A SENATOR’S SON IN THE SOMERSET MUNICIPAL COURTS

In an October 28, 1997 letter, William W. Lanigan, Attorney for the Township of Bridgewater, Somerset County accused me of going "over the line" and "suggests" that I immediately make "an appropriate apology" to Bridgewater Municipal Court Judge Robert Hendricks (UPDATE: Hendricks passed away in late 1997). He indicated that what I’ve written is not protected free speech and has implied that I will be sued for libel unless my apology is tendered.

You are probably wondering: "Gracious, what did Citizens for Justice write about the good judge?"

Unfortunately, it isn’t a short story. It involves a twisted tale of two automobile accidents--one on November 23, 1991 and the other on December 18, 1995--and the subsequent actions in municipal court. Both accidents happened in Somerset County, and both involved a drunk driver who was driving with a revoked license. And, both accidents involved serious personal injury.

What makes this story interesting is that the drunk and revoked driver in both accidents was John Lynch, Jr., the son of Senate Minority Leader John Lynch (D-17).

THE FIRST ACCIDENT

The first accident took place in Franklin Township, Somerset County. That there was serious injury in the accident is beyond dispute. The trial transcript contains testimony from Nicholas Berzansky of the Manville Rescue Squad that additional ambulances were needed because "there were people laying in the roadway." Officer Kuzemchak of the Franklin Township Police Department testified that he remembered this accident "like it was yesterday" because of the severity of the injuries. The police report revealed that three occupants of the vehicle other than Lynch’s, Carrie Sue Thayer, Michael Dittmyre, and Darren J. Scanlen were "incapacitated" by their injuries. An article in the Franklin News Record of November 28, 1991 reported that Thayer remained in the hospital for at least four days and was listed as being in "serious condition."

The junior Lynch, age 26 at the time, was charged with Drunk Driving, operating with a suspended license, and a variety of other offenses.

Since Lynch’s father’s law partner, Emil H. Philibosian, was a judge in Franklin Township, the charges were transferred to Green Brook Municipal Court to be prosecuted by Francis X. Hermes and heard by Judge Raymond DeMarco. (Note of interest: A few years later, Prosecutor Hermes was himself convicted of drunk driving in North Carolina. His defense was that a medical condition caused him to belch in such a way as to make a breathalyzer machine report a false positive. The jury didn’t buy the defense, and neither the North Carolina Court of Appeals.)

Lynch was convicted of both drunk driving and operating with a suspended license. Incredibly, Prosecutor Hermes didn’t ask for and Judge DeMarco didn’t impose the 45-day mandatory jail sentence required by N.J.S.A. 39:3-40(e).

According to a 1990 decision of the Appellate Division of the Superior Court (State v. Pavao, 239 N.J.Super. 206, 213), a suspended driver who is involved in an accident that causes injury to another person, MUST be sentenced to a 45-day jail term. And, this mandatory term cannot be suspended or plea-bargained away. (see also, State v. Pierce, 257 N.J. Super. 483, 486 (A.D. 1992) and State v. Fearick, 132 N.J. Super. 165, 170 (A.D. 1975).

Thus the question was raised--Why didn’t John Lynch, Jr. spend 45-days in jail like the ordinary citizen would have?

Here is the discussion between DeMarco and Hermes about the applicability of the 45-day sentence, as reported in the October 28, 1992 trial transcript:

--begin transcript text

HERMES: With regard to the 39:3-40, your Honor, it is the State's position that Mr. Lynch would be sentenced as a second offender. I will concede, for the purposes of this portion of the proceedings, that the plea on the 3-40 is the result of a plea negotiation. And the State is requesting that Mr. Lynch be sentenced as a second offender on 39:3-40 without any position -- excuse me -- specifically not taking -- taking the position that Subsection E does not apply to this conviction. (Note: Section E is the provision that requires the 45-day sentence if anyone other than the revoked licensee is injured in an accident.)

DEMARCO: All right. I am acknowledging first of all that the State has indicated to me that they are not looking for the enhanced penalty to be applied under Subsection E of 33:3-40 [sic]. I think that that's significant because obviously we did have a great deal of testimony on July 17th, 1992. And a number of people who testified, including the operator of the other vehicle, her name was Meaghan Jenkins, we had several officers or personnel from the Manville Police Department that testified and several officers testified as well.

HERMES: Your Honor, for the record, Manville Rescue Squad.

DEMARCO: Manville Rescue Squad. And obviously, there has not been developed in this case any significant evidence that I would rely upon or be compelled to rely upon as to injuries to other people.

--end transcript text

But, as stated before, Nicholas Berzansky of the Manville Rescue Squad and Officer Kuzemchak of the Franklin Township Police Department testified that there WAS serious bodily injury in this accident. And even if that wasn’t evident, Mr. Hermes could have easily proved that Carrie Sue Thayer was hospitalized for at least four days.

However, Judge DeMarco accepted Hermes’ plea arrangement, assessed Lynch a total of $771 in fines and costs and sentenced Lynch to 1 day in jail. Lynch was given credit for the one day jail sentence, however, for the time he had already spent in the courtroom.

THE SECOND ACCIDENT

The second accident occurred on Route 287 in Bridgewater Township, Somerset County on December 18, 1995. This time, the vehicle Lynch was driving ran into the rear of a 1989 Jeep driven by Daniel M. Hook of Edison. The impact caused the Jeep to roll over several times. The impact of the accident caused the Acura which Lynch was driving to bounce off a guard rail and slam into the concrete divider at the center median. Injured in the accident were Hook, Lynch and Lynch’s two passengers, Joseph M. Conti and Michele A. Hecker. The Bound Brook First Aid Squad had to extricate Lynch and his two passengers from the vehicle. Lynch was again charged with drunk driving, driving with a suspended license and several other moving violations.

On June 19, 1996, Lynch’s case was heard by Bridgewater Judge Robert Hendricks. Again, it was prosecuted by Francis X. Hermes. This time, several members of Citizens for Justice were present in the court room. We were armed with a supply of tri-fold flyers entitled "State v. John P. Lynch, Jr." The front of the flyer contained the following text in large, bold print "Will Prosecutor Frank Hermes cut another sweetheart deal for this politically connected, repeat offender?" Inside the flyer, I recounted the 1992 trial before Judge DeMarco and how I believed that Lynch was improperly allowed to avoid the 45-day mandatory jail term. We handed the flyers everybody who entered the courtroom.

During the trial, Hermes expressed his annoyance at the flyers and said that we "could hand out flyers until we dropped dead in the streets" and that the "name Lynch doesn’t mean spit" to him.

However, history repeated itself. A plea arrangement was worked out in which Lynch pled guilty to drunk driving and driving with a suspended license. He was sentenced to 180 days in jail on the drunk driving charge and a consecutive sentence of 45 days on the driving with a suspended license charge. Of the 180 days, 90 days were suspended and Lynch was allowed to spend the other 90 days in the ReMed Alcohol Rehabilitation facility in Willow Creek, Pennsylvania. And, Judge Hendricks ruled that if Mr. Lynch spent more than 90 days in the ReMed facility, each extra day spent there would be credited toward the 45-day jail "mandatory" term for driving with a suspended license.

According to an April 14, 1997 letter from Somerset County Sheriff Robert H. Lund, Lynch served a total of two days in the Somerset Jail of the 135 day sentence. Again, Mr. Lynch avoided the 45-day "mandatory" sentence.

MY RESPONSE

On August 27, 1996, I wrote to Judge Hendricks and asked him to articulate the legal basis which allowed him to ignore the mandatory 45-day jail term for Mr. Lynch. Copies of my letter went to the Somerset County Prosecutor, Assignment Judge Wilfred Diana, Francis X. Hermes and many member of the press.

I maintained that the statute didn’t allow for time spent in an alcohol rehab center to be credited toward a mandatory jail term. I pointed out a logical flaw in Judge Hendrick’s sentencing decision:

1 .Had Lynch not been drunk at the time of the accident, there would have been no basis for a sentence of alcohol rehabilitation.  

2. Without the sentence of alcohol rehabilitation, Lynch would have been required to spend the 45-day sentence he received for operating with a suspended license in the county jail.

3. Therefore, the fact that Lynch was drunk at the time of the accident worked in his benefit allowed him to escape jail. Had he not been drunk, he would have punished more severely. This result could not possibly been envisioned by the legislature.

But, I received no response to my letter. Nor did the issue gain any media coverage.

On October 31, 1996, I wrote to Charles M. Harrison, president of the Bridgewater Township Council, asking the council to instruct the Township attorney to respond to the question posed to Judge Hendricks.

On November 4, 1996, I received a response from Mr. Harrison in which he stated "I’m sure you will understand that as a member of the governing body I am, and should be, reluctant to interfere with the operation of a separate branch of the municipal government, and especially so in the matter of a court decision. I am confident that there are better routes than the Council for a review of a specific case. However, I have sent a copy of your letter and its attachments to the township administration for its reaction and comment."

Note: I did explore the other, "better routes." As I stated before, I sent copies of my letter to the county prosecutor, assignment judge and other officials. The Supreme Court Committee on Municipal Courts was contacted to no avail. I also pondered filing an ethics grievance against Hermes with the District XIII Ethics Committee and grievances against both judges with the Advisory Committee on Judicial Conduct. Court Rules prohibit me from commenting on whether I filed these grievances, as this information is required to remain confidential under Court Rules. Another self-serving rule.

On January 11, 1997 and March 28, 1997 I wrote to Mr. Harrison and again asked him to share the "reaction and comment" of the township administration with me. I received no response.

Hendricks’ term of office as judge expired on December 31, 1997. In order to retain his office, he needed to be appointed by the mayor, and the appointment requires the advice and consent of the township council.

On October 24, 1997, I wrote to the six candidates running for three seats on the Bridgewater Township Council detailing the history of this situation and asked them whether, if elected, they would withhold their consent for Hendricks'’ reappointment as judge until Hendricks, or somebody on his behalf, gave a written explanation justifying his departure from the mandatory sentence in the Lynch case.

I stated in my letter that I had yet to receive any meaningful response to my question. Without this response, I wrote, I was unable to determine whether a) the judge rendered a corrupt decision, b) the judge made an honest mistake, or c) that my interpretation of the law was incorrect and that the sentence Judge Hendricks handed down was permitted by statute.

I used the word "corrupt" in my letter to the candidates. . This is where, according to Lanigan, I went "over the line."

The full text of my letter to the candidates and Mr. Lanigan’s response is appended to this narrative.

CONCLUSION

I am not so interested in seeing Mr. Lynch go to jail as I am in seeing justice applied equally, regardless of the status or political affiliation of the defendant. Either John Lynch should have gone to jail for injuring somebody while driving on the revoked list, or nobody should go to jail for that offense.

Although I worked on this issue for over three years, I have yet to receive an answer to the substance of my question. Nobody is willing to defend the sentences that DeMarco and Hendricks gave John Lynch. Nor is anybody willing to admit that the sentences were incorrect. All I’ve received is a vague, political letter from Mr. Harrison and an off-point, obnoxious one from Attorney Lanigan.

Moreover, the press has been remarkably silent on this issue as well. I have sent them copies of everything referenced in this narrative, including Lanigan’s letter, and only one story has been printed. The Star-Ledger, December 2, 1994 carried an article entitled "Probe asked after senator’s son is spared jail time in DWI accident." This article appeared in response to the first accident. Nothing has yet been printed on the second accident, despite my keeping the press informed of every development.

This is remarkable to me because I have built relationships with most of local reporters over the past five years and am regarded by them as being credible. I receive press coverage on issues I raise as a matter of course on other issues. Also, I have come to understand what is news and what isn’t and this strikes me as being news, especially Lanigan’s angry reaction to my questioning. However, the press will not print one word.

I am posting my experiences on this list, with a request that it be forwarded to anybody. I am willing to provide full documentation upon request, provided I am advanced postage and copying costs. I can be contacted by phone at 908-325-0129 or by email.

John Paff

November 1, 1997

ATTACHMENTS

Citizens for Justice’s letter to the council candidates:

October 24, 1997

To: ALL CANDIDATES RUNNING FOR THE THREE AT-LARGE

BRIDGEWATER TOWNSHIP COUNCIL SEATS

Bob Albano, Frank D’Ascensio, Charlie Harrison, Mary Lou Butler,

Michael J. Cronin and Howard Stamato

RE: Reappointment of Robert E. Hendricks, Judge of the Municipal Court

Dear Candidates:

Our organization would like each of you to provide us with a written answer to the following question on or before Friday, October 31, 1997:

As a member of the Township Council, will you condition Robert E. Hendricks’ reappointment as municipal court judge upon Mr. Hendricks, or someone on his behalf, providing our organization with a written explanation justifying the sentence he imposed upon John Lynch, Jr. on June 19, 1996? Explain why or why not.

Since some of the candidates may not be familiar with this issue, I provide the following exhibits and explanation:

Exhibit A Home News & Tribune article of December 20, 1995 describing the motor vehicle accident out of which this matter arose. (1 Page)

Exhibit B John Lynch’s Judgment of Conviction and Sentencing Order entered by Hendricks on June 19, 1996 (3 Pages)

Exhibit C Our letter to Judge Hendricks dated August 27, 1996 (3 Pages)

Exhibit D Sheriff Lund’s April 14, 1997 letter confirming that Mr. Lynch spent only two days in jail out of his 135 day sentence. (1 Page)

Exhibit E Our letter of October 31, 1996 to Council President Charles Harrison asking that the Township Attorney be directed to investigate the legality of the sentence (1 Page)

Exhibit F Mr. Harrison’s response of November 4, 1996 in which he expresses his "reluctance to interfere with the operation of a separate branch of municipal government," but promises to forward our letter "to the township’s administration for its reaction and comment." (1 Page)

Exhibit G Our letter of January 11, 1997 to Harrison asking for the administration’s reaction and comment. (1 Page)

Exhibit H Second request of our January 11,1997 letter to Harrison, sent March 28, 1997. (1 Page)

Exhibit I Brochure and July 17, 1996 letter from ReMed Real-Life Rehabilitation, the facility Lynch was transferred to. (6 Pages)

Exhibit J Flyer our members distributed outside the court room on June 19, 1996, in advance of Lynch’s trial. (2 Pages)

This inquiry is bottomed in our concern that Judge Hendricks, like Green Brook’s Judge DeMarco in 1992, may have abandoned the law and justice in this case to give a senator’s son a "sweetheart deal" for political or other corrupt reasons. If this concern is correct, Hendricks clearly has no place on the bench.

Or, perhaps Hendricks made an honest, albeit serious, error in comprehending the law in this case. In this event, the Council should consider this error in determining whether Hendricks should be reappointed.

Or, perhaps the legal reasoning in our August 27, 1996 letter is simply incorrect, and Hendricks has a legally justifiable reason for allowing Mr. Lynch to avoid the mandatory jail sentence.

The only way we can determine whether Judge Hendricks committed a corrupt act, made an honest error or made a legally sound decision is if he, or someone on his behalf, responds to our letter of August 27, 1996 and either admits the correctness of our argument or sets forth a legal rationale justifying his decision.

This is exactly what we’ve been seeking from Bridgewater for the past fourteen months. Despite several attempts on our part, neither the township council, judge nor administration has responded to our inquiries in any meaningful way.

Thank you for your attention to this matter. We look forward to receiving your answers to our question. Please feel free to fax your responses to me at 732/873-2070. Any responses received may be publicized.

Sincerely,

John T. Paff, President

Citizens for Justice in Somerset County, Inc.

letter from Mr. Lanigan

October 28, 1997

Sirs and Mesdames:

Your literature with respect to a condition which you seek to impose on the Bridgewater Municipal Court Judge's reappointment has been forwarded to me for a response since I am the head of the Department of Law, and the Township Attorney. In that capacity, I would advise the current Council, and any of the six candidates who might be seated on the Council pursuant to the next election. Part of my duties are to insure that the Council does not knowingly violate any of the New Jersey Statutes, and/or the Bridgewater Code. The Judge of the Municipal Court is appointed for a three-year term pursuant to the Bridgewater Code Section 4-14, and pursuant to N.J.S.A. 2A:8-5 which provides that the Mayor appoints such person with the advice and consent of the Council.

Therefore, the Council's involvement would only come after a proposed appointment was being made. The success of the Municipal Court system, and the court system in general, as envisioned by the 1947 State Constitution does not provide for any involvement by local officials the administration of the court system. Indeed, it would be a crime to interfere with a sitting judge's decision or attempt to influence such judge in any manner.

While free speech permits as much comment and criticism, or even what has come to be known as "judge bashing," it does not include any involvement by the Mayor and/or Council or any other municipal official in what the judge decides to do or not to do. My opinion at this time is consistent with one rendered previously when I was asked to comment on your prior allegations as to whether there was any illegality taking place within the Township, and I concluded that there was none.

While you had a perfect right to be critical of the judge's decision, it was not a matter that the Township official should affirmatively undertake with respect to such decision, one way or another. Mr. Harrison's inquiry, in fact, was the reason that prompted my inquiry, and I was satisfied that, as Mr. Harrison had correctly opined earlier, that he was reluctant to interfere in the operation of a separate branch of the Municipal government.

Actually it is an even stronger dictate that the Township employees, and particularly the governing officials do not involve themselves in the Municipal Court, other than providing for its existence and the appointment of personnel from time to time. The days of special favors and involvement in the local court system, if it ever existed in other parts of this State, are gone and are history. There is a more important reason for this response, and it is because your correspondence may have gone too far

You have a perfect right to criticize the Judge that you think he does not understand the law, and that he should decide cases differently. However, when you, in two places suggest that what he has done is for a "corrupt reason," or that he has "committed a corrupt act," that is malicious.

While he is a public figure under Times v. Sullivan, and can be criticized, you cannot criticize anyone as having committed a crime. I am suggesting that you rectify this correspondence immediately with an appropriate apology to him, and not go around calling judges' "corrupt" or inferring the same. You have gone over the line.

You may feel free to publicize my response as you have indicated you will do.

Very truly yours

William W. Lanigan