273 F.3d 527 (3rd Cir. 2001), 00-2621, County of Morris v Nationalist Movement

Docket Nº:00-2621 & 00-3569
Citation:273 F.3d 527
Case Date:November 16, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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273 F.3d 527 (3rd Cir. 2001)




Nos. 00-2621 & 00-3569

United States Court of Appeals, Third Circuit

November 16, 2001

Argued: April 17, 2001

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 00-cv-02480) District Judge: Honorable John W. Bissell

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[Copyrighted Material Omitted]

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Richard Barrett, Esquire (argued), Learned, P.O. Box 2050 MS 39154, for Appellant.

Ronald Kevitz, Esquire (argued), Office of County Prosecutor, Morris County, P.O. Box 900 Court and Washington Streets Morristown, New Jersey 07963, for Appellee.

Before: Becker, Chief Judge, Mckee, Circuit Judge, and Pollak, District Judge.[*]


Pollak, District Judge

On May 10, 2000, appellee, the County of Morris, New Jersey ("the County"), brought this declaratory judgment action in state court to establish the constitutionality of its policies regulating the private use of county facilities in the face of threatened litigation by the Nationalist Movement, a Mississippi-based private non-profit organization that sought to hold (and, in the event, did hold) a parade and rally in Morristown, the county seat, on July 4, 2000. After the case was removed to federal court, the District Court determined that the steps and lawn of the Morris County Courthouse were not a public forum and, thus, the County could reasonably preclude the Nationalist Movement from using the courthouse steps for their rally. Additionally, the District Court held that some portions of the County's policies did, and some did not, pass constitutional muster. On appeal, the Nationalist Movement contends that the District Court erred when it decided that the Nationalist Movement did not have a First Amendment right to demonstrate on the steps and lawn of the courthouse. The Nationalist Movement also contests the District Court's decision to deny its application for attorney's fees.

We conclude that events which occurred subsequent to the contested orders render this appeal moot as to the Nationalist Movement's claim of right to use the courthouse steps and lawn, though not as to the question of attorney's fees.

I. Background

The scenario giving rise to the present action began with a request by the Nationalist Movement for permission to hold a parade and rally in Morristown on July 4, 2000. From the correspondence between the Nationalist Movement and the County that followed, areas of disagreement became apparent as to the exact location of the planned event and the parties' respective financial responsibility for costs related to the demonstration.

In a letter dated March 21, 2000, Richard Barrett, as First Officer of the Nationalist Movement, informed the Morris County Board of Freeholders that the group intended to hold an "Independence from Affirmative-Action Day" parade and rally in Morristown on July 4. The letter stated that the purpose of the event was to "celebrate the Fourth of July, call for abolition of Affirmative-Action and voice support for former State Police Chief, Carl Williams." As envisioned by the Nationalist Movement, the parade would take place

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on a public street and culminate in a rally on the steps and lawn of the County Courthouse. Specifically, the Nationalist Movement requested the following accommodations:

Kindly reserve area from 9:00 AM (at which time decorating will take place, followed by assembly at the Green for paraders at 11:00 AM) until 4:00 PM. The parade will step off at Noon from the Green, proceed to and around the Courthouse. The rally -- including ceremonies, petitions and speeches -- will begin at 12:30 PM at the Courthouse steps at Washington Street and last until approximately 3:00 PM, followed by disassembly of the equipment and signing of petitions. The event will be open to the pro-majority public, who we decide to admit.

Further, Mr. Barrett's letter stated that the Nationalist Movement expected approximately 50 paraders and 100 spectators, requested adequate security to deal with anticipated violent counter-demonstrators, and sought assurance that it would have access to an electrical outlet, restroom facilities, and parking.

In a letter dated April 26, 2000, the County Administrator, James J. Rosenberg, sent Mr. Barrett a copy of the then-Policy and Procedure Guidelines No. 4:1.01 ("policy 4:1.01"), which governed the use of public facilities, together with related forms for completion. County Administrator Rosenberg added:

In view of the potential damages, that you have brought to my attention, which may occur during your anticipated rally on County property here in Morristown, you will be required to provide insurance in the amount of $3,000,000 for liability insurance for bodily injury and $5,000,000 aggregate for property damage liability. Said insurance shall conform and comply with all aspects of Section IV, Insurance Requirements of the above stated Policy and Procedure.

The County Administrator also stated that, because July 4 was a holiday, the courthouse would be closed and that -- due to a concern regarding the volume of holiday traffic -- Washington Street (the street at the front of the courthouse) would not be closed. As an alternative to the Nationalist Movement's proposed plans, the County Administrator suggested that the Nationalist Movement assemble at the rear of the courthouse on the Ann Street Parking Deck. Moreover, the letter provided that:

All parades, assemblies, rallies, and the like must assume the responsibility and pay for the costs of additional police, fire and public works support above the normal daily levels of staffing. Additional support agreed to prior to the event shall be used as a guide. However, costs assessed to the event will be actual, based on the number of personnel required and utilized.

Mr. Barrett, on behalf of the Nationalist Movement, responded with a May 4, 2000 letter, in which he (a) undertook to "appeal" the County Administrator's letter to the Board of Freeholders, and (b) questioned the constitutionality of policy 4:1.01 on First Amendment grounds. At the same time, the Nationalist Movement completed and returned the application forms, noting that by doing so the group was not waiving its objections to the fee and rental provisions. Moreover, the Nationalist Movement indicated that it would not agree to relinquish use of the front of the courthouse or Washington Street and warned that it "intend[ed] to hold the County and any and all individuals individually liable" under 42 U.S.C. S 1983 for violations of the group's First Amendment rights.

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The County then filed a declaratory judgment action in state court seeking judicial confirmation -- prior to the anticipated event -- of the constitutionality of the actions the County intended to take pursuant to policy 4:1.01. The Nationalist Movement removed the case to the United States District Court for the District of New Jersey and filed a counterclaim under 42 U.S.C. SS 1983 and 1985, alleging violation of its First Amendment rights, along with an application for preliminary and permanent injunctions, compensatory and punitive damages, attorney's fees, and declaratory relief.

II. The District Court's Rulings

After denying a motion by the County to remand the case to state court, the District Court conducted an evidentiary hearing over the course of four days and issued an oral opinion from the bench on June 22, 2000. The opinion announced orally was reflected in a written order dated June 27, 2000. Prior to the ruling, the parties had agreed to a parade route and had agreed that the Nationalist Movement would be allowed to admit only supporters to its rally. The District Court noted these areas of agreement, concluding: "Condensed to its essence, this case requires a determination of what areas involved are public forums and what conditions which the County would or could impose upon the Nationalist Movement are permissible." Finding ample alternative venues for the rally, the District Court held that the steps and lawn of the courthouse did not constitute a public forum either by tradition or by designation. Rather, the District Court found that the steps were "merely a means of ingress and egress" to the courthouse, and that the lawn was not a park but an "aesthetic enhancement" to the building. Thus, the District Court held that the County might place reasonable restrictions on the use of those areas if those restrictions did not constitute "an effort to suppress expression merely because public officials oppose the speaker's view." The District Court concluded that previous use of the courthouse steps and front lawn for an annual county-sponsored Memorial Day observance "does not transform that area into a public forum for other persons or entities; nor does the occasional, impromptu press conference or announcement by a political candidate from the Courthouse steps." The District Court stated: "This Court cannot and will not dictate where [the rally] will take place." However, the District Court suggested that the County close all or part of Court Street for the holiday, specifically the portion of Court Street abutting Washington Street near the front of the courthouse.

The District Court also examined the County's policy 4:1.01 which, the District Court noted, represented the sole written authority upon which the County relied when it responded to the Nationalist Movement's request. Despite a finding that the County's decision-making had not in fact been influenced by personal or institutional opposition to the content of the Nationalist Movement's message, the District Court determined that portions of policy 4:1.01 were invalid and unenforceable. In particular, the District Court found (a) that the County's hold-harmless provision was overly broad;1 (b) that a provision subjecting all...

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