Latessa v. New Jersey Racing Com'n

• Decision Date: 09 May 1997
• Docket Number: No. 96-5316,96-5316
• Citation: 113 F.3d 1313
• Parties: Donato P. LATESSA; Victor R. Latessa, Appellants, v. NEW JERSEY RACING COMMISSION; Santo Lalomia, Individually and Officially as a Member of the New Jersey Racing Commission; Oliver R. Kovacs, Individually and Officially as a Member of the New Jersey Racing Commission; Stuart O. Goldsmith, Individually and Officially as a Member of the New Jersey Racing Commission; William E. McGlynn, Individually and Officially as a Member of the New Jersey Racing Commission; Daniel A. Monaco, Dr., Individually and Officially as a Member of the New Jersey Racing Commission; Frank Orechio, Individually and Officially as a Member of the New Jersey Racing Commission; Savino J. Russoniello, Jr., Individually and Officially as a Member of the New Jersey Racing Commission; Samuel M. Cannella, Individually and Officially as a Member of the New Jersey Racing Commission; Peter J. Cofrancesco, Jr., Individually and Officially as a Member of the New Jersey Racing Commission; Francesco Zanzuccki, Individually and as Director of the New Jersey Racing Commission; Michael Vukcevich, Individually and as Deputy Director of the New Jersey State Racing Commission, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 1313

113 F.3d 1313

Donato P. LATESSA; Victor R. Latessa, Appellants, v. NEW JERSEY RACING COMMISSION; Santo Lalomia, Individually and Officially as a Member of the New Jersey Racing Commission; Oliver R. Kovacs, Individually and Officially as a Member of the New Jersey Racing Commission; Stuart O Goldsmith, Individually and Officially as a Member of the New Jersey Racing Commission; William E. McGlynn Individually and Officially as a Member of the New Jersey Racing Commission; Daniel A. Monaco, Dr., Individually and Officially as a Member of the New Jersey Racing Commission Frank Orechio, Individually and Officially as a Member of the New Jersey Racing Commission; Savino J. Russoniello Jr., Individually and Officially as a Member of the New Jersey Racing Commission; Samuel M. Cannella, Individually and Officially as a Member of the New Jersey Racing Commission; Peter J. Cofrancesco, Jr., Individually and Officially as a Member of the New Jersey Racing Commission; Francesco Zanzuccki, Individually and as Director of the New Jersey Racing Commission; Michael Vukcevich, Individually and as Deputy Director of the New Jersey State Racing Commission, Appellees.

No. 96-5316.

United States Court of Appeals, Third Circuit.

Argued Feb. 7, 1997.

Decided May 9, 1997.

August R. Soltis (argued) Iulo & Rowek, Passaic, NJ, for Appellants.

Peter Verniero, Attorney General of New Jersey, Joseph L. Yannotti, Assistant Attorney General, of counsel, Jed M. Milstein, Deputy Attorney General, Pamela B. Katten (argued), Senior Deputy Attorney General, Trenton, NJ, for Appellees.

Before STAPLETON and MANSMANN, Circuit Judges, and RESTANI, Judge, Court of International Trade. ^*

RESTANI, Judge.

("Commission") and various of its employees. Appellant challenges his non-reappointment as a racing judge following his criticism of Commission executives' actions in connection with penalty adjudication and his public testimony about the same. He alleges violation of his Fourteenth Amendment due process rights, his First Amendment free speech rights, and the New Jersey Conscientious Employee Protection Act, N.J. Stat. Ann. § 34:19-1 et seq. (West 1996). ¹ We review the summary judgment record in the light most favorable to the appellant, the non-moving party. We will affirm as to the Fourteenth Amendment causes of action, but will reverse and remand for fact-finding as to the First Amendment claim and the related state law claim.

FACTS

Defendant New Jersey Racing Commission is a body created by N.J.Stat.Ann. § 5:5-22 (West 1996) with jurisdiction, powers and duties overseeing horse racing conducted in the State of New Jersey. Defendant Francesco Zanzuccki is the Executive Director of the New Jersey Racing Commission, and defendant Michael Vukcevich is the Deputy Director of the New Jersey Racing Commission.

In 1985, Mr. Latessa was licensed by the United States Trotting Association as an Associate Judge with powers to officiate as a judge at harness horse meets. In the latter part of 1985, he began working at various race tracks in New Jersey as either a Patrol Judge or an Associate Judge. Mr. Latessa was first appointed by the Commission as Presiding Judge at Garden State Park in 1988 and was also appointed to that position at the Meadowlands Race Track ("The Meadowlands") in 1992.

In New Jersey, racing judges are appointed on a meet-by-meet basis. N.J.Stat.Ann. § 5:5-37(a) (West 1996). They are paid on a weekly basis and do not receive fringe benefits. See id. They serve at the pleasure of the Commission. N.J.Stat.Ann. § 5:5-37(a).

Penalty decisions are made in the first instance by certain officials employed by the Commission, including panels of judges. N.J.Admin.Code tit. 13, § 71-1.20(b)(1990). The Commission itself may modify a penalty decision. Id. § 71-1.23. Thereafter, appeal may be filed with the Commission, but the Commission may reject or modify on its own motion any imposed penalty or decision. Id. § 71-3.3 (1995). Sometime in early 1993, Mr. Zanzuccki and Mr. Vukcevich began making penalty "recommendations" in horse drugging cases prior to the formal action of the three judge panel authorized to take initial action in such matters.

In July of 1993, Mr. Zanzuccki told Mr. Latessa that a 120-day penalty should be imposed on Thomas Milici, a horse trainer accused of administering an illegal drug, by the panel of judges which included Mr. Latessa. Mr. Latessa did not demur, but rather advised the panel of Mr. Zanzuccki's statement. The other judges disagreed, believing that the penalty would be inconsistent with penalties imposed in like circumstances previously and imposed a 90-day sentence. Mr. Latessa did not register a contrary vote.

Mr. Zanzuccki was not pleased with the outcome of the Milici matter and demanded reports from the three judges as to what had occurred. The other two judges did not discuss what had occurred procedurally, but reported on the substance of their reasoning. Mr. Latessa described similar reasoning, but also indicated that while he had advocated Mr. Zanzuccki's preferred penalty, he had been outvoted. Follow-up questioning of the other judges indicated to Mr. Zanzuccki that Mr. Latessa's "advocacy" did not go beyond reporting Mr. Zanzuccki's statement and that Mr. Latessa registered no formal dissenting vote.

During the summer of 1993, Mr. Zanzuccki continued to either recommend or direct drug violation penalties prior to the completion of proceedings before the panel of racing judges. It was in connection with one of these cases that Mr. Latessa later gave testimony before the Office of Administrative Law about the early intervention of Mr. Zanzuccki in the proceedings.

At the end of the summer Mr. Latessa was reappointed as the Presiding Judge for the upcoming harness racing meet at Garden State Park. During the early fall Mr. Latessa, Mr. Vukcevich, and Mr. Zanzuccki continued to disagree about the manner in which the Milici matter was handled. In the first week of November, during a racing meet in California, Santo Lalomia, Chairman of the New Jersey Racing Commission, interviewed Michael Corley for the position of Presiding Judge. On November 16, 1993, Mr. Zanzuccki requested a meeting with Mr. Latessa scheduled for November 30, 1993. On November 19, 1993, Mr. Vukcevich sent Mr. Latessa a memorandum noting the "inconsistent" accounts of the Milici deliberations, as well as other points of disagreement. On November 22, 1993, Mr. Latessa testified before the Office of Administrative Law and one day later Mr. Zanzuccki sent a memorandum to Mr. Lalomia indicating he had decided not to reappoint Mr. Latessa. The Administrative Law Judge credited Mr. Latessa's testimony and issued an opinion on November 29, 1993, critical of the actions of Mr. Zanzuccki and his deputy. The administrative law judge said in part:

The impartiality of the agency head--the NJRC--will be compromised if the Executive Director and/or Deputy Director participate in any advisory capacity concerning the penalty issue. The Executive Director and Deputy Director have already instructed the judges to impose a two-year suspension. The Deputy Director and Executive Director have in the past discussed penalty with the NJRC after an ALJ issued a decision, thereby making the proceedings before the OAL seem rather superfluous. "The primary reason for establishing the [OAL] was 'to bring impartiality and objectivity to agency hearings and ultimately to achieve higher levels of fairness in administrative adjudications.' " In re Uniform Administrative Procedure Rules, 90 N.J. 85, 90 (1982) (citation omitted); While an administrative agency has the ultimate authority to adopt, reject or modify an ALJ's recommended findings of fact and conclusions of law, "the agency head must base the final decision solely on the record established at the hearing." Matter of Opinion No. 583, supra, 107 N.J. at 238 [526 A.2d 692 (1987)]. Thus, if the NJRC considers "other" information from the Executive Director and Deputy Director, the very individuals who proposed the penalty in this case, then the NJRC, as the final authority, would be admitting new evidence that neither the opposing party nor this ALJ had the opportunity to consider. Such actions, if permitted, would undermine the very purpose of the OAL proceeding. On a lesser scale of importance, but significant, and equally troubling, is the apparent blending of functions that seems to be common practice at the NJRC. Presiding Judge Latessa plainly acknowledged that he did not feel that the judges could do anything but follow the penalty proposed. From his testimony, a licensee, like Rubin, must question how impartial is such a hearing and, even assuming that there is nothing wrong with this practice, which seems to be at odds with basic due process notions, there is an [sic] least an appearance of impropriety. Such practices place individuals of high integrity, like Latessa and Gallagher, who essentially serve at the pleasure of the NJRC, in a difficult and possibly a compromising position. The potential for abuse is present and carried to its logical extreme, could result in the dismissal of a conscientious judge or steward.

App. at 195-96 (emphasis in original).

On December 3, 1993, Mr. Corley was recommended as the replacement for Mr. Latessa at the 1994 Meadowlands Harness Race Meeting.

Discussion

I

Pursuant to 28 U.S.C. § 1291 we have jurisdiction to decide this appeal from a final decision of the district court. The district court had jurisdiction under 28 U.S.C. § 1331 as plaintiff brought claims under 42 U.S.C. §§ 1981, 1983, 1985 and 1988. ²

As this matter comes to us following a grant of summary judgment under Fed.R.Civ.P. 56 in favor of defendants on all claims, review is plenary. Jefferson Bank v. Progressive Cas. Ins. Co., 965 F.2d 1274, 1278 (3d Cir.1992). We also address whether the district court abused its discretion in denying leave to amend the...