Case of the Day – Friday, March 2, 2018

TRUE CRIME

You’d think that with all of the murder, mayhem, opioids and computer fraud, we’d have enough crime out there to satisfy the most hidebound law-and-order type (we’re talkin’ to you, Jefferson Beauregard Sessions III). But no, we need even more criminal statutes to serve as a trap for the unwary.

Unwary folks like Mohammed Azmat of Franklin Township, New Jersey. There has to be a backstory of ill will here, but in honor of Sgt. Joe Friday, we’ll stick to the facts. Mohammed’s neighbor Tony Gaylord filed a complaint in court against Mo, alleging violation of Ordinance § 222.17 for failure to maintain the trees along their shared property line.

Not that! Not Ordinance § 222.17! Old ladies swooned. Town elders gasped. It was the Queen Mother, the local ordinance that required homeowners to maintain their trees “in a safe manner” or face the full wrath of the criminal law.

This is ridiculous. Lock a homeowner up for not trimming trees? And not keeping them “in a safe manner so they shall not create a hazard to the general public,” whatever that meant? Mo argued that the criminal statute was so vague as to not fairly inform those subject to it what was required. That, for those of you who were on senior “skip day” when your high school government class covered the topic, violates a citizen’s right to “due process of law” under the 5th and 14th Amendments.

But the Court didn’t buy it. It held that anyone who read the ordinance could tell that “all trees… [shall be] maintained in a safe manner so they shall not create a hazard to the general public” would inform the reader that a dying tree or one likely to fall had to be removed. That’s so, but just about every vague statute or ordinance clearly covers hazards on the far shore of reasonableness. Imagine a state law that punished people who weren’t nice. Obviously, punching a Brownie in the gut because you were on a diet and couldn’t eat cookies would break the law. But how about roaring into a parking place ahead of a grandmother in a Buick? Or walking past a homeless person with a thousand-yard stare? Or even just ducking around an aisle at the grocery store to avoid a talkative neighbor because you’re in a hurry?

Generally, the “void-for-vagueness” doctrine requires that a criminal statute define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. The legislature – or, here, the township government – is required to establish minimal guidelines to govern law enforcement. Without some kind of guidance, a criminal statute may permit what the Supreme Court once called “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.”

Such as letting a neighbor who has a bone to pick turn his complaint into a criminal case. We would never suggest that a guy with the Italian name decided to lay the leather to the guy with the Middle Eastern name who just happens to worship on Fridays at a mosque. But we will suggest that slippery criminal ordinances like this one are perfect bludgeons if you want to oppress someone for reasons having nothing to do with the putative issue.

The thing about vagueness is that it doesn’t really inform one of what is permitted and what is proscribed on the margins, where the differences may be slight. Some places really love statutes like that. But this is America.

Beyond the vagueness issue, of what social utility is an ordinance that uses loss of liberty to punish someone for not maintaining property? Fines, liability for foreseeable effects of sloth, or even having the municipality perform the maintenance and then billing the owner at a punitive rate, all work as well, and do not soak up municipal resources need more for those whose conduct pose a more clear and present danger to the public than a dead tree, or – for that matter – encourage people other than the complainant in this case (of whom we suspect nothing but pure motives) to pursue statutory mischief.

State of New Jersey v. Azmat, Case No. A-0296-14T3 (Super. Ct. N.J., June 13, 2016): Anthony Gaylord filed a complaint in the Franklin Township Municipal Court against his neighbor Mohammed Azmat, alleging violation of Ordinance § 222.17 for failure to maintain the trees along their shared property line. The ordinance provides: “The owner or tenant of any lands lying within the Township shall keep all trees… maintained in a safe manner so they shall not create a hazard to the general public…” Tony said trees on Azmat’s property had fallen onto his property, causing damage to his property and to power lines. Tony said he was afraid other trees that he deemed dangerous could fall in a windstorm, hurricane, or snow storm.

Tony and Mo could not agree on which trees should be removed, and at trial, the State of New Jersey presented testimony from Tony and its expert, Robert Wells, an International Society of Arboriculture certified master arborist. Tony generally bellyached about the “hazardous conditions” he claimed existed on Mo’s property. The expert identified two white Ash trees near Tony’s power lines which he opined were hazard trees that posed a “non-imminent threat” of “tree failure” and could possibly fall on the power lines. He also cited two of Mo’s Locust trees, leaning over power lines connected to Tony’s property, which he said were hazardous and should be cut down. Finally, he pointed out some dead limbs on a Sweet Gum and Red Oak tree, which extended over Tony’s power lines. The expert did admit that the trees he identified as hazardous had already survived Hurricane Irene in August 2011 and Hurricane Sandy in October 2012.

The municipal court found that “[c]ertain trees of defendant’s property pose a clear and present danger to complainant… his house and to utility lines that transverse both parties[‘] property.” He ordered Mo to cut down and remove the trees identified in the expert’s report within sixty days, or be fined or jailed. Mo appealed to the Law Division of the Municipal Court, which upheld the judge.

After that, Mo appealed to Superior Court, claiming the ordinance was unconstitutionally vague, and that even if it was not, there was not enough evidence to convict.

Held: The criminal ordinance was not unconstitutionally vague, and ample evidence supported Mo’s guilt. The Court said that for an ordinance to be vague, there had to be so little guidance “that an enforcement officer would not be able to point to objective facts that would lead a reasonable person to realize his or her conduct was a violation.” But here, the ordinance is specific; Ordinance § 222-17 plainly states that “all trees… [shall be] maintained in a safe manner so they shall not create a hazard to the general public.” Thus, the ordinance is clear “that a tree that is dying or likely to fall must be removed by its owner if it can cause a hazard to others.”

Mo also complained that the State’s expert had only visually inspected the trees from 12-15 feet away, not an acceptable methodology within the arboriculture profession. Mo argued that the fact that the “hazardous” trees did not fall during Hurricane Sandy, which occurred after the complaint was filed, showed that the expert’s opinion was unreliable and speculative. Finally, he pointed to some inconsistencies between the expert’s written report and his testimony.

The appellate court found no merit to Mo’s contention that the expert testimony was inadmissible net opinion. “The net opinion rule… forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data,'” the Court said. “Here, the expert based his opinion on more than 40 years of experience as a certified master arborist that, based upon his personal observations, certain trees on defendant’s property were hazardous and should be removed.” Mo never rebutted the methodology of citing dead and detached limbs to conclude that the trees were a threat to Tony’s power lines. “Further,” the Court held, “the cited inconsistencies between the expert’s report and his testimony do not cause us to take issue with the trial court’s reliance on his opinion to find that defendant violated the ordinance.”

– Tom Root

TNLBGray140407

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