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Partners successfully defend case against Monmouth County and Correctional Officers

GluckWalrath LLP is pleased to announce that Senior Litigation Counsel and Special Monmouth County Counsel, Partner, Andrew Bayer, with the assistance of Partner, David A. Clark, successfully defended the Monmouth County Sheriff’s Office and eleven individual correctional officers before a 10 member jury in the United States District Court, District of New Jersey in a lawsuit alleging Section 1983 civil rights violations brought by the family of a 22 year old inmate who died following a use of force incident at the Monmouth County Correctional Facility. The Hon. Anne E. Thompson, U.S.D.J. presided over the trial which lasted over two weeks.

The lawsuit, filed in the United States District Court of New Jersey – Trenton Vicinage, centered upon whether the Monmouth County Defendants violated Amit Bornstein’s constitutional right to be free from excessive force as guaranteed by the Fourteenth Amendment of the United States Constituion. Specifically, Mr. Bornstein’s estate alleged that the correctional officers committed excessive force and that the Sheriff’s Office adopted policies or failed to adopt policies which deprived Mr. Bornstein of his constitutional rights. The Bornstein Estate further alleged that the Sheriff’s Office was deliberately indifferent to Mr.. Bornstein’s constitutional rights in failing to adequately train its correctional officers in the appropriate use of force policies.

On March 6, 2015, the jury returned a verdict of no-cause of action on all counts deciding that our Monmouth County clients did not deprive Amit Bornstein of his constitutional right to be free from excessive force. This matter was brought by the Estate of Amit Bornstein, an individual who after being brought to the Monmouth County Correctional Institution on July 29, 2010 died later that evening. Mr. Bayer convinced the jury that the correctional officers did not utilize excessive force nor did they cause Mr. Bornstein ‘s unfortunate death. Instead, they concluded that his death was caused by a preexisting cardiac disease superceding any other possible cause. He further convinced the jury that there were no policies in effect or a failure to train officers which deprived Mr. Bornstein of his constitutional rights.

Mr. Bayer commented on the outcome, “Mr. Bornstein’s passing is sad. It is unfortunate. No one from Monmouth County Correctional Institution is happy that one of their inmates passed away. But as the jury concluded, Sheriff Shaun Golden’s policies, practices and training along with the actions of our correctional officer clients were vindicated and appropriate in their treatment of Mr. Bornstein.”

Additionally, the Monmouth County Sheriff’s Office issued a statement through its spokesperson, Cynthia Scott. “After reviewing the facts and all the testimony of the case it was clear that the officers involved acted appropriately. While our thoughts remain with the Bornstein family on their loss, Mr. Bornstein’s actions and medical condition are what led to his unfortunate death.”

To read more about the verdict, please visit Asbury Park Press.

Anti-Bullying Task Force Releases Third Annual Report

AntiBullyingWe are pleased to share that our partner, Luanne Peterpaul, as member of the New Jersey Anti-Bullying Task Force (ABTF) contributed to the publication of this year’s annual report. The ABTF is pleased to note a second year of declining trends in HIB investigations and incidents in schools and an increase in programs and trainings offered to students and staff to prevent HIB incidents. More specifically, according to the Commissioner’s Annual Report to the Education Committees of the Senate and General Assembly on the Violence Vandalism and Substance Abuse in New Jersey Public Schools, July 1, 2013 to June 30, 2014 (V & V Report), there was a 16% decrease in the number of HIB investigations conducted over the prior year and a 9% decline in confirmed incidents.

With a focus on the effective implementation of the Anti-Bullying Bill of Rights (ABR) in New Jersey schools, the ABTF is recommending several revisions to regulation, as well as the development of additional guidance for the field that will help to clarify the law and support its practice in schools.

  1. The definition of HIB as it relates to hazing, reporting and investigation
  2. Implementation of the ABR in higher education
  3. The Commissioner’s Program and Guidance for Determining Grades under the ABR
  4. School range of responses to incidents of HIB
  5. Resources available to assist in the implementation of the ABR
  6. School Safety/Climate Team
  7. Training.

The overarching goal of the ABR and the ABTF is to assist schools throughout the State of New Jersey to reduce HIB. The ABTF strongly recommends in the current report that the focus of training be purposeful and shift from compliance to that of creating a culture of inclusivity and collaboration through the School Safety/Climate Team. The continued focus on improving school climate should be each district’s ultimate goal.

A copy of the 2014 Annual Report can be downloaded here.

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Kendal Jones nominated as “Woman Worthy of Honor: Serving Children in Our Community Award”

It is with great pride that GluckWalrath shares news of Kendal Jones’ nomination from Woman Walking in the Spirit Youth-At-Risk Mentoring Program as a “Woman Worthy of Honor”.

From the organization,

As you consider the nomination for this award, as an advocate of our children we sincerely believe you to be well deserving of this honor, which will be the “Women Walking in the Spirit’s 1st Annual Award Ceremony.” Let me say you have not only impacted the lives of our youth, but fellow educators and community members, as well as your associates. Kendal, your influence will follow those you have touched for a lifetime and the lessons they have learned will help them in countless ways. You are an outstanding representative of the profession. Therefore, with the utmost confidence, belief and trust, I present to you the nomination. We know that you do not work or serve our children for awards or accolades, but simply to inspire and impact all. I believe that you, like many others, have been endowed with a special calling, which allows you to mentor in love. By virtue of this God given ability you have been able to balance as well as maximize your role as sister, mother, friend, and mentor and community leader. Your desire to assist the children to strive for excellence in their personal development has taught them the importance of loving themselves, as well as respect for each other. This has also taught all of us (your peers) to give our best for our youth, to wear a smile, to have faith, and to remember that the storms of life can often produce beautiful rainbows and new growth.

Kendal will be honored at an award dinner on April 15, 2015 to celebrate all that she has given of herself in supporting, caring for, and mentoring at-risk youth in New Jersey.

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A Happy and Prosperous 2015 from everyone at GluckWalrath

If you are reading this, it means that you are a valued part of the GluckWalrath family. Without you, we would not be where we are today assisting those in need, providing professional services throughout the state, and contributing to our communities in meaningful ways.

We thank you for allowing us to be involved in legal and governmental affairs for over ten years and look forward to many more years ahead with you.

A healthy, happy, and prosperous New Year to you. May 2015 fulfill your spirit.

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Luanne Peterpaul presents at 8th Annual ABA Labor & Employment Law Conference

On Thursday, November 6th, Luanne Peterpaul presented as part of a panel at the American Bar Association’s 8th Annual Labor & Employment Law Conference in Los Angeles. Ms. Peterpaul’s panel discussed Anti-bullying training to assist in reduction and eventual elimination of incivility and hostile, unproductive behavior in the work environment.

Titled “Eliminating Bullying and Incivility: Training the Trainer”, the American Bar Association described the discussion, “Bullying and incivility in the workplace raise concerns that go beyond whether the behavior is illegal, and affect all aspects of the working environment. This program featrues an expert in anti-bullying training and is designed to provide practical, hand-on-training to participants such that they will be able to train others in the workplace.”

Luanne Peterpaul serves on the statewide Anti-bullying task force and co-authored New Jersey’s anti-bullying Bill of Rights, one of the strongest anti-bullying laws in the nation. She serves as an advisor and analyst to numerous organizations on the topic.

To read materials included in the panel, you may visit the American Bar Association website.

GluckWalrath is Successful before the New Jersey Supreme Court

On May 20, 2014, Partner Andrew Bayer and his litigation team received news that following oral argument before the New Jersey Supreme Court on May 7, 2014, the Court issued a decision of first impression in New Jersey. The Supreme Court agreed with our argument that the Bed Rights (including all rights title and interest to apply for a license to operate a nursing home) to a long-term care facility belonged to our client, GRE Jersey City, Inc., the owner of the property where the nursing home was sited in Jersey City. The Supreme Court issued an order declaring it had improvidently granted certification and it dismissed the appeal thereby affirming the decision of the Appellate Division and the Chancery Division in the matter known as Liberty House Nursing Home of Jersey City vs.. GRE Jersey City, Inc.

By way of background, GRE Jersey City, Inc.(“GRE”) developed a nursing home in Jersey City and ultimately leased it to Liberty House Nursing Home of Jersey City, Inc. (“Liberty House”) in 1971. Following the end of the lease term after Liberty House had exercised two renewal options, GRE issued a Notice to Quit. In response to the Notice to Quit, Liberty House contended that a Memorandum of Lease exchanged between the parties a year before the Notice to Quit issued constituted a binding agreement. GRE disagreed. After a 15 day bench trial before the Hon. Thomas P. Olivieri, PJ.Ch. (retired), the Chancery Division ruled in GRE’s favor and determined that GRE validly terminated Liberty House’s tenancy and found that the Memorandum of Lease did not create an enforceable agreement or provide Liberty House an option to renew. The Court further found that GRE was the sole owner of the right to apply for al license (the “Bed Rights”) to operate the 180 bed and that upon the termination of the lease, the right to seek a license to operate the facility reverted to GRE.

On March 25, 2013, the Appellate Division issued a per curium opinion affirming the Chancery Division’s judgment that the Memorandum of Lease did not constitute an agreement and that the Bed Rights indeed reverted back to GRE as that is what the parties intended through the lease agreement.

However, on September 11, 2013, the Supreme Court of New Jersey granted certification to determine two issues in the case: (1) Whether the Bed Rights belongs to the tenant who established and operated the exempted nursing home or, instead, to the landlord of the property on which the nursing home is operated; and (2) if the exemption belongs to the landlord, whether equity requires the landlord to pay the tenant operator for the value of the established business. The Supreme Court answered both questions in GRE’s favor.

This victory for the litigation team puts a close to a matter that was litigated for four years. “We are thrilled our client can take back and operate its nursing home after putting a close to this lengthy chapter,” a delighted Mr. Bayer explained. “Our litigation team has worked long and hard on this matter and I am pleased the Supreme Court and Appellate Division agreed with our legal analysis. While this is a significant victory for our client and our firm, we believe the precedent this case sets will prove critical as the issue of bed rights continues to be an important issue which needs to be addressed between long term care facility owners and long term care facility operators throughout this state.”

A copy of the Appellate ruling can be found here.

Anti-Bullying Task Force Releases Second Annual Report

AntiBullyingWe are pleased to share that our partner, Luanne Peterpaul, as member of the New Jersey Anti-Bullying Task Force (ABTF) contributed to the publication of this year’s annual report. This morning, ABTF submitted its annual report to the Governor, NJ State Legislature, and the Commissioner of the Department of Education. With a focus on the effective implementation of the Anti-Bullying Bill of Rights (ABR) in New Jersey schools, the ABTF is recommending several revisions to regulation, as well as the development of additional guidance for the field that will help to clarify the law and support its practice in schools.

Among these recommended code revisions are:

  • the inclusion of the concept of a “power differential” in the definition of bullying as a method of distinguishing the motivating characteristics of the aggressor,
  • the establishment of minimum criteria that must be met for the principal to initiate an investigation through the Anti-Bullying Specialist,
  • the development of time limits for parents/guardians to request a hearing before the Board of Education related to an HIB incident,
  • clarification that adult-on-student behavior is covered by the ABR,
  • clarification that a confidential disciplinary file is a “mandated student record”, and
  • a re-naming of the School Safety Team to the “School Safety/Climate Team,” to better reflect its critical role to develop, foster, and maintain a positive school climate.

“I must thank and congratulate all of the members of this Task Force who worked countless hours preparing this report,” said Task Force Chairperson Patricia Wright. “We gathered a lot of data; listened to many principals, teachers, administrators, and parents throughout New Jersey; discussed and debated the issues; and ultimately wrote what I consider to be a very impressive report with strong recommendations that will further improve the culture and climate in our schools. I am looking forward to continued conversations with the Administration and the Legislature and hopefully positive changes in regulations to make the goals of this important legislation a reality in every New Jersey school.”

The Anti Bullying Task Force was established in March 2012 as part of an amendment to the “Anti-Bullying Bill of Rights Act” to provide guidance to school districts, examine the implementation of ABR, draft model regulations, present recommendations, and prepare a report on the effectiveness of the act in addressing bullying in schools.

A copy of the 2014 Annual Report can be downloaded here.

Luanne Peterpaul co-authors piece on First Amendment and Anti-Bullying

LPeterpaul1stAmendIn the June 2013 New Jersey Lawyer magazine, Partner Luanne Peterpaul co-authored a piece with her colleague, Michael Ansell, regarding the impact the First Amendment has on New Jersey’s Anti-Bullying law. The piece, titled, “The First Amendment’s Impact on New Jersey’s Anti-Bullying Bill of Rights” explores the boundaries of First Amendment law in a school setting and how this can be balanced with the goal of eliminating harassment, intimidation, and bullying from places of education.

The First Amendment to the United States Constitution prohibits the making of any law impeding the free exercise of religion, abridging the freedom of speech, or interfering with the right to peaceably assemble. The First Amendment applies to each state through the due process clause of the 14th Amendment.

Free speech for students in public schools was recognized in Tinker v. Des Moines Independent Community School Dis- trict.19 In Tinker, the U.S. Supreme Court held that schools could not restrict symbolic speech that did not cause substantial interruptions of school activities or the rights of other students.

Nonetheless, courts have recognized that there are some limitations on the protection of free speech in the school environment.

A copy of the article is available to read and download here.