Saturday, May 30, 2015
By Xeni Jardin at 2:45 pm Sat, May 30, 2015
A Bergen County, New Jersey judge has ordered the local paper to “remove a news article” that relates to a child custody case, demanding that the paper take it out of public internet view for all eternity. The response to that order published in TheBergen Dispatch is pretty great.
On Thursday, Bergen County Superior Court Judge Jane Gallina-Mecca issued an order directing the Bergen Dispatch to remove a news article. The case, Docket Number FN 02-158-15, Division of Child Protection And Permanency (DYFS) vs. S.G., D.K. in the matter of G.K. involves the custody of a child. As such, the proceedings were held in a closed courtroom and no one from the Bergen Dispatch was notified nor was the Bergen Dispatch represented at the time.
It will be interesting to see how this holds up under appeal. Apart from being a threat to Constitutionally protected press freedom, it is major Streisand Effect territory. Again, from the Bergen Dispatch:
Many questions remain as to the extent of Judge Mecca’s power to censor the press in general and the Bergen Dispatch in particular. The Judges ability to issue such an order from behind closed doors without a hearing, without notification and without an opportunity to argue the facts seems contradictory to such things as the United States and the New Jersey Constitutions.
In June 2014, the Bergen Dispatch filed a First Amendment challenge to a gag order issued by Essex County Superior Court Judge Nancy Sivilli in a 2011 a divorce and custody suit, which is still pending. United States District Judge William J. Martini rejected Sivilli’s motion to dismiss the casefinding that the gag order violates the Frist Amendment.
While the Bergen Dispatch reviews its options we have confirmed that Bergen County does currently remain part of the State of New Jersey and that currently New Jersey is still part of the Union of states that is governed by the United States Constitution and the Bill of Rights. As such, Bergen County citizens continue to enjoy the right to freedom of speech and the right to a free press.
UPDATE: Reminded of her obligation to uphold the First Amendment to the U.S. Constitution, the judge backs down.
Saturday, May 30, 2015
On Friday, May 29, attorney Paul Clarkfiled a motion in federal court on behalf of the Bergen Dispatch and in response to an Order by Bergen County Superior Court Judge Jane Gallina-Mecca. Gallina-Mecca ordered the Bergen Dispatch to remove a news article.
On Friday evening, Judge Gallina-Mecca vacated that Order.
Clark, who represents the Bergen Dispatch in a case against Essex County Family Court Judge Nancy Sivilli, moved to amend that case and add Judge Gallina-Mecca as a defendant as well as seek immediate relief from the “Gag Order”. Clark wrote this “case presents the identical legal issue with respect to a second “Gag Order” issued by a New Jersey family court forbidding public coverage of the family courts deprivation of parental rights.”
On Thursday May 28, in a closed proceeding and without notice or opportunity for the Bergen Dispatch to respond, Bergen Family Court Judge Gallina-Mecca ordered:
“The May 16, 2015 article, “Bergen Father Fights to get Daughter Back After Wrongful Prosecution” that is posted in the “Bergen Dispatch”, involving this litigation shall be taken down, on an immediate basis, in accordance with N.J.S.A. 9:8-1 et seq. A copy of this order shall be provided to the “Bergen Dispatch” by the law guardian.”
Clark maintains that the May 28 Orders is an “egregious violation of the fundamental rights to freedom of speech and of the press the Order is based on a non-existent law”.
“As far as we can tell from the Order, the court made no findings of fact and appears to have issued the order in a summary proceeding. — Notably, the only authority cited for the action was N.J.S.A. 9:8-1 et seq. This section is currently listed as the Following: “Chapter 8. Orphan Asylums; Guardianship and Indenture of Children [Repealed].” According to Westlaw this statute was repealed in 1980”, Clark wrote to the Court.
The May 28 Order was prompted by an emergency filing brought by Office of Law Guardian (OLG) after an attorney for the Mother, Shirley Gonclaves, complained about the article which describes an ongoing legal battle that began with a press release from the Bergen County Prosecutor’s office.
The article referenced a case brought by DYFS. DYFS cases are held in secret and in a closed courtroom. Litigants are prohibited from discussing the proceedings and in general are not permitted to obtain transcripts or recordings of those proceedings.
In April 2014, The Bergen Prosecutor charged Damian Kazazian, 41, of Hackensack with Aggravated Sexual Assault and Endangering the Welfare of a Child. The child, described in the press release as a ‘five year old female acquaintance’ was Kazazian’s daughter.
In October 2014, Judge Roy F. McGeady, the presiding municipal judge for Bergen County, found probable cause to charge Shirley Gonclaves, 44, of Bergenfield with seven criminal counts of Extortion and Coercion and one disorderly persons offense of Harassment with respect to the allegations made against Kazazian.
In January, the Bergen County Prosecutor’s Office agreed to drop all charges against Damian Kazazian, the charges against Shirley Gonclaves continue. Despite the charges being dropped against Kazazian, DYFS, who now calls themselves the Division of Child Protection And Permanency, has restricted Kazazian from seeing his daughter and brought a case against Kazazian and Gonclaves.
Superior Court Judge Margaret Foti, who had been presiding over the case, was replaced by Jane Gallina Mecca, a public sector partner at Fair Lawn’s Fogarty & Hara who was appointed to the bench this January. Mecca was recently assigned to the Bergen vicinage Family Division which, along with Kazazian’s case, has become a casualty of the judicial shuffle in Bergen County.
Mecca is the fourth Judge to preside over Kazazian’s case in 12 months.
In June 2014, the Bergen Dispatch filed a First Amendment challenge to a gag order issued by Essex County Superior Court Judge Nancy Sivilli in a 2011 divorce and custody suit, which is still pending. United States District Judge William J. Martini rejected Sivilli’s motion to dismiss the case finding that the gag order violates the First Amendment.
About Paul Clark
Clark Legal Services filed a federal suit to protect parent’s right to a full hearing when the family court suspends or terminates parenting time. Read more about this in the January 2015 NJ Law Journal and in the February 2015 NJ Law Journal.
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