Galda v. Bloustein
Decision Date | 04 August 1982 |
Docket Number | No. 81-2433,81-2433 |
Citation | 686 F.2d 159 |
Parties | 6 Ed. Law Rep. 311 Joseph P. GALDA, Paul Ewert, and Christina Farrow, Individually, and upon behalf of all others similarly situated v. Dr. Edward J. BLOUSTEIN, Individually, and as President of Rutgers, The State University, Dr. Norman Reitman, Individually, and as Chairman of the Board of Governors of Rutgers, The State University of New Jersey, Donald S. McNaughton, David A. Werblin, Katherine Elkus White, Donald M. Dickerson, Sanford M. Jaffe, Robert Kaplan, Edward Kramer, Linda Stamato, Robert J. Torricelli, Individually, and as members of the Board of Governors of Rutgers, The State University of New Jersey, Dr. T. Edward Hollander, Individually, and as Chancellor of Higher Education of the State of New Jersey, and Walter K. Gordon, Individually, and as Dean of Rutgers Camden College of Arts and Science. The New Jersey Public Interest Research Group, Inc., Intervenor. Appeal of Joseph P. GALDA, Paul Ewert, and Christina Farrow. |
Court | U.S. Court of Appeals — Third Circuit |
Myrna P. Field (argued), Joseph W. Marshall, III, John G. Collins, Mid-Atlantic Legal Foundation, Philadelphia, Pa., for appellants; Bradford S. Smith, Cinnaminson, N. J., of counsel.
Matthew P. Boylan, Gregory B. Reilly (argued), Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, Roseland, N. J., for appellees.
John Cary Sims (argued), Alan B. Morrison, Washington, D. C., for intervenor.
Before ADAMS, SLOVITER and BECKER, Circuit Judges.
Plaintiffs in this action are three former students at Rutgers Camden College of Arts and Science (RUCCAS), a unit of Rutgers, the State University of New Jersey. 1 In September 1979, the plaintiffs filed suit under 42 U.S.C. § 1983, alleging that university officers and administrators had violated the students' first and fourteenth amendment rights by extracting from each student a refundable fee to support the New Jersey Public Interest Research Group (PIRG), an independent political/educational organization. 2 The district court held the PIRG funding arrangement constitutional as a matter of law because it contained a refund mechanism, and accordingly granted the defendants' motion for summary judgment. Galda v. Bloustein, 516 F.Supp. 1142 (D.N.J.1981). We reverse and remand.
New Jersey PIRG is a non-profit, non-partisan corporation engaged in research, lobbying, and advocacy for social change. 3 Composed of approximately 21,000 student members at eight New Jersey colleges, including RUCCAS, 4 PIRG is controlled by a state-wide board of student representatives, which determines PIRG's programs and policies. Although PIRG has an educational function-involving students "in real-life learning experiences (by) exploring the possibilities and difficulties of legal social change"-all the parties to this litigation agree that PIRG also functions as a political, ideological organization. 5
Because of PIRG's independent status, the organization is not eligible for student activity funds. In March 1972, however, Rutgers adopted a policy for funding student-sponsored programs and organizations, such as PIRG, that otherwise would not qualify for university financial support. The policy provides that:
(1) Each organization is required to present its program and plans for concept review to the University Senate for recommendation to the President.
(2) If approved, the organization shall seek college referenda on the issue of student funding support for their program. At least fifty per cent of the student body of each division of the University shall be required to participate in such referenda and a majority of those voting must approve the project in order for implementation within that division. As an alternate, an affirmative vote of twenty-five per cent of the student body plus one shall be adequate to meet this test.
(3) The organization shall then be listed on the University term bill with payment of the indicated fee mandatory. A post-card asking for a refund shall be included along with the term bill which shall be sent by the individual student to the organization and which shall send the refund directly to the student.
(4) Each organization so funded shall be expected to defray the University cost of administration of the fee collection.
(5) Each organization shall be required every three years to meet the tests defined under items # 1 and # 2 above in order to continue to receive funds under this policy and procedure.
Appendix at A871-72. PIRG first qualified for funding under the university policy in 1972.
In practice, the PIRG funding system worked as follows: each semester, matriculating students were provided with a bill that included a charge of $2.50, 6 identified as the PIRG fee. The fee was described as mandatory, although apparently there were no sanctions for nonpayment. The bill was accompanied by a flyer describing PIRG; the back of the flyer contained a "Refund Request" form, which could be completed by the student and submitted to PIRG. 7 After receiving a refund request, PIRG verified that the individual was enrolled at Rutgers and had paid the fee. PIRG then issued a check directly to the student, but it took "several months" before the refunds were actually made.
Plaintiffs, who oppose many of the ideological positions taken by New Jersey PIRG, filed this action on behalf of themselves and as purported representatives of a class of all students in good standing at RUCCAS at any time between September 1, 1977 and April 1, 1980. Essentially, the plaintiffs allege "(t)hat the disbursement of funds derived from mandatory student fees to and for the benefit of (PIRG) has required and shall require the Plaintiffs herein to support financially views which they do not advocate" and that such disbursement violates the plaintiffs' first and fourteenth amendment rights. Appendix at A461 (Amended Complaint). Plaintiffs seek: (1) a declaration that the PIRG funding scheme is unconstitutional; (2) an injunction against further disbursement of the mandatory PIRG fees; (3) an accounting and (4) restitution of sums previously collected.
On September 16, 1980, the district court denied plaintiffs' motion for class certification. Shortly thereafter, the defendants moved for summary judgment. The district court granted this motion, and the plaintiffs have appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
Initially we must address the question whether this case is now moot, inasmuch as the three plaintiffs have been graduated and the PIRG funding scheme was defeated in the most recent RUCCAS student referendum. See notes 1 & 4 supra. In letter briefs filed with the Court shortly before oral argument, both PIRG and the plaintiffs asserted that the case is not moot. We agree.
In Finberg v. Sullivan, 658 F.2d 93 (3d Cir. 1980) (in banc), we held that "(a) case may become moot if (1) the alleged violation has ceased, and there is no reasonable expectation that it will recur, and (2) interim relief or events have 'completely and irrevocably eradicated the effects of the alleged violation.' " 658 F.2d at 97-98 (footnote omitted) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979)). Under this standard, it is apparent that the present litigation has retained its vitality as a for Article III purposes. While the three plaintiffs have been graduated and thus need not fear any future exactions of the PIRG fee, the past exactions of the fee have not been remedied and the relief sought has never been obtained. The fact that the plaintiffs have never sought a refund of their PIRG fees from the university does not compel a contrary conclusion; plaintiffs assert-and we agree-that under the circumstances alleged they constitutionally cannot be required to shoulder even the modest burden of requesting a refund. Aside, then, from plaintiffs' claim for injunctive relief-which, under present circumstances, has been mooted 8 -the cause of action thus remains unaffected by either the suspension of the PIRG fee or the graduation of the plaintiffs. 9
We turn, then, to the merits of the case before us. Plaintiffs maintain that the PIRG funding system violates their right, established in Abood v. Detroit Board of Education, 431 U.S. 209, 235, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261 (1977), not "to contribute to the support of an ideological cause (they) may oppose as a condition of (attending the state university)." The mere fact that the PIRG fee is refundable does not, according to plaintiffs, cure the initial constitutional infirmity. Moreover, plaintiffs contend that the refund scheme itself is constitutionally deficient because it forces a dissenter to disclose his or her identity prior to receiving a refund. Finally, plaintiffs take issue with the district court's attempt to balance the free speech rights of the PIRG majority against the minority's right to dissent. Because we agree with plaintiffs' first two arguments-namely, that, at least for summary judgment purposes, the PIRG fee arrangement as described in the complaint offends the principles enunciated in Abood, and that the refundability feature of the funding scheme does not suffice to remedy the constitutional defect-we need not reach the other contentions presented by plaintiffs.
Our analysis begins with Abood. In that case, the Supreme Court considered the validity of a Michigan statute that permitted unions and local government employers to enter into "agency shop" arrangements under which even those employees who were not union members were required to pay the union a service fee equal to union dues. The Court held that such an assessment was constitutionally permissible only insofar as it was "used to finance expenditures by the Union for the purposes of collective bargaining, contract administration, and grievance...
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