• Gina Rullo

Barbone: Firemen will appeal decision


Hammonton Independent Volunteer Fire Company No. 2's building. (THG/Dan Russoman)

HAMMONTON—On April 28, an email to The Gazette was received from attorney Louis Barbone’s office.


On April 19, the Superior Court of New Jersey Appellate Division’s decision was issued in the case of Hammonton Independent Volunteer Fire Company No. 2 and Joseph J. Caruso III, plaintiffs, and Joseph Caruso Jr., William Tomasello, John H. Warren Jr., and John Michael Warren, plaintiffs-respondents, v. town of Hammonton, Defendant-Appellant.


The decision from Judges Messano, Hoffman and Suter overturned the 2018 decision that awarded the men $80,000 and $85,963.06 in attorney’s fees and costs, according to the appellate division decision.


Town solicitor Michael J. Malinsky represented the town and Louis M. Barbone from Jacobs & Barbone, PA represented the firemen.


[See The Gazette’s report from April 28 edition]


The Gazette called and emailed Barbone on April 22 and did not hear from his office until April 28.


In its email of April 22, The Gazette asked Barbone the following questions:


“1.  In 2018 you stated, ‘Anybody who violates the rights of an individual under the color of state law is liable of damages if they deprive someone of their civil rights,’ Barbone said.


“Do you feel that the Appellate Division missed or did not see the violation of civil rights?


“2.  In the decision, it was written, ‘Plaintiffs fail to cite a single case in which a class-of-one equal protection claim was successfully brought in the sphere of public employment, and we found none.’


“Do you think this is a fair statement?  Did you cite a case either on this level or in the prior trial?


“3. They also wrote ‘Plaintiffs’ retort to this was and continues to be that they are not public employees.’  The Hammonton Fire Department is not paid as we know.


“Do you think the gray area of being ‘quasi-public in nature’ could lead to other issues in the future for other volunteer departments in the state?


“4. Will the firemen appeal to the Supreme Court of the State?”


Barbone’s email from April 28 reads as follows:


“I have your email of April 22, 2021 and enclose here a copy of Plaintiffs’ Notice of Petition for Certification to the Supreme Court of New Jersey. Because this is a case of first impression, there is no precedent deciding the applicability of a class-of-one equal Protection claim that exists. As you noted, the Appellate Division commented that ‘Plaintiffs fail to cite a single case in which a class-of-one equal protection claim was successfully brought in the sphere of public employment, and we found none.’ That statement misapprehends the nature of the claim asserted and proven by the Plaintiffs herein.


“This case was always about two, separate and independent constitutional violations. The first was found to be true by the trial court, as well as the Appellate Division — the Town violated the Plaintiffs’ right of due process. Defendant argued vociferously that these Plaintiffs had absolutely no rights to any charges or hearing before Town government. In the Defendant’s view, the Town could do anything and everything it wanted to without any of the most basic protection accorded to any citizen. The right to know the charges against them and the right to a hearing on those charges before an impartial tribunal. Both the trial court and the Appellate Division found without question that the Town violated those due process rights and the trial court’s entry of initial restraints mandating charges and a hearing were mandated. Plaintiffs won that threshold battle.


“The trial proceeded with extensive testimony and proof that while these plaintiffs were quasi-public employees, namely volunteer firemen, the violation of their rights far exceeded action against them in their official capacities. Beyond suspending the Plaintiffs, the Town did, by and through its Mayor and Council, prohibit them from and evict them from their own real property, the firehouse, and deprive them of their right to of their right to engage in their social memberships within the Fire Company. The damage and injury therefore was far in excess of the right of any employer to impose a suspension or discipline on an employee, and eviscerated private and personal rights of association and membership having nothing to do with their employment. All of it was left unaddressed by the Appellate Division’s Final Judgment. For those reasons, Plaintiffs intend to pursue review and appeal with the Supreme Court of New Jersey on fundamental issues of first impression,” the letter Barbone sent to The Gazette read.


The letter that was emailed to The Gazette was signed by Louis M. Barbone.


The copy of the “Plaintiffs’ Notice of Petition” was sent to The Gazette via email from Barbone on May 3.


The petition reads as follows:


“TAKE NOTICE that Plaintiffs/Respondents hereby seek Certification pursuant to R. 2:2-5(b) and R. 2:12-3(a) to review a Final Judgment of the Superior Court Appellate Division, entered April 19, 2021, reversing a Final Judgment entered by the Superior Court, Law Division, Civil Part, Atlantic County, vacating a jury’s verdict and damage award and dismissing Plaintiff’s complaint. Respondents seek Certification because the Appellate Division Judgment presents a general question of public importance which should be settled by the Supreme Court, namely, the Plaintiffs’ right to· maintain a cause of action on a class of one equal protection claim in the circumstances of quasi-public employees that suffer violations to their personal and private property rights.”


The petition is signed by Barbone and dated April 29.


Malinsky sent his comment via email on May 9.


“I think it is highly unlikely that the New Jersey Supreme Court will grant plaintiffs’ request for Certification to review the Final Judgment of the Appellate Division entered on April 19, 2021. Plaintiffs’ right to bring a class-of-one equal protection claim does not present a general question of public importance which needs to be settled by the New Jersey Supreme Court. This issue has already been decided by the United States Supreme Court, Third Circuit Court of Appeals, N.J. Federal District Court and, of importance here, four times by the New Jersey Appellate Division. As such, I still believe this case is done at this point, and the Appellate Division Decision issued on April 19, 2021 concluded this case in favor of the town,” Malinsky said via email.