1
1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - HUDSON COUNTY
2 DOCKET NO. HUD-L-3520-04
PETER deVRIES and TIMOTHY
3 CARTER
TRANSCRIPT
4 OF PROCEEDING
Plaintiffs,
5 TRIAL DAY 18
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
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8
HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Friday, June 6, 2008
Commencing 1:25 p.m.
11
B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
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20 SCHULMAN, WIEGMANN & ASSOCIATES
21 CERTIFIED SHORTHAND REPORTERS
22 216 STELTON ROAD
23 SUITE C-1
24 PISCATAWAY, NEW JERSEY 08854
25 (732) - 752 - 7800
2
1 A P P E A R A N C E S:
2
3
4 SMITH MULLIN, ESQS.
5 Attorneys for the Plaintiffs
6 240 Claremont Avenue
7 Montclair, New Jersey 07042
8 BY: NEIL MULLIN, ESQ.
9
10 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
11 Attorneys for the Defendants
12 360 Passaic Avenue
13 Nutley, New Jersey 07110
14 BY: DANIEL R. BEVERE, ESQ.
15 DAVID M. PARIS, ESQ.
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1 JUDGE CURRAN: If there is no
2 objection, we'll continue through the plaintiffs
3 jury charge. Again, if counsel wishes to say on
4 a certain substantive issue, no, we really have
5 to address this and our arguments because we
6 can't decide one without the other, obviously,
7 we'll do that.
8 Is there any objection to using
9 the version of the plaintiffs' jury charges that
10 Mr. Mullin just gave us, which I believe are
11 numbered through page 38, as opposed to the ones
12 we were working with yesterday, which I believe
13 were numbered through page 37? Any objection to
14 using the ones we just got? As I understand it,
15 the only changes were the changes that we made
16 on the record yesterday.
17 Is that correct?
18 MR. MULLIN: That's correct,
19 except for I specifically say I'm offering
20 something additional.
21 JUDGE CURRAN: Okay.
22 MR. MULLIN: And usually I do that
23 in a bracket addressed to Your Honor because
24 Your Honor --
25 MR. PARIS: Your Honor.
4
1 JUDGE CURRAN: Yes.
2 MR. PARIS: Obviously, we are
3 going to have to review the earlier part, when
4 we get a chance. If you want to pick up from
5 where we left off yesterday but using a
6 different document for reference, I assume. In
7 other words, where we left off yesterday was at
8 page 13, which said, "Whether Defendant Town of
9 Secaucus can be held responsible for the alleged
10 conduct: Compensatory damages." That was -- on
11 the prior version that was at page 15; it was
12 item three. I assume now we are going to pick
13 up at page 16 of the new version today at item
14 three.
15 JUDGE CURRAN: Absolutely.
16 MR. PARIS: Okay. But we just
17 haven't had a chance to look at the earlier
18 stuff --
19 JUDGE CURRAN: Right.
20 MR. PARIS: -- from pages one
21 through 15 on the new version.
22 JUDGE CURRAN: Right.
23 MR. PARIS: But I am just going to
24 indicate we are picking up with the new version
25 where we left off.
5
1 JUDGE CURRAN: Unless you want to
2 go through and look at the other -- I just think
3 it makes more sense to work our way through the
4 substantive --
5 MR. PARIS: That's fine.
6 JUDGE CURRAN: Thank you. Page
7 16. We are starting at number three, "Whether
8 Town" -- "Whether the Defendant Town of Secaucus
9 can be held responsible for the alleged conduct:
10 Compensatory damages." Any objections in regard
11 to the rest of page 16?
12 MR. BEVERE: You mean starting
13 with number three?
14 JUDGE CURRAN: Yes.
15 MR. BEVERE: Yeah, Judge, I do.
16 And this is why I stopped yesterday, because I
17 thought we were going to have to have some legal
18 argument here on the standard.
19 And the point I will make,
20 Judge -- and I think we -- we started talking
21 about this in regard to the motion for the
22 mistrial and -- and some of the other issues
23 that I had raised on Monday. And -- and what
24 I'll -- what I'll do, Judge, is -- is
25 essentially I object, number one, to the charge
6
1 that says the Town of Secaucus should be held
2 strictly liable for economic damages to the
3 plaintiff.
4 The economic damage provision --
5 the economic damage charge that comes out of
6 Lehmann has to do -- from the old one that says
7 while a employer is going to be strictly liable
8 for equitable remedies and backpay. In other
9 words, when an employee is either discharged or
10 constructively discharged, then the employer has
11 the -- has the way and the means, the ability to
12 make it right, restore that person to a
13 position, give that person back their wages that
14 they lost.
15 And Mr. deVries was not an
16 employee of the Town of Secaucus; and therefore,
17 that whole -- the whole underpinning of those
18 decisions don't apply here. Mr. deVries went on
19 disability from his employment. And if the jury
20 finds that disability was causally related to
21 his psychiatric condition, which was causally
22 related to the events in Secaucus, then
23 certainly they can award economic damages as
24 part of their overall number.
25 But to say that the Town of
7
1 Secaucus should be strictly liable under
2 Lehmann, when Mr. deVries was not an employee of
3 the Town of Secaucus, I mean, as Your Honor is
4 aware, we're -- we're -- we're in uncharted
5 waters here. But certainly, when Lehmann was
6 decided and the employer was being held strictly
7 liable for economic damages, it was talking
8 about going back to, you know, when the LAD
9 dealt primarily with equitable relief, there was
10 no need to address the employer liability for
11 wrongful conduct of a supervisor. It goes on
12 and on. For the remedial purpose of the LAD to
13 be fulfilled the employer must take action
14 because generally the employer is the party with
15 the power and responsibility to hire, promote,
16 reinstate, provide backpay, take other remedial
17 action.
18 So once again, we're talking
19 about an employer/employee situation where
20 Lehmann says that the employer should be
21 strictly liable for equitable relief because the
22 employer has the power to restore that person to
23 their employment and give them their backpay.
24 By making this argument I'm not
25 saying that -- if the plaintiffs were to prove
8
1 liability under whatever standard we say
2 liability should be proved under and they can
3 prove their economic damages and they can prove
4 that those damages are somehow causally related
5 to what happened in Secaucus, certainly, they'd
6 be entitled to receive them. But to say the
7 Town of Secaucus would be strictly liable for
8 any wages, loss of income that Mr. deVries
9 suffered as a result of going on disability goes
10 way beyond the bounds of the case law. And I
11 think it would be improper to hold the Town of
12 Secaucus strictly liable for economic damages.
13 That is my first objection on
14 page 16.
15 JUDGE CURRAN: Thank you.
16 Mr. Mullin.
17 MR. MULLIN: Your Honor, if I
18 could just have a minute. I'm --
19 JUDGE CURRAN: Sure. We're off
20 the record?
21 MR. MULLIN: Yes, off the record.
22 (Whereupon, a discussion is held
23 off the record.)
24 JUDGE CURRAN: Back on the record.
25 MR. MULLIN: The relevant language
9
1 in Lehmann starts on page 616 of the opinion.
2 That's 132 NJ at 616. This is Supreme Court of
3 New Jersey noting that the lower court, the
4 Appellate Division, unanimously agreed that
5 employers should be strictly liable for all
6 equitable damages and relief arising from
7 hostile work environment claims.
8 And then the court goes on,
9 passage that goes from 616 to 617. "The LAD's
10 remedial purpose of eliminating discrimination
11 and harassment in the workplace was served by
12 holding the employer directly responsible
13 without regard to fault, for restoring an
14 aggrieved employee to the terms, conditions and
15 privileges of employment the employee would have
16 enjoyed but for workplace discrimination of
17 harassment. For the remedial purpose of the LAD
18 to be fulfilled, the employer must take action
19 because generally the employer is the party with
20 the power and responsibility to hire, promote,
21 reinstate, provide backpay and take other
22 remedial action. Likewise, only the employer
23 can impose prospective measures to prevent
24 future discrimination and harassment."
25 Then it goes -- I'm skipping a
10
1 couple sentences that are not significant.
2 Then it says, "Therefore, we
3 reaffirm that in cases of supervisory sexual
4 harassment, whether the harassment is of the
5 quid pro quo or the hostile work environment
6 type, the employer is directly and strictly
7 liable for all equitable damages and relief.
8 Economic damages may include hiring or
9 reinstating the harassment victim, disciplining,
10 transferring or firing the harasser, providing
11 backpay and/or front pay and taking preventative
12 and remedial measures at the workplace. This
13 list is not intended to be exclusive."
14 So that's the analysis there. It
15 seems to me what -- what -- what the court is
16 saying, that it's within the power of a
17 supervisor to prevent discrimination, to stop
18 it. We had the case here where the plaintiffs
19 complained directly to a supervisor, Chuck
20 Snyder. And far from stopping it, he launched a
21 vicious attack the next night -- not the next
22 night, shortly thereafter.
23 On the other hand, if counsel has
24 some proposed language -- and I don't hear it.
25 If counsel has some proposed language about some
11
1 sort of proximate causation, some other
2 standard, I think the proofs in this case are so
3 overwhelmingly strong that I -- I would be open
4 to some other alternative, reasonable
5 formulation other than strict liability. I'm
6 open to that, if there's some language to be
7 proposed.
8 I think he is proposing something
9 that's like in a normal personal injury case,
10 you know, that economic damages flowing from the
11 injury. And I'm open to that. Probably, if
12 formulated right, won't adopt strict liability.
13 Because this passage is new territory. The rest
14 of the passage I don't believe really are. I
15 think they're very close to the analysis. So
16 it's counsel's obligation when they object to
17 propose specific language. So I'm open.
18 JUDGE CURRAN: And we already said
19 that days ago, that if you have got anything you
20 want to propose or whatever, bring it in.
21 MR. BEVERE: Judge, it's not --
22 it's not a question of proposing. It's a
23 question of striking that paragraph because
24 there is no strict liability for economic
25 damages in this situation.
12
1 JUDGE CURRAN: Okay. So what
2 would your proposal be, then; just totally
3 strike it?
4 MR. BEVERE: Totally strike the
5 paragraph.
6 MR. MULLIN: And then --
7 JUDGE CURRAN: And --
8 MR. MULLIN: -- would you then put
9 economic damages in the same category as
10 emotional distress and pain and suffering
11 damages? Is that what you are saying?
12 MR. BEVERE: Yeah, what I'm saying
13 is that, just like any other case, you have to
14 prove whatever damages are proximately caused by
15 the -- by the harm. With the definition of
16 proximate cause -- I mean, that would be --
17 that's -- that would be what I would think.
18 But Judge, I mean, we have to --
19 we have to go on here, as well, because, you
20 know, quite frankly, Judge, I'm -- I'm going to
21 ask you -- I'm going to ask you not to charge
22 any of the supervisory sexual harassment
23 liability standard because, quite frankly, it
24 has to do with employers and employees. And I'm
25 going to ask you not -- not to charge it.
13
1 MR. MULLIN: Well, I understand
2 that's counsel's position. Counsel has lost
3 that battle already, just as I have lost the
4 battle on Monell. He -- I believe it's
5 counsel's obligation to go through this
6 paragraph by paragraph, line by line, make
7 specific objections to language and offer
8 alternatives.
9 JUDGE CURRAN: If we don't do
10 that, Mr. Bevere, my concern is we'll be arguing
11 circuitously forever. That's why I think that
12 it makes more sense, as far as the supervisory
13 capacity -- the supervisor issue, if you want to
14 put just that issue on the record again so that
15 the charge conference is complete, albeit not
16 in -- you know, I don't want to delay you; but I
17 don't want to restrict you. But just so that
18 the issue is on the record, I will allow
19 Mr. Mullin to respond; and then it will at least
20 be on the record because we have touched on the
21 issue so much.
22 MR. BEVERE: Yeah, Judge, what
23 I -- what I would -- if Your Honor is -- if Your
24 Honor is inclined to charge the hostile work
25 environment cause of action under Lehmann, then
14
1 what I would ask Your Honor to charge is only --
2 and I'll actually read the language into the
3 record that I want Your Honor to charge. And
4 basically what I would say is this, that the
5 only --
6 JUDGE CURRAN: No, no, Mr. Bevere,
7 we have to be more specific.
8 MR. BEVERE: I will. I am going
9 to read it into the record.
10 JUDGE CURRAN: No, what I'm saying
11 is if you are -- when you say, "hostile work
12 environment," page and paragraph, give me a hint
13 as to if you are going to include these, then I
14 don't object --
15 MR. BEVERE: Under charge 2.25 of
16 the model jury charges, okay.
17 JUDGE CURRAN: Okay.
18 MR. BEVERE: I would ask that Your
19 Honor charge only -- only -- and that would be
20 2.25. And then you're talking about
21 subsection -- I'm going to number four, should
22 defendant employer be held responsible for
23 sexual harassment. And what I would ask Your
24 Honor to charge is --
25 JUDGE CURRAN: Hold on.
15
1 MR. BEVERE: -- is only --
2 JUDGE CURRAN: Hold on. Is this
3 in your -- are you going to be reading to me
4 from --
5 MR. BEVERE: From the model
6 charge.
7 JUDGE CURRAN: But is that in your
8 proposal?
9 MR. BEVERE: My proposal, Judge,
10 was on Monell.
11 JUDGE CURRAN: Right. But you
12 have not -- I just need to know if I have to get
13 it out of the --
14 MR. MULLIN: I don't have the
15 model charge with me either.
16 JUDGE CURRAN: I have a lot of the
17 model charges. I don't have 2.25 out here.
18 MR. BEVERE: Well, Judge, what --
19 I mean, I have it in front of me. I can give
20 the Court a copy. We can make a copy. I have
21 it in front of me.
22 JUDGE CURRAN: Okay. But do you
23 see my problem? Okay. I asked my law clerk to
24 get out anything I thought we were going to be
25 discussing today. I don't have any list that
16
1 indicates 2.25; therefore, I don't have it
2 pulled. Let me ask her to make -- do you have a
3 copy, Mr. Mullin? Otherwise, we will get two.
4 MR. MULLIN: I don't have a copy,
5 no.
6 JUDGE CURRAN: Anything else
7 that's not in your charges or that we -- weren't
8 mentioned?
9 (Whereupon, a discussion is held
10 off the record.)
11 JUDGE CURRAN: Why don't we at
12 least try to stay with the system we had.
13 MR. MULLIN: Your Honor, in that
14 regard, can we just have counsel's comments on
15 the first paragraph under -- under paragraph
16 three? Any objection?
17 JUDGE CURRAN: That's exactly what
18 I'm doing, exactly where we're going.
19 MR. MULLIN: I think it's a
20 productive way to go.
21 JUDGE CURRAN: It just makes it
22 easier to do it that way and I think more
23 efficient because then we'll make sure we have
24 everybody's arguments on the record.
25 As to page 16, as to number
17
1 three, paragraph one.
2 MR. BEVERE: Okay. The first
3 paragraph? Are we on the record, Judge?
4 JUDGE CURRAN: Yeah.
5 MR. BEVERE: Oh, I'm sorry. I'm
6 sorry. What -- what I -- what I would change as
7 far as the language of the first paragraph is
8 the third basic issue must decide as to whether
9 the Town of Secaucus should be held responsible
10 for the conduct of various Secaucus Firemen.
11 JUDGE CURRAN: You want to take
12 out "alleged"?
13 MR. BEVERE: I mean alleged.
14 JUDGE CURRAN: Okay.
15 MR. BEVERE: Comma, the various
16 Secaucus Firemen.
17 MR. MULLIN: Obviously, I would
18 object to that because there is all kinds of
19 conduct by actors here. And much of -- much of
20 it's by firemen. And much of it's by people who
21 failed to take action to train, prevent,
22 remediate; and that action is important also.
23 And so I don't think it should be taken out.
24 JUDGE CURRAN: With all due
25 respect -- and I'm trying to base my information
18
1 and -- and my decisions on the evidence that we
2 have in the case. Mr. Mullin, I'm guessing that
3 another noun that you'd put in there from the
4 testimony, as I saw it, is "investigation"?
5 MR. MULLIN: Absolutely, that's
6 correct.
7 JUDGE CURRAN: Okay. I don't mean
8 to interject, but -- but I just want to make
9 sure --
10 MR. MULLIN: No, that's absolutely
11 correct.
12 JUDGE CURRAN: Okay. I mean,
13 that's the thrust of -- of this case and, as I
14 see it, has been forever. I know the defense
15 disagrees with this, obviously. And both Mr.
16 Bevere and Mr. Paris are very polite and
17 professional in their disagreement. But I -- as
18 I understand the way this case has gone in,
19 there has been a strong argument that -- by the
20 defense that, number one, the volunteer firemen
21 are not employees, number two, they were not
22 acting under color of law and, number three, if
23 the plaintiffs can't prove those two issues,
24 that's basically it in regard to the liability
25 of the Town. Is that different --
19
1 MR. BEVERE: Well, Judge, when --
2 when this case was a Monell case and it was
3 nothing else, that certainly was the position
4 that we were taking.
5 Now, here we're talking about
6 the -- this charge that I'm looking at is a
7 sexual harassment charge. I -- the sexual
8 harassment that is alleged here -- the sexual
9 harassment that's alleged here, Judge, is one
10 that is alleged to have been perpetrated by
11 firemen. In other words, there is no claim that
12 the police harassed them or Mr. Iacono harassed
13 them or the Mayor harassed them.
14 JUDGE CURRAN: But there is a
15 claim that they discriminated. Interchanging
16 discrimination and harassment. Again, let me
17 just oversimplify it because I'll be making my
18 decisions on what I think. Maybe I am wrong in
19 what I think.
20 As I understand this, to somewhat
21 oversimplify it, the charges are that the
22 policemen -- that the firemen harassed the
23 plaintiffs on the basis of their sexual
24 orientation but that there was discrimination on
25 behalf of the Town of Secaucus from the Mayor to
20
1 the Chiefs down to the department, they're two
2 separate issues. There is no charge, for
3 instance, that a police officer harassed the
4 plaintiffs. Is that correct from --
5 MR. MULLIN: Let me make more
6 specific, Your Honor, and more precise --
7 JUDGE CURRAN: Okay, great.
8 MR. MULLIN: -- so that we can be
9 locked into the Lehmann analysis. At page 623
10 of Lehmann the court says when an employer knows
11 or should have known of the harassment and fails
12 to take effective measures to stop it, the
13 employer has joined with the harasser in making
14 the working environment hostile. The employer,
15 by failing to take action, sends the harassed
16 employee the message that the harassment is
17 acceptable and that management supports the
18 harasser. And there are many passages in
19 Lehmann to that effect.
20 So what the court is saying is,
21 in Lehmann, that when you have an employer that
22 fails to train, investigate, remediate, prevent,
23 stop, whatever -- I don't want to leave anything
24 out -- in effect -- then the employer has joined
25 with, ratified, condoned, acquiesced in the
21
1 harassment. That's what they're saying. So
2 it's not as if, well, then the employer is
3 discriminating but the harasser is harassing.
4 JUDGE CURRAN: No, and I meant
5 to -- I made that sound like it was too --
6 MR. MULLIN: I just want --
7 JUDGE CURRAN: And you're right.
8 MR. MULLIN: And it's my fault too
9 because I think we need to get analytically
10 precise at this stage.
11 So that's what the model charge
12 is about. When does the employer's actions or
13 inactions, in effect, make it that -- make it
14 such that the employer has ratified, condoned,
15 acquiesced in, allowed, permitted the harassment
16 and thereby, as the court said, quote, joined
17 with the harasser in making the environment --
18 the working environment hostile? And that's
19 what I'm saying here exactly.
20 These principles of liability
21 we're laying out are asking the jury to consider
22 two things. Number one, did harassment take
23 place? And we ask that very clearly throughout.
24 Did this gang or group of firemen or some
25 firemen or some fire captain, did they -- did
22
1 they harass sexual -- because of sexual
2 orientation?
3 Having established that, did the
4 Town -- should the Town be liable? And then, to
5 answer that question, well, did it do the kind
6 of stuff it says in Lehmann? Are there acts and
7 omissions that make it -- make it that a jury
8 could determine the Town joined in harassment
9 through all its acts and omissions? And the
10 Lehmann court doesn't say if they -- if you
11 prove that, well, then we can then call the
12 Town, itself, a harasser or discriminator.
13 JUDGE CURRAN: Right.
14 MR. MULLIN: This is just a theory
15 of entity Town liability. And -- and so
16 that's -- that's just a distinction I want to
17 make, Your Honor.
18 JUDGE CURRAN: As to your argument
19 in that regard, Mr. Bevere.
20 MR. BEVERE: Well, Judge, I -- I
21 understand the nature of the claim. I mean, the
22 court has my objection on the record as to the
23 claim, itself. So at this point I will leave it
24 in the Court's hands to make the decision.
25 JUDGE CURRAN: Okay. Basically, I
23
1 find based on Lehmann that the issues, probably
2 to be precise, as just put on the record by Mr.
3 Mullin in regard to Lehmann at page 623, not to
4 exclude any other portion of the decision,
5 itself, but I find that it would not be proper
6 to remove the proposed or to change the proposed
7 wording requested by the defendant to remove
8 managers, supervisors, employees and/or firemen.
9 I find that that is the issue here. A, what
10 happened before -- A, what happened on
11 April 25th, 2004 and then, B, what -- basically
12 involving volunteer firemen and then, B, what
13 happened by the municipality by way of actions
14 and omissions as a result of the incident on the
15 25th.
16 I find that certainly this is an
17 issue that, again, would be comparable to the
18 officials of Secaucus joining in, to use the
19 Lehmann phrase, the discrimination against
20 and/or harassment of -- because some of the
21 facts go more toward harassment and some go more
22 toward discrimination or some of the facts
23 allege -- and I find, therefore, that it would
24 not be proper to remove those.
25 But again, your objection is
24
1 noted for the record completely.
2 MR. MULLIN: Your Honor, let me
3 help -- let me help the way through the next
4 paragraph, making a concession to defendants in
5 light of the comments counsel just made about
6 economic damages and the difference between this
7 kind of case and the employment case.
8 While I don't agree with counsel
9 that automatic liability doesn't attach, I am
10 going to make a concession to use the normal --
11 I believe what he is asking is the normal
12 personal injury economic damages proximate
13 cause. And I have a charge on economic damages,
14 so we can deal with economic damages later.
15 So then what's going to happen in
16 this section, it's going to turn out that this
17 section is going to be only about entity
18 liability, Town liability for emotional
19 distress, pain and suffering.
20 JUDGE CURRAN: Exactly.
21 MR. MULLIN: I want to go through
22 and take out some sentences in the next
23 paragraph to help us make that transition. I
24 would take out the sentence first, "The Town of
25 Secaucus is automatically liable for economic
25
1 damages caused by Town supervisor." I would
2 delete that sentence.
3 JUDGE CURRAN: Absolutely.
4 MR. MULLIN: I would then -- of
5 course, the Court -- the jury needs guidance on
6 what supervisory is. I would then ask that we
7 leave in the next fragment, which goes like
8 this. "I hereby instruct you that Charles
9 Snyder, Jr." -- "Sr. and Charles Snyder, Jr.
10 were, during the time periods relevant to this
11 matter, supervisors, quote/unquote; and
12 therefore, if you find that they violated" --
13 just period after that.
14 "Supervisors within the terms," I
15 would say, "of the State Constitution and the
16 Law Against Discrimination or as defined by the
17 State Constitution and the Law Against
18 Discrimination." And then there will be a
19 period after that. We won't go on to automatic
20 liability.
21 I would then ask that we do the
22 same thing with the next sentence. "Likewise,
23 the Mayor, the Town administrator, the Police
24 Chief" -- I would add the Town counsel who
25 testified yesterday -- "Fire Chief, all police
26
1 officers of the rank sergeant or higher and all
2 firemen of the rank lieutenant or higher were
3 during the time periods relevant to this matter,
4 quote, supervisory employees of the Town of
5 Secaucus pursuant to the definitions of the Law
6 Against Discrimination and the State
7 Constitution." We have now therefore set the
8 stage for the rest of this charge.
9 JUDGE CURRAN: Any objections to
10 those changes other than your basic objections?
11 MR. BEVERE: Well, Judge, first of
12 all, with regard to what happened in the
13 firehouse that night, Charles Snyder, Sr. was
14 not a captain at the time. There has been no
15 evidence in this case that he was a supervisor
16 on that night in question. The fact that he may
17 have been a DPW supervisor has nothing to do
18 with the fact that, you know, he was an
19 ex-captain of the firehouse. So he was not a
20 supervisor. So I certainly would, at a minimum,
21 at a bare minimum, I would object to including
22 Chuck Snyder, Sr. in that sentence because I do
23 not believe that he was a supervisor that night.
24 MR. MULLIN: I believe he was.
25 And it actually had an effect of some of the men
27
1 who worked there actually worked under him. But
2 to move things along, we can take out Charles
3 Snyder, Sr. and just focus on Charles Snyder,
4 Jr. in that sentence.
5 JUDGE CURRAN: I think that's a
6 fair compromise because, you know, then we also
7 have what could be the inferences from
8 Mr. Snyder being at the meeting the next day. I
9 don't know why he was there --
10 MR. MULLIN: Right.
11 JUDGE CURRAN: -- other than
12 having some authority or -- I don't know why he
13 was there. But it's a separate issue, so I am
14 going to withdraw that comment because I think
15 it's -- I think it's overly fair to take out
16 Senior.
17 MR. MULLIN: Your Honor, I want to
18 reserve my right to close that the jury can
19 consider whether he was an acting in a de facto
20 supervisory role of, Snyder, Sr. I don't want
21 to be misunderstood. I'm simply saying the
22 Court is not charging it as a matter of law.
23 JUDGE CURRAN: I am not charging
24 it as a matter of law; but I think that's fair
25 argument, based on his attend -- based on his,
28
1 number one, calling the Mayor from the
2 firehouse, number two, making it clear to police
3 officers that he was calling the Mayor and/or
4 able to -- you know, we can't ignore the fact
5 that these are practical -- political
6 individuals, I'm guessing.
7 MR. BEVERE: Well, Judge, he
8 worked for the DPW, so he knew the Mayor
9 obviously but --
10 JUDGE CURRAN: Okay. But if he
11 had no supervisory role at the Fire Department,
12 why was he calling the Mayor?
13 MR. BEVERE: Because he --
14 JUDGE CURRAN: It's a separate
15 issue. He can argue that. Mr. Mullin can argue
16 that in closing. I think it's overly fair. And
17 we're trying to concede to both sides, if we
18 can, to take him out of the charge.
19 MR. BEVERE: Judge, can I give you
20 my overall objection --
21 JUDGE CURRAN: Yes.
22 MR. BEVERE: -- so it's on the
23 record?
24 JUDGE CURRAN: Sure, sure.
25 MR. BEVERE: Okay. I think when
29
1 we -- this is not -- there is no question that
2 Mr. deVries and Mr. Carter were not employees of
3 the Town of Secaucus.
4 JUDGE CURRAN: No question at all.
5 MR. BEVERE: And if you look at
6 the public accommodation cases that are not
7 employer/employee situations, like L.W., like
8 Godfrey, all the court charges in those -- all
9 the court says in the law of those cases is the
10 remedial action prong of the Lehmann standard.
11 So when you go to charge 2.25 and you go to
12 subsection four, should defendant employer be
13 held liable for sexual harassment, okay, then --
14 MR. MULLIN: What page of the
15 charge is that.
16 MR. BEVERE: Sorry. If you go --
17 if you go to four, I think all you should
18 charge --
19 MR. MULLIN: What page of the
20 model charge is that?
21 MR. BEVERE: Page of the model
22 charge -- I think all you should charge is page
23 11 to 15.
24 JUDGE CURRAN: Right.
25 MR. BEVERE: Eleven to 15, the
30
1 failure to take remedial action. That's all
2 that should be charged in this case, not the
3 delegation of authority, the exercise of
4 authority. That has to do with
5 employer/employee. And I think that -- that all
6 we should do is charge the Subsection A, failure
7 to take remedial action. And if you go to what
8 Mr. Mullin has proposed, then I think you go to
9 his page 20. And that's where first -- first
10 full paragraph.
11 JUDGE CURRAN: "Town of Secaucus"?
12 MR. BEVERE: "The Town of Secaucus
13 should be held liable for sexually harassing
14 conduct" -- and I would just say, "by firemen
15 only if the Town of Secaucus management
16 level" -- and everything else going forward,
17 down to, it would be, page -- let me look
18 because I marked up his other copy. And I think
19 it should go to page -- I'm looking at -- the
20 one I have yesterday, Judge, has page 19; but I
21 have to look at where -- here it would be page
22 20.
23 JUDGE CURRAN: Same page you're on
24 now?
25 MR. BEVERE: Same page, 20.
31
1 That's where it starts, "Town of Secaucus."
2 That's where it should start. And -- and then,
3 quite frankly, I think that all that should be
4 charged is what's -- is exactly what's in the
5 model charge under Subsection A.
6 JUDGE CURRAN: But with all due
7 respect, we can't keep going back and forth.
8 You're on page 20.
9 MR. BEVERE: Right.
10 JUDGE CURRAN: You went through
11 the first paragraph. What about as the first
12 element, that paragraph?
13 MR. BEVERE: I think the Town of
14 Secaucus should be held liable for sexually
15 harassing conduct by firemen only if, one, Town
16 of Secaucus management level employees knew or
17 in the exercise of reasonable care should have
18 known about the harassment.
19 JUDGE CURRAN: No, no, you got
20 that. You already did paragraph one.
21 MR. BEVERE: Okay.
22 JUDGE CURRAN: Next paragraph as
23 to the first element.
24 MR. BEVERE: Okay. I'm looking --
25 I think at the top of page 21 says, "No sexually
32
1 harassing conduct by"; and then I think you go
2 right to "firemen." So you take out
3 "supervisory."
4 JUDGE CURRAN: So all of the rest
5 of page 20 stays in?
6 MR. BEVERE: Stays in. Go to 21.
7 JUDGE CURRAN: Yeah.
8 MR. BEVERE: First, if you find by
9 a preponderance of the evidence there was no
10 sexually harassing conduct by firemen, then you
11 must return a verdict in favor of the Town of
12 Secaucus. If you find there was sexually
13 harassing conduct as described above, then you
14 must consider, as I've discussed above, whether
15 Secaucus supervisors knew or reasonably should
16 have known such harassment was taking placement.
17 JUDGE CURRAN: And then?
18 MR. BEVERE: Okay. That
19 Secaucus -- find by a preponderance of the
20 evidence Secaucus supervisors did not know of
21 such harassment by firemen and should not
22 reasonably have known of such conduct, then you
23 must return a verdict in favor of the Town of
24 Secaucus, period.
25 If you find, however, there was
33
1 sexual harassment and that Secaucus superiors
2 knew or reasonably should have known that such
3 harassment was occurring, then you must consider
4 whether the Town of Secaucus took reasonable
5 steps to prevent, stop or otherwise provide a
6 remedy for such harassment, period. And then,
7 determining whether the Town of Secaucus took
8 prompt and effective remedial measures to
9 prevent, stop or otherwise remedy the sexual
10 orientation harassment by firemen, you should
11 consider -- and I think it's okay till the end
12 of the page, period. And I think that's where
13 the charge should end.
14 MR. MULLIN: What page do you end
15 on?
16 MR. BEVERE: I'm sorry?
17 JUDGE CURRAN: Twenty-one he wants
18 to end.
19 MR. BEVERE: Excuse me?
20 JUDGE CURRAN: He wants to end on,
21 "from occurring in the first place" on page 21
22 in the new.
23 MR. BEVERE: Right.
24 JUDGE CURRAN: Correct?
25 MR. BEVERE: I'm sorry, say that
34
1 again, Judge.
2 JUDGE CURRAN: Page 21.
3 MR. BEVERE: Right.
4 JUDGE CURRAN: In the new version,
5 down from, "to occurring in the first place,"
6 the very end of that page, correct?
7 MR. BEVERE: Correct. And I think
8 that's where the charge should end.
9 MR. MULLIN: Well, I --
10 MR. BEVERE: Other -- otherwise,
11 Judge, what we're doing is -- is, once again --
12 and I know I have said it ad nauseam, ad
13 nauseam, ad nauseam --
14 JUDGE CURRAN: It's okay; you're
15 making your record.
16 MR. BEVERE: Mr. deVries and
17 Mr. Carter were not employees of the Town of
18 Secaucus. So when you look to the public
19 accommodation cases that don't deal with the
20 employer/employee situation, like you go to
21 L.W., then the only prong of Lehmann that is --
22 was applied in that case --
23 JUDGE CURRAN: Is the remedial.
24 MR. BEVERE: -- were whether you
25 had -- whether upper management -- upper
35
1 management -- and I think we have to have some
2 argument as to whether a fire captain is upper
3 management. I think there needs to be argument
4 on that because it's my position it's not. I
5 would take the position that battalion chief or
6 higher in the Town, battalion chief, deputy
7 chief, chief, Town administrator, I think that's
8 the number we're talking about.
9 And that the only law that should
10 be applied is did those persons, upper
11 management, have knowledge of the harassment,
12 actual or constructive, and did they take
13 effective remedial measures to stop it? Because
14 when you look at the non-employer/employee
15 situations, that's the -- that's what we're
16 talking about because, you know, I -- I think
17 it's one thing to say that, well, you know --
18 let me -- let me not --
19 JUDGE CURRAN: It's --
20 MR. BEVERE: Let me -- I don't
21 want to get too far afield. I think my position
22 is that when you're not dealing with an
23 employer/employee situation between the harasser
24 and the harassee, for lack of a better term,
25 then that's what the courts have said.
36
1 In other words, in L.W. the
2 school was a public accommodation. And then the
3 burden that was imposed upon the Board of
4 Education in that case was did your upper
5 management employees know about what was going
6 on, and did they take effective remedial
7 measures to stop it? And quite frankly,
8 anything else is improper because Mr. deVries
9 and Mr. Carter were not employees of the Town.
10 It's not as if -- you know, I don't think --
11 JUDGE CURRAN: Fair argument,
12 absolutely.
13 MR. BEVERE: And that's why I
14 think the charge should end right there and it
15 should only include what I just said.
16 MR. MULLIN: I wonder --
17 JUDGE CURRAN: Do you want to go
18 off the record and look at that and read or --
19 MR. MULLIN: I'm looking for L.W.
20 JUDGE CURRAN: Oh, L.W.?
21 COURT CLERK: Off the record?
22 JUDGE CURRAN: Off the record.
23 (Whereupon, a discussion is held
24 off the record.)
25 JUDGE CURRAN: Back on the record.
37
1 Mr. Bevere.
2 MR. BEVERE: I just want to be
3 clear that by my making this argument to the
4 charge I am by no means consenting that the LAD
5 applies in this case at all. I just want to
6 make sure that's -- that's clear for the record.
7 JUDGE CURRAN: That is absolutely
8 clear.
9 MR. BEVERE: Thank you. And
10 Judge, while Mr. Mullin is reading L.W. I'm
11 going to run to the men's room.
12 (Whereupon, a brief recess is
13 taken.)
14 JUDGE CURRAN: We will go back on
15 the record.
16 MR. MULLIN: All right. So let me
17 focus on what counsel has just talked to the
18 Court about, which is my section that begins,
19 "For non-supervisor employees" on page 20 --
20 JUDGE CURRAN: Exactly.
21 MR. MULLIN: -- of my charges.
22 I'm going to at the end of this argument say
23 also we should have the supervisory employee
24 section I have, but let's work on this section.
25 This is what counsel wants to do and the court
38
1 is doing.
2 First of all, I will concede to
3 using the term "upper management level
4 employees" wherever I used "management." That's
5 number one.
6 JUDGE CURRAN: Thank's a good
7 concession, and I think it's actually certainly
8 within the realm of the facts. And also, I --
9 you know, I don't think that -- that really
10 covers all the basic people. And is it agreed,
11 then, we're talking about battalion chief and
12 above as upper?
13 MR. MULLIN: Well, let me -- let
14 me make a point on that, Your Honor. I would
15 then ask the Court to charge the paragraph that
16 appears in Cavouti V. New Jersey Transit 161 NJ
17 107.
18 MR. BEVERE: Let me just grab the
19 case, Judge. Cavouti.
20 JUDGE CURRAN: I had Cavouti the
21 other day. I now have them all alphabetized.
22 MR. MULLIN: I have it here. I'm
23 happy to share but --
24 JUDGE CURRAN: No that's all
25 right.
39
1 MR. MULLIN: Here. Dan was kind
2 to me. Here is the paragraph -- it is my only
3 copy, but here is the paragraph I'm talking
4 about. The definition --
5 JUDGE CURRAN: I'll take notes.
6 We have got Tracey's record, so it's fine.
7 MR. MULLIN: All right. So
8 Cavouti is a case I referred before, 161 NJ 107.
9 And this is at page 128 to 129. There is a
10 definition of who is upper management in that
11 LAD case. And so I would like that inserted so
12 that the jury can decide who's upper management
13 and who isn't. And counsel from both sides can
14 argue who is upper management and who isn't.
15 JUDGE CURRAN: Will you just read
16 that for the record?
17 MR. MULLIN: I will read it into
18 the record.
19 JUDGE CURRAN: Please, thank you.
20 MR. MULLIN: Okay. Upper
21 management -- and I will change the tense from
22 "would consist" to "consist." "Upper management
23 consists of those responsible to formulate the
24 organization's antidiscrimination policies,
25 provide compliance programs and insist on
40
1 performance (its governing bodies, its executive
2 officers), and those whom the organization has
3 delegated the responsibility to execute its
4 policies in the" -- I would say here, "in the
5 workplace, who set the atmosphere or control the
6 day-to-day operations of the unit (such as heads
7 of department, regional managers or compliance
8 officers). For an employee on the second tier
9 of management to be considered a member of
10 "upper management," the employee should have
11 either, one, broad supervisory powers over the
12 involved employees, including the power to hire,
13 fire, promote and discipline or, two, the
14 delegated responsibility to exercise" -- "to
15 execute the employer's policies to ensure a
16 safe, productive and discrimination-free
17 workplace."
18 JUDGE CURRAN: And you would take
19 out "in the workplace"? You would take that
20 out?
21 MR. MULLIN: Yeah, I would -- I
22 think so.
23 JUDGE CURRAN: Right. Mr. Bevere.
24 MR. BEVERE: All right. Judge,
25 I -- I would -- I would stand by what I said
41
1 before. And I think that it should be battalion
2 chief or higher should be considered upper
3 management.
4 JUDGE CURRAN: Is it -- what's the
5 problem, Mr. Mullin, with saying battalion chief
6 or higher? Because it seems to me between the
7 battalion chiefs and the mayors you got
8 everybody, unless are you saying --
9 MR. MULLIN: Well, it's that --
10 JUDGE CURRAN: Are you saying the
11 police officers are not upper and they're not
12 secondary?
13 MR. BEVERE: The -- when you are
14 talking about the Fire Department, I think
15 you're talking about the battalion chief and
16 hire.
17 JUDGE CURRAN: Okay.
18 MR. BEVERE: I think when you're
19 talking about the Police Department --
20 JUDGE CURRAN: Talking about
21 detective, sergeant and higher?
22 MR. BEVERE: Well, you know, I --
23 I -- I think it would have to be Buckley and the
24 Chief because the evidence in this case, Judge,
25 was that the investigation was controlled by
42
1 Captain Buckley and that he and the Chief made
2 the decisions with regard to the investigation.
3 So I think it would have to be him. And then,
4 from the Town's perspective, I think it has to
5 be administrator up to Mayor and Council.
6 MR. MULLIN: I think we have two
7 questions. One is: What does the Court charge
8 the jury as a matter of law is upper management?
9 JUDGE CURRAN: Right.
10 MR. MULLIN: And the second
11 question is: What can we argue to the jury
12 based on the facts are upper management?
13 Captain -- Your Honor was just making an
14 interesting observation about the actual
15 functional role Charles Snyder, Sr. played in
16 this case. He is a guy who can make the Mayor
17 come out at 3:00 in the morning with a snap of
18 his finger. He is the guy who sat there and
19 said, "I'm on-duty." He is the guy who resisted
20 leaving the firehouse. He is the head of a DPW
21 department.
22 He -- now, you -- you might not
23 charge as a matter of law that he is an upper
24 manager, but he certainly -- he was actually
25 contacted at his place of work at the DPW, where
43
1 he holds a high supervisor role, when my clients
2 complained about the condoms. Would you say
3 that guy is not an upper manager? He was
4 directed there. And Cieciuch picked up the
5 complaint from him or from the secretary,
6 however, and he was the -- he was the deputy
7 chief. So who is -- who is to say we can't
8 argue to the jury that those are upper managers?
9 But I think that what we --
10 JUDGE CURRAN: I think a
11 department head in a municipality is upper
12 management.
13 MR. MULLIN: I just don't see
14 where it wouldn't be.
15 MR. BEVERE: A department head?
16 JUDGE CURRAN: Right.
17 MR. BEVERE: Which, with regard to
18 the Fire Department, would be battalion chief.
19 JUDGE CURRAN: No, we're mixing
20 apples and oranges here. Why don't we do the
21 Fire Department. Any objection to battalion
22 chief and up?
23 MR. MULLIN: As a matter of law I
24 don't object to it, as long as I reserve my
25 right to argue that others functioned -- meet --
44
1 meet the Cavouti standard. And counsel can say
2 they don't.
3 JUDGE CURRAN: Well my concern.
4 MR. BEVERE: Well, Judge, I object
5 to that; but I mean, I'll --
6 JUDGE CURRAN: Let me take one at
7 a time, if you don't mind.
8 MR. BEVERE: Okay.
9 JUDGE CURRAN: I think in regard
10 to the firemen, battalion chief to the Mayor --
11 MR. MULLIN: Certainly, as a
12 matter of law, that is clear as a bell;
13 battalion chief and on up. Battalion chief,
14 deputy chief, Chief absolutely.
15 JUDGE CURRAN: Okay.
16 MR. MULLIN: Then we have
17 deputy -- captain of the detectives and Chief --
18 and Police Chief. That's as a matter of law.
19 We have the Town Administrator. We have the
20 Mayor. And we have the Deputy Mayor. And then
21 we have the Town Council. I mean, that's the
22 governing body.
23 JUDGE CURRAN: Right.
24 MR. BEVERE: I don't think you get
25 any higher than them.
45
1 MR. MULLIN: So I think that's
2 what we all agree on as a matter of law.
3 JUDGE CURRAN: I do too.
4 MR. MULLIN: The other stuff --
5 JUDGE CURRAN: I think if we put
6 those titles into the charge --
7 MR. MULLIN: Yes.
8 JUDGE CURRAN: -- I think that's
9 better than putting Cavouti. Personally, there
10 they could be in there for half-an-hour
11 discussing and we really don't have total -- we
12 have some evidence as to those responsible to
13 formulate antidiscrimination policies and
14 enforce -- I think we are better off just to say
15 as a matter of law. I think it's fairer. I
16 think it's clear as a matter of law these
17 guys --
18 MR. BEVERE: Well, Judge, let me
19 say --
20 JUDGE CURRAN: -- these titles --
21 MR. BEVERE: On that issue, I
22 think that the testimony read into the record
23 from Chief Walters, as well as from Anthony
24 Iacono, was that the Mayor and Council set the
25 policy with regard to harassment,
46
1 discrimination. But obviously, battalion
2 chief -- and I'm not -- I'm saying it's with the
3 reservation of my right. You know, obviously,
4 if you are talking about upper management in the
5 Fire Department, it -- it would have to be --
6 would have to be battalion chief or higher
7 because they're the ones who --
8 JUDGE CURRAN: Right, we got that.
9 MR. BEVERE: Okay.
10 JUDGE CURRAN: My concern is --
11 MR. MULLIN: I understand what you
12 are saying. You are not going to charge --
13 JUDGE CURRAN: Are you still
14 arguing to put the Cavouti -- Cavouti definition
15 in?
16 MR. MULLIN: And I understand
17 you're -- you're inclined not to put it in, and
18 I'm going to agree to that. But I'm just going
19 to reserve my argument, should we get to the
20 punitive damage phase, because Cavouti, that
21 really bears upon --
22 JUDGE CURRAN: Separate issue.
23 MR. MULLIN: So I think it may be
24 very appropriate to put that before the jury
25 with a punitive damage phase. I am not
47
1 conceding the individuals below the layers are
2 not upper management under Cavouti.
3 JUDGE CURRAN: Okay.
4 MR. MULLIN: But I have no problem
5 with Your Honor not charging Cavouti in this
6 passage.
7 JUDGE CURRAN: Okay. Great. So
8 then we've got that, as far as all of the titles
9 that we are going to put in.
10 MR. MULLIN: Then it appears to me
11 that counsel -- again, just focusing on this
12 non-supervisory section of my charge, it appears
13 that counsel had no problem -- or at least I
14 recall no problem on page 21. Can you tell me
15 where -- where you stopped?
16 MR. BEVERE: I stopped at the
17 bottom of page 21 -- I thought is where I
18 stopped.
19 JUDGE CURRAN: The only things I
20 have crossed out are line two, supervisory or
21 non-supervisory employees. We are just using
22 firemen.
23 MR. BEVERE: Firemen.
24 JUDGE CURRAN: At least that is
25 his proposal.
48
1 MR. MULLIN: That's his proposal.
2 There we have a disagreement. I don't know if
3 you want me to address that now.
4 JUDGE CURRAN: Yeah, that's where
5 we are now.
6 MR. MULLIN: Actually, make it
7 even more precise, I think we should take
8 non-supervisory employees or non-supervisory
9 firemen. We have a fundamental disagreement. I
10 believe that -- that the L.W. case, what used
11 the non-supervisory standard because, as the
12 court said in L.W., it was student-on-student
13 harassment, that is the equivalent of
14 employee-on-employee. And there you use the
15 standard of should the employer -- did the
16 employer know about it or reasonably should have
17 known and didn't take reasonable steps to stop
18 it? We have --
19 JUDGE CURRAN: There is no
20 employee or supervisor, anybody in that regard
21 was involved in the --
22 MR. MULLIN: That's right, or
23 that -- so that's -- that's -- L.W. is like the
24 equivalent of the workplace coemployee sexually
25 harassing a coemployee. And that's why they
49
1 used that standard.
2 In our case we have two sets of
3 circumstances. We have actions by
4 non-supervisory firemen, like Mutschler and
5 Kickey; and we have actions by supervisory
6 firemen. Even if we leave all our disputes
7 about Snyder, Sr. aside, we certainly have Chuck
8 Snyder, Jr., the captain of that fire company.
9 So the jury needs to be charged
10 under both standards, the supervisory standard
11 and the non-supervisory standard, because of
12 that fact.
13 And -- and so -- and again, to
14 make it really clear, my first sentence on page
15 20 should refer to comment by non-supervisory
16 employees or non-supervisory firemen, so the
17 jury knows right up front this is about
18 non-supervisory firemen.
19 And -- and then -- then we will
20 have another -- the other charge will be about
21 supervisory personnel, not just firemen but all
22 the supervisors who I can contend, based on the
23 facts, were involved in causing harm to the
24 plaintiffs in violation of the LAD.
25 So where we part ways, Mr. Bevere
50
1 and I, is on that issue. Obviously, Mr. Bevere
2 has preserved those rights. I understand that.
3 But we still, Your Honor -- I urge the Court to
4 go through -- well, we can finish now going
5 through the non-supervisory section so that's
6 done. We -- Mr. Bevere stopped at a certain
7 point. I think we should go on. And --
8 MR. BEVERE: Or go back.
9 MR. MULLIN: And let me just --
10 let me just add this. Having just reread L.W.,
11 a really interesting point about L.W., given the
12 issues in this case, is that at page 189 NJ 404
13 to 405, in L.W. the court explicitly rejects the
14 deliberate indifference standard as a basis for
15 doing that suit. There the court -- there
16 the -- the Town of Toms River urged that the --
17 they borrow the deliberate indifference standard
18 of the Federal Title 9. And court specifically
19 rejected -- "We reject," they say, the Title 9
20 deliberate indifference standard because it
21 would include that the Lehmann standard should
22 apply in the workplace and the school setting."
23 So it's interesting because there --
24 JUDGE CURRAN: It is.
25 MR. MULLIN: It's very interesting
51
1 passage.
2 JUDGE CURRAN: I forgot that,
3 frankly.
4 MR. MULLIN: Yeah, I did too. And
5 I -- I know Mr. Bevere has preserved on it. So
6 anyway, let's go on to page 22 because
7 apparently --
8 MR. BEVERE: Well, Judge, I'm
9 sorry -- well, all right, we'll do that. And
10 I'll go back because I want to address the
11 deliberate indifference issue. I want to
12 address the deliberate indifference issue.
13 JUDGE CURRAN: Okay. But why
14 don't we not do that right now.
15 MR. MULLIN: Let's get the charge
16 done.
17 MR. BEVERE: Okay.
18 JUDGE CURRAN: Okay. You got
19 that -- it -- right.
20 MR. BEVERE: We'll go on. So
21 anyway, Judge, so that the record is clear, from
22 my perspective, I think the only LAD charge as
23 to employer liability that Your Honor should
24 charge in this case is what I just put on the
25 record, which would start at -- with the
52
1 redactions as we discussed, starting on page 20
2 and ending on page -- the bottom of page 21.
3 And -- because in this case,
4 Judge -- and let me just be clear because I
5 understand that conduct of people other than
6 firemen are involved here. However, the alleged
7 harassment was done by firemen. As far as the
8 non-firemen go, what we're talking about is
9 their failure to address, remediate, which is
10 subsumed within the standard that I have just
11 set forth -- that I have just extracted from
12 Mr. Mullin's charge and set forth.
13 So I think all those employees
14 that we're talking about, Ray Cieciuch, Frank
15 Walters, Anthony Iacono, the Mayor, they're
16 all -- it's all included in that charge. So
17 just so the record is clear, I think that that's
18 all the Court should charge under the LAD.
19 JUDGE CURRAN: Mr. Mullin.
20 MR. MULLIN: Yes, and now we are
21 on page 22. And I think we need to hear
22 specific objections from Defense counsel line by
23 line, paragraph --
24 JUDGE CURRAN: No, no, no, with
25 all due respect, we are still back on 20 and 21
53
1 because they are still arguing that
2 non-supervisory should come out. As I
3 understand your argument, it is non-supervisory
4 and supervisory should be two separate
5 portions --
6 MR. MULLIN: Oh, sure.
7 JUDGE CURRAN: -- of the charge.
8 MR. MULLIN: I am just working on
9 this section of my charge, which has to do --
10 JUDGE CURRAN: But on 20 Mr.
11 Bevere wanted to keep it exactly as it is, the
12 entire page 20, but take out non-supervisory
13 employees or --
14 MR. MULLIN: No, no, that I
15 strenuously object.
16 JUDGE CURRAN: Exactly.
17 MR. MULLIN: That has no basis in
18 law. L.W. lays out not the non-supervisory
19 standard. Lehmann is the supervisory standard.
20 Lehmann did not deal with employee-on-employee
21 conduct.
22 JUDGE CURRAN: It did not.
23 MR. MULLIN: Does deal with
24 equivalent non-supervisory misbehavior. And so
25 we have got to stick to the law here. And I
54
1 happen to know that that's borrowed ultimately
2 from the old EEOC regulations, that that's where
3 that standard comes from. This is a
4 long-standing standard.
5 So this section, in order not to
6 confuse the jury, we need to present the jury
7 with what's the standard concerning
8 non-supervisory firemen, like Kickey and like
9 Mutschler, and what should we do with
10 supervisory employees, like Snyder, Jr. and, one
11 could argue, Snyder, Sr. But that's just for
12 argument, not as a matter of law. So that's --
13 JUDGE CURRAN: Mr. Bevere, again I
14 will note your strong objection on the record.
15 You do not need to repeat your objections.
16 MR. BEVERE: Thank you.
17 JUDGE CURRAN: But I find that
18 there has to be an explanation to the jury in
19 regard to supervisory and an explanation to the
20 jury in regard to non-supervisory. I think it's
21 clear. I will indicate I had forgotten the L.W.
22 reference in regard to Title 9; but clearly,
23 Lehmann is supervisory and clearly, L.W. is not.
24 MR. BEVERE: I understand, Judge;
25 but Lehmann is employer --
55
1 JUDGE CURRAN: I understand it is
2 an -- absolutely.
3 MR. BEVERE: Employment context.
4 And you are talking about a supervisor
5 exercising their authority --
6 JUDGE CURRAN: Absolutely.
7 MR. BEVERE: -- to harass the
8 employee. So I mean, it's a complete -- my
9 position, it's completely different. And when
10 the court discussed deliberate indifference in
11 L.W., what they were saying was the standard
12 they were going to impose was not that upper
13 management had to be deliberately indifferent to
14 the acts of harassment, but that upper
15 management had to know or reasonably know and
16 failed to take effective remedial measures.
17 That's where the deliberate indifference comes
18 in.
19 In other words, what's the mental
20 state that the plaintiff would have to prove to
21 show culpability of the entity? And what L.W.
22 said is we're not going to hold him to a
23 deliberate indifference standard; we are going
24 to hold him to a --
25 JUDGE CURRAN: Knew.
56
1 MR. BEVERE: -- knew or should
2 have known standard. But I don't think that
3 what -- that that provision of L.W. then says
4 that there should be a different standard when
5 you're talking about by virtue of the fact that
6 one who happened to be a supervisor engaged
7 in -- may have or is alleged to have engaged in
8 harassment of a person who is not an employee.
9 And that's -- that's my problem with -- with
10 interjecting the entire Lehmann standard into
11 here, because Lehmann talked about harassment of
12 employees in the workplace. They did but --
13 MR. MULLIN: That's water under
14 the bridge. You have ruled on that.
15 JUDGE CURRAN: Yeah.
16 MR. BEVERE: Judge, I don't think
17 that Your Honor did rule. What Your Honor said
18 was that the LAD was going to apply. Your
19 Honor -- Your Honor said -- and I know that Your
20 Honor mentioned Lehmann in her decision, but you
21 certainly didn't say that all three prongs of
22 Lehmann were going to apply. In other words,
23 supervisory charge, the negligent, harassment
24 policy charge.
25 Because, once again, in the
57
1 harassment policy situation, that -- that goes
2 to employee-on-employee harassment and does the
3 employer have an enforceable and well publicized
4 sexual harassment policy and complaint
5 procedure, which would be relevant if
6 Mr. deVries and Mr. Carter were employees of the
7 Fire Department and were sexually harassed in a
8 department. But it's -- but it's not that.
9 And when we're talking about --
10 about cases where the alleged harassee is not an
11 employee, then only that one standard under
12 Lehmann should be charged, which is did the Town
13 know about it or should they have known about it
14 and did they fail to take effective remedial
15 measures? Because we're talking about public
16 accommodation. We're not talking about
17 employment. We're not talking about the -- the
18 supervisor having control over the harassee. So
19 that's my argument for the record.
20 JUDGE CURRAN: Mr. Mullin.
21 MR. MULLIN: So then, Your Honor,
22 again --
23 JUDGE CURRAN: You don't want to
24 address the --
25 MR. MULLIN: I just want to
58
1 fine-tune the language as we go through.
2 JUDGE CURRAN: No, but what I'm
3 going to do is, just for that objection,
4 certainly, Mr. Bevere, finding that the LAD
5 standard applies is the first step, you know,
6 into the ocean, you know. Certainly virtually
7 all wet here, perhaps you might think. But you
8 know, to me they -- there are -- just having
9 made that decision -- and I put all that
10 information on the record -- the logic compels
11 me to say no, the standards have to apply, even
12 though I understand it's not employment and even
13 though I understand that, you know, to use your
14 example, the fact that there was or wasn't a
15 policy in regard to discrimination, in my mind
16 does not distinguish the Lehmann holdings
17 because Mr. deVries wasn't an employee of the
18 Town. The standards have to be promulgated, as
19 I understand Lehmann, in part, by those in
20 charge of making sure that fairness prevails to
21 employees, fellow students, people in the Town,
22 whatever. And again, I'll note -- I know your
23 objection is well documented.
24 MR. BEVERE: Thank you.
25 JUDGE CURRAN: So we are going to
59
1 go on to fine-tuning the language.
2 MR. MULLIN: I am just going to
3 fine-tune the language because there is
4 concession about --
5 JUDGE CURRAN: So on page 20 there
6 will be no --
7 MR. MULLIN: Page 20 we might need
8 some because we say -- first of all, I want to
9 say, "The Town of Secaucus should be held liable
10 for sexually harassing conduct by
11 non-supervisory employees or non" -- I want to
12 insert that word "firemen" -- "only if, one, the
13 Town of Secaucus' upper management level
14 employees knew or in the exercise of reasonable
15 care should have known about the harassment and,
16 two, the Town of Secaucus' upper management
17 failed to take" -- et cetera. And then Your
18 Honor is going to put in those, "By upper
19 managers I mean"; and the Court will then set
20 forth that paragraph.
21 JUDGE CURRAN: May I just ask,
22 that is going to be done with your reading of
23 Tracey's -- normally on charges I do all this.
24 MR. MULLIN: Sure. No, I will be
25 happy to put this in. I will get Tracey's
60
1 transcript.
2 JUDGE CURRAN: Thank you.
3 MR. MULLIN: I'll fix it up.
4 JUDGE CURRAN: That's where the
5 upper management --
6 MR. MULLIN: Yes.
7 JUDGE CURRAN: -- list of titles
8 goes. And we have already agreed --
9 MR. MULLIN: Right.
10 JUDGE CURRAN: -- on the titles.
11 MR. MULLIN: Yes, we have. Then
12 we go on, then, as the first element whether --
13 let's keep going -- the upper management of the
14 Town of Secaucus knew or reasonably knew.
15 Plaintiff contends that --
16 MR. BEVERE: Town of Secaucus --
17 say that again. I'm sorry.
18 MR. MULLIN: Whether the upper
19 management -- as to the first element, whether
20 the upper management of the Town of Secaucus
21 knew or reasonably knew. Plaintiff contends
22 that upper management of the Town of Secaucus
23 were aware of harassment. And I go on with all
24 that.
25 MR. BEVERE: Are we on page 20?
61
1 MR. MULLIN: Twenty. We are
2 working through page 20.
3 MR. BEVERE: All right. So as to
4 the first element, "Whether the upper management
5 of the Town of Secaucus knew or reasonably
6 should have known of the harassment. Plaintiffs
7 contend that the Town supervisors were aware of
8 harassment by firemen because, one, they
9 verbally complained to them, two, because they
10 actually saw and heard the harassment, three,
11 because some of them actually participated" --
12 well, Judge, here -- I -- I -- now that we
13 have -- now that we have had some discussion on
14 the issue, Judge, I just want to raise one issue
15 with regard to the language because if you were
16 inclined to give a supervisor charge to the
17 plaintiffs --
18 MR. MULLIN: I can short-circuit
19 this. Say, "Plaintiffs contend that" -- just
20 end it after, "Plaintiffs contend the
21 supervisors were aware of the harassment by the
22 non-supervisory firemen."
23 MR. BEVERE: Then, "The Town
24 denies" --
25 MR. MULLIN: Then, "The Town of
62
1 Secaucus denies it knew or should have known."
2 JUDGE CURRAN: I think that
3 certainly short-circuits it. Still accurate.
4 MR. BEVERE: I think it's fairer.
5 JUDGE CURRAN: I do too.
6 MR. BEVERE: Fairer. I'm not
7 saying --
8 JUDGE CURRAN: Got it.
9 MR. MULLIN: Then we can leave out
10 the one, two, three.
11 JUDGE CURRAN: Right.
12 MR. MULLIN: "The Town denies it
13 knew or should have known of sexual orientation
14 harassment by non-supervisory firemen."
15 JUDGE CURRAN: Right.
16 MR. BEVERE: Okay.
17 MR. MULLIN: Then go on to the
18 next sentence, which I don't think there was an
19 objection because it's just an introductory
20 sentence.
21 JUDGE CURRAN: Right.
22 MR. BEVERE: No sexually harassing
23 conduct -- I guess we are going to do is say,
24 "by non-supervisory," right, "employees or
25 firemen"? Is that what we are saying, Judge?
63
1 MR. MULLIN: This is the
2 non-supervisory section.
3 MR. BEVERE: I think supervisory,
4 Judge, has to be upper management in that first
5 paragraph there.
6 MR. MULLIN: No, page 21.
7 MR. BEVERE: Yeah.
8 MR. MULLIN: Page 21 is premised
9 upon the idea that the jury will have been
10 charged the supervisory section. It says -- and
11 it's a pro-defense statement -- "If you find by
12 the preponderance of the evidence there is no
13 sexually harassment conduct by supervisory or
14 non-supervisory employees or firemen, you must
15 return a verdict for Town of Secaucus." In
16 other words, if there was no sexual harassment,
17 I lose. That's just saying the obvious. "If
18 you find there was sexually harassing conduct as
19 discussed above, you must consider, as I've" --
20 whether -- now, this is whether Secaucus upper
21 managers --
22 MR. BEVERE: That's what I was
23 saying, Judge, I think it should say, "upper
24 management."
25 MR. MULLIN: No objection.
64
1 JUDGE CURRAN: Okay.
2 MR. BEVERE: Because now that
3 we're distinguishing between the two.
4 JUDGE CURRAN: Right, exactly.
5 MR. MULLIN: Then it says, "If you
6 find by preponderance of the evidence that
7 Secaucus upper managers did know of such
8 harassment by non-supervisory firemen or
9 employees, should not reason" -- "and should not
10 reasonably have known of such conduct, then you
11 must return a verdict in favor of the Town of
12 Secaucus on the issue of Town liability for the
13 actions of non-supervisory firemen," period.
14 Because that's all we're talking about here,
15 whether the Town is liable for the action of
16 non-super -- "If you find however there was
17 sexual harassment and that Secaucus" -- "and
18 that" --
19 MR. BEVERE: "Secaucus."
20 MR. MULLIN: -- "upper managers
21 knew or reasonably should have known that sexual
22 harassment was occurring, then you must consider
23 whether the Town of Secaucus took reasonable
24 steps to prevent, stop or otherwise provide a
25 remedy of such harassment." Now we are in the
65
1 L.W. standard.
2 The next sentence is, "In
3 determining whether the Town of Secaucus took
4 prompt and effective remedial measures to
5 prevent, stop, otherwise remedy the sexual
6 orientation harassment by non-supervisory
7 firemen alleged in this case, you should
8 consider, one, the response of Secaucus to
9 Plaintiffs' alleged complaints of sexual
10 orientation harassment, verbal or written, two,
11 the response of Secaucus to any sexual
12 orientation harassment related to Plaintiffs'
13 claim that Town supervisors subpoena your" --
14 this may be too detailed.
15 MR. BEVERE: Yeah, Judge, I think
16 that what we should do is -- and really --
17 MR. MULLIN: I think we can skip
18 all the way down.
19 MR. BEVERE: Then I think -- I
20 think that what we -- maybe what we could do
21 is --
22 MR. MULLIN: I think we can skip
23 down from page 21 to, "determining whether the
24 Town of Secaucus took prompt and effective
25 remedial measures to prevent, stop, otherwise
66
1 remedy the sexual orientation harassment by
2 non-supervisory firemen alleged in this case,
3 you can" -- "you should consider whether the
4 Town promptly and effectively investigated,"
5 period. So that jumps all the way down to last
6 paragraph on page 22.
7 JUDGE CURRAN: That seems to me to
8 cover it without --
9 MR. BEVERE: Well -- but I guess,
10 Judge, I was confused what the proposed
11 modification was, I'm sorry. "In determining
12 whether the Town of Secaucus took prompt and
13 effective remedial measures to prevent, stop,
14 other otherwise remedy the sexual orientation
15 harassment by non-supervisory firemen alleged in
16 this case, you should consider, one, the
17 response of Secaucus to Plaintiffs' alleged
18 complaints of sexual orientation harassment,
19 verbal or written, the response of Secaucus to
20 any sexual orientation harassment related to
21 Plaintiffs' claims."
22 JUDGE CURRAN: Do you want all
23 that in, you're arguing? Because Mr. Mullin is
24 arguing take it out, correct?
25 MR. MULLIN: I'm saying take it
67
1 out because it sounds like the kind of facts
2 counsel argued in front of a jury.
3 JUDGE CURRAN: Exactly.
4 MR. MULLIN: We don't have to --
5 JUDGE CURRAN: And it would
6 basically read, then, you should consider
7 whether -- maybe some modification -- whether or
8 not the Town of Secaucus promptly and
9 effectively investigated --
10 MR. MULLIN: Investigated.
11 JUDGE CURRAN: -- the matter.
12 MR. MULLIN: Investigated claims
13 of sexual orientation.
14 JUDGE CURRAN: The claims of,
15 okay.
16 MR. BEVERE: I -- I -- maybe I
17 could propose something else, Judge, now that
18 we're looking at it.
19 JUDGE CURRAN: Okay.
20 MR. BEVERE: And we're looking --
21 I -- I know I keep jumping back to the model
22 charge. Let me just read what the model charge
23 says. Can I read it to the Court?
24 JUDGE CURRAN: I have -- just tell
25 me the number.
68
1 MR. BEVERE: 2.25.
2 JUDGE CURRAN: I got it, right.
3 MR. BEVERE: It's page 11 to 15.
4 JUDGE CURRAN: Got it.
5 MR. BEVERE: It's Subsection A.
6 JUDGE CURRAN: Right, I got it.
7 MR. BEVERE: All right.
8 Obviously, we don't need first sentence because
9 we have already addressed that. All right.
10 "Effective remedial actions are those reasonably
11 calculated to end the harassment.
12 Reasonableness of employer's response must be
13 judged by his ability to stop harassment by the
14 person who engaged in the harassment."
15 JUDGE CURRAN: So what you're
16 saying is on page 21 we'll do what has been
17 suggested? You should consider one will be out,
18 two will be out and three will be out and it
19 will read, "whether or not the Town of Secaucus
20 promptly and effectively investigated the claims
21 of sexual orientation harassment by the
22 plaintiffs," period, then go to 2.25a,
23 "Effective remedial actions"; is that what you
24 are --
25 MR. BEVERE: No, Judge, what I'm
69
1 saying we should do is we should say the first
2 sentence -- it should read as follows: In
3 determining whether the Town of Secaucus took
4 prompt and effective remedial measures to
5 prevent, stop or otherwise remedy the sexual
6 orientation harassment by non-supervisory
7 employees.
8 MR. MULLIN: Firemen.
9 JUDGE CURRAN: Firemen.
10 MR. BEVERE: I'm sorry, by
11 non-supervisory firemen alleged in this case --
12 well, you know --
13 JUDGE CURRAN: You got to have
14 that other part of the sentence because --
15 MR. BEVERE: Otherwise --
16 otherwise, the response -- well --
17 MR. MULLIN: We could start -- his
18 passage is actually more general than
19 investigation. It embraces everything, so we
20 could start with that. We could start with the
21 A thing, which is You should consider -- you
22 should consider whether the Town of Secaucus
23 took -- now I'm jumping to A -- effective
24 remedial actions reasonably calculated to end
25 the harassment.
70
1 MR. BEVERE: Right.
2 MR. MULLIN: Reasonableness of the
3 Town's response must be judged by its ability to
4 stop the person who engaged in the harassment.
5 I would say --
6 MR. BEVERE: Period.
7 MR. MULLIN: I would say, "to
8 prevent or end the harassment."
9 MR. BEVERE: As opposed to "stop
10 harassment"?
11 JUDGE CURRAN: Right.
12 MR. MULLIN: To prevent -- yeah,
13 to stop -- it has to be prevent or stop.
14 Effective -- to prevent or stop it. And then it
15 should be, "Effective remedial actions are those
16 reasonably calculated to prevent or end
17 harassment. Reasonableness of an employer's
18 response must be judged by its ability to
19 prevent or stop harassment by the person who" --
20 MR. BEVERE: Engaged in the
21 harassment.
22 JUDGE CURRAN: Person or persons.
23 MR. MULLIN: Who is or will be.
24 MR. BEVERE: Well, Judge, I
25 think -- I think it's who was engaged in the
71
1 harassment because you are talking about who
2 will be -- if Your Honor is inclined to charge
3 the straight negligence prong of Lehmann under
4 policies, procedures, I think that that comes in
5 there, what somebody will do in the future.
6 JUDGE CURRAN: Well, then we can
7 say "person/s who" -- "person/s engaging in the
8 harassment."
9 MR. BEVERE: Well, I think you go
10 with the charge, but the model charge as to who
11 engaged in the harassment.
12 JUDGE CURRAN: I understand. I
13 got the model charge, but --
14 MR. BEVERE: And Your Honor is
15 saying who is engaging in the harassment?
16 JUDGE CURRAN: Well, that's one
17 way to look at it because we have a number of
18 things here. If you want to leave it, "who
19 engaged in the harassment," I think that's also
20 fair.
21 MR. MULLIN: Well, what this is
22 leaving out -- suppose you have the coemployee.
23 And let's take the workplace. So the coemployee
24 is throwing used, dirty condoms onto the -- onto
25 the co-employee's desk. The employer knows
72
1 about it and does nothing to stop it. Then the
2 employee who is throwing the dirty condoms
3 escalates and now engages in a touching
4 incident, something of that nature. Well,
5 that's under this standard that we're dealing.
6 So it's not just stopping known harassment; it's
7 also preventing harassment that's reasonably
8 foreseeable.
9 So that's what I'm trying to
10 capture by talking about prevent or stop. And
11 the person who is or -- or might be or might --
12 might reasonably be or might foreseeably be
13 engaged in harassment.
14 JUDGE CURRAN: Which is why I was
15 trying to cover both with using the word
16 "engaging."
17 MR. MULLIN: "Engaging" is fine
18 with me too.
19 JUDGE CURRAN: I think it's -- do
20 you want to argue against it, Mr. Bevere?
21 MR. BEVERE: Well, I mean --
22 JUDGE CURRAN: I mean, frankly, as
23 long -- if you agree to "ability to prevent or
24 stop," you're not sticking just with the past
25 tense. And if you don't stick with the past
73
1 tense, then "engaged" is really not a proper
2 verb. "Engaging," I think, is -- is the proper
3 word because it covers both. I'll note your
4 objection.
5 MR. BEVERE: Yes.
6 JUDGE CURRAN: We're going to go
7 with "engaging."
8 MR. BEVERE: Frankly, Judge, I
9 think that's where it should end. I think
10 that's where it should end. I don't think we
11 should have anything else under the
12 non-supervisory.
13 MR. MULLIN: I disagree with that.
14 I think I can make some concession in that
15 direction, but I think the -- I want to go to
16 number 22, which comes out of the Payton case,
17 Supreme Court of New Jersey. That's very
18 important. And it's the third paragraph, page
19 22. The law requires that a Town promptly and
20 effectively investigate a Town -- a Town
21 resident's, I would say, claims of sexual
22 orientation harassment, I would say, by Town
23 non-supervisory firemen.
24 This is borrowed right out of
25 Payton. It goes on, the timeliness and
74
1 thoroughness of a Town's complaints of sexual
2 orientation and harassment is an important
3 element in determining the effectiveness of an
4 antiharassment program.
5 This is all from Lehmann.
6 The slow response may be
7 perceived as a reluctant response and call into
8 question the bona fides of a Town's
9 antiharassment program. Similarly, an
10 investigation, though timely instituted, may be
11 pursued halfheartedly and unduly prolonged. On
12 the other hand, a timely, vigorously pursued
13 inquiry that corroborates the victim's
14 allegations will not comply with the LAD if the
15 Town drags its feet on the corroborative
16 evidence.
17 This is all from Payton. And I
18 put the cite --
19 MR. PARIS: Can I just have the
20 page number, please?
21 MR. MULLIN: 148 NJ 524 at 537.
22 MR. PARIS: 537.
23 MR. MULLIN: They were quoting
24 Appellate Division at 292 NJ Super at 47.
25 And all that follows after that
75
1 because that's -- that's been a big part of this
2 case, the investigation. We're now told in
3 testimony that Town counsel and the Town leaders
4 relied on the police investigation, they say, in
5 determining to take no disciplinary action
6 against these firemen. That's been the
7 testimony of Leanza and the testimony of Iacono.
8 So the jury needs some guidance on how to size
9 up an investigative effort.
10 MR. BEVERE: Judge, in Payton
11 we're talking about an investigation of an
12 employee's complaint against a supervisor or
13 coemployee. Here we're talking about a criminal
14 investigation.
15 MR. MULLIN: Unfortunately, the
16 Town relied on that criminal investigation for
17 deciding not to take civil, administrative
18 action. That was Mr. Leanza's testimony.
19 MR. BEVERE: It was, Judge. And
20 the reason was because there was a pending
21 criminal investigation.
22 MR. MULLIN: No, no.
23 MR. BEVERE: And -- and number one
24 -- number one, Mr. Leanza giving the Town the
25 advice while there is a pending criminal
76
1 investigation, there will be no administrative
2 investigation. The same thing that Chief
3 Corcoran said when he testified.
4 JUDGE CURRAN: That's very true.
5 But the facts or the evidence put on the record,
6 jury decides the facts. The evidence here says
7 that very night -- and that was even raised with
8 Mr. Leanza. That very night nobody talked to
9 Mrs. Dee Bardini.
10 MR. MULLIN: Dee Bardini.
11 JUDGE CURRAN: Dee Bardini.
12 Nobody called during the next day. Again, these
13 are plaintiffs' allegations. Nobody looked
14 around for shell casings. Nobody asked, "Could
15 there be a voice I.D.?" I understand we're not
16 really getting into the details of the voice
17 I.D. Nobody made an effort, if you will, to try
18 to find out could the plaintiffs really identify
19 the perpetrators?
20 As I remember the testimony in
21 the beginning, when you had Mr. Carter and
22 Mr. deVries, we had -- we have those police
23 reports; but Mr. Carter kept saying, you know,
24 yeah, I said -- and that's what the reports say,
25 "can identify" or whatever. And he signed it.
77
1 But what he basically testified to was, "This is
2 not" -- "This was not a question and answer
3 verbatim report of what I said. And they asked
4 me did I see their faces?" I could be wrong,
5 and --
6 MR. MULLIN: Yes.
7 JUDGE CURRAN: -- I don't have my
8 notes out here. "But they asked could I see
9 their faces? And I said no because it was just
10 their fingers coming over the top of the fence.
11 But nobody" -- but that was translated in the
12 police reports to they couldn't identify them.
13 Again, I'm not saying that the
14 allegations are true or not true. But my job
15 here partially is to say is there a factual
16 basis to include whichever side wants to include
17 something; and it seems to me that there is a
18 factual basis to -- to include this.
19 MR. MULLIN: Let me --
20 JUDGE CURRAN: I'm sorry,
21 Mr. Mullin.
22 MR. MULLIN: No, I want to add
23 something else too. Yesterday Mr. Leanza said
24 after he learned the Attorney General ended
25 their investigation in July of '05, then he
78
1 turned to the question of --
2 JUDGE CURRAN: Right.
3 MR. MULLIN: -- whether they
4 should proceed civilly to terminate people. And
5 he said he relied on the police investigation,
6 the fact that the Hudson County Prosecutor
7 wouldn't proceed and the Attorney General's
8 failure to identify. Based on that we
9 determined it would be extremely unlikely that
10 we would ever succeed in an administrative
11 hearing.
12 He used the police investigation
13 as the civil investigation. So, of course, the
14 jury needs some guidance on how to evaluate the
15 investigative effort.
16 JUDGE CURRAN: I will note your
17 objection, Mr. Bevere; but I think this has to
18 go in. I haven't -- I will say I haven't -- I
19 have Payton right here, but I am taking
20 Mr. Mullin's word for it that this is right out
21 of Payton. But it's certainly out of the spirit
22 of Payton.
23 MR. MULLIN: We can certainly pull
24 Payton up, I suppose.
25 JUDGE CURRAN: I have it.
79
1 MR. BEVERE: Judge, I know -- I
2 know the kind of case that Payton is.
3 JUDGE CURRAN: You're right;
4 different kind of case.
5 MR. BEVERE: In Payton we were not
6 dealing with an employee being raped in the
7 workplace.
8 JUDGE CURRAN: I understand.
9 MR. BEVERE: But Judge, if -- if
10 Your Honor is inclined -- so I'm assuming now
11 that paragraph one and two on page 22 are out;
12 we're not charging those?
13 MR. MULLIN: Yes, I -- I have
14 taken them out.
15 JUDGE CURRAN: Mr. Mullin
16 indicated that.
17 MR. BEVERE: So now, going to the
18 final paragraph, if I understand Your Honor's
19 ruling, that she is going to charge all or some
20 portion of paragraph three?
21 JUDGE CURRAN: Under Payton.
22 MR. BEVERE: Under Payton. I
23 would -- I would ask that the following word be
24 included. The law requires that a Town promptly
25 and effectively, I would say, instead -- instead
80
1 of "investigative," I would say "respond" to a
2 Town.
3 JUDGE CURRAN: I knew you were
4 going to say that. I just wrote down the word
5 "respond." This is scary.
6 MR. PARIS: Hopefully you like
7 that word, Judge. Writing it down is one thing.
8 Ruling on it is another.
9 JUDGE CURRAN: Mr. Mullin.
10 MR. MULLIN: Well, in that passage
11 I --
12 JUDGE CURRAN: I think it's a
13 fair --
14 MR. MULLIN: I don't have an
15 objection to it.
16 JUDGE CURRAN: Thank you. Because
17 they did certainly respond.
18 MR. BEVERE: Respond to a Town
19 resident's claim --
20 JUDGE CURRAN: Okay.
21 MR. BEVERE: -- sexual
22 orientation.
23 MR. MULLIN: But there is -- there
24 are -- there is stuff in there about
25 investigation that I think we should leave in.
81
1 That goes --
2 JUDGE CURRAN: Oh, yeah, I just
3 took that as the first request in the first
4 sentence. I don't think investigation always
5 becomes respond because that --
6 MR. MULLIN: No, respond is
7 broader than investigation.
8 JUDGE CURRAN: Right. Anything
9 else?
10 MR. BEVERE: Well, I mean, I --
11 obviously, I have an objection to the entire
12 paragraph. But since we have been moving
13 along --
14 MR. MULLIN: Your Honor, I'm
15 eventually going to go through the same process
16 when they do their Monell charge. I think that
17 we all understand here I object to any Monell
18 charge be given; I am not going to repeat it ad
19 nauseam in that conference.
20 JUDGE CURRAN: I will note
21 Mr. Paris' objection to the ad nauseam --
22 MR. MULLIN: Right.
23 JUDGE CURRAN: --
24 characterization, but let's just move on.
25 MR. MULLIN: It wasn't meant
82
1 personally.
2 JUDGE CURRAN: No.
3 MR. BEVERE: Listen, Judge, it --
4 it goes beyond just simply the fact that I -- I
5 disagree that the legal standard applies. I
6 mean, you know, my -- my objection to it is that
7 if you look at the model charge, I mean, it
8 really ends after -- the model charge in the
9 failure to take remedial action, it's a
10 two-paragraph charge.
11 MR. MULLIN: Where is Payton
12 mentioned in the model charge?
13 JUDGE CURRAN: It is not.
14 MR. MULLIN: It's not there.
15 Payton is a Supreme Court NJ decision.
16 JUDGE CURRAN: Right. Especially
17 because it's a Supreme Court case, it is not
18 unusual to add wording directly out of a case.
19 Now, granted, most of the time there is a
20 reference footnote to that case. But I don't --
21 I don't see any reason not to include it,
22 especially because if it was a trial level case,
23 I would say, you know, probably not. But it's a
24 Supreme Court case. I am just looking up the
25 date to see if I can comment on how many of the
83
1 present justices are still there. But I won't
2 do that.
3 Any other specific requests on
4 that paragraph?
5 MR. BEVERE: Let me look at what I
6 marked up, what I had on Mr. Mullin's version.
7 JUDGE CURRAN: Oh, you're lucky,
8 Mr. Bevere; it's a '97 case. So, you know, you
9 may have some real arguments up there.
10 MR. MULLIN: May have a shot.
11 JUDGE CURRAN: Yep.
12 MR. MULLIN: The good news is I
13 think I am going to pull out my whole
14 retaliation charge. I just want to give us hope
15 that we can actually finish this process this
16 month.
17 MR. BEVERE: I consent to that
18 right now on the record.
19 JUDGE CURRAN: Your burden of
20 proof is going to shift.
21 MR. BEVERE: Judge, I consent to
22 that immediately.
23 MR. MULLIN: Trying to give
24 incentive here.
25 JUDGE CURRAN: Got it.
84
1 MR. MULLIN: I just want to say
2 for the record I believe there is retaliation in
3 the case; but on the other hand, all the acts
4 that are retaliation also are harassment and
5 discrimination. There is no need to double
6 charge the jury and confuse them. So I am going
7 to withdraw the whole retaliation charge.
8 JUDGE CURRAN: Mr. Paris, please
9 join in the agreement on this, so that we have
10 one unanimous decision on the charges.
11 MR. PARIS: Absolutely. In
12 fact --
13 JUDGE CURRAN: Got it.
14 MR. PARIS: -- we can probably
15 call Miss Smith.
16 JUDGE CURRAN: I knew you were a
17 gentleman and a scholar.
18 Okay. So we are now on --
19 MR. MULLIN: That brings us to the
20 end.
21 MR. BEVERE: Judge, the law
22 requires a Town promptly and effectively respond
23 to a Town resident's claim of sexual orientation
24 harassment, period. Timeliness and thoroughness
25 of a Town's complaints of sexual orientation
85
1 harassment is an important element in
2 determining the effectiveness of an
3 antiharassment program. I think it should be
4 period, end of paragraph there.
5 MR. MULLIN: What page are you on
6 there?
7 JUDGE CURRAN: Page 22, the middle
8 of the last paragraph.
9 MR. MULLIN: I think if Defendants
10 have an issue with some of this language, I
11 don't object to the Court putting in balancing
12 language about the defendant's denials in this
13 regard or Defendant's claim in this regard. But
14 this is -- this is out of -- this is out of
15 Payton. This is important stuff about how do
16 you evaluate an antiharassment program, how do
17 you evaluate training, how do you evaluate
18 investigation, how is the jury to evaluate this
19 stuff. Payton was a seminal decision on that.
20 And all this stuff is -- is essential.
21 JUDGE CURRAN: I think it's -- I
22 think it's important. It is right out of
23 Payton. Payton you have got a governmental
24 entity involved. Granted, it's significantly
25 different. I'm going to leave it. I'll note
86
1 your objection.
2 MR. BEVERE: Judge, can we add a
3 sentence, then?
4 JUDGE CURRAN: Surely. Right
5 after?
6 MR. BEVERE: The Town contends --
7 MR. MULLIN: Where are you adding
8 it?
9 JUDGE CURRAN: After, "evidence."
10 MR. MULLIN: The top of?
11 MR. BEVERE: Page 23.
12 JUDGE CURRAN: Town of Secaucus
13 contends?
14 MR. BEVERE: That it acted
15 appropriately under all the circumstances.
16 JUDGE CURRAN: Do you want to say
17 responded, to go back to the first?
18 MR. BEVERE: Yeah.
19 JUDGE CURRAN: Responded
20 appropriately?
21 MR. BEVERE: Under all the
22 circumstances.
23 MR. MULLIN: No objection.
24 JUDGE CURRAN: I think that's a
25 fair sentence. Thank you.
87
1 MR. BEVERE: And Judge, I think
2 the next paragraph is -- I think it's really
3 prejudicial. I mean, I really do.
4 MR. MULLIN: Can counsel propose
5 alternative language for the principles in
6 Payton at page 538 that are there?
7 MR. BEVERE: Judge.
8 MR. PARIS: Your Honor, I will
9 just pick this up, if I may. I don't think
10 those principles apply in this case, if the
11 Attorney General was still involved -- took over
12 the investigation and was continuing with the
13 investigation until after the plaintiffs moved.
14 So how could they say that a -- an unduly
15 lengthy process, which was prolonged for over a
16 year after the incident by the Attorney General,
17 during which time the plaintiffs moved that
18 somehow the Town prolonged their living under
19 those circumstances?
20 MR. MULLIN: No, this is --
21 MR. PARIS: Or not taking --
22 excuse me, not taking action while the Attorney
23 General investigation was going forward? I
24 mean -- in other words, those principles don't
25 apply to this case.
88
1 MR. MULLIN: These principles
2 apply exactly to the case. Let me read the
3 sentence. "Remedial scheme that reaches the
4 correct result through a process that is unduly
5 prolonged or unnecessarily and unreasonably
6 leaves Town resident exposed to continued
7 hostility in living environment is an
8 ineffective remedial schedule" -- "scheme."
9 JUDGE CURRAN: Scheme.
10 MR. MULLIN: Now, that's exactly
11 what we had here. The Town had a remedial
12 scheme, which went like this. We are going to
13 do nothing to protect you. We're going to do --
14 let me not state it that way. We are not going
15 to shut down the social wing of the firehouse
16 for more than five days. Then we are going to
17 reopen it and leave you there with these guys
18 that attacked you right next door, right under
19 your window. And we are going to do this while
20 the Attorney General handles this case for God
21 knows how long. And we're -- we're just not
22 going to take any steps reasonable -- we are not
23 going to disperse these firemen to other
24 companies. We are not going to do all the kinds
25 of things we can do, short of suspension and
89
1 termination. And -- and even in the five-day
2 window from when these -- Secaucus investigation
3 ended on May 5th, to when the State Police
4 action started on May 10th, they were not going
5 to terminate anybody or suspend anybody.
6 And that's -- that's exactly
7 been -- that's -- we have gone back and forth in
8 this trial many times on those issues. This was
9 a remedial scheme that left the plaintiffs
10 exposed to continued hostility in the living
11 environment. It's just like if you have a
12 crude -- an allegation of very crude harassment
13 in the workplace and pending the investigation
14 the employer doesn't at least remove the alleged
15 harasser or -- or remove the victim.
16 JUDGE CURRAN: One or the other.
17 MR. MULLIN: And that's --
18 JUDGE CURRAN: Separate.
19 MR. MULLIN: Separate them in
20 order -- in case the investigation should
21 ultimately show, my God, the guy actually did
22 it.
23 MR. PARIS: But Your Honor --
24 MR. MULLIN: And that's done all
25 the time under Lehmann.
90
1 MR. PARIS: I understand the
2 argument, but look at the language. "Such a
3 process, in reality, indirectly punishes
4 residents with the courage to" --
5 JUDGE CURRAN: I already crossed
6 out, "the courage to" and made it, "who."
7 MR. PARIS: And the second
8 sentence, as well.
9 MR. MULLIN: You mean the third
10 sentence?
11 MR. PARIS: Third sentence, I'm
12 sorry.
13 MR. BEVERE: You have crossed out
14 that sentence, Judge?
15 JUDGE CURRAN: No, I just crossed
16 out, "with the courage to."
17 MR. PARIS: But -- but even the
18 third sentence, "Indeed, such a scheme can only
19 be viewed" -- "can be viewed only as an attempt
20 by the Town to discourage residents from coming
21 forward."
22 JUDGE CURRAN: I think we can go
23 through -- if we leave in the first sentence, if
24 we make the second sentence exactly what it is,
25 except it would read, "indirectly punishes
91
1 residents who complain," the rest of it --
2 MR. PARIS: That's the retaliation
3 part that's been taken out of the charge now.
4 MR. MULLIN: No.
5 MR. PARIS: When you say it
6 punishes someone who complains, that's
7 retaliation. And if you look at the third
8 sentence --
9 JUDGE CURRAN: That's a fair
10 argument.
11 MR. MULLIN: I don't mind taking
12 out the second and third sentence of that
13 paragraph.
14 JUDGE CURRAN: Okay. Why don't we
15 do that. Next paragraph.
16 MR. BEVERE: Judge, I -- I would
17 say as follows.
18 MR. PARIS: Have to take --
19 MR. BEVERE: Well, I am going to
20 propose this with regard to this paragraph.
21 Plaintiffs contend that the investigation
22 conducted by the -- I think -- I think it has to
23 be Secaucus -- I would propose, "Plaintiffs
24 contend the investigation conducted by the Town
25 of Secaucus" --
92
1 MR. MULLIN: Agreed.
2 MR. BEVERE: -- "was inadequate."
3 MR. MULLIN: Agreed.
4 JUDGE CURRAN: Exactly, thank you.
5 MR. MULLIN: I would also say we
6 can leave out retaliation. Says it was
7 conducted -- exposed them to continued
8 harassment.
9 MR. BEVERE: Well, Judge, can I --
10 let me just finish what I was proposing.
11 Plaintiffs contend that the investigation
12 conducted by the Town of Secaucus was
13 inadequate. Okay. And then take out starting
14 with, "that it was conducted" down to where it
15 says, "reasonable under the circumstances."
16 So I would say, "Plaintiffs
17 contend the investigation conducted by the Town
18 of Secaucus was inadequate and that the Town of
19 Secaucus acted unreasonably in failing to punish
20 anyone for the acts of harassment."
21 And then what I would say, "The
22 Town of Secaucus denies that its investigation
23 was inadequate or that it acted unreasonably by
24 failing to punish anyone" -- by -- by -- by --
25 okay -- "by not taking administrative action."
93
1 JUDGE CURRAN: I believe that
2 seems fair to me.
3 MR. MULLIN: I would just add
4 that -- that the Town of Secaucus acted
5 unreasonably in failing to adequately protect
6 them pending the investigation and to punish the
7 perpetrators or the alleged perpetrators of the
8 sexual harassment --
9 JUDGE CURRAN: Wouldn't it be,
10 "and in failing to punish"?
11 MR. MULLIN: Yes.
12 MR. BEVERE: Judge, maybe instead
13 of "punish," maybe we can say, "failing to take
14 administrative action"?
15 JUDGE CURRAN: Yes.
16 MR. BEVERE: So we can say,
17 "Plaintiffs contend the investigation conducted
18 by the Town of Secaucus was inadequate and that
19 the Town of Secaucus acted unreasonably by
20 failing to take" --
21 JUDGE CURRAN: Administrative.
22 MR. BEVERE: -- "administrative
23 action. The Town of Secaucus denies that its
24 investigation was inadequate or that it acted
25 unreasonably by failing to take administrative
94
1 action."
2 JUDGE CURRAN: I think it should
3 say, "appropriate administrative action."
4 MR. BEVERE: Right, appropriate
5 administrative action. I stand corrected. I
6 think that that would be more fair.
7 JUDGE CURRAN: Thank's fair. Then
8 we don't have to get into the was Snyder fired
9 or not fired.
10 MR. MULLIN: That's right, the
11 metaphysical issue.
12 JUDGE CURRAN: Is not fired the
13 same -- excuse me one second. Could we go off
14 the record for a moment?
15 (Whereupon, a discussion is held
16 off the record.)
17 JUDGE CURRAN: So we're going to
18 continue, then. I believe we're on page 23.
19 MR. BEVERE: Judge, the last
20 paragraph --
21 JUDGE CURRAN: Yes.
22 MR. BEVERE: -- of 23, I would
23 propose, "If you find that the defendant's
24 response to Plaintiffs' complaints was
25 reasonable under all the circumstances, then you
95
1 must return a verdict for the Town of Secaucus
2 with regard to Plaintiffs' claims concerning
3 non-supervisory firemen."
4 MR. MULLIN: No objection.
5 JUDGE CURRAN: Thank you.
6 MR. MULLIN: That's the very
7 last -- where does that go?
8 MR. BEVERE: The last paragraph.
9 JUDGE CURRAN: Last paragraph.
10 MR. BEVERE: Bottom of page 23.
11 JUDGE CURRAN: So you're taking
12 out "prompt and adequate"?
13 MR. BEVERE: Correct.
14 JUDGE CURRAN: Making it
15 "reasonable"?
16 MR. BEVERE: Saying it's
17 reasonable. I think that's what it says.
18 JUDGE CURRAN: Right, it does.
19 MR. BEVERE: Reasonableness.
20 JUDGE CURRAN: Right.
21 MR. BEVERE: Reasonable under all
22 the circumstances.
23 JUDGE CURRAN: Right. Page 24.
24 MR. BEVERE: Well, Judge, once
25 again, I'm going to make a -- a general
96
1 objection because I think that the negligence
2 aspect of it, in other words, the failing to
3 have effective training mechanisms and policies,
4 that's in the previous section. So I mean -- so
5 that's my objection to charging these
6 paragraphs. I think everything here is covered.
7 MR. MULLIN: I think the Town -- I
8 think the jury needs some guidance on role of
9 training and non-training. Defendants have
10 said, well, we announced this sensitivity
11 training program. They made a big deal out of
12 that as a defense. And the jury has to be told
13 that this is one of the factors they need to --
14 training, just like investigation, is one of the
15 elements they need to look at in deciding
16 whether the Town acted reasonably or
17 unreasonably. And this comes out of Lehmann,
18 the creation of mechanisms for encouraging
19 complaints of sexual harassment.
20 JUDGE CURRAN: Okay, that Lehmann
21 is an employment case is on the record. Mr.
22 Bevere.
23 MR. MULLIN: And defense
24 paragraph, paragraph two.
25 JUDGE CURRAN: I see it, yeah.
97
1 MR. BEVERE: If Your Honor is
2 inclined to charge it here, then -- as to the
3 language of it, then I don't have any objection
4 to the language, noting my objection, you know,
5 to charging the paragraphs at all.
6 JUDGE CURRAN: Okay.
7 MR. BEVERE: Then, if we go to the
8 other paragraph, once again, noting my
9 continuing objection, then what I would say is,
10 "If you find Plaintiffs were subjected to sexual
11 orientation and harassment, that they complained
12 of it verbally or in writing" -- I mean, we have
13 supervisors and I --
14 JUDGE CURRAN: You want to say
15 Town upper --
16 MR. BEVERE: I think what we
17 should say is, "If you find the plaintiffs were
18 subjected to sexual orientation harassment and
19 that Town upper management" -- I would say,
20 "and" --
21 MR. MULLIN: Town upper management
22 knew of it or reasonably should have known of
23 it.
24 MR. BEVERE: The Town's -- Town
25 upper management knew -- reason -- well, you
98
1 have reasonably knew; but I guess we could say,
2 "knew or should have known." I don't know what
3 "reasonably knew" means but --
4 MR. MULLIN: Comes out of L.W.
5 MR. BEVERE: No, no, but I
6 think -- okay. I mean, upper management
7 reasonably knew -- I have no -- we can keep in
8 "Town upper management reasonably knew of such
9 harassment and that the Defendant Secaucus did
10 not reasonably train Town employees, monitor
11 them or enact complaint mechanism."
12 See, here is my problem, Judge, I
13 had a general objection to all these paragraphs,
14 so now I'm trying to mold some language. But
15 my -- when I came in here, my intention was
16 that -- have them all stricken.
17 JUDGE CURRAN: Right, right.
18 MR. BEVERE: But I think, Judge,
19 if we go, "If you find the plaintiffs have been
20 subjected to sexual orientation harassment and
21 Town upper management reasonably knew of such
22 harassment, that the Defendant Secaucus did not
23 reasonably train Town employees, monitor them or
24 enact complaint mechanism that reasonably
25 encouraged residents to complain of sexual
99
1 harassment and" -- I think you take out, "and
2 protected them from retaliation" because --
3 just, "complained of sexual harassment, and if
4 you further find that some or all of the
5 harassment in this matter could have been
6 prevented, had the aforesaid training,
7 monitoring and complaint mechanisms been
8 reasonable and adequate, then you may find for
9 the plaintiffs with regard to non-supervisory
10 firemen. On the other hand, if you find the
11 plaintiffs have failed to prove the defendant's
12 training, monitoring, complaint mechanisms were
13 unreasonable and inadequate and plaintiffs have
14 not otherwise proven that Defendant responded
15 inadequately to their complaints of harassment,
16 then you must return a verdict for the defendant
17 with regard to non-supervisory firemen," period.
18 Go to the next page. Then I
19 think the only thing we have to change on this
20 page, Judge, with regard to this -- I'm sorry,
21 on page 25 at the top, okay, the summary, "Town
22 of Secaucus can only be held liable for sexual
23 orientation harassment caused by a
24 non-supervisory firemen if" -- and I think that
25 the only thing we have to do is, on number
100
1 three, say, "the upper management of the Town of
2 Secaucus."
3 MR. MULLIN: No objection.
4 JUDGE CURRAN: I think we have to
5 add, though, "If you find that, number one, some
6 or all of the events Plaintiffs allege actually
7 occurred." And it's probably understood, but
8 just to be sure.
9 MR. MULLIN: Yeah, if you find
10 that.
11 JUDGE CURRAN: And then we take
12 out retaliation.
13 MR. BEVERE: Right.
14 MR. MULLIN: We have to go back
15 to --
16 MR. BEVERE: Wait. Wait. Wait.
17 MR. MULLIN: -- supervisory
18 section.
19 MR. BEVERE: So we're -- Judge,
20 just so we know, on three -- on three, on page
21 25, the upper management of the Town of
22 Secaucus, okay?
23 JUDGE CURRAN: You already -- I
24 thought you added that.
25 MR. BEVERE: Yeah, and then --
101
1 MR. MULLIN: That's four also.
2 MR. BEVERE: Number four also.
3 JUDGE CURRAN: Right, I got that.
4 MR. MULLIN: We got to go page --
5 to page 17. And that's the super -- the Town's
6 liability for --
7 JUDGE CURRAN: Supervisory.
8 MR. MULLIN: -- supervisory
9 activity. And again, this is out of Lehmann.
10 But where -- what we're doing differently is we
11 are not putting anything about economic damages.
12 This is totally about -- this whole section
13 becomes about emotional distress, pain and
14 suffering.
15 JUDGE CURRAN: Exactly.
16 MR. MULLIN: Counsel for defense
17 wanted the normal proximate cause on economics
18 damages, which we will have to do.
19 MR. BEVERE: Judge, before we
20 get -- could we just go back to page 16 for a
21 second? Because I want to be clear.
22 JUDGE CURRAN: Sixteen? Sure.
23 MR. BEVERE: I want to be clear.
24 Are we -- what are we doing with this second
25 paragraph?
102
1 MR. MULLIN: Where?
2 MR. BEVERE: My notes were
3 confusing.
4 MR. MULLIN: We are just finding
5 who meets with the --
6 JUDGE CURRAN: I will tell you
7 what I marked.
8 MR. BEVERE: Tell me what you
9 have, Judge.
10 JUDGE CURRAN: Or maybe Tracey can
11 read back. I have the entire first sentence
12 crossed out. Second sentence says, "I hereby
13 instruct you that Charles Snyder, Jr. was,
14 during the time period that's relevant to this
15 matter, a supervisor within" -- going into the
16 Constitution, LAD. Next sentence is out.
17 "Likewise, the Mayor, the Town Administrator,
18 the Town Council" -- I think there was a
19 request. I don't know if there is a request.
20 MR. MULLIN: Town Council.
21 JUDGE CURRAN: Deputy?
22 MR. MULLIN: Yes.
23 JUDGE CURRAN: Certainly Mr.
24 Leanza and the Police Chief and Fire Chief, all
25 police officers of the rank sergeant or higher
103
1 and all firemen of the rank lieutenant or higher
2 were, during the time periods relevant to this
3 matter, supervisory employees of the Town of
4 Secaucus. We then --
5 MR. MULLIN: We took out the
6 automatic liability.
7 JUDGE CURRAN: Right.
8 MR. BEVERE: All right.
9 JUDGE CURRAN: We took out the
10 last sentence. Later on we get to what is upper
11 management.
12 MR. BEVERE: All right. And my --
13 my objection to this paragraph is noted,
14 correct, Your Honor?
15 JUDGE CURRAN: Yes, it is.
16 MR. BEVERE: Thank you.
17 JUDGE CURRAN: Is your
18 understanding or your recollection of what we
19 did different than mine, Mr. Mullin?
20 MR. MULLIN: No, that's what it
21 was.
22 JUDGE CURRAN: And there is no
23 further change other than the continuing
24 objection, which is noted. Okay. Then we get
25 to 17.
104
1 MR. BEVERE: Well, Judge, I -- and
2 obviously, continuing objection. As to money --
3 as to money damages to compensate Plaintiffs, I
4 think you just have to say -- because now -- now
5 what we have done, we have taken out the strict
6 liability for the economic damages. So I would
7 just say, "Money damages to compensate
8 Plaintiffs," comma --
9 MR. MULLIN: Well, no, because you
10 don't want to include -- you're saying this
11 doesn't include -- what you are saying, it does
12 include economic damages? You are saying you
13 want -- everything should be embodied under this
14 section?
15 MR. BEVERE: It says as -- as to
16 money damages --
17 MR. MULLIN: You want to say for
18 economic loss, emotional distress or pain and
19 suffering? In other words, you are not giving
20 me strict liability for economic damages; you
21 want all these other standards to be met?
22 MR. BEVERE: In other words, in
23 order for the plaintiffs to receive economic
24 damages, they do so under the general rules that
25 apply if I was to be rear-ended by a Mack truck
105
1 and have a broken spine. I mean, I would think
2 it would have to be the same.
3 JUDGE CURRAN: God forbid, right.
4 MR. BEVERE: God forbid, but I
5 mean, you know --
6 MR. MULLIN: I just don't
7 understand what standard.
8 MR. BEVERE: So you want to say as
9 to money damages to compensate Plaintiffs for --
10 you want to leave it as emotional distress, pain
11 and suffering?
12 MR. MULLIN: Yeah. And I thought
13 you were going to say you had some other charge
14 for economic damages. Or do you want to say
15 that this whole section, both for supervisory
16 and non-supervisory firemen, all this stuff is
17 what has to be proven in order to get any money
18 damages, including economic damages in this
19 case?
20 MR. BEVERE: Yeah, in other words,
21 Judge, what I'm saying is that -- is that we
22 can't hold the employer strictly liable for
23 Mr. deVries' economic damages because he is not
24 an employee. So Mr. -- Mr. deVries has to prove
25 whatever damages reasonably and proximately
106
1 flow --
2 JUDGE CURRAN: What if we took the
3 first three lines and made them start with,
4 "Town of Secaucus" -- "Town of Secaucus'
5 liability to compensate"? And I think --
6 MR. MULLIN: I think we can -- I
7 understand.
8 MR. BEVERE: I think we say, "The
9 Town of Secaucus' liability for hostile
10 environment."
11 MR. MULLIN: Yes.
12 JUDGE CURRAN: Either that or -- I
13 just don't think you need both.
14 MR. BEVERE: Not even mention the
15 word "damages."
16 JUDGE CURRAN: Okay.
17 MR. BEVERE: In other words, "Town
18 of Secaucus' liability for hostile
19 environment" --
20 JUDGE CURRAN: Is not automatic.
21 So if we just start with, "The Town of
22 Secaucus," I think it's clear.
23 MR. BEVERE: Okay.
24 MR. MULLIN: Right.
25 JUDGE CURRAN: Any objection?
107
1 MR. MULLIN: That's no problem.
2 JUDGE CURRAN: Okay.
3 MR. MULLIN: So this will apply to
4 all damages. There is no liability for any
5 damages unless all the standards in this section
6 are met both as to supervisory and
7 non-supervisory employees.
8 JUDGE CURRAN: Right.
9 MR. MULLIN: This is out of, you
10 know, Lehmann.
11 MR. BEVERE: Judge, I just want --
12 so the record is clear, that I do have an
13 objection to Charles Snyder, Jr. being
14 designated as a supervisor of the Town of
15 Secaucus. I just want to make sure that that
16 was my -- part of my objection from the record
17 before.
18 JUDGE CURRAN: Yes --
19 MR. BEVERE: Thank you.
20 JUDGE CURRAN: -- you did say
21 that.
22 MR. BEVERE: Yes.
23 So now we go on and from there,
24 it looks like --
25 MR. MULLIN: Straight Lehmann.
108
1 Straight model, I think.
2 JUDGE CURRAN: I just want to
3 clarify. And the reason that he is listed as a
4 supervisor within the Fire Department is his
5 position within the Fire Department.
6 MR. BEVERE: I -- I understand the
7 nature of the Court's ruling.
8 JUDGE CURRAN: I want to make sure
9 that's on the record.
10 MR. BEVERE: I just wanted to make
11 sure my objection was preserved.
12 JUDGE CURRAN: Yes, you objected
13 to his father and then --
14 MR. BEVERE: Objected to him, as
15 well.
16 JUDGE CURRAN: Yes.
17 MR. BEVERE: The Town of
18 Secaucus -- I mean, the rest of those are
19 straight Lehmann. And then I -- I -- I think,
20 Judge, that what we should do with that, after
21 number four, I think that we should use what the
22 model charge has, which is, "If you find the
23 plaintiff has proved each of these elements,
24 then Defendant Town of Secaucus is liable for
25 the alleged sexual harassment."
109
1 MR. MULLIN: I don't object to
2 that. What page is that sentence on?
3 MR. BEVERE: That's on the -- on
4 page 12 of the model charge 2.25. And if you go
5 right underneath the four listed categories,
6 then you have, "If you find the plaintiff has
7 proved each of these elements, then Defendant
8 Town of Secaucus is liable for the alleged
9 sexual harassment." And then I think you should
10 add the other sentence from the model charge,
11 which says, "If any one of these elements is not
12 proved, then Defendant Town of Secaucus cannot
13 be held liable based upon its delegation of
14 authority."
15 JUDGE CURRAN: I think the whole
16 last paragraph of page 12 of 2.25 Subsection B
17 goes in.
18 MR. MULLIN: Okay. No objection
19 to that.
20 JUDGE CURRAN: Thank you.
21 MR. MULLIN: Then we go to, "Even
22 if you find the Town is not liable because of
23 the actions of its supervisors, you must
24 still" -- "the Town is liable because of its
25 negligence." Again, this is straight Lehmann.
110
1 MR. BEVERE: I'm sorry, where are
2 we going now?
3 MR. MULLIN: Page 18, "Even if you
4 find."
5 JUDGE CURRAN: Well, are you -- do
6 you have any comments on the rest of 17, Mr.
7 Bevere?
8 MR. MULLIN: Rest of 18, Your
9 Honor.
10 JUDGE CURRAN: No, 17.
11 MR. MULLIN: Seventeen?
12 JUDGE CURRAN: I'm sorry.
13 MR. BEVERE: The rest -- the rest
14 of 17 -- no, what -- what I'm saying, Judge, is
15 that -- I guess -- I guess I don't understand
16 the difference between paragraph one and
17 paragraph two of that page.
18 MR. MULLIN: Which page?
19 MR. BEVERE: Seventeen.
20 MR. MULLIN: It is one thing to
21 delegate to supervisor and another thing for the
22 supervisor to exercise the authority.
23 MR. BEVERE: Because I'm looking
24 at the four numbered paragraphs, and they appear
25 to be the same.
111
1 MR. MULLIN: Aren't they taken
2 right out of the model charge?
3 JUDGE CURRAN: Well --
4 MR. BEVERE: Because what -- what
5 the model charge has under delegation of
6 authority is after -- After the failure to take
7 remedial action section, which is A.
8 JUDGE CURRAN: They are the same.
9 MR. BEVERE: Yeah, and that's --
10 I'm just -- I'm just confused.
11 JUDGE CURRAN: I didn't notice
12 that before, but they're verbatim.
13 MR. MULLIN: Which line? One and
14 two you are saying are the same?
15 JUDGE CURRAN: No.
16 MR. BEVERE: Page 17. And you
17 look at if -- if you look -- if you look at page
18 17 and you look at the model charge for 2.25,
19 page 12, in other words --
20 MR. MULLIN: "Did the Town
21 delegate to the supervisor authority to control
22 situation which the plaintiffs complained? Did
23 they exercise that authority?"
24 MR. BEVERE: Right. If you look
25 at one through four and one through four,
112
1 they're exactly the same.
2 MR. MULLIN: Oh, okay. So you're
3 saying this is repeated?
4 JUDGE CURRAN: Yeah.
5 MR. MULLIN: Okay. I see. I see.
6 Okay. I see the problem.
7 MR. BEVERE: So I think, Judge,
8 all --
9 JUDGE CURRAN: Computer typo.
10 MR. MULLIN: Looks like a typo to
11 me.
12 MR. BEVERE: Yeah. And I think
13 that basically, you know, what we have is, if
14 you go to the model charge, it simply says that
15 you have -- you have --
16 JUDGE CURRAN: We're on page 18
17 now, I believe.
18 MR. BEVERE: So we are striking
19 the second paragraph on 17?
20 MR. MULLIN: Your Honor, let me
21 see what's going on here in terms of -- it does
22 look -- look -- first, we have failure to take
23 remedial action in the first charge.
24 JUDGE CURRAN: Right. And we have
25 got --
113
1 MR. BEVERE: Then what we did,
2 Judge, on page 17, was we took out the first
3 part of the first sentence, which says, "As to
4 money damages to compensate Plaintiffs for
5 emotional distress and pain and suffering." We
6 took that out; and we said, "The Town of
7 Secaucus' liability for a hostile environment
8 imposed by Secaucus supervisors is not automatic
9 but, instead, is governed by the following
10 considerations." But you know, I -- I
11 actually -- the Town of Secaucus' liability for
12 a hostile environment caused by -- is not
13 automatic but is, instead, governed by the
14 following considerations.
15 And I think what you said, Judge,
16 was you were then going to put in the entire --
17 the entirety of that bottom paragraph under B,
18 delegation of authority.
19 JUDGE CURRAN: Right, both, both
20 sentences.
21 MR. BEVERE: And the second
22 paragraph comes out.
23 MR. MULLIN: What I'm missing here
24 is there are two conditions. One is if -- if --
25 if the -- if the -- if the supervisor acts
114
1 within the scope of his authority.
2 JUDGE CURRAN: Or outside.
3 MR. MULLIN: Then there is
4 liability.
5 JUDGE CURRAN: Right.
6 MR. MULLIN: And the second
7 condition is if the supervisor acts outside the
8 scope --
9 JUDGE CURRAN: Right.
10 MR. MULLIN: -- of the authority.
11 And that's --
12 MR. BEVERE: But Judge, I
13 understand that. But when you look at the
14 standards that's in the plaintiffs' charge, it
15 seems to be the same standard.
16 MR. MULLIN: I think that's a
17 mistake.
18 MR. BEVERE: Regardless of whether
19 they're outside the authority or --
20 JUDGE CURRAN: It is exactly
21 verbatim the same; that's what we were talking
22 about was a typing error.
23 MR. MULLIN: I am going to Lehmann
24 to try to get the right language. All right.
25 At page 619 of Lehmann, 132 NJ 619, is where --
115
1 where the court -- the end of 619, that's where
2 the court starts to describe entity liability,
3 if the supervisor acts within the scope of his
4 or her employment.
5 MR. BEVERE: What are you looking
6 at? Looking at Lehmann?
7 MR. MULLIN: Yeah.
8 MR. BEVERE: What page?
9 MR. MULLIN: 619.
10 JUDGE CURRAN: 619.
11 MR. BEVERE: Judge, let me -- let
12 me state this, Judge.
13 JUDGE CURRAN: Uh-huh.
14 MR. BEVERE: Under the traditional
15 definition of what it means to be acting in the
16 scope of one's employment, I -- I would have to
17 state for the record that no one at the
18 firehouse that night was acting within the scope
19 of their employment, as we understand scope of
20 employment, in carrying out these acts of
21 harassment.
22 So I mean, I -- that would be
23 what I would say for the record. Regardless of
24 whether they were on-duty, off-duty, because, as
25 we all know, police officer could be on-duty,
116
1 driving around in his patrol car and, you know,
2 with his gun and his badge and if he decides to
3 rob a convenience store, he is certainly not
4 acting within the scope of his employment.
5 So I mean, you know, nobody was
6 carrying out their firefighter function at the
7 time. So it's not a traditional -- that would
8 be what I would say for the record.
9 I understand that under Lehmann
10 you can -- Lehmann standards there was a way to
11 hold the Town liable in the -- and they even say
12 in Lehmann in the common situation, the more
13 common situation, if a supervisor acts outside
14 the scope of authority, i.e., by saying horrible
15 things to the coemployee, certainly not within
16 the scope of employment, but then Lehmann says
17 but you can still be liable if --
18 JUDGE CURRAN: Right.
19 MR. BEVERE: -- these criteria are
20 met, which is different than saying someone is
21 acting --
22 JUDGE CURRAN: Within.
23 MR. BEVERE: -- what the -- what
24 the -- what the employer has said is your job
25 function to be.
117
1 JUDGE CURRAN: Mr. Mullin, do you
2 wish to address that?
3 MR. MULLIN: Yeah, I am thinking
4 about it.
5 JUDGE CURRAN: I'm sorry.
6 MR. MULLIN: Just give me one
7 minute.
8 I think we need both, and I think
9 we can just take language from Lehmann. And --
10 JUDGE CURRAN: Well, do you want
11 to argue against Mr. --
12 MR. MULLIN: Yeah.
13 JUDGE CURRAN: Mr. Bevere has made
14 a serious motion in the context of a charge
15 conference.
16 MR. MULLIN: Yeah, I think that
17 the Town of Secaucus delegated to Captain
18 Snyder, Jr. the authority to control the
19 situation. His job was to take care of that
20 company, to lead them and to comply with Chapter
21 12, which has a provision they should not engage
22 in conduct unbecoming. That was his job
23 pursuant to Chapter 12.
24 Number two is did the supervisor
25 exercise that authority? He was the leader that
118
1 night. He exercised leadership. His voice was
2 heard loud and clear. He was in charge of that
3 company that night. Did the exercise of
4 authority result in a violation of law against
5 discrimination? Yes, it surely did. He led his
6 company in an attack on Plaintiffs' home. By
7 the authority delegated by the Town of Secaucus
8 he led an attack on the plaintiffs in injuring
9 the plaintiffs. Sure, he was cloaked with the
10 mantel of authority by Chapter 12. It's why he
11 was the leader. It's why he was accepted as the
12 leader.
13 And so -- so you could argue that
14 those elements were scope of authority were met.
15 Can you also argue that he was acting outside
16 the scope of authority? Defendants can argue
17 that. They can make that argument. They will
18 probably make that argument in connection with
19 proving or attempting to prove that Snyder, Jr.
20 was not acting under color of State law. They
21 will make that argument. That's why I will not
22 concede that point, because then that would
23 undermine my position in the Constitutional
24 claim.
25 So I want to not concede any
119
1 points in that regard. I want to say that I
2 have evidence I can argue to the jury that we
3 have both circumstances. Snyder, Jr. acted
4 within the scope of his authority and caused
5 harm and violated the law; and Snyder, Jr. acted
6 outside the scope of -- of his authority. You
7 can -- but abused that authority and therefore
8 the Town is liable. They abused the delegated
9 authority.
10 I think a strong argument can be
11 made he acted within the scope of his authority,
12 but I think the jury should be charged on both
13 issues. And that's -- that's my position.
14 JUDGE CURRAN: Anything else, Mr.
15 Bevere?
16 MR. MULLIN: I don't think the
17 Court could say as a matter of law --
18 JUDGE CURRAN: That it was within?
19 MR. MULLIN: -- that it was within
20 or without. I think it's a jury question is
21 really what I'm saying.
22 MR. BEVERE: But, Judge, my -- my
23 concern is as to -- Mr. Mullin has just put the
24 standard on the record, and he has gone through
25 the elements. And notwithstanding my general
120
1 objection to the Lehmann charge and the
2 supervisory charge, the defendant delegated the
3 authority, exercising the authority. So
4 basically what -- what's in the model charge, if
5 we're going to charge Lehmann, then what's here
6 is here.
7 And I think if you -- if the
8 Court is going to charge Lehmann, then what's
9 under 2.25B, delegation of authority, is the
10 charge and -- and we will have to argue in
11 summation to the jury whether or not what
12 Snyder, Jr. may have done that night fits within
13 these four categories. Is that what the Court
14 is ruling on the charge?
15 JUDGE CURRAN: I have to tell you
16 I'm not sure I understand your question.
17 MR. BEVERE: Okay. In other words
18 -- in other words -- in other words --
19 MR. MULLIN: Could I --
20 MR. BEVERE: -- it looks like
21 paragraph one and paragraph two are exactly the
22 same. So we just need one; we don't need both.
23 MR. MULLIN: Let me start by
24 correcting that error.
25 JUDGE CURRAN: Right.
121
1 MR. MULLIN: Let me now take the
2 responsibility, using Lehmann, to fix that
3 error. And then whatever -- so number one is --
4 is first -- the first enumerated paragraph is
5 correct. That has to do with action within the
6 scope of the authority.
7 JUDGE CURRAN: Right.
8 MR. MULLIN: And that should stand
9 as it is. Then we say, "If you find that the
10 supervisor did create a hostile environment at
11 or near Plaintiffs' residence but did so outside
12 the scope of his employment, then you -- you
13 must consider certain other factors." Now I'm
14 going to go to Lehmann and read the passage that
15 should follow next. And I'm reading from page
16 620 of Lehmann, 132 NJ at 620.
17 MR. BEVERE: Okay.
18 MR. MULLIN: The Town -- I am
19 going to substitute "the Town of Secaucus" for
20 "the employer."
21 "You should consider whether Town
22 of Secaucus delegated authority to supervisory
23 firemen to control the environment in or near
24 the North End Firehouse and that the supervisory
25 firemen abused that delegated authority."
122
1 Jumping to the continued
2 paragraph of the opinion at page 624, 132 NJ at
3 624 --
4 MR. BEVERE: Hold on. Let me just
5 get there. Okay.
6 MR. MULLIN: "Even if the" --
7 second line at the top of the page of the
8 opinion. "Even if the supervisory firemen in
9 question acted outside the cope of his or her
10 employment, the Town of Secaucus will be
11 liable." And again, I'm taking out some
12 legalese, like "vicariously."
13 "If the employer contributed" --
14 "If the Town contributed to the harm through its
15 negligence, intent or apparent authorization of
16 the harassing conduct or if the supervisory
17 fireman was aided in the commission of the
18 harassment by the" -- it says, "the agency
19 relationship." I'll say, "by the delegation of
20 supervisory authority," period.
21 "Thus, Town of Secaucus can be
22 held liable for damages stemming from a
23 supervisory fireman's creation of a hostile work
24 environment, if the Town grants the supervisory
25 fireman the authority to control the environment
123
1 in or near the firehouse and the supervisory
2 fireman abuses that authority to create a
3 hostile environment."
4 "The Town of Secaucus may also be
5 held liable for damages for supervisory
6 harassment that occurs outside the scope of the
7 supervisory fireman's authority if the Town had
8 actual or constructive notice of the harassment
9 or even if the Town did not have actual or
10 constructive notice of the harassment, if the
11 Town negligently or recklessly failed to have an
12 explicit policy that banned sexual harassment
13 and that provides an effective procedure for the
14 prompt investigation and remediation of such
15 claims."
16 Now, that corrects the mistake in
17 my proposed charge and is as close to word for
18 word as I can get out of Lehmann.
19 Then we go to -- so then we
20 strike on page 17 everything that follows, "If
21 you find that the supervisor did create a
22 hostile environment." We strike that, which
23 seems to be error. And we strike all the way
24 down to, "Even if you find that the Town is not
25 liable because of the actions of supervisor,
124
1 then you must still" -- "you must still consider
2 whether the Town is liable because of its
3 negligence."
4 And now we're --
5 MR. BEVERE: I'm sorry, Judge,
6 so --
7 JUDGE CURRAN: So everything comes
8 out. That paragraph -- that sentence stays in.
9 MR. BEVERE: In other words, "If
10 you find that the supervisor did create a
11 hostile environment but did so outside the scope
12 of his or her employment, you must consider
13 other factors"; and then what do we do?
14 JUDGE CURRAN: The exact reading
15 from Lehmann, which is in Tracey's transcript.
16 MR. MULLIN: Right.
17 JUDGE CURRAN: Which I followed it
18 along. There are a few words that were changed,
19 certainly, by -- certainly "employer" to "the
20 Town." But basically, as Mr. Mullin indicated,
21 he took out some legal terms, like
22 "vicariously," "liable"; but otherwise, it was
23 verbatim.
24 Then, on page 18, the first four
25 lines would be out; and it would begin, "Even if
125
1 you find that the Town is not liable because of
2 the actions of supervisors," et cetera, going
3 down through one through four there. Is that
4 correct --
5 MR. MULLIN: That's correct.
6 JUDGE CURRAN: -- Mr. Mullin?
7 MR. MULLIN: That's correct.
8 MR. BEVERE: So then the language
9 that we're -- in Lehmann would be -- I will look
10 at it in Tracey's -- let me take a look and see
11 our screen here.
12 MR. PARIS: Is yours working?
13 MR. MULLIN: Mine is working.
14 MR. BEVERE: I got it. It's up.
15 It's up. Judge.
16 MR. MULLIN: Page 13 to 14 of the
17 model charge.
18 MR. BEVERE: Judge, I mean, here
19 is what I -- when I look at that paragraph,
20 okay -- and I think that what we have is that
21 whole second part of the paragraph, the
22 constructive notice of the harassment and -- or
23 if the Town negligently, recklessly failed to
24 have -- those are separate sections.
25 In other words -- in other words,
126
1 what Lehmann is doing is making a general
2 statement of three ways. One is delegation of
3 authority and then an abuse of that authority to
4 create the hostile environment. Two is if you
5 were negligent and not having well publicized
6 policy and complaint procedures. And three
7 would be actual or constructive notice and
8 failure to take proper remedial action.
9 So I -- I think that what you
10 have to do is just end it -- what Mr. Mullin
11 read is fine. And I think you just end it
12 where, "If the Town grants supervisory firemen
13 the authority to control the environment and the
14 supervisory firemen abuses that authority to
15 create a hostile environment," period; and end
16 it there. Because all you're doing by the rest
17 of that paragraph is just reiterating what is
18 going to be charged in separate sections,
19 straight negligence or that actual or
20 constructive notice and failure to take remedial
21 action, which, I guess, is also negligence. But
22 you have -- what you have is were you negligent
23 in not having what the plaintiffs allege you
24 should have had to begin with?
25 MR. MULLIN: I don't have an
127
1 objection to that because what -- what counsel,
2 as I understand it, is saying is we get to the
3 stuff in that last paragraph that I read --
4 JUDGE CURRAN: Right.
5 MR. BEVERE: Through the other two
6 sections.
7 MR. MULLIN: -- through the next
8 section, which deals with negligence. So it
9 would be redundant, so I don't object to that.
10 JUDGE CURRAN: Thank you.
11 MR. MULLIN: And I will make that
12 change.
13 MR. BEVERE: That's fine.
14 MR. MULLIN: Then we go on to that
15 section.
16 MR. BEVERE: Then we go on to that
17 section.
18 MR. MULLIN: Which I hope and
19 believe is modeled directly after the model
20 charge, which is -- begins -- it's page 13 of
21 the model charge.
22 MR. BEVERE: And it's page?
23 MR. MULLIN: Page 13, 14 of the
24 model charge.
25 MR. BEVERE: I know that, but --
128
1 JUDGE CURRAN: It's page 18.
2 MR. MULLIN: Page 18 of my charge.
3 And we --
4 MR. BEVERE: Page 18 of
5 Mr. Mullin's charge? Let me just get to that.
6 So we have, "Even if you find Town is not liable
7 because of the" -- and, Judge, the only thing
8 that I would ask here is -- obviously, I don't
9 have an issue with, "Even if" -- starting with,
10 "Even if," down to the end of number four.
11 And -- and I think that as far as the paragraph,
12 the second paragraph of the charge, I think you
13 should charge the model charge, which says you
14 may consider the existence of such measures.
15 MR. MULLIN: No objection.
16 MR. BEVERE: Okay. So we take out
17 that paragraph --
18 JUDGE CURRAN: Right.
19 MR. BEVERE: -- in its entirety
20 and charge the model charge.
21 JUDGE CURRAN: Terrific. That
22 makes total sense.
23 MR. BEVERE: And then, when you go
24 to page 19 --
25 MR. MULLIN: That's the model
129
1 charge, last paragraph on page 13 of the model
2 charge.
3 MR. BEVERE: Right. Page 13 of
4 the model charge, last paragraph. And then I
5 think that when you go -- hold on a second --
6 and then, when you go to Mr. Mullin's charge at
7 page 19 --
8 JUDGE CURRAN: Right.
9 MR. BEVERE: -- and then he says
10 "Town liability for conduct outside the scope of
11 the employment may also be found if the Town
12 intended the conduct." And then I think that
13 we've already addressed that, Judge.
14 MR. MULLIN: We have addressed it.
15 JUDGE CURRAN: We have.
16 MR. MULLIN: That paragraph can
17 come out. We can take out my summarizing
18 paragraph.
19 MR. BEVERE: And he actually said
20 it right there, "upper management had actual
21 knowledge of" -- we will take that out.
22 MR. MULLIN: We will take out all
23 the -- all the rest of the text on page 19.
24 Actually, all of 19 is out now. And we take out
25 the top two lines on page 20, and we go into the
130
1 charge we have already reviewed.
2 MR. BEVERE: Right.
3 MR. MULLIN: Maybe there needs to
4 be some transitional sentence. I have just
5 talked about the circumstances under which there
6 is liability for -- caused by a supervisor's
7 actions or Town negligence. Now I am going to
8 talk about --
9 JUDGE CURRAN: Non-supervisors.
10 MR. BEVERE: Right.
11 JUDGE CURRAN: Okay. So we are
12 now --
13 MR. BEVERE: Then we go back to
14 page 25, right?
15 JUDGE CURRAN: Yeah.
16 MR. BEVERE: Retaliation is out.
17 MR. MULLIN: Retaliation is out.
18 But I want it to be understood that I don't
19 concede that retaliation didn't occur. It may
20 be relevant to other legal issues in the case.
21 I am just saying that it need not be charged.
22 JUDGE CURRAN: It's a double --
23 MR. MULLIN: Same activity that is
24 retaliatory is harassing and discriminatory.
25 JUDGE CURRAN: Okay.
131
1 MR. BEVERE: So page 27 through 30
2 are stricken from the charge.
3 MR. MULLIN: All out. We are up
4 to -- I think I did the standard charge on
5 economic damages. We have to take out
6 references to retaliation, obviously.
7 MR. BEVERE: This is the model
8 charge, Neil, right?
9 MR. MULLIN: I think so, but I
10 don't have the model front of me.
11 JUDGE CURRAN: I have the model.
12 MR. MULLIN: Again, we should
13 talk -- we should probably call it,
14 "discriminatory harassment" because it's
15 obviously -- if not discriminatory harassment,
16 it's not actionable. So -- but we shouldn't
17 refer to retaliation in this charge.
18 So under number two it says,
19 "Plaintiffs claim that as a result" -- should
20 just say, "Plaintiffs claim as a result of
21 Defendant's actions."
22 MR. BEVERE: Where are you, Neil?
23 MR. MULLIN: Under number two,
24 future lost earnings.
25 MR. BEVERE: Okay.
132
1 MR. MULLIN: We can take out the
2 whole parenthetical phrase there. Just say,
3 "Plaintiffs claim that as a result of
4 Defendant's actions they became ill and lost" --
5 well, actually, this is deVries. The economic
6 charge is just for Plaintiff deVries. Should
7 say, "Plaintiff deVries"; and it should be
8 "Defendant," singular.
9 JUDGE CURRAN: Right, plaintiff.
10 MR. MULLIN: Right, plaintiff.
11 Mistake, "she." Should say, "He will have."
12 JUDGE CURRAN: What page are you
13 on?
14 MR. MULLIN: Under number two, it
15 should be, "Plaintiff claims as a result of the
16 Defendant's action he became ill and lost income
17 and will continue to lose income. Take into
18 account his education, work experience, health.
19 You must determine whether he will have lost
20 wages in the future. Defendant claims that
21 Plaintiff's disability was not caused by any" --
22 "by any harassment for which they are
23 responsible," I guess.
24 MR. BEVERE: I'm sorry, I was
25 looking at something. I apologize, what was
133
1 that again?
2 JUDGE CURRAN: Page 31.
3 MR. BEVERE: Uh-huh.
4 MR. MULLIN: So I thought --
5 JUDGE CURRAN: The economic
6 damages apply only to Mr. deVries.
7 MR. BEVERE: Right, that is
8 correct.
9 JUDGE CURRAN: But I think I have
10 to say that point blank.
11 MR. BEVERE: Right, I think you do
12 too.
13 JUDGE CURRAN: So we are just
14 adding that on here, that's all.
15 MR. BEVERE: The changes on page
16 31 are just making it applicable to Mr. deVries?
17 JUDGE CURRAN: Yes.
18 MR. BEVERE: We get to future lost
19 earnings.
20 JUDGE CURRAN: Wait. Wait. On
21 page 30 --
22 MR. BEVERE: One.
23 JUDGE CURRAN: On page 32
24 Mr. Mullin changed it to say, "Defendants claim
25 that Plaintiff's disability was not caused by
134
1 any harassment for which they are responsible";
2 is that correct?
3 MR. MULLIN: That's correct. What
4 I -- what I think is missing here, because it's
5 normally part of the charge, is obviously the
6 proximate cause charge that --
7 JUDGE CURRAN: Right.
8 MR. MULLIN: -- I think there is a
9 standard charge on that.
10 JUDGE CURRAN: There is a
11 proximate cause charge.
12 MR. MULLIN: Should charge for all
13 damages --
14 JUDGE CURRAN: I'm sorry, I
15 realize you are doing JIFFIS. Do you know the
16 number offhand of the proximate cause charge or
17 can you bring --
18 MR. PARIS: I can look it up,
19 Judge.
20 MR. BEVERE: We have the models
21 with us in the computer.
22 JUDGE CURRAN: I brought them up
23 last night in my computer inside, but my -- I
24 couldn't get the printer to work, so --
25 MR. PARIS: Actually, you know
135
1 what, I'm wondering if there is like an index to
2 this.
3 JUDGE CURRAN: The general
4 proximate -- well, all of them that -- do you
5 need the general? And you need to -- regard to
6 negligence?
7 MS. CATAPANO: And negligence?
8 JUDGE CURRAN: Yeah.
9 MR. MULLIN: Yeah, I think the
10 negligence proximate cause charge would be
11 perfect. I think it even defines proximate
12 cause.
13 JUDGE CURRAN: Oh, yeah, that's
14 one of my favorite parts of the jury charge.
15 It's like, you know --
16 MR. MULLIN: Right.
17 JUDGE CURRAN: -- significant or
18 substantial -- what does "substantial" mean?
19 And I have to sit here and say, "It does not
20 mean insubstantial." Oh, great.
21 MR. BEVERE: You mean the charge
22 that it took us three years -- it took us three
23 years of law school to learn, but the jury has
24 to learn it in two sentences.
25 JUDGE CURRAN: You got it.
136
1 MR. MULLIN: This is Palsgraf, the
2 explosion.
3 JUDGE CURRAN: So funny you should
4 say that. That is my favorite case. As I
5 remember that case --
6 MR. BEVERE: A lot of people.
7 That's a lot of people's favorite case.
8 JUDGE CURRAN: Hearing the
9 professor say, "Sue the people with the money."
10 And I remember sitting there on the floor,
11 because I never got there in time because I
12 worked in Trenton, I remember thinking We are
13 going to spend three years learning how to sue
14 who has the money? Therefore I could never do
15 tort work; I just --
16 MR. MULLIN: It was too crass?
17 JUDGE CURRAN: Yes -- well, no,
18 no, no, just --
19 MR. MULLIN: No, I know what you
20 are saying.
21 JUDGE CURRAN: What is the number
22 on proximate cause? Just give us the number, if
23 you don't mind. You can give it to counsel, if
24 you want.
25 MR. BEVERE: Can we go off the
137
1 record one second?
2 JUDGE CURRAN: Sure. Off the
3 record.
4 (Whereupon, a discussion is held
5 off the record.)
6 JUDGE CURRAN: 6.10, if you can
7 print that, if you can. Can you print over
8 there? You can? Okay. Do you mind giving them
9 the copy of that, please? And maybe we can just
10 give a copy to Mr. Mullin. We can incorporate
11 it, and then we can worry about wording on that.
12 That wording is not going to, I don't think,
13 affect anything else.
14 MR. MULLIN: No, that's standard
15 proximate cause.
16 MR. BEVERE: Standard proximate
17 cause.
18 JUDGE CURRAN: Right, standard
19 proximate cause.
20 MR. MULLIN: Maybe should go
21 before the damages section. However you do it,
22 Judge, that it applies to all damages they --
23 JUDGE CURRAN: We are going to
24 talk about that because usually I do all
25 substantive law first, then I get to the damages
138
1 section. So, technically, we have to go over
2 requests from the defense.
3 MR. MULLIN: Okay. Then we have
4 emotional pain and suffering. And I suppose we
5 should take out anything that -- all right. So
6 let me just go through it line by line
7 because -- okay. We are working with model jury
8 charge 6.10.
9 JUDGE CURRAN: Yes.
10 MR. MULLIN: "Plaintiff sustains
11 injuries, including pain and suffering" -- let's
12 just call it "discriminatory harassment" --
13 under the -- say, "in violation of the New
14 Jersey Law Against Discrimination, the State
15 Constitution and/or the New Jersey Civil Rights
16 Act, is entitled to recover fair and reasonable
17 money damages for the full extent of the harm
18 caused." So I think that's the way that should
19 be changed to read to recognize what's in the
20 case. Then it's just standard charge.
21 MR. BEVERE: Standard charge
22 looks -- God knows I have heard it enough.
23 MR. MULLIN: Judge, there is one
24 version of this charge that has the life
25 expectancy of the plaintiffs.
139
1 JUDGE CURRAN: That is the -- you
2 want to print it out?
3 MR. MULLIN: That's what I wanted.
4 JUDGE CURRAN: I could probably do
5 it off the top of my head, actually. Usually I
6 do because people forget it, you know, the
7 little tiny, one-sentence life expectancy -- and
8 actually, you gave -- I asked you for those the
9 other day. Got it. Hold on.
10 Let me give these back to you
11 and -- if you don't mind, Amy.
12 I asked Amy for those the other
13 day.
14 MR. MULLIN: Thank you. I have
15 the -- just printed up the life expectancy
16 chart. I think we got it out of, you know,
17 Lawyer's Diary, one judges use to charge.
18 MR. BEVERE: Judge.
19 JUDGE CURRAN: Yeah, yes.
20 MR. BEVERE: When I was a very
21 young lawyer, tried a personal injury case in
22 Essex County. And my client was 86 years old.
23 And we were giving the charge to the jury. And
24 I told Judge Minuskin not to charge the life
25 expectancy because if my client heard what it
140
1 was, he would have had a heart attack and died
2 right in the courtroom. So I said -- I said,
3 "Judge, we won't charge life expectancy in that
4 case."
5 JUDGE CURRAN: Exactly. Good for
6 you.
7 Miss Catapano will give you the
8 standard one on life expectancy, the standard
9 one on tax, no tax.
10 MR. MULLIN: Thank you. I will
11 plug in the --
12 JUDGE CURRAN: Amy, if you'd like,
13 you can give them the package.
14 MR. MULLIN: I will plug in the
15 life expectancy for the plaintiffs.
16 JUDGE CURRAN: Why don't you just
17 give them that, if you don't mind.
18 MR. MULLIN: So that's my -- we
19 don't have to reach, Judge, the punitive damage
20 charge; it's a bifurcated proceeding.
21 JUDGE CURRAN: Right.
22 MR. MULLIN: I did use a pretty
23 standard charge here, but 6.20 --
24 JUDGE CURRAN: Right. I think we
25 can do that while the jury is deliberating.
141
1 MR. MULLIN: While the jury is
2 deliberating, if we should get to that point.
3 JUDGE CURRAN: Also, the arguments
4 about not -- all of the arguments in regard to
5 punitive damages we can do while the jury is
6 deliberating.
7 MR. MULLIN: That's right. We may
8 have to add -- so then the only other charge --
9 and I wanted to add to emotional pain and
10 suffering, Judge, as I said yesterday -- was
11 that paragraph in 10:5-3.
12 JUDGE CURRAN: You did.
13 MR. MULLIN: Yes. And that's
14 the -- it's -- it's -- so it's in the books.
15 And I wanted -- probably -- I'm asking the
16 Court --
17 JUDGE CURRAN: The last paragraph,
18 I believe.
19 MR. MULLIN: The last paragraph.
20 "Legislature finds" -- we don't have to say
21 "further finds" -- and that whole list. I will
22 read it in, Your Honor. Would that make sense
23 because -- shall I read that?
24 MR. BEVERE: Judge, can you hold
25 on a second because I want to find my copy and I
142
1 want to read along.
2 MR. MULLIN: I have the book here.
3 MR. BEVERE: I had a copy. I am
4 trying to find it, so I can read along. All
5 right.
6 MR. MULLIN: I would introduce it
7 by saying the -- "In the Law Against
8 Discrimination the legislature has found that
9 because of discrimination people suffer personal
10 hardships." I put a period and not have
11 "suffer" -- I left that out.
12 "The personal hardships include
13 economic loss, time loss, physical and emotional
14 stress and some cases severe emotional trauma,
15 illness, homelessness or other irreparable harm
16 resulting from the strain of" -- I won't say
17 "employment" -- "resulting from the strain of
18 discrimination, relocation, search and moving
19 difficulties, anxiety caused by lack of
20 information, uncertainty and resulting planning
21 difficulty, career, education, family and social
22 disruption and adjustment problems."
23 I would like that charge. Could
24 be as a freestanding charge that precedes both
25 the economic and emotional -- and pain and
143
1 suffering charge by way of introduction. I
2 would like that charged.
3 JUDGE CURRAN: Two small issues.
4 First one is about making the wording, "may
5 suffer."
6 MR. MULLIN: Yes.
7 JUDGE CURRAN: And I think we
8 should take out "homelessness" --
9 MR. MULLIN: Yes.
10 JUDGE CURRAN: -- because --
11 MR. BEVERE: Judge, please note my
12 objection to anything on -- on pain and
13 suffering that is not in the model charge.
14 JUDGE CURRAN: You're going to
15 argue against it right now. I just wanted to
16 revise what the proposal was.
17 MR. MULLIN: I am just proposing
18 it, so there can be whatever arguments need to
19 be. I agree with taking out "homelessness." I
20 would take out "irreparable harm resulting from
21 the strain of employment controversies." We do
22 have relocation, search and moving difficulties.
23 We do have anxiety caused by lack of
24 information, uncertainty and resulting planning
25 difficulty. We do have career, education -- we
144
1 don't have education. We have career, family
2 and social disruption. And we do have
3 adjustment problems. So I would include all
4 those.
5 JUDGE CURRAN: As to the argument
6 not to include that in the charge, Mr. Bevere.
7 MR. BEVERE: Well, Judge, quite
8 frankly, I think that putting that charge in
9 there, I think it's unduly prejudicial. I think
10 that everything as far as pain and suffering,
11 emotional distress, it's all covered by the
12 model charge. And I would have a strenuous
13 objection to anything other than the model
14 charge on pain and suffering. I think you start
15 charging things in here, it's almost as if you
16 are directing the jury where to go. The model
17 charge is the model charge, and I think it
18 should stay the model charge.
19 JUDGE CURRAN: Mr. Mullin,
20 anything else?
21 MR. MULLIN: I would say if we can
22 soften the introductory, you could consider
23 whether or not to say, "you could" -- but I
24 think there is a specific finding in the
25 language of the statute, and I think it's
145
1 important to let the jury know that they are not
2 limited in assessing damages just to the kind of
3 damages psychiatric experts testify to.
4 In LAD case damage that can be
5 awarded for emotional distress is extremely
6 broad. That is in the Tarr case, T-a-r-r. I
7 can get you the cite for that. But it's much
8 broader -- it's not like a case where you
9 have -- where you need psychiatric experts. In
10 the LAD, the Rendine case held you most
11 definitely don't need psychiatric experts. The
12 legislature used the word "emotion." The
13 stress, not distress. And it's -- it's very,
14 very broad.
15 So, yes, we have emotional
16 distress experts; but also, the plaintiffs,
17 themselves, have testified about what they've
18 suffered. And so this -- this helps convey the
19 message to the jury they can consider that.
20 Not -- not that they're directed to do it.
21 Shouldn't be directed to do it, but they can
22 consider factors the legislature thought were
23 important enough to put in a specific finding.
24 JUDGE CURRAN: Mr. Mullin, you
25 indicated very fairly what you wanted to raise
146
1 today. I have tried to find some cases. And
2 I'll be the first to say Miss Catapano was out
3 sick yesterday, so I didn't get very far on the
4 computer. I'm okay if I have got the cite or --
5 MR. MULLIN: Right.
6 JUDGE CURRAN: -- name but not
7 those phrases. Do you have any case where the
8 wording from the statute was used in the jury
9 charge?
10 MR. MULLIN: I don't. But I
11 wonder if it was used in the Tarr case. I am
12 going to look.
13 JUDGE CURRAN: Why don't we do
14 this. If --
15 MR. MULLIN: I can check that,
16 Your Honor.
17 JUDGE CURRAN: Why don't we check
18 that because that to me would be decisive. I
19 frankly agree with Mr. Bevere that, you know,
20 that charge is so definite about, you know, the
21 value of suffering or pain and suffering or
22 whatever and, you know, the value of money and
23 we can't -- we don't have any chart to --
24 MR. MULLIN: You know, Your Honor,
25 I am going to make it easy for us because we are
147
1 on a tight schedule. I will withdraw the
2 request.
3 JUDGE CURRAN: I will note that on
4 the record. I appreciate it. Thank you.
5 The last thing I did also want to
6 say, that usually the references to the statutes
7 quote a statute -- quotes the section of the
8 statute in question which is violated, not
9 damages under it.
10 MR. MULLIN: I will withdraw it,
11 but I want to reserve my right to argue those
12 kinds of factors in my closing argument.
13 JUDGE CURRAN: Certainly.
14 MR. MULLIN: And the other two
15 things, as I mentioned yesterday, I wanted to
16 charge the jury on some portion of the statutes
17 that are mentioned -- that were mentioned in
18 cross-examination and mentioned in police
19 reports in some cases.
20 I cited 12 -- 12: -- excuse me,
21 2C:12-1, the language in A1, 2 and 3, simple
22 assault and then the language in B, aggravated
23 assault. "The person is guilty of aggravated
24 assault if he, 5, commits a simple assault as
25 defined in A1, 2 and 3 upon, A, any law
148
1 enforcement officer acting in the performance of
2 his duties while in uniform or exhibiting
3 evidence of his authority or because of his
4 status as a law enforcement officer." That's --
5 I -- I referred to that in detail when
6 cross-examining Sergeant Amodeo.
7 And then I referred -- Sergeant
8 Amodeo actually had in his police report
9 heading, "2C:33-4 harassment." And except as
10 provided in Subsection E, "A person commits a
11 petty disorderly persons offense if, with
12 purpose to harass another, he, A, makes or
13 causes to be made a communication or
14 communications anonymously or at extremely
15 inconvenient hours or offensively course
16 language or in any other manner likely to cause
17 annoyance, B, subjects another to striking,
18 kicking" -- well, that's not going to be
19 involved here, not B. "C, engages in any other
20 course of alarming conduct or repeatedly
21 committed acts with the purpose to alarm or
22 seriously annoy such person." So that's that
23 one.
24 And there was --
25 JUDGE CURRAN: Sixteen.
149
1 MR. MULLIN: -- another one,
2 2C:16-1, bias intimidation. And this, again, is
3 cited in numerous police reports. A --
4 "2C:16-1a, bias intimidation. A person is
5 guilty of the crime of bias intimidation if he
6 commits, attempts to commit, conspires with
7 another to commit or threatens the immediate
8 commission of an offense specified in such and
9 so chapter" -- cites certain chapters -- "with
10 the purpose to intimidate an individual or group
11 of individuals because of race, color" -- et
12 cetera -- "sexual orientation or knowing that
13 the" -- "that the conduct constituting the
14 offense would cause an individual, group of
15 individuals to be intimidated because of sexual
16 orientation." Just trying to see if Section 3
17 is relevant. I think that's it on that section.
18 MR. PARIS: Your Honor, with
19 regard to both of these statutes, I don't know
20 what the purpose is other than to lead to some
21 impression that a crime was committed. This
22 isn't a criminal case. Whether Mr. Mullin made
23 reference to criminal statutes or not, I think
24 by charging the jury on criminal statutes all
25 it's really going to do is confuse them as to
150
1 what the purpose of this information is.
2 You know, whether it's assault or
3 whether it's the discrimination statute, I --
4 you know, we have -- we have a civil case. We
5 have the civil charge with regard to the
6 allegations that are being made. But -- and --
7 but with regard to this, there doesn't seem to
8 be any point here. Doesn't seem to be leading
9 anywhere. I think it's probably going to
10 confuse the jury.
11 JUDGE CURRAN: Anything else?
12 MR. MULLIN: I don't think -- I
13 think it should be very clear it is not a
14 criminal case, but this is mentioned to the
15 jury. There was actually considerable testimony
16 made about it. And it's just simply to inform
17 them that this is what the statute says, that's
18 all.
19 The other statute I want to do
20 that with is that statute whose citation I never
21 get right about --
22 JUDGE CURRAN: 2A?
23 MR. MULLIN: How to immunize the
24 Fifth Amendment. I think of it as the Garrity
25 issue.
151
1 JUDGE CURRAN: Yes.
2 MR. MULLIN: But that statute also
3 has been mentioned, and so I think we should
4 simply state what it is. I think the Court can
5 say, "This is not a criminal case. No one is
6 being charged with a crime here, but" -- or
7 something to that effect -- "but these statutes
8 have been mentioned. Their text is as follows."
9 MR. PARIS: See, I think there is
10 a difference because, in fact, I have just
11 e-mailed to Amy a --
12 JUDGE CURRAN: You are e-mailing
13 10 feet across the courtroom? I am impressed.
14 MR. PARIS: I asked Amy if she
15 could give you and Mr. Mullin a copy.
16 JUDGE CURRAN: Oh, I'm impressed.
17 MR. PARIS: I just want you to
18 understand I am doing business here, you know.
19 In any case -- if I had the printer set up, I
20 guess I could do it myself. But in any case, I
21 think there is a difference because I think the
22 jury does need to hear not -- not get a
23 statutory citation; but the jury does need to
24 hear with regard to what Mr. Mullin called the
25 "Garrity," what the powers are because there has
152
1 been an allegation that somehow the municipality
2 has the power to provide use immunity. That's
3 clearly not the case.
4 Okay. On the other hand, it's
5 one thing to have testimony with regard to a
6 potential statute or criminal statute. And
7 there was testimony. That's fine. There was
8 cross-examination. But to --
9 MR. MULLIN: I will withdraw it,
10 Your Honor.
11 JUDGE CURRAN: Thank you.
12 MR. MULLIN: I want to move
13 forward. So if counsel agrees to that statute,
14 that text going in, the Garrity issue --
15 JUDGE CURRAN: No, no, I don't
16 think he was.
17 MR. PARIS: No, what I'm
18 suggesting -- I just prepared some -- some very
19 brief language with regard to that first.
20 JUDGE CURRAN: Let me just put --
21 I'm sorry to interrupt.
22 MR. PARIS: If Mr. Mullin is
23 withdrawing those two statutes, I will sit down
24 and be quiet.
25 JUDGE CURRAN: I think that makes
153
1 total sense. None of the 2C references, I
2 believe, are appropriate, mainly because if you
3 are going to, you know, put those in, then there
4 also are all those explanations about the
5 elements and what this means and that and it --
6 where you don't need it. I think it would not
7 be appropriate. And it was very carefully
8 explored in the testimony. I got to tell you,
9 Sergeant Amodeo is the only police officer I
10 have ever seen who in his report addresses the
11 elements. I have never seen that.
12 MR. MULLIN: Yes.
13 JUDGE CURRAN: But anyway --
14 MR. BEVERE: He is in the wrong
15 field, Judge.
16 JUDGE CURRAN: As to the
17 Garrity --
18 MR. PARIS: Judge.
19 JUDGE CURRAN: -- could we maybe
20 have a stipulation on Garrity? Would that make
21 sense, just a stipulation that Garrity?
22 MR. BEVERE: We prepared a charge,
23 Judge.
24 MR. PARIS: I can actually read it
25 to Your Honor, if you want.
154
1 JUDGE CURRAN: Sure. It will be
2 in the record because Tracey is here.
3 MR. PARIS: That's fine.
4 JUDGE CURRAN: Oh, my gosh, he is
5 using another gadget.
6 MR. PARIS: I dictated it, then my
7 secretary just e-mailed.
8 MR. MULLIN: Your Honor, can I
9 take a call from my office?
10 JUDGE CURRAN: Sure. We will go
11 off the record for a moment.
12 (Whereupon, a brief recess is
13 taken.)
14 JUDGE CURRAN: Does counsel have
15 the proposal that Mr. Bevere has gotten to us
16 through use of BlackBerries?
17 MR. BEVERE: Mr. Paris has.
18 JUDGE CURRAN: I'm sorry,
19 Mr. Paris, right.
20 MR. BEVERE: Mr. Bevere does not
21 have a BlackBerry.
22 MR. PARIS: In any case, Judge,
23 there -- there is a proposed charge, I guess, as
24 long as we are talking about statute, which I
25 just put together, which I think covers what
155
1 Mr. Mullin refers to as the "Garrity" issues.
2 Just for the record, it states,
3 "The Fifth amendment of the United States
4 Constitution gives every citizen the right not
5 to testify or speak to the police or police
6 authorities. Public employers may not take
7 action against an employee who invokes their
8 Fifth Amendment rights and refuses to testify or
9 speak to the police."
10 "Only the Attorney General or
11 County Prosecutor may provide a public employee
12 with use immunity. And only then can the public
13 employee be stopped from invoking their Fifth
14 Amendment right."
15 "If a public employee still
16 refuses to testify after the Attorney General or
17 County Prosecutor has provided use immunity,
18 under New Jersey law only the State Attorney
19 General may file an action in Superior Court to
20 terminate the employee for continuing to invoke
21 their Fifth Amendment right."
22 And that's from the statute.
23 The other proposed charge was
24 with regard to expert opinions. And that
25 states, "You have heard testimony regarding
156
1 findings by Dr. Almeleh. Unlike Dr. Bursztajn
2 and Dr. Goldwaser, Dr. Almeleh has not appeared
3 before you to testify as an expert witness. His
4 findings were only discussed because they were
5 reviewed and considered by the two other
6 experts, Dr. Bursztajn and Dr. Goldwaser. You
7 are not to consider the findings of Dr. Almeleh
8 as expert opinion or testimony in this case, as
9 he has not come before you to testify."
10 MR. MULLIN: Let's start with
11 Fifth Amendment. Also in my charge I have --
12 JUDGE CURRAN: Adverse inference?
13 MR. MULLIN: -- adverse inference.
14 JUDGE CURRAN: Is there any
15 argument against the adverse inference charge?
16 If so --
17 MR. PARIS: Pardon?
18 JUDGE CURRAN: Any argument or
19 objection to the adverse inference?
20 MR. PARIS: Absolutely.
21 Absolutely. We had discussed this in limine.
22 We continue to discuss this. The fact is -- and
23 you know, I will start the argument -- the
24 invocation of the Fifth Amendment rights of
25 Snyder, Sr., Jr. and Mutschler, as far as we're
157
1 concerned, are just as detrimental to us in
2 terms of bringing -- and again, we're assuming
3 that they did what the plaintiffs allege they
4 did. We would have been absolutely delighted if
5 they had been prosecuted, if they had been
6 identified. And we may have cross-claimed
7 against them and had a cross-claim against them.
8 There is no advantage to the
9 municipality to have this hanging out there.
10 There was certainly no advantage to having
11 Mr. Mullin put them on the stand, repeat his
12 opening, or at least on two occasions, with each
13 one of them and have them invoke the Fifth
14 Amendment privilege. That certainly didn't help
15 the municipality in any way.
16 In fact, the one time that
17 Mr. Snyder, Jr., I think -- was it Junior?
18 Senior? Senior messed up when he wasn't --
19 JUDGE CURRAN: Senior.
20 MR. PARIS: -- wasn't listening to
21 his attorney. Again, it can be stricken amongst
22 the jury but not against the Court and counsel.
23 The one time he screwed up and answered a
24 question by mistake, it was a question to Mr.
25 Bevere, which I think we were all surprised to
158
1 hear answered, which was, "No, I wasn't on-duty
2 when I was doing this." And I would have been
3 delighted if we would have just left that and
4 been able to continue.
5 In fairness -- in fairness --
6 JUDGE CURRAN: Was it on-duty, or
7 was it employed?
8 MR. PARIS: I can look it up in
9 terms of the transcript, but whether it was
10 employed --
11 MR. BEVERE: I think -- I think
12 my -- I think my question was, "Were you working
13 that night"; and he said, "No."
14 JUDGE CURRAN: Oh, okay.
15 MR. PARIS: So whatever it was --
16 whatever it was, it was certainly advantageous
17 to us.
18 Mr. Mullin had a conference with
19 Mr. Nulty. That was retracted. The jury was
20 told to disregard it. But the -- the -- but
21 what -- what did that give us insight to? What
22 it gave us insight to is if they had testified,
23 we would have been happy. We didn't gain any
24 advantage by that.
25 So to say that the Town somehow
159
1 has an adverse inference drawn against it
2 because these three people invoke their Fifth
3 Amendment rights, when the issue of use immunity
4 is clearly dealt with by statute, which the
5 issue of what happens if they're granted use
6 immunity and still don't testify is clearly
7 dealt with by statute.
8 Again, you know, nobody is saying
9 what the Grand Jury knew; but one thing we do
10 know is that the Superior -- the Attorney
11 General didn't start an action in Superior Court
12 to terminate their employment because I think we
13 would have known that. So, I mean, I just don't
14 see how that can be used against the Town under
15 these circumstances.
16 MR. MULLIN: All these issues were
17 dealt with in the Rad case, Rad Services V.
18 Aetna 808 F.2d 271. And there the court held
19 the Fifth Amendment assertion of privilege
20 against corporate employer, even though in that
21 case some of the employees were no longer even
22 employed.
23 The court noted that, "nothing
24 forbids imputing to a corporation the silence of
25 its personnel. On the one hand, Federal Rule of
160
1 Evidence 801(d)(2)(D) excepts from the hearsay
2 rule a statement offered against a corporate
3 party and made by its agent or servant
4 concerning a matter within the scope of his
5 agency or employment during the existence of the
6 relationship. The bases for admitting these
7 vicarious admissions against the corporation
8 also justifies informing the factfinder when the
9 corporation's agent invokes the Fifth Amendment
10 privilege."
11 "An employee's self-interest
12 would counsel him to exculpate his employer, if
13 possible. The witness, as well, would know the
14 facts about which he is called to testify since
15 they relate to the scope of his employment. The
16 employer, moreover, could rebut any adverse
17 inference that might attend the employee's
18 silence, by producing contrary testimonial or
19 documentary evidence. On the other hand, the
20 mere fact that the witness no longer works for
21 the corporate party should not preclude as
22 evidence his invocation of the Fifth Amendment."
23 That's -- I was reading at
24 pages -- at page 275 of the Rad opinion. The
25 instruction I took came out of that case that
161
1 the court need not -- is not required to but may
2 draw an adverse inference from the -- from the
3 invocation of the Fifth Amendment. We have a
4 battalion chief of the Secaucus Fire Department
5 taking the Fifth while he is the battalion
6 chief. He is conceded by defense to be upper
7 management. Member of upper management of this
8 Town came in here and took the Fifth. And --
9 and -- and they say that that should not be --
10 that I should not get an adverse inference. It
11 makes no sense in light of the Rad case.
12 It's a reasonable inference that
13 had -- had he -- by taking the Fifth, this
14 battalion chief, was a battalion chief when I
15 took his deposition, completely foiled my
16 efforts at discovery. He prevented me from
17 learning the facts within his knowledge, as did
18 the department head, Chuck Snyder, Sr.
19 Completely blocked me from learning details of
20 this case that are within his purview.
21 It's also clear that, based on
22 Mr. Leanza's testimony, that the Town never
23 sought to use the -- never asked the Attorney
24 General to use the Garrity procedure. They
25 could have -- they could have asked the Attorney
162
1 General to use that procedure. They could have
2 encouraged the Attorney General to use that
3 procedure at least with respect to one of these
4 three men.
5 Suppose they had simply asked,
6 would the Attorney General have refused Mayor
7 and Town counsel, if they requested they
8 immunize Mutschler or Snyder under the Fifth
9 Amendment under the threat of termination, as
10 that statute requires? I don't think the
11 Attorney General would have refused that, having
12 an impaneled Grand Jury. And then one of them
13 would have been forced to testify against the
14 other two.
15 The only time one of these
16 witnesses violated the Fifth Amendment assertion
17 was to help the Town. When counsel asked him
18 something to the effect of -- I think it was
19 Snyder -- Snyder, Sr., but I'm not sure.
20 JUDGE CURRAN: It was Senior.
21 MR. MULLIN: It was Senior.
22 Something to the effect of, "Were you working
23 that night?" And Snyder, Sr., so anxious was he
24 to give the Town its defense that it was -- that
25 it was not while on-duty, that it wasn't under
163
1 color of State law, blurted out -- actually, one
2 could argue even waiving his privilege -- "no."
3 And then we had to remind him he is asserting
4 the privilege.
5 So the only time he forgot to
6 assert the privilege is when he sought to help
7 the Town. So what you have here is, at least
8 when it comes to Snyder, Sr. and Snyder, Jr.,
9 two high-level Town -- Town managers, you have a
10 guy who the Mayor said is now head of a
11 department in the DPW, Snyder, Sr. and you have
12 the battalion chief taking the Fifth.
13 Clearly, these are party
14 admissions made while they are still in the --
15 in the master -- in the principle/agency
16 relationship to the Town. And for that simple
17 reason under Rad their silence should give rise
18 to the adverse inference in Rad.
19 And again, the charge is very --
20 very limited, very mild. It simply asks --
21 instructs the jury that they -- that -- number
22 one, it tells the jury that they have a right to
23 assert their Fifth Amendment privilege.
24 However, the jury may, but is not required to,
25 infer by such refusal that had the witness, in
164
1 fact, answered the questions posed to them,
2 their answers would have been adverse to the
3 interests of the Town of Secaucus. And again,
4 that's taken from the Rad case 808 F.2d, that
5 passage, page 277.
6 JUDGE CURRAN: Mr. Bevere.
7 MR. BEVERE: Judge, regardless of
8 whether it's mild or not, it is improper under
9 these circumstances. And clearly, as Mr. Paris
10 said, when Mr. Mullin just said, in the one time
11 he slipped up and gave an answer, he tried to
12 help the Town, well, exactly. We were stymied
13 by them taking the Fifth Amendment, as he claims
14 he was. In fact, it's been our consistent
15 belief he would have exculpated us.
16 And when you're talking about
17 people taking the Fifth, it's one thing; it's --
18 it's a personal -- them taking the Fifth, Judge,
19 was a personal benefit to them. It wasn't a
20 benefit to the Town of Secaucus. It was not
21 detriment of the Town of Secaucus.
22 And quite frankly, Judge, this
23 whole thing with the use immunity, the Attorney
24 General knows that they have the ability to
25 grant use immunity. They know they have the
165
1 ability to grant it.
2 Now, we don't even know whether
3 the -- because we don't know what went on before
4 the Grand Jury, we don't even know whether
5 anybody was -- was afforded the use immunity.
6 All we know was that the only people who can
7 grant it are the Attorney General and the
8 Prosecutor.
9 The Town can't do -- and it's
10 just speculation to say that if we had asked
11 them to grant use immunity, they would have
12 granted it. It is as equally plausible if we
13 said to them, "Please grant these guys use
14 immunity," the Attorney General might have said
15 to us, "Butt out of our investigation. This is
16 our investigation, and we don't care what you
17 want us to do because we're protecting the
18 citizens of the State of New Jersey. We're not
19 protecting the Town of Secaucus. We're
20 protecting the citizens of the State of New
21 Jersey. So we'll conduct our investigation."
22 And it's preposterous to think
23 that the Attorney General of the State of New
24 Jersey does -- Hester Agudosi does not know that
25 she has the availability to grant use immunity.
166
1 MR. MULLIN: Your Honor, let me
2 separate the question. My argument on this
3 charge doesn't hinge on the issue of use
4 immunity, not at all. Let's separate the
5 argument.
6 I'm asking -- based on the Rad
7 case I'm saying when -- when an upper manager of
8 the Town, a current upper manager, the battalion
9 chief, comes into this court and takes the
10 Fifth, that is the Town taking the Fifth. That
11 is the Town taking the Fifth. That's a party
12 admission. That's -- that is someone speaking
13 for the Town. The Town through him has taken
14 the Fifth, and that is binding on the Town.
15 When a witness -- I don't think
16 counsel would disagree, if I was suing, just
17 say, Chuck Snyder, Jr. and he took the Fifth,
18 they wouldn't disagree, I don't think, that then
19 I'm entitled to the adverse inference. What
20 they're saying is, as I understand the argument,
21 is that, well, that's -- that's Snyder, Jr.
22 taking the Fifth, but that's -- that shouldn't
23 be imputed to the Town. But under the rule of
24 governing party admissions, a statement made by
25 an agent of a principle within the scope of that
167
1 agency is -- is binding on that agent as a party
2 admission.
3 You know, if the Mayor comes in
4 here, that's binding on the Town. If the
5 battalion chief comes in here, that's binding on
6 the Town. These are upper managers who bind the
7 Town by their admissions under oath in this
8 courtroom. How could we not attribute the
9 taking of the Fifth to the Town? That's all the
10 Rad case is saying.
11 And once somebody takes -- once a
12 party takes the Fifth, it's black letter law
13 that I get -- that the adverse party gets an
14 adverse inference.
15 So I don't hear an answer to that
16 argument. That is the Rad analysis. There are
17 also other cases. There is a case in New Jersey
18 about the adverse inference. There is not
19 anything new. And if you take the Fifth in
20 civil litigation, the opposing party gets the
21 adverse inference. It's not mandatory. The
22 Supreme Court of New Jersey in one opinion says
23 you don't get summary judgment, but you get the
24 adverse inference. The jury may grant the
25 adverse inference. They don't have to, but they
168
1 may. I get to argue it. And the jury can take
2 it or leave it.
3 So the real only issue is why
4 shouldn't the battalion chiefs' taking of the
5 Fifth, the taking of the Fifth by upper
6 management, why shouldn't they be attributed to
7 the Town under the party admission rule? I
8 don't hear an answer to that.
9 JUDGE CURRAN: Mr. Bevere.
10 MR. BEVERE: Judge, the battalion
11 chief was not the battalion chief when these
12 alleged acts of criminal harassment are said to
13 have taken place. He subsequently became the
14 battalion chief.
15 And we're not talking about a
16 situation where he is being put up here on the
17 witness stand and saying to him, "Is the Town of
18 Secaucus overlooking five code violations for
19 this or for that" because maybe the Town has an
20 interest in overlooking fire code violations of
21 certain businesses or certain people because of
22 who they are and what they are.
23 And if Snyder was to come in and
24 say, "I take the Fifth," that's -- in his
25 capacity as battalion chief, that's a different
169
1 story. But he was not testifying in this court
2 in his capacity as battalion chief. He was
3 testifying here as Chuck Snyder, Jr., a man
4 accused of an act of criminal harassment,
5 criminal harassment. And -- and his invoking of
6 the Fifth was nothing that the Town could do
7 anything about.
8 And that's the problem. We
9 couldn't prevent him from taking the Fifth. He
10 has a right to take the Fifth. And under
11 2A:81-17.2a we couldn't terminate him or
12 discipline him for doing that.
13 The Attorney General could have
14 said to him, "You have use immunity; and if you
15 don't testify, we're going to bring an action in
16 Superior Court to remove you from the Secaucus
17 Fire Department." But the Town of Secaucus had
18 nothing -- it wasn't -- we had no power to do
19 that.
20 And I stand, Judge, by our --
21 certainly -- certainly, this is a situation
22 where these individuals may and likely would
23 have had information that would have exculpated
24 the Town. It was bad enough that they had to
25 sit there and invoke the Fifth Amendment while
170
1 Mr. Mullin was reiterating his direct
2 examination, so now the entire jury sees this
3 display, which is highly prejudicial to the
4 defense. And now what we're going to say is,
5 "And you can draw adverse inferences against the
6 Town of Secaucus by these individuals invoking
7 their Fifth Amendment right." And it -- it is
8 just completely, completely improper.
9 And it would be one thing if we
10 could have done something and said -- but we --
11 we can't, Judge. We can't -- they have an --
12 it's their personal -- personal right to take
13 the Fifth Amendment on crimes that they are
14 being accused of in their personal capacity.
15 They have that right.
16 And -- and, quite frankly, Judge,
17 for -- for this jury to be -- to be told
18 anything other than, quite frankly, the fact
19 that the Town of Secaucus -- it -- it is -- I
20 think the only charges should be given -- and we
21 will get to that in a second -- is that the Town
22 of Secaucus could not discipline them or
23 terminate them for exercising their Fifth
24 Amendment right.
25 Because I will tell you right
171
1 now, Judge, that's what's in this jury's mind.
2 This jury thinks that the Town of Secaucus
3 somehow did something wrong by not firing these
4 guys when they exercised their Fifth Amendment
5 privilege. That's what's in their minds, and
6 that's not fair because we didn't have that
7 right.
8 We didn't -- and we can't
9 speculate as to what -- we don't even know
10 whether the Attorney General offered use
11 immunity, but I can tell you right now it's
12 their prerogative. It's their prerogative; it's
13 their investigation. And Hester Agudosi
14 certainly knows that she has the ability to
15 grant use immunity. And I -- quite frankly,
16 Judge, I think the -- it was bad enough that
17 they sat there and the jury watched that
18 display. Now we're going to compound it with an
19 adverse inference? And I think it's highly
20 improper.
21 MR. MULLIN: Your Honor, let me
22 make this really clear for the record. Defense
23 counsel didn't object to my questioning of these
24 witnesses. What defense counsel did was after I
25 questioned them, he got up and, with a series of
172
1 leading questions, did his closing argument.
2 Defense counsel, who now pretends that he had
3 some problem with my questioning these
4 witnesses, did not object to my questioning
5 these witnesses by leading questions. They were
6 adverse witnesses, and he did not object.
7 This -- this objection that he
8 makes now is complete -- is way too late, way
9 too late.
10 A separate question is on the
11 adverse inference. I'm going to withdraw my
12 request for the adverse inference.
13 JUDGE CURRAN: Well, I got to tell
14 you --
15 MR. MULLIN: You were about to go
16 my way?
17 MR. PARIS: That was done very
18 dramatically too.
19 MR. MULLIN: It was the pregnant
20 pause.
21 MR. PARIS: The pause, it was
22 beautiful.
23 MR. MULLIN: You know what, I -- I
24 don't want to create any controversial issues in
25 addition to any controversial issues that may be
173
1 in this case.
2 JUDGE CURRAN: I can certainly
3 understand that. We have to pick and choose our
4 battles.
5 MR. BEVERE: By Mr. Mullin
6 withdrawing his request for the adverse
7 inference charge does not mean that Mr. Paris
8 and I aren't asking for the charge that we
9 submitted.
10 JUDGE CURRAN: Which is?
11 MR. BEVERE: We think it's proper.
12 It's just a fair statement of the law.
13 JUDGE CURRAN: Which is the
14 Garrity?
15 MR. BEVERE: Yeah, because, I
16 mean, Judge, I don't think that the jury should
17 be left with the --
18 JUDGE CURRAN: Let's see if he
19 objects.
20 MR. MULLIN: My objection is
21 only --
22 JUDGE CURRAN: He withdrew
23 retaliation. He withdrew adverse inference.
24 MR. MULLIN: I am trying to move
25 the process along.
174
1 JUDGE CURRAN: Got it.
2 MR. MULLIN: I would ask that it
3 be balanced out by reading first 2A:81-17.2a2
4 and then 2A:81 -- excuse me, I have it wrong.
5 The first one is 2A:81-17.2a1, duty of employee
6 to appear and testify.
7 JUDGE CURRAN: That's what you
8 talked about yesterday.
9 MR. MULLIN: And 2A:81-17.2a2,
10 immunity of use of evidence after claim of
11 privilege, which are the two pieces of the
12 Garrity statute. I would balance out what they
13 have by adding that, simply reading that.
14 MR. PARIS: Your Honor, I think --
15 and again, I'm always very reluctant to think
16 about reading statutes to juries. You know, we
17 have had arguments amongst counsel with the
18 court involved throughout this trial about this
19 statute. And to read them the statute -- like
20 Your Honor had said earlier, you start talking
21 about what's reasonable cause and what's
22 proximate cause and what -- not proximate cause,
23 but what's probable cause and things like that.
24 If you are going to read portions of statutes,
25 then, clearly, you have got to read 2a4, you
175
1 know, that portion which talks about proceeding
2 may be instituted to effect such removal in
3 Superior Court by the Attorney General or County
4 Prosecutor.
5 MR. MULLIN: No objection.
6 MR. PARIS: But you see, I still
7 think -- I still think our charge puts it in
8 Lehmann terms. It's clearer than reading them a
9 statute, which attorneys are going to have to
10 argue about.
11 And frankly, you know, I think
12 that if -- if there is additional language here
13 or there that, you know, that talks about, you
14 know, the duty a public employee to testify, you
15 know, I don't have a problem with the statute;
16 but I just don't think that reading a statute to
17 a juror is really wise thing to do.
18 MR. MULLIN: Your Honor, this
19 statute is really clear. And it begins, "It
20 shall be the duty of every public employee to
21 appear and testify upon matters directly related
22 to the conduct of his office, position or
23 employment before any court, Grand Jury or State
24 Commission of Investigation. Any public
25 employee failing or refusing to so appear and to
176
1 so testify after having been informed of his
2 duty to appear and testify under this act by the
3 prosecuting attorney or a member of or attorney
4 for" -- "from the State Commission of
5 Investigation, as the case may be, shall be
6 subject to removal from his office, position or
7 employment."
8 We have referred -- Mr. Leanza
9 referred to that at great length in his
10 testimony. Chief Corcoran referred to it at
11 great length in his testimony. He is the one
12 that injected the Garrity into the case, that
13 term into the case.
14 So I am just asking Your Honor
15 that it be read. Your Honor can say, "The
16 statute has been referred to repeatedly by
17 witnesses and counsel. This is the text of the
18 statute." I think it should be done.
19 MR. PARIS: If you read those, I
20 think you have to read about the right of
21 removal and you have to read our --
22 JUDGE CURRAN: Okay. I am going
23 to read all the pertinent sections, including
24 the right of removal. I am going to read the
25 charge of -- proposed by the defense. I find
177
1 that this is a significant difference from my
2 other concerns in -- in regard to the 2C issues
3 because there you have got words in the criminal
4 code about intent, knowing. That is not a
5 problem here. It is clear.
6 And frankly, it is an issue. It
7 was testified to at length. And counsel is free
8 to argue their positions. But especially
9 because the position of the Town is there was
10 nothing we could do and the position of the
11 plaintiff is, yeah, you could have at least have
12 requested it maybe, if -- if there had been a
13 request, the DAG may have granted it, denied it
14 or not answered. But at least because of the
15 fact-sensitive nature of this case, which is
16 saying the Town didn't do what it was supposed
17 to do, I find that it is --
18 MR. BEVERE: Judge, I just don't
19 know where the legal authority is that the Town
20 has to contact the Prosecutor.
21 JUDGE CURRAN: I didn't say --
22 MR. BEVERE: Because, quite
23 frankly --
24 JUDGE CURRAN: Doesn't say there
25 is a duty.
178
1 MR. BEVERE: If you listen to what
2 Captain Buckley said, you listen to Captain
3 Buckley's testimony, what did Captain Buckley --
4 Captain Buckley said, "I got this to the
5 Prosecutor. And when I contacted them in May,
6 I" -- "because they can do things that I can't
7 do. They have a way of compelling people to
8 talk that I can't do." So Captain Buckley's
9 testimony was that he, in fact, tried to do
10 that. He said --
11 JUDGE CURRAN: Is there anybody
12 here -- and this is not in the charge -- who
13 thinks that it is not the usual activity in some
14 towns, in some unnamed counties, that municipal
15 officials communicate informally with the
16 Prosecutor's Office and say, "Got to do this"
17 or, "You absolutely have to refrain from doing
18 this"?
19 MR. BEVERE: I mean, here is the
20 different -- here is the difference, Judge. The
21 difference is that there is no doubt that the
22 Secaucus Police had no authority to get people
23 to speak or to give use immunity.
24 JUDGE CURRAN: No doubt.
25 MR. BEVERE: There is no question
179
1 about that.
2 JUDGE CURRAN: There is no doubt
3 they had a duty to ask for the use immunity.
4 MR. PARIS: You think that they
5 had a duty to?
6 JUDGE CURRAN: No, I said there is
7 no doubt that they did not have a duty to ask
8 for use immunity.
9 MR. PARIS: Plaintiffs could have
10 done it. The plaintiffs could have asked the
11 Prosecutor. They are the victims of a crime.
12 They could have asked the Prosecutor, "Please
13 give use immune, and at least we will be able to
14 prosecute somebody."
15 JUDGE CURRAN: I understand. But
16 they are asking --
17 MR. BEVERE: And, quite frankly,
18 Judge, I mean, once -- once the matter goes to
19 the criminal prosecutorial authorities, then
20 municipality has no more control or involvement
21 over that investigation. And -- and -- and,
22 quite frankly, you know, that's -- and if you
23 listen to what Captain Buckley said, he said --
24 and it's one of those -- well, you know --
25 JUDGE CURRAN: I got it. All the
180
1 arguments are on the record. I'm going to read
2 your proposed charge exactly as it is. I will,
3 however, just add the additional sections of
4 2A:81, which I think are 17.2a1, 2b and 4. And
5 I don't have the right of renewal complete cite.
6 Okay.
7 MR. PARIS: What cite?
8 JUDGE CURRAN: Right of removal.
9 MR. MULLIN: That -- I believe
10 that's my -- I think we were doing my charges,
11 right?
12 MR. BEVERE: Yeah.
13 MR. MULLIN: I'm finished with my
14 charges. Now we are going to their charges.
15 MR. BEVERE: We have to go to the
16 Monell charge, which we submitted.
17 JUDGE CURRAN: Yes, we do.
18 MR. MULLIN: Let's do it.
19 MR. BEVERE: Judge, this is the
20 third call from my wife. Can I just take it?
21 MR. MULLIN: Your Honor.
22 JUDGE CURRAN: Yes.
23 COURT CLERK: Off the record?
24 MR. MULLIN: The big blowups, are
25 they in the office?
181
1 JUDGE CURRAN: I think they might
2 have been in my office.
3 MR. MULLIN: John might have
4 brought them in there because I --
5 JUDGE CURRAN: Off the record.
6 Thank you.
7 (Whereupon, a brief recess is
8 taken.)
9 JUDGE CURRAN: Mr. Bevere, in
10 regard to the charges proposed by the defense.
11 I am dealing with the request for charge, as we
12 said yesterday, which was given to counsel,
13 signed on May 30th by both counsel, correct?
14 That's the final copy. All right.
15 MR. BEVERE: Judge, just so that
16 you know, with regard to -- maybe we can try and
17 short --
18 JUDGE CURRAN: Sure.
19 MR. BEVERE: -- cut it by my
20 burden of proof, my preponderance of the
21 evidence, my direct and circumstantial evidence,
22 my credibility, my expert testimony, false in
23 one, false in all, that's all -- and I apologize
24 that it wasn't paginated, but --
25 JUDGE CURRAN: That's okay; I have
182
1 marked the pages.
2 MR. BEVERE: The first
3 five-and-a-half pages are right from the model
4 charge; and there is no language in other than
5 the model charge.
6 JUDGE CURRAN: Okay.
7 MR. BEVERE: And I will make that
8 representation. The only thing I would say --
9 no, I took it out already. And no one
10 questioned an expert on fee, so I took that out.
11 JUDGE CURRAN: Which amazed me,
12 frankly. I don't think I ever had a case where
13 there wasn't a -- okay.
14 MR. BEVERE: I spent an hour one
15 time on Dr. Heller, how much money he made doing
16 defense exams.
17 JUDGE CURRAN: So we are starting,
18 then, at G, liability.
19 MR. MULLIN: I have a -- I have a
20 specific objection to everything up till page
21 seven. I think it should start at, "The
22 plaintiffs have sued the Town of Secaucus," et
23 cetera.
24 But first of all, I think it
25 should be called, "The New Jersey Civil Rights
183
1 Act, 10:6-2" to signal what we're -- what this
2 is under. And then the passages that -- that
3 they have -- that they begin with under G,
4 "Municipality is not liable for the acts or
5 omissions of a public employee" -- crime,
6 malice, et cetera. And then the second
7 paragraph, "Municipal employees, if they have
8 committed a crime," et cetera, "the Town is not
9 liable." That's cited from the section of
10 Damiani. They cite Damiani. And it's -- it's
11 cited from the section of Damiani that has to do
12 with the New Jersey Tort Claims Act. It's not
13 cited from the section of Damiani that has to do
14 with 42 U.S.C. 1983.
15 In fact, it's almost a quote.
16 And it's a quote from section N.J.S.A. 59:2-10
17 of the Tort Claims Act. Of course -- not
18 that -- of course, a Civil Rights case can be
19 brought on when a police officer beats someone
20 to death. Of course you know these -- the court
21 claims principles don't move to Tort Claims Act,
22 42 U.S.C. 1983.
23 So I would ask that the first
24 three paragraphs should be stricken. The first
25 two should be stricken because only -- the
184
1 authority doesn't support it for 42 U.S.C. 1983
2 case. The last one, this is not a negligence
3 action. Well, it is not, except LAD allows
4 proof of negligence. So that shouldn't be said.
5 That will confuse the jury.
6 We should go into what counsel
7 claims is the elements for an action under
8 10:6-2. As I understand it, they are now going
9 to -- they claim, as they have all along, that
10 the elements are 42 U.S.C. 1983. Now, the
11 Damiani decision position that I just referred
12 to is at page 17 of Damiani. You know, it's --
13 it's a Lexus opinion, page 17. That's -- that's
14 where it talks about the Tort --
15 JUDGE CURRAN: What page or
16 section?
17 MR. MULLIN: The section --
18 JUDGE CURRAN: Roman numeral?
19 MR. MULLIN: Roman numeral VII.
20 JUDGE CURRAN: Okay. I do have
21 it.
22 MR. BEVERE: I don't have a page
23 17 in my Damiani.
24 JUDGE CURRAN: I can't figure out
25 those pages.
185
1 MR. MULLIN: I have trouble with
2 the pages. Let me just say it's Section VII;
3 and it's where the court says, "Turning the
4 plaintiffs' Count 3 negligence claim brought
5 pursuant to the NJTCA, the New Jersey Tort
6 Claims Act." And that's where all the language
7 defendants have comes from. It has nothing to
8 do with 1983.
9 JUDGE CURRAN: It's the fifth
10 paragraph under Section VII.
11 MR. MULLIN: That's correct.
12 JUDGE CURRAN: I mean, that's
13 standard in the Tort Claims Act. You know, it's
14 standard language --
15 MR. MULLIN: Yeah.
16 JUDGE CURRAN: -- unless they
17 created it or --
18 MR. MULLIN: Exactly.
19 JUDGE CURRAN: So --
20 MR. MULLIN: I would start the
21 defendant's charge with, "The plaintiffs have
22 sued the Town of Secaucus," et cetera, et
23 cetera.
24 JUDGE CURRAN: On page seven?
25 MR. MULLIN: Yeah, page seven.
186
1 And it should refer to the -- to the New Jersey
2 Civil Rights Act. "They have sued the Town of
3 Secaucus under the New Jersey Civil Rights Act,
4 N.J.S.A. 10:6-2."
5 I assume counsel for the defense
6 will have the job of getting these changes made
7 on their copy?
8 MR. BEVERE: I will make any
9 changes to my copy.
10 JUDGE CURRAN: It seems to me, Mr.
11 Bevere, that would make sense. That seems to be
12 basically all-encompassing.
13 MR. MULLIN: You can certainly
14 quote from the appropriate section of 10:6-2, if
15 you feel that's appropriate. I think that ought
16 to be in there. I really do think starting on
17 page seven with the paragraph that says, "The
18 plaintiffs have sued" is appropriate.
19 MR. BEVERE: So we are going to
20 strike --
21 JUDGE CURRAN: We are going to
22 strike --
23 MR. BEVERE: -- everything under
24 "liability" up to, "The plaintiffs have sued the
25 Town of Secaucus" --
187
1 JUDGE CURRAN: Yes.
2 MR. BEVERE: -- "for violating
3 their due process and equal protection rights
4 under" -- we are going to call it, "The New
5 Jersey Civil Rights Act" pursuant to Your
6 Honor's ruling?
7 JUDGE CURRAN: Right.
8 MR. BEVERE: And then we have to
9 say, "In order to prove a claim for
10 Constitutional rights under the NJCRA, there are
11 three elements the plaintiff must prove by a
12 preponderance of the evidence. First,
13 Plaintiffs must prove person acted under color
14 of law. Second, Plaintiffs prove while acting
15 under color of law that person committed the act
16 that violated Plaintiffs' Constitutional
17 rights."
18 MR. MULLIN: Should stay, "State
19 constitutional rights."
20 MR. BEVERE: I'm sorry,
21 Plaintiffs' --
22 JUDGE CURRAN: State.
23 MR. BEVERE: I have no problem
24 limiting it to State. The statute reads, "State
25 or Federal." Mr. Mullin is not alleging
188
1 deprivation of --
2 MR. MULLIN: That's what 10:6-2 --
3 MR. BEVERE: It allows it for
4 either State or Federal; but you are not
5 asserting Federal, right?
6 MR. MULLIN: I am not asserting no
7 Federal right.
8 MR. BEVERE: "Third, that a
9 municipal custom, practice or policy caused the
10 person to violate the plaintiffs' Constitutional
11 rights while acting under color of law."
12 MR. MULLIN: Let me just check
13 that language against the model. I just gave
14 you that last one. Excuse me one sec.
15 MR. BEVERE: Sure.
16 MR. MULLIN: No objection. No
17 objection to that paragraph.
18 JUDGE CURRAN: Okay. As to the
19 rest of page eight?
20 MR. MULLIN: Then it should say,
21 "State constitutional rights."
22 JUDGE CURRAN: State is going in
23 each time, I believe.
24 MR. BEVERE: State, okay. So that
25 will be a continuing -- let me just -- what I
189
1 will do is I will mark it so that I could --
2 JUDGE CURRAN: Okay.
3 MR. MULLIN: I think there is a
4 little problem I have. I see it come up in
5 both. I want to go back on that. The model
6 that Defendants gave us on 1983 says, "If you
7 find that the plaintiff was deprived of the
8 right, the municipality is liable for that
9 deprivation if Plaintiff proves by a
10 preponderance of the evidence that the
11 deprivation resulted from the municipality
12 official policy or custom, in other words, that
13 the municipal -- municipality official policy or
14 custom caused the deprivation." They have it,
15 "caused the person to violate." It has to be,
16 "caused the deprivation." It's not like --
17 JUDGE CURRAN: Right. That's
18 true, because you can't -- actually, yeah. Do
19 you agree with that, Mr. Bevere?
20 MR. BEVERE: Let me look at what I
21 have.
22 MR. MULLIN: This is on page 29 of
23 the model they gave us. So that would apply --
24 MR. BEVERE: Let me just take a
25 look at mine. Let me take a look at mine.
190
1 4.6.3, which says, "policy or custom caused the
2 deprivation."
3 JUDGE CURRAN: Right.
4 MR. BEVERE: That's what the model
5 says. I will --
6 MR. MULLIN: "Caused the
7 deprivation of the plaintiffs' Constitutional
8 rights."
9 JUDGE CURRAN: State
10 constitutional rights.
11 MR. BEVERE: Okay.
12 MR. MULLIN: And that's repeated
13 also in the only paragraph on page eight, as
14 well. Caused the deprivation of the
15 Constitutional right.
16 MR. BEVERE: Where do you see
17 that, again, Neil?
18 MR. MULLIN: Here it is. So page
19 eight has three paragraphs at the top. In the
20 paragraph that begins, "Third, that a municipal
21 custom," that should be changed to, "caused the
22 deprivation of the plaintiffs' Constitutional
23 rights." And the next paragraph, the fourth
24 line, "If that paragraph custom, practice or
25 policy caused the deprivation of the plaintiffs'
191
1 Constitutional rights."
2 MR. BEVERE: I think I have that
3 one already. I was just going back to third.
4 Let me just take a look at it right now. Yeah,
5 okay, we're good.
6 JUDGE CURRAN: Okay.
7 MR. MULLIN: And then the next
8 one, color of State law, I have the first
9 element of plaintiffs' claim is that the -- I
10 want this -- they have, "person who deprived
11 them of a Constitutional right," as if this was
12 just one person. It should be, "person or
13 persons who deprived them of a State
14 Constitutional right acted under --"
15 MR. BEVERE: Person or persons.
16 MR. MULLIN: -- "acted under color
17 of State law."
18 MR. BEVERE: Okay. Made the
19 change.
20 MR. MULLIN: And I have, "This
21 means that Plaintiffs," plural, "must show that
22 the actor or actors was or were using power that
23 he or they possess by virtue of State law at the
24 time the act was committed."
25 MR. BEVERE: Okay.
192
1 MR. MULLIN: We're on to the next
2 page. "And when I use the term, "state," I am
3 including any political subdivision of the
4 State, such as a Town or municipality, such as
5 the Town of Secaucus." Because I think the
6 problem is with under color of State law some
7 jurors may take it too literally. We have to
8 make it clear the Town of Secaucus is included
9 in that, so it should be, "such as a county or
10 municipality," you could say, "like the Town of
11 Secaucus."
12 MR. BEVERE: You know what I would
13 do, Judge, I would say, "such as a county or
14 municipality," period. And then I would put,
15 "the Town of Secaucus is a municipality."
16 MR. MULLIN: Yes, no objection.
17 MR. BEVERE: Okay.
18 JUDGE CURRAN: You want to leave
19 out the agency?
20 MR. BEVERE: There is no question
21 here about agency.
22 JUDGE CURRAN: Okay. Because we
23 took out police and fire; we are talking about
24 Secaucus.
25 MR. BEVERE: All one.
193
1 JUDGE CURRAN: I want to make
2 sure; that's all.
3 MR. BEVERE: Okay.
4 JUDGE CURRAN: Thank you.
5 MR. MULLIN: Then I have an insert
6 that I would like right after that phrase that
7 had been "municipal agency"; and it goes like
8 this. "Because Mayor Elwell, the Secaucus Town
9 Council, Town Administrator Iacono, Fire Chief
10 Walters, Deputy Fire Chief Cieciuch, Police
11 Chief Corcoran and Detective Captain
12 Buckley were officials of the Town of Secaucus,
13 I charge you that they were acting under color
14 of State law. In other words, as to these
15 persons this element of Plaintiffs' claim is not
16 in dispute. The Defendant Town of Secaucus does
17 dispute whether in the early morning hours of
18 April 25th, 2004 Fire Captain Charles Snyder,
19 Jr., then Department of Public Works foreman,
20 Charles Snyder, Sr. and then ex-fire captain
21 Charles Mutschler were acting under color of
22 State law. And the Defendant Town disputes
23 whether other firemen who are alleged to have
24 participated in the alleged incident of April
25 25th, 2004 were, in fact, acting under color of
194
1 State law. As to such persons you, the jury,
2 must decide whether some or all of them were
3 acting under color of State law."
4 JUDGE CURRAN: Before you argue,
5 Mr. Bevere, I think if you are going to use that
6 list, you have got to also put the Town attorney
7 in there.
8 MR. MULLIN: Yes, the Town
9 counsel.
10 JUDGE CURRAN: Mr. Bevere.
11 MR. BEVERE: Judge, first of all,
12 I have objection to you directing this jury as a
13 matter of law that anyone was acting under color
14 of law. Mr. Mullin is free to argue that to the
15 jury in his summation.
16 And I certainly have an objection
17 to listing the titles of Charles Snyder, Jr.,
18 Charles Mutschler and Charles Snyder, Sr., their
19 titles, in a color of law charge. Mr. Mullin is
20 free to argue those issues to the jury. I think
21 it is improper to put it in the charge. The
22 jury can decide for themselves who was acting
23 under color of law and who was not.
24 JUDGE CURRAN: Mr. Mullin.
25 MR. MULLIN: I don't know how it
195
1 can be seriously contested the people I listed
2 were acting under color of law. Is there a
3 disputed fact as to whether -- we are only
4 looking at a narrow question, when they acted
5 were they acting under color of State law, the
6 Mayor, Town Council, the administrator, the
7 Chief of Police, the Chief of the Fire
8 Department, the Town counsel. Are we -- is
9 anyone seriously disputing that when they acted
10 they were acting under color of State law?
11 That -- there is no dispute on that.
12 MR. BEVERE: Judge, here is my
13 problem. There has been -- there has been a
14 plethora of evidence in this case, and I just
15 don't want the blanket statement that anything
16 that they did was under color of State law --
17 and that's -- that's what I'm concerned about --
18 and anything that they did was color of State
19 law because I just -- I think it's just improper
20 to make a blanket statement in direction of a
21 finding in that regard to the jury.
22 JUDGE CURRAN: Well, assuming --
23 taking Mr. Mullin's argument that there is no
24 argument that those titles you listed the
25 individuals were acting under color of State
196
1 law, we could, in order to help the jury, just
2 put in the individuals where there is a question
3 because that's really what the jury has to first
4 decide. I -- I think, honestly, it's completer
5 to put it in the other way; but that could be
6 the question.
7 If nobody is going to argue to
8 the jury, which, apparently, nobody is, that the
9 Mayor wasn't acting under color of State law or
10 the Town attorney or the Fire Chief or the
11 Police Chief, then we could reduce it to the
12 issues where there is a -- an argument, the
13 plaintiffs argue that the individuals listed
14 were acting under color of State law and you
15 argued that they weren't. I think it makes
16 total sense to at least spell that out for the
17 jury, so they know what they're doing.
18 Otherwise, I think, if you don't do it, it -- if
19 you just give them this explanation, they could
20 basically just take the easier guys whose names
21 they could remember -- they see the Mayor there,
22 they heard his testimony, just say, "Yeah, Mayor
23 was acting like a mayor. That must be color of
24 State law" and never even understand the other
25 argument that the defense is making.
197
1 MR. BEVERE: Well, Judge, I --
2 obviously, I put my position on the record. I
3 see Your Honor's position. You will note my
4 objection for the record, but I would like -- I
5 would like Your Honor not to put the titles of
6 the individual -- the three individuals that are
7 in dispute here or the -- Charles Snyder, Sr.,
8 Charles Snyder, Jr. and Charles Mutschler,
9 ex-captain, DPW supervisor. I just think that
10 that is -- that is unfairly influencing the jury
11 one direction on the color of law issues; and I
12 would certainly ask Your Honor keep those titles
13 out.
14 JUDGE CURRAN: Not the names; just
15 the titles?
16 MR. BEVERE: You can decide --
17 excuse me.
18 JUDGE CURRAN: Not the names; just
19 the titles?
20 MR. BEVERE: Yeah, you can put the
21 names in. Whether those individuals are -- you
22 know, anyone else, any other fireman was acting
23 under color of law, as opposed to listing out
24 what their titles were, Mr. Mullin can argue
25 those things to the jury. We will have counter
198
1 arguments.
2 MR. MULLIN: I don't mind taking
3 out the titles of those three individuals,
4 number one.
5 JUDGE CURRAN: I think that's
6 fair.
7 MR. MULLIN: I have no problem
8 with that.
9 Number two, I think we should
10 read in who was acting under color of State law
11 beyond dispute. But I think we should say, "As
12 to the matters testified about in this trial,
13 Mayor Elwell," et cetera, et cetera, "were
14 acting under color of State law." There is not
15 a single act that I heard by the individuals I
16 named, including the Town counsel, that was not
17 under color of State law as a matter of law.
18 JUDGE CURRAN: And it wasn't
19 really argued. I think it makes total sense to
20 me.
21 MR. BEVERE: Judge, I understand
22 Your Honor's ruling; but Judge -- but Judge, in
23 that regard, though, what I would ask Your Honor
24 to charge is, as opposed to, "I hereby direct
25 and charge you," you could charge -- I would
199
1 prefer it if you charged, "The Town of Secaucus
2 does not contest that Mayor Elwell" --
3 JUDGE CURRAN: Fair argument.
4 MR. BEVERE: Under color of law.
5 JUDGE CURRAN: I am not going to
6 say, "I hereby charge you." Mr. --
7 MR. MULLIN: That's fine with me
8 too.
9 JUDGE CURRAN: "The Town does not
10 dispute."
11 MR. BEVERE: The Mayor, the Police
12 Chief were --
13 JUDGE CURRAN: There is a dispute,
14 however, in regard to -- we will just put the
15 three names?
16 MR. BEVERE: The Town of Secaucus
17 does, however, dispute these individuals --
18 JUDGE CURRAN: Right.
19 MR. BEVERE: Okay.
20 JUDGE CURRAN: I just want to make
21 sure who's correcting that. Are you going --
22 MR. BEVERE: I'm going to make
23 that correction.
24 JUDGE CURRAN: Okay. Can you --
25 MR. BEVERE: All I am going to do
200
1 is I am going to ask Mr. Mullin wants to put it
2 after --
3 MR. MULLIN: Right after the
4 phrase that had been municipal -- footnote nine.
5 MR. BEVERE: "The Town of
6 Secaucus, a municipality, now"?
7 MR. MULLIN: Then you are going to
8 say?
9 MR. BEVERE: Let me go over --
10 MR. MULLIN: You can have the
11 beginning you wanted, "The Town of Secaucus does
12 not contest that Mayor Elwell, the Secaucus Town
13 Council, Town Administrator Iacono, Town
14 Counsel," c-o-u-n-s-e-l --
15 MR. BEVERE: Mayor Elwell?
16 MR. MULLIN: Well, you are going
17 to get this transcript, right?
18 MR. BEVERE: Yeah, but all these
19 individuals were acting --
20 MR. MULLIN: I will read it, and
21 it will be in the transcript. You can just pull
22 up the transcript.
23 "Mayor Elwell, the Secaucus Town
24 Council, Town Administrator Iacono, Town
25 Counsel, c-o-u-n-s-e-l, Leanza, Fire Chief
201
1 Walters, Deputy Fire Chief Cieciuch" -- spelling
2 beyond me -- "Police Chief Corcoran and the
3 Detective Captain Buckley were officials of the
4 Town of Secaucus" -- don't have to say, "were
5 officials" -- "acted under color of State law
6 with respect to the matters testified to in this
7 trial. In other words, as to these persons,
8 this" -- "as to these persons, this element of
9 plaintiffs' claim is not in dispute."
10 And then I read the rest of it,
11 where I identify what is in dispute. And I
12 agree that we can take out the titles, although
13 we do have to read the stipulation to the jury.
14 That's a separate.
15 MR. BEVERE: That's a separate
16 issue; I am not talking about -- the charge.
17 MR. MULLIN: You want me to read
18 rest of the charge that I have? You have it.
19 It's in the transcript already.
20 MR. BEVERE: It's in the
21 transcript. I will have it from Tracey. I will
22 be able to -- let me just look at what it says.
23 You know what, I got to go to continue. Sorry,
24 I was --
25 JUDGE CURRAN: Okay.
202
1 MR. BEVERE: And instead --
2 instead of saying, "with respect to the matters
3 testified to in this trial," I would say, "acted
4 under color of law with respect to their actions
5 taken in regard to this matter."
6 MR. MULLIN: Yes.
7 MR. BEVERE: Do we have a problem
8 with that?
9 MR. MULLIN: No objection.
10 MR. BEVERE: And then -- and then
11 we go on from there, so I can do that. Then
12 what we'll do is we'll say -- and then -- so I
13 got that paragraph. Now what do we want to say
14 about the other three? How do you want to
15 phrase that?
16 MR. MULLIN: You want me to read
17 that again?
18 MR. BEVERE: Yeah.
19 MR. MULLIN: It goes like this.
20 So I have just said what is not in dispute.
21 Now, Defendant Town of Secaucus does dispute
22 whether in the earlier morning hours of
23 April 25, 2004 Charles Snyder, Jr, Charles
24 Snyder, Sr. or -- and Captain Charles -- no, and
25 Charles Mutschler were acting under color of
203
1 State law. The Defendant Town disputes whether
2 other firemen who are alleged to have
3 participated in the alleged incident of
4 April 25th, 2004 -- I won't even limit it to
5 that.
6 MR. BEVERE: I was thinking we
7 have to say, Judge, "any."
8 MR. MULLIN: "Does dispute whether
9 other firemen who are alleged to have
10 participated in harassment of the plaintiffs
11 were, in fact, acting under color of State law.
12 As to such persons you, the jury, must decide
13 whether some or all of them acted under color of
14 State law."
15 JUDGE CURRAN: Then we go back to
16 page nine.
17 MR. MULLIN: Then we are back on
18 page nine. The only change I have there is --
19 JUDGE CURRAN: We start with, "For
20 an act."
21 MR. MULLIN: For an act?
22 JUDGE CURRAN: Right.
23 MR. MULLIN: Then I just want to
24 add where it says, "With the authority of the
25 State," I will say, "While cloaked with the
204
1 authority of the State or municipality, such as
2 Secaucus or municipalities." I don't want them,
3 again, to get confused by this word "State,"
4 using the authority of the State or
5 municipality.
6 MR. BEVERE: Let me just go back
7 and look at Mr. Mullin's proposed -- for the
8 previous section where it says, "The Town of
9 Secaucus does dispute whether" -- I would say,
10 "does dispute whether Charles Snyder, Jr." --
11 well, Judge, what I -- what I would actually --
12 well --
13 MR. MULLIN: Your Honor, can I ask
14 you a question -- I have been here so many times
15 over the years; but the parking lot directly
16 over the street, do they close at some hour?
17 JUDGE CURRAN: Yeah, they do.
18 MR. MULLIN: I should run down and
19 get my keys. Shall I do that, Your Honor? Will
20 I have any problem getting back in the
21 courthouse?
22 JUDGE CURRAN: I don't think so.
23 COURT STAFF: No, come through the
24 side, that way, because they're open.
25 JUDGE CURRAN: You know, if you --
205
1 I don't know how we can make the changes. I
2 don't know what to tell you.
3 MR. BEVERE: How do we make the
4 changes?
5 JUDGE CURRAN: Yeah, I was
6 thinking of you guys.
7 MR. BEVERE: The changes we
8 discuss, and Dave can -- Dave can call Anna at
9 the office. Anna can makes the changes in the
10 doc. Anna could e-mail them to Amy. We could
11 have them here. So you want to reconvene at 9
12 on Monday morning?
13 JUDGE CURRAN: Why don't we do
14 that?
15 MR. MULLIN: Sure. We can
16 reconvene at 9, and we can -- we can do it, then
17 we can get clean copy to you.
18 MR. BEVERE: We can get clean
19 copies, e-mail them to Amy; and we can take it
20 from there.
21 JUDGE CURRAN: And also, if,
22 having made the decisions that I have made, we
23 need to have the verdict sheets revised or
24 whatever in regard to compensatory -- I wouldn't
25 drive ourselves nuts in regard to the punitive
206
1 once right now at all.
2 MR. MULLIN: Okay.
3 JUDGE CURRAN: Okay. That makes
4 it easier, I think, that -- that way.
5 (Whereupon, the witness is
6 excused.)
7 (Whereupon, the proceeding is
8 concluded at 5:30 p.m.)
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1 C E R T I F I C A T E
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3 I, TRACEY R. SZCZUBELEK, a Certified Court
4 Reporter and Notary Public of the State of New
5 Jersey, do hereby certify that the foregoing is
6 a true and accurate transcript of the
7 stenographic notes as taken by and before me, on
8 the date and place hereinbefore set forth.
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18 ________________________________
19 TRACEY R. SZCZUBELEK, C.C.R.
20 LICENSE NO. XIO1983
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