Thursday, July 28, 2016

Rise of the Liebling: David Liebler lawsuit against Hoboken survives

David Liebler lawsuit against City of Hoboken for premature ejection from Council meeting survives motion to dismiss

MSV's initial analysis/opinion on the complexity of the Liebling Affair

David Liebler, the Hoboken resident and years long political worker for Old Guard candidates and policies sees another day in court. His civil lawsuit for being ejected from a City Council meeting before the heated 2015 races for council last fall survived an initial effort it be thrown out of federal court.

The judge's decision however gives room for pause on the seriousness of his ejection with seconds to go before his five minutes had expired. (It's estimated he lost less than 20 seconds.)

The Hudson County View has the best coverage on the initial legal decision:

"In the 11-page ruling, McNulty earlier noted that "qualified immunity issues (such as whether a violation was "objectively apparent" under the circumstances at the time) may often require the kind of factual context that is only available on summary judgement or a trial."





Talking Ed Note: First let's illuminate some of the context of the judge's decision. A quick read of the decision shows the federal judge seeking to fairly act on examination of any and all issues pertaining to the First Amendment. In doing so, he's concluded the video at the meeting is not in and of itself the final arbiter on the matter. As they say, context is king but where's the evidence?

That's not a decision many legal beagles would say falls outside the law. On a motion to dismiss, the complainant, in this instance David Liebler is afforded every opportunity to make his case. The defendant, the City of Hoboken must operate in the four corners, legal speak as to say, "So what?" Evidence has to be proven and there Liebler must show he has that evidence to support his contention of a conspiracy against him among his other claims.

The language the judge makes describing the merits of the case are not altogether impressive and the burden is clearly left on the complainant David Liebler. He however can't really make his case at this point either. The judge points to the process and a summary motion or trial as likely required to adjudicate all the complex legal issues.

In examining the politics and this is very much about politics and money, David Liebler doesn't exactly have a strong record on advocacy, public or otherwise on behalf of the First Amendment. As previously highlighted, Liebler publicly celebrated the Beth Mason supported SLAPP-suit. (He's mentioned as having worked for Mason, Frank "Pupie" Raia and other Old Guard candidacies in the Hudson County View article.)

Now it's one thing to publicly support a position taken by your political paymaster but David Liebler took that to a completely different level. Not only did he seek to diminish all political discourse re: political opposition by Reform-oriented commenters online, he celebrated doing so by saying even if Lane Bajardi failed, people would be greatly harmed by the substantial cost of legal fees. For good measure he added, Lane Bajardi "was not the bully."

We haven't heard much publicly from David Liebler on that case and he's returned to his more amiable self since the ruling on the SLAPP-suit last July where Lane Bajardi and Kimberly Cardinal were slammed by the court and ordered to pay over $276,000 for their frivolous litigation.

As to the backing for this lawsuit, it's Charles Gormally of the Mile Square Taxpayers Association. To say this development entity has a financial interest in Hoboken would be understating the matter. The group led the back-to-back ballot issues on rent control most recently the failed but razor close margin in the 2013 election. This is not a civil rights law firm, think big real estate interests.

Full disclosure, MSV testified for a day and a half as a witness in Hudson Superior Court to the inconsistencies on Hoboken elections especially as to the controversial application of Vote-by-Mail ballots. (No compensation for testifying was offered or made by anyone.) Mr. Gormally personally did the cross-examination of the Horse after failing to keep a farm animal off the witness stand.

MSTA certainly is motivated by payback against Mayor Dawn Zimmer who publicly endorsed the rent control advocates positions in both elections.

At this point, monies are likely being sought to have the matter go away. The politics and history of the recent epic election battles however, most recently in 2013, suggests no such settlement is likely.

As they say, that's politics and in this First Amendment "case," that's Hoboken.

Related The February 2014 MSV exclusive on the earlier Hudson Superior Court case:

Hoboken election integrity withstands legal challenge on rent control vote. 

The legal document seen here comes courtesy of the Hudson County View.