Gewertz v. Jackman

• Decision Date: 29 March 1979
• Docket Number: Civ. A. No. 79-565.
• Citation: 467 F. Supp. 1047
• Parties: Kenneth A. GEWERTZ, In his capacity as a member of the New Jersey General Assembly and Individually, Plaintiff, v. Christopher J. JACKMAN, In his capacity as Speaker of the New Jersey General Assembly and Individually, New Jersey General Assembly Democratic Caucus, Albert Burstein, in his capacity as Chairman of the New Jersey General Assembly Democratic Caucus and Individually, Defendants.
• Court: U.S. District Court — District of New Jersey

467 F. Supp. 1047

Kenneth A. GEWERTZ, In his capacity as a member of the New Jersey General Assembly and Individually, Plaintiff, v. Christopher J. JACKMAN, In his capacity as Speaker of the New Jersey General Assembly and Individually, New Jersey General Assembly Democratic Caucus, Albert Burstein, in his capacity as Chairman of the New Jersey General Assembly Democratic Caucus and Individually, Defendants.

Civ. A. No. 79-565.

United States District Court, D. New Jersey.

March 29, 1979.

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Neil I. Sternstein, Woodbury, N. J., for plaintiff.

Lawrence I. Marinari, Stockman, Mancino, Marinari, Smithson & O'Donnell, P. C., Trenton, N. J., for defendants.

OPINION

BROTMAN, District Judge.

This is one of the rare cases in which a federal court is asked to intervene in the affairs of a state legislative body. Plaintiff Kenneth A. Gewertz, a member of the New Jersey General Assembly, claims that his rights of free speech, due process, and equal protection, as guaranteed by the first and fourteenth amendments to the United States Constitution were violated when he was removed by the Speaker from the Assembly Appropriations Committee.

Plaintiff contends that his involuntary removal from this committee, an action upheld by a majority vote of the Assembly's Democratic Caucus, was in retaliation for his public criticism of a New Jersey state senator and of the governor, his outspoken disagreements with the Speaker and democratic party leadership, and his frequent failure to support their proposed legislation. Defendants are Christopher J. Jackman, individually and in his capacity as Speaker of the Assembly; the New Jersey General Assembly Democratic Caucus; and Albert Burstein, individually and in his capacity as Chairman of the Assembly Democratic Caucus. They deny any retaliatory motive for the removal, countering that plaintiff was removed to accommodate a representative from Essex County to replace a committee member from that county who had earlier resigned from the Assembly.

On February 16, 1979, plaintiff applied to this court for a preliminary injunction directing defendants to reinstate him as a member of the Appropriations Committee. He simultaneously filed a complaint seeking a permanent injunction and damages. The action is premised on 42 U.S.C. §§ 1983 and 1985(3). The court has jurisdiction pursuant to 28 U.S.C. § 1343(3).

On March 9, 13, 15, and 16, 1979, the court held hearings on the application for a preliminary injunction. There was testimony from plaintiff, from defendant Burstein, and from several of their fellow Assembly-persons, including Joseph W. Chinnici, Dean A. Gallo, Francis J. Gorman, Richard W. Van Wagner, Martin A. Herman, Alan J. Karcher, Mildred B. Garvin, and former Assemblyman Peter Shapiro. Pursuant to Fed.R.Civ.P. 52, the court makes the following findings of fact and conclusions of law.¹

FINDINGS OF FACT

Plaintiff is a democrat who represents the Fourth District in the New Jersey General Assembly, a district comprising parts of Gloucester, Camden and Burlington Counties. Plaintiff resides in Gloucester County, and has been a member of the Assembly since 1971. Tr. I—116.

He has a reputation for being outspoken, and has expressed frequent opposition to the leadership of his party, which is the majority party in the Assembly. He has also expressed opposition to the governor, who is a democrat as well. Tr. I—41-42, 80, 82, 111-12, 121; Tr. II—30; Tr. IV—10. For example, at a meeting of democratic representatives held at the Forsgate Country Club in November of 1978 to discuss the budget, plaintiff's vocal opposition to the governor's proposals and to the democratic leadership led to a loud disagreement with the Speaker, and plaintiff eventually left the meeting. Tr. I—74-76, 117-21; Tr. II—45-48. In early January of 1979, plaintiff filed charges with the Joint Ethical Standards Committee alleging a conflict of interest against State Senator Steven Perskie; hearings on those charges were held on January 25, 1979. Tr. I—131-32. News of the charges was reported in the press. Tr. IV—12.

Plaintiff's actions with respect to Senator Perskie caused distress to some members of the democratic leadership, including the Speaker and Majority Leader. Tr. I—131-32; Tr. IV—14. However, plaintiff is not the only outspoken Assemblyperson who has disagreed with or criticized Assembly leaders or the administration. Tr. I—50-52, 78, 82; Tr. II—24-25; Tr. III-18-20; Tr. IV-10, 25. Controversy between representatives is a regular and accepted part of the legislative process. Tr. I—42, 51, 78, 112-14; Tr. IV—11, 28.

It is uncontested that plaintiff was an able and diligent member of the Appropriations Committee, and it was so stipulated by defendants. Tr. I—17, 37, 68, 151; Tr. II—8, 82; Tr. IV—50.

At the beginning of each session of the Assembly, the Speaker appoints members to the various legislative committees, pursuant to General Assembly Rules 4:6² and 10:1. The latter rule, entitled "Standing Committees," describes the various committees, their respective subject areas and number of members, and further provides:

The Speaker shall appoint a chairman and vice-chairman for each standing reference, administrative and special committee. In the absence of the chairman, the vice-chairman shall preside at any meeting of the committee duly convened by the chairman. In case of the disability of a chairman, the vice-chairman shall, with the approval of the Speaker, assume all the responsibilities of the chairman. The chairman, vice-chairman, and all other members of each committee shall serve at the pleasure of the Speaker, but no committee member shall be removed from his committee assignment except for good cause.

The final clause, relating to "good cause," first appeared in the 1977 Rules. Tr. I—157; Tr. IV—49.

The practice has been for each representative to submit to his party leader a list of three committee choices, and the majority and minority leaders amend the lists and in turn submit them to the Speaker. Tr. I—28, 36, 51. While the Speaker has generally acquiesced to the wishes of the party leaders, he has full discretion to make final committee appointments. Tr. I—15-16, 52, 54, 67; Tr. IV—69-72, 75. There are no fixed criteria by which the Speaker makes the selection, Tr. IV—72-74, 76-77, and this is generally considered a matter within his prerogative. Tr. I—34; Tr. IV—24.

There are four categories of committees, including Standing Reference Committees (of which the Appropriations Committee is one of fourteen), Standing Administrative Committees, Joint Committees, and one Standing Special Committee called the Legislative Oversight Committee (of which plaintiff is currently the chairman). Tr. IV—77-80.

Standing reference committees review and amend proposed legislation prior to its introduction for a vote of the full Assembly. Tr. I—21, 39-40, 44; Tr. IV—78. By contrast, the Legislative Oversight Committee does not review legislation prior to its passage, but investigates the execution of enacted laws. Tr. I—39-40, 74; Tr. IV—78. Assemblypersons derive a substantial benefit in representing their districts from membership on standing reference committees, since it gives them the direct opportunity personally to influence the details of legislation. Tr. I—20-21, 24, 29, 31, 44, 45, 47, 58, 72, 153-54; Tr. II—80. Thus, an Assemblyman would never be able to exert the degree of influence on the budget later before the full Assembly as he would now through membership on the Appropriations Committee. The major work on the 1979-1980 budget of that committee and of the Joint Appropriations Committee (which includes all members of the Assembly Appropriations Committee) covers the months January through May, 1979. Tr. I—19-20, 30-31. The stage during which members hold hearings with administration cabinet officials ended on March 15, and the committee is now holding public hearings. Tr. III—111.

Before plaintiff's removal from the Appropriations Committee, every Assemblyperson not in a leadership position was a member of at least one standing reference committee. Tr. I—26, 48, 146; Tr. IV—56. Plaintiff does not currently hold a leadership position. Tr. I—117.

In November 1978, Assemblyman Peter Shapiro, a democrat representing District 28, comprised of parts of Essex County, was elected county executive. Tr. III—87. Mr. Shapiro was then vice-chairman of the Appropriations Committee, as well as a member of the Taxation Committee. Tr. III—88. He resigned from the Assembly on January 8, 1979. Tr. III—88, 96.

Both prior to and after his resignation, Mr. Shapiro and Assemblyman Richard Codey, who heads the Essex County delegation, repeatedly pressured the Speaker to appoint another Essex County democrat to the Appropriations Committee in the place of Mr. Shapiro. Tr. III—90-105; Tr. II—63. There is one Republican member of that committee from Essex County, and her district comprises mainly suburban portions of that county. Tr. I—115; Tr. III—91; Tr. IV—37. The county is heavily democratic. Tr. III—92. In addition, there was concern among the democrats of the Essex County delegation that urban areas of the county were not adequately represented on the Appropriations Committee. Tr. III—95-104, 112; Tr. IV—16-17. Essex County has the largest delegation in the Assembly, and the Speaker was reminded that the delegation could refuse to cooperate with him should its concerns not be heeded. Tr. III—97, 104.

Nevertheless, the Speaker appointed as Mr. Shapiro's replacement Assemblyman Richard Van Wagner of District 12, which comprises parts of Monmouth and Middlesex Counties. Tr. I—93; Tr. III—96. The Speaker's rationale for appointing Mr. Van Wagner was the perceived need to have a member of the Taxation Committee on the Appropriations Committee, a role Mr. Shapiro had filled. Tr. I—107; Tr. III—96; Tr. IV—15, 53. Assemblyman Van Wagner is chairman...