Besler v. BOARD OF EDUC. OF W. WINDSOR

• Citation: 993 A.2d 805,201 N.J. 544
• Parties: Philip A. BESLER and Jennifer J. Besler, Plaintiffs-Respondents, and Carolann S. Besler, Plaintiff, v. BOARD OF EDUCATION OF WEST WINDSOR-PLAINSBORO REGIONAL SCHOOL DISTRICT, body corporate organized and existing under the laws of the State of New Jersey, and/or its servants, agents and employees, Daniel Hussong, Michael Carr, and Ray J. Bandlow, individually and in their official capacity; individually, jointly and severally, Defendants-Appellants, and Lori Hussong and Robert Banks, individually and in their official capacity; Township of Plainsboro, a municipal corporation organized and existing under the laws of the State of New Jersey, and/or its servants, agents and employees, John J. Lomela and Richard Furda, individually and in their official capacity; and Township of Long Beach, a municipal corporation organized and existing under the laws of the State of New Jersey, and/or its servants, agents and employees, and Matthew Peterson, individually and in his official capacity; individually, jointly and severally, Defendants.
• Decision Date: 17 May 2010
• Court: United States State Supreme Court (New Jersey)

993 A.2d 805

201 N.J. 544

Philip A. BESLER and Jennifer J. Besler, Plaintiffs-Respondents, and Carolann S. Besler, Plaintiff, v. BOARD OF EDUCATION OF WEST WINDSOR-PLAINSBORO REGIONAL SCHOOL DISTRICT, body corporate organized and existing under the laws of the State of New Jersey, and/or its servants, agents and employees, Daniel Hussong, Michael Carr, and Ray J. Bandlow, individually and in their official capacity; individually, jointly and severally, Defendants-Appellants, and Lori Hussong and Robert Banks, individually and in their official capacity; Township of Plainsboro, a municipal corporation organized and existing under the laws of the State of New Jersey, and/or its servants, agents and employees, John J. Lomela and Richard Furda, individually and in their official capacity; and Township of Long Beach, a municipal corporation organized and existing under the laws of the State of New Jersey, and/or its servants, agents and employees, and Matthew Peterson, individually and in his official capacity; individually, jointly and severally, Defendants.

A-81 September Term 2008

Supreme Court of New Jersey.

Argued September 29, 2009.

Decided May 17, 2010.

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Sharon H. Moore, Annandale, argued the cause for appellants (Gebhardt & Kiefer, attorneys; Ms. Moore and Leslie A. Parikh, on the briefs).

Daniel C. Fleming, Princeton, argued the cause for respondents (Wong Fleming, attorneys; Mr. Fleming, Mark W. Thompson, and Linda Wong, on the briefs).

Carl Tanksley, Jr., argued the cause for amicus curiae New Jersey School Boards Association (Cynthia J. Jahn, Assistant Executive Director, attorney).

Justice ALBIN delivered the opinion of the Court.

During the public comment period of a meeting of the Board of Education of the West Windsor-Plainsboro Regional School District (Board), the Board President denied plaintiff Philip Besler the opportunity to complete a statement critical of both Board policy and a high school coach he believed had verbally abused student-athletes, including his daughter. Besler filed a federal civil rights claim pursuant to 42 U.S.C. § 1983, alleging that he was entitled to express his grievances at the meeting—a public forum—and that the Board violated his free-speech rights guaranteed by the First Amendment. A jury found that the Board did not have a "compelling" reason to justify silencing Besler and awarded him monetary damages in the amount of $100,000. The Appellate Division affirmed.

In this appeal, the Board contends that the singular actions of its Board President did not make it liable for any claimed First Amendment violation under 42 U.S.C. § 1983. The Board also argues that the evidence at trial was insufficient to support the jury's verdict. The Board maintains that the evidence supported only one conclusion—that it was enforcing a content-neutral policy of curtailing repetitive remarks for the purpose of conducting an orderly public meeting. Last, the Board urges that we overturn the damages award as excessive.

First, we find that, for purposes of 42 U.S.C. § 1983, the Board President was acting as a final policymaker while presiding over the public comment period of the Board meeting and therefore the Board could be held liable for a violation of Besler's First Amendment rights. Second, we hold that Besler presented sufficient evidence for the jury to determine that the Board silenced him for no reason other than the unpopular viewpoint he expressed. We thus must respect the jury's finding that the Board violated Besler's free-speech rights.

Finally, Besler offered only minimal evidence of emotional distress—transient embarrassment and humiliation as a consequence of the abrupt manner in which he was prevented from completing his remarks. We conclude that the damages award is so clearly excessive that it constitutes a miscarriage of justice and therefore remand to the trial court for a remittitur or, alternatively, a new trial on damages.

I.

A.

In January 1998, Philip Besler, his wife Carolann, and daughter Jennifer filed a twelve-count complaint in the Superior Court, Law Division of Mercer County, naming as defendants the Board of Education of West Windsor-Plainsboro Regional School District, the girls high school basketball coach, the District's Superintendent, the high school Principal, and others. Only one of the twelve counts dealt with Mr. Besler's claim that he was denied his First Amendment rights when silenced at the January 28, 1997 Board of Education meeting. In that count, the Board was the only named defendant. The remaining eleven counts addressed various other claims—that the basketball coach, Daniel Hussong, verbally abused and harassed Jennifer, that the District was blindly indifferent to her plight, and that the police retaliated against the Beslers for the complaints they raised with the District. The complaint specifically alleged violations of the federal and state constitutions, the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, Title IX, 20 U.S.C. §§ 1681 to 1688, as well as common law claims of negligent supervision, intentional infliction of emotional distress, and false imprisonment.

A jury trial was conducted between December 2003 and March 2004 encompassing thirty-two days of testimony from more than fifty-five witnesses.¹ Only a fraction of the testimony concerned Mr. Besler's First Amendment claim.

B.

The Board appeals from the trial court's denial of its motion for judgment notwithstanding the jury's verdict. At this procedural stage, we must view the evidence in the light most favorable to Mr. Besler. Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567, 715 A.2d 967 (1998).

The jury heard that Philip Besler began attending and speaking at School Board meetings in the spring of 1996 as a concerned parent and citizen. His daughter, Jennifer, then a senior at West Windsor-Plainsboro High School and member of the girls varsity basketball team, claimed that her basketball coach, Daniel Hussong, repeatedly verbally abused her and other team members. Jennifer asserted that Hussong singled her out for particularly harsh treatment, making her the target of profanity-laced tirades and disparaging comments about her weight. The mistreatment took a physical and emotional toll on Jennifer, causing an eating disorder and a condition called amenorrhea, a disruption of her menstrual cycle.

Philip Besler considered Hussong's conduct grossly unprofessional and felt that the School District's administrators were indifferent to Hussong's behavior and Jennifer's plight. When Mr. Besler's wife Carolann had approached Hussong to express her concerns, Hussong told her to "get out of my f* * *ing gym. The problem on this f* * *ing team is you f* * *ing parents and I want you to leave my f* * *ing girls alone." From April 1996 through January 1997, Mr. and Mrs. Besler met with the West Windsor-Plainsboro High School Principal, Michael Carr, and the District's Superintendent of Schools, Dr. Ray Bandlow; wrote letters to Carr, Dr. Bandlow, and the President of the Board of Education, Dr. Lester Bynum; and attended various Board meetings. Their purpose was to force the School District not only to take action against Hussong, but also to address the need for civility in coaching. Ultimately, the Beslers believed that the District was unresponsive to the issues they had raised. During the public comment period of nine Board meetings, the Beslers addressed their concerns about the failure of the District to hold coaches accountable for inappropriate and unsportsmanlike conduct.

At the April 23, 1996 meeting of the Board of Education, Mr. Besler asked the Board to "look into coaching behavior and distributed an article about problems with `unsportsmanlike' behavior on the part of some coaches."

At the May 21 Board meeting, Mr. Besler commented on what he perceived was the District's double standard of requiring language-appropriate conduct by students using information technology but not imposing a similar code of conduct on coaches on the playing field. Dr. Bynum and the Assistant School Superintendent responded that the District "did not sanction inappropriate language" by coaches and insisted that a code of conduct applied to coaches.

At the May 28 Board meeting, Mr. Besler indicated that, based on his reading of the code of conduct applicable to coaches, Hussong was in violation of the District's policies. He called for an investigation of Hussong's conduct.²

Mr. Besler attended the June 18 Board meeting because "it was rumored" that a vote would be taken on Hussong's contract at the next meeting. Because he would not be available on that date, he asked that the matter be postponed. Mr. Besler was advised that "personnel action would not be subject to public comment at a meeting."

At the June 25 Board meeting, Mr. Besler expressed "his concerns regarding the vulgar and abusive language used by his daughter's high school coach." He stated that he had taken his complaints to the administration but was told that it was "unable" to investigate the coach. He noted that after raising his concerns with the administration his daughter became the target of a police investigation stirred by "an anonymous letter and telephone call."³ He again complained that the rules governing "unacceptable language" for teachers and students in the classroom and on the Internet did not seem to apply to coaches on the playing field. Last, he requested that the Board vote on each coach's reappointment individually. At that same meeting, five members of the public spoke in favor of the District's coaching staff, and Hussong was reappointed.

Five months later, on November 26, Mr. Besler attended his next Board meeting. During the public comment period, he read a statement expressing his belief that the members of the Athletic Review Committee formed to look into the...