Archive for April, 2011

Senate Gives Nod to Measure That Considers Refusal as Prior DWI

April 29, 2011 Leave a comment

Senate Gives Nod to Measure That Considers Refusal as Prior DWI

Michael Booth


The state Senate on Thursday approved a bill that would overturn a Supreme Court ruling that breath-test refusal convictions do not count as prior DWI offenses for sentencing purposes.

In a 31-0 vote, the Senate passed S-2671 , which would upend State v. Ciancaglini , 204 N.J. 597 (2011). There, the Court held it was not clear from the state’s drunken-driving statutes that prior convictions for refusal were to be considered prior convictions at sentencing.

The bill clarifies that refusals are prior convictions under the drunken-driving statute and that drunken-driving convictions are prior convictions under the refusal statute.

On May 1, 2008, Rumson police stopped Eileen Ciancaglini for erratic driving. A breath test turned up a blood-alcohol content of .17 percent, more than twice the legal limit of .08 percent.

She pleaded guilty to DWI but argued that she should be treated as a first-time offender despite her May 18, 2006, refusal conviction. She cited State v. DiSomma 262, N.J. Super. 375 (1993), which said refusal is not a prior DWI.

But a municipal judge treated her as a second offender, sentencing her to six months in jail and suspending her driver’s license for 10 years. He relied on State v. Cummings , 184 N.J. 84 (2005), which raised the burden of proof for a refusal conviction from a preponderance of the evidence to beyond a reasonable doubt, putting refusal on par with a DWI conviction, prosecutors said.

Monmouth County Superior Court Judge Anthony Mellacci Jr. reversed, holding that DiSomma still applied. He sentenced Ciancaglini to 30 days in jail and a one-year license suspension.

The Appellate Division reversed and reinstated the municipal ruling, holding that Cummings had equalized DWI and refusal offenses, and thus that they were interchangeable for sentencing purposes.

But a unanimous Supreme Court overturned the appellate ruling and reinstated the less-severe penalty, saying that the “Legislature clearly understood how to provide for enhanced sentences by reference to prior convictions,” but did not.

The bill also would change the burden of proof in establishing the elements of a refusal violation from a preponderance of the evidence to beyond a reasonable doubt. Courts have held that a refusal conviction is quasi-criminal in nature and therefore requires proof of each element beyond a reasonable doubt.

The bill is sponsored by Sens. Jefferson Van Drew, D-Atlantic, and Sandra Cunningham, D-Hudson. An identical measure, A-3762 , is pending before the Assembly Law and Public Safety Committee.

Breyer, Kennedy Testify on Budget, Tweeting, and the Supreme Court’s Front Door

April 14, 2011 Leave a comment

Breyer, Kennedy Testify on Budget, Tweeting, and the Supreme Court’s Front Door

Yes, Supreme Court Justice Stephen Breyer has a Twitter account — or “a tweeting thing,” as he put it. But don’t look to follow him on Twitter. Breyer said his is a private account that requires prospective followers to ask him permission – and he hasn’t said yes to anyone. The 72-year-old justice said he set it up to follow the recent Iranian uprising. “Totally fascinating,” said Breyer, pictured below. Scotus_budget_09

This modern-day revelation was a highlight of the Court’s annual budget hearing before a subcommittee of the House Appropriations Committee. As often happens, the questioning from members of Congress drifted away from budget details to other things on their mind as they seized their rare chance to interact with the Supreme Court. Scotus_budget_17

It’s such a unique experience that freshman member Rep. Kevin Yoder (R-Kan.) asked Justice Anthony Kennedy an innocuous question, and as soon as Kennedy began to answer, Yoder (pictured at right) interrupted him. “It’s always been  dream of mine to interrupt a Supreme Court justice,” said Yoder, a University of Kansas law grad. Mission accomplished, Yoder let Kennedy continue.

Breyer’s Twitter disclosure came in answer to an off-topic question from another freshman, Rep. Steve Womack, (R-Ark.) who wondered if social media were affecting the justices’ work. Kennedy followed Breyer with a safer response that the spread of information through social media was “all to the good.” He added, “The law lives in the consciousness of the people.”

A fresh, and more relevant topic was raised early on by the subcommittee chairwoman Rep. Jo Ann Emerson (R-Mo.) She asked why the Court had decided last May to close its bronze front doors to the public for entry into the building. It’s a touchy topic, with Justices Breyer and Ruth Bader Ginsburg joining in a statement at the time to register their dissent.

Kennedy reiterated the Court’s stated reasoning that a review of security procedures led to the decision, though he acknowledged that “there is symbolism” in going up the steps and facing open front doors. But there were esthetic factors as well, he said. Entering the building into the atrium in front of the courtroom had become unpleasant and undignified, Kennedy said, in part because that area has no air-conditioning and is hot in the summer.

Diplomatically, Breyer made his answer brief, stating, “We don’t always agree … I thought we should have left the doors open.” Some day, Breyer added, “things will calm down, I hope,” to the point where the closing can be reconsidered.

The justices were also asked about recent suggestions that members of the Supreme Court should be required by law to adhere to the same code of conduct that covers lower federal court judges. Kennedy and Breyer both responded that the justices, by their own voluntary policy, do abide by the code promulgated by the Judicial Conference — even though the conference only sets policy for the lower federal courts. Kennedy even said that justices can and do ask the conference’s code of conduct committee for advice when ethical issues arise.

Both justices saw some problems with the idea of mandating the same ethics code for the justices. Breyer noted that recusal issues play out differently for justices, because when one justice bows out of a case, he or she cannot be replaced by anyone else — unlike lower courts where another judge can step in.

Rep. Jose Serrano (D-NY) was the congressman who asked about the ethics code, and he also raised a perennial issue for him — the Court’s record of hiring relatively few minority law clerks. He asked if the Court had undertaken “any new initiatives” to recruit more minorities. Kennedy said he encourages all young law students to seek clerkships, and he does not confine his picks to Harvard, Yale, or Stanford grads. Breyer said hs efforts to recruit minority clerks had been “difficult in the beginning” when he joined the Court in 1994, and “then got easier.” He started to suggest that in the last two or three years he had begun to find problems again, but he was interrupted before he could complete his answer.

And oh yes, the justices did discuss budget matters with the members of Congress. The Court is asking Congress for $75.5 million for salaries and expenses, down from last year. Nonetheless, the amount includes a plan for hiring 12 more police officers for the Court. Asked about security concerns in the wake of events like the January Tucson shooting, Kennedy replied with a tribute to Arizona Chief U.S. District Judge John Roll who died in the incident along with others. Congresswoman Gabrielle Giffords was critically wounded. “Anytime we have an incident like that, we take a second look” at security measures, Kennedy said. Kennedy also reported that the Court’s long-running renovation and modernization project will be done “very soon” and still under budget. Scotus_budget_08

Photos by Diego Radzinschi

petition of the day

April 8, 2011 Leave a comment

The petition of the day is:

Title: General Electric Co. v. Jackson
Docket: 10-871
Issue(s): (1) Whether a unilateral administrative order’s (UAO’s) imposition of either significant response costs or significant decreases in a potentially responsible party‘s stock price and credit rating constitute a deprivation of property under the Due Process Clause; and (2) whether the Comprehensive Environmental Response, Compensation, and Liability Act‘s UAO scheme impermissibly coerces compliance in violation of the Due Process Clause by conditioning any judicial review of a UAO upon the threat of treble damages and fines that accumulate at EPA’s sole discretion.

Certiorari stage documents:

§ Opinion below (DC Cir.)

§ Petition for certiorari

§ Amicus brief of The Chamber of Commerce of the United States

§ Amicus brief of Finance Professors and Scholars (forthcoming)

Senator Menendez: “An opportunity to redress this grave injustice to the State of Israel and the Jewish people.”

April 8, 2011 Leave a comment

United States Senator Robert Menendez – New Jersey

For Immediate Release

April 7, 2011

Contact: Menendez, 202 224 4744

Full Letter Attached


Menendez to UN Secretary General:  Revoke Goldstone Resolutions Against Israel


Menendez: “An opportunity to redress this grave injustice to the State of Israel and the Jewish people.”


WASHINGTON – U.S. Sen. Robert Menendez (D-New Jersey) today sent a letter to United Nations General Secretary Ban ki-Moon asking him to urge the United Nations General Assembly and the United Nations Human Rights Council to revoke resolutions against Israel that were based on the faulty conclusions of the Goldstone report.


In an opinion piece in the Washington Post this week, Judge Goldstone, who was a former judge of the Constitutional Court of South Africa and headed the report along with three other appointed members, recanted the report’s conclusions and acknowledged that Israel did not intentionally target civilians. He concluded that “If I had known then what I know now, the Goldstone Report would have been a different document.”


Sen. Menendez wrote, “The damage done to Israel’s public image is largely irreparable and has created the unfortunate opportunity for erroneous condemnation of Israel as well as increased displays of anti-Semitism around the world.  Even if we cannot unring the bell, it would provide a measure of redress for the wrong inflicted on the State of Israel if the UN acknowledged the report’s errors and omissions, and accordingly revoked the associated UN General Assembly and UN Human Rights Council resolutions Your leadership on this issue would assist in restoring credibility to the UN and the UN Human Rights Council and in countering the anti-Israel sentiment that has unfortunately taken hold in these bodies.”



Carolyn Gehl Fefferman, Esq.

Senior Advisor

Office of Senator Robert Menendez

(973) 645-3030 (tel.)

(973) 645-0502 (fax)