I finally read Judge Costello’s written opinion and I respectfully submit that the Assignment Judge appears to have misapplied (and even misquoted) the Supreme Court’s definition of abuse of discretion in Flagg. http://blog.nj.com/ledgerupdates_impact/2008/08/costello.pdf
Hence, the Court rationale for denying the Essex County Prosecutor’s Office application for wavier is fatally flawed.

In order to deny the Essex County Prosecutor’s Office and Attorney General’s Office application for wavier of forfeiture Judge Costello had to show an abuse of discretion under Flagg. I respectfully submit that the Court failed to do so because the Judge failed to apply the correct standard.

In the instant case, the Essex County Assignment Judge on page 13 makes the following misstatement of the law in Flagg:

“Whether an abuse of discretion has occurred is a decision for a judge. It is a standard which “defies precise definition”, Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002), but can be recognized when it appears to have been made without a rational basis, or rests on an impermissible basis. Ibid. Both of those elements present themselves here. The facts and the law have not changed; the State now seeks to draw inferences that are in some instances strained, and in others completely unsupported by the facts, without any explanation for its change in position.”

This is not what Flagg says as set forth below in the quote from Flagg where the Supreme does define a standard. In other words, abuse of discretion by a Prosecutor does not defy precise definition. Presumably, the Court’s confusion is do to its “selective” quoting of the Court’s three-part standard in Flagg. Yes there are three parts to the test not two, which are: (1) the decision is made without a rational explanation, (2) the decision inexplicably departed from established policies, or (3) rested on an impermissible basis."

Presumably the Court’s omission of the second part of the test helps the Court to support its unfounded proposition that “Whether an abuse of discretion has occurred is a decision for a judge” In other words, reading all three parts of the standard in Flagg along with the Attorney General’s guidelines seems to indicate that abuse of discretion of a prosecutor in applying for a wavier is a decision for a judge “in view of the AG’s guidelines.”

If you read both the Appellate Division and Supreme Court case in Flagg it is clear that both Courts were addressing prosecutorial discretion in absence of a writing and clear guidelines. In the instant case the writing requirement is satisfied by the July 31, 2008 Dow letter where the AG’s guidelines were addressed specific to the facts of Ms. Rone’s case. Hence, the Essex County Prosecutor’s Office’s decision does not inexplicably departed from established policies.
I agree with the Court’s statement that the State drew inferences that are in some instances strained, and in others completely unsupported by the facts, without any explanation for its change in position. However, in totality Dow’s July 31, 2008 letter is a decision that can not be said to be “made without a rational explanation.”

Hence, since the first part of Supreme Court’s standard in Flagg failed to meet muster Judge Costtelo had to address the second and third. In other words, did Dow inexplicably departed from established policies. It seems it was easier for the Court to omit this second part of the Flagg standard rather than define “inexplicably.” I would say that Dow’s letter was weak but did not deviate completely from the AG’s standards (after all the AG signed off on the letter).

What is really going on in this case is Judge Costtelo, an Assignment Judge, does not want to go any further and address the third part of the test. Did she really want to start to explain how Dow’s application “rested on an impermissible basis."

I would file a motion to reconsider pointing out the Court’s misquoting and misapplication of the Flagg standard and would specifically ask the Court to either state an “impermissible basis” or reverse the decision. Is the Court saying that other parties misused their offices to influence the Essex County Prosecutor’s decision to file the application for wavier (just like Rone did )?

Here is the direct quote from Flagg:

Although the ordinary "abuse of discretion" standard defies precise definition, it arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Achacoso-Sanchez v. Immigration and Naturalization Service, 779 F.2d 1260, 1265 (7th Cir.1985). In other words, a functional approach to abuse of discretion examines [**188] whether there are good reasons for an appellate court to defer to the particular decision at issue. It may be "an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir.1999) [***20] (internal quotations and citation omitted). "Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Baynes, 148 N.J. 434, 444, 690 A.2d 594 (1997) (quoting State v. Bender, 80 N.J. 84, 93, 402 A.2d 217 (1979)).

Behind much of this-Just like the Sharpe call to Chris christie-its said that it was a Cory-ite that placed the initial call to the AG's office to "take a look at this". They've wanted Dana out when she started making noise about all the misteps of the Booker administration. and don't be fooled by Mrs. Crump-the word is that the two-she and Dana- hate each other's guts! Maybe her son can run for the seat?

I am not familiar with the Newark local politics, but it seems to me that every time "a distinguished and valuable member" of a local council gets in trouble with the law, the law does not apply to them. "As the Central Ward Councilwoman, Dana has proven to be a very strong advocate for the under-served populations in Newark." That is beside the point. Every time a politician is caught breaking the law, they bring up their "service to underserved population." Maybe, this underserved population was really underserved by the councilwoman in this case. Just a thought. Congressman Charles Rangel comes to my mind immediately. Do not mind four (that's correct as 4) rent regulated apartments that this public servant lives in.

It's hard to see Newark moving forward when the powers that be play games with the legal system. Booker is too afraid of the old guard to make an example of anyone.

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