Saturday, February 19, 2011

$6.5 Million Miscarriage of Justice Corrected, Part 2

When I was Secretay of DEP and was told that the jury in the MFS case had rendered a $6.5 million verdict against 3 current and 1 former DEP employees, shock was my first reaction.  My next thought was to second-guess my decision not to settle the case.  But despite the shocking decision, a very small amount of reflection confirmed all the reasons for not settling still existed and compelled taking every step to overturn the verdict.

Having now read Judge Slomsky's 142 page decision, which thoroughly dismantles the jury verdict and the plaintiff's case, I am more certain than ever that this is one case that cannot be settled.

Judge Slomsky grants completely the Defendants' post trial motions (again see earlier post on case regarding the work of Susan Shinkman and others).  He grants Defendants verdicts as a matter of law on the First Amendment retaliation, Due Process, Equal Protection, and state claims.

Judge Slomsky then finds that no reasonable jury could have issued the verdict, because the verdict is "against the great weight of evidence" and would be a "miscarriage of justice" if allowed to stand.  He says at page 141: " is evident that MFS sued Defendants because it resented the malodor citiations and other decisions that Defendants and their DEP colleagues made in the course of carrying out their responsibility to protect the environment and the public."

Thank goodness for post trial motions. 

Indeed, had the plaintiffs claim of First Amendment retaliation been upheld, state government would have been forced to make major changes.  Specifically state officials would have been fools to grant meetings with those applying for permits or renewals and even more foolish to produce materials to prepare for those meetings.  Don't believe that? Read on!

While events in the MFS case go back many years, to well before Governor Rendell or Secretary McGinty took office in 2003, and involve complaints of malodors by neighbors to MFS as well as enforcement actions by the Environmental Protection Agency, a MFS meeting request in October 2007 to Secretary McGinty became the foundation for a First Amendment retaliation claim by MFS.

Secretary McGinty met with MFS in December 2007, and a routine briefing memo was written about the MFS matter to prepare the Secretary for the meeting.  MFS sued the unfortunate attorney who wrote the briefing memo, alleging he retaliated against the company for the meeting with Secretary Mcginty by writing an 8 page memo that was allegedly incomplete, did not present MFS's arguments, and biased Secretary McGinty against the company. 

MFS also sued employees alleging that 2 among 92 conditions in a DRAFT permit were inserted to retaliate against it for its meeting with Secretary McGinty.

Now mind you, DEP never ordered MFS to close; never fined it; and never denied its Title V permit renewal.  Moreover, MFS had a legal right to keep operating under the "permit shield" provisions of its original operating permit as the renewal was resolved.

In fact, MFS itself voluntarily had stopped operating in February 2006, as Judge Slomsky said nearly 2 years before the meeting with Secretary McGinty.

Judge Slomsky dissects this extraordinary First Amendment retaliation claim as well as the other claims, leaving each in tatters and vindicating completely the employees.  The Judge concluded: "When regulators such as Defendants propose lawful terms in a draft permit, or draft an internal memorandum for their supervisor, or in the case of an attorney for his or her client, this conduct is not evidence of antagonism. If such conduct of a regulator could amount to antagonism under the law, it would inhibit a public employee from performing his or her duties in the best interest of the public."

But had MFS prevailed in its First Amendment retaliation claim, state officials would have been beyond foolish to schedule meetings with those seeking permits or renewals and to order the preparation of any materials for such meetings.  Doing so would have been grist for $6.5 million jury verdicts.

Thank goodness for Judge Slomsky's decision.  If you are a lawyer, I commend it to you.

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