Hoch v. Phelan

• Decision Date: 26 June 1992
• Docket Number: Civ. No. 91-4018 (HLS).
• Citation: 796 F. Supp. 130
• Parties: Elizabeth HOCH and Nicholas Parslow, Plaintiffs, v. Donald F. PHELAN, Defendant.
• Court: U.S. District Court — District of New Jersey

796 F. Supp. 130

Elizabeth HOCH and Nicholas Parslow, Plaintiffs, v. Donald F. PHELAN, Defendant.

Civ. No. 91-4018 (HLS).

United States District Court, D. New Jersey.

June 26, 1992.

George Sommers, Hoboken, N.J., for plaintiffs.

David Dembe, Deputy Atty. Gen., Trenton, N.J., for defendant.

OPINION

SAROKIN, District Judge.

Before the court is plaintiff's motion for class certification in this facial challenge to New Jersey's "Election Contest Subpoena Laws." Plaintiffs propose that the class be defined as "all people who are registered to vote, or eligible to register to vote, in the State of New Jersey." Cplt. ¶ 5. Defendant Donald Phelan, the Acting Clerk of the Law Division and of the Chancery Division of the Superior Court of New Jersey, as represented by the New Jersey Attorney General's Office (hereinafter "the State"), opposes plaintiffs' motion and cross-moves to dismiss the Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).

In its sur-reply brief, the State concedes that its motion pursuant to 12(b)(6) is untimely in this post-answer context, but asks that the court treat its application as one for judgment on the pleadings pursuant to Rule 12(c) or for summary judgment pursuant to Rule 56. Def. Sur-Reply Brief at 1. Although plaintiffs protest that a motion for summary judgment is improper given defendant's failure to file a statement of undisputed facts pursuant to Local Rule 12(G), plaintiffs concede that the court may properly consider defendant's motion as one for judgment on the pleadings pursuant to Rule 12(c). Plt. Sur-Reply Brief at 4, 6 n. 1. Accordingly, the court will treat defendant's motion as one for judgment on the pleadings pursuant to Rule 12(c).

Background

In this case, there are no disputed material facts. Plaintiffs challenge the facial validity of the so-called "Election Contest Subpoena Laws," which are comprised of Chapter 29 of the New Jersey Statutes governing "Contest of Nominations or Elections," N.J.S.A. 19:29-1 et seq., Rule 1:9 of the Rules Governing the Courts of the State of New Jersey, and Rule 31 of the New Jersey Rules of Evidence. See Cplt., "Prayer for Relief" ¶ 3. The parties do not dispute the nature and operation of the election contest subpoena laws, which operate as follows.

Whenever there is an election contest, the court may issue subpoenas to relevant witnesses, including voters. N.J.S.A. 19:29-6. The subpoenas are issued pursuant to Rule 1:9 of the Rules Governing the Courts of the State of New Jersey, which governs the issuance of all subpoenas for all purposes in the State. See Cplt. Exh. B. (subpoenas issued to plaintiffs). In the event that the election is contested because of alleged illegal voting, the subpoenaed witnesses/voters must testify in open court in order for the court to make a determination whether each individual voted legally. N.J.S.A. 19:29-7 ("The judge may require any person called as a witness who voted at such election to answer questions touching his qualification as a voter....").¹ If the court determines that an illegal vote was cast, the court may compel the illegal voter to disclose the nature of her vote in order to expunge that illegally cast vote. Id.; New Jersey Rule of Evidence 31 ("Every person has a privilege to refuse to disclose the tenor of his vote at a political election unless the judge finds that the vote was cast illegally").

Plaintiffs contend that this system violates their due process rights and abridges their First Amendment rights of free expression and association. Cplt. ¶¶ 39-40. Plaintiffs specifically object to the fact that, like any subpoena issued in New Jersey, an election contest subpoena need only state the name of the court, the title of the action, and the time and place at which the witness must appear to give testimony. Cplt. ¶14; Rule 1:9-1.² As described by plaintiffs, "the very essence of this case is that the Election Contest Subpoena Laws place all New Jersey voters at risk that they will be haled into court without adequate notice for the twin purposes of disclosing and expunging their votes." Plt. Brief at 7. Plaintiffs challenge the facial validity of the subpoena procedure as applied in the election contest process. They seek declaratory and injunctive relief "to halt this systematic violation of constitutional and civil rights." Plt. Brief at 7.

Discussion

Before considering plaintiffs' motion for certification of the class they seek to represent, the court must consider defendant's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), originally filed as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

Because defendant filed its motion after it had already filed an answer, the motion must be considered a Rule 12(c) motion. Nevertheless, Rule 12(h)(2) provides that a defense for failure to state a claim upon which relief can be granted may also be made by a motion for judgment on the pleadings. In this situation, we apply the same standards as under Rule 12(b)(6).

Therefore, we must accept the allegations in the complaint as true, and draw all reasonable factual inferences in favor of the plaintiff. The court can grant the motion only if no relief could be granted under any set of facts that could be proved.

Turbe v. Gov't of the Virgin Islands, 938 F.2d 427, 428 (3d Cir.1991) (citations omitted). Accordingly, the court will apply the 12(b)(6) standard for a motion to dismiss in reviewing plaintiffs' Complaint. Judgment on the pleadings is particularly appropriate where, as here, there are no disputed material facts at this early stage of the litigation and a party is entitled to judgment as a matter of law. Institute for Scientific Inf. v. Gordon & Breach, 931 F.2d 1002, 1005, 1008 (3d Cir.1991).

It is important to emphasize that plaintiffs are not challenging the court's right to compel voter-witnesses either to appear or to disclose the tenor of their vote. Rather, plaintiffs challenge the subpoena procedure as applied in this context. Plaintiffs complain that the issuance of a subpoena on short notice, without indicating the nature of the court's inquiry, violates New Jersey voters' due process rights and abridges their First Amendment rights. Given the immediate and formal nature of the proceeding, which can instantly strip a voter of her cast ballot, plaintiffs contend that the current procedures provide insufficient process in light of the fundamental rights which are ultimately at stake.

At oral argument, the State acknowledged that fundamental constitutional rights are at stake (despite the fact that the U.S. Constitution does not guarantee the right to vote in state elections). Nonetheless, the State argues that plaintiffs have failed to state a claim for three reasons: (1) the receipt of subpoenas itself does not result in the deprivation of a constitutionally protected right; (2) the state court procedures under which the subpoenas are issued afford sufficient due process under the circumstances; and (3) plaintiff's claims have been previously adjudicated in their completed state court proceeding to quash their subpoenas.

As for defendant's third argument, the State concedes that plaintiffs did not raise the instant constitutional claims before the state court. However, defendant argues, plaintiffs could have raised the same arguments in the earlier proceeding, and therefore, plaintiffs are barred from collaterally attacking the denial of their motion to quash. Defendant's res judicata/collateral estoppel argument is unavailing. The instant facial challenge to the subpoena system in no way operates as a collateral attack on the concluded, previous action to quash individual subpoenas. Although plaintiffs could have raised their constitutional arguments in that proceeding, the instant action is sufficiently different in its challenge and scope such that it does not constitute a "second bite of the apple."

Defendant's first argument — that the election contest subpoenas do not deprive voters of any substantive constitutional right — responds to plaintiffs' contention that the election contest subpoena laws abridge their First Amendment rights of free expression and association. Plaintiffs' "abridgement" claim is based on the fact that voters are "required to testify for the purpose of proving they voted illegally, so that the nature of the votes they cast would be disclosed and expunged." Cplt. ¶ 40. To the extent that plaintiffs' claim might be based on the compulsion to appear in the context of an election contest (although plaintiffs do not appear to object to this), defendant correctly points out that plaintiffs have not identified any basis for asserting a right to refuse to respond to the subpoenas. See generally U.S. v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950) ("there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional") (citations omitted); 8 Wigmore on Evidence § 2192. In addition, to the extent that plaintiffs' claim is based on requiring voting disclosures, defendant correctly points out that voters have no right to vote illegally. Plaintiffs themselves recognize that under the election contest laws, the court must first determine whether a vote was illegally cast before requiring the illegal voter to disclose the nature of her vote. Thus, the compelled disclosure of a person's vote cannot impact on a witness's protected constitutional rights. Accordingly, plaintiffs' have failed to state a claim based on the direct abridgement of their First Amendment rights.

Moreover, although the Complaint explicitly asserts that the subpoenas abridge plaintiffs' First Amendment rights, as described in the Complaint and in plaintiffs' supporting Memorandum, plaintiffs' "abridgement" claim is essentially a part of their due process claim. As...