Liberty v. Corzine
| Decision Date | 24 June 2010 |
| Docket Number | Civil No. 08-2642 (JBS). |
| Citation | 720 F.Supp.2d 622 |
| Parties | LIBERTY AND PROSPERITY 1776, INC., et al., Plaintiffs, v. Jon CORZINE, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Robert Loefflad, Esq., Seth Grossman & Associates, Somers Point, NJ, for Plaintiffs Liberty and Prosperity 1776, Inc.; Seth Grossman; Betty Lou Barnard; Bruce Barkoff; Drew W. Barkoff; Robert Bulkeley; Judith Butler; Albert P. Garrett; Charles Lukens; Doris Lukens; and John G. Mayher.
Larry R. Etzweiler, Senior Deputy Attorney General, Brian G. Flanagan, Deputy Attorney General, Office of the NJ Attorney General, R.J. Hughes Justice Complex, Trenton, NJ, for Defendants Jon Corzine, Anne Milgram, State of New Jersey, and the New Jersey State Police.
Judson B. Barrett, Esq., Barrett and Pavluk, LLC, Ocean, NJ, for Defendants County of Cape May and John F. Callinan.
A. Michael Barker, Esq., Barker, Scott & Gelfand, Linwood Greene, Linwood, NJ, for Defendants Township of Middle; Middle Township Chief of Police Joseph Evangelista; and Middle Township police officers Paul Fritch, Scott Webster, James D'Alonzo, and Richard Smedberg.
Michael Paul Madden, Esq., Madden & Madden, PA, Haddonfield, NJ, for Defendants Middle Township Board of Education and Walter Landgraf.
I. INTRODUCTION
This First Amendment case involves individuals who were prevented from carrying signs and distributing leaflets at a state-sponsored town hall meeting by state officials who allowed another nonprofit group to engage in those activities. The matter is before the Court on a motion to dismiss by Walter Landgraf, a business administrator for the Middle Township Board of Education, who argues that the Complaint's allegations insufficiently plead his involvement in the unconstitutional conduct [Docket Item 69], and former Governor Jon Corzine's motion to dismiss for similar reasons, as well as qualified immunity [Docket Item 79]. Mr. Landgraf joins in Mr. Corzine's motion, also invoking qualified immunity. For the reasons explained below, the motions will be denied.
II. BACKGROUND A. Factual Background
This dispute arises out of events at a town hall meeting convened by then New Jersey Governor Jon Corzine at the Middle Township High School Performing Arts Center on January 19, 2008. (Second Am. Compl. ¶ 42.) According to Plaintiffs' allegations, Governor Corzine scheduled the town hall meeting to present a financial restructuring and debt reduction plan to the citizens of Middle Township, and to solicit the citizens' feedback regarding the plan. ( Id. ¶ 39.) Plaintiffs, various individuals who opposed the financial restructuring plan, all of whom are members of Liberty and Prosperity 1776, Inc., allege that Mr. Landgraf and Middle Township police advised them that they could not display signs or distribute literature in the auditorium, and forced them to stop displaying signs and distributing literature on the grounds of the facility generally. ( When Plaintiffs Steve Lonegan and Seth Grossman refused to leave or stop displaying signs on the facility grounds, they were arrested. (
Members of a nonprofit organization, Save Our State NJ, Inc., were permitted to set up registration tables inside the Performing Arts Center, distribute literature, display signs, place a banner over the stage, and interact with members of the public, as they had done at previous town hall meetings. ( Id. ¶ ¶ 45-46.) Plaintiffs allege facts to show that Save Our State was a private organization indistinguishable from Liberty and Prosperity 1776 except in its viewpoint. They allege that the State of New Jersey provided no financial support to Save Our State ( Id. ¶ 48); Save Our State was registered as a 501(c)(4) advocacy organization with the IRS ( Id. ¶ 50); the registered agent and director of Save Our State was Jennifer Godoski, who previously served as an employee in the Commissioner's Office of the New Jersey Department of Transportation, but who severed “all official ties” with the state ( Id. ¶¶ 51-52); Save Our State was privately formed for the sole purpose of engaging in political advocacy in furtherance of its individual donor's political and economic interests and not on behalf of the State of New Jersey, and the activities it undertook were for that sole purpose ( ; and that the State Of New Jersey exercised no direct control over the activities of Save Our State, and there was no understanding between the State of New Jersey and Save Our State under which Save Our State agreed to aid or assist the State in expressing government speech ( Id. ¶¶ 61-62).
Plaintiffs claim that Defendants violated their First Amendment rights by restricting their use of signs and distribution of leaflets while permitting Save Our State's similar speech approving the Governor's plan. Defendants respond that the restrictions were reasonable, content-neutral restrictions based on the security needs of an event featuring the Governor, which were applied in a viewpoint-neutral manner because Save Our State's speech was in fact government speech. Defendants also justify the restrictions based on the prerogative of the temporary user of public forum to control his message and prevent disruption.
B. Procedural History
Plaintiffs filed the first version of the Complaint on May 28, 2008 naming numerous state officials and state entities as defendants. Plaintiffs initially alleged that Defendants violated their right to the freedom of speech, assembly, and to petition the government in violation of the United States Constitution and the New Jersey Constitution; that Defendants violated Plaintiff Grossman's right to be free from unreasonable searches and seizures in violation of the United States Constitution and the New Jersey Constitution; and asserted claims of civil rights conspiracy pursuant to 42 U.S.C. § 1985 and refusal to prevent a civil rights conspiracy pursuant to 42 U.S.C. § 1986.
By an Order and Opinion of March 3, 2009, 2009 WL 537049, this Court dismissed with prejudice Plaintiffs' claims against the state entities and the individual state officials in their official capacities because of Eleventh Amendment immunity, as well as the claims other than the free speech claims.
The Court also examined Plaintiffs' free speech claims. Defendants had moved to dismiss these claims, arguing that they failed to state a claim because of the First Amendment's allowance for content-neutral time, place, and manner restrictions. In particular, they pointed to security interests and the prevention of disruption as sufficient justifications for a content-neutral restriction on signs and distribution of literature. In their opposition to the motion, Plaintiffs had submitted a certification of Plaintiff Seth Grossman containing allegations of facts related to Save Our State which were not mentioned in the Complaint, and which Plaintiffs believed supported a claim of viewpoint discrimination. (Grossman Cert. ¶¶ 53-54.) In response to the certification, Defendants argued that the speech of Save Our State was government speech, and therefore could lawfully be treated differently from Plaintiffs' speech.
The Court found that if Plaintiffs desired to pursue a claim based upon a theory of viewpoint discrimination, they needed to file an amended complaint clarifying the nature of their claims, and with factual allegations supportive of each such theory. The Court also required that in their amended complaint, Plaintiffs had to specify which Defendants were alleged to have engaged in which conduct because the Complaint simply referred to Defendants collectively.
The Amended Complaint failed to remedy the problem of collective pleading, and stated many claims using legal boilerplate, such as that a defendant “personally participated in” unconstitutional conduct without specifying the nature of the participation. The Court dismissed the Amended Complaint without prejudice to further amendment, ordering that to prevent the recurring ambiguity, any paragraph of the Second Amended Complaint that contained collective reference to Defendants would be taken to apply to all Defendants, and such allegations needed to comply with Rule 11, Fed.R.Civ.P. Similarly, the Court warned that any paragraph of the Second Amended Complaint that claimed that one or more individuals was involved in unconstitutional conduct and then referred to a list of allegedly unconstitutional actions, (e.g. Am. Compl. ¶¶ 65-74), would be construed as an allegation that each of the individuals was personally involved in every action listed.
The Court also found that the Amended Complaint still did not provide adequate factual allegations with respect to the relationship between Save Our State and Defendants needed for this Court to assess whether Save Our State had engaged in private or government speech. Plaintiffs were asked to clarify their factual allegations with regard to whether and to what extent Defendants controlled the content of the expressive activity of Save Our State, and clarify the purpose for the creation of the organization.
The Second Amended Complaint was filed on November 2, 2009. It deletes a number of parties, retaining claims against former Governor Jon Corzine, three members of the Middle Township Police Department (Paul Fritch, James D'Alonzo, and Richard Smedberg) and Secretary of the Middle Township Board of Education, Walter Landgraf, as well as a number of unnamed defendants. It also adds a fourth Middle Township policeman, Ronald Miller Jr.
The Second Amended Complaint offers more specific allegations with respect to the involvement of each Defendant, and it clarifies Plaintiffs' allegations regarding the relationship between the State of New Jersey and the nonprofit organization Save Our State.
Governor Corzine's renewed motion to dismiss argues that the Governor is entitled...
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