006). I looked: I cannot find any cases under the bizarre scenario that a person
is not told that he is an employee. It is not a “big deal” if Your Honor disagrees: Margate is still
liable under the LAD.
Now might be a good time to explain the EEOC filing. It was mainly aimed at the law clerk
situation and Margate’s failure to inform me I was an employee. As far as the filing of the
complaint and the EEOC charge, I was amending the complaint and I had an obligation under the
Entire Controversy Doctrine (ECD) to file the law clerk matters in that complaint. Contrary to what
Ms. Sked is saying I was hoping that my EEOC filing would start some mediation at the EEOC. It
would be very unfair not to allow me to bring the ADA and ADEA causes of action (for injunctive
relief only) when I had a duty to amend the complaint to bring the new law clerk matter under the
Entire Controversy Doctrine (the only new defendant from the new matter was Ms. Danello, the
AOC and Judge Carchman were already parties and that’s why the ECD applied).
Ms. Sked does point out an error in that filing: I forgot to put a new count in the complaint for the
ADEA. No other reading of the 2nd Amended Complaint is possible although I forgot to say “I am
suing under the ADEA – clearly something that can be fixed.72 The ADEA action in the law clerk
case is an entirely new matter and it is not my fault that the EEOC did not want to conduct
72
As I believe Your Honor knows, I was in the hospital when I filed that document.
mediation of that issue – I wanted them to.73
The Per Quod Claim
The per quod claim is invalid:
Summary judgment is also appropriate with respect to Kim Toscano's per quod claim. A
per quod claim is a derivative claim that depends of the existence of another cause of
action. The only claims of Toscano that survive summary judgment are those alleging
violations of Section 1983, CEPA, and the NJLAD. None of these statutes, however,
provide for a per quod action for loss of consortium. Horvath v. Rimtec Corp., 102
F.Supp.2d 219, 236 (D.N.J. 2000) (right to recover on a loss of consortium claim depends
on the existence of tortious conduct on the part of the defendants); Jones v. Jersey City
Med. Ctr., 20 F.Supp.2d 770, 773 (D.N.J. 1998) ("in the context of a NJLAD action there
is no permitted per quod action for loss of consortium"); Verde v. City of Phila., 862
F.Supp. 1329, 1337 n.5 (E.D. Pa. 1994) (Section 1983 only provides for a personal right
of action, not a derivative loss of consortium claim); Catalane, 638 A.2d at 1352 (citing
Flaherty v. Enclave, 255 N.J. Super. 407, 605 A.2d 301, 305 (N.J. Law Div. 1992))
("[p]er quod damages are also [*31] not recoverable under the 'whistleblower' statute");
see also Hurley, 174 F.3d at 130 (citing Catalane for determination that the NJLAD
makes no provision for a per quod claim).
Toscano v. Borough of Lavallette, 2006 U.S. Dist. LEXIS 48653, 30-31 (D.N.J. 2006)
I would just like to note that my loss of consortium survives the dismissal of the per quod
claim.
Explanation
I am sorry this brief is late. I just learned on June 20th that the Court was imposing a
deadline of July 6th. I checked myself out of the hospital program I was in and have
worked at least 10 hours per day since then. I could not get everything ready in 8 days –
it has taken 11. I am available any date if Your Honor wants to move the day to be fair to
the defendants.
Conclusion
There are many interesting questions in this case and I should be given a chance to do discovery.
The causes of action are clear and have a great deal of merit – especially the disability
accommodation claims.
If Your Honor does want to dismiss the complaint, so that it does some good for other disabled
attorneys, please try to explain what I should have done to be accommodated properly so that
others will benefit from my mistakes.
73
I note that this claim has considerable merit since the former AOC chief said in a written memo that he
wanted “to give as many young attorneys as possible an opportunity to clerk ….”
Certification
There are probably new facts in this brief that are not in the complaints. I certify that this brief is
accurate and truthful to the best of my knowledge and belief. I realize that if any statement s are
willfully false, I am subject to punishment.
Respectfully Yours,
Thomas B. Duffy