criminal law

Here's a recent piece I wrote for the Connecticut Law Tribune about a bizarre scenario: a litigant suing for alleged personal injury has been charged with perjury because he allegedly falsely claimed his mother had died in order to excuse his absence from court. Sometimes, you can't make the world of law up.

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An Arizona man sued Dollar Tree Stores, alleging that he fell due to a hole in the floor of one of the chain's stores in Hartford County.

But Kenneth Rowe has fallen into an even bigger hole after he apparently falsely claimed that his mother recently died and that was why he failed to show up in court for his civil lawsuit.

That so irked Connecticut Superior Court Judge Robert E. Young that he ordered that Rowe's testimony be referred to the state's attorney for the New Britain Judicial District to investigate if Rowe perjured himself.

In late August, an arrest warrant was issued for Rowe's arrest on one count of perjury, according to a report State's Attorney Brian Preleski sent to the judge.

Young has yet to decide if he will sanction Rowe.

Rowe started his lawsuit in February 2014, alleging that he fell Dec. 8, 2013, due to a hole in the rear of the Dollar Tree store in Rocky Hill. He claimed he had a lumbar-spinal injury and hurt his left ankle.

According to a court transcript, Rowe's first lawyer, Paul J. Garlasco of the Law Offices of Paul J. Garlasco, had trouble keeping in touch with his client, and he asked Dollar Tree to make a settlement offer of $5,000 "in order to entice [Rowe] back into communication."

When Garlasco relayed the settlement offer to Rowe late last year, Rowe allegedly hung up on his attorney. Shortly before the case was supposed to go to trial, Garlasco moved to withdraw from the case.

Rowe failed to show up at the trial management conference on Dec. 8, 2015. Then the judge, Garlasco and Nicole J. Tung, Dollar Tree's lawyer from Halloran & Sage, agreed to a judgment of nonsuit being entered against Rowe.

Rowe engaged John A. Locus, a Rocky Hill attorney, who filed a motion to reopen the judgment of nonsuit. In the motion, Locus wrote that his client was caring for his mother in the fall of 2015 after she experienced four strokes and dementia. Rowe further claimed he transferred his mother from Springfield, Illinois, to an assisted living facility in Scottsdale, Arizona, and continued to care for her until her death on Feb. 5, 2016.

"It was both reasonable and compassionate for the plaintiff to tend to his mother in her final months as her health deteriorated," Locus wrote. "To preclude the plaintiff from reopening his case would deny him his rightful day in court."

The judge held a hearing on whether to overturn the nonsuit in May. According to a court transcript, Rowe testified he had told Garlasco he couldn't make the conference because he was caring for his ailing mother.

According to the court, however, Garlasco only said that all communications had broken down with his client and he needed to withdraw from the case.

While cross-examining Rowe, Tung presented an affidavit of a defense investigator who contacted Rowe's mother, Theodora Rowe, three months after she had allegedly died. According to the law firm, it received an anonymous tip that Rowe's mother was alive and well in Chicago and a phone call proved it to be true.

Young immediately asked for a recess at the spring hearing. After the recess, Locus said that Rowe consented to withdraw the motion to reopen his case.

"We have a situation here where either Theodora Rowe is dead or alive," Young said. "She can't be both. And if, in fact, Theodora Rowe is alive, and Mr. Rowe—Ken Rowe is here today sitting next to me under oath and testifying to the death of his mother, that would be a very serious fraud upon the court."

Rowe could not be reached for comment. Locus did not respond to a request for comment, while Tung declined comment.

How do you overcome the ax murderer taking care of Grandma problem?

Lawyer Peter H. “Tad” LeVan knows a thing or two about that.

A few weeks ago, the Pennsylvania Commonwealth Court, sitting en banc, ruled that the state's ban on former convicts working in elder care was unconstitutional.

LeVan gave me a recent interview about this litigation. It started with a challenge to the law's constitutionality on an individual basis; the Pennsylvania Supreme Court ruled that the law’s “employment ban was not rationally related to the Commonwealth’s legitimate interest in protection elderly citizens.” LeVan won that case in 2003. But then the Pennsylvania General Assembly never moved to amend the law after the court’s ruling.

So, in the spring of 2015, Levan, his co-counsel and his clients challenged the law on its face as unconstitutional.

It's always easier to attack the constitutionality of law by arguing that it’s unconstitutional “as applied” to particular plaintiffs, than arguing that the law is unconstitutional for everyone on its face.

The Pennsylvania Older Adults Protective Services Act was passed in the 1990s to create a lifetime ban on employment for convicted murderers and rapists in healthcare facilities; people convicted of felony drug violations and several other crimes were banned for a decade from working in healthcare facilities. The law, which was amended in 1997, required anyone who had been working at an eldercare facility for a year or less to be fired. However, people who had been working for a year or more could keep on working for their present employer.

By 2015, the social science had developed enough on reintegration and recidivism to support a challenge that the ban on people with criminal convictions working in elder care had zero “scope of rationality,” LeVan said.

“Social science research conducted subsequent to the [prior case] shows that the lifetime employment ban is built on a faulty premise because the risk of recidivism declines over time and eventually ‘loses any meaningful value in predicting future criminal conduct,’” Judge Mary Hannah Leavitt wrote for the Commonwealth Court.

The court ruled that the employment ban violates the Pennsylvania Constitution.

“There is simply no rational basis to treat those employed for a year in a facility providing services to older adults as of July 1, 1998, as having rehabilitated themselves following their criminal convictions solely because of the amount of time they worked in one facility such that they do not pose a threat to older adults, but treat all other employees and applications as incapable of rehabilitation and forever a threat to adults,” Leavitt opined.

The two sides also disagreed on the correct standard for considering the plaintiffs’ challenge to the constitutionality of the employment ban.

Lawyers for the Commonwealth of Pennsylvania argued that a law can be declared facially unconstitutional only if there is no set of circumstances under which the statute would be valid. LeVan argued on behalf of his clients that a statute is facially unconstitutional if a substantial number of its potential applications are unconstitutional.

The Commonwealth Court followed the U.S. Supreme Court’s ruling in Washington State Grange v. Washington State in State Republican Party in deciding that challengers who argue that a law is unconstitutional on its face need only demonstrate that a substantial number of the “‘challenged statute’s potential applications are unconstitutional.’”